OLRB 1993

The Ontario Nurses' Association applied for certification and sought to remove the phrase 'employed in a nursing capacity' from the standard bargaining unit description, or alternatively, to include the positions of Nurse Clinician, Pharmacy Technician I, and Discharge Planner/Infection Control Nurse within that definition.

The Ontario Labour Relations Board declined to alter the standard craft-like bargaining unit description for nurses.

However, the Board found that the incumbents in all three disputed positions were required by the hospital to hold a Registered Nurse qualification and were expected to possess the training and skills of a nurse to perform their duties.

Consequently, the Board concluded that the positions were 'employed in a nursing capacity' and included them in the bargaining unit.

One Board Member dissented regarding the inclusion of the Pharmacy Technician I position.

The applicant filed an unfair labour practice complaint alleging the employer contravened section 67 of the Labour Relations Act by issuing a one-day suspension.

The Ontario Labour Relations Board declined to inquire into the complaint, finding that the dispute primarily concerned work practices and regulations rather than the exercise of statutory rights.

Noting that the parties had an established collective bargaining relationship and that an arbitrator had broader jurisdiction to resolve the issues under the collective agreement, the Board deferred the matter to arbitration and adjourned the application sine die.

The applicant union filed a complaint alleging that the employer violated the statutory freeze provisions under section 13 of the Hospital Labour Disputes Arbitration Act by unilaterally altering the hours of work of certain registered nurses during collective bargaining.

The employer argued the changes were economically justified and consistent with past practice.

The Ontario Labour Relations Board found that the employer failed to establish that the changes were 'business as usual' or within the reasonable expectations of the employees.

The Board declared that the employer violated the statutory freeze and ordered compensatory damages for the affected employees, but declined to order the restoration of their previous schedules as the parties had since concluded a collective agreement.

The applicant union applied for certification and filed an unfair labour practice complaint against the responding party, a waste management company.

The responding party raised a preliminary objection, arguing that its business of transporting waste from Ontario to the United States constituted an extra-provincial undertaking under section 92(10)(a) of the British North America Act, placing it under federal jurisdiction.

The Board found that the responding party operated as a common carrier whose primary function was the regular and continuous transportation of waste across the border.

Consequently, the Board concluded that the business was a federal undertaking and dismissed the applications for lack of constitutional jurisdiction.

The union applied for an interim order under section 92.1 of the Labour Relations Act to compel the employer to recognize and deal with its bargaining unit chairperson, who had been terminated, during negotiations for an adjustment plan related to an impending plant closure.

The employer had refused to meet with any bargaining committee that included the terminated chairperson.

The Board found the union had an arguable case in its main unfair labour practice complaint and that the balance of harm favoured granting the interim relief.

The Board ordered the employer to cease refusing to recognize the chairperson and to meet with the union's committee to bargain in good faith.

The union applied for certification shortly after consenting to a termination of its bargaining rights due to a failure to give timely notice to bargain.

The employer argued the new application was an abuse of process and should be barred for six months under the Board's procedural powers.

The Board held that the application was timely under section 5 of the Labour Relations Act and that it lacked the discretion to impose a bar outside the specific circumstances of section 105(2)(i).

The Board prioritized the employees' desire for collective bargaining and certified the union without a representation vote.

The Labourers' and the Carpenters disputed the assignment of erecting wooden hoarding with a canopy on a demolition project in Windsor.

The employer, Delsan Demolition, had assigned the work to the Labourers' based on a provincial demolition agreement.

The Ontario Labour Relations Board determined that demolition is a subset of the industrial, commercial, and institutional (ICI) sector, and that local Board Area practice should govern.

Finding that the prevailing practice in Board Area No. 1 for this specific type of hoarding was to assign the work to the Carpenters, the Board directed the employer to reassign the initial construction and erection of the hoarding to the Carpenters.

The applicant union sought certification for a bargaining unit consisting of cleaners and maintenance workers at a shopping mall, or alternatively, a unit including security guards.

The responding employer argued for an all-employee unit, citing its integrated customer service approach and the regular interchange of duties among staff.

The Board applied the community of interest test and found that while the maintenance group could likely bargain together viably, a separate unit would cause serious labour relations problems due to fragmentation.

The Board concluded that the applicant's proposed unit was not appropriate and that the employer's proposed all-employee unit was appropriate.

A representation vote was ordered for the wider unit.

The applicant union brought complaints alleging that the City of Ottawa and concert promoters engaged in an illegal lock-out.

The City required promoters renting its facilities to use members of a rival union for stagehand work.

The applicant argued this arrangement unlawfully deprived its members of work opportunities and constituted a lock-out.

The Board found that the City, as a property owner, was not acting as an employer of the stagehands and had no intent to compel the applicant's members to forego statutory rights.

The promoters' refusal to hire the applicant's members was a response to commercial conditions imposed by the City, lacking the improper motivation required for a lock-out.

The complaints were dismissed.

The applicant union applied under section 7 of the Labour Relations Act to combine seven separate store bargaining units of the responding party department store into a single bargaining unit.

The parties had a history of centralized bargaining resulting in nearly identical collective agreements.

The employer opposed the combination, arguing it would cause serious labour relations problems and that the existing units were viable.

The Board found that combining the units would reduce fragmentation and facilitate viable and stable collective bargaining without causing serious labour relations problems, given the centralized nature of the employer's operations and the parties' bargaining history.

The application was granted and the units were combined, with one member dissenting.

The applicant union alleged that the employer committed an unfair labour practice by denying recognition bonus payments to employees who participated in a lawful strike, while paying the bonus to employees who crossed the picket line.

The employer argued that the bonus was tied to production and was reduced for any absence, relying on its discretion under the plan.

The Board found that the employer had not uniformly applied the reduction to other absences, such as a subsequent sit-in by non-striking employees.

The Board concluded that the employer's exercise of discretion was motivated by anti-union animus and discriminated against the striking employees contrary to section 67(a) of the Labour Relations Act.

The employer was ordered to compensate the striking employees.

The applicant union filed a grievance alleging that the responding party general contractor violated the provincial collective agreement by subcontracting final cleanup work on a construction project to a non-union company.

The general contractor argued the final cleanup was maintenance work outside the construction industry.

The Ontario Labour Relations Board upheld the grievance, finding that the final cleanup work was necessitated by the construction project and was part of the overall construction work undertaken by the general contractor.

The Board concluded the work was covered by the collective agreement and the general contractor violated the subcontracting clause.

The applicant union sought an interim order under section 92.1 of the Labour Relations Act to reinstate an employee who was allegedly discharged for his union organizing activities.

The responding party employer contended that the employee was discharged for stealing cigarettes.

The majority of the Board dismissed the application, finding that the potential harm to the employer of reinstating an employee discharged for theft outweighed the financial harm to the employee and the alleged chilling effect on the union's organizing drive, particularly given the delay in bringing the application.

A dissenting Board member would have granted the interim reinstatement.

The applicant trade union sought an interim order for the production of documents and information from the responding employers in relation to an application under sections 1(4) and 64 of the Labour Relations Act.

The responding employers did not file a response to the request for the interim order.

The Board granted the requested order, noting that pre-hearing disclosure is particularly helpful in cases involving related employer and sale of business allegations, as it helps to flesh out material facts and identify issues.

The responding party requested an adjournment on the morning of the hearing via a faxed medical note for its representative.

The applicants opposed the adjournment.

The Board noted its practice of not granting adjournments except on consent or in extenuating circumstances, and criticized the late notice and the vague medical note.

However, given the history of the proceedings, the Board reluctantly granted the adjournment, making the new dates peremptory and ordering the responding party to reimburse the applicants for their share of the section 126(4) expenses.

The applicant trade union filed an unfair labour practice complaint alleging that the employer's reorganization of its workforce shortly after certification breached the Labour Relations Act.

The employer raised several preliminary procedural issues, seeking an adjournment pending a section 108(2) employee status determination, dismissal for lack of a prima facie case, dismissal for want of particulars, and an order that the union proceed first with its evidence.

The Board dismissed the motions for adjournment, lack of a prima facie case, and want of particulars.

A majority of the Board ordered the employer to proceed first with its evidence, finding that the core allegations attracted the reverse onus provisions of section 91(5) and that the employer had peculiar knowledge of the circumstances.

The applicant union requested reconsideration of a prior Board decision that found the employer violated the collective agreement but declined to award damages due to a lack of evidence of actual loss.

The union argued that under the 'lost opportunity' theory, it did not need to prove that it had unemployed members available to perform the work.

The Board dismissed the request, holding that while the 'lost opportunity' theory allows for recovery where the outcome is uncertain, the aggrieved party must still prove it suffered a loss.

The Board found no obvious error or new policy issue warranting reconsideration.

The complainant, a union member, alleged that the union breached its duty of fair referral under section 70 of the Labour Relations Act by refusing to issue him a referral slip for a name-hire request.

The refusal followed a history of animosity between the complainant and the union executive, including internal union charges and a substantial fine levied against the complainant.

The Board found that the union's proffered reasons for refusing the referral slip were not credible and that the refusal was motivated by hostility and ill-will.

The Board concluded that the union's conduct was arbitrary, discriminatory, and in bad faith, and directed the union to compensate the complainant for his losses.

The union applied to the Ontario Labour Relations Board alleging that the employer breached the Labour Relations Act by proposing a final offer with a duration clause of less than one year from the date of the final offer vote.

The union sought an extension of the duration clause to one year from the vote date.

The Board dismissed the application, finding that the union failed to argue a breach of the duty to bargain in good faith under section 15, and that section 53(1) does not apply to a final offer until it is signed by the union and becomes a collective agreement.

The union filed a construction industry grievance alleging the employer breached the collective agreement by laying off senior employees while retaining two less senior employees who had recently returned from compensable injuries.

The employer argued it was required to retain the injured workers under the re-employment obligations of the Workers' Compensation Act.

The Board held that section 54(15) of the Workers' Compensation Act explicitly provides that the statutory re-employment obligations do not displace the seniority provisions of a collective agreement.

The Board declared that the employer breached the collective agreement by retaining the less senior employees.