Ontario Labour Relations Board
[1990] OLRB Rep. January 17
1891-89-R Marjorie Meighan, Applicant v. Hotel Motel and Restaurant Employees Union Local 442, Respondent v. Berto's Restaurant Inc., Intervener
BEFORE: Brain Herlich, Vice-Chair, and Board Members W. A. Correll and C. McDonald.
APPEARANCES: Edward Kok for the applicant; James A. Whyte and W. Whyte for the respondent; B. W. Adams, T. Ryan and A. Perez for the intervener.
DECISION OF THE BOARD; January 17, 1990
1The name of the applicant and the respondent is amended to read: "Marjorie Meighan" and "Hotel Motel and Restaurant Employees Union Local 442".
2This is an application for a declaration terminating bargaining rights.
3At the commencement of the hearing the Board was advised that the respondent union had caused a summons duces tecum to be served upon Tom Ryan, president of the intervener employer. The summons required Mr. Ryan to bring with him and produce the following documents at the hearing:
All Payroll Records
All UIC, CPP, Income Tax Reports to Revenue Canada
Bank Statements
Cheques and Cheque Stubs
Employee Application Forms For Hire.
4The union sought an order from the Board requiring production of the above noted documents and an opportunity to review same.
5Counsel for the intervener advised the Board that, although the documents in question had been collected and brought to the hearing, the employer was objecting to any order allowing the union to review the documents. The employer raised questions regarding the validity and enforceability of the summons and asserted that the respondent union was engaged in a fishing expedition and should be required, at a minimum, to satisfy the Board of the arguable relevance of the documents sought to be produced. The employer noted as well that the only matter in dispute between the parties appeared to be the voluntariness of the document filed in support of the application and that the union had not heretofore filed any complaint or made any particularized allegations of misconduct. The Board was referred to Shaw-Almex Industries Limited, [1984] OLRB Rep. Apr. 659.
6After hearing the submissions of the parties the Board ruled orally that, at that stage of the proceedings, the union had been unable to persuade the Board of the arguable relevance of documents it was seeking and consequently no production order issued.
7The applicant proceeded to call its evidence as to the origination and circulation of the document filed in support of the application. The respondent then called Mr. Ryan whose examination-in-chief was not completed before the Board concluded its hearing on the day.
8Prior to the conclusion of the hearing, however, a number of further procedural matters arose. Fortunately, with only one exception, the parties were able to resolve these matters at the hearing.
9The respondent renewed its request with respect to production of documents. At this juncture, however, the respondent was much more specific in what was being sought. In particular the respondent sought production of the following:
Time cards for all employees working on the days the petition was being circulated.
Payroll documents to indicate whether or not union dues had been deducted from the pay cheques of three named individuals.
Documents relating to the deduction of monies from employees' pay for contribution to a "social club". In particular the union was interested in any contributions made by Jill Ryan, Tom Ryan's Spouse.
10With respect to the last item, Mr. Ryan was able, during a recess in the proceedings, to consult certain records and to ascertain that Jill Ryan had, in the pay period November 23-26, 1989 had $2.00 donated on her behalf to the social club. Mr. Whyte, on behalf of the union, indicated he was content with this response and was not seeking any further production of documents relating to deductions from pay for contributions to the social club.
11With respect to the second item Mr. Adams, on behalf of the employer, undertook to provide the union with an opportunity to review the relevant documents.
12No agreement was reached with respect to the production of time cards.
13The union asserted that the applicant gave evidence consistent with the conclusion that employees were given time off work for the purpose of signing the petition filed in support of the present application.
14The Board is satisfied that such a fact, if proved, would be arguably relevant to the issue of the voluntariness of the petition and, in particular, to the issue of management involvement in or perceived management involvement in the origination or circulation of the petition.
15The Board therefore directs the employer to provide the union with the opportunity to review the time cards in question, specifically the time cards for all bargaining unit employees for the days October 15, 16, 17, 18 and 20, 1989. In order to avoid any further delays in the hearing in this matter, such opportunity shall be provided at the earliest opportunity and, in any event, no later than one week prior to the next scheduled hearing date. The union, if it so desires, should have the opportunity to make photocopies of the documents in question. The original documents should be brought to the next day of hearing in this matter.
16The Board also notes that the respondent indicated, in writing and orally at the hearing, that it intended to rely on the history and "climate" of labour relations between the parties in arguing that the present application be dismissed.
17Mr. Adams, on behalf of the employer, indicated at the outset that, if and when such evidence was sought to be introduced, he would object to its admissibility.
18In the context of dealing with the earlier noted matters, the Board further canvassed the parties' views with respect to the "climate evidence".
19The union outlined a series of employer actions involving the discipline and discharge of a number of employees. These events took place over a period of time ranging roughly from the fall of 1988 until approximately three months prior to the date of the first day of hearing in this matter.
20Some of these incidents were the subject of complaints under section 89 of the Act (which were subsequently settled and withdrawn), some were subject to the grievance and arbitration procedure. There is currently no outstanding litigation arising out of any of these incidents.
21The employer, while not disputing that these various disciplinary incidents took place, challenged the relevance of these events to the present proceedings and was obviously not prepared to concede that these events either singly or cumulatively constituted unlawful or otherwise improper conduct on the part of the employer.
22Ultimately, however, Mr. Whyte on behalf of the union indicated that it was not his intention to litigate these disciplinary matters in the context of the present proceedings, and that he would consequently choose not to call any further evidence with respect to the "climate" of labour relations between the parties.
23Hearing in this matter will continue on February 8, 1990.