David A. McKee

The parent international union imposed a trusteeship on Local 1072, a 'shop local' representing manufacturing employees.

The applicants challenged the trusteeship under section 149 of the Labour Relations Act, 1995 (Bill 80), which requires just cause for such actions.

The parent union argued that section 149 only applies to 'construction trade unions' as defined in section 126, and that Local 1072 did not meet this definition.

The Board agreed, finding that Local 1072's practices and collective agreements resembled those of an industrial union rather than a construction union.

Consequently, Local 1072 was not a construction union, and the Bill 80 protections did not apply.

The Ontario Labour Relations Board conducted a sector determination to decide whether the construction of a stand-alone raw sewage pumping station fell within the industrial, commercial and institutional (ICI) sector or the sewer and watermain sector.

Applying an end-use analysis, the Board found that the pumping station did not process or treat sewage, but merely moved it along the sewage lines to a treatment facility.

Consequently, the Board concluded that the end use of the pumping station placed it within the sewer and watermain sector.

The applicant local union alleged that its parent international union violated section 147 of the Labour Relations Act by altering its jurisdiction without just cause.

The parent union had restricted the local union's jurisdiction to direct employees of the employer, removing its jurisdiction over work performed by contractors, and redistributing that work to other local unions.

The Board held that the parent union had just cause to alter the jurisdiction.

The Board found that the parent union's decision was a fair and reasonable resolution to an ongoing internal jurisdictional dispute, and that returning the local unions to their intended jurisdictional positions would facilitate viable and stable collective bargaining without causing serious labour relations problems.

The application was dismissed.

The applicant union alleged that the responding employers violated section 73.1 of the Labour Relations Act by using replacement workers during a lawful strike.

The employers brought a preliminary motion to dismiss the application, arguing that section 73.1, which came into force on January 1, 1993, did not apply because the strike and the hiring of replacement workers occurred prior to its enactment.

The majority of the Board dismissed the motion, finding that section 73.1 is not retroactive but applies prospectively to the ongoing status of a strike, prohibiting the continued use of replacement workers after the statutory preconditions are met.

The presumption against retrospectivity did not apply.

The applicant union sought certification for a bargaining unit of carpenters employed by the respondent.

The respondent argued it had no employees in the unit, asserting the individuals were independent contractors or dependent contractors who employed helpers, thereby making them independent contractors.

The Board examined the relationship between the respondent and various piecework crews.

It found that some crews were independent contractors, while others were dependent contractors.

The Board held that the use of a helper by a pieceworker to meet the respondent's deadlines, rather than for entrepreneurial profit, did not preclude a finding of dependent contractor status.

The Board directed the issuance of certificates to the applicant.

The complainant Carpenters union filed a jurisdictional dispute under section 91 of the Labour Relations Act regarding the assignment of sheet metal siding installation at the Bruce Nuclear Power Development.

Ontario Hydro had assigned the work to the Sheet Metal Workers.

The Board considered criteria including area practice and employer past practice, noting that 99.9% of sheet metal siding in the area was installed by sheet metal workers.

The Board upheld Ontario Hydro's assignment to the Sheet Metal Workers and declined to make the direction provincial in scope.

The applicant union filed a construction industry grievance alleging the respondents failed to hold a mark-up meeting regarding scaffolding erection for elevator construction.

An intervening union requested the Board defer the grievance, arguing it was essentially a jurisdictional dispute over work assignment.

The Board dismissed the request to defer, directing that the grievance proceed to a hearing on whether the collective agreement was breached.

The Board held that while a jurisdictional dispute was at the root of the damages claim, it would be premature to embark on a jurisdictional dispute proceeding before a breach of the collective agreement was established.

The Board considered consolidated applications regarding representation rights for carpenters employed by a framing subcontractor.

Local 183 sought a single employer declaration and to revoke Local 27's certification, arguing it had a pre-existing collective agreement.

Local 27 argued Local 183's agreement was void for employer support and because it was signed when the employer had only one employee.

The Board held that a voluntary recognition agreement can be valid with a single employee.

It also found no employer support, as the employer signed the agreement to comply with a valid subcontracting clause of the general contractor.

The Board granted the single employer declaration, found Local 183's agreement valid, and revoked Local 27's certification.

The applicants applied for certification regarding employees of the respondent working on the rehabilitation of the Welland Canal.

The respondent argued that the work was an integral part of a federal undertaking, placing labour relations under federal jurisdiction.

The Ontario Labour Relations Board applied the Supreme Court of Canada's decision in Construction Montcalm Inc., holding that construction work, even on a federal undertaking, falls within provincial jurisdiction over labour relations.

The Board concluded it had jurisdiction to entertain the applications.

The applicant union, Local 27, sought certification for carpenters employed by F.T. Construction Inc. and filed an unfair labour practice complaint against the employer and Local 183.

Local 183 requested reconsideration of Local 27's certification, arguing it held a pre-existing collective agreement with the employer.

The Board found that the collective agreement between Local 183 and the employer's predecessor, Minho Carpentry, was the result of employer coercion and improper support, as employees were forced to join Local 183 to keep their jobs.

Consequently, the Board declared the agreement void under section 48(a) of the Labour Relations Act, held that Local 183 had no bargaining rights, and affirmed Local 27's certification.

The complainant union filed an unfair labour practice complaint under section 89 of the Labour Relations Act, challenging the validity of subcontracting clauses in the respondent union's collective agreements.

The respondent and interveners brought a preliminary motion to dismiss the complaint without a hearing.

The Board found that the complainant had previously filed an identical complaint years earlier, which had been adjourned sine die.

The Board held that the excessive delay in prosecuting the matter and the attempt to litigate the same issues in a new complaint constituted an abuse of process.

The Board exercised its discretion under section 89(4) to refuse to entertain the complaint and dismissed it, while directing the Registrar to relist the original adjourned complaint to determine its status.

The complainant Carpenters union filed a jurisdictional dispute complaint under section 91 of the Labour Relations Act regarding house framing work assigned to a subcontractor.

The respondent Labourers union and the intervener argued the Board should refuse to entertain the complaint, asserting it was an abuse of process and essentially a representational dispute over bargaining rights rather than a true work assignment dispute.

The Board declined to exercise its discretion to refuse the complaint, finding that the representational aspects of the dispute and the abuse of process allegations were matters better addressed when hearing the merits of the complaint.

The applicant union referred a construction industry grievance to arbitration, alleging the respondent breached the provincial collective agreement by performing drywall and acoustic work in the ICI sector without obtaining workers from the union's hiring hall.

The respondent, who was previously declared a single employer bound by the agreement, sought an adjournment which the Board denied.

The Board found the respondent breached the agreement and, relying on the union's uncontradicted evidence estimating labour costs at one-half of the contract price, awarded $45,410.00 in damages for lost earnings to unemployed union members.

The complainant alleged that her union breached its duty of fair representation under section 68 of the Labour Relations Act by arbitrarily deciding not to refer her termination grievance to arbitration.

The union committee had concluded that the grievance lacked merit because the complainant failed to provide adequate medical documentation in a timely manner, and her explanations were inconsistent.

The Board found that the union officials directed their minds to the grievance, considered the collective agreement, and made a decision based on their experience.

The Board held that the union's conduct was not arbitrary, reckless, or grossly negligent, and dismissed the complaint.

Several employees applied to terminate the bargaining rights of Locals 175 and 633 of the United Food & Commercial Workers International Union following the sale of two grocery stores by Gordons Markets to new independent owners.

The union argued the termination applications were untimely because it had given notice to bargain to the successor employers under section 63(3) of the Labour Relations Act.

The Board found that the union's letters to the new owners merely informed them of the union's successor rights and requested a meeting to discuss the application of the existing collective agreements, but did not constitute clear and unequivocal notice of a desire to bargain a new or modified collective agreement.

Consequently, the letters did not trigger the statutory bar to termination applications.

During a hearing, the applicant sought to prove documents produced under a subpoena duces tecum without calling the person who produced them as a witness, thereby avoiding cross-examination.

The Board initially ruled the documents must be proved by calling the person as a witness.

Upon reconsideration, the Board reviewed the historical and legal distinction between the ad testificandum and duces tecum aspects of a subpoena.

The Board revoked its previous ruling, holding that a person producing documents pursuant to a subpoena duces tecum does not need to be sworn as a witness and is not subject to cross-examination.