Famz Foods Limited v. United Food and Commercial Workers Union

[1985] OLRB Rep. March 398

2486-84-U; 2487-84-U; 2488-84-U Famz Foods Limited, Complainant, v. United Food and Commercial Workers Union, Respondent; Bini Foods Limited, Complainant, v. United Food and Commercial Workers International Union, Respondent; Dinnerex Incorporated, Complainant, v. United Food and Commercial Workers International Union, Respondent

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.

APPEARANCES: Stephen J. McCormack for the complainants Famz Foods Limited and Dinnerex Incorporated; Brian O'Byrne for the complainant Bini Foods Limited; Martin Levinson and Kevin Park for the respondent.

DECISION OF THE BOARD; March 25, 1985

1. These complaints were filed under section 89 of the Labour Relations Act alleging violation of section 15 of the Act. The parties agreed that the three complaints would be heard together but not formally consolidated. Simply put, each of the respondents operates a Swiss Chalet franchise and is currently bargaining with the respondent for a first collective agreement.

2. Pursuant to a direction of the Board, the parties met and were able to agree on a partial statement of facts. Apart from this agreement (including agreement orally on a few matters) and several documents placed before the Board, the complainants chose to call no further evidence.

3. Counsel for the respondent commenced its case by calling one Kevin Park, a staff representative of the respondent and involved in the negotiations between each of the complainants and the respondent union. Examination in chief was completed on the first day of hearing; cross-examination was not commenced. A continuation date was set for February 26, 1985.

4. Before that date, however, the complainants served Park with a subpoena duces tecum. The covering letter on the subpoena from counsel for the complainant Famz Foods is dated February 20, 1985. There is no dispute that the subpoena was properly served although the Board was not informed as to the precise date of service; presumably service was on or after February 20th. There is also no dispute that Park would have control over and be able to produce the documentation mentioned in section 3(i) of the subpoena as may exist.

5. At the hearing on February 26th, counsel for the respondent challenged the propriety and scope of the subpoena on several bases. The Board heard the submissions of all parties on the issue of the proper scope of the subpoena. The Board adjourned proceedings and agreed to issue an interim decision in this matter prior to the next continuation date. The Board notes that, with respect to several cases cited by counsel for the respondent in reply, counsel for the complainants were given the opportunity to make written submissions to the Board by March 8th.

6. The foregoing is intended to briefly outline the background leading to this interim ruling. The submissions of the parties and the Board's determination of the issue are set out in more detail below.

7. It is appropriate at this point to set out Schedule A attached to the subpoena served on Park:

8. Return of posting by registered mail card and copy of registered letter dated December 13, 1984 addressed to Allen A. Morrow from Kevin Park:

9. Courier slip acknowledging receipt of and copy of letter dated January

8, 1985 addressed to Kevin Park from Allen A. Morrow;

3. Copies and/or originals of any and all records, writings, memoranda, correspondence, minutes, leaflets, literature updates flyers and pamphlets (hereinafter collectively and individually referred to as the documentation) in the possession, custody, power and/or control of the union as hereinafter defined and/or yourself touching and concerning and/or dealing with proposed and/or actual collective bargaining negotiations between and/or among the United Food and Commercial Workers, International Union and/or any of its locals, districts, regional councils or subordinate bodies and affiliates (hereinafter collectively and individually referred to as the "Union") and owners, operators and/or franchisees who carry on business under the name and style of Swiss Chalet Bar-B-Q restaurant in the Province of Ontario (hereinafter collectively and individually referred to as the "Employers"), and tn particular, without limiting the generality of the foregoing:

(i) documentation touching, concerning pertaining to and/or dealing with the unions strategies, designs, programs, positions, timing and/or goals with respect to the structure, scope, content and conduct of the above-mentioned collective bargaining negotiations including documentation relating to joint bargaining, common bargaining, multi-employer bargaining, province-wide bargaining and/or simultaneous or concurrent bargaining between the union and the Employers; and

(ii) any and all documentation relating to the complaint herein.

8. With respect to items I and 2, counsel for the respondent asserted such material was not available; counsel for the complainants did not press this further.

9. In view of the positions taken by the parties, it is also necessary to summarize Park's examination-in-chief. This summary does not involve any findings of fact or assessment of credibility by the Board.

10. Park's testimony-in-chief may be summarized as follows:

(a) Park has been on staff of the UFCW since 1981 and has been involved in the Swiss Chalet negotiations;

(b) Park testified that exhibit 4 had not been received when exhibit 5 was drafted; (exhibit 4: a letter from one Allen Morrow, Director of Human Resources/Industrial Relations dated January 8, 1985 which, inter alia, stated that negotiations would be at individual Swiss Chalet locations.)

(c) exhibit 5: Park's letter to Morrow dated January 9, 1985 states, in part:

I would renew my suggestion that in light of the similarities of the bargaining units, employers, collective bargaining agent and employer representatives that a single mutualy [sic] site and time be adopted for the bargaining in all of these locations to commence.

(d) Park said he did not take the position that bargaining would not commence unless the companies agreed to joint bargaining and, indeed, negotiating meetings were held at the separate locations;

(e) at the bargaining meetings, Park outlined the union proposals (exhibit 6) and the reasons for the various demands, including the seniority/ inter-store transfer clauses;

(f) during the negotiating meetings, Park testified he did not indicate that the union would not negotiate further unless or until the seniority/inter-store transfer proposals were accepted;

(g) future dates for negotiations at each location were set, tentatively set or being discussed by Park and Sharon (the chief negotiator for all these complainants);

(h) with respect to the reference in item 7 of the agreed statement of facts, Park stated he did not learn of Morrow's vacation plans until January 21st when so informed by Sharon, i.e. Park was not aware of the conflict between Morrow's vacation and the dates proposed for negotiations in Park's letter of January 9th when that letter was drafted;

(i) further, at the time the January 7th letter was drafted, Park stated he did not know that Morrow would be directly involved in the negotiations;

(j) Park testified that he met with Sharon in all of the negotiating meetings, although there were others present for the complainants as well; Morrow was present at the Ottawa store negotiations but Park indicated that Morrow did not play a leading part in presenting the company's position.

11. Counsel for the respondent submitted that the wording in item 3(i) of the subpoena duces tecum covered a broad range of matters relating to the union's negotiating strategy which were not material to the allegations in the complaints. Moreover, it was argued that since the union had not set joint bargaining and/or the seniority/inter — store transfer proposals as a precondition, nor were the parties at impasse, the request for documentation with respect to both issues was irrelevant. Counsel referred to Shaw-Almex Industries Limited [1984] OLRB Rep. Apr. 659 and the cases cited therein particularly, The Becker Milk Company Limited. [1974] OLRB Rep. Oct. 732; Re Bell Canada (1980) 1980 CanLII 4017 (CA LA), 25 L.A.C. (2d) 200; Agilis Corporation Limited. [1971] OLRB Rep. Feb. 98; Gordon-Nelson Development Company Limited, [1984] OLRB Rep. June 807; Master Insulation Company Limited. [1981] OLRB Rep. Jan. 94. Counsel characterized the subpoena as a "fishing expedition". Counsel also opposed the subpoena on policy grounds. It was argued that collective bargaining was the cornerstone of the Labour Relations Act; the Board should not enforce disclosure of documents which would be highly prejudicial to the union in conducting its negotiations and, thereby, undermine the collective bargaining process. The dangers of such disclosure were particularly acute where, as here, it was submitted, the bargaining proposals often identified union members at various Swiss Chalet locations and the complaint was frivolous and harassing or, at least, premature. The Board notes that counsel referred to several cases, including Bois Lachance Lumber Limited, [1984] OLRB Rep. Jan. 1, dealing with termination applications. The Board does not consider these cases relevant to the subpoena issue and, hence, does not refer to these further.

12. For convenience, the arguments of both counsel for the complainants are set out together as each adopted the comments of the other. The Board also notes at this point that all counsel slid into arguments directed toward the merits of the allegations. As this decision deals only with the subpoena duces tecum, the Board has not set out the various arguments on the merits except as necessary to the submissions on the subpoena issue. The Board makes no factual or legal findings in this decision other than those strictly necessary to deal with the respondent's objections to the subpoena. Specifically, the Board is not addressing the merits of the alleged violations.

13. Counsel for the complainants contended that the subpoena was not intended to obtain the union's strategy with respect to the various issues in dispute at the bargaining table. The complaint alleged that the union had a premeditated course of conduct directed to delaying the conclusion of collective agreements, to going through the motions of bargaining to ensure the union would be in a position to strike all stores at the same time. Counsel argued the union had dragged its heels and was not interested in real bargaining until the timing was right, in the union's view. The subpoena was intended to obtain any documents relating to the union's strategy with respect to "simultaneous" bargaining at the various locations. Counsel submitted the respondent had, in examination-in-chief, opened the issue of bargaining at all Swiss Chalet locations. Counsel also submitted the Shaw-Almex decision, supra, required the party served with the subpoena to first deposit the documents so as to permit examination by the other party before the relevance of various documents could be argued. Further, counsel asserted the implied undertaking against improper use of the information contained in the documents, also as set out in Shaw-Almex, was sufficient protection. Finally, counsel argued that section 15 would have been violated, and therefore the documents relevant, if the union had decided to insist on simultaneous bargaining whether or not the union had backed off from that position before impasse. In counsel's view, the subsequent individual negotiations would not have cured the violation, although the remedy would be moot except to prevent repetition of such conduct.

14. As counsel for the complainants expressed a willingness to re-draft the subpoena to restrict its scope to what was intended, at this point the Board directed the parties to meet to ascertain whether, in view of the comments thus far, there could be agreement as to the proper scope of the subpoena. The parties were unable to so agree. However, counsel for the complainants proposed an amendment to item 3(i) 50 that section would read:

3(i)documentation touching, concerning pertaining to and/or dealing with the unions strategies, designs, programs, positions, timing and/or goals with respect to the structure, scope, content and conduct of the above-mentioned collective bargaining negotiations including documentation relating to joint bargaining, common bargaining and/or simultaneous or concurrent bargaining between the union and the Employers; and but for greater certainty, no documentation need be produced concerning the future position of the union with respect to any particular issue in dispute in bargaining, such as, wages, health and welfare benefits, etc.

15. Counsel for the complainants made the following comments by way of clarification of the above rewording of 3(i):

(a) the "future position" included documents relating to the preparation of even the respondent's current proposals on those particular issues in dispute;

(b) the complainants were not seeking to obtain by way of subpoena documents relating to the language of the various proposals, i.e., the union's bottom line and "points above" apart from the specific proposals already actually tabled by the union;

(c) while it was conceded the parties were not yet at impasse, the complainant was seeking by way of subpoena any document relating to the seniority/inter-store transfers proposal which touched on an intention by the union to proceed to impasse on those issues.

16. In reply, counsel for the respondent disputed that Shaw-Almex, supra, required the production of documents before the party served with the subpoena could argue relevance, otherwise the caveats expressed in Shaw-Almex at paragraph 17 would be useless. Moreover, counsel stressed that the Board in Becker, supra, and Master Insulation, supra, had cut back the scope of the subpoena. Counsel also argued that, even if there was a plan to insist in joint bargaining, the fact that negotiations had actually occurred at individual locations meant that the material sought was irrelevant. In summary, counsel asked that the Board not order disclosure or, in the alternative, that the Board review each document before determining which, if any, should be disclosed.

17. The Board rejects the assertion of counsel for the complainants that the decision in Shaw-Almex, requires that all documents be produced for examination by the party serving the subpoena before the party served can challenge the propriety and scope of the subpoena. In Becker Milk, supra, for example, the Board, after considering the submissions of the parties, cut hack the scope of the subpoena duces tecum. There is nothing improper in the respondent making submissions to the Board regarding the subpoena before producing the documentation.

18. Clearly, the subpoena duces tecum may not be used as a "fishing expedition" or to harass a party: see Shaw-Almex, supra, in particular and the cases cited therein. The party seeking documentation, however, need not demonstrate that the material sought is more than arguably relevant to the issues in dispute (see Gordon-Nelson, supra). As stated in Shaw-Almex, supra,

The ultimate relevance of the information sought need not and cannot be resolved at this stage. That is a matter the Board can determine only when all the evidence is in. It is enough that information in the documents might be relevant, and that the documents might be admissible. (See Re Chelsea Inn, (1979) II C.P.C. 239 (Ont Div. Ct.)).

19. What the complainants are alleging in this case is as follows:

The complainant states that the actions of the respondent in failing to meet within fifteen days of having provided the complainant with notice to bargain, and in making bargaining conditional upon joint bargaining with the employers, including making demands pertaining to the operations of other employers, constitutes a continuation of its premeditated course of conduct directed towards the delay and ultimate conclusion of a collective agreement all of which is contrary to the Act and in particular section 15.

(See letter dated January 25, 1985 from counsel for one of the complainants, Famz Foods.) The allegations of the other two complainants are identical.

20. In the Board's view, the subpoena as originally drafted was too broad; documentation not arguably relevant to the allegations was included. Moreover, the Board must exercise considerable caution where a subpoena duces tecum extends to documents which are closely related to the preparation for and conduct of negotiations, particularly where the parties are still engaged in bargaining. The encouragement of the practice and procedure of collective bargaining, as expressed in the preamble to the Labour Relations Act, is fundamental to the legislation and should be protected by the Board. Although parties frequently resist production of documentation on the basis that such material is "confidential", the Board does not protect such "confidentiality" (see generally, Shaw-Almex, supra, Gordon-Nelson, supra, and the cases referred to in both decisions). Nonetheless, disclosure is not without restriction. As stated in Shaw-Almex, supra, at page 670,

In our view, there is an implied undertaking by a party to whom documents are produced as a result of the use of summons duces tecum issued by the Board. It is an undertaking to the Board as much as to the party from whom production is compelled. The undertaking is that the documents will not be used for collateral or ulterior purposes.

Notwithstanding the implied undertaking noted above, the Board stresses that some documentation, while relevant, may be so sensitive that the Board might well impose express and onerous restrictions as to disclosure on parties seeking documentation or their counsel. Further, the Board may well be reluctant to order disclosure before the stage in the proceedings where such disclosure is absolutely essential.

21. The decision of Shaw-Almex, supra, did not extend the rights of a party to seek documentation from another party by way of a subpoena duces tecum. Rather, Shaw-Almex stands for the proposition that the Board, if satisfied that the documentation is relevant and would be required to be produced by a witness during a hearing, could properly direct that the documentation be produced prior to the actual hearing. Through ordering the material, as specified, deposited with the Registrar for view by the parties prior to the hearing, the Board could thereby expedite the proceedings. However, Shaw-Almex does not support an assertion that an issue of the relevance or existence of certain documentation should be resolved through ordering deposit of these documents with the Registrar.

22. In the instant case the complainants reiterated their intention not to seek documentation with respect to a wide range of bargaining issues; the proposed "amendment" to the subpoena (see paragraph 14 above) sought to restrict the scope of the subpoena. The Board, however, does not consider the proposed amendment to appropriately express the intended restrictions.

23. In the Board's view, the parties were essentially asking the Board to direct production of the documents the Board regarded as appropriate in the context of the parties' various submissions. Given the sensitivity of the documentation and the stage in the proceedings, the Board is not prepared to exercise its discretion, as in Shaw-Almex, supra, and order the documents deposited with the Registrar for review by the complainants before this matter comes on again for hearing. Rather, the Board directs that the witness Park bring such documentation as specified below to the next scheduled hearing. At that time, the complainants are to commence cross-examination of Park. The existence of any specific document, its relevance and actual production may be dealt with during the hearing on a document by document basis.

24. Having regard to all of the foregoing, the Board directs the witness Park to bring the following documentation to the next scheduled hearing:

all records, memoranda, correspondence and minutes in the possession, custody, power and/or control of the respondent,

(i) discussing the respondent's strategy, timing, positions and/or goals relating to bargaining on a joint, common, multi-employer or province-wide bargaining basis between the respondent and all owners, operators and/or franchisees who carry on business under the name and style of Swiss Chalet Bar-B-Q restaurant in the Province of Ontario;

(ii) relating to the seniority and/or inter-store transfer proposals which touch on the factual issue of whether the respondent formed an intention to proceed to impasse on these issues.