Robin B. Cumine, Q.C.

The complainant, a long-service employee with an alcohol problem, was discharged by Ontario Hydro after failing to comply with the conditions of a mandatory referral to the Employee Assistance Program.

The respondent union refused to file a grievance on his behalf, relying on a policy agreement with the employer not to grieve discipline arising from proper mandatory referrals under the Program.

The complainant alleged the union breached its duty of fair representation under section 68 of the Labour Relations Act.

The Ontario Labour Relations Board dismissed the complaint, finding that the union's policy was based on sound labour relations principles (supporting 'constructive coercion' in addiction treatment) and that its application to the complainant was not arbitrary, discriminatory, or in bad faith.

The applicant union applied for certification of construction labourers employed by the respondent in the residential sector.

The respondent argued that an existing working agreement with the Toronto Building and Construction Trades Council already covered these employees and sought to introduce extrinsic evidence of an oral understanding to that effect.

The Board refused to admit the extrinsic evidence, finding the written agreement unambiguously excluded residential construction.

The Board held that parties cannot contract out of the Labour Relations Act and that estoppel cannot prevent the operation of a public statute.

The Board found the proposed bargaining unit appropriate and authorized a Labour Relations Officer to inquire into its composition.

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding his authority to appoint a nominee to an arbitration board on behalf of the employer.

The employer objected to the appointment, arguing that the collective agreement only applied to the industrial, commercial and institutional (ICI) sector of the construction industry, whereas the grievances related to non-construction work.

The Board found that through its membership in the Ontario Painting Contractors Association, the employer had authorized the association to bargain on its behalf for both construction and non-construction work.

Consequently, the provincial agreement bound the employer for non-construction work as well.

The Board advised the Minister that he had the authority to appoint a nominee.

The applicant trade union applied for a declaration under section 1(4) of the Labour Relations Act that Trans-Nation Incorporated and Valentine Enterprises Contracting constituted one employer.

While the Board assumed the two entities were under common control or direction, it found they were not carrying on associated or related activities.

Trans-Nation was engaged in acquiring and refurbishing commercial buildings, whereas Valentine performed sewer and watermain work.

The Board concluded the businesses did not serve the same market or employ the same mode of production.

The application was dismissed, with one Board Member dissenting.

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.