Employment and Labour Law

The Ontario Public Service Employees Union applied for certification to represent nurses employed in a home care program by the responding party hospital.

The hospital argued that the nurses were independent contractors, not employees.

The Board examined the relationship, noting the nurses' integration into the home care program, lack of negotiation over pay rates, and limited entrepreneurial opportunity.

The Board concluded that the nurses were dependent contractors and therefore employees under the Act, and granted the certification.

The objecting employees and the employer challenged the validity of a ratification vote conducted by the union.

The ballot presented a choice between accepting the employer's offer or rejecting it and authorizing a strike.

The applicants argued that this compound ballot violated the Labour Relations Act, 1995 by failing to provide a clear 'yes' or 'no' choice on ratification alone.

The Ontario Labour Relations Board dismissed the challenge, holding that the Act does not mandate a simple 'yes' or 'no' ballot and that the combined ratification/strike ballot is a realistic collective bargaining choice that does not prevent employees from expressing their true wishes.

The applicant trade union applied for certification to represent employees at the responding party's retirement residence.

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

The Board directed a representation vote.

The employer gave notice under section 8.1 of the Labour Relations Act, 1995, but failed to provide an estimate of the number of individuals in its proposed bargaining unit.

The majority of the Board declined to treat the response as raising a valid section 8.1 notice.

A dissenting Board member would have found the section 8.1 notice valid and sealed the ballot box pending a hearing.

The applicant applied to terminate the responding party union's bargaining rights for employees of the intervenor employer.

The application encompassed two bargaining units: one for the ICI sector and one for service and maintenance work, which included both construction and non-construction work.

The union argued that the application could only deal with construction industry bargaining rights and that the Board had no jurisdiction to order a vote for the non-ICI sectors.

The Board held that an application to terminate bargaining rights must be based on the bargaining unit defined in the collective agreement, even if it encompasses both construction and non-construction work.

The Board further determined that construction industry rules apply to such mixed units and that one application form can cover two bargaining units.

The Board directed a representation vote for the service and maintenance unit and declared the union's bargaining rights terminated for the ICI sector based on a previous vote.

The applicants, representing occasional teachers, sought interim relief and filed a complaint alleging the OSSTF and the Toronto District School Board breached the Labour Relations Act.

They argued that a new collective agreement for full-time teachers effectively eliminated the work of occasional teachers, breaching the OSSTF's duty of fair representation and the employer's duty not to interfere with a trade union.

The Ontario Labour Relations Board dismissed the application, holding that a union's duty of fair representation only applies when it is actively representing that specific bargaining unit, and that the employer's agreement to terms impacting another unit's work did not constitute statutory interference.

The Kawartha Pine Ridge District School Board applied to the Ontario Labour Relations Board for a determination of the number and descriptions of bargaining units appropriate for its operations following the amalgamation of two predecessor school boards.

The applicant sought five separate bargaining units, while CUPE sought an 'all employee' unit.

The Board determined that an 'all employee' bargaining unit was appropriate, noting the history of such a unit at one of the predecessor boards and the lack of labour relations problems.

The Board also ordered a representation vote.

The employer alleged that the union obtained its certification by fraud because it estimated 57 employees in the bargaining unit on its application, despite the employer previously stating there were 64.

The Ontario Labour Relations Board applied the test for fraud from Derry v. Peek, which requires a false representation made knowingly, without belief in its truth, or recklessly.

The Board found that the union representatives had an honest belief in their estimate, which was based on a practical assessment by the chief steward.

The Board concluded that the union's conduct did not amount to fraud and upheld the certificate.

The applicant union referred two grievances to the Board under section 133 of the Labour Relations Act, 1995, seeking an order that the responding party employer deposit a $20,000 bond pursuant to the collective agreement due to frequent delinquency in benefit fund remittances.

The first grievance was settled.

On the second grievance, the Board found that the employer had been frequently delinquent and that the trustees had properly exercised their discretion to require the bond.

The Board ordered the employer to deposit the $20,000 bond and pay $2,500 in costs.

Local 46 applied for certification of the employees of Elitrex Plumbing Ltd. Elitrex and Local 183 argued that a voluntary recognition agreement executed between them barred the application.

The Board found that Local 183 failed to establish it had majority support of the employees in the bargaining unit at the time the agreement was signed, as critical membership evidence was undated and unsupported by oral testimony.

Furthermore, the employer had interfered by expressing a preference for Local 183 to an employee.

The Board declared the voluntary recognition agreement invalid, terminating Local 183's bargaining rights and allowing Local 46's certification application to proceed.

The applicant trade union filed for certification under section 11 of the Labour Relations Act, 1995, alleging employer unfair labour practices prevented it from demonstrating the required membership support for a representation vote.

Following the application, the legislature passed Bill 31, which amended section 11 to require that a prior representation vote must have been held before the Board could order a second vote as a remedy.

The respondent employer moved to dismiss the certification application on the basis that the amended section 11 no longer permitted certification without a prior vote.

The Board agreed, finding that the explicit language of the amended section 11 restricted remedies to ordering a second vote, and dismissed the certification application.

However, the Board declined to impose a bar on future applications by the union.

The applicant union filed an application for certification.

The responding party failed to file a timely response under the Board's Rules of Procedure, delivering it late and without a list of employees.

The applicant brought a preliminary motion to preclude the responding party from challenging the status of the persons who voted in the representation vote, relying on previous Board jurisprudence.

The Board dismissed the preliminary motion, distinguishing the prior case law because the responding party asserted that the individuals listed by the applicant were not its employees at all.

The Board held that it would be inappropriate to allow strangers to determine a certification application, and directed that the status issues be litigated.

The employer and the intervenor union sought reconsideration of a Board decision that set the voter eligibility date for a representation vote as the date of the applicant union's certification application.

The employer argued that 27 employees hired after the application date should be permitted to vote, as they had been in a previous vote involving the intervenor.

The Board dismissed the reconsideration request, finding that the employer had been explicitly invited to make submissions on voter eligibility prior to the vote being ordered but had failed to do so.

The Board concluded there was no reason to depart from its normal practice of using the application date for voter eligibility, and ordered that the 27 segregated ballots not be counted.

A certificate was issued to the applicant union.

The applicant union applied for certification to represent administrative and support staff at the Kenora Board of Education.

A representation vote was held, with the vast majority of employees voting in favour of the applicant.

The employer did not oppose the application.

A rival union sought to intervene, arguing that the recent amalgamation of school boards affected the proceedings.

The Board held that the rival union had no status to intervene as it did not represent any of the affected employees.

The Board certified the applicant as the bargaining agent for the employees.

The applicant union referred a grievance to the Ontario Labour Relations Board under section 133 of the Labour Relations Act, 1995, arguing that work performed by the responding party on a blast furnace was construction work and should have been performed under the ICI provincial agreement.

The responding party and intervenors argued the work was maintenance and properly performed under the General President's Maintenance Agreement.

The Board reviewed the scope of work, which involved extensive replacements and redesigns to bring a decommissioned furnace back into service.

The Board concluded that the totality of the work constituted repair and alteration, making it construction work subject to the ICI agreement.

The matter of damages was remitted to the parties.

The applicant union brought an application under sections 69 and 1(4) of the Labour Relations Act, 1995, alleging that Westinghouse Canada Inc. was a successor or related employer to Westinghouse Electric Corporation.

The responding parties brought a preliminary motion to dismiss the application on the basis that the collective agreement relied upon by the union was limited to the United States and had no extraterritorial application in Ontario.

The Board found that the collective agreement was silent on geographic scope and contained provisions specific to American law.

As there was no evidence of intent or past practice applying the agreement outside the U.S., the Board held the agreement did not apply in Ontario.

The application was dismissed as there were no bargaining rights to preserve.

The applicant Carpenters' union filed a jurisdictional dispute concerning the assignment of the carpentry portion of concrete forming work on a water pollution control centre project.

The work had been assigned by the subcontractor to members of the Labourers' union.

The Carpenters argued this violated a prior 'Peace Treaty' and section 162 of the Labour Relations Act.

The Board found that the Labourers' Provincial ICI agreement validly covered construction labourers performing carpentry work, and that the employer's practice and collective agreement obligations strongly favoured the assignment to the Labourers.

The Board confirmed the employer's work assignment.

The union applied for a direction that a first collective agreement be settled by arbitration.

Subsequently, an employee filed a termination application.

The employer then accepted the union's proposed collective agreement, which was ratified by the employees.

The Board held that the first contract application was moot because a collective agreement had been reached.

The Board exercised its discretion to order a new representation vote on the termination application, as the employees had now experienced the collective agreement and could better gauge their wishes.

The parties requested the Ontario Labour Relations Board to arbitrate the settlement of their first collective agreement pursuant to section 43 of the Labour Relations Act, 1995.

The parties agreed on all issues except whether there should be a wage increase in the second year.

The applicant proposed a 2% increase, while the responding party proposed a 0% increase.

The Board reviewed base rates in similar road builders' collective agreements in Northern Ontario and concluded that a 2% increase was reasonable.

The Board awarded a 2% increase to the base rates effective January 1, 1998.

In an application for certification in the construction industry, the Board determined the voter eligibility of several individuals.

The Board declined to dismiss the application under section 11.2 of the Labour Relations Act, finding no prejudice to the responding parties from the delivery of the application.

The Board held that individuals working in a compulsory certified trade within the three-month grace period under section 9 of the Trades Qualification and Apprenticeship Act are lawfully employed and eligible to vote, even if they have not yet registered as apprentices.

However, one individual whose grace period had expired prior to the application date was found ineligible to vote.

The applicant sought reconsideration of an earlier Board decision that deferred his occupational health and safety complaint to the Ontario Human Rights Commission.

The applicant argued the Board made factual errors, improperly declined to hear evidence about the Commission's efficacy, erred in its deferral discretion, and violated the Charter and Human Rights Code by deferring a complaint involving race discrimination.

The Board dismissed the reconsideration request, finding the applicant did not meet the threshold test for reconsideration and that the earlier decision was neither clearly wrong in law nor contrary to Board policy.

The Board also held that deferring a complaint principally about race discrimination to the specialized human rights tribunal did not violate equality rights.