Employment and Labour Law

In an application for certification by the Labourers' International Union of North America, the parties disputed the eligibility of several individuals to cast ballots in a representation vote.

The Board applied the Seegmiller test to determine whether the challenged individuals spent the majority of their time performing construction labourers' work on the application date.

The Board concluded that the work performed by 'servicemen' or 'handymen', which included general repair and clean-up work, constituted bargaining unit work despite overlapping with the core jurisdictions of other trades.

Consequently, the ballots of the servicemen and certain other individuals were ordered to be counted, while the ballots of those who did not perform bargaining unit work on the application date were ordered destroyed.

The Carpenters union filed a work assignment complaint regarding the tending of carpenters at a construction project at Algoma Steel.

The general contractor had assigned the formwork to the Carpenters, with the Labourers tending.

The Carpenters argued they should tend themselves.

The Board considered employer practice, area practice, trade agreements, collective agreement obligations, economy and efficiency, and skill and safety.

Finding that tending is at the core of the Labourers' work jurisdiction and that safety and efficiency factors also favoured the Labourers, the Board upheld the assignment of the work to the Labourers.

The Ministry of Labour referred a question to the Ontario Labour Relations Board regarding whether the Ottawa-Carleton Regional Residential Treatment Centre is a 'hospital' under the Hospital Labour Disputes Arbitration Act.

The employer provides long-term residential treatment to moderately to severely conduct-disordered adolescents.

Based on the written submissions, the Board found that the employer offers observation, care, and treatment for residents suffering from physical or mental illness on both a medical and personal level.

The Board advised the Ministry that the employer is a hospital within the meaning of the Act.

The responding company in an unfair labour practice complaint brought a motion for a pre-pleading production order against the Pension Commission of Ontario, a non-party.

The company sought access to records and submissions to assist in preparing its response to the complaint.

The Board dismissed the motion, holding that pre-pleading production from a non-party is inappropriate and amounts to a fishing expedition.

The Board also vacated two summonses issued to a Commission official, finding them defective and premature.

The applicant union filed an unfair labour practice complaint alleging that the respondent university breached sections 70 and 73(1) of the Labour Relations Act, 1995 during a restructuring exercise.

The university had distributed a questionnaire directly to employees seeking input on work processes and excluded the union from information sessions.

The Ontario Labour Relations Board dismissed the section 73(1) complaint, finding that the questionnaire did not constitute direct bargaining as it did not compel answers on collective bargaining issues or put forward proposals.

However, the Board allowed the section 70 complaint, concluding that the university's refusal to allow the union to participate in the consultation process interfered with its representational rights without a persuasive business purpose.

The Board ordered the university to post a notice of the violation.

The applicant union sought to certify a bargaining unit of Quality Assurance Technicians.

The respondent employer argued the proposed unit was inappropriate because the technicians exercised managerial functions and were not employees under section 1(3)(b) of the Labour Relations Act, 1995.

The Board found that while the technicians monitored product quality and occasionally acted as supervisors, they did not exercise sufficient control over the economic livelihoods of other employees to be considered management.

The Board concluded the technicians were employees for the purposes of the Act and issued a certificate.

The applicant filed a reprisal complaint under section 50(2) of the Occupational Health and Safety Act, alleging he was unjustly dismissed for exercising his rights under the Act.

Prior to this application, the applicant's union declined to advance his grievances to arbitration, prompting him to file a duty of fair representation complaint under section 74 of the Labour Relations Act, 1995, seeking an order to compel arbitration.

The Board dismissed the OHSA application on a preliminary objection, finding that by pursuing the section 74 application to compel arbitration, the applicant had elected to proceed by way of arbitration under section 50(2) of the OHSA, thereby precluding the Board from hearing the matter.

The applicant filed a complaint alleging the employer committed an unlawful reprisal under the Occupational Health and Safety Act and the Smoking in the Workplace Act by failing to accommodate his need to avoid second-hand smoke.

The employer raised a preliminary objection that the Board lacked jurisdiction because the applicant had already elected to proceed by way of a grievance arbitration.

The Board held that section 50(6) of the OHSA does not grant the Board exclusive jurisdiction over Crown employees to the exclusion of arbitration.

The application was dismissed as the applicant had elected to proceed before the Grievance Settlement Board.

The union applied for certification and filed an unfair labour practice complaint against the employer, an electrical contractor.

During the organizing campaign, the employer's principals made promises of wage increases and benefit plans if the union was defeated, and threatened that unionization would lead to a loss of jobs and 'early retirement'.

The Board found these actions violated sections 70, 72(c), and 76 of the Labour Relations Act, 1995.

Concluding that the widespread threats to job security made it unlikely that a representation vote would reflect the employees' true wishes, and that no other remedy could counter these effects, the Board granted automatic certification under section 11(1) of the Act.

The applicants filed an application to terminate the bargaining rights of the responding union.

The union alleged that the employer initiated the application or engaged in threats, coercion, or intimidation, and requested the Board dismiss the application under section 63(16) of the Labour Relations Act, 1995.

The Board found that the lead petitioners openly used company resources, including the boardroom and working hours, to solicit signatures for the decertification petition.

The Board concluded that the employer's toleration and cooperation communicated explicit support for the application, which significantly facilitated its success.

Finding that the employer initiated the application, the Board exercised its discretion to dismiss it.

The union brought applications alleging unfair labour practices, an unlawful lock-out, and seeking declarations of a sale of business and related employer status following the bankruptcy and subsequent sale of Vulcan Packaging Inc. to a purchasing group.

The Board found that a sale of business had occurred and that the entities constituted a single employer, meaning the collective agreement continued to bind the purchasers.

However, the Board dismissed the unfair labour practice complaints, finding no breach in the employer's failure to disclose financial difficulties during prior negotiations, the issuance of Records of Employment, or the signing of a side agreement requiring wage concessions.

The Board also declined to issue cease and desist relief regarding the alleged unlawful lock-out, concluding that it made labour relations sense to permit continued negotiations over concessions necessary for the plant's economic viability.

The applicant filed a duty of fair representation complaint against her union, alleging it violated section 74 of the Labour Relations Act, 1995 by failing to present arguments and evidence regarding systemic race discrimination at her discharge grievance arbitration.

The Board dismissed the application, finding that the union had carriage of the grievance and was not obligated to follow the applicant's instructions on how to present the case, provided it fairly and carefully considered her suggestions.

The Board noted that the union had vigorously and thoroughly represented the applicant by advancing other arguments, including a poisoned work environment and differential treatment.

The applicant, a social worker, alleged she was terminated and subjected to pre-termination reprisals by her employer, a hospital, after complaining of sexual harassment by her supervisor.

The hospital argued the termination was strictly due to financial restructuring and that sexual harassment falls outside the Occupational Health and Safety Act.

The Board found it had jurisdiction to hear the reprisal complaint, as the applicant genuinely believed the harassment was a workplace hazard.

However, the Board dismissed the complaint on the merits, finding the termination was a bona fide layoff driven by budget cuts and that the alleged pre-termination incidents did not constitute penalties or reprisals.

The grievor, a construction labourer at a nuclear generating station, was discharged after being found in possession of marijuana and admitting to smoking it at work.

The union grieved the discharge, arguing that the employer's investigation violated the grievor's Charter rights and that his drug use was rooted in an addiction requiring accommodation.

The Ontario Labour Relations Board dismissed the grievance, finding that the employer had just cause for discharge given the safety-sensitive nature of the nuclear facility and the employer's zero-tolerance policy.

The Board held that independent evidence established the misconduct regardless of the Charter claims, and there was insufficient evidence to prove the grievor was addicted or had a reliable recovery program.

The applicant union filed an unfair labour practice complaint alleging the responding employer unlawfully discharged an employee for exercising rights under the Labour Relations Act.

The employer conceded liability for breaching section 76 of the Act.

The Board ordered the employee's reinstatement, subject to the employer's seasonal workforce size.

The Board also awarded damages for lost wages and benefits, finding the employee had reasonably mitigated his damages and the union's delay in filing was not unreasonable.

Notably, the Board held that workers' compensation benefits received by the employee during the damages period must be deducted from the award, applying the Supreme Court of Canada's reasoning in Sylvester v. British Columbia.

In an application for certification by IBEW Local 1687, the Ontario Labour Relations Board determined preliminary issues regarding standing and procedure.

The Board held that the Power Workers' Union (PWU) did not have standing to intervene, as its membership evidence did not confer representational authorization for this proceeding and it had not previously asserted bargaining rights over the affected employees.

The Board also declined to count the ballots from a prior representation vote, finding the results would not be dispositive of any remaining issues.

Finally, the Board established the order for determining the remaining issues, starting with whether a Letter of Understanding constituted a collective agreement bar.

The responding employer requested reconsideration of an Ontario Labour Relations Board decision that directed a first contract to be settled by arbitration.

The employer alleged a reasonable apprehension of bias because the Vice-Chair who authored the decision had engaged in discussions with, and accepted a retainer from, a federal trade union (CALPA) around the time the decision was issued.

The Board dismissed the request, finding that the Vice-Chair's relationship with an unrelated trade union operating in a different jurisdiction did not give rise to a reasonable apprehension of bias.

A dissenting Board Member would have set the matter down for an open, public hearing.

In an application for certification, the Ontario Labour Relations Board determined the voter eligibility of two individuals who were not at work on the application date.

The Board found that both individuals performed work on an extremely erratic basis and were on indefinite layoff with no contemplated recall date.

Applying established Board jurisprudence, the Board concluded that their tenuous relationship with the employer was insufficient to ground an employment relationship for voting purposes.

Their ballots were directed to be destroyed.

The Board also directed the counting of five other segregated ballots and dismissed requests for reconsideration of an earlier decision.

The applicant trade union applied for certification to represent part-time and casual nurses at the responding hospital.

A representation vote was held within five days of the application, resulting in a majority for the union.

The employer challenged the vote, arguing the short timeframe and single voting day provided insufficient notice and access for casual employees.

The Board dismissed this objection, finding the statutory five-day quick vote model applied and the parties' own efforts ensured adequate notice.

On the issue of the bargaining unit description, the Board agreed with the employer that the part-time unit should 'mirror' the historical full-time unit, which was restricted to nurses providing direct nursing care, to avoid serious labour relations harm.

A final certificate was issued for the restricted unit.

The union filed unfair labour practice complaints alleging the employer engaged in bad faith bargaining during a lengthy strike.

The employer refused to meet with the union for over three months despite repeated requests, citing picket line issues and production demands.

When the employer finally tabled a proposal, it contained significant concessions that undermined seniority and union protections.

The Board found the employer breached its duty to bargain in good faith by failing to meet and by tabling a proposal designed for rejection.

The Board directed the parties to return to bargaining forthwith.