[1995] OLRB Rep. January 12
0863-94-R Labourers' International Union of North America, Local 527, Applicant v. Desourdy 1949 Paving Inc., Responding Party
BEFORE: Robert Herman, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
DECISION OF THE BOARD; January 23, 1995
The style of cause is hereby amended to reflect the correct name of the responding party: "Desourdy 1949 Paving Inc.".
This is an application for certification arising in the construction industry, in which the parties are currently engaged in examinations before a Board Officer. Those examinations are dealing with challenges to the list, over whether certain individuals exercise managerial functions, or over whether they were performing bargaining unit work on the application date.
A procedural dispute has arisen. The examinations were taking place on, amongst other days, December 15, 1994. The next scheduled date for examinations was January 31, 1995. At approximately 4:00 p.m. on December 15, 1994, applicant counsel completed examination-in-chief of his witness, and the Board Officer then asked counsel for the responding employer to commence his cross-examination. Counsel refused, on the basis that he was caught by surprise by the evidence-in-chief of the witness, and needed an opportunity to investigate and to prepare before commencing his cross-examination. Counsel submits that the evidence-in-chief had not been disclosed to him through pleadings, and ought to have been.
Counsel asked that the Board rule upon his request. The Board Officer then advised the parties to make any submissions in writing, which they did. The question for the Board is whether counsel was entitled to an adjournment in the examinations for this reason.
Often in construction certification applications, where there is a dispute over the list and composition of the bargaining unit, the Board will appoint a Board Officer to conduct examinations into the matters in dispute. This process accomplishes several things.
First, and obviously, it saves Board panel time, while still ensuring an expeditious adjudication of the matters in dispute. The Board Officer conducts examinations, in which both the Board and the parties call the witnesses they feel are appropriate. A transcript is prepared of the examinations, placed before a panel of the Board, and the panel of the Board is able to then decide the disputed issues. All parties have full participation rights in the Board Officer's examinations, including the right to lead any evidence which they feel is arguably relevant, and to make full submissions.
A second reason for Board Officers conducting examinations derives from the nature of the evidence. Often it is more practical to conduct examinations at or near the job site, something the Officer can better accommodate. As well, the Officer's investigative role (e.g. doing record checks) assists both parties in narrowing the dispute and in helping them prepare for the examinations.
But there is another potentially more important reason for referring the dispute to a Board Officer for examinations. A Board Officer works with the parties in a less formalized setting than a Board panel. He or she may have had prior dealings with either or both of the parties, or their counsel. An Officer in this position is better able to narrow the disputes, or to settle matters with the parties. Experience has clearly shown that it is quite common for a lengthy list of disputed issues to be resolved in short order, once a Board Officer is able to meet with the parties and to commence examinations. Parties see how the evidence comes out, they assess the strengths of their respective positions, and they are assisted by the Officer's knowledge and experience. The Officer can usually accurately predict how the Board itself will view the particular dispute, and is in a better position than a panel to sensitively assess the practical realities and concerns of the parties involved.
This is the context in which counsel submits that he was caught by surprise because the evidence had not been pleaded. Given the purpose of examinations before Officers, it is not apparent that a general requirement for comprehensive pleadings would be useful. Parties would have to suspend their efforts to narrow the issues and settle matters, in order to concentrate on pleadings. Proceedings would be extended, and the focus of the parties misplaced.
Where the dispute is over managerial functions, or what the individual was doing on the application date, the Board has not insisted that parties plead all the material facts in their knowledge. Moreover, given the nature of employment in the construction industry, it is not at all surprising that one party or the other (or both) might lack precise information about an individual's status or job functions on a particular day. With disputes of this nature, parties have generally only been required to plead sufficient material facts to enable the other side, and the Officer, to understand the nature of the dispute, and to allow them to properly prepare for the examinations. Practically speaking, the relevant material facts are often communicated orally through the Officer's early contacts with the parties, and are not usually recorded in detail in written form.
Parties are caught by surprise on some occasions. The Board Officers are aware of this potential, and where appropriate, the Officer grants an adjournment. But that is a decision that the Officer involved is best able to make. It is the officer who can best assess the progress of the examinations, and any delays caused by the parties.
Turning to the specific dispute, counsel for the responding employer requested an adjournment on the basis that he had been caught by surprise by the evidence led by the applicant. With respect, parties are not required to disclose in advance the evidence which they intend to lead. Nothing in the respondent's submissions indicates that it was not aware of the essential material facts, only that it was unaware of the evidence.
Counsel for the responding party took a significant risk by declining to follow the direction of the Board Officer that he commence cross-examination forthwith. While it is certainly true, as reflected here, that parties have the ability to request that the Board itself review an Officer's ruling, it is also true that parties who decline to follow a procedural direction of a Board Officer do so at their peril. As a general proposition, the Board will uphold the Officer's procedural directions, absent a compelling reason otherwise. To do otherwise would seriously undermine the ability of Officers to independently conduct examinations, and would too readily lead to interruptions in proceedings.
Here, there is no reason, compelling or otherwise, not to confirm the Board Officer's decision directing the responding party to commence cross-examination forthwith. In the Board's view, this was the correct decision in the circumstances.
We have considered whether to preclude the responding party from conducting cross-examination of the witness. This dispute arose towards the end of the hearing day. The next scheduled hearing day has not yet arrived, and therefore no meaningful hearing time has been lost. It thus appears that there is no prejudice in now allowing the responding party to cross-examine the witness. Fortuitously, for the responding party, this dispute arose at a time when, for all practical purposes, the cross-examination of the witness would not have been completed until the next scheduled hearing day in any event.
In these circumstances, we are prepared to grant the responding party a second opportunity to cross-examine the witness, when the examination re-commences on January 31, 1995, and we so direct.
As noted, parties ought to expect that in future examinations or inquiries, failure to comply with a Board Officer's procedural direction will likely mean an opportunity lost forever.
This matter is referred to the Board Officer for continuation of the Board examinations as previously scheduled.