James B. Noonan

The Ontario Labour Relations Board determined a jurisdictional dispute and a ministerial reference regarding Enwave District Energy Limited.

The employer sought a determination of whether the Canadian Union of Operating Engineers and General Workers (CUOE) or the Canadian Union of Public Employees, Local 416 (CUPE) had jurisdiction over work at its Chilled Water Plant.

The Board found that CUOE had jurisdiction, noting that CUOE had bargained the inclusion of the plant in its recognition clause and that CUPE's predecessor had previously declined the work.

On the ministerial reference, the Board advised that the Hospital Labour Disputes Arbitration Act governs the relationship between Enwave and CUOE at the Walton Street plant, as the plant is deemed a hospital under the Toronto District Heating Corporation Act and the Hospital Labour Disputes Arbitration Act.

The applicant filed a duty of fair representation complaint against the union, alleging it failed to diligently pursue his discharge arbitration and failed to respond to his agent's request to raise an Occupational Health and Safety Act argument.

The Board dismissed the delay allegation, finding no evidence the union caused the arbitration delays.

However, the Board found the union's failure to communicate its decision not to pursue the OHSA argument constituted arbitrary conduct in violation of section 74 of the Labour Relations Act.

The Board allowed the complaint in part but declined to order a remedy, as the applicant had since received an answer and the breach was not egregious.

The applicant union sought certification for employees working at Esso.

The employees were supplied by Best Personnel Services, a temporary personnel agency.

The core issue was whether Esso or Best was the true employer.

Applying the York Condominium factors, the Board found that Esso exercised fundamental control over the employment relationship, including direction, supervision, discipline, and determining when the employment relationship began and ended.

Consequently, the Board determined that Esso was the true employer for the purposes of the certification application.

The union applied for certification of a bargaining unit consisting of drivers and driver helpers at the employer's Mississauga warehouse.

The employer argued that its operations fell under federal jurisdiction due to inter-provincial transportation and that the proposed unit was inappropriate because it excluded warehouse personnel.

The Board held that the employer's operations fell within provincial jurisdiction, as its trucking activities were integral to its provincial distribution business and it did not operate as a common carrier.

However, the Board found the proposed bargaining unit inappropriate due to concerns about fragmentation and the shared community of interest between drivers and warehouse employees.

The Board indicated it would order a representation vote in the broader unit if requested by the union.

The union applied for certification and filed an unfair labour practice complaint alleging the employer discharged a key union organizer and supported an anti-union employee committee.

The Board found the employer violated the Labour Relations Act by involuntarily removing the organizer from the workplace and by materially assisting the anti-union group, including facilitating their communications and meeting with their delegation.

Concluding that the employer's illegal conduct made it unlikely that the true wishes of the employees could be ascertained, the Board certified the union pursuant to section 9.2 of the Act.

In a preliminary ruling to determine the identity of the employer for the purposes of the Pay Equity Act, the Tribunal held that the relevant point in time for the inquiry is the effective date of the Act (January 1, 1988).

However, the Tribunal noted it would also hear evidence regarding any changes in the organization up to the mandatory posting date to fashion practical remedies.

The Tribunal declined to hear evidence regarding the identity of the employer at the present time, as that was a separate question.

The parties requested an order from the Tribunal incorporating their agreement with respect to the production and use of sensitive business documents.

The Tribunal declined to order the agreement in its entirety, noting that it could not guarantee absolute confidentiality in light of potential freedom of information requests and its obligation to compile a public record for judicial review.

The Tribunal issued a modified protective order that balanced the parties' desire for confidentiality with the Tribunal's obligation to provide a fair and public hearing.

The complainant alleged discrimination in employment on the basis of handicap after he was terminated for falsifying a pre-employment medical questionnaire.

He had failed to disclose his asthma and allergies when hired.

When he later requested accommodation to avoid a polluted work area, the employer discovered the falsification and terminated him pursuant to its policy.

The Board of Inquiry found that the termination was based solely on the falsification of the medical form, not on the complainant's disability, and dismissed the complaint.

The applicant union sought certification for a bargaining unit of the respondent's drivers in the Sudbury, Sturgeon Falls, and Espanola districts.

The respondent employer argued that the only appropriate unit would encompass all its drivers in the entire Northern Ontario region.

The Board found that the applicant's proposed unit was appropriate for collective bargaining, noting that it did not present serious labour relations problems and that the distances in Northern Ontario provided disincentives to a region-wide unit.

A certificate was issued for the applicant's proposed unit, with one Board Member dissenting.

The union filed a complaint alleging the employer bargained in bad faith contrary to section 15 of the Labour Relations Act by failing to table a monetary offer and by insisting to impasse on a clause allowing discharge without just cause upon payment of severance.

The Board dismissed the complaint, finding that the union had never requested a monetary offer.

Regarding the discharge clause, the Board held that it does not monitor the content of bargaining proposals unless they are illegal or indicate surface bargaining.

Since a clause permitting discharge without cause is not per se illegal, the employer's insistence on it did not violate the duty to bargain in good faith.

The applicant employer sought relief under section 92 of the Labour Relations Act, alleging that the respondent union and its officials called or encouraged an unlawful strike.

The dispute arose after the employer unilaterally introduced a new 'super-classification' that had been rejected during collective bargaining.

In protest, the union organized five-minute work stoppages.

The Board found that the work stoppages constituted an unlawful strike and that the union officials had encouraged them.

The Board rejected the union's argument that the employer's conduct justified withholding relief, noting that the parties had access to grievance and arbitration procedures.

The Board issued declarations and cease and desist directions against the union and its officials.

The Board was asked to determine whether the construction of the Baker Centre, a non-profit combined nursing home, retirement home, and day-care facility, fell within the industrial, commercial and institutional (ICI) sector or the residential sector of the construction industry.

After hearing extensive evidence on industry practice and the nature of the facility, the Board concluded that the project fell within the ICI sector.

The Board reasoned that the facility is an institution providing a socially beneficial service, with residents conducting daily activities in shared areas under the direction of a management firm, distinguishing it from typical residential construction.

The applicant union sought to add parent corporations and individual shareholders as respondents to ongoing section 1(4) and 89 proceedings against the employer.

The union alleged that these entities and individuals controlled the employer and sought to add them to ensure recovery of any claims.

The Ontario Labour Relations Board denied the request, holding that section 1(4) is intended to preserve bargaining rights, not to provide a 'deep pocket' for recovery where there has been no transfer of work or erosion of bargaining rights.

The Board also found no exceptional circumstances to affix personal liability under section 89.

The complainants alleged that the respondent terminated Margaret O'Connor's employment because she testified at an arbitration hearing, contrary to section 80 of the Labour Relations Act.

The respondent argued that an arbitration hearing is not a 'proceeding under this Act' and therefore section 80 did not apply.

The Ontario Labour Relations Board held that a board of arbitration or sole arbitrator is a statutory tribunal constituted under the Act, and thus a hearing before such a tribunal is a 'proceeding under this Act'.

Consequently, witnesses at arbitration hearings are protected against reprisals.

The complaint was adjourned sine die at the request of the parties.

The applicant union referred a grievance to the Board alleging the respondent employer violated the subcontracting provision of their provincial collective agreement by subcontracting landscaping work to a non-union employer.

The parties submitted an agreed statement of facts to determine whether horticulture work was a lawful subject for bargaining and whether its subcontracting could be regulated by the agreement.

The Board found that the landscaping work fell within the definition of the construction industry and that the horticulture exception in the Act did not exclude such work per se.

The Board concluded that horticulture work is a lawful subject for bargaining and its subcontracting may be lawfully regulated by the collective agreement.

The applicant trade union applied for certification.

The union filed documentary evidence of membership for more than fifty-five percent of the employees in the bargaining unit.

A group of employees filed statements of desire in opposition to the application.

The Board found that the voluntariness of the signatures of three union members who signed the statements of desire was not proven, as the person who witnessed most signatures did not witness theirs, and there was no evidence regarding the circumstances of their signing.

Consequently, the Board declined to exercise its discretion to direct a representation vote and granted the certification.

One Board member dissented, arguing a representation vote should have been held.

The complainant employer bargaining agency alleged that the respondent union violated section 134a(1) of the Labour Relations Act by failing to authorize a strike for all employees in the industrial, commercial, and institutional (ICI) sector of the construction industry, specifically by continuing to supply workers for maintenance work.

The Board examined whether the work performed under various maintenance agreements constituted construction work or maintenance work.

The Board found that while most of the work was maintenance and thus outside the ICI sector, some minor new construction work was performed in violation of the Act.

However, given the union's reasonable efforts to comply and the complainant's members' inconsistent conduct, the Board declined to issue a cease and desist order and dismissed the complaint.