Rocco Dicognito et al. v. Local 414, Retail, Wholesale and Department Store Union et al.
Citation: [1985] OLRB Rep. January 71 File No.: 1571-83-U; 1658-83-U Date: January 23, 1985
Complainants: Rocco Dicognito, Donald Y. Hsu, Louie Savoia, Wolfgang Hauffe, Robert Proulx, Wray Carter, Andy Giamos, and the other persons listed on Schedule "A" to the complaint in File No. 1571-83-U Respondents: Local 414, Retail, Wholesale and Department Store Union, Roy Higson, Dan Garvey, Wayne Barrett, Mike Hunt, John Hudson, and Dominion Stores Limited
Before: D. E. Franks, Vice-Chairman.
Appearances: David C. Moore, Allan Dixon and Rocco Dicognito for the complainants in File No. 1571-83-U; Donald Y. Hsu for the complainants in File No. 1658-83-U; M. A. Hines and B. Burden for the respondent company; Stanley Simpson and Dan Garvey for the other respondents.
DECISION OF THE BOARD; January 23, 1985
1This is a complaint under section 89 alleging a violation of section 68 of the Act. The complaint includes inter alia an allegation that the trade union's failure to proceed with a section 15 violation against the employer gives rise to a violation of section 68 by the trade union, that is, the failure to complain of the company's failure to bargain in good faith was arbitrary, discriminatory or bad faith conduct by the respondent trade union.
2The complainant has asked for the production of certain documents (or a subpoena ducus tecum on which the production of documents is "called" before the person subpoenaed). The respondent resists the issuance of such a subpoena or order to produce. The documents which the complainant requires produced would quite specifically be the documents that would be requested by a complainant in the section 15 failure to bargain case referred to above.
3The employer resists the order on the grounds that such documents are irrelevant to the section 68 proceedings before the Board in this matter. Counsel for the employer was supported in this by both counsel for the respondent trade union and Mr. Hsu. In addition, when the motion in this matter was argued the Board raised with the complainant the matter that the Board will not, for policy reasons, give employees the status to argue a section 15 failure to bargain case on their own. That is, the Board limits the carriage of such proceedings to the parties to the bargaining and the effect of making such documents material to these proceedings would be to allow the complainant to indirectly do what the Board, for valid and important policy reasons, will not let an employee do directly under section 15 of the Act.
4The complainant argues that both the union and the employer have developed a line of defence that the union refused to bring the section 15 complaint because there was no prima facie case under section 15. The complainant argues that he is entitled to call evidence to rebut this, that is, to show that there was a clear cut case which could be brought before the Board under section 15 (presumably because the issuance of such a subpoena as requested now would lead to the production of internal memoranda showing that Dominion Stores Limited decided to franchise its operations before or during its bargaining with the union which the complainant alleges was a failure to bargain in good faith as required by section 15 of the Act.)
5Both counsel for the trade union and the employer have in turn suggested that this is a blatant "fishing expedition" by counsel for the complainant and therefore the request for documents ought to be denied.
6The question we are therefore called to decide is the following. Once a trade union or an employer raises as a defence in a section 68 case, the merits of the issue not proceeded with, is the complainant entitled to call evidence to rebut this view of the merits of the issue not proceeded with? The Board has often said in section 68 cases that it will not try the merits of a case, such as an arbitration not proceeded with. Nevertheless, the Board frequently hears evidence of the worth or worthlessness of a case, for example, an arbitration case as part of the context in which the union's refusal to proceed with the arbitration is evaluated. Further, there is the matter as suggested by the complainant in this case that the remedy is evaluated on the basis of the "value" of the proceeding which was not undertaken.
7The present case is of course more complicated than the more typical section 68 complaint in which the alleged violation relates to a failure to process a grievance to arbitration. In those cases, however, the Board refers to the trade union's perception of the arbitration case rather than the merits of such a case. This is done in a context where the facts in issue are both known to the trade union and the employer. In the present case, the facts requested here are ex hypothesi not known to the trade union and would only be known by bringing a complaint alleging a violation of section 15 to find out the facts by requesting the kind of production order requested here. In my view the problem in the present case stems from the complainant's characterization of the defence raised by the trade union and perhaps the employer in this case. The proper statement of the defence is that it refers to the facts as they were known or ought to have been known by the trade union, that is the extent of the relevant evidence on that issue. The merits of the dispute are not "a defence" and insofar as they are tendered in evidence they simply become part of the context in which the respondent trade union's conduct is to be assessed. The materials requested by the complainant at this point were not known to the union and would only have been known if proceedings were instituted. These materials would not go to the issue of the trade union's "state of mind" when it declined to bring such proceedings and such hindsight as to the merits or possible outcome of such proceedings would not be relevant to the present case before the Board.
8For these reasons, therefore, the complainant's request to direct the production of documents is denied.