[1991] OLRB Rep. June 727
0212-91-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 800, Applicant v. Acme Building & Construction Ltd., Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members D. A. MacDonald and I. Redshaw.
DECISION OF THE BOARD; June 10, 1991
By decision of the Board on May 8, 1991 a Labour Relations Officer was appointed to inquire into and report to the Board on the list of employees and the composition of the bargaining unit.
The parties have met with a Labour Relations Officer on May 28, 1991. By letter dated May 31, 1991 counsel for the respondent wrote to the Board and requested that this matter proceed to a hearing rather than examinations by an officer. In support of this request counsel stated:
The issue seems, at this point, to be who was the employer of the employees in question. It appears to the Respondent that the issue involves more than an examination of the employees. In addition to the two employees, the Union advises that it has four witnesses. The Company, at the least at this time, intends to be calling witnesses from the sub-contractor, the bonding company, its adjuster, the project owner and project supervision. Given the extent of the additional evidence to be called, we submit that this matter would be expedited by a hearing panel of the Board. There also appears to be a significant question of credibility.
- Subsequently, by letter dated June 5, 1991 counsel for the respondent again requested a hearing stating:
This is further to our letter of 31 May, 1991, in which we requested that this matter be listed for a hearing. It is our understanding that there will be significant contradictory evidence in this matter and that credibility of the witnesses will be crucial. Therefore it is essential in the interests of justice that the direct evidence and the cross examination of witnesses occur under oath.
In our view and having regard to the experience of the Board in dealing with certification applications and the issues raised in these applications (including issues similar to the ones raised in this application,) this matter would not be expedited by having the matter proceed directly to a hearing before a panel of the Board.
With respect to the assertion that there appears to be a significant question of credibility, the Board will neither interrupt nor terminate the authorization of the Board Officer to inquire into and report to the Board on the list of employees and composition of the bargaining unit to permit that issue to be brought before the Board for hearing. The potential for a credibility issue with witnesses exists in any matter where parties take opposite views, whether this be in an inquiry being conducted by a Board Officer or in a hearing before the Board. When there is an issue of credibility of witnesses testifying in a Board's Officer's inquiry, the Board usually will be able to resolve the credibility problem by scrutinizing the verbatim transcript of the Officer's proceedings, often assisted by the later oral submissions of the parties on the contents of the transcript. In the rare instances where the Board would not be able to resolve a credibility issue, it is always open to the Board to have the witnesses brought before it for an examination of their demeanour during direct testimony before the Board.
The Board dealt with a similar request in its decision in Kaneff Properties Limited, [1980] OLRB Rep. November 1653 and in the process of so doing reviewed the statutory foundation for the Board delegating to a Board Officer the taking of evidence on issues which commonly arise in applications for certification. While the specific issue in that case which had been put to examination by a Board Officer is different from the one herein, the issue herein is equally appropriate for the evidence about it to be taken by a Board Officer. In Kaneff , supra, the issue of credibility arose upon cross-examination of a witness during the course of the Officer's inquiry. In the instance case, the applicant merely anticipates the problem of a credibility issue arising. In the Board's view, the reasons given by the Board in Kaneff , supra, for refusing to interrupt the Board Officer's inquiry and to bring the parties before the Board are equally applicable to the circumstances of the request in the instant case.
For these reasons the Board directs that the Labour Relations Officer's inquiry continue. The appropriate time to deal with any issues of credibility, if necessary, is after the parties have received the Labour Relations Officer's report and after the Board has received the submissions of the parties with respect thereto.