Antonio Fiorenza & Ron Manzolini v. Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers
[1982] OLRB Rep. May 713
1783-81-R Antonio Fiorenza & Ron Manzolini, Applicants, v. Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Respondent, v. National Dry Company Limited, Intervener
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and W. F. Rutherford.
DECISION OF THE BOARD; May 4, 1982
This is an application for a declaration terminating bargaining rights. The Board by decision dated March 10, 1982, found that the petition in support of the application was voluntary, and directed the taking of a representation vote. The respondent by letter dated March 16, 1982, then requested reconsideration of the Board's decision, and in particular the Board's ruling at the hearing that it would not grant the respondent an adjournment for the purpose of calling further evidence. The representation vote proceeded as scheduled, with no one attending on behalf of the respondent, and the Board directed that the ballot box be sealed.
The respondent's request for reconsideration reads as follows:
I have now received a copy of the decision of the Board dated March 10, 1982.
The applicant hereby requests pursuant to the provisions of Section 106, sub-section 1 of the Ontario Labour Relations Act for a reconsideration of its decision in order to hear evidence of the witness Julio Carvatta, the person referred to in the Board's decision.
As indicated, this person was under subpoena, and in the normal course of any hearing, the subpoena, as I understand the Board's practice is to continue from day to day until witnesses' evidence is taken and he is released from the Board.
The comments of the Chairman of the Board indicated that since Mr. Carvatta was not in the hearing room due to the order excluding witnesses, he would not have been subject to the order of the Board and therefore the continuation of the subpoena is invalid.
I understand that Mr. Carvatta is returning from his vacation imminently and on behalf of my clients, request that the Board do reconsider its decision in order that it may hear the evidence of Mr. Carvatta, to indicate that the application was in fact tainted by the hand of management.
This submission is made and should be considered by the Board, regardless of whether or not he is the sole contact in the National Dry Section of the Local Union. An offense by the employer in interfering in the administration in the Union constitutes an offense under the Act, whether or not the Board considers that the evidence of this witness is the only witness available to give this evidence.
If Mr. Carvatta's evidence goes to show that in fact management did in some way influence the presentation of the petition, and the attempt to remove the Union as the bargaining agent, this is evidence that, with respect, should properly be heard by the Board since it is unquestioned that the person whose evidence was required was under subpoena at the time.
For these reasons, I would appreciate an early response to this request arid that the taking of the vote and the establishment of the voting community, be withheld until such time as the request for reconsideration and subsequent hearing, has been completed.
- As the respondent makes reference to the Board’s practice in continuing the effect of one of its "Summons to Witness", the Board might briefly review its practice in that regard. The effect of a Board summons can, as the respondent points out, be continued from day to day as a hearing progresses, without the need for re-issuing or re-serving a Summons, subject to the following provisos:
(a) the required amount of conduct money for attendance and travel must be paid for each day of attendance, and
(b) the witness must receive official notification of the time and place of continuation.
Requirement (b) may be met on the face of the summons itself, or it may be met by the Board prior to adjourning the hearing advising the witness of the next scheduled date. When a hearing is adjourned sine die, however, the Board is obviously not in a position to accommodate the summoning party by following the latter procedure. See Sentry Department Stores Limited, [1964] OLRB Rep. Feb. 642. This was in fact the situation in the instant case, and it is clear that the witness in question had been placed under no legal obligation, in the absence of fresh service, to attend the final day of hearing, scheduled after the prior hearing was adjourned.
The Board did not, however, rest its adjournment ruling on this aspect of the case, either at the hearing or in its written decision. The Board's reference to the respondent's failure to make every reasonable effort to place its evidence before the Board on the final day of hearing included the respondent's admission that it took no steps at all to obtain another witness to the event in question. That event was a meeting purportedly attended by all of the employees in the bargaining unit. The respondent's explanation for its inactivity was that Mr. Carvatta, who was the individual departing on vacation, was the respondent's "only remaining contact with the bargaining unit". While the Board recognizes that the respondent's task in the circumstances might have proved difficult, it would not, with the whole bargaining unit that it represented to draw from, necessarily have been fruitless. Rather, the respondent appeared to the Board to have been content to sit back and take its chances on the Board granting an adjournment. Given the particular commitment of all parties to the proceedings to the completion of the matter on the final day scheduled for hearing, as discussed at the time of scheduling, the respondent must have been aware that it was proceeding as it did at its peril. The Board in the circumstances reaffirms its decision to deny the request for adjournment, and the request for reconsideration is dismissed.
The Registrar is directed to proceed with the counting of the ballots.