Brian Shell

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding whether an employer can request a final offer vote under section 40 of the Labour Relations Act after first agreement arbitration has been initiated under section 41.

The union argued that because section 41(13) prohibits strikes or lock-outs once first agreement arbitration is initiated, the precondition for a final offer vote cannot be met.

The employer argued that the provisions could operate simultaneously.

The Board held that the opening words of section 40 establish a precondition that strike or lock-out activity must be available.

Since section 41(13) eliminates the possibility of a strike or lock-out, an employer cannot request a final offer vote after first agreement arbitration has been initiated.

The union applied for certification.

The employer alleged that the union's organizing campaign was tainted by the involvement of managerial employees and by material misrepresentations made by a union organizer regarding employees' ability to withdraw their membership.

The Board held that the managerial employees were acting contrary to the employer's interests, which did not trigger the statutory bar to certification or cast doubt on the voluntariness of the membership evidence.

The Board also found that the union organizer did not make the alleged misrepresentations.

The Board certified the union based on the documentary evidence of membership.

The applicant union applied for certification and submitted membership evidence, including ten cards received by mail.

The employer challenged the weight of the mailed cards because the union's Form A-4 declarant did not personally contact the employees to verify they had signed the cards, relying instead only on the fact that the cards were received in sealed business reply envelopes.

The Board held that without further verification or corroborating circumstances, it would not give full evidentiary weight to the mailed cards.

Consequently, the Board directed that a representation vote be taken.

The union applied for interim relief under section 92.1 of the Labour Relations Act, seeking to reinstate its chief inside organizer to her previous office duties pending the resolution of unfair labour practice complaints.

The employer had kept the organizer assigned to cashier duties following the conclusion of certification hearings, contrary to a prior Board order.

The Board found that the union established an arguable case of a breach of the Act and that the balance of harm favoured granting interim relief to preserve the status quo and ensure compliance with Board orders.

The Board ordered the organizer reinstated to her office duties with minor accommodations.

The applicant union sought an interim order under section 92.1 of the Labour Relations Act to reinstate an employee who was allegedly discharged for union organizing activities.

The employer argued the discharge was for reasons unrelated to the union campaign.

The Board applied the test for interim relief, balancing the potential harm to the union's organizing campaign against the potential disruption to the employer's workplace.

Finding that the harm of not granting the order outweighed the harm of granting it, the Board directed the interim reinstatement of the employee pending the final disposition of the unfair labour practice complaint.

The applicant union sought an interim order declaring it the successor union and exclusive bargaining agent for employees in over 200 pending successor rights applications.

The applications arose from a massive inter-union dispute following the purported merger of various Ontario locals of the RWDSU with the Steelworkers, which was contested by the RWDSU International and the UFCW.

The dispute caused widespread confusion and collective bargaining paralysis, prompting employers and the Minister of Labour to seek clarification on which union to deal with.

The Board granted the interim order, declaring the Steelworkers as the interim exclusive bargaining agent to preserve orderly labour relations and allow the collective bargaining process to function until the main applications are resolved.

The applicant union sought a declaration under section 63 of the Labour Relations Act that it was the successor to the bargaining rights of Local 414 with respect to a bargaining unit employed by the responding party.

The International union opposed the application, arguing that it held the bargaining rights, that the disaffiliation of Local 414 was flawed, and that the formation of the new national union and its merger with the USWA were invalid.

The Board found that Local 414 held the bargaining rights, that the disaffiliation and subsequent merger were completed in substantial compliance with the relevant constitutions, and that the new organization was a trade union.

The Board declined to order a representation vote and declared the applicant to be the successor.

The applicant union sought interim relief in a dispute over bargaining rights at A & P stores.

The Board had previously ordered the status quo maintained regarding local union representation.

The applicant alleged the employer breached this by cancelling leaves of absence for its supporters while maintaining them for the rival union's supporters, and by allowing the rival union to designate new representatives.

The Board granted interim relief, directing that customary union representatives continue to handle workplace issues and ordering the employer to reinstate the cancelled leaves of absence to ensure neutrality pending the final decision on bargaining rights.

The complainant alleged that the union breached its duty of fair representation under section 69 of the Labour Relations Act by failing to notify him of a meeting where his discharge grievance was dropped, and by failing to present medical evidence of his mental illness.

The union admitted the breach.

The Board ordered the grievance to proceed to arbitration.

The Board declined the complainant's request for sole carriage of the grievance, finding that the union's potential liability for damages did not warrant removing its normal role, but ordered that the complainant have a say in selecting the arbitrator and that joint counsel be retained.

The union applied under section 40a of the Labour Relations Act for a direction to settle a first collective agreement by arbitration.

The employer, bound by a pre-existing multi-party agreement providing employment guarantees for native workers, refused to negotiate terms for native employees that might conflict with that agreement.

The Board found that the employer's rigid adherence to the third-party agreement and refusal to recognize the union's comprehensive bargaining authority over all employees in the unit constituted a refusal to recognize the union.

Given the complex third-party interests impeding bilateral negotiations, the Board directed the settlement of the first collective agreement by arbitration.

The applicant union sought certification and filed photocopied membership evidence after the original cards were lost in the mail.

A group of objecting employees filed statements of desire but failed to attend the scheduled hearing, having mistakenly assumed their written request for a venue change would automatically adjourn the matter.

The Board declined to consider the objectors' statements due to their failure to attend despite clear notice.

The Board also accepted the photocopied membership evidence, finding that the union had made a diligent search for the lost originals and fully disclosed the circumstances.

An interim certificate was issued to the union.

During a hearing on a Charter challenge to section 12 of the Labour Relations Act, the respondents objected to a Board Member sitting on the panel due to comments he made in the Ontario Legislature 20 years prior.

The Board dismissed the bias objection, finding the comments did not create a reasonable apprehension of bias.

The Board also ruled that expert evidence concerning the scope of freedom of association in other countries was inadmissible during the section 2(d) phase of the hearing, though the proposed expert was found qualified to testify on comparative European labour law in the section 1 phase.

During a hearing for a reconsideration of a Board decision granting early termination of a collective agreement, the respondent company brought a motion to dismiss the interveners' application after the interveners concluded their evidence.

The company argued it should not have to elect whether to call evidence.

The Board characterized the motion as analogous to a non-suit motion in civil proceedings and directed that the company and the applicant union (who supported the motion) be put to their election as to whether they intend to call evidence before ruling on the motion.

The complainant, a discharged employee and health and safety representative, filed complaints against his former employer under the Occupational Health and Safety Act (OHSA) and against his union under section 68 of the Labour Relations Act.

The employer raised preliminary objections that the OHSA complaint was barred by the doctrine of election, as the complainant's discharge had already been upheld at arbitration.

The Board agreed, finding the complainant had elected the arbitral route under section 24(2) of the OHSA, and dismissed the OHSA complaint.

Regarding the section 68 complaints, the union argued they lacked particulars and failed to disclose a prima facie case.

The Board found a prima facie case regarding the union's decision not to seek judicial review of the arbitration award, but restricted the evidence the complainant could adduce on other allegations due to a failure to provide requested particulars.

During a hearing for a request to reconsider a decision consenting to the early termination of a collective agreement, the intervening union (USWA) sought to introduce union membership cards to corroborate evidence of an organizing campaign.

The incumbent union and the employer objected, arguing that if the cards were admitted, they should be entitled to examine them, including the identities of the signatories.

The Board held that section 111(1) of the Labour Relations Act protected the confidentiality of the cards even outside a certification application.

Balancing the limited probative value of the cards as hearsay evidence against the potential prejudice to the other parties and the legislative intent to protect union membership confidentiality, the Board exercised its discretion to refuse to admit the membership cards into evidence.

The respondent employer brought a motion for reconsideration of a portion of the Board's remedial order that directed compensation for striking employees.

The employer argued that the Board's original decision changed the law regarding the rights of employers and striking employees, and relied on comments made by the Divisional Court during a judicial review application.

The majority of the Board dismissed the motion, finding that the original decision did not change the law but applied existing principles regarding employer motivation and discrimination.

The Board also declined to treat the Divisional Court's obiter comments as judicial directions, affirming its exclusive jurisdiction and the finality of its decisions under the Labour Relations Act.

One Board member dissented.

The appellant was laid off due to a strike by another local of his union at his place of employment.

He applied for unemployment insurance benefits but was denied on the basis that he was 'financing' the strike under s. 44(2)(a) of the Unemployment Insurance Act, 1971, because a portion of his mandatory union dues was diverted to the International Union's strike fund.

The Supreme Court of Canada allowed the appeal, holding that 'financing' requires active and voluntary involvement by the claimant.

The mandatory payment of union dues did not constitute financing the labour dispute, and the appellant was therefore entitled to benefits.

During a five-year strike, the complainant union requested an interim order directing the respondent employer to return striking employees to work pending the final disposition of the matter.

The Board treated the request as a motion for reconsideration of an earlier order.

To facilitate a gradual return to work without prejudicing the ongoing litigation regarding whether the employer's return-to-work protocol was discriminatory, the Board directed the respondent to implement its outstanding January 9, 1987 proposal for a complete collective agreement as an interim measure.

The United Steelworkers of America applied for certification to represent outside employees of the Township of Michipicoten.

The employer argued the application was barred by an existing agreement with the permanent employees of the public works department.

The Board found the existing agreement was not a collective agreement because the employee group lacked a constitution and formal structure, and therefore was not a trade union.

The Board also determined that an objecting employee classified as a mechanic leader did not exercise managerial functions.

A certificate was issued to the applicant.

The applicant union sought reconsideration of an oral ruling by the Ontario Labour Relations Board that declined to consolidate an application for certification with three related unfair labour practice complaints.

The union argued that the proceedings involved overlapping evidence regarding the employer's relocation of its production facilities.

Upon reconsideration, the Board agreed that while formal consolidation was inappropriate due to differing parties and legal interests, the substantial overlap in evidence made it preferable for all four matters to be heard together.

The Board varied its previous ruling and directed the Registrar to schedule the proceedings to be heard together.