Employment and Labour Law

The Toronto Transit Commission (TTC) brought an application alleging that union leaders and organizations breached section 83 of the Labour Relations Act by encouraging protesters to picket TTC sites during the 'Days of Protest', which would cause TTC employees to engage in an unlawful strike.

The Ontario Labour Relations Board found that verbal statements constitute 'acts' under section 83 and that the provision's restriction on Charter rights of expression and assembly is demonstrably justified.

The Board concluded that two union leaders breached the Act and issued cease and desist orders restricting picketing at TTC access points to ensure employees could work, while dismissing the application against a third leader and the organizations.

A dissenting member argued that section 83 should not apply to political speech and that the restrictions were not justified under the Charter.

The applicant trade union referred a construction industry grievance to the Board, alleging the responding employer violated the provincial collective agreement.

The employer argued the union had abandoned its bargaining rights obtained through a 1963 voluntary recognition agreement.

The Board found that the employer failed to rebut the presumption against abandonment, noting the employer's agreement that the union never intended to abandon its rights.

The Board declared the employer bound by the provincial collective agreement.

During a hearing regarding allegations of bad faith bargaining, the company's counsel sought to use a court reporter to record the proceedings.

The union objected, arguing it diminished the Board's control and prejudiced the union.

The Board ruled that the company could use a court reporter, but the transcript would not be the official record.

The Board further ordered that if the company's counsel intended to refer to the transcript during the hearing, they must notify the other parties and provide copies to the union and the Board at the union's and company's respective expenses.

The applicant applied for termination of the union's bargaining rights.

The union responded with allegations of employer initiation under section 63(16) of the Labour Relations Act, 1995, and had a pending application for first contract arbitration under section 43.

The Board deferred ordering a representation vote and directed that the termination application be heard together with the first contract arbitration application.

In an application for certification, the union and employer agreed on a bargaining unit description that excluded 'office and clerical staff'.

The sole remaining issue was whether receptionists fell within this exclusion.

The Board found that while receptionists shared some community of interest with bargaining unit employees, their duties were primarily administrative and clerical in nature, involving the collection of information that flowed to the accounting staff.

Consequently, the Board concluded that the receptionists fell within the office and clerical exclusion and were excluded from the bargaining unit.

A final certificate was issued.

The applicant union sought interim relief to prevent the exclusion of certain employees from the Crown Employees Collective Bargaining Act pending a decision on the merits.

The Board held that while section 98 of the Labour Relations Act, 1995 limits interim orders to procedural matters, section 16.1 of the Statutory Powers Procedure Act grants the Board a broader, general power to make interim orders related to its jurisdiction, which prevails due to the override provision in section 32 of the SPPA.

However, the Board declined to grant interim relief in this case, primarily because the applicant was unwilling to proceed expeditiously with a hearing on the merits.

The employer applied under section 5(2) of the Labour Relations and Employment Statute Law Amendment Act, 1995 (Bill 7) to separate its existing combined full-time and part-time bargaining units into distinct units.

The employer argued that Bill 7 codified a pre-1993 presumption that there is no community of interest between full-time and part-time employees.

The Ontario Labour Relations Board rejected this argument, finding that Bill 7 did not codify such a presumption and that the Board must assess the specific circumstances of each case.

Based on the agreed facts, the Board found a clear community of interest between the full-time and part-time employees, as they performed the same duties under the same supervision, received the same training, and had similar conditions of employment.

The application was dismissed.

The applicants filed a complaint alleging that the responding parties breached section 79 of the Labour Relations Act, 1995 by failing to conduct an employee ratification vote for a memorandum of settlement in the construction industry.

The Ontario Labour Relations Board dismissed the complaint, finding that section 44 of the Act explicitly exempts the construction industry from mandatory employee ratification votes.

The Board held that a trade union in the construction industry is free to choose a ratification process that does not include a vote of employees, such as a vote of accredited delegates.

The applicant employee applied to terminate the union's bargaining rights.

The union filed a counter-application alleging the employer initiated the termination application and interfered with the union's representation rights.

The Board found that the employer's principal officer had created a climate of antagonism against the union and had explicitly requested the applicant to bring the decertification application.

Concluding that the employer initiated the application within the meaning of section 63(16) of the Labour Relations Act, the Board exercised its discretion to dismiss the termination application.

The Board also found the employer violated section 70 of the Act by unduly influencing the employee.

The applicant union applied for certification to represent employees of the responding party.

The responding party asserted that the employees were already represented by an incumbent employees' association under a collective agreement.

Finding that the applicant had the requisite support, the Board directed a representation vote.

Voters will cast two ballots: one for representation by the applicant, and a second choosing between the applicant and the incumbent association, pending a future determination of the association's trade union status.

The applicant trade union applied for certification of the responding employer in the construction industry.

The employer alleged that the union intimidated and coerced three employees into signing membership cards and voting for the union by threatening them with internal union charges and fines for working non-union.

The Board found that the union breached section 76 of the Labour Relations Act, 1995, by using its internal disciplinary processes to coerce the employees.

Concluding that the representation vote did not reflect the true wishes of the employees and that no other remedy was sufficient, the Board dismissed the certification application under section 11(2).

In a related unfair labour practice complaint, the Board found the employer breached the statutory freeze period under section 86(2) by paying two new employees less than their agreed starting wage, and ordered damages.

The applicant union filed a certification application and an unfair labour practice complaint against the responding party employer.

The employer's president requested an adjournment on medical grounds, which the Board denied, finding the medical evidence of stress and anxiety insufficient to justify delaying the peremptory hearing.

On the merits, the Board found that the employer breached the Labour Relations Act by demanding employees sign anti-union statements, threatening to close the business, and laying off union supporters.

Concluding that a representation vote would not reflect the employees' true wishes and that no other remedy was sufficient, the Board granted automatic certification under section 11 of the Act.

The Labourers' union brought a motion arguing that a prior Board decision (the Surdykowski decision) had finally determined that crew leaders in the residential roofing industry are employers, and that this finding was binding in the current proceedings under the doctrine of res judicata.

The Carpenters opposed the motion.

The Board dismissed the motion, finding that the prior determination regarding crew leaders generally was not fundamental to the substantive decision in that case, and that there was no identity of parties or privies between the Carpenters and the parties in the prior proceeding.

The Board also declined to apply the doctrine strictly for policy reasons, ensuring the Carpenters' right to a hearing on the merits regarding the employee status of crew leaders.

The applicant union filed a complaint regarding a work assignment dispute.

The responding union raised a preliminary objection, arguing that the matter had already been decided by an arbitrator under the Plan for Settlement of Jurisdictional Disputes, to which all parties were bound.

The Ontario Labour Relations Board agreed, finding that the applicant was bound by the Plan's decision through its collective agreement.

Applying the doctrine of issue estoppel, the Board exercised its discretion under section 99 of the Labour Relations Act, 1995 to decline to inquire further into the complaint, emphasizing the policy of deferring to private dispute resolution mechanisms agreed to by the parties.

The applicant union referred a grievance to the Ontario Labour Relations Board under the ICI Provincial Agreement, alleging that the responding employer improperly assigned construction work as maintenance work.

The employer brought a preliminary motion to dismiss the grievance, arguing that the union had already submitted the same dispute to the alternative dispute resolution mechanism under the General Presidents' Agreement (GPA), which resulted in a final and binding decision.

The Board upheld the preliminary motion, finding that the union had initiated the GPA grievance process and fully participated in it.

The Board concluded that it would be unfair to allow the union to re-litigate the issue after receiving an unfavourable decision from the GPA panel, and terminated the proceeding.

Three applications for certification were filed by two different unions shortly after a public service strike began.

The Board dismissed the first application as untimely because it was filed before the commencement of the last two months of the existing collective agreement's operation, interpreting "midnight" as the end of the day.

For the remaining two applications filed on the same day, the Board exercised its discretion to treat them as having been made on the same date and directed a three-way representation vote.

The Board further ruled that under the new provisions of the Labour Relations Act, 1995, the representation vote must be held before any hearing into issues raised by the employer or incumbent union.

The applicants alleged that the responding union violated section 79(9) of the Labour Relations Act, 1995 by establishing a ratification and strike vote procedure that was not reasonably convenient and did not provide ample opportunity to cast ballots.

The union had to organize a vote for approximately 65,000 employees across 4,000 work sites within 14 days.

The Board found that the union's voting arrangements, which included scheduling specific times and places while accommodating individual requests for changes, were sensible and responsive to diverse employee needs.

The Board held that 'reasonable convenience' under section 79(9) requires considering all circumstances, including the union's logistical challenges, and does not guarantee a vote during working hours or at the workplace.

The application was dismissed.

The applicant union sought a declaration under subsection 1(4) of the Labour Relations Act that two companies, Tilbury Concrete Transport Inc. and Tilbury Concrete Inc., constituted a single employer.

The union held bargaining rights for the transport company's drivers, but the concrete company recently began employing its own drivers, who were organized by a different union (CUOE).

The Board found that the two companies carried on related activities under common control and direction within a family enterprise.

Although a declaration would disturb the CUOE's existing bargaining rights, the Board exercised its discretion to issue the declaration because the CUOE failed to defend its rights and effectively abandoned them.

The declaration was made retroactive to the companies' incorporation, rendering the CUOE's subsequent certification untimely.

The applicant international union applied to extend its trusteeship over the respondent local union for a further 12 months under s. 89(2) of the Labour Relations Act, 1995.

Pending the hearing of the main application, the applicant requested an interim extension of the trusteeship.

The Board declined to grant the interim extension, noting the delay in bringing the application, the lack of assurances regarding upcoming elections, and the inherent prejudice to those opposing the extension.

The Board directed that notice be given to the local union members and listed the matter for hearing alongside related unfair labour practice complaints.

The applicant sought to vary a previous Board order regarding essential services for meat inspectors during a strike, requesting limited inspection of meat processing operations or an amendment to the essential services agreement to provide more inspectors.

The Board found no change in circumstances to justify varying the order and no evidence requiring a permanent increase in the essential services complement.

However, the Board directed the parties to negotiate an emergency services protocol to address situations where essential service teams are diverted to investigate suspected illegal slaughter.