James K. A. Hayes

The applicant sought judicial review of a decision by the Ontario Labour Relations Board dismissing his complaint that his union breached its duty of fair representation under s. 74 of the Labour Relations Act by failing to refer his grievance to binding arbitration.

The Divisional Court applied the patent unreasonableness standard of review, noting the Board's specialized expertise and the strong privative clauses in the Act.

The Court found the Board's decision was reasonable, thoughtful, and supported by the record, concluding the union acted reasonably and not in bad faith.

The application for judicial review was dismissed.

The applicants, former employees of a Loeb grocery store, alleged that their union breached its duty of fair representation under section 74 of the Labour Relations Act.

Following the acquisition of the store by A&P, the union consented to the store reopening as a Food Basics outlet under an existing collective agreement with inferior wages and no transfer of seniority.

The Board dismissed the application at the consultation stage, finding that the union's decision was reasonable given that the alternative was the permanent closure of the store and the loss of all employment opportunities for the bargaining unit members.

The parties agreed to adjourn the applications sine die for a period not exceeding one year.

The Ontario Labour Relations Board consented to the adjournment, noting that the matters would be deemed terminated without further notice if no party requested to proceed within that time.

The union, the employer, and various individual employees reached a global settlement to resolve numerous outstanding proceedings before the Ontario Labour Relations Board, including unfair labour practice complaints, grievances, and applications to terminate bargaining rights.

The dispute arose following the union's certification at a Windsor Wal-Mart store and a subsequent contested ratification vote for a first collective agreement.

Under the settlement, the union abandoned its bargaining rights, all parties withdrew their respective applications and complaints with prejudice, and mutual releases were executed.

The Board issued declarations confirming the successor union status, the abandonment of bargaining rights, and the withdrawal of all matters.

The Labourers union and several individual employees challenged the validity of collective agreements entered into between the Carpenters union and five trim carpentry companies based on voluntary recognition.

The challenges were brought under section 66 of the Labour Relations Act, which requires the incumbent union to prove it was entitled to represent the employees at the time the agreements were signed.

The Board found that the Carpenters union's evidence of employee support, consisting of stale membership cards and a poorly attended ratification vote held six months prior to the agreements, was insufficient to meet the statutory onus.

The Board declined to exercise its discretion to dismiss the applications or order a representation vote, and rejected arguments that individual employees were denied natural justice.

The individual employees filed an application alleging that the union announced false results for a ratification vote, claiming that 79 employees swore affidavits stating they voted against ratification, despite the union reporting only 39 votes against.

The union brought a motion to dismiss the application without hearing evidence, arguing that allowing post-vote evidence would undermine the secret ballot process mandated by the Labour Relations Act.

The Ontario Labour Relations Board dismissed the union's motion, deciding that given the unprecedented nature and seriousness of the fraud allegations, it would hear the employees' evidence before determining the legal and policy implications.

The Ontario Labour Relations Board held a consultation regarding a jurisdictional dispute over a work assignment between the Bricklayers and the Operative Plasterers.

The employer had a pre-existing collective agreement with the Bricklayers but voluntarily recognized the Operative Plasterers for the project in question.

The Board determined that the work ought to have been assigned to the Bricklayers, given their pre-existing bargaining rights covering the work, compared to the recently recognized Operative Plasterers.

The related unfair labour practice and construction industry grievance applications were adjourned sine die.

In the context of union certification applications, the intervenor and responding party sought to restrict the disclosure and use of a document they claimed was a voluntary recognition agreement.

The document had been produced to the applicant subject to a strict confidentiality undertaking.

The Board held that while an implied undertaking restricts the use of documents produced during litigation, this restriction ceases to apply once a document is admitted into evidence at a public hearing.

The Board found no compelling reason under the Statutory Powers Procedure Act or the Labour Relations Act to order the hearing closed or to restrict the use of the document outside the proceedings, emphasizing the importance of transparent decision-making.

The Board heard a preliminary issue regarding the order of proceedings for two competing applications: a first contract application filed by the union and a termination application filed by the employees.

The employer and the employees argued that the termination application should be heard first, citing new employee rights under Bill 7 and the fundamental nature of representational rights.

The union argued that the first contract application, which was filed first, should proceed first in accordance with the Board's normal practice.

The Board exercised its discretion under section 43(23) of the Labour Relations Act to hear the first contract application first, noting that if successful, it would suggest employer conduct may have influenced the employees' desire to decertify.

One Board member dissented, arguing the termination application should be heard first to respect employee wishes.

The union applied for interim relief under section 98 of the Labour Relations Act, 1995, seeking an order that the responding parties produce financial and lease information necessary for collective bargaining.

The responding parties objected to producing lease agreements, citing confidentiality and competitive sensitivity.

The Board found an arguable case on the merits and that the balance of harm favoured granting the order.

The Board directed the responding parties to produce the requested information, subject to confidentiality restrictions, to facilitate bargaining for a second collective agreement.

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 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 applicants sought interim orders staying the implementation of a Memorandum of Settlement respecting Generation Projects, alleging that the International Brotherhood of Electrical Workers had improperly negotiated the agreement to the detriment of Local 1788 members.

The Board first determined that while it lacked jurisdiction to grant substantive interim relief under section 98 of the Labour Relations Act, 1995, it possessed such jurisdiction under section 16.1 of the Statutory Powers Procedure Act.

However, the Board dismissed the application on its merits, finding that the alleged harm was speculative and personal, and that the applicants had engaged in undue delay in seeking relief.

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 union applied under section 1(4) of the Labour Relations Act for declarations that three taxi brokers and their respective associates should be treated as one employer for collective bargaining purposes.

The Board found that the brokers and associates carried on associated or related activities under common control or direction, given their functional integration and mutual economic dependence.

The Board exercised its discretion to issue the declarations and ordered a specific bargaining structure, as agreed upon by most parties, to ensure associates have a formal role in negotiations.

Following a Board decision combining two bargaining units, the parties were unable to agree on the wage rates for three service technicians located in northern Ontario.

The union argued that the existing collective agreement's wage rates should automatically apply, while the employer proposed lower regional rates due to market conditions and higher operating costs in the north.

The Board declined to automatically extend the existing collective agreement, emphasizing the importance of collective bargaining.

Acting to complete the negotiation process, the Board directed a 4% wage increase for 1993 and an additional 4% for 1994, finding a middle ground between the parties' positions.

The applicant trade union applied for certification.

A group of objecting employees requested a representation vote, alleging undue pressure and misrepresentation during the organizing drive, including claims that employees were told they could have their signed cards returned.

The union brought a motion requesting the Board not inquire further into the allegations.

The majority of the Board granted the union's motion, finding that the alleged pressure amounted to persistence and salesmanship rather than intimidation or coercion.

The majority also held that even if two cards were discounted due to alleged misrepresentations about returning them, the union still had sufficient support for automatic certification.

A certificate was issued to the union.

One Board member dissented in part, stating they would have inquired further into the misrepresentation allegations and ordered a secret ballot vote.

The complainant, a senior operator in a safety-sensitive position, alleged discrimination based on handicap under the respondent's Alcohol and Drug Policy after disclosing a past alcohol problem.

The respondent sought a preliminary ruling to limit the Board of Inquiry's jurisdiction to the policy's specific effects on the complainant, rather than the policy as a whole.

The Board declined to make a definitive ruling on the scope of the proceeding at the outset, finding it premature and stating that the relevance of evidence regarding the broader policy would be determined as the hearing unfolded.

The applicant trade union applied for certification to displace the incumbent union.

The incumbent union had previously given notice to extend the collective agreement under section 35 of the Social Contract Act, 1993.

The Board found that the notice to extend was valid and extended the collective agreement to March 31, 1996.

As a result, the application for certification was untimely because it was filed when no open period was present for the extended collective agreement.

The application was dismissed.

The applicant union sought a single employer declaration under section 1(4) of the Labour Relations Act following the closure of a unionized warehouse and the transfer of its work to a newly consolidated, non-unionized warehouse operated by a related corporate entity.

The responding parties conceded they carried on related activities under common control but argued against the declaration on the basis of employee wishes and corporate reorganization.

The Board granted the declaration, finding that the corporate reorganization incidentally undermined established bargaining rights and that the employer could not rely on the situation it created to deny the declaration.