[1989] OLRB Rep. June 604
0927-88-M Laundry and Linen Drivers and Industrial Workers, Local 847, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, Goldcrest Furniture Ltd., Respondent v. Gerardo Mercante, Vincenzo Reda, Franco Bini and the United Steelworkers of America, Interveners
BEFORE: S. A. Tacon, Vice-Chair, and Board Members J. A. Ronson and E. G. Theobald.
APPEARANCES: Bernard Fishbein and Fernando da Silva for the applicant; Stewart Saxe and Anna Lavalatta for the respondent; Brian Shell, Brando Paris and Tom Steers for Gerardo Mercante, Vincenzo Reda, Franco Bini and the United Steelworkers of America, interveners.
DECISION OF THE BOARD; May 31, 1989, as amended July 4, 1989
This is a request for reconsideration of the Board decision dated August 15, 1988 consenting to the early termination of the collective agreement then in operation. For convenience, the party seeking reconsideration (technically, the United Steelworkers of America and the specified individual members of the bargaining unit) is referred to as the USWA. The incumbent trade union is referred to as the Teamsters and the company as Goldcrest.
During the hearing, an issue arose as to the admissibility of membership cards sought to be tendered by the USWA. It is useful to note at this point that the membership cards in question had never been submitted in support of a certification application by the USWA, although it was a certification application by the USWA in which it was seeking to displace the Teamsters (Board File 2963-88-R) which led to the instant request for reconsideration. The parties' respective positions may be briefly summarized as follows.
The USWA asserts the membership cards are relevant to its assertion that the USWA engaged in an organizing campaign with respect to the employees of Goldcrest in December 1987 and as physical evidence corroborative of their witness's testimony (B. Paris). The cards are tendered to establish their existence and number (approximately 100) but not for the identities of the signatories, the dates, the collectors, etc. It is also submitted that the cards fall within the scope of section 111(1) of the Labour Relations Act and should not be disclosed by the Board.
Counsel for Goldcrest submitted that the membership cards were irrelevant to the issue before the Board, which is whether the employees in the bargaining unit had notice of the request for early termination of the collective agreement. If the cards were relevant to this issue or to the alternative argument that the USWA was entitled to notice, counsel submitted the company was entitled to examine those cards. That is, the company asserted that, if the cards were admitted, the company needed to know the names of the signatories in order to respond to the question as to whether the USWA had notice and whether the company was or should have been aware of the USWA organizing campaign. Moreover, it was contended that the reasons for confidentiality, as protected in section 111(1), did not apply to the instant context wherein the company had been organized by one or another trade union for many years.
Counsel for the Teamsters submitted he was entitled to examine the cards on several grounds. Firstly, although section 111(1) may be construed as protecting the confidentiality of the cards, that the cards were not submitted in support of a certification application and were voluntarily proffered as relevant evidence by the USWA supported the exercise of the Board's discretion to permit disclosure on the usual principle that all parties are entitled to examine the exhibits. It was also argued that, in tendering the cards as evidence, counsel for the USWA waived the protection of section 111(1). Counsel for the Teamsters adopted the submissions of company counsel with respect to relevance. In addition, counsel contended the USWA organizing campaign in December 1987 was not relevant to the application for early termination of the collective agreement between the Teamsters and Goldcrest in August 1988. Moreover, it was argued that the identities of the signatories were arguably relevant to the question of the delay of roughly seven months in filing the instant reconsideration request. Counsel added that whether the cards were corroborative of the witness's testimony could not be tested by the other parties without disclosure of the cards. Thus, counsel submitted that the cards should not be admitted in evidence or, if so admitted, should be disclosed.
The Board must, then, determine whether the cards are admissible or whether they should be admitted as a matter of Board discretion and, if admitted, whether the other parties should be permitted to examine the cards, also as a matter of Board discretion. The Board first considers the question of section 111(1) and then the question of the cards' admissibility as a matter of law and Board discretion.
Section 111(1) of the Act establishes the confidentiality of membership evidence and provides that such information may only be disclosed upon consent of the Board: see Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223 for a review of the background to the section. In exercising its discretion to determine whether the identity of a union member should be disclosed, the Board has been understandably circumspect and has balanced the clear legislative intention to regard such material as confidential against the other relevant factors in a particular case. Generally, except in circumstances wherein the Board proceeds with a non-pay or non-sign allegation, the Board has refused to permit questions to be asked which would disclose a member's identity or to permit the inspection of the membership cards unless that right is waived by the union and the individual concerned: Grand & Toy, supra; Dominion Paving Limited, [1986] OLRB Rep. June 705; K Mart Canada Limited, [1982] OLRB Rep. Nov. 1660; Thames Steel Construction Ltd., [1980] OLRB Rep. Apr. 545; Radio Shack, [1978] OLRB Rep. Nov. 1043.
In this instance, the cards are not submitted in the context of a certification application. This is a request for reconsideration of a decision consenting to the early termination of a collective agreement in which the party tendering the cards is an applicant in another certification application (Board File 2963-88-R); the membership cards here in question were not submitted in support of that application either. In the Board's view, notwithstanding the unusual context, the wording in section 111(1) is broad enough to extend to the membership cards in question. Further, even if it may be said the USWA has "waived" is rights with respect to the confidentiality of the cards, the Board does not consider that the USWA has the authority to waive the entitlement of each signatory to the cards to non-disclosure of his/her identity. On this aspect, the Board rejects the assertion by Teamsters counsel that, by tendering the cards, the protection afforded by section 111(1) has been "waived".
Given that section 111(1) is applicable in the instant circumstances does not resolve the question of whether the Board should exercise its discretion to permit the other parties to review the membership cards. In determining that question, the Board must have regard to the purpose for which the cards are tendered, the relevance of the cards to the issues in dispute, their probative value and the potential prejudice to the other parties in not permitting those parties the right to examine the cards.
The issue before the Board is whether the Board should reconsider its decision in August 1988 consenting to the early termination of the collective agreement between Goldcrest and the Teamsters. The USWA asserts reconsideration should be granted on the grounds that there was no notice, or no reasonable notice, to the employees or to the USWA of the early termination request, notwithstanding the USWA's organizing campaign in December 1987. The company and the Teamsters reject those assertions as matters of fact and of law in that, it is argued, notice was not required to be given to the USWA.
In this context, the membership cards are hearsay evidence potentially corroborative of the USWA's direct evidence that it initiated an organizing drive in December 1987. The Board may, in its discretion, admit hearsay evidence by virtue of section 103(2)(c). The cards, of themselves, do not establish whether the signatories were employees in the bargaining unit as at December 1987 nor do they establish the extent of the USWA's support amongst bargaining unit members. To resolve these questions, the membership cards must be compared with a schedule of employees in the bargaining unit as at that date. Even if the company could construct a list of bargaining unit members as at December 1987 at this point in time (May 1989), verification of that list (as would occur in the context of a certification application) by the USWA and the Teamsters would be exceedingly difficult. Moreover, the level of the ostensible support for the USWA in December 1987 is not directly an issue before the Board. In any event, the USWA may seek to prove that fact, to the extent that it is arguably relevant, through the leading of direct evidence of its organizer, as it has done.
At this juncture, the Board is prepared to assume the cards are arguably relevant to the issues. However, even on this assumption the limited probative value of the membership cards, as hearsay evidence submitted without a declaration as to their authenticity and without the context provided by the schedule of employees in the bargaining unit, must be considered with respect to whether the Board should exercise its discretion under section 111(1) and whether the Board should exercise its discretion to admit the cards at all.
The Board must also consider the potential prejudice to the other parties should the cards be admitted but not disclosed. Counsel for the company asserts knowledge of the identities of the US WA's supporters is relevant to the question of notice; counsel for the Teamsters concurs and, as well, contends their identity is relevant to the question of delay in filing the reconsideration request. In its view, the Board need not conclusively determine this issue but notes its reticence to permit evidence to be tendered by one party but not disclosed to the other parties. In (non-construction industry) certification applications, the membership evidence is supported by a Form 9 Declaration attesting to its authenticity. That confirmation is not present in the instant case. The Board affirms the jurisprudence wherein the Board has held the section 111(1) protection does not prejudice a respondent given the issues in dispute in certification applications except where the Board proceeds with non-sign or non-pay allegations wherein the relevant identities are disclosed (see, for example, Grand & Toy, supra). The assessment of potential prejudice therein, however, is not readily analogous to the instant proceedings given the quite different matters in dispute.
Thus, the potential prejudice to the other parties of non-disclosure in proceedings other than certification applications would argue for the Board's exercise of its discretion to consent to the revealing of the identities of the signatories to the membership cards. Conversely, the Board's long-standing reluctance to reveal an individual's support for a trade union in accordance with the legislative intent of section 111(1) except in respect of non-sign or non-pay allegations (where the Board hears such allegations and, therefore, disclosure is unavoidable), would support continued confidentiality. A critical factor in the instant case is the limited probative value of the cards and the context of the issues before the Board. In this regard, the Board need not repeat its analysis in paragraphs 11 and 12. The Board considers that the competing interests may be balanced by exercising its discretion to refuse to admit the membership cards. In so doing, the Board is preserving confidentiality and not prejudicing the other parties. Further, the Board notes that the USWA has already led direct evidence seeking to establish that the USWA conducted an organizing campaign among the employees of Goldcrest in December 1987. This ruling only precludes the leading of hearsay evidence in the form of the membership cards seeking to corroborate that direct evidence.
For the foregoing reasons, the Board rules that the membership cards may not be admitted.
This matter is referred to the Registrar.