Stephen Wahl

The Board was asked to determine whether the construction of the Baker Centre, a non-profit combined nursing home, retirement home, and day-care facility, fell within the industrial, commercial and institutional (ICI) sector or the residential sector of the construction industry.

After hearing extensive evidence on industry practice and the nature of the facility, the Board concluded that the project fell within the ICI sector.

The Board reasoned that the facility is an institution providing a socially beneficial service, with residents conducting daily activities in shared areas under the direction of a management firm, distinguishing it from typical residential construction.

The applicants sought relief under sections 1(4) and 63 of the Labour Relations Act, alleging that Hespeler Concrete Floors Ltd. and Puslinch Concrete Floors Limited were related employers or that a sale of business had occurred.

The respondents did not appear at the hearing and their principals evaded service of subpoenas.

The Board found that the two companies were carrying on associated or related activities under common control or direction, noting common management, interrelationship of operations, representation to the public as a single enterprise, and centralized control of labour relations.

The Board granted a declaration under section 1(4) binding Puslinch to the provincial collective agreement, but dismissed the section 63 application as there was no evidence of a sale of business.

In an application for certification, the Board had to determine whether membership evidence was filed on or before the terminal date.

The union representative deposited the documents at the Post Office on the terminal date, but after the last dispatch time, resulting in the envelope being date-stamped for the following day.

The Board ruled that depositing the envelope with the postal clerk, who numbered it and placed it in the vault, constituted mailing by registered mail on that date.

Therefore, the evidence was filed on time.

The applicant union filed a complaint alleging that the respondent Board of Education engaged in an unlawful lock-out when it laid off all four plumbers in the bargaining unit without explanation and sub-contracted their work.

The respondent moved for a non-suit, arguing there was no evidence of a lock-out or of a motive to compel or induce employees to refrain from exercising their rights.

The Board rejected the non-suit motion, finding that in the context of a disputed bargaining relationship, the unexplained lay-off was intended to send a message to the employees to change their union's bargaining position.

As the respondent elected not to call evidence, the Board drew an adverse inference and declared the lay-off an unlawful lock-out.

The applicant trade union applied for certification of a bargaining unit of construction labourers.

Following a previous Board decision determining the applicant was an affiliated bargaining agent, the applicant requested to amend its proposed bargaining unit to exclude the industrial, commercial and institutional (ICI) sector under section 144(3) of the Labour Relations Act.

The respondent employer and an intervener union opposed the amendment, arguing the applicant could not seek certification outside the ICI sector if it was barred within it.

The Board held that section 144(3) does not restrict the applicant from seeking a non-ICI unit, finding the amended unit appropriate.

The Board also declined the intervener's request to extend the terminal date, finding no prejudice or necessity, and authorized a Board Officer to inquire into the employee lists.

The complainants, members of the respondent union, alleged that the union violated section 69 of the Labour Relations Act by refusing to provide them with copies of hiring hall out-of-work lists and job referral records.

The union raised preliminary objections, arguing that a refusal of information cannot violate section 69, that the individual union officer should be struck as a respondent, that the Board should defer to internal union processes, and that the complaint lacked particulars.

The Board held that an arbitrary, discriminatory, or bad faith refusal to provide referral information can violate section 69.

The Board struck the individual officer from the style of cause, declined to defer to internal union processes, and ordered the complainants to file further particulars before the matter would be relisted for hearing.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that the respondent companies constituted one employer.

The respondents conceded the statutory prerequisites were met but argued the Board should exercise its discretion not to make the declaration.

The Board found that while the companies were under common control, the unionized company was largely inactive and there was no siphoning of work from the unionized enterprise to the non-union one.

Furthermore, the union did not represent any of the employees of the non-union company at the time the voluntary recognition agreement was signed.

The Board declined to exercise its discretion to make the declaration and dismissed the application.

The applicant union referred a grievance to the Ontario Labour Relations Board alleging that the respondent employer violated the provincial collective agreement by failing to employ union members for scaling work and by subcontracting the work to non-union employees.

The work was actually performed by laid-off employees of the project owner (LOC) at the owner's insistence, to satisfy its own union.

Applying the seven-fold criteria for determining an employer-employee relationship, the Board found that LOC, not the respondent, exercised direction and control and was the true employer of the individuals performing the work.

As the respondent did not employ the workers or subcontract the work, the grievance was dismissed.

The applicant union sought certification for two bricklayers employed by the respondent municipality.

The respondent argued it was not an employer in the construction industry and that the employees were maintenance workers covered by an existing collective agreement.

The Board found that the employees spent the majority of their time performing construction work, not maintenance.

The Board also held that the municipality, by undertaking construction work on its own behalf, operated a business in the construction industry.

The existing collective agreement was found not to cover construction work.

Certification was granted.

The complainant, the former Business Manager of Local 527, alleged that the respondents interfered with a local union election through intimidation and coercion, contrary to section 70 of the Labour Relations Act.

The complainant relied on a series of prior incidents, including alleged physical threats and irregularities during the ballot counting, to argue that the election results should be set aside.

The Ontario Labour Relations Board found that the Board's jurisdiction over internal union affairs is limited to actual threats of physical or economic harm.

The Board concluded that the evidence did not establish a pattern of conduct amounting to intimidation or coercion, and dismissed the complaint.

The applicant trade union applied for certification.

The respondent employer challenged the union's membership evidence, alleging that a union organizer engaged in improper conduct by offering to buy an employee's car, find a job for her boyfriend, and accepting a conditional payment of the membership fee.

The Board dismissed the employer's charges, finding that the organizer's conduct did not cross the bounds of acceptable salesmanship into coercion or fundamental misrepresentation, and that the conditional payment was not improper.

The Board consolidated the certification application with a related unfair labour practice complaint to hear evidence regarding a statement in opposition filed by objecting employees.

The applicant trade union applied for certification for a bargaining unit of plumbers and pipefitters employed by the respondent school board in the construction industry.

The respondent argued it was not an employer in the construction industry and that the work performed was maintenance, not construction.

The Board found that the respondent's program to replace obsolete radiators and thermostats constituted repair work, which falls within the definition of the construction industry under the Labour Relations Act.

The Board held that an employer whose principal business is not construction may still operate a business in the construction industry, and the applicant had sufficient membership support for certification.

The complainant union filed unfair labour practice complaints alleging that employees were laid off or discharged for union activity.

The respondent employer argued that it should not be required to proceed first with its evidence, asserting that the reverse onus provision in section 89(5) of the Labour Relations Act violates the presumption of innocence under section 11(d) of the Canadian Charter of Rights and Freedoms.

The Board rejected this argument, reaffirming its previous jurisprudence that section 89 is remedial and civil in nature, not penal or quasi-criminal.

The Board directed the respondent to proceed first with its evidence in accordance with normal practice.

The applicant union, a newly chartered local of the United Brotherhood of Carpenters and Joiners of America, applied for certification to represent construction labourers, cement finishers, and waterproof applicators.

The interveners challenged the applicant's jurisdiction to accept these workers into membership and argued the proposed bargaining units were inappropriate under section 144 of the Labour Relations Act.

The Board found that while the applicant had the authority to accept these workers into membership, it was an affiliated bargaining agent represented by the millwrights employee bargaining agency.

Consequently, the workers sought to be represented fell outside the province-wide bargaining regime and did not constitute an appropriate bargaining unit under section 144(1).

The applications for certification were dismissed.

The union grieved the employer's refusal to hire a union member referred through the hiring hall to work at nuclear generating stations.

The employer refused to hire the grievor because of his past criminal conviction for attempting to export arms and pending U.S. charges related to smuggling aliens, both allegedly connected to the Irish Republican Army.

The Board held that while the collective agreement did not give the employer an unbridled right to reject hiring hall referrals, the employer retained the right to reject persons it believed to be unreliable or a security risk, provided it acted reasonably, in good faith, and without discrimination.

Given the catastrophic risks associated with nuclear facilities, the employer's refusal to hire the grievor was reasonable.

The grievance was dismissed with respect to the nuclear sites.

The complainant union filed a section 89 complaint alleging the respondent employer failed to comply with a prior written settlement.

During the proceedings, the parties reached a new Memorandum of Settlement.

A third-party union attempted to intervene late to object to the settlement, but the Board rejected the intervention as the union had previously withdrawn its appearance.

The Board directed the respondent to comply with the new Minutes of Settlement.

The applicant sought a declaration that the respondent union was not entitled to represent the employees at the time a voluntary recognition agreement was entered into with the intervener employer.

The applicant conceded that the union had majority support but requested the Board exercise its discretion under section 60 of the Labour Relations Act to order a representation vote.

The Board declined to order a vote, finding no evidence to justify upsetting the settlement between the union and employer.

The Board also declined the union's request for an order confirming its representative status, noting this would inappropriately grant it certified status.

The application was dismissed.

The applicant union applied for certification for employees of Harwill Originals Limited.

The respondents argued that Harwill and Rosengarten Freedman Knitting Co. Ltd. should be treated as a single employer under section 1(4) of the Labour Relations Act.

The Board found that the two companies were under common control and direction and engaged in related activities.

To avoid undue fragmentation, the Board declared them a single employer and combined their employees into one bargaining unit.

Because the union had membership support of less than forty-five per cent in the combined unit, the application for certification was dismissed.

The applicant union sought a declaration that Davis Textiles purchased the business of Josh Industries, which was in receivership, under section 63 of the Labour Relations Act.

Davis Textiles had assumed the lease of Josh Industries' vacant plant, purchased some of its sewing machines from the receiver, and hired some of its former employees who applied for jobs.

The Board found that Davis Textiles did not purchase the raw materials, finished goods, trade marks, or licenses of Josh Industries, and did not take over its workforce as such.

The Board concluded that the transaction did not constitute the sale of a business and dismissed the application.

The applicant union referred two grievances to the Ontario Labour Relations Board under section 124 of the Labour Relations Act, alleging the respondent employer violated the collective agreement regarding emergency help, the hiring of first-year apprentices, and the lay-off of a job steward.

The Board dismissed the grievances relating to the emergency help and apprentices, finding that the union's telegram did not effectively end the emergency as it did not supply replacement workers, and that the employer was entitled to hire new first-year apprentices under the agreement.

However, the Board allowed the grievance regarding the job steward, finding that the employer violated the agreement by terminating the steward while there were still more than six men on the overall job site.

One Board member dissented on the dismissal of the first two issues.