OLRB 1999

The union applied for certification to represent stage employees of the Canadian Opera Company (COC).

Following a representation vote in which all voting employees supported the union, the COC argued the application should be dismissed as an abuse of process, alleging the union's true motive was to secure bargaining rights for a future, unbuilt opera house.

Alternatively, the COC sought to restrict the bargaining unit to its current rehearsal facilities based on alleged industry practice.

The Ontario Labour Relations Board rejected the abuse of process argument, finding the union had legitimate interests in formalizing the existing relationship and expanding employment opportunities.

The Board also rejected the site-specific bargaining unit, granting a municipal-wide certificate to ensure stability of bargaining rights, noting the COC's ability to perform and build sets at various locations.

The employer applied for a review of an Employment Standards Officer's Order to Pay, which had found that the employee was terminated because of her pregnancy.

The employee was terminated at the end of her three-month probationary period.

The employer argued the termination was due to poor work performance, specifically typographical errors, and that the decision was made before it learned of the pregnancy.

The Board found the employer's witnesses credible and accepted documentary evidence showing the termination decision and paperwork were initiated days before the employee disclosed her pregnancy.

The Board concluded the termination was not a reprisal for pregnancy and rescinded the Order to Pay.

During proceedings for a first contract arbitration and a termination of bargaining rights, the responding employer and objecting employees raised a constitutional objection, arguing that the employer's taxi dispatch service fell under federal jurisdiction due to its cross-border travel into Detroit.

The Ontario Labour Relations Board reviewed the constitutional facts, noting that cross-border trips represented less than 0.5% of the employer's total volume and were unscheduled and on-demand.

Applying the test of whether the extra-provincial work was 'regular and continuous', the Board concluded that the extra-provincial travel was occasional and casual.

Therefore, the employer's labour relations fall within provincial jurisdiction, and the Board has jurisdiction to hear the applications.

The applicant worker members of a joint health and safety committee appealed a Ministry of Labour inspector's decision to rescind an order requiring the Toronto Transit Commission to conduct an ergonomic assessment of new bus driver compartments.

Prior to the hearing, the employer provided an ergonomic review report.

The Board dismissed the appeal as moot, finding that the requested assessment had been provided and that any further adjudication regarding the actual ergonomic safety of the buses would require a new determination by an inspector.

The applicant unions sought reconsideration of a Board decision which found their challenge to a project agreement to be untimely.

The unions argued that the Board erred in calculating the time limits, failed to apply section 123 of the Act to cure technical defects in notice, and should have accepted oral notice given to the Deputy Registrar.

The Board dismissed the requests for reconsideration, holding that the time limits in section 163.1(9) are mandatory, section 123 does not permit the Board to relieve against statutory timeliness requirements, and oral notice via telephone message is insufficient.

The applicant union referred a grievance to arbitration under section 133 of the Labour Relations Act, 1995, alleging the responding party joint venture failed to make required benefit fund contributions.

The responding party did not appear at the hearing.

The Board considered whether a joint venture is bound by a collective agreement signed by its constituent corporations.

Finding that a joint venture is generally a partnership at law, the Board held that the joint venture is bound by the collective agreement obligations of its partners when undertaking covered work.

The Board ordered the responding party to pay $22,366.61 in liquidated damages for late payments.

The applicant union applied for certification and won a representation vote by a margin of 92 to 59.

However, the responding party raised an objection under section 8.1 of the Labour Relations Act, 1995.

The Board found that the union had submitted membership evidence on behalf of less than 40 per cent of the employees in the proposed bargaining unit.

Consequently, despite the union's success in the representation vote, the Board dismissed the certification application pursuant to section 8.1(5) of the Act.

The applicant union applied for certification of construction labourers employed by the responding party.

Following a representation vote in favour of the union, the responding party challenged the Board's constitutional jurisdiction, arguing the employees were engaged in work on a federal property (an interprovincial bridge) and thus fell under federal jurisdiction.

The Board applied the functional test for constitutional jurisdiction and determined that the responding party's primary business was construction, and its involvement with the bridge was temporary and not an integral part of the federal undertaking.

The Board concluded it had jurisdiction and ordered the issuance of certificates to the union.

The applicant union sought to certify a bargaining unit of firefighters working for the Municipality of Leamington.

The central issue was whether the individuals were 'volunteer firefighters' under the Fire Protection and Prevention Act, 1997, in which case the Labour Relations Act would apply, or 'firefighters', in which case it would not.

The Board found that the firefighters were regularly employed on a salaried basis and assigned to fire protection services, and thus fell within the definition of 'firefighter'.

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

The employer appealed an Order to Pay issued by an Employment Standards Officer on the basis that the complainants were anonymous, preventing the employer from knowing the case it had to meet.

After the Board ordered the complainants to identify themselves, three employees came forward.

The employer withdrew its appeal regarding those three employees and agreed to pay them.

The Board amended the Order to Pay to reflect the net amounts owed after statutory deductions and ordered the remaining funds held in trust to be returned to the employer.

The Vice-Chair also noted that issuing Orders to Pay for anonymous complainants violates natural justice.

The applicant alleged that the union breached its duties of fair representation and fair referral under sections 74 and 75 of the Labour Relations Act, 1995.

The union had entered into a letter of understanding with contractors allowing a 50/50 system for selecting workers from the out-of-work list.

The applicant argued this system was inherently unfair and improperly approved.

The Board found no evidence of bad faith, discrimination, or arbitrary conduct by the union, noting the membership had subsequently ratified the arrangement.

The application was dismissed.

The applicant employer sought the suspension of two orders issued by a Ministry of Labour Inspector following an incident where a worker received an electric shock.

The employer had implemented interim safety measures, including restricting access and providing additional training.

The Board applied the three-part test for suspending orders and found that worker safety would not be endangered, the employer would suffer prejudice if the orders were not suspended, and the employer had a strong prima facie case for a successful appeal.

The request to suspend the orders was granted.

The applicant union filed applications for certification and to terminate the incumbent union's bargaining rights.

The incumbent union had been voluntarily recognized by the employer and entered into a collective agreement.

The applicant sought an immediate representation vote, relying on Board jurisprudence.

The employer and incumbent union argued that the incumbent had majority support prior to voluntary recognition and that the collective agreement was ratified by a majority of employees.

The Board balanced the competing policy objectives of holding quick representation votes and protecting legitimate representation rights during a collective agreement.

The Board decided to defer the representation vote until after the termination application is decided, and directed that both applications be heard together.

The Labourers' International Union of North America, Local 837 filed a jurisdictional dispute claiming that its members should have been assigned to tend carpenters erecting and dismantling scaffolding for Doug Chalmers Construction Limited at an Esso Refinery Plant.

The Ontario Labour Relations Board considered factors including collective agreements, safety, skill and training, economy and efficiency, and area practice.

The Board found that while some factors favoured the labourers, the factors of area practice (specifically the practice of specialty scaffolding contractors) and economy and efficiency strongly favoured the carpenters.

The Board affirmed the employer's assignment of the work exclusively to the carpenters.

The Canadian Union of Public Employees (CUPE) filed a jurisdictional dispute application concerning the assignment of certain HVAC maintenance and repair work to the Operating Engineers rather than the Plumbers.

The Board evaluated the competing claims using established criteria, including employer preference, past practice, and the collective agreement.

The Board determined that the replacement of liquid heating valves requiring system shutdown should have been assigned to a composite crew of Plumbers and Operating Engineers.

The installation of an eye wash stand was declared Plumbers' work.

However, the shutdown and relocation of heating components was found to be properly assigned to the Operating Engineers.

The applicant employer sought a suspension of a Ministry of Labour Inspector's order requiring the installation of machine guards on its screw machines, pending an appeal of that order.

The Ontario Labour Relations Board applied the three-factor test for suspending an order and found that the applicant failed to demonstrate that suspending the order would not endanger worker safety, given the inherent dangers of moving machinery.

The Board also found the applicant did not establish a strong prima facie case for a successful appeal.

The application for suspension was dismissed.

The applicant union sought its reasonably incurred costs of $2,014 following a default judgment against the responding party for violating the collective agreement by performing work with non-union members.

The union relied on Article 9.18 of the collective agreement, which mandates costs for grievances alleging a failure to pay wages or make trust fund payments.

The Ontario Labour Relations Board dismissed the costs claim, finding that Article 9.18 was designed for the specific purpose of addressing unpaid wages or trust fund contributions, not for grievances concerning the failure to use the union's hiring hall.

The Ontario Labour Relations Board considered whether the International Union of Bricklayers and Allied Craftworkers (IU) had just cause to revoke the charters of the Ontario Provincial Conference (OPC) and several affiliated local unions.

The dispute arose after the OPC negotiated the removal of the IU dues check-off clause from the provincial ICI collective agreements and returned collected dues to its members, as part of a broader push for Canadian autonomy.

The Board found that while the IU had cause to be concerned and to investigate, it did not have just cause to revoke the charters without affording the OPC and the locals a full opportunity to explain and defend their actions.

The Board concluded that the IU acted unreasonably and without just cause under sections 147 and 149 of the Labour Relations Act.

The individual employees filed an application alleging that the union announced false results for a ratification vote, claiming that 79 employees swore affidavits stating they voted against ratification, despite the union reporting only 39 votes against.

The union brought a motion to dismiss the application without hearing evidence, arguing that allowing post-vote evidence would undermine the secret ballot process mandated by the Labour Relations Act.

The Ontario Labour Relations Board dismissed the union's motion, deciding that given the unprecedented nature and seriousness of the fraud allegations, it would hear the employees' evidence before determining the legal and policy implications.

The Ironworkers and Millwrights filed a jurisdictional dispute regarding the assignment of work by the general contractor, E.S. Fox Limited, for the installation of fabricated material forming part of an integrated material handling system.

The Boilermakers claimed the work based on their collective agreement and constitution.

The Board found that the area practice in Board Area 1 favoured the Ironworkers and Millwrights, and that this practice was open and notorious.

The Board upheld the employer's assignment of the work to equal numbers of Ironworkers and Millwrights performing all work functions interchangeably.

A second jurisdictional dispute involving the Sheet Metal Workers and Boilermakers was scheduled for a later date.