Ontario Labour Relations Board
[1982] OLRB Rep. March 350
0197-81-U Stanley Dwyer, Applicant, v. United Automobile Aerospace & Agricultural Implement Workers of America U.A.W. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America U.A.W. Local 1285, Respondent, v. Chrysler Canada Limited, Intervener
BEFORE: R. O. MacDowell, Vice-Chairman.
APPEARANCES: E. G. Posen for the applicant; E. D. Bruce, B. E. Hargrove and L. A. MacLean for the respondent; M. D. Contini and C. Gyles for the intervener.
DECISION OF THE BOARD; March 12, 1981
This is a complaint under section 89 of the Labour Relations Act alleging a breach of section 60 (now 68) of the Act.
In 1976, the complainant's employment was terminated. A grievance was filed on Mr. Dwyer's behalf and processed to arbitration. The arbitrator upheld the termination. One of the issue raised in this complaint is the quality of union representation which Mr. Dwyer received in the preparation and presentation of his arbitration case.
The current complaint was filed on April 24, 1981, some years after the incidents which the complainant now contends involve a breach of section 68. The union was aware of the complainant's dissatisfaction with the arbitrator's award and of some of the steps which he has taken to rectify the situation. However, it was not until relatively recently that the complainant's concern - originally based upon an allegation that he had been unjustly discharged by his employer - was transformed into a concrete complaint against his union alleging that he had not been properly represented.
This proceedings has been ongoing before the Board for some days. The Board has already heard extensive evidence from the complainant himself, and from Buz Hargrove, the trade union official who represented Mr. Dwyer at the arbitration hearing. Both the complainant and Mr. Hargrove testified at some length about what occurred before and during that hearing. The Board has scheduled several more days to hear the evidence of other union witnesses concerning this, and other aspects of the complainant's allegations.
Mr. Hargrove was called as a witness by the union. He was not subpoenaed by the complainant. During his cross-examination, Mr. Hargrove made reference to some notes which he had made some years before in preparation for the complainant's arbitration case. Counsel for the complainant requests that the Board direct that those notes be produced.
Mr. Hargrove testified that he does not have the notes in question. After the commencement of these proceedings, he searched his office for them without success. However, several hundred boxes of documentary material concerning the union have been sent to the Canadian Archives in Ottawa, and Hargrove told the Board that the notes might be in this material. Hargrove had already requested that a search be undertaken in the file boxes and under the headings where the notes were most likely to be found; but, again, this search proved fruitless. The notes may have been destroyed or lost, or they may be buried somewhere in the mountain of material currently in the possession of the Federal Archives. And, of course, even if the notes could be found within a reasonable period of time, there may be nothing in them which would be material or which would assist the Board in making its determination. Counsel for the union observes that had the complainant filed his complaint within a reasonable time after the occurrence of the conduct about which he now complains, this problem probably would not have arisen. Counsel argues that it would be oppressive to direct the respondent, at this late date, to send several persons to Ottawa to sift through hundreds of boxes of documents (for this is what it would require) because of a possibility that Hargrove's notes might be found and that they might be relevant.
The respondent has already voluntarily produced a number of documents which it had in its possession and which might be relevant to the matters here in dispute. There is no evidence or allegation that documents have been suppressed. In the Board's view, it would be unreasonable to direct further production of material which was never subpoenaed, may not now even exist, and which if it does exist and can be found, may neither contradict nor supplement the viva voce evidence which the Board has already heard concerning the events in issue. Accordingly, the complainant's motion is dismissed.