OLRB 1998

The Ontario Nurses' Association (ONA) requested reconsideration of an earlier Board decision that established broadly-based municipal bargaining units for the newly amalgamated City of Toronto, which included nurses.

ONA sought a separate bargaining unit for nurses.

The Board dismissed the request, noting the need for expedition under Bill 136, the fact that the major parties had already reached a tentative global settlement based on the earlier decision, and that the earlier decision appropriately continued the historical pattern of mixed units from the predecessor municipalities.

The applicant filed an application to terminate the bargaining rights of the responding union.

The union argued the application was untimely because it was filed with Priority Courier after business hours on the last day of the open period, and because it was not delivered to the union within the required two days.

The Board found the application was filed on time, as the date of filing is the date it is accepted by Priority Courier.

However, the applicant failed to deliver the application to the union within two days of filing as required by the Rules.

The Board declined to relieve against the strict application of the delivery rules, noting the statutory requirement for expedition in termination applications.

The application was dismissed.

The applicant school board filed an application alleging that the responding union threatened or authorized an unlawful strike by issuing a 'pink list' advising teachers not to accept jobs with the school board.

The school board had recently ratified a collective agreement with its elementary teachers, but secondary teachers were still negotiating.

The school board argued that the hiring boycott could cause an unlawful strike in the elementary bargaining unit.

The Board dismissed the application, finding that the definition of 'strike' under the Labour Relations Act applies only to 'employees,' and cannot be stretched to encompass individuals who have not yet applied for positions or future employees.

The applicant employer sought to suspend an occupational health and safety inspector's order requiring workers operating material handling equipment to wear protective footwear, pending an appeal.

The Board applied the three-part test for suspending an order and found insufficient reason to grant the suspension.

The applicant failed to file submissions demonstrating a strong prima facie case, lack of hazard, or prejudice, while the Ministry established a potential hazard to worker safety.

The application to suspend the order was dismissed.

The applicant trade union filed an application for certification.

The Board found that the applicant is a trade union and that at least forty percent of the individuals in the proposed bargaining unit were members.

The Board directed a representation vote to be held.

The responding party requested that the Board exercise its discretion under section 7(9) of the Labour Relations Act, 1995 to refuse to consider the application for one year; the Board deferred this issue until after the vote.

A dissenting Board member would have ordered the ballot box sealed pending the determination of the section 7(9) issue.

The applicant union brought multiple applications and grievance referrals against the responding corporate employer and its principal for failing to abide by collective agreements, including failing to make remittances and hiring non-union members.

The Board found that the corporate employer and its principal, acting on behalf of the employer, violated sections 70 and 72 of the Labour Relations Act.

The Board ordered the responding parties to jointly and severally pay damages of $40,374.72, deposit cash bonds with trust funds, and produce relevant documents.

The applicant applied to terminate the responding party union's bargaining rights for employees of the intervenor employer.

The application encompassed two bargaining units: one for the ICI sector and one for service and maintenance work, which included both construction and non-construction work.

The union argued that the application could only deal with construction industry bargaining rights and that the Board had no jurisdiction to order a vote for the non-ICI sectors.

The Board held that an application to terminate bargaining rights must be based on the bargaining unit defined in the collective agreement, even if it encompasses both construction and non-construction work.

The Board further determined that construction industry rules apply to such mixed units and that one application form can cover two bargaining units.

The Board directed a representation vote for the service and maintenance unit and declared the union's bargaining rights terminated for the ICI sector based on a previous vote.

The objecting employees and the employer challenged the validity of a ratification vote conducted by the union.

The ballot presented a choice between accepting the employer's offer or rejecting it and authorizing a strike.

The applicants argued that this compound ballot violated the Labour Relations Act, 1995 by failing to provide a clear 'yes' or 'no' choice on ratification alone.

The Ontario Labour Relations Board dismissed the challenge, holding that the Act does not mandate a simple 'yes' or 'no' ballot and that the combined ratification/strike ballot is a realistic collective bargaining choice that does not prevent employees from expressing their true wishes.

The applicant trade union applied for certification to represent employees at the responding party's retirement residence.

The Board found that the applicant is a trade union and that at least forty percent of the individuals in the proposed bargaining unit were members.

The Board directed a representation vote.

The employer gave notice under section 8.1 of the Labour Relations Act, 1995, but failed to provide an estimate of the number of individuals in its proposed bargaining unit.

The majority of the Board declined to treat the response as raising a valid section 8.1 notice.

A dissenting Board member would have found the section 8.1 notice valid and sealed the ballot box pending a hearing.

The employer and the intervenor union sought reconsideration of a Board decision that set the voter eligibility date for a representation vote as the date of the applicant union's certification application.

The employer argued that 27 employees hired after the application date should be permitted to vote, as they had been in a previous vote involving the intervenor.

The Board dismissed the reconsideration request, finding that the employer had been explicitly invited to make submissions on voter eligibility prior to the vote being ordered but had failed to do so.

The Board concluded there was no reason to depart from its normal practice of using the application date for voter eligibility, and ordered that the 27 segregated ballots not be counted.

A certificate was issued to the applicant union.

The applicant union referred two grievances to the Board under section 133 of the Labour Relations Act, 1995, seeking an order that the responding party employer deposit a $20,000 bond pursuant to the collective agreement due to frequent delinquency in benefit fund remittances.

The first grievance was settled.

On the second grievance, the Board found that the employer had been frequently delinquent and that the trustees had properly exercised their discretion to require the bond.

The Board ordered the employer to deposit the $20,000 bond and pay $2,500 in costs.

Local 46 applied for certification of the employees of Elitrex Plumbing Ltd. Elitrex and Local 183 argued that a voluntary recognition agreement executed between them barred the application.

The Board found that Local 183 failed to establish it had majority support of the employees in the bargaining unit at the time the agreement was signed, as critical membership evidence was undated and unsupported by oral testimony.

Furthermore, the employer had interfered by expressing a preference for Local 183 to an employee.

The Board declared the voluntary recognition agreement invalid, terminating Local 183's bargaining rights and allowing Local 46's certification application to proceed.

The applicant trade union filed for certification under section 11 of the Labour Relations Act, 1995, alleging employer unfair labour practices prevented it from demonstrating the required membership support for a representation vote.

Following the application, the legislature passed Bill 31, which amended section 11 to require that a prior representation vote must have been held before the Board could order a second vote as a remedy.

The respondent employer moved to dismiss the certification application on the basis that the amended section 11 no longer permitted certification without a prior vote.

The Board agreed, finding that the explicit language of the amended section 11 restricted remedies to ordering a second vote, and dismissed the certification application.

However, the Board declined to impose a bar on future applications by the union.

The applicant union filed an application for certification.

The responding party failed to file a timely response under the Board's Rules of Procedure, delivering it late and without a list of employees.

The applicant brought a preliminary motion to preclude the responding party from challenging the status of the persons who voted in the representation vote, relying on previous Board jurisprudence.

The Board dismissed the preliminary motion, distinguishing the prior case law because the responding party asserted that the individuals listed by the applicant were not its employees at all.

The Board held that it would be inappropriate to allow strangers to determine a certification application, and directed that the status issues be litigated.

The applicants, representing occasional teachers, sought interim relief and filed a complaint alleging the OSSTF and the Toronto District School Board breached the Labour Relations Act.

They argued that a new collective agreement for full-time teachers effectively eliminated the work of occasional teachers, breaching the OSSTF's duty of fair representation and the employer's duty not to interfere with a trade union.

The Ontario Labour Relations Board dismissed the application, holding that a union's duty of fair representation only applies when it is actively representing that specific bargaining unit, and that the employer's agreement to terms impacting another unit's work did not constitute statutory interference.

The Kawartha Pine Ridge District School Board applied to the Ontario Labour Relations Board for a determination of the number and descriptions of bargaining units appropriate for its operations following the amalgamation of two predecessor school boards.

The applicant sought five separate bargaining units, while CUPE sought an 'all employee' unit.

The Board determined that an 'all employee' bargaining unit was appropriate, noting the history of such a unit at one of the predecessor boards and the lack of labour relations problems.

The Board also ordered a representation vote.

The employer alleged that the union obtained its certification by fraud because it estimated 57 employees in the bargaining unit on its application, despite the employer previously stating there were 64.

The Ontario Labour Relations Board applied the test for fraud from Derry v. Peek, which requires a false representation made knowingly, without belief in its truth, or recklessly.

The Board found that the union representatives had an honest belief in their estimate, which was based on a practical assessment by the chief steward.

The Board concluded that the union's conduct did not amount to fraud and upheld the certificate.

The Ontario Public Service Employees Union applied for certification to represent nurses employed in a home care program by the responding party hospital.

The hospital argued that the nurses were independent contractors, not employees.

The Board examined the relationship, noting the nurses' integration into the home care program, lack of negotiation over pay rates, and limited entrepreneurial opportunity.

The Board concluded that the nurses were dependent contractors and therefore employees under the Act, and granted the certification.

In an application for certification in the construction industry, the Board determined the voter eligibility of several individuals.

The Board declined to dismiss the application under section 11.2 of the Labour Relations Act, finding no prejudice to the responding parties from the delivery of the application.

The Board held that individuals working in a compulsory certified trade within the three-month grace period under section 9 of the Trades Qualification and Apprenticeship Act are lawfully employed and eligible to vote, even if they have not yet registered as apprentices.

However, one individual whose grace period had expired prior to the application date was found ineligible to vote.

The applicant union brought an application under sections 69 and 1(4) of the Labour Relations Act, 1995, alleging that Westinghouse Canada Inc. was a successor or related employer to Westinghouse Electric Corporation.

The responding parties brought a preliminary motion to dismiss the application on the basis that the collective agreement relied upon by the union was limited to the United States and had no extraterritorial application in Ontario.

The Board found that the collective agreement was silent on geographic scope and contained provisions specific to American law.

As there was no evidence of intent or past practice applying the agreement outside the U.S., the Board held the agreement did not apply in Ontario.

The application was dismissed as there were no bargaining rights to preserve.