Annual Reports play a very important function in the administration and operation of administrative tribunals. In virtually all of Ontario's administrative tribunals the role and purpose of the Annual Report is as a public channel of communication between the tribunal and the government ministry responsible for its operation and ultimately the Legislature and the public. In circumstances where the tribunal or another party appointed by the Minister has the power to appoint adjudicators those adjudicators may be unknown to the Minister, the Legislature, litigants before the tribunal and the public but for the tribunal's reporting in its Annual Report to the minister. Another important role of the Annual Report is to clearly communicate to the public and stakeholders before the said tribunal the role and function of its staff. Persons acting as counsel for the tribunal ought to be clearly held out as such in these public documents. A lack of timeliness in the publication of these public documents can deprive litigants appearing before the subject tribunals of a fair and impartial hearing if they do not have the information at hand to challenge the very legal legitimacy of the panel adjudicating a matter. (see - Rachel Mendelson's article in TorStar June 16, 2014)
In 1981 the Ontario Labour Relations Board published its very first Annual Report. Here are some excerpts from that Annual Report. Note that the Registrar of the Board and the Board
Solicitor are held by separate persons and that the responsibilities attached to each are clearly articulated for litigants and the public to see and know.
ONTARIO LABOUR RELATIONS BOARD
ANNUAL REPORT 1980-81
ONTARIO LABOUR
RELATIONS BOARD
Chairman GEORGE W. ADAMS
Registrar D.K. AYNSLEY
Solicitor H ARRY FREEDMAN
TABLE OF CONTENTS
I
|
Message from the Chairman
Introduction
|
iii
1
|
II
|
A History of The Act
|
2
|
III
|
Board Organization
|
6
|
IV
|
The Board
|
7
|
v
|
Highlights
of Board Decisions
|
24
|
VI
|
Court Activity
|
31
|
VII
|
Case Load
|
35
|
VIII
|
Board Publications
|
43
|
IX
|
Staff and Budget
|
44
|
x
|
Statistical Tables
|
45
|
Appendix -Case Control Management
|
58
|
lll
MESSAGE of
THE CHAIR MAN
It gives me great pleasure to introduce the
Board's first ANNUAL REPORT. The publication provides an excellent overview of
the Board's activities during fiscal year 1980-81. It also contains a helpful summary of the
Board's structure and biographical sketches of members and vice-chairmen. I
congratulate our solicitors for the obvious effort required to assemble the
document - a responsibility that will now reside
with Solicitor's Office on an ongoing basis.
Fiscal year 1980-81 was marked by an ever
increasing caseload matched
by the increasing effectiveness of the Board's
labour relations officers in achieving settlements. Without their good offices
and the equally important good faith efforts of the parties, the Board would
require substantially more resources
to process the matters before
it with the same expedition. Moreover, the Board is committed to settlement activity
as the preferable method for resolving
labour relations conflict. On the other hand, fiscal year 1980-81 continued to
witness an unfolding of new and more extensive remedies
for unfair labour
practice violations evidencing the Board's dedication to a serious
enforcement of important statutory rights. Vice-Chairmen and Board Members provided
thoughtfully reasoned decisions in a number of important cases, the highlights
of which are reviewed in this report. In my opinion, their work over the
previous years demonstrates why this Board continues to be one of the most highly respected
administrative agencies in the country.
The year also saw the introduction of new internal
administrative arrangements aimed at
greater effectiveness in case monitoring and processing; a refinement
of the Board's waiver of hearing certification program; an expansion
of staff development programs; and the initiation of a number of co-operative activities with labour and management
groups. The Board and the Labour Law Subsection of the Ontario
Branch of the Canadian Bar Association jointly sponsored a lecture by John Fanning,
Chairman of the U.S. National Labour Relations Board, at the Subsection's meeting
held in December, 1980. I am also
very pleased with the success
of the cross-assignment program with labour and management involving our
labour relations officers. These exchanges have provided new insights and
awareness to the individual participants as well as to the participating
organizations. All signs point to a continuation of these activities. A related
exchange with the Conciliation and Mediation Branch of the Ministry of Labour
has proved equally successful.
On behalf of the Board I want
to thank all members of the staff for their vital
support over the past year and the labour/ management community
for its continuing co-operation.
George W. Adams, Chairman
I INTRODUCTION
This is the first time, since its inception that
the Ontario Labour Relations Board has published its own Annual Report. In
previous years, the only review of the Board's
activities has been by way of a brief note in the Ontario Ministry of
Labour Annual Report.
In view of
the ever-expanding role played by the Board and its increasing work-load, there
is a need for more substantial information on its yearly progress. This Annual Report is intended to fill such a need.
The first volume
covers the fiscal
year April I, 1980 to March 31, 1981.
The main purposes of the Board's Annual
Report are: to provide a statistical summary
of the work-load carried by the Board during the year; to highlight some
of the more important decisions of the Board; and to provide a brief report of
court activity involving Board proceedings or Board orders. The Report will
also contain up-to-date information on the organization of the Board, its
personnel, and administrative developments that may be of interest to the public.
Since this is the first Board Annual
Report, it contains a brief account of the history
and development of The Labour Relations Act, as it affected the development of the Ontario
Labour Relations Board.
II A HISTORY OF THE ACT
In 1943,
the Ontario Legislature engaged in one of the first attempts in Canada to
institute an effective scheme of compulsory collective bargaining. The Collective Bargaining Act, 1943, S.O. 1943, c. 4 came
about asa result of public hearings
before a select
committee of the Provincial Legislative Assembly. Although
the establishment of a "Labour Court" was not strenuously lobbied for by any of the
interest groups which made submissions to the Select Committee, it was this option which the Select
Committee saw fit
to endorse. The Committee's
report, in the form of a draft bill, was submitted to the Legislature on March
25th, 1943, and when enacted on April 14th, 1943, legitimized collective
bargaining in Ontario under the Ontario Labour
Court, which was a division of
the Supreme Court of Ontario.
The Act of 1943 abolished
the common law doctrines of conspiracy and restraint of trade
as they had applied to trade unions,
and gave employees a right to participate in union activity. A union was permitted to apply
for certification as the bargaining agent for a group of employees. The Court had power to ascertain the appropriate unit for the purpose of collective
bargaining. It has been
pointed out that:
". . .the shape
and structure of the collective bargaining system was
to be determined by a court
which was expected
to develop policies that would promote orderly collective bargaining. Itwas recognized that the scheme of the Act involved
both administrative andjudicial functions. The Court was also empowered to delegate its
non-judicial responsibilities so that it could
develop an administrative infra-structure to support
its 'judicial' role." (MacDowell, R.O., "Law and Practice before
the Ontario Labour Relations Board, (1978), I Advocate's Quarterly 198 at 200.
The Act
contained several features which are standard in labour relations legislation
today - management dominated organizations could
not be certified; managerial employees were excluded from the Act; employers
could not discriminate against employees for participation in union activity;
employers were required to recognize a certified bargaining agent; and there
was a duty to bargain in good faith. The Labour Court had broad remedial powers
- something which the Ontario Labour Relations Board
would not have for many years. The Labour Court was the only forum for
resolution of disputes arising under a collective agreement. This function was
to be performed without cost to the parties. Itis now performed by private boards of arbitration,
and, when the disputes arise in the construction industry, by the Labour Relations Board.
The
Ontario Labour Court was to have a short lifespan (it opened in June, 1943, and
heard its last case in April, 1944).
In his book, The Ontario Labour
Court 1943 - 1944, (Queen's University Industrial
Relations Centre, Kingston, 1979), John A. Willes gives the following reasons
for the Court's early demise:-
". . .the trade unions
were complaining about the high cost of proceedings
before the Court, the Judges were not eager to deal with labour matters under
the Act, and most important, the Conservative party, that had promised to
repeal the legislation if elected, formed the government in Ontario in the
Spring of 1944."
The immediate circumstances which
brought about the demise of the Labour Court (and hence the formation of a
Board) was a wartime move by the Federa!Government to centralize labour
relations law. Owing to the division of powers between the Dominion and
Provincial Governments, control over labour relations in Canada is shared
between the two levels of government depending on whether the undertaking falls
under Federal or Provincial jurisdiction. In 1907, the Federal
Government attempted to bring labour disputes in public utilities and coal
mines under Federal control by means
of The Industrial Disputes Investigation Act. Disputes in
other industries were often brought voluntarily within the provisions of the
Act. In 1925 this Act was held by the Privy Council to be ultra vires the Dominion Parliament because it infringed on the
Provincial power over "property and civil rights." (
Toronto Electric Commissioners
v. Snider, [1925] A.C. 396; [1925] 2 D.L.R. 5)
The Act was subsequently narrowed so as to encompass only those industries within the Federal
jurisdiction. This left labour relations largely in the hands of the Provincial
legislatures, although by virtue of a clause in the Federal Act, Provinces
could, in effect, "opt in" to the Federal
system (all the Provinces except
Prince Edward Island
exercised this option for a time). However, given the
constitutional situation in Canada, decentralization oflabour policy was
inevitable and the Ontario regime was representative of this decentralization.
However, the fact that Canada was at war allowed the Federal Government to rely
on its emergency power to pass Order
in Council P.C. 1003. This Order adopted the general principles of the American
Wagner Act, and called for an independent
regulatory authority. The Ontario Labour Court was replaced by the Ontario
Labour Relations Board, pursuant to The
Labour Relations Board Act, 1944, S.O. 1944, c. 29, which was subject to
the federal Wartime Labour Relations Board. The chairman of the fledgling
Ontario Board was Jacob Finkleman, who
had been the registrar of the
Labour Court.
In 1947,
the Ontario Labour Relations Board became independent of the Federal Government
by virtue of The Labour Relations Board
Act, 1947, S.O. 1947, c. 54. The next year, The Labour Relations Act, 1948, S.O.
1948, c.51, was passed. The 1948 Act,
which was enacted in anticipation of new Federal legislation, repealed
the earlier Labour Relations Acts and
empowered the Lieutenant-Governor in Council to make regulations "in the
same form and to the same effect
as that . . . Act which may
be passed by the Parliament of Canada at the
session currently in progress.
..."This Act was basically transitional in nature, since work was already under way on the drafting of
separate Provincial legislation, which made its first appearance in The
Labour Relations Act, 1950, S.O. 1950, c. 34.
The major
function of the Board was, and still remains, certifying trade unions as
bargaining agents. The history of the Board is largely a history of the
acquisition of new powers and functions, asnew ways of dealing
with the problems
inherent in industrial relations developed. Initially, however, the Board's role was
fairly limited. There was no enforcement mechanism at the Board's disposal in
1950. The major enforcement method was prosecution, in which case the Board had to grant consent to prosecute. The Board had the power
to declare a strike or
lockout unlawful, but this in itself
fell short of being a very
complete remedy. In a situation where an individual had been refused
employment, discharged, discriminated against, threatened, coerced, or
otherwise dealt with contrary to the Act, the appropriate remedy lay in an inquiry by a conciliation officer who then
reported to the Minister who in turn could make
an appropriate order.
Thus, outside
of granting certifications and decertifications,
the Board's power was quite limited. The power to make certain
declarations, determinations, or to grant consent to prosecute under the Act
was remedial only in a limited way. Of some significance during the fifties was the Board's
acquisition of the power to grant a trade union "successor" status.
( The Labour Relations Amendment Act, 1956,
S.O. 1956,
c. 35). In 1962, the complementary section providing for the preservation
of bargaining rights in the case of "successor
employers" was passed and was later expanded
so as to preserve existing collective agreements. ( The Labour
Relations Amendment Act, 1961-62, S.O. 1961-62, c. 48; The Labour Relations
Amendment Act, 1970, S.O. 1970, c. 85.)
The Labour Relations Amendment Act, 1960, S.O. 1960, c. 54, made a number of changes in the
Board's role. Most importantly, the Board received the authority to order
reinstatement with or without compensation. In conjunction with this new power
was the power to designate a field officer to investigate complaints. The
Board's reinstatement and compensation orders could be filed in the Supreme
Court of Ontario and were enforceable as
orders of that Court. The Board also received the power to refer jurisdictional
disputes to a new jurisdictional disputes commission which had the power to
make interim orders or directions. The Board was given limited power to review
the directions. As with the Board's reinstatement and compensation orders, the
interim orders could be filed with the Supreme Court and thus become
enforceable as orders of that
Court. The Board also received the power to set a
terminal date for the filing of membership evidence and evidence opposing
certification, and the discretion to refuse to "carve out" a craft
unit where there
was a history of industrial
organization in a plant. In 1960 provision was also made for pre-hearing repre
sentation votes.
In 1962, The Labour Relations
Amendment Act, 1961-62, added new provisions to the Act in order to respond to
unique problems which were evident in the construction industry. This industry
was given a separate but somewhat similar regime under the Act in response to
recommendations made in the "Goldenberg Report" ("Report of The Royal Commission on Labour Management
Relations in the Construction Industry," March, 1962). Provision was
made for determination of bargaining units by reference to geographic areas
rather than particular projects. The Board, in consultation with interested
parties, divided the province geographically for the purpose of certification
in the construction industry. Labour policy with regard to the construction
industry has continued to evolve. Legislation was introduced in 1977 to provide
for province-wide bargaining in the industrial, commercial, and institutional
sector of that industry in response to the recommendations contained in the "Franks Report" ("Report of the Industrial Inquiry Commission into Bargaining Patterns
in the Construction Industry
in Ontario,"May, 1976).
( The Labour Relations
Amendment Act, 1977, S.O. 1977, c. 31.) Further amendments were made to the Act in relation to the construe·
tion industry in 1979 and 1980. The Labour Relations Amendment Act, 1979 (No. 2), S.O.
1979, c. 113, and The Labour Relations
Amendment Act, 1980,
S.O. 1980,c. 31, extended the bargaining rights held by trade
unions in the construction industry for any particular employer in relation to
the industrial, commercial and institutional sector of the industry; prohibited
selective strikes and lock-outs; and provided for an expeditious ·ratification procedure. ·
In 1970, by virtue of The Labour Relations Amendment Act, 1970, the Board received
a significant extension to its remedial authority. Provision was made
for authorization of a Labour Relations Officer
to inquire into certain complaints with a view to settling
the matters. The most interesting
addition to the situations in which the Board could make remedial
orders was in the case of a breach
of the newly created "duty of
fair representation." This duty, imposed on trade unions, required them
not to act in a manner which was arbitrary, discriminatory, or in bad faith in
their representation of employees for whom they hold bargaining rights. More
recently, this duty has been extended to cover referral of persons to work. The
Board also received the power to make "cease
and desist" orders with respect to unlawful strikes and lock-outs
in the construction industry, which would be filed with the Supreme Court and
enforceable as orders of the Court.
A major increase
in the Board's remedial powers under The
Labour Relations Act occurred in 1975. ( The Labour Relations
Amendment Act, 1975, S.O. 1975, c. 76). The Board was permitted to authorize
a Labour Relations
Officer to inquire
into any complaint alleging a violation
of The Labour Relations Act. A
settlement reached by the parties and put into writing was binding on the
parties, and a breach of such settlement could be dealt with in the same
fashion as a breach of a provision of the Act.
The Board's remedial powers were extended to all violations of the Act, and orders
of the Board were enforceable in the same way that an
order of the Supreme Court is enforceable. The Board also received authority to
make "cease and desist" orders
with respect to any unlawful
strike or lock-out. Itwas in 1975 as well, that the
Board'sjurisdiction was extended
through section I 12a, to enable it to determine grievances in the
construction industry referred to it by
one of the parties to a collective agreement.
In June
of 1980, The Labour Relations Amendment
Act, 1980 (No. 2), S.O. 1980, c. 34, was passed providing for compulsory
check-off of union dues and the
entitlement of all employees in the bargaining unit to participate in
ratification and strike votes. Provision was also made for the Minister of Labour to direct a vote of the employees in the bargaining unit on their
employer's final offer at the request of their
employer.
IV THE BOARD
The legislative policy regarding labour relations
in the Province of Ontario is set out in the preamble to The
Labour Relations Act as follows:
". . .it is in the public interest
of the Province of Ontario to further harmonious relations between employers
and employees by encouraging
the practice and proced ure of collective bargaining between employers and
trade unions as the freely designated representatives of employees."
With this
policy as a basis, the Act confers on the Ontario Labour Relations Board the
authority over many important aspects of collective bargaining such as unfair
labour practices, unlawful strikes and lock-outs and jurisdictional disputes.
In order to carry out this mandate
the Board is composed of a Chairman and an Alternate Chairman, several Vice
Chairmen and a number of Members representative oflabour and management respectively in equal
numbers. These appointments are made by the Lieutenant-Governor in Council.
Created
by statute, the Ontario Labour Relations Board is best described as a quasi
judicial body, combining as it does, administrative andjudicial functions. The Board attempts to avoid being overly
technical or legalistic in making its determinations and relies heavily
on the efforts of its Labour Relations Officers in encouraging
settlements without the need for formal hearings. The Board strives to keep its procedures informal, expeditious and fair.
The Board,
under section 95(1) of The Labour
Relations Act, R.S.O. 1970, c. 232,
has the exclusive
jurisdiction to exercise the powers conferred upon it by or under the Act and
to determine all questions of fact or law that arise during any hearing before
it. The Board's decisions are not appealable and a privative clause in the
statute limits the scope for judicial review.
However, the Board has
the power to reconsider any of its decisions, either
on its own initiative or at the request of an
affected party.
The Board has the power to determine
its·own practices and procedures. The publication
entitled Rules of Procedure, Regulations
and Practice Notes (Queen's Printer, Ontario) contains the established
regulations, procedures and practices of
the Board.
The Ontario Labour
Relations Board has a somewhat limited role to play with respect to much of the collective bargaining viewed as
falling within the public sector. For
example, the Board does not have jurisdiction over crown employees, policemen
or firemen, and has only a limited
jurisdiction with respect to teachers in the schools and community colleges in the province. See, The School Boards and Teachers Collective Negotiations Act, S.O. 1975,.c. 72 and The Colleges Collective
Bargaining Act, S.O. 1975, c. 74. On the other hand, the Board has full jurisdiction over employees employed
by municipalities and hospitals: The Board is also given
an important role under The Occupational Health and Safety Act,
1978, S.O. 1978, c. 83.
Apart from its adjudicative function, the Board's
operations may be broadly divided
into the following sections: (a) Administrative Division, (b) Field
Services and (c) Office of the Solicitor.
(a) ADMINISTRATIVE DIVISION
The Registrar and Chief Administrative Officer is the senior administrative official of the Board. He is responsible for supervising the day-to-day administrative and field operations of the Board. Every application received
by the Board enters the system through the Registrar's office. He determines
the hearing dates, assures the effective and speedy processing of each case and communicates with the parties
in all matters
relating to the
scheduling of hearings,
the holding of votes or particular
problems in the processing of any
given case.
The
Ontario Labour Relations Board is faced with a substantially increasing
caseload, constraints on its access to public funds,
and the continuing demands of the parties
appearing before it for quick justice. Faced with these conflicting
pressures, the ability of the Board to efficiently manage its caseload,
within the resource parameters set for it, underpins much of its contribution to labour relations harmony in this province.
The Chief, Programme Development and the Senior
Labour Relations Officer report directly to the
Registrar and Chief
Admin.istrative Officer. The former manages
the day-to-day administrative
operation and the latter the field services. An Administrative Committee
comprised of the Chairman, Alternate Chairman, Registrar and Chief Administrative Officer, Chief, Programme Development, Senior Labour Relations
Officer and Office
Manager meets monthly to
discuss all aspects of Board administration and
management.
The administrative areas of the Board,
include: office management, case monitoring, and library.
1.
Office Management
An
administrative support staff of approximately 63 people, headed by an Office
Manager who reports to the Chief, Programme Development, and a senior clerical
supervisor, processes all the applications received by the Board.
Four primary
sections deal with applications:
(1)
The
certification section handles all applications for certification,
termination and accreditation.
(2)
The sundry
section processes all other applications including unfair labour
practice complaints, grievances in the construction industry and illegal strike
and lock-out proceedings.
(3)
The vote
section deals with all representation votes.
(4)
The clerks section reviews
evidence in support of, or opposition to,
trade unions filed with the Board in certification and termination applications
and prepares the material necessary for the Board to conduct hearings and when
necessary, attends hearings to assist
the Board.
The clerks section reviews
evidence in support of, or opposition to,
trade unions filed with the Board in certification and termination applications
and prepares the material necessary for the Board to conduct hearings and when
necessary, attends hearings to assist
the Board.
The bulk
of the Board's caseload is made up of applications for certification, unfair
labour practice complaints and referrals to arbitration of construction
industry grievances. In this fiscal year the Board received a total of 2,836
applications and complaints.
The Registrar's office is responsible
for setting hearing dates for all cases and maintaining and up-to-date
availability roster of all Vice-Chairmen and Board Members for scheduling
purposes. To assist the Registrar with
these duties the Board has recently created the position of Registrar' s Clerical Assistant.
2.
Case Monitoring
Because
delay in case handling directly affects the Board's objective of disposing of
all cases as quickly and efficiently as possible, a case monitoring and control
system was developed in fiscal year 1980-81. The control system was initiated
after studying a representative period and assessing how long the average
case should take at each stage of its processing, from application to disposition. Control
dates have been established at each stage of processing for different types
of cases:
By
monitoring cases on a day-to-day basis, the Board is able to pinpoint problems
and delays and address them quickly. The monitoring system and its reports
provide vital statis tical information to senior management that is used as a basis for recommendations regarding improvements or changes in Board practices
and procedures which can lead to increased pro ductivity and better service to the community.
3.
The Library
The
Ontario Labour Relations Board library employs a full-time professional
librarian and a library
technician to manage
a collection of approximately 750 texts, 150 journals and 25 case reports
in areas of industrial relations, labour, contract, evidence, constitutional
and administrative law. The collection includes decisions from other
jurisdictions, including the Canada Labour Relations Board, the National Labour
Relations Board and provincial labour boards
from across Canada.
The library staff provides research services for
Board staff and assists the library users.
A card index to the Board's monthly Decision Report
provides easy access to reported decisions by case name, subject, statute, file
number and cases considered.
(b) FIELD SERVICES
The Board believes that the objects
of the Act are best served if labour relations disputes are resolved on the basis of mutual
accommodation between the parties. Towards
this end, the Board provides settlement assistance
to the parties in most matters brought before it. Seventeen highly skilled
Labour relations Officers, under the direction of a Senior Labour Relations
Officer, provide this service. Five of the most experienced officers have been
appointed group leaders in order to assist the Senior Labour Relations Officer
with the administration of this section.
1,490 case assignments were made to
Labour Relations Officers in fiscal year 1980-81. The assignment load increased
by some 321 cases in fiscal 1980-81 over fiscal 1979-80. The complement of
officers remained unchanged
over the year.
The assignments made to Labour Relations Officers fall into four broad categories:
1.
Certification
The Board
holds to the view that the less confrontation and formal disagreement
occasioned by an application for certification, the better the atmosphere for the negotiation of the first agreement. In keeping with this view, the Board has moved to make greater use of its settlement officers in certification proceedings.
(i)
Waiver of Hearing
The Board instituted a waiver of
hearing proced ure in respect of certification applications in fiscal year
1980-81. Under this pro cedure a Labour Relations Officer is
assigned responsibility for reviewing the filings in each application and,
in conjunction with the Senior Labour Relations Officer, making
an assessment as to which cases appear
to be
uncontested. Where the parties appear to be in agreement, or
close to it, with respect to the description of the bargaining unit, and
where there are no
discrepancies with respect to the documentary evidence filed
with the application, the Labour Relations Officer contacts
the parties to ascertain if it is necessary to hold a formal hearing.
In those cases where the parties agree to waive a hearing, the application is
disposed of on the basis of the materials and evidence filed with the
application. In fiscal year 1980-81 the parties were contacted in 269 . cases and given the opportunity to waive a
formal hearing. In 205 cases, or 76% of the cases considered to be
appropriate for waiver,
no formal hearing was required.
(ii)
Hearing
Day Activity
The Board hears all certification applications on the same
day of the week so as to facilitate its settlement efforts. A team of
Labour Relations Officers, under the direction of the Senior Labour Relations
Officer and a group leader, are assigned to certifications each week. These
officers are briefed as to the contentious issues in the 20 to 25 certification
applications scheduled to be heard by the Board each week and assigned
individual cases. They attempt to resolve disputes related to the identity of
the employer, the description and composition of the bargaining unit, and the number
of employees within the bargaining unit. 182 of the 292 cases assigned to
officers on the day of the hearing in fiscal
year 1980-81 were disposed of on
the basis of agreements between the parties.
(iii)
Examinations:
In those
certification cases where the parties are unable to identify the employer, or
to agree on the scope or composition of the bargaining unit, or on the number
of employees coming within the bargaining unit, a Labour Relations Officer is usually
appointed to meet with the parties subsequent to the hearing day and
inquire into the matters in dispute. The inquiry takes the form of a hearing
chaired by the Labour Relations Officer. The Officer calls and examines
witnesses who have knowledge of the matters in dispute. The parties are given
the opportunity to cross-examine the Board's witnesses and to call their own,
if they wish. The evidence is transcribed on tape and a record compiled for use
by the Board in making its determination. 247 examination assignments were made to Labour Relations
Officers in fiscal
year 1980-81. 94 reports
were submitted to the Board. In the remaining 153 cases the issues in
dispute were settled with the assistance of the officer during the course of
the inquiry so that a formal report was
not required.
2. Unfair Labour Practices:
Each
unfair labour practice complaint filed with the Board is scheduled for hearing
within 28 days of the date of filing and assigned to a Labour Relations
Officer. The Labour Relations Officer is responsible for assisting the parties to resolve the dispute and in so doing
works to the time limit established by the fixed hearing date. 736 unfair
labour practice assignments were made to Labour Relations Officers in fiscal
year 1980-81, up 139 assign ments over the previous year. The Board's officers
provide settlement assistance in a wide range of unfair labour practice
complaints including:
alleged discriminatory treatment
(including discharge from
employ ment) for union activity.
alleged bargaining in bad faith. alleged unlawful strikes and lock-outs. alleged breaches of the duty of fair representation.
With the Board moving to more
complex and far-reaching remedies in unfair labour practice cases, the role of
the Labour Relations Officer has been expanded to include a post-hearing . involvement. For the first time
Labour Relations Officers were assigned to assist the parties with the
implementation of Board remedial orders in fiscal year 1980-81.
The effectiveness of the Board's
officers is attested to by the fact that 80% of the unfair labour practice
complaints filed with the Board in 1980-81 were resolved between the parties
without the need
for a formal hearing.
3.
Construction Industry Grievances:
The Act
was amended in 1975 to provide that either party to a construction industry
collective agreement could refer a griiwance concerning the interpretation,
application, administration, or alleged violation of the agreement to the Board
for final and binding determination. The number of such grievances referred to
the Board has grown steadily and reached 507 in fiscal year 1980-81. A Labour
Relations Officer is assigned to meet with the parties in each of these cases
and attempts to mediate a settlement to the dispute. 90% of the construction industry
grievances disposed of by the Board in 1980-81 were resolved, with the
assistance of an Officer, without the need for a formal hearing.
Approximately
80% of the matters coming before the Board this year were disposed of with the
assistance of a Labour Relations Officer and without the need for a hearing. In
response to a case load growing in both volume and complexity, the Board's
field staff provided the basis for the overall level of performance of the
Board in fiscal year 1980-81. More importantly, during this period the Board's
field staff made a marked contribution to sound and harmonious labour relations within the province.
(c) OFFICE OF
THE SOLICITOR
The Office
of the Solicitor, under the direction of the Senior Solicitor of the Board,
reports directly to the Chairman. A solicitor assists the Senior Solicitor in
carrying out the functions of this office. In addition, each year the Board employs
several articling law students
to assist in the solicitors' work.
The Office of the Solicitor is
responsible for providing the legal assistance required by the Board in all
facets of its operations. The solicitors engage in legal research and provide
legal advice to the Chairman, Vice-Chairmen and Board Members in their
day-to-day functions. They
provide legal opinions to the Board
and prepare memoranda
relating to the wide variety of legal issues that arise during Board
proceedings. The Office
of the Solicitor is responsible
for preparing all of the Board's legal
forms and other
legal documents required for use
by the Board. Board proced ures,
practices and policies
are constantly reviewed by the Office of the Solicitor. When preparation or
revision of practice notes, Board Rules or forms become necessary, the
Office of the
Solicitor is responsible
for undertaking those tasks.
The Senior
Solicitor is active in the staff development programme of the Board and the
solicitors regularly meet with the Board's field staff to keep them advised of legislative, Board and judicial developments that may
affect their day-to-day work. The solicitors are available for consultation by these officers on legal issues
that may arise in the course of their work. At
regularly scheduled field staff meetings, the solicitors prepare written
material for distribu tion and discussion among the field staff relating to
recent decisions of the Board or other tribunals which may affect the discharge
of their duties. The Senior Solicitor also advises the Board Librarian on the legal research material
requirements of the Board and on the library's general acquisition policy.
Another function of the Office
of the Solicitor is the representation of the Board's
interest in court, when matters involving Board proceedings or Board
orders become the subject of proceedings in court,
as when an application forjudicial review of a Board order is filed or an application is made by way of stated
case to the Divisional Court. Where outside counsel is retained to represent the Board, the Senior
Solicitor in consultation with the Chairman, briefs and instructs such counsel on the Board's
position in relation to the issues
raised by thejudicial proceedings. The Office of the Solicitor is also responsible for the preparation and compilation of
documents that the Board may be required to file with the court in relation to
such pro ceedings.
The
Office of the Solicitor maintains an information service through which any
person may obtain, by telephone, general information relating to The Labour Relations Act, the
Regulations, procedures and practices of the Board, and other related
legislation. It is also possible for a member of the public to obtain such
information at a personal interview with a member of the Board's legal staff.
The solicitors also receive and respond to written inquiries coming from
the public.
The Office of the Solicitor is
responsible for the publication of the Ontario Labour Relations Board
Report, a monthly series of selected Board decisions which commenced
in I 944. The Senior Solicitor is Editor of this publication. That
office also produces a publication titled "A Guide to the Ontario Labour
Relations Act", which is an explanation in laymen's terms, of the major
provisions of the Act. The solicitors of the Board are responsible for the
periodic revision of this publication. Commencing with this first issue, the
Office of the Solicitor has also undertaken the responsibility for the
preparation of the Board's Annual
Report.
V HIGHLIGHTS OF BOARD DECISIONS
Union Breached Duty of Fair
Representation in Seeking Dismissal of Grievor
A union
official gathered a petition addressed to the employer threatening an unlawful
strike if the grievor, who was suspected
of having leaked
certain·information to the press, was not dismissed. Other union officials
signed the petition. The employer terminated the employment of the grievor.
The trade union,
at the request of the
grievor processed a grievance
against the dismissaL The grievance was dismissed by a board of arbitration.
The grievor's request to apply forjudicial
review was denied
by the union. The grievor
alleged that the union
had contravened section 60 of The Labour
Relations Act. The Board held that although the refusal to apply forjudicial review
did not constitute failure
to represent fairly,
the conduct of the union
officials in seeking the grievor's dismissal did. The Board held that the
officials' conduct could not be justified on the basis of a need
"to go along with the crowd." The Board further held that the subsequent taking of the grievance against
dismissal to arbitration did not cure the
unlawful conduct. ( Toronto East General
and Orthopaedic Hospital Inc., [1980 OLRB Rep. Apr. 555).
Relocation of Company Tainted
by Anti-Union Motive
- Extensive Remedies Ordered The employer had decided to relocate its plant in Hamilton to several other
locations.
The union
filed an unfair labour practice complaint alleging anti-union motive. In
addition, the union claimed that the failure of the
employer during negotiations to disclose to the union its decision to relocate, was bad
faith bargaining and that the displacement of employees was an unlawful
lock-out. The Board found that at the time bargaining was carried out, the decision to relocate had not been
finalized and that therefore the employer was not obliged to disclose these
tentative plans on its own initiative. The complaint as it related to bad faith
bargaining failed. The Board held that the facts did not meet the definition of
"lock-out" in the Act and consequently that part of the complaint was
dismissed as we!L However, the Board held that the decision to relocate
constituted an unfair
labour practice in that the decision was tainted by anti-union motive. The Board's remedial
order included directing the employer: to offer employees their
former jobs at the new locations and to pay their relocation expenses; that the union
be given access
to the employees at the new locations
for purposes of organization; and that the union be reimbursed for its organization costs. ( Westinghouse Canada Ltd., [1980] OLRB
Rep. Apr. 577).
Refusal
to do Unsafe Work - Extent of the Right Discussed
The complainants refused to do certain work involving the use of an anode
furnace which they thought
was unsafe. The employer investigated and concluded that the work was safe.
They still refused to work and a safety inspector was called. The inspector
admitted to the complainants that he had no personal
experience in anode furnaces, which formed the subject
of the dispute. He further admitted that he was relying on the expertise of the
company officials to whom he had spoken. The inspector concluded that the work was safe and ordered as a precaution that two
employees, rather than one, be present when the furnace was being used. The complainants
continued to refuse to work and consequently the company sent them
home without pay and placed disciplinary letters in their records. They
complained to the Board that they were disciplined because they exercised the right to refuse unsafe
work under The Employees Health
and Safety Act, 1976 (since repealed
and replaced by The Occupational
Health and Safety Act, 1978).
The Board had to decide whether there
was a proper exercise of the
right to refuse work by the employees in question. The employer argued
that the complainants did
not have "reasonable grounds to believe" that their workplace was
unsafe; that they were not entitled
to the protection of the Act since
they acted as a group,
and engaged in a form of an illegal strike; and that the
complainants should have testified to establish that each of them believed that
the work was unsafe. The Board held that the issue was not whether the work in fact was unsafe, but whether the complainants had reasonable
cause to believe that it was
unsafe. The Board held that "reasonable cause
to believe" should
be interpreted objective ly, so that the issue is not whether an employee in fact
believed, but whether
the circumstances were such as to cause a reasonable person with equal
training and experience to believe that the
work was unsafe. The Board held that even after the inspector's order that the
work was safe, an employee
may continue to have reasonable cause to believe
otherwise and may continue to refuse to work. The Board cautioned
though that at that stage there would have to be special circumstances which would create "reasonable cause" such as in this case where the inspector had admitted to the complainants
that he was inexperienced and was relying on the expertise of company
officials. The Board held that even though
the complainants had acted as a group, each of them had reasonable
cause to believe that the work was unsafe and were entitled
to the protection of the Act.
The Board concluded that the employer contravened the Act in imposing discipline on the employees. ( Inca
Metals Co. [1980] OLRB Rep. July 981).
Board
Policy on Deferment
to Arbitration and
Unfair Labour Practice Postings
The trade union complained that the grievor,
a union steward,
had been dismissed by the · employer, because of
her holding _ that union office. The employer argued
that since the dismissal was grievable under the collective agreement the Board
should defer to arbitration. The Board held that notwithstanding her
probationary status, the grievor had statutory rights which had been
contravened by the employer. Reviewing the Board policy as to deferment to
arbitration, the Board stated that in view of the fact that there is some
question about the grievor's right of access to the arbitration process because
of her probationary status and in view of the different onus of proof and remedies
available before arbitration boards and the Labour Relations Board, there
should be no deferment to arbitration. The Board proceeded to find a violation
of the Act by the employer and made remedial orders including reinstatement and
compensation and the posting of a Board notice. The decision also reviewed the
rationale for unfair labour practice postings, and indicated that they should
usually form part of every Board remedial order ( Valdi Inc., [1980] OLRB Rep. Aug. 1254).
Board Has Jurisdiction Over
Employees of "Non-Status" Indian Association
The union applied for certification with respect to
employees of a "non-status" Indian Association, which was a private
social service organization providing social and economic assistance to persons
of native ancestry, who were not recognized as "Indians" under the Indian Act. The employer argued that the Board did not have the constitutional jurisdiction to
entertain the application because many of the association's members,
employees, and clientele were Indians. It was argued that as a result, the association's labour
relations are within
federal jurisdiction. The Board held that Metis people
were not Indians
under the Indian Act and that even if they were, provincial
labour legislation of general application did not intrude on their Indian character, status and
identity. Further, the Board held that constitutional jurisdiction over labour
relations is determined not by the status of an employer's principals, employees or customers but by the character, operations or functions of the
enterprise. The employer's operations were in no way connected with Indian
reserves and lands or the exercise of rights or responsibilities under the Indian Act. The
Board held that it had
jurisdiction and proceeded to grant certification. (Ontario Metis and Non-Status Indian
Association, [1980) OLRB Rep. Sept. 1304).
Individuals Cannot
Apply for Determination of
Employee Status
In this case, the Board held that section 95(2) of
the Act was only intended to resolve issues between bargaining parties. Itwas not intended to provide a forum in which employees could question their status
when that was not in issue between the employer and their trade union. The
"question" referred to in section 95(2) must be one arising between
bargaining parties during negotiations or during the term of a collective agreement. (Central Park Lodges of Canada, [1980) OLRB Rep. Oct. 1373).
Contracting Out Not Tainted by Anti-Union Motive
The
trade union complained of unfair labour practices arising out of the employer's decision to contract out its
janitorial work, which resulted in the lay-off of its employees. The Board
found that there was no contravention of The Labour
Relations Act since the decision to contract out was
free of anti-union motive and was solely motivated by a desire to increase
profitability. The Board further found that the employer had no obligation to
disclose at the bargaining table, since at the time no concrete intention or
plan to contract out existed. The complaint
was dismissed. ( Kennedy Lodge
Nursing Home, [1980) OLRB Rep.
Oct. 1454).·
The Test of Who is "The Employer"
This case involved a determination by
the Board as to which of three entities was the employer for the purposes of a
certification application. The Sutton Place complex was ajoint venture of a
partnership between two corporations. Sutton Place Hotel, Sutton Place, and
Dennis Management Co. were all divisions of the partnership. No single
corporate or business entity operated the complex, which included three
distinct areas, i.e. hotel, apartment, and commercial. The work performed by
the employees in question benefitted all three areas, since the mechanical
systems they serviced were common to all three areas. The employees believed,
on reasonable grounds, that their employer was Sutton Place Hotel. Dennis
Management was responsible for their day to day supervision, hiring, firing and
discipline and the determination and payment of wages, and benefits. There was
a charge-back system whereby Dennis Management charged Sutton Place and Sutton
Place Hotel for labour
and management services. The
Board. concluded that Dennis Management was the employer on the basis that it
had "fundamental control"
over the employees. The Board stated that where several entities share the responsibilities among them none of
the criteria in the tests normally used
by the Board to ascertain the
employer are determinative. In such arrangements, the entity having
"fundamental control" must be ascertained in the context of the situation
as a whole. ( Sutton Place Hotel,
[1980) OLRB Rep. Oct. 1538).
Union Acted Arbitrarily in Seeking Demotion of Grievor
The trade union forced the employer to demote the complainant by threatening to engage
in unlawful strikes if the employer failed to do so. The demoted employee
complained to the Board that
the union contravened its duty to represent him fairly. The Board agreed with
the complainant, holding that the trade union's treatment of the grievor was
arbitrary. ( Toronto Hydro Electric
System, [1980) OLRB Rep. Oct. 1561).
Union's Refusal to Sign
Agreement After Last Offer Vote Accepting Employer's Offer -Bad Faith Bargaining
Recent
amendments to The Labour Relations Act permit
an employer to request the Minister of Labour to direct a vote among employees
in a bargaining unit to accept or reject the
employer's last offer on the matters
remaining in dispute at negotiations. A vote under this
provision was held, at which, by a narrow
margin the employees voted to accept
the employer's last offer.
Nevertheless, the union refused to sign a collective agreement, claiming that the vote
is a mere "opinion poll" and not of any legal
effect and that in any event the vote was influenced
by the employer's unlawful conduct. The Board held that prima facie the result of the vote obliges the trade union to sign a collective agreement. Refusal to do so was held to be a breach of the duty to bargain in good
faith. On the facts the Board held that the employer's conduct did not affect
the ability of the employees to express their true wishes at the vote. (Canada Cement Lafarge Limited, [1980)
OLRB Rep. Nov. 1583).
Applications for Certification in the Industrial,
Commercial and Institutional Sector of the Construction Industry
In an
application for certification of a bargaining unit in the ICI sector, the Board
held that for an application to "relate to" the ICI sector within the
meaning of section 13la(l) of The Labour
Relations Act, the
application need only refer to a bargaining unit described so as
to include that sector within its scope. It is not necessary that the employer
actually have employees working in the ICI sector on the date of the application for certification. (Colonist
Homes Ltd., [1980) OLRB Rep. Dec. 1792).
Termination Petition not
Voluntary
During a lengthy strike, the union
had been
unable to obtain a collective
agreement for the employees, two years
having elapsed since certification. An application for termination of
bargaining rights was filed, supported by a petition signed by a majority
of employees. Although the Board found that the employer
had not supported the petition, the evidence disclosed that the majority of
signatures on the petition were obtained on
the company premises, in the presence of management. The
Board stated that, while there is no absolute rule against circulating a
petition on company premises, since the signatures were obtained in the
presence of management, the Board could not be satisfied that the petition was voluntarily signed by more than 45 per
cent of the employees in the bargaining unit. Consequently, the application was
dismissed. ( Ontario Hospital Association
(Blue Cross), [1980) OLRB Rep. Dec. 1759).
Oral Evidence of
Payment of Initiation
Fee Not Admissible
Three of
the membership cards filed by the union did not indicate the payment of an
initiation fee of at least one dollar.
The union sought
to remedy this deficiency by leading oral evidence. The Board reiterated its
rule that while oral evidence may be led to cure technical irregularities, it
would not allow oral evidence to establish the two substantive conditions of membership specified in The Labour Relations Act, namely, the
application for membership and the payment of one dollar. ( PRC Chemical Corporation of Canada Ltd., [1980] OLRB Rep. Dec. 1805).
Journalist Required
to Reveal Source of Information
The union
complained of unfair labour practices by the employer, alleging that the
employer had caused an intimidatory news item to be published in the local
newspaper. The news item was to the effect that the employer was not planning
to renew its contract with the township. The editor of the newspaper was called
as a witness under subpoena and on being questioned by the union counsel
refused to disclose the source of the news item. He took the position that to
reveal sources of information would betray the trust the community had placed
on him. He took the position that such trust was very important to his job. The
Board ruled that despite the witness's concerns, the evidence was relevant and
admissable. The witness was compellable since there is no privilege under the
law of Ontario permitting a journalist to refuse
to reveal his sources where such information is relevant to the proceedings. The Board held that in
refusing to answer the question, the witness was exposing himself to contempt
proceedings. On the application of the complainant union, the Board consented
to state a case to the courts under The Statutory Powers Procedure Act, 1971. ( Ontario Humane Society, [1980] OLRB Rep. Dec.
1776).
Introduction of Security Measures - A Violation of the Act
- Section 7a
In response to the union's organizing
campaign, the employer, a
hotel, instituted extensive
security measures inside and outside its premises. These security measures
included a new sign-in procedure for employees, security patrols inside the
hotel and the use
of the marked security patrol
cruisers outside the hotel and in the parking area. In addition, several
emptoyees who supported the union were dismissed. The Board found that the
majority of the discharges complained of were motivated by anti-union
sentiment and therefore were
unlaw ful. As for the security measures, the employer admitted that they were
introduced to restrict organizing activity on the employer's premises. The
Board held that the right of an owner
to take steps for the adequate security
and control of his premises is a prima
facie incident of ownership not to be lightly interfered with.
Nevertheless, in view of the fact that the chilling effect of the employer
conduct was so readily forseeable, the Board
held that the employer must be taken to have been motivated by
anti-union motive, especially in the
light of the general anti-union behaviour of the
employer already established. The Board
reiterated its view that an
employee's time outside of his working hours is for the employee to use as he wishes without
unreasonable restraint by the employer, even though the employee may be on
company property. In the circumstances the Board certified the applicant trade
union without directing a representation vote. ( Skyline
Hotels Limited, [1980] OLRB Rep.
Dec. 1811).
Ban on Overtime - A Lawful Exercise of the Right to Strike
The trade union, which was in a legal position to
strike, voted to impose a ban on voluntary overtime. The employer sent disciplinary letters
to employees who refused overtime in accordance with the
collective decision. The union filed unfair labour practice complaints against the employer over the disciplinary letters. The Board held that the ban on overtime
was aimed at putting pressure on the employer in the way it was conducting
negotiations. It was a
form of strike activity, which,
being timely, was a lawful
exercise of rights
under the Act. The
Board also held that the
employer engaged in an unfair labour practice in disciplining employees for
exercising lawful rights. (Corporation of
the City of Brampton (Brampton Transit), [1981] OLRB Rep. Jan. I).
Foremen Entitled to Bargain Collectively
The Board received an application for
certification with respect to a
tag-end unit composed exclusively of foremen. The
employer argued that the foremen were n
ot "employees" within the
meaning of the Act and were not entitled to bargain collectively. The Board,
having reviewed the duties and responsibilities of the persons
in question, held that they did not perform "managerial functions" since they did not exercise
effective control and authority so as to materially affect the economic lives
of the employees. (Hydro Electric
Commission of the
Borough of Etobicoke,
[1981] OLRB Rep. Jan. 38).
Intimidation and Surveillance Unfair
Labour Practices - Section 7a
The applicant union was certified
without a representation vote following a finding by the Board of several
unfair labour practices. The employer had subjected two union supporters to
constant surveillance and wrote intimidating letters to several employees who
were to testify before the Board. In addition, the employer exercised undue
influence at a series of employee meetings designed to discourage union support
and to expose those supporting the union. A union supporter had also been
discharged. The Board concluded
that these violations called for a comprehensive remedial order, including
the posting of a notice by the
employer promising to refrain
from future violations and the payment of damages to the two employees who were
subjected to extraordinary harassment and indignity through constant
surveillance because of their union activity. ( K-Mart Canada Ltd., [198
l]OLRB Rep. Jan. 60). The Board, in a subsequent decision, reconsidered and
revoked that part of its order directing payment of damages for harassment and
indignity ( K-Mart Canada Ltd., [1981] OLRB Rep.
Feb. 120).
Bargaining Unit may not be Enlarged in
Displacement Application
The applicant trade union applied for
certification to displace the incumbent union which held bargaining rights with
respect to "technical" employees
of the hospital. In the process, the applicant sought the expansion of the
bargaining unit to include the employer's professional employees who were
unorganized at that time. The Board reiterated its general rule that in
displacement applications the applicant must take the existing bargaining
unit. The Board refused to sweep the professional
employees into the unit, especially in view of the fact that the union failed
to show any
significant degree of
support from employees within
that group. ( Toronto East General and
Orthopaedic Hospital, Inc., [1981]
OLRB Rep. Feb. 225).
Temporary Replacement of Locked Out Employees Not Unlawful
The parties had made no real
progress during bargaining. The employer concluded that . the union
was deliberately delaying
negotiations in order
to co-ordinate bargaining with all of the company's plants across Canada.
The employer commenced a legal lockout and hired temporary replacements for
those employees locked out. As the Lock-out progressed, the employer tabled new
demands seeking relief from restrictive clauses contained in the expired collective
agreement. The Board concluded that the company's actions were taken in order
to force the trade union to bargain and make an agreement and were not
intended to avoid an agreement. A party may change its bargaining stance to suit the circumstances arising out of a
strike or lock-out. Since there was no intention to avoid a collective
agreement, that was not bad faith bargaining. The Board distinguished between
permanent replacement and temporary replacement of locked out e11jployees.
Permanent replacement would be illegal since that would be tantamount to
discharging employees for engaging in collective bargaining. However,
the temporary replacements could be removed
when the union
agreed to the terms
and conditions demanded
by the employer. The Board held that the use of temporary replacements during a lock-out,
like the use of non-bargaining unit employees or sub contracting of work, in
order to continue the employer's operations, was not contrary to the Act. ( Westroc
Industries Limited, [1981]
OLRB Rep. Mar. 381).
VI COURT ACTIVITY
Valentine Enterprises Contracting
Ontario Divisional Court, Date of
Decision May 22, 1989; 80
CLLC 11,042
The applicant sought judicial review of a Board
decision accrediting the respondent employer association, in which the Board
found that the applicant was an employer with whom the respondent Local 506 had
bargaining rights. The applicant argued that it had received insufficient
notice and that the Board's order conferred bargaining rights upon the union for the
applicant's employees. The court, in dismissing the application, found that there had been sufficient notice and that
the question of bargaining rights is a question of fact protected from review by section 97 of The
Labour Relations Act.
P. J. Wallbank
Manufacturing Co. Ltd. Ontario
Divisional Court, Date of Decision August
20, 1980; unreported
This was an application for judicial review of a Board decision
certifying the UAW with respect to a bargaining unit of employees of the
employer. There were several grounds
on which the application was based. The
court held, on the first ground, that a finding that an employee did not exercise
management functions was within the exclusive jurisdiction of the Board. The
refusal of leave to the employer to re-open its case was held not to be a
denial of natural justice in the circumstances. The court held that in any
event, this was a matter of procedure and as such was exclusively within the
jurisdiction of the Board. The
Board's finding that the employer did not participate in or assist the
union was held not to
be so patently unreasonable in the light of the evidence as to warrant
intervention by the court. The application was dismissed. In this matter the
court had earlier dismissed an application for a stay
of the Board
order pending judicial review.
Windsor
Airlines Limousine Services
Limited
Ontario Divisional Court, Date of Decision
September 2, 1980; (1981), 30 O.R. (2d) 732; 117 D.L.R. (3d) 400
The
applicant sought judicial review of a Board order certifying the respondent
trade union with respect to its employees. Two grounds were forwarded in
support of the application. First, that the Board
was without constitutional jurisdiction since labour
relations between the employer
and the employees in question
were within federal
jurisdiction. Second, it was
argued that the Board lost jurisdiction when it refused to adjourn proceedings
at the request of the employer. The court held that the "ordinary business" of the employer was intra
provincial. Extra-provincial activity
was exceptional and minimal. Therefore, it was held
that the Board was justified in concluding that the company
was within provincial jurisdiction. On the
second ground, the court noted that the Board's denial of an adjournment was
subject to the condition that if
the employer felt, as the hearing proceeded, that his case was in any way prejudiced by the late receipt of particulars, he could make
a new application for adjournment at that time. The court held
that when the employer walked out of the hearing in the face of such a ruling,
there was no loss . of
jurisdiction or denial of natural justice. The court commented that the Board's decision
to press on with the hearing was not arbitrary
since it was done for what appeared
to the Board to be the necessity
of the situation. The application failed on both grounds. The court had earlier refused to order
a stay of the Board order pending judicial review. Leave to appeal the
Divisional Court decision to the Court of Appeal was denied.
Westinghouse Canada Inc.
Ontario Divisional Court,
Date of Decision September 19, 1980; 80 CLLC 1114,062
The employer sought to quash a decision of the Board where it had held that the company
had committed an unfair labour practice by deciding to relocate the plant, in part as a result
of anti-union motivations. The Board ordered
the employer to offer the displaced employees
the option of accepting employment at the relocated plant.
In addition, the union was given access to employees at the new plant for
purposes of organization, and the employer was ordered to reimburse the union
for re-organization expenses. The employer argued that the Board's finding that the relocation was not for "cause" was patently unreasonable; that in allowing the union access, the Board interfered with the employees' right to select
the union of their choice; and that the Board's decision
was tantamount to directing the employer to assist a trade union, which was conduct prohibited by The Labour
Relations Act. The
court held that the Board's conclusion
as to presence of anti-union motive was not patently unreasonable. The court
stated that in making the remedial orders
the Board was simply attempting to put the
employees and the trade union as much as possible in the same position
as if the relocation had never taken place. In the circumstances the remedial orders
were held not to be outside the scope and intent of the Act.
Thames Steel Construction Ltd.
Ontario Divisional Court, Date of
Decision October 21, 1980; unreported
The
respondent union was certified by the Labour Relations Board over the
opposition of the employer
and some objecting employees. The applicant applied for judicial review and that
hearing was pending. In the interim, the union proceeded with bargaining and
was in a position to call a lawful strike. The employer applied for an interim
order under section 4 of The Judicial Review Act to stay the Board order, which would make the
anticipated strike unlawful.
The court stated that relief under section 4 is an extraordinary remedy
which is subject
to the discretion of the court. Therefore, in order to obtain the relief
requested, the employer must show a prima facie case that the Board order may be reviewed on the ground of jurisdictional
error as alleged. The court noted that the union had been certified by the Board and the employees were in a lawful
position to strike. The court held that these rights of the union and the employees should not be interfered
with unless it is established prima Jacie that the Board order is likely
to be judicially reviewed. The court held that such a prima facie case was not established and accordingly the
application was dismissed. The court also noted that the applicant could have applied
for a speed hearing of its application forjudicial review under section 6(2) of the Act, but chose not to do so. Following
the dismissal of the application for a stay, the
matter did not proceed to a hearing but was settled.
The
Ontario Metis and Non-Status Indian Association
Ontario Divisional Court, Date of Decision
November 24, 1980; (1980), 6 A.C.W.S. (2d)
132
The
applicant employer sought to have the Board order certifying the respondent
union stayed under section 4 of The
Judical Review Procedure Act pending the outcome of its application forjudicial review.
It had applied forjudicial
review on the ground that the matter was not within the constitutional
jurisdiction of the Board.
The court
stated that a stay is granted "to preserve
the status quo in situations where to refuse
it would have the result of a hollow victory" for the successful applicant. However, the applicant must establish a prima facie case
that it will be successful. Also, it must
establish that a refusal to stay would result in
irreparable damage to the applicant and that the granting of a
stay will not create a substantial injustice to the union. The court noted that the applicant
had failed to apply under section
6(2) of The Judicial
Review Procedure Act for a speedy hearing
of its application for judicial review. Since the applicant did not, in
the court's view, satisfy the above conditions, the application was dismissed. The applicant subsequently did not proceed with the application for judicial review.
Hugh
Murray (1974) Limited and John Entwistle Limited
Ontario Divisional Court,
Date of Decision December 17, 1980; 81 CLLC 14,091
The applicant
trade unions sought
judicial review of two decisions of the Board in which they were found to have abandoned
their bargaining rights. The applicants argued that the only issue the Board
should have considered was whether the union was once certified, and should not
have considered questions as to how long ago certification occurred or what the
applicants' conduct had been since. The applicants submitted that there is no express mention in the Act of abandonment of
bargaining rights as a ground for declaring that a union no longer represents
the employees in a bargaining unit.
The court
dismissed the applications pointing out that the Act does not purport to list
exhaustively all matters which the Board may consider in its various decisions.
On the other hand the Board with its labour relations
expertise, has a duty to take
into account all matters it considers to be relevant. The court
held that abandonment of bargaining rights once possessed, is a matter relevant
to the question of whether at the relevant times the applicants held bargaining
rights·. Leave to appeal the
Divisional Court decision to the Court of Appeal was denied.
Ajax and Pickering General Hospital et al Ontario High Court of
Justice, Date of Decision January 21, 1981;
unreported
The applicant hospitals had applied for a cease and
desist order from the Board against CUPE, which allegedly was threatening to
call in an unlawful strike in contravention of The Hospital Labour Disputes Arbitration Act. While the Board
hearing was pending, the union applied to the High Court for an order
prohibiting the Board from proceeding with the hearing. The application was
based on two grounds. Firstly that the Board was without constitutional
jurisdiction to grant cease and desist
relief to the hospitals and secondly that The Hospital Labour Disputes Arbitration Act was ultra
vires the province because it conflicted with an international treaty
entered into by Canada. The court held that the power vested in the Board to
issue cease and desist relief does not offend section 96 of The British North America Act, because
this power is purely incidental to the function of the Board of maintaining
labour peace. It was held that these power do not usurp the powers of the Court and therefore are not ultra
vires. The application for prohibition
was dismissed.
The Municipality of Metropolitan Toronto Ontario Divisional Court,
Date of Decision January 29, 1981; unreported
This was an application for judicial review of
a decision of the Board wherein it held that the Municipality was an employer
which operates a business in the construction industry within the meaning of the Act. The applicant contended that by giving the words "construction industry" a
meaning they cannot reasonably bear, the Board had lost jurisdiction. In a
brief decision, it was pointed out that the Divisional Court had considered and
rejected the same argument in a previous case, which was not distinguishable from this one.
The application was dismissed. Leave to appeal the
decision of the Divisional Court to the Court of Appeal was denied.
Ontario Humane
Society
Ontario Divisional Court, Date of Decision
January 30, 1981; unreported
Note: Ernest J. Guiste completed part of his training as a lawyer with the Solicitor's Office of the Ontario Labour Relations Board.(Summer Student and Articles of Clerkship)
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