OLRB 1990

The complainant, a dismissed university professor, alleged that his union breached its duty of fair representation under section 68 of the Labour Relations Act by refusing to seek judicial review of an arbitration award that upheld his discharge.

The union had consulted with legal counsel and concluded there were no legal grounds for judicial review.

The Ontario Labour Relations Board dismissed the complaint, finding that the union's decision was reasonable, not arbitrary, discriminatory, or in bad faith, and that a union is not obligated to pursue judicial review of an arbitration award when it reasonably believes the application would fail.

The Labourers' International Union of North America, Local 183 and the International Union of Operating Engineers, Local 793 filed cross-complaints alleging violations of sections 67 and 70 of the Labour Relations Act.

The complaints arose from a dispute over the inclusion of certain equipment operator classifications in the respective unions' wage schedules during the negotiation of a landscaping collective agreement.

Both unions brought preliminary motions to dismiss the other's complaint.

The Ontario Labour Relations Board dismissed both complaints, finding that neither union had established a violation of section 70, and that the allegations under section 67 were essentially a jurisdictional dispute over work assignments disguised as an unfair labour practice complaint.

The Board held that such disputes should be resolved through the jurisdictional dispute procedures under the Act.

The applicant union applied for a direction to settle a first collective agreement by arbitration under section 40a of the Labour Relations Act.

The union alleged that the employer failed to make reasonable and expeditious efforts to conclude a collective agreement and maintained uncompromising positions without reasonable justification.

The Board found that the employer's insistence on including anti-union philosophy language from its personnel manual and an overly broad job security clause restricting the union's ability to bargain regarding outsourcing with other employers constituted uncompromising positions without reasonable justification.

The Board concluded that the collective bargaining process had been unsuccessful due to these positions and directed the settlement of a first collective agreement by arbitration.

The union applied for certification and filed an unfair labour practice complaint after the employer laid off 21 employees immediately upon learning of the union's organizing campaign.

The employer conceded that the layoff violated the Labour Relations Act but argued it had been planned for two days later due to financial difficulties.

The Board found that the sudden layoff of 25% of the proposed bargaining unit, without notice and just before a union meeting, would prevent the true wishes of the employees from being ascertained in a vote.

Finding that the union had adequate membership support for collective bargaining, the Board granted certification under section 8 of the Act and ordered compensation for the laid-off employees.

The applicant union applied for certification and filed an unfair labour practice complaint against the respondent employer.

The employer alleged that the union's membership evidence was unreliable because an employee had threatened another employee with job loss and higher initiation fees if he did not join the union.

The Board found that the employee who made the statements was not acting as a collector or agent for the union, but was merely a rank-and-file employee trying to influence a friend.

As peer pressure does not invalidate membership evidence, the Board found the evidence reliable and granted the certificate.

The union subsequently withdrew its unfair labour practice complaint.

The applicant employer applied under section 106(2) of the Labour Relations Act for a determination of whether a Network/Communications Co-ordinator is an 'employee' for the purposes of the Act, arguing the position involves access to confidential labour relations files.

The respondent union opposed the exclusion.

The Board authorized a Labour Relations Officer to inquire into and report on the duties and responsibilities of the position.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that Kent Acoustics Limited and J.L. Acoustics Ltd. constituted a single employer.

The principal of Kent had closed the business in 1981 and later purchased a share in J.L. in 1987, eventually becoming its sole owner.

The Board found that the two companies were engaged in related activities under the common control and direction of the same principal.

Despite the gap in time between the operations, the Board exercised its discretion to grant the declaration to preserve the union's bargaining rights, binding J.L. to the applicable collective agreements.

The applicant union referred a grievance alleging non-compliance with the collective agreement and requested a determination under section 150 of the Labour Relations Act as to whether the construction of a retirement home fell within the industrial, commercial and institutional (ICI) sector or the residential sector.

The Board examined the end use and work characteristics of the facility, noting the degree of control exercised by the administrator over the residents and the provision of services akin to an institution rather than a traditional residence.

The Board concluded that the construction of the retirement home fell within the ICI sector.

The applicant employee sought to terminate the respondent union's bargaining rights under sections 57 and 60 of the Labour Relations Act.

The bargaining rights derived from a voluntary recognition agreement, and no collective agreement had been signed.

The Board dismissed the section 57 application, ruling that certification is a pre-condition to such an application.

Regarding the section 60 application, the Board found that the union was entitled to represent the employees at the time the voluntary recognition agreement was entered into, as the membership cards submitted were sufficient evidence of majority support.

The application was dismissed.

The union applied for a direction that a first collective agreement be settled by arbitration under section 40a of the Labour Relations Act.

The employer raised a preliminary objection that section 40a was unavailable because it had previously been party to a collective agreement with a displaced union.

The Board dismissed the preliminary objection, finding that section 40a applies where the specific parties have been unable to effect their first collective agreement.

On the merits, the Board found that the collective bargaining process was unsuccessful due to the employer's failure to make reasonable or expeditious efforts to conclude an agreement, particularly its refusal to negotiate following union concessions, and its uncompromising bargaining position without reasonable justification.

The Board directed the settlement of the first collective agreement by arbitration.

One Board member dissented.

The complainant alleged he was discharged contrary to section 24 of the Occupational Health and Safety Act after raising safety concerns and speaking with a Ministry of Labour inspector.

The respondent claimed the discharge was solely due to the complainant's poor timekeeping.

The Board denied the respondent's request for an adjournment.

On the merits, the Board found the respondent failed to prove the discharge was untainted by anti-safety animus, noting the timing of the termination immediately following the inspector's visit and the lack of prior discipline for tardiness.

The Board awarded the complainant $4,500 in damages.

The applicant, an employee and son of the employer's co-owner, applied to terminate the respondent union's bargaining rights.

The union argued the statement of desire was involuntary due to the family relationship between the applicant, two other employee relatives, and the employer.

The Board found no evidence of employer interference or that the family relationship impaired the employees' ability to voluntarily express their true wishes.

The Board concluded the statement of desire was voluntary and directed a representation vote.

The union applied for a direction to settle a first collective agreement by arbitration.

After the hearing concluded but before the decision issued, an application to terminate the union's bargaining rights was filed.

The Board issued its decision directing arbitration without being aware of the termination application.

Upon reconsideration, the Board determined that it was appropriate under section 40a(22) of the Labour Relations Act to consider the first contract application before the termination application, given that the first contract hearing was substantially complete.

The termination application was therefore dismissed.

The applicant trade union applied for certification.

A group of objecting employees sent a petition to the Board by Priority Post on the terminal date.

The union argued that Priority Post was not 'registered mail' as required by the Board's Rules of Practice and Notice to Employees, relying on a previous Board decision.

The Board declined to follow its previous decision, finding that Priority Post provides a written record of receipt with date and time of acceptance by the Post Office, which satisfies the registrable elements of registered mail.

The Board accepted the petition as timely.

The applicant parent union applied for certification shortly after its local union's application for the same unit was dismissed and a six-month bar was imposed.

The respondent employer objected, arguing that the parent and local were the same entity under the union's constitution, or alternatively, that the Board should exercise its discretion to refuse the new application.

The Board held that the parent union and its local are distinct trade unions under the Labour Relations Act.

Finding no compelling reason to exercise its discretion to bar the parent union's application, the Board dismissed the respondent's objections and directed that the application be entertained.

One Board Member dissented.

The union brought an application for a related employer declaration under section 1(4) of the Labour Relations Act and an unfair labour practice complaint under section 89.

The union alleged that the employer's purchase of a non-unionized plant, transfer of work, and subsequent layoff of bargaining unit employees were motivated by anti-union animus.

The Board found that the employer's actions were motivated by bona fide business reasons, including the declining market and obsolete equipment at the unionized plant.

The unfair labour practice complaint was dismissed.

The Board granted the related employer declaration on consent but declined to extend the geographic scope of the collective agreement to the non-unionized plant.

The complainant alleged that the respondent union breached its duty of fair representation under section 68 of the Labour Relations Act by refusing to seek judicial review of an arbitration award that dismissed his discharge grievance.

The Board found that the union's decision was based on a reasonable assessment, following legal advice, that there were no legal grounds to successfully challenge the award.

The complaint was dismissed.

The applicant union applied for a direction that a first collective agreement be settled by arbitration under section 40a of the Labour Relations Act.

The union argued that the employer's refusal to provide wage data and its uncompromising positions on wages and benefits amounted to a failure to recognize the union's bargaining authority.

The Board found that the employer's refusal to move on its wage position, while simultaneously being willing to grant unilateral summer increases, constituted an uncompromising bargaining position adopted without reasonable justification.

The Board directed the settlement of the parties' first contract by arbitration.

The union and the employer agreed to have the Board arbitrate their first collective agreement pursuant to section 40a of the Labour Relations Act.

The parties agreed on most terms but remained in dispute over seniority loss provisions, shift premiums, and the wage schedule.

The Board resolved the disputed items, rejecting the employer's proposed two-tier wage structure, establishing a probationary wage grid, and setting the wage rates and premiums.

The Board directed that the collective agreement consist of the agreed items and the awarded terms.

The applicant union referred grievances to arbitration under section 124 of the Labour Relations Act, alleging that the respondent employers violated the collective agreement by reducing their hourly remittances to the union's benefit fund.

The employers argued that the enactment of the Employer Health Tax Act, which eliminated OHIP premiums and imposed a payroll tax, frustrated the collective agreement and resulted in unjust enrichment for the fund, as the fund no longer had to pay OHIP premiums.

The Ontario Labour Relations Board held that the collective agreement required a fixed hourly remittance and did not allocate a specific portion to OHIP premiums.

The Board found no frustration of contract or unjust enrichment, and ordered the employers to remit the full amounts owed with interest.