OLRB 1991

The applicant union applied for certification of carpenters employed by the respondent.

The respondent argued it had no employees, claiming the two individuals in question were independent contractors.

The Board examined the relationship, noting the individuals were paid piecework rates, supplied only their labour and tools, and were economically dependent on the respondent.

The Board concluded they were dependent contractors and therefore employees under the Labour Relations Act, and issued certificates to the applicant.

The applicant union sought a determination under section 106(2) of the Labour Relations Act regarding whether nurses supplied to respondent hospitals through an agency were employees of the hospitals.

The Board noted that the application raised several preliminary questions, including whether it was appropriate to determine 'who is the employer' in a section 106(2) application and whether the requested relief could be granted.

The Board directed the Registrar to schedule a hearing to hear representations on whether and how the application should proceed.

The union applied for the settlement of a first collective agreement by arbitration.

The parties agreed on some provisions of the union's proposed standard form collective agreement, but disputed several articles including geographic scope, payment of wages, sub-contracting, and an industrial fund.

The Board held that the geographic scope could not be expanded beyond the Board's geographic area #17 without the employer's consent, as economic sanctions cannot be used to expand bargaining rights.

However, the Board ordered the inclusion of the union's standard form provisions for the remaining disputed articles, finding no reason to grant the employer special treatment or a competitive advantage over other contractors bound by the standard agreement.

The applicant union sought certification for employees of Air-Dale Limited, an airline subsidiary of the Ontario Northland Transportation Commission.

The respondent and objectors raised the issue of constitutional jurisdiction.

The Ontario Labour Relations Board determined that the respondent's operations, which involved providing scheduled air services under a Transport Canada licence, fell squarely within the federal Parliament's exclusive jurisdiction over aeronautics.

Consequently, the provincial Labour Relations Act did not apply, and the application for certification was dismissed.

The complainant, a wood-working shop employee, was laid off on his first day back from a Workers' Compensation absence.

Prior to his lay-off, he had repeatedly raised health and safety concerns regarding the shop's condition, including the lack of safety guards and a defective dust collector door that had previously injured him.

On the day of his lay-off, he refused to work due to these unsafe conditions and was subsequently terminated.

The Ontario Labour Relations Board found that the employer failed to discharge its burden of proving that the lay-off was untainted by the complainant's exercise of his rights under the Occupational Health and Safety Act.

The Board ordered the complainant reinstated with compensation.

The applicant union sought leave to withdraw its application for certification prior to a pre-hearing representation vote.

The respondent employer requested that the Board dismiss the application and impose a six-month bar on future applications, noting this was the union's third application in four months.

The Board dismissed the application but declined to impose a bar, reasoning that the employees' wishes had not yet been tested by a representation vote and this was the first application to be formally dismissed.

The union applied for a declaration that a sale of a business occurred when a unionized laundry business and a non-unionized laundry business were both sold to a newly incorporated company, which then integrated the operations and employees.

The Board found that a sale of a business had occurred.

The central issue was whether there was an 'intermingling' of employees under subsection 63(6) of the Labour Relations Act, given that the purchaser was a newly created entity with no pre-existing business.

The Board held that the purchaser carried on the businesses of both predecessor companies and intermingled their employees, satisfying the requirements of subsection 63(6).

Consequently, the Board ordered a representation vote to determine if the employees wished to be represented by the union.

The applicant union sought a declaration that a sale of business occurred from The Westbury Hotel to Ronnie Gee's Sports Palace, and that the successor employer was bound by the existing collective agreement.

The respondent acknowledged the sale but requested to be relieved of the collective agreement obligations, arguing it was inapplicable to its sports bar operation.

The respondent also argued the bargaining unit only covered full-time employees.

The Ontario Labour Relations Board declared the respondent bound by the collective agreement, finding no statutory basis to relieve it of the obligations.

The Board also clarified that the collective agreement explicitly covered both full-time and part-time employees.

The intervener union, Local 272, requested that the Board not give effect to the results of a representation vote in which the applicant Association was successful.

Local 272 alleged that the employer provided improper support to the Association by settling an unfair labour practice complaint on the day of the vote, or alternatively, that the Association improperly exploited the perception of such support in its election campaign literature.

The Board found no evidence of improper employer support or collusion.

Furthermore, the Board concluded that the Association's campaign leaflet was not false or misleading and did not impair the critical faculties of a reasonable voter.

The request to set aside the vote was dismissed.

The complainant employer filed a complaint under section 89(7) of the Labour Relations Act alleging that the respondent union and employee breached the confidentiality clause of a prior settlement agreement.

The settlement, which resolved an occupational health and safety complaint, required the employer to pay $7,500 to the union and included a strict confidentiality provision.

Months later, the employee and a union official disclosed to a newspaper reporter and another employee that a cash settlement had been paid.

The Board found that disclosing the fact of a cash payment, even without specifying the amount or the exact payee, constituted a breach of the confidentiality requirement.

The Board ordered the union to repay the $7,500 to the employer as stipulated in the settlement.

During a hearing for an application for certification, an issue arose during the cross-examination of a witness regarding a non-pay allegation.

The union requested that the witness be compelled to create twenty specimen signatures or produce documents containing twenty original signatures for comparison by an expert witness.

The Board ruled that the witness had the right to consult with counsel during his testimony under the Statutory Powers Procedure Act.

The Board declined to compel the creation of new specimen signatures but directed the witness to produce existing documents in his possession containing twenty original signatures to facilitate the hearing.

The applicant union applied for certification and submitted membership evidence for over 55% of the bargaining unit.

Objecting employees filed a petition opposing the union, and the union subsequently filed counter-petitions reaffirming support.

The Board found both the petition and counter-petitions to be voluntary.

Because the counter-petitions were the last voluntary statement of intention, the Board relied on them to establish the union's support level.

The Board declined to order a representation vote, finding no evidence of misrepresentation, intimidation, or undue influence by the union organizers.

A certificate was issued to the applicant.

In an application for certification by the Operating Engineers, the Ontario Labour Relations Board determined the composition of the bargaining unit for the purposes of the count.

Applying the Gilvesey test, the Board examined the duties performed by several disputed individuals on the application date.

The Board found that certain mechanics and dependent contractors who spent a majority of their time performing bargaining unit work on the application date were included in the unit, while others who primarily performed labourers' work or worked outside the geographic area were excluded.

Having resolved the list of employees, the Board found the union had the requisite membership support and issued certificates for the industrial, commercial and institutional sector and all other sectors in the relevant geographic area.

The applicant union requested a bench warrant for the arrest of a witness who failed to appear at a continuation of a grievance referral hearing.

The witness had been subpoenaed for an earlier date, which was adjourned sine die with an oral direction to re-attend on subsequent dates.

Although the Board found the witness was aware of his obligation to attend, it declined to issue the warrant, noting that the technical foundation for a warrant is doubtful when a hearing is adjourned sine die without a specific continuation date.

The request for a warrant was dismissed.

During a hearing regarding alleged violations of section 68 of the Labour Relations Act, the complainants objected to the respondents introducing evidence of conversation details that had not been put to the complainants during cross-examination, arguing it offended the rule in Browne v. Dunn.

The Board ruled that the rule in Browne v. Dunn applies strictly to evidence intended to impeach a witness's credibility.

However, evidence tendered simply to add details to conversations, without intending to impeach credibility, does not offend the rule and is admissible, though the failure to cross-examine may affect its weight.

The applicant employer sought a declaration and directions under section 92 of the Labour Relations Act, alleging that its employees engaged in an unlawful strike by refusing to cross a picket line established by fellow union members from another company.

The respondent union and employees argued the refusal was based on individual safety concerns and a collective agreement provision.

The Ontario Labour Relations Board found that the refusal to cross the picket line was motivated by union solidarity, not safety, and constituted an unlawful strike.

The Board also found that the union and its officials authorized and encouraged the strike.

The Board issued declarations of unlawful strike and cease-and-desist directions against the employees, the union, and its officials.

The respondent union and employees sought reconsideration of an OLRB decision declaring an unlawful sympathy strike and issuing remedial directions.

The union argued the directions were unwarranted or beyond the Board's jurisdiction, specifically challenging requirements to notify members of their rights and post the Board's decision.

The union also contested the finding that it authorized the strike and that it could violate section 76(1) as a 'person'.

The Board upheld most of its original directions, finding them necessary given the pattern of unlawful activity and the union's failure to repudiate the strike.

However, the Board agreed that a trade union is not a 'person' under section 76(1) and varied one declaration to exclude the union itself from that specific breach.

The complainant trade union alleged that the respondent employer violated the statutory freeze provisions of the Hospital Labour Disputes Arbitration Act and the Labour Relations Act by failing to pay an annual wage increase and a week-end premium, and that this conduct was improperly motivated.

The Ontario Labour Relations Board found that the employer breached the freeze provisions by failing to pay the annual wage increase, as there was an established pattern of maintaining wages at a specific rate relative to the central collective agreement.

The Board dismissed the complaints regarding the week-end premium and improper motivation, finding no established pattern for the premium and no evidence of anti-union animus.

The employer was ordered to pay the wage increase retroactively with interest.

The applicant, a working foreman, applied under section 57 of the Labour Relations Act to terminate the respondent union's bargaining rights in the industrial, commercial, and institutional sector of the construction industry.

The union challenged the applicant's status, arguing he exercised managerial functions.

The Board found the applicant did not exercise managerial functions.

However, the Board dismissed the application because it was not satisfied that the petition supporting the decertification expressed the voluntary wishes of the employees.

Given the applicant's supervisory role over the employees and his remarks about hoping the employer would reimburse his legal fees, the Board concluded that employees might have signed the petition out of concern that refusing to do so would jeopardize their employment.

The applicant union referred a grievance to the Board under section 124 of the Labour Relations Act.

The parties had previously signed Minutes of Settlement in which the employer acknowledged violating the collective agreement by failing to make required remittances and agreed to pay $11,432.44.

The employer failed to appear at the hearing and failed to pay the agreed amount.

The Board found it had jurisdiction to enforce the settlement, declared the employer in violation of the collective agreement and the settlement, and ordered the employer to pay the agreed damages plus interest.