Labourers International Union of North America, Local 607 v. Grant Development Corporation and/or Pic Heron Bay Indian Band, 1992 CanLII 6740

Labourers International Union of North America, Local 607 v. Grant Development Corporation and/or Pic Heron Bay Indian Band

[1992] OLRB Rep. February 174

1575-91-R; 1902-91-U Labourers International Union of North America, Local 607, Applicant/Complainant v. Grant Development Corporation and/or Pic Heron Bay Indian Band, Respondents

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. A. Correll and R. R. Mon­tague.

DECISION OF THE BOARD; February 14, 1992

I

1. This is an application for certification which has been consolidated, and is being heard together with a related unfair labour practice complaint. A key issue in the proceeding is the iden­tity of the employer of the individuals whom the trade union seeks to represent. Briefly put, these workers were engaged on a construction project near Thunder Bay and the union claims that they were employed by one or other of the named respondents. Each of the named respondents denies that it is the "employer" for the purposes of the Act, and each respondent points to the other as the probable "employer" for Labour Relations Act purposes. This issue is important because:

(a) in the certification proceeding the union acquires bargaining rights for a particular employer which is thereafter obliged to engage in col­lective bargaining in respect of the employees whom the union repre­sents; and,

(b) in the unfair labour practice proceedings, it is "the employer" of any "employees" unlawfully discharged who will bear primary responsi­bility for that discharge.

We might note that pursuant to section 91(5) of the Act, it is "the employer" of the employees allegedly improperly dealt with who bears the onus of proof in an unfair labour practice proceed­ing. We might also add that, in this case, it appears that the named respondents either individually or together are the only possible "employer" for labour relations purposes. There is no other com­mercial entity identified which might occupy that position.

2. In summary then, we have a situation in which a group of workers whom the union seeks to represent were engaged, for a time, on a construction project involving the named respon­dents, and, through a process which has not yet been determined, found themselves suddenly "out of a job". Neither respondent admits any knowledge of or responsibility for the way in which those workers came to be "employed" (by someone) then subsequently found themselves "unem­ployed". Each named respondent points to the other - hence the union's claim that one or the other of them must be "the employer" for Labour Relations Act purposes. Obviously, it is impor­tant for the resolution of this issue to identify the legal and economic elements which establish the identity of "the employer", which requires an examination of the commercial relationship between the respondents and the subject workers. That, in turn, will entail a consideration of any commer­cial or business documents which bear upon the relationship between the respondents, or the respondents and those workers, as well as any evidence concerning the way in which managerial authority may have been exercised (or not) in respect of those workers.

II

3. In accordance with its usual practice, the Board appointed a Labour Relations Officer to meet with the parties to endeavour to effect a resolution or simplification of the matters in dis­pute between them. When that process proved unsuccessful, the Board scheduled a series of hear­ings, in Thunder Bay, in order to more conveniently hear the parties' evidence and representations on the matters in dispute. Thunder Bay was chosen as a convenient location even though the Board panel and two of the three counsel came from Toronto.

4. We mention this because it was evident in the first days of hearing that there had not been a complete exchange of documents between the parties and their counsel, with the result that the Board hearing was periodically interrupted when new documents were produced, considered, compared with those that had already been introduced, or copied for counsel and members of the Board panel. We do not, at this stage, fault counsel for this situation, but the fact is that the local facilities available to the Board in Thunder Bay did not have the Fax and photocopying equipment available in Toronto, and the interruptions produced a disjointed presentation of the evidence. That is obviously undesirable from a variety of perspectives, including the additional costs which will have to be absorbed by the parties and the public if the absence of pre-hearing discovery/disclosure lengthens the litigation. In particular, this is an application which pertains to the construction industry where time is "of the essence" because employment relationships are transitory. To put the matter in practical terms: if a union is entitled to certification but, for what­ever reason, is unable to obtain a certificate from the Board in a timely way, the entire exercise may be academic since the work will have been done "non-union" even though the employees con­cerned may have indicated an interest in trade union representation.

5. Following the initial days of hearing, the Board once again assigned an Officer to meet with the parties to pursue the further possibility of settling, simplifying or streamlining this litiga­tion. In so doing, the Board noted the production problems mentioned above (see: the Board's decision of November 19, 1991). Some progress was made, but by letter dated February 6, 1992 counsel for the union wrote to the Board as follows:

In order to obtain full and complete disclosure, the Applicant has served the attached Summons to Witness upon counsel opposite for the production of all documentation referred to therein and specifically:

(a) Byron LeClair. Pic Heron Bay Indian Band

All such documentation in respect of employment in the construction industry by the Pic Heron Bay Indian Band and/or payment or supply of personnel to construction industry contractors from and after August 15, 1991.

We wish to confirm the statement of counsel for the Pic Heron Bay Indian Band that no such documentation exists other than relating to persons employed by the Band working in Pukaskwa National Park. In that regard however, we require the produc­tion of all documentation relating to employment by the Band in Pukaskwa National Park.

(b) Larry Jauvin, Grant Development Corporation

All job site time records and payroll records in respect of employment of all person­nel of any trade on the Black River Power Development Project from its commence­ment to its completion.

We wish to confirm that Grant Development Corporation has refused to produce this documentation.

Accordingly, in accordance with the practice and procedure of the Board confirmed in the Shaw Almex case, we require the deposit of all documentation at the Ontario Labour Relations Board a minimum of two weeks prior to the hearings scheduled to recommence on March 2, 1992.

6. In all of the circumstances of this case, the Board sees no reason why it should not make the direction requested by counsel for the union set out in Item (b) above. It is so ordered. In addi­tion, the Board hereby directs all parties in this matter to identify and list all documents upon which they intend to rely in respect of all issues (including those of a jurisdictional or remedial nature), and file photocopies of such documents with opposite counsel and with the Board no later than February 24, 1992 - being one calendar week prior to the date these hearings are scheduled to begin, again, in Thunder Bay. The identification and production of these documents is, of course, without prejudice to the parties' right to make argument about their admissibility or weight; more­over, as the Board indicated in Shaw Almex, such production is directed for the exclusive purpose of this litigation, and the documents may not be used for any collateral purpose.

7. The Board recognizes that this filing date is only approximately two weeks from the date hereof, however, the Board notes that this proceeding has been outstanding and counsel have been retained for many months, the hearings are already underway, the issues have already been crystallized, and there is no reason why the parties should not be fully prepared and thus able to produce those documents upon which they intend to rely. We recognize that geographic distance may impede communication with counsel (or the Board), but we do not think that that should be permitted to either contribute to prejudicial delays or multiply the public and private costs of this proceeding. We observe, parenthetically, that ultimately someone will be determined to be the "employer" of the labourers potentially affected by this application, someone will have to explain how it came to be that they were actively at work, for a time, then were working no longer; and, on the certification application, the union will ultimately have to establish the extent to which the employees in the proposed bargaining unit wish to be represented by the union. The Board is con­cerned that procedural skirmishes concerning production may deflect the parties' focus from the substantive issues in this case, and unnecessarily prolong the hearings.