Tom Small

The applicant employer brought a preliminary motion alleging a reasonable apprehension of bias, arguing that the unexplained resignation of an employer representative in another case suggested a lack of adjudicative independence at the Tribunal.

The majority of the Tribunal dismissed the motion, finding that the circumstances were too attenuated and remote to raise a reasonable apprehension of bias, and that the Tribunal's history demonstrated independent decision-making.

The dissenting member would have found a reasonable apprehension of bias based on the institutional setting and the lack of explanation for the member's resignation.

The complainant union alleged that the employer terminated six employees contrary to the Labour Relations Act after they engaged in union organizing.

The employer claimed the terminations were the result of a prior business decision to contract out the work.

The union argued that findings of fact from a prior dismissed unlawful lockout application were res judicata.

The Board held that the prior findings were not binding because they were not necessary to the ultimate dismissal of that application.

However, on the evidence, the Board found that the decision to contract out was crystallized only after the employer learned of the union activity, and was therefore motivated at least in part by anti-union animus.

The Board ordered the employees reinstated with compensation.