Ontario Labour Relations Board
[1982] OLRB Rep. December 1843
0205-82-R Southern Ontario Newspaper Guild, Local 87, The Newspaper Guild (CLC-AFL-CIO), Applicant, v. MacLeans Magazine, Respondent.
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Naomi Duguid, Linda Torney and Nick Jennings for the applicant; M. Patrick Moran and Charles Lee for the respondent.
DECISION OF THE BOARD; December 24, 1982
This is an application for certification in which the applicant has applied for a bargaining unit described as "all employees in the Editorial Department of MacLeans Magazine save and except the Editor, Deputy Editor, Managing Editor, Assistant Managing Editor, Senior Editor, Editorial Controller, and the secretaries to the Editor, Deputy Editor and Managing Editor, and employees regularly employed less than twenty-four hours per week and students employed during the summer vacation period. For clarity, the unit applied for includes all full-time employees currently assigned to the Ottawa, British Columbia, Alberta, Atlantic Provinces, Washington, and New York Bureaus of MacLeans Magazine". In a decision dated May 25, 1982 in this matter, another panel of the Board directed that an interim certificate be issued to the applicant, pursuant to section 6(2) of the Labour Relations Act, for "all employees of the respondent employed in the editorial department of MacLeans Magazine in the Municipality of Metropolitan Toronto save and except Associate Editors and all those at and above the rank of Associate Editor, Chief of Research, Librarian, Editorial Controller, Assistant Art Director, Assistant Editors, Assistant to the Editor, secretaries to the Editor, Deputy Editor and Managing Editor, Editorial Assistant (Al Campoli), British Columbia Bureau Chief, Alberta Bureau Chief, Washington Bureau Chief and New York Bureau Chief, Contributing Editors in Toronto (C. Rodd, P. Olendorf and D. Livingston), persons regularly employed for not more than twenty-four hours per week, and students employed during the school vacation." The Board also appointed a Labour Relations Officer "to inquire into and report back to the Board with respect to (a) the appropriateness of the bargaining unit as it pertains to employees located in Ottawa (i.e. a province-wide unit); (b) the appropriateness of the bargaining unit in relation to bureaus located outside of Ontario; (c) the terms and conditions of employment of persons whom the parties do not agree are employed for not more than twenty-four hours per week; (d) the duties and responsibilities of those employees alleged by the respondent to exercise managerial functions or to be employed in a confidential capacity in matters relating to labour relations; and (e) those persons claimed by the respondent to constitute independent contractors". (In the decision dated June 23, 1982, that panel of the Board directed the issuance of a second interim certificate, which covered "all employees of the respondent employed in the Editorial Department of MacLeans Magazine in the City of Ottawa save and except Bureau Chief and all those at or above the rank of Bureau Chief, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period".)
Pursuant to that appointment, several meetings of the parties were convened by a Labour Relations Officer (hereinafter referred to as the "Officer"). The first individual examined at those meetings was the respondent's Art Director, Nick Burnett. Although the primary focus of his examination by the Officer would undoubtedly have been the duties and responsibilities of his own classification, it was common ground between the parties that Mr. Burnett was also questioned by counsel for the applicant and counsel for the respondent about the duties and responsibilities of the respondent's Assistant Art Director, John Agnew. Following the examination of Mr. Burnett and certain other individuals in disputed classifications, the parties reached agreement on a number of matters, including the exclusion from the bargaining unit of the classification of Art Director. Subsequently, examinations were conducted of persons occupying various other classifications which remained in dispute, including Assistant Art Director, and the Officer's Report (hereinafter referred to as the "Report") was issued to the parties in due course. In accordance with the usual practice in such matters, the evidence of Mr. Burnett (and of each of the other persons who was examined by the Officer, but whose respective classifications were no longer in dispute at the time of the issuance of the Report as a result of the aforementioned agreement of the parties) was not included in the Report.
Upon receipt of the Report, counsel for the respondent requested that it be amended to include the evidence of Mr. Burnett. That request was opposed by the applicant. At the hearing scheduled by the Board for the purpose of hearing the representations of the parties with respect to the Report, counsel for the respondent reiterated his request that the Report be amended to include Mr. Burnett's evidence. In support of that request, he submitted that the evidence which Mr. Burnett gave concerning the duties and responsibilities of Mr. Agnew is relevant and material to the issue of whether Mr. Agnew's classification should be included in or excluded from the bargaining unit. In response to the assertion by counsel for the applicant that Mr. Burnett should have been called as one of the respondent's witnesses in the examination proceedings before the Officer if the respondent wished to have his evidence concerning Mr. Agnew's duties and responsibilities included in the Report, counsel for the respondent asserted that it would have been redundant to call Mr. Burnett as a witness for the respondent in view of the fact that Mr. Burnett had already given evidence before the Officer concerning Mr. Agnew's duties and responsibilities. Counsel for the applicant, on the other hand, contended that the respondent's failure to call Mr. Burnett as a witness, or to at least indicate that it sought to rely on Mr. Burnett's initial evidence at a time when the applicant was in a position to call reply evidence in response to that evidence, precluded the respondent from placing Mr. Burnett's evidence before the Board in this matter.
Where parties reach agreement concerning the inclusion in or exclusion from the bargaining unit of a classification after the person (or persons) in that classification has been examined in proceedings before an Officer, that person's evidence is not included in the Officer's Report for at least two reasons. In most instances, much if not all of such evidence would no longer be relevant to the matters in dispute between the parties. The primary focus of such evidence is invariably the witness's own duties and responsibilities, since it is only those duties and responsibilities which the Officer seeks to explore in his examination of the witness (although questions put to such witness by counsel sometimes, as apparently happened in the present case, extend somewhat beyond those duties and responsibilities to the duties and responsibilities of someone with whom the witness has frequent contact in the workplace). A second reason that such evidence does not form part of the Report is that the potential elimination of such evidence from the record is a factor which counsel can and do take into account in deciding whether or not to reach agreement concerning the inclusion or exclusion of the classification occupied by the witness. Knowledge that such evidence will not form part of the Officer's Report if the parties agree to include or exclude the disputed classification can be a significant factor which promotes settlement of such disputes. Thus, if a party were permitted to reach agreement on a particular classification and then to subsequently rely upon the evidence given by the person in that classification notwithstanding that agreement, the Board's settlement process could be impaired. Moreover, the change in the Board's practice advocated by counsel for the respondent would introduce an element of uncertainty concerning whether such evidence would or would not form part of the Report. Such uncertainty would tend to discourage settlements, and could also needlessly introduce a potential source of further controversy between parties who have reached agreement concerning the inclusion or exclusion of a disputed classification.
For the foregoing reasons, the respondent's request that the Report be amended to include the evidence of Mr. Burnett is hereby denied. However, in view of the fact that the Board's practice in such circumstances may not heretofore have been generally known, as it is not set forth in any practice note or in any previous Board decision that has been brought to our attention by counsel or by the Board's independent research, the Board, in the circumstances of the present case, will permit counsel for the respondent to call Mr. Burnett as a witness at the continuation of the hearing of this matter, to testify before the Board concerning the duties and responsibilities of the respondent's Assistant Art Director. If counsel for the respondent elects to call Mr. Burnett, the Board will afford counsel for the applicant an opportunity to cross-examine Mr. Burnett and to call reply evidence in response to Mr. Burnett's evidence. However, the publication of this decision should eliminate the need for the Board to permit such evidence to be called before it in future cases. Having been made aware of the Board's practice in such matters through this decision, a party which desires to place such evidence before the Board in a future case should do so by calling the individual as a witness before the Labour Relations Officer, or by obtaining the agreement of the other party (or parties) that the evidence previously given by that individual is to be included in the Report notwithstanding the fact that the classification occupied by that individual is no longer in dispute. In the absence of such agreement, that evidence will not form part of the Officer's Report to the Board.
There is also a second procedural matter requiring determination by the Board at this time. As noted above, the applicant seeks to have the respondent's Ottawa, British Columbia, Alberta, Atlantic Provinces, Washington, and New York Bureaus included in the bargaining unit. In view of the respondent's opposition to their inclusion, the aforementioned Officer's appointment included the power to inquire into "the appropriateness of the bargaining unit in relation to bureaus located outside of Ontario". However, the Officer was unable to complete his inquiry into that matter for reasons set forth in the following passage of the Report (at page 3):
"At the meeting of July 28th, 1982 the issue of our appointment to inquire into and report to the Board on the appropriateness of the bargaining unit in relation to Bureaus located outside Ontario was raised and thoroughly discussed as to the method of dealing with the matter. Since this was the last outstanding issue to be dealt with and having regard for the discussions with the parties the following ruling and subsequent comments were put into the record on tape.
L.R.O. - In regards to the Board's direction to inquire into and report to the Board on the appropriateness of the bargaining unit in relation to the Bureaus located outside of Ontario, it has been brought to our attention that the respondent has stated that it feels the Board does not have jurisdiction over those Bureaus outside the Province of Ontario and further to this the applicant has stated that it feels that it would be necessary to call the individuals located in those Bureaus to decide the question not only of jurisdiction but also of the appropriateness of the bargaining unit. The respondent has indicated that it is unwilling to produce those people from the Bureaus located outside the Province of Ontario for examination. Therefore, the Labour Relations Officer defer [sic] to the Board on that question.
L.R.O. - Do the parties have any submissions that they want to make in regards to that issue. Naomi? Patrick?
Applicant - No. Not at this time.
L.R.O. Patrick?
Respondent - Not at this time."
At the hearing of this matter, counsel for the respondent submitted that the Board has no jurisdiction to include the aforementioned Bureaus (with the exception of the Ottawa Bureau) in the bargaining unit, and has no jurisdiction to compel the respondent to produce before the Board or before an Officer, the persons who work in the Bureaus located outside of Ontario. Although counsel for the applicant conceded that the Board does not have power to subpoena any of the Bureau personnel who are beyond the boundaries of the Province of Ontario, she contended that the Board can nevertheless direct the respondent, who seeks their exclusion, to produce them for examination. She also noted that Jane O'Hara, the individual who was stationed in the respondent's New York Bureau at the time of the application, has since returned to Toronto and is, therefore, susceptible to being subpoenaed by the Board. In response to those submissions, counsel for the respondent contended that the Board does not have jurisdiction to direct the respondent to produce any of the extra-provincial Bureau personnel, including Ms. O'Hara, as the Board cannot do indirectly (through an order that the respondent produce certain persons) what it cannot do directly (namely, subpoena the individuals in question).
Having carefully considered the submissions of the parties concerning that matter, the Board is of the view that before embarking upon any inquiry as to whether the Bureau personnel exercise managerial functions within the meaning of section 1(3)(b) as alleged by the respondent, or as to the appropriateness of including them in a bargaining unit with the respondent's Metropolitan Toronto editorial department personnel, the Board should hear the evidence and submissions of the parties with respect to the threshold issue of whether or not the Board has (territorial) jurisdiction over any of the Bureau personnel in question. Therefore, at the continuation of hearing of this matter, the Board will afford counsel for the applicant and counsel for the respondent an opportunity to present evidence and argument concerning that jurisdictional issue. With respect to the issue of whether Ms. O'Hara can be subpoenaed to testify in these proceedings, the Board is of the view that there is no merit in the submission by counsel for the respondent that she cannot be subpoenaed because, at the time of the application, she was working in the New York Bureau and was accordingly at that time beyond what counsel for the applicant concedes to be the geographical range of a Board subpoena. Having returned to Ontario, Ms. O'Hara can undoubtedly be subpoenaed by the applicant to testify before the Board concerning issues of fact which are material to our determination of the legal issue of whether the respondent's Bureau personnel are within the jurisdiction of this Board.
This matter, which has already been scheduled for continuation of hearing on January 19 and 31, and on February 8 and 9, 1983, is referred to the Registrar.
DECISION OF BOARD MEMBER J. A. RONSON;
I believe that this is the first time the Board has had the opportunity to elaborate on a practice or a procedure with regard to certain evidence taken before a Labour Relations Officer. Since the practice is peculiar to the Board (and appears to differ substantially from the rules of civil procedure) I would hope to see a practice note issued bringing the procedure to the attention of counsel and the public.
Stated briefly, if a party wishes to use the evidence of a witness in regard to the employment status of another person, then that witness must be produced or called as a witness by the party. Now in many cases the Board examines persons whose own status is in dispute. If, subsequently, that person's status is no longer in issue, and a party wishes to use his or her evidence with respect to the status of another person then said party must get the consent of all interested parties in order to have the relevant evidence transcribed. If consent cannot be obtained, then the party must recall the person as its own witness to the proceedings, in order to place the relevant evidence before the Board.
Hopefully, this procedure will not result in inconsistent statements from witnesses and the attendant problems of hostile witnesses having to be dealt with by the Board.