Ontario Labour Relations Board

Citation: [1984] OLRB Rep. June 805

File Nos.: 1296-82-U; 0195-83-U

Between: Luciano D'Alessandro and Donato Marinaro, Complainants, v. Labourers' International Union of North America, Local 1089, and Rocco D'Andrea, Respondents

Before: Robert D. Howe, Acting Chairman, and Board Members F. W. Murray and W. F. Rutherford.

Appearances: Ed J. Brogden for the complainants; A. M. Minsky, R. D'Andrea and D. D'Andrea for the respondents.

Decision of the Board; June 19, 1984

1. The purpose of this decision is to provide in written form the following unanimous oral ruling given by the Board on June 13, 1983 concerning these consolidated complaints, as jointly requested by counsel for the complainants and counsel for the respondents:

Mr. Brogden, as counsel for the complainants, seeks to adduce through witness Daniel Rankin evidence that will allegedly establish that certain records of the respondent trade union (the "Union")have been altered. In particular, he seeks to adduce the originals of three referral slips issued by the Union to Cecil lacobelli, Frank Taglione, and Mario Galista, on April 3, 1981, February 18, 1981, and January, 15, 1981, respectively. Mr. Brogden has advised us that he will also be seeking to introduce the Union's referral books which cover those dates, in an effort to show that those records have been altered. It is Mr. Brogden's submission that this evidence is very relevant in that it will undermine the credibility of the Union's hiring hall records which have been filed with the Board in this matter, including the 71 books of referral slips for the period from May 25, 1981 to October 5, 1983. Mr. Minsky, as counsel for the respondents, objects to the introduction of this evidence on the grounds that the complainants have not complied with the requirements of section 8 of the Statutory Powers Procedures Act and section 72 of the Board's Rules of Procedure.

In complaints alleging violations of section 69, a union's hiring hall records are obviously very important documents. In the instant case, as in the Joe Portiss case which preceded it, the complainants are attempting to demonstrate through specific impugned referrals that Local 1089's hiring hall has been operated arbitrarily, discriminatorily, or in bad faith. The referral slips and other hiring hall documents are an integral part of that institution, and are one of the primary sources of information concerning its operation. It is apparent from Mr. Minsky's cross-examination of witnesses who have been called by the complainants that the respondents will be relying upon those documents in defending these complaints. If those documents are unreliable because of alterations that have been made by the respondents in anticipation of these proceedings or other similar Board proceedings, that would be a significant factor to be taken into account by the Board in assessing the weight, if any, to be given to such documentary evidence.

Subsections (2) and (4) of section 70 of the Board's Rules of Procedure give the Board a discretion to consent to a party adducing evidence of alleged improper or irregular conduct, or other material facts, notwithstanding a party's failure to particularize such matters in a timely fashion. In exercising such discretion, the Board is empowered to give its consent upon such terms and conditions as it considers advisable.

We have given this ruling much anxious consideration in that the situation falls very close to the line, there being considerable merit in each of the positions urged upon us. We are quite troubled by the stage in these already lengthy proceedings at which the complainants have chosen to raise this matter. However, having regard to all of the circumstances, we are prepared to consent to the evidence in question being adduced, on the following terms:

(i) these proceedings will be adjourned at the completion of Mr. Brogden's examination-in-chief of Mr. Rankin, if so requested by Mr. Minsky, in order to afford him an opportunity to review these matters with his clients and to prepare for his cross-examination concerning them; and

(ii) Mr. Brogden must undertake to produce for cross-examination all of the previous witnesses whom Mr. Minsky wishes to cross-examine concerning these three referral slips.

Those terms will eliminate any prejudice to the respondents. In that regard, we also note that by permitting this evidence to be adduced we are not expanding the period for which compensation may be awarded to either of the complainants if a breach of section 69 is established. We are only permitting it to be adduced on the basis that it may arguably assist the Board in determining the reliability of the union's hiring hall records concerning the particular referrals which form the subject matter of these consolidated complaints. Moreover, this ruling is expressly limited to the aforementioned three referral slips, and the referral books from which they were issued. Should questions arise in respect of the admissibility of other evidence concerning the reliability of hiring hall documents, we will deal with them on an individual basis at the appropriate time.