Employment and Labour Law

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding her authority to appoint a conciliation officer.

The union sought conciliation for a bargaining unit covering all sectors except the industrial, commercial, and institutional (ICI) sector.

The employer objected, arguing it had no employees in the residential sector and had only ever worked in the ICI and road/bridge sectors.

The Board advised the Minister that she has the authority to appoint the conciliation officer.

The Board noted that in the construction industry, a union does not abandon its bargaining rights merely because the employer is inactive in certain sectors, and the 'spent certificate' theory does not apply to extinguish rights in sectors where the employer has no employees.

The applicant applied under section 63 of the Labour Relations Act, 1995 to terminate the responding party union's bargaining rights.

A representation vote resulted in a tie, with one segregated ballot ultimately ruled eligible.

The applicant and intervenor employer requested that the single ballot be counted, while the union requested a new vote.

The Board directed that a new representation vote be taken to preserve the secrecy of the ballot.

The applicant employers' organization filed an unfair labour practice complaint alleging that the responding trade unions bargained in bad faith by pressing to impasse a demand that the applicant's members contribute to an industry fund operated by a rival employers' organization.

The Board found that the trade unions' insistence on this provision as a condition to end a strike interfered with the administration of the applicant and provided improper support to the rival organization, contrary to section 71 of the Labour Relations Act, 1995.

The Board concluded that pressing this demand to impasse constituted a failure to bargain in good faith under section 17.

The Practical Nurses Federation of Ontario applied for certification to represent practical nurses employed by the responding party.

The responding party filed a timely response proposing a slightly different bargaining unit, and the Board ordered a representation vote based on the application and response.

After the vote was ordered, the responding party sought to amend its response to propose an 'all employee' bargaining unit.

The Board held that the responding party was bound by its original response, as allowing an amendment after the statutory deadline and after vote arrangements were made would prejudice the applicant and undermine the expedited certification process.

A certificate was issued to the applicant.

The employer and two individuals requested reconsideration of a Board decision directing a representation vote, and sought to have the vote declared null and void.

They argued that the Minutes of Settlement underlying the vote were unenforceable due to lack of notice to the individuals, and that the employer lacked legal advice when signing.

The Board dismissed the requests, finding that adequate notice was provided through postings, the individuals failed to act in a timely manner, and the employer could not resile from its agreement simply because it chose not to obtain legal advice.

The union was certified based on the vote results.

The applicants sought declarations and directions regarding an anticipated work stoppage by the responding trade unions in support of the 'Days of Protest' against the provincial government.

The Board found that the planned concerted refusal to work during the term of a collective agreement constituted an unlawful strike under the Labour Relations Act, 1995, notwithstanding its political purpose.

The Board exercised its discretion to issue declaratory relief and cease-and-desist directions, noting the applicants' unsuccessful efforts to accommodate the protest and the unions' clear intention to disrupt production.

The applicant union brought unfair labour practice and contempt applications against the respondents, including a Minister of the Crown.

During the proceedings, the Vice-Chair disclosed that all Board Vice-Chairs had received confidential information regarding the selection process for the recent removal of four Vice-Chairs, an issue central to the applicant's allegations of political interference and lack of institutional independence.

The respondents moved for recusal.

The Board held that, given the high standard of natural justice applicable to its adjudicative functions, the disclosure of this highly relevant but undisclosed information raised a reasonable apprehension of bias.

The proceedings were stayed.

The applicant trade union applied for certification to represent a bargaining unit of security guards employed by the responding party in Ottawa.

The Ontario Labour Relations Board found that the applicant is a trade union and that at least forty percent of the individuals in the proposed unit were members.

The Board directed a representation vote, with segregated ballots for disputed positions, and deferred consideration of the responding party's objection under section 14(2) of the Labour Relations Act, 1995 to a future hearing.

The applicant trade union sought to withdraw its certification application the day before a scheduled second representation vote.

The first vote had been nullified by the Board to protect the secrecy of a single segregated ballot.

The employer requested the imposition of a one-year bar on future applications under section 7(9) of the Labour Relations Act, 1995.

The Board found that the wishes of the employees had been effectively tested during the first vote and subsequent litigation over voter eligibility.

Consequently, the Board exercised its discretion to impose a one-year bar on the applicant.

The applicant trade union applied for certification to represent a bargaining unit of employees at the responding party's store.

The Board found that the applicant is a trade union and that more than 40% of the individuals in the proposed bargaining unit were members of the union.

The Board ordered a representation vote.

The responding party argued that the application should be dismissed due to a one-year bar imposed on a prior application by a related local union, and requested that the ballot box be sealed pending determination of this issue.

The majority of the Board directed that the ballots be counted, with the bar issue to be dealt with later if necessary.

One Board member dissented, arguing the ballot box should remain sealed until the bar issue was decided.

In an application for certification, the responding party employer argued that its employees were 'full-time firefighters' under the Fire Departments Act and therefore excluded from the Labour Relations Act, 1995.

The Ontario Labour Relations Board found that the employees were not assigned exclusively to fire protection or prevention duties, as they also monitored private commercial and residential fire alarms.

Consequently, the employees were not 'full-time firefighters' and the Labour Relations Act, 1995 applied.

The matter was adjourned to resolve the disputed status of two individuals whose ballots remained sealed.

The union applied for a direction that a first collective agreement be settled by arbitration and filed an unfair labour practice complaint alleging bad faith bargaining.

The employer applied to terminate the union's bargaining rights for security guards under the transitional provisions of Bill 7, alleging a conflict of interest because the union also represented cleaners at the same sites.

The Board dismissed the employer's application, finding no conflict of interest as the guards exercised minimal monitorial authority over the cleaners.

The Board granted the union's applications, finding that the employer breached the duty to bargain in good faith by secretly contracting out the security services while pretending to negotiate the issue, and by subsequently refusing to recognize the union's bargaining authority.

The Board directed that the first collective agreement be settled by arbitration.

The applicants referred a grievance to arbitration and applied for related employer and sale of business declarations.

As a preliminary issue, the Board determined the scope of the applicants' bargaining rights.

The applicants argued that by virtue of being bound to the Provincial Bricklayers Agreement, the responding parties were also bound to the Provincial Marble, Tile and Terrazzo Agreement due to the employee bargaining agency designation, or alternatively, that the sub-contracting clause required them to sub-contract tile and terrazzo work to union contractors.

The Board dismissed both arguments, finding that the designation order could not create bargaining rights and that the sub-contracting clause only restricted the sub-contracting of work covered by the Provincial Bricklayers Agreement.

The applicant, a local union business representative, was removed from office by the international union after losing his good standing due to the late payment of a union fine.

He applied to the Ontario Labour Relations Board under section 149(2) of the Labour Relations Act, 1995, arguing he was removed without just cause.

The Board dismissed the application for lack of jurisdiction, holding that section 149(2) does not create independent rights for individual members to challenge internal union discipline, but rather exists only to protect local union autonomy from unwarranted interference by a parent union.

The employer applied for a declaration terminating the union's bargaining rights for a unit of security guards under the transitional provisions of the Labour Relations Act, 1995.

As a preliminary issue, the employer argued that the doctrine of issue estoppel applied based on a 1994 Board decision between the same parties that found a conflict of interest existed.

The majority of the Board dismissed the preliminary objection, finding that while the facts had not changed, the statutory context and the legal test for conflict of interest had materially changed under the new legislation.

The matter was referred to the Registrar to schedule a hearing on the merits.

One Board member dissented.

The union applied for certification and alleged unfair labour practices against the employer, including the termination of a union supporter and the circulation of an anti-union questionnaire by a managerial employee.

The Board found that the termination was motivated by anti-union animus and that the questionnaire constituted unlawful interference.

Concluding that a representation vote would not reflect the true wishes of the employees due to the chilling effect of the employer's actions, the Board granted automatic certification under section 11 of the Labour Relations Act, 1995, and ordered the reinstatement of the terminated employee with compensation.

The applicant union applied for certification to represent a bargaining unit consisting solely of Geographic Full-Time (GFT) secretaries employed by the responding hospital.

The hospital argued that the GFT secretaries did not constitute an appropriate bargaining unit and should be included in a larger unit of all clerical and administrative employees.

The Ontario Labour Relations Board found that while GFT secretaries had some distinct characteristics, such as precarious job security tied to individual physicians and a history of separate association, creating a separate bargaining unit for them would cause undue fragmentation and serious labour relations problems.

The Board concluded that the proposed unit was not viable for collective bargaining and dismissed the application.

The applicant applied to terminate the bargaining rights of the union under the non-ICI collective agreement.

The union argued that the applicant was not performing bargaining unit work on the application date, as he was primarily performing clean-up work in the employer's yard.

The Board found that the collective agreement's recognition clause referred to 'construction projects' and did not cover the yard work performed.

As the applicant was not performing bargaining unit work on the application date, the termination application was dismissed.

The Ontario Labour Relations Board conducted a sector determination to decide whether the construction of a stand-alone raw sewage pumping station fell within the industrial, commercial and institutional (ICI) sector or the sewer and watermain sector.

Applying an end-use analysis, the Board found that the pumping station did not process or treat sewage, but merely moved it along the sewage lines to a treatment facility.

Consequently, the Board concluded that the end use of the pumping station placed it within the sewer and watermain sector.

The applicant filed an application for termination of bargaining rights.

The union and the employer had previously agreed to continue a first contract arbitration under the transition provisions of the Labour Relations Act, 1995.

The Board found that this agreement constituted an irrevocable agreement to arbitrate under section 40 of the Act, which has the same effect as a collective agreement in making a termination application untimely.

Consequently, the application was dismissed.