Jim Fougere

The applicant filed a complaint alleging that the union violated section 74(4) of the Labour Relations Act by failing to conduct a strike vote by secret ballot.

The union raised a preliminary motion to dismiss the complaint due to undue delay.

The Board found that the applicant was aware of the alleged irregularities at the time of the vote but delayed filing the complaint for nearly two months, during which time the union and employer relied on the strike mandate and commenced a strike.

The Board concluded that the delay was significant and unexplained, and exercised its discretion to dismiss the application without inquiring into the merits.

The applicant union filed an unfair labour practice complaint alleging the employer contravened section 73.1 of the Labour Relations Act by using six individuals to perform bargaining unit work during a lawful strike.

The individuals had been hired or transferred into pre-existing managerial positions after notice to bargain was given, without increasing the overall managerial complement.

The majority of the Board held that the plain language and purposive interpretation of section 73.1 prohibited the employer from using these individuals to perform the work of striking employees, regardless of whether the overall number of managers increased.

The employer was ordered to cease and desist from using the individuals for bargaining unit work.

A dissenting opinion argued this interpretation created an inequity not intended by the Legislature.