OLRB 1995

The applicant employer sought relief against the respondent union, alleging that picketing behaviour during a lawful strike contravened several provisions of the Labour Relations Act and caused undue disruption.

The Ontario Labour Relations Board dismissed the application on the pleadings.

The Board found that section 11.1 did not apply because the picketing occurred on a public roadway, not on premises to which the public normally has access.

Furthermore, the Board concluded that the union's alleged conduct did not constitute an unlawful strike, nor did it violate the prohibitions against intimidation or coercion under sections 71 and 73, as the employer's right to operate its business is not a statutory right protected by the Act.

In an application for certification, the applicant union (CLAC) sought to displace the incumbent union (Sheet Metal).

A pre-hearing representation vote was held.

As a preliminary issue, the incumbent union argued that reaffirmations of support signed by employees nullified their prior membership applications in the applicant union, reducing the applicant's support below the 35% threshold required for a pre-hearing vote.

The Board held that a withdrawal of support or reaffirmation of support for another union does not constitute a resignation or cancellation of membership in the applicant union.

Furthermore, the Board found that 'change of heart' documents have no place in the pre-hearing vote process under section 9 of the Labour Relations Act, as the vote itself allows employees to express their wishes.

The Board concluded the applicant had the requisite membership support.

The applicant union applied for certification to represent employees of the responding party.

A group of employees objected, raising several preliminary issues including the scheduling of expedited hearings, venue, notice to another union, the validity of membership cards, the adequacy of the Form A-4 declaration, the involvement of a perceived manager in organizing, and the relevance of a prior anti-union petition.

The Board dismissed all objections, finding that the union's membership evidence was valid, unambiguous, and superseded the prior petition.

The Board declined to order a representation vote and granted certification.

The union filed an unfair labour practice complaint alleging that the employer terminated four employees because they acted as inside organizers for the union.

The employer claimed the terminations were part of a normal course layoff due to restructuring and performance issues.

During the hearing, the employer sought to call a witness in reply to contradict the union's evidence, which the Board denied as improper case-splitting.

Applying the reverse onus under section 91(5) of the Labour Relations Act, the Board found the employer failed to establish that the decision to terminate the four organizers was free of anti-union animus.

The Board ordered the immediate reinstatement of the employees with full compensation.

The applicant union sought an order determining the effective date for the combination of several bargaining units at various retail stores of the responding party employer.

The Board had previously ordered the combination but reserved on the effective date.

The employer argued the combination should be effective only when every unit had entered into a collective agreement, while the union sought an immediate combination.

The Board found no reason to delay the combination, noting that deferring would not eliminate implementation complexities and that concluding terms for the units would be reached against the framework of an eventual combined unit.

The Board ordered the bargaining units combined effective immediately.

The applicant filed a complaint alleging the union breached its duty of fair representation by agreeing to withdraw his classification grievance as part of a Social Contract negotiation with the government.

The Ontario Labour Relations Board dismissed the complaint, finding it lacked jurisdiction because the events occurred before the Labour Relations Act applied to Crown employees.

The Board further held that even if it had jurisdiction, the complaint was untimely due to a 20-month delay, and on the merits, the union did not act arbitrarily in balancing the interests of individual grievors against the preservation of jobs for the bargaining unit as a whole.

The union applied under section 1(4) of the Labour Relations Act for declarations that three taxi brokers and their respective associates should be treated as one employer for collective bargaining purposes.

The Board found that the brokers and associates carried on associated or related activities under common control or direction, given their functional integration and mutual economic dependence.

The Board exercised its discretion to issue the declarations and ordered a specific bargaining structure, as agreed upon by most parties, to ensure associates have a formal role in negotiations.

The applicant filed a complaint alleging that the union breached its duty of fair representation under section 69 of the Labour Relations Act.

The applicant raised four specific incidents, including the union's response to a racist note left in his desk, its handling of a production crew meeting where complaints were made about his work, its representation during a counseling meeting with management, and its pursuit of a written apology from a supervisor.

The Board found that the union acted with due diligence in all instances, taking strong action against workplace harassment and properly handling the applicant's grievances.

The application was dismissed.

The union applied for certification.

The employer alleged that the union's organizing campaign was tainted by the involvement of managerial employees and by material misrepresentations made by a union organizer regarding employees' ability to withdraw their membership.

The Board held that the managerial employees were acting contrary to the employer's interests, which did not trigger the statutory bar to certification or cast doubt on the voluntariness of the membership evidence.

The Board also found that the union organizer did not make the alleged misrepresentations.

The Board certified the union based on the documentary evidence of membership.

Following a Board decision combining two bargaining units, the parties were unable to agree on the wage rates for three service technicians located in northern Ontario.

The union argued that the existing collective agreement's wage rates should automatically apply, while the employer proposed lower regional rates due to market conditions and higher operating costs in the north.

The Board declined to automatically extend the existing collective agreement, emphasizing the importance of collective bargaining.

Acting to complete the negotiation process, the Board directed a 4% wage increase for 1993 and an additional 4% for 1994, finding a middle ground between the parties' positions.

The applicant union sought certification for employees at a 60-bed retirement home.

The parties disputed whether fifty 'floating' maintenance and housekeeping employees, who serviced twenty-five different homes, should be included in the bargaining unit.

The Board determined that including the floating employees would create serious labour relations problems and administrative difficulties, as they could potentially fall into multiple bargaining units.

The Board excluded the floating employees from the bargaining unit and, finding that more than fifty-five percent of the employees in the unit had applied for membership, granted the certification.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that Georgian Construction, Georgian Group, Cresmark, and Krestmark constituted one employer.

The Board found that Georgian Construction, Georgian Group, and Cresmark carried on associated or related activities in the residential sector of the construction industry under common control or direction.

The Board exercised its discretion to issue a related employer declaration to prevent the erosion of the union's bargaining rights.

The application was dismissed as against Krestmark, which was not a construction company.

The union applied for certification of a craft bargaining unit of sheet metal workers.

The employer argued that three individuals should be excluded from the unit because their Certificates of Qualification had lapsed for non-payment of fees on the application date.

The Board held that the individuals were functionally journeymen who had completed the required training and that the regulatory agency's practice was to allow renewal upon payment of fees without prohibiting work.

The Board concluded the individuals were 'journeymen sheet metal workers' for the purpose of the bargaining unit determination and issued the certificates.

The applicant sought leave to withdraw its application under section 91 of the Labour Relations Act.

The responding party employer requested that the withdrawal be on a 'with prejudice' basis due to expenses incurred and potential unfairness if the matter were resurrected.

The Board declined to require the withdrawal to be 'with prejudice', noting its practice of facilitating settlements and that abuse of process could be raised if a subsequent application is filed.

Leave to withdraw was granted.

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding whether an employer can request a final offer vote under section 40 of the Labour Relations Act after first agreement arbitration has been initiated under section 41.

The union argued that because section 41(13) prohibits strikes or lock-outs once first agreement arbitration is initiated, the precondition for a final offer vote cannot be met.

The employer argued that the provisions could operate simultaneously.

The Board held that the opening words of section 40 establish a precondition that strike or lock-out activity must be available.

Since section 41(13) eliminates the possibility of a strike or lock-out, an employer cannot request a final offer vote after first agreement arbitration has been initiated.

The union filed a construction grievance alleging the employer failed to pay wage increases under the Provincial Agreement.

The employer argued the Social Contract Act applied, freezing compensation, and that the Board lacked jurisdiction due to the Act's adjudication provisions.

The Board held it had jurisdiction to interpret the application of the Act to the collective agreement.

The Board found the Social Contract Act applied to the ICI sector employees of the school board.

However, for two grievors earning less than $30,000 annually from the employer, the Act's 'fail safe' wage freeze did not apply, and they were entitled to the negotiated wage increases.

The applicant union applied for certification.

During the hearing, it was revealed that the union's main organizer had signed membership cards as a 'witness' without actually observing the employees signing them.

The employer and objecting employees argued this irregularity, along with allegations of intimidation and coercion by the organizer, should invalidate the membership evidence.

The Board found that the organizer's misrepresentation on the cards was innocent and did not undermine the reliability of the evidence.

The Board also dismissed the allegations of intimidation, finding no objective basis for them.

The Board certified the union, with one member dissenting on the reliability of the membership evidence.

The union alleged that the employer violated the statutory freeze under section 81 of the Labour Relations Act by failing to pay a 3% wage increase to employees earning under $30,000.

The employer argued that the increase was contingent on funding from the City of Ottawa, which was not provided due to budget constraints.

The Board dismissed the application, finding that the wage increase was not a guaranteed term or condition of employment, and that 'business as usual' for the employer included responding to budget constraints imposed by the City.

The union applied for certification and requested a pre-hearing representation vote under section 9 of the Labour Relations Act.

The employer objected, arguing that the union's documentary evidence consisted only of applications for membership, not actual membership, and that some employees had subsequently withdrawn their support.

The Board held that for the purposes of section 9, an application for membership is sufficient to establish membership support, consistent with long-standing Board practice and legislative intent.

The Board further held that letters withdrawing support do not constitute a revocation of membership.

The Board directed that the ballots from the pre-hearing vote be counted.

The applicant union sought leave to withdraw its application for certification after the Board identified a potential irregularity in the membership evidence.

The employer opposed the withdrawal, arguing that the Board should proceed with the application on its merits to investigate the alleged forgery, especially since the union filed a second, identical application on the same day it sought to withdraw the first.

The Board held that the union's decision not to rely on the questionable membership evidence inherently carried the penalty of losing that support and delaying its certification efforts.

The Board found no abuse of process and noted that any limitation on employees' ability to oppose the second application arose from the statutory framework, not the union's conduct.

Following its usual practice when a request to withdraw is made after a meeting with a Board Officer, the Board dismissed the application.

A dissenting member would have denied the request to withdraw, noting that the union was not abandoning its claim to represent the employees.