London and District Service Workers' Union, Local 220 S.E.I.U., A.F.L., C.I.O, C.L.C. v. Strathroy Nursing Home Ltd.
[1991] OLRB Rep. December 1411
0872-91-R; 0914-91-U London and District Service Workers' Union, Local 220 S.E.I.U., A.F.L., C.I.O, C.L.C., Applicant v. Strathroy Nursing Home Ltd., Respondent v. Group of Employees, Objectors; London and District Service Workers' Union, Local 220, Complainant v. Strathroy Nursing Home Ltd., Respondent
BEFORE: Nimal V. Dissanayake, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.
APPEARANCES: L. Steinberg, K. Bradley and L. Timmers for the applicant/complainant; Andrew Camman, Barry Giffen, Antin Jaremchuk and Carol Hoefnagels for the respondent; Georgina Fleming, Brian T. Daly and Leann Taylor for the objectors.
DECISION OF THE BOARD; December 19, 1991
These are consolidated proceedings relating to an application for certification and an unfair labour practice complaint filed under section 89 of the Labour Relations Act. The applicant has relied on section 8 of the Act in requesting that it be certified without a representation vote. In addition a statement of desire objecting to the application was filed by a group of employees.
The Board commenced the proceedings with an inquiry into the voluntariness of the statement of desire. However, following the first day of hearing a principal witness was hospitalized. Thus, on the agreement of the parties, the Board suspended that aspect of the hearing and proceeded to hear evidence on the application for certification, the unfair labour practice complaint and the section 8 application.
This decision is written at the request of employer counsel, confirming an oral ruling that was made at the hearing on December 13, 1991. In order to appreciate the nature of the dispute that arose and the Board's ruling, it is necessary to briefly set out the context.
At the commencement of the hearing an exclusion of witnesses was requested, and ordered by the Board. One of the allegations made is that Ms. Lisa Timmers was dismissed from her position in the employer's Housekeeping Department contrary to the Act. The principal players involved in this allegation are Mr. Barry Giffen, the owner of the respondent nursing home, and Ms. Carol Hoefnagels, at the relevant time Supervisor of the Housekeeping Department. The decision to terminate Ms. Timmers was made by Mr. Giffen, but in so doing he relied on information provided by Ms. Hoefnagels.
Mr. Giffen testified first for the employer. In his examination-in-chief, Mr. Giffen testified that on Sunday May 12, 1991, he looked for Ms. Timmers in the home between 1:00 - 2:00 p.m., but could not find her. Since her time card indicated that she worked till 2:00 p.m., he became suspicious, and through a memorandum (Exhibit #15) he made inquiries from Ms. Timmers' supervisor, Ms. Hoefnagels. She responded on May 25, 1991 indicating that Mr. Timmers had not requested to leave early or to change her scheduled hours of work on the day in question. Mr. Giffen testified that on May 27, he went through Ms. Timmers' time cards and picked up five which indicated hours which did not match Ms. Timmers' scheduled hours. He testified that he sent a memorandum (Exhibit #13) requesting Mr. Hoefnagels to clarify Ms. Timmers' work hours on those dates, and that he left on vacation "a couple of days" later. It was his testimony that his next involvement was after he returned from his vacation on June 14th, when he read Ms. Hoefnagels' response. Ms. Hoefnagels informed him that no prior approval had been granted to Ms. Timmers to change the scheduled hours of work on the days in question. She also informed Mr. Giffen that from September 5, 1990 to date Ms. Timmers "has 6 cancelled/sick incidents". She went on to state "This is not an acceptable job performance standard. I strongly suggest she be reprimanded accordingly." Mr. Giffen testified that he decided to dismiss Ms. Timmers after reading Ms. Hoefnagels' response.
During Mr. Giffen's cross-examination by union counsel, the following dialogue ensued:
Q When did you leave on holidays?
A End of May.
Q Who with? With Ms. Hoetnagels?
A No.
Q Are you sure?
A Yes.
Q When did you return?
A June 14th.
Q Our witnesses will say that they saw you in the home on June 9th and 10th?
A I was not.
Q Are you denying you were in the home on those days?
A Yes.
Shortly after this interchange, Mr. Steinberg informed that he had been mistaken about dates and that in fact union witnesses will be testifying that Mr. Giffen was seen in the workplace on June 11th.
Mr. Giffen's cross-examination was carried over to the next hearing date. At the commencement of the hearing that day, employer counsel requested and was granted the Board's consent "to raise an issue". Counsel stated that he wished to object to the question put to Mr. Giffen about who he went on vacation with. The Board ruled that the question had already been asked and answered, and that at this stage all counsel can do is argue the relevancy or the weight to be attached to that evidence.
In re-examination by employer counsel the following dialogue ensued between employer counsel and Mr. Giffen.
Q Where did you go for your vacation?
A Las Vegas.
Q When did you leave?
A May 29th. I flew.
Q When did you fly back?
A June 13th.
Q Did you spend money in Las Vegas?
A Yes.
Q Did you use a credit card while there?
A I hope I did.
Q Did you stay in a hotel?
A Yes.
Q How did you pay the hotel?
A In cash.
Q Do you have any record of your flight or you hotel stay?
A I will check. I am sure I will have something.
Q Who was your travel agent?
A I don't recall.
Q Can you get some records from them?
A Anything is possible.
- The next witness for the employer was Ms. Hoefnagels, who had been excluded from the hearing during Mr. Giffen's testimony. During the examination-in-chief of Ms. Hoefnagels, she testified that between May 12th, (when Mr. Giffen wrote Exhibit #15), and May 25th (when she responded to it) she had not discussed the issues raised in the memorandum with Mr. Giffen. The following dialogue ensued later during the examination-in-chief:
Q In the days following did you hear of any repercussions as a result of your response?
A No.
Q Why not?
A I was on vacation.
Q Where did you go?
A Alaska.
Q When did you leave?
A June 1st.
Q Return?
A June 15th.
Then Ms. Hoefnagels testified that she first found out that Ms. Timmers had been dismissed when Ms. Timmers spoke to her on Sunday 16th of June as she came out of church after service, and that at the time she was very surprised to hear that Ms. Timmers had been dismissed.
During Ms. Hoefnagels' cross-examination by union counsel the following question was asked - "Who did you go with on your vacation?" Before Ms. Hoefnagels could answer, Mr. Camman for the employer objected to the question and expressed his concerns about the invasion of the witness' privacy. Mr. Daly, counsel for the objecting employees expressed similar concerns. Following some interchange, and at the suggestion of the Board, Mr. Steinberg rephrased his question to "Did you go on your vacation with Mr. Giffen?" Mr. Camman continued to object to the question and was supported by Mr. Daly. When the Board asked Mr. Steinberg, he informed the Board that he had no idea what the witness' answer was going to be, and that he did not intend to call any independent evidence as to who went with Ms. Hoefnagels on her vacation. He submitted that during examination-in-chief questions were asked about Ms. Hoefnagels' vacation and that the question put to the witness was proper cross-examination because it was very relevant to the question of credibility. He submitted that the union was not attempting to pursue any issue of immorality, but trying to ascertain where, with whom and for how long, Mr. Giffen and Ms. Hoefnagels had gone on vacation.
Mr. Camman submitted that the question should not be allowed although he had established at the commencement of Ms. Hoefnagels' examination-in-chief that she was testifying under subpoena, he stated that Ms. Hoefnagels was very reluctant about testifying and that she agreed to testify only after he had assured her that she will not be required to answer any personal questions. He contended that the "law was clear" that before a personal question like the one here can be allowed, the questioner must establish "a foundation" for the question by undertaking to call independent evidence on the issue. Mr. Steinberg on the contrary had admitted that he had no evidence to call on the matter. According to Mr. Camman, Mr. Steinberg was on "a fishing expedition", and he submitted that even if the question may have relevance "indirectly or tangentially" to issues of credibility, "credibility by itself does not entitle counsel to ask personal questions".
Mr. Daly also made submissions against allowing the question. He contended that since Mr. Giffen was the owner and the principal player against whom the union's allegations have been leveled, and particularly because the union has indicated that it has evidence to show that Mr. Giffen was in the workplace at a time when he claims to have been on vacation, the question may have been a proper one for Mr. Giffen. However, he submitted that "no charges have been made against Ms. Hoefnagels" and that there was no claim that Ms. Hoefnagels was there in the workplace during the period of her claimed vacation in Alaska. Thus Mr. Daly submitted that the question was not a proper one to be put to her.
While counsel gave us their perception of what the "established" and "clear" law was, no authority was cited by any of them. This is understandable since none of them could reasonably have anticipated this particular issue arising during the hearing. The Board, following a brief recess, orally ruled that in its view the question, "Did you go on your vacation with Mr. Giffen?" by itself did not raise an issue of immorality, and that in balancing the union counsel's right to cross-examine a witness to test the credibility of her evidence, the question should be allowed and so ruled. Mr. Giffen and Ms. Hoefnagels have testified that they went their own ways on vacation and had no discussions about Ms. Timmers during that period. It was apparent that the union does not believe that. It was the Board's ruling that the union was entitled to test the credibility of the evidence by asking the question that was put to Mr. Hoefnagels. However, the Board went on to rule that Mr. Steinberg would have to live with the answer of the witness and that he will not be entitled to pursue the issue any further as to who, if anyone, Ms. Hoefnagels accompanied on vacation. In our view this ruling draws a proper balance between the employer's concern about its witness' right to privacy and the union's right to test the credibility of evidence through cross-examination.
Mr. Camman indicated that he wished to apply for judicial review of the Board's ruling and requested that the hearing be adjourned to permit him to do so. Mr. Steinberg strenuously opposed any adjournment. The Board ruled, with Board Member Peacock dissenting, that while the Board had no obligation to adjourn the proceedings merely because a party wishes to judicially review a procedural ruling, given that there was just over 1/2 hour left before the scheduled time to adjourn for the day, and since the cross-examination of Ms. Hoefnagels will be carried over to the next hearing date, union counsel should move to another area of cross-examination for the balance of the day.
Mr. Camman undertook to make the application for judicial review and have the application perfected. Unless there is a direction from the court to the contrary, the Board will resume the hearing on March 6, 1992 as scheduled, at which time union counsel will be permitted, if he so wishes, to put the question, referred to in paragraph 14 above, to the witness again.