[1997] OLRB REP. MAY/JUNE 474
0247-97-M; 0248-97-U Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America and Local 1688 The Ontario Taxi Union, Applicant v. Metro Cab Company Limited and Metro Cabs Associates' Committee Representing Associates of Metro Cab Company Limited, Responding Parties
BEFORE: K. G. O'Neil, Vice-Chair.
APPEARANCES: James Hayes. Jeff Andrew and Guy Havell for the applicant; Mark Stone and Sandra Brown for Metro Cab; Robert Stewart and Daniel Hisson for Associates' Committee Representing Associates of Metro Cab Company Limited.
DECISION OF THE BOARD; May 9, 1997
1This is an application for interim relief under section 98 of the Labour Relations Act, 1995. It is brought in the context of the union's complaint (the main application, Board File No. 0248-97-U), that the responding parties have failed to provide certain information required by the duty to bargain in good faith in section 17 of the Act.
2The union bargains for approximately 454 dependent contractors who drive cabs for Metro Cab Company Limited ("Metro"), the broker, and its Associates in Metropolitan Toronto. By decision of the Board reported as Diamond Taxicabs Association (Toronto) Limited, [1995] OLRB Rep. June 753 pursuant to an application under subsection 1(4) of the Act, relating to three Toronto brokers, (Diamond, Co-op and Metro), Metro and its Associates were declared to be one employer. The respondent Metro Associates' Committee represents Metro's Associates. In that decision the term "Associates" was defined as follows:
Associate means a taxi fleet owner, operator, lessee, custodian or agent who owns or controls more than one taxi or taxi licence, or a single taxi licence owner who is a non-driving owner, and who carries on business in association with one or more broker.
We adopt the same meaning.
3The parties are engaged in bargaining for their second collective agreement. The union has requested financial and other information from both Metro and the Associates. The union puts its request for bargaining information in the context of the history between these parties, much of which is set out in the subsection 1(4) decision referred to above, and need not be repeated here. In settling the first collective agreement between these parties by an Award dated December 9, 1994, Arbitrator MacDowell underlined the difficulty presented by the fact that the parties did not share a common information base on the economic issues, To address this, various provisions and measures were put in place as set out in that Award. Nonetheless, the parties have arrived at bargaining for their second collective agreement without the desired common information base, In this application for interim relief the union asks for the information to be produced so that bargaining can proceed.
4The union also notes as context for its request the provision of the collective agreement in Article 25.08(d):
(d) Each party and representative must supply to the other, upon request, all information that it would he obliged to provide under section 15 [now 17] of the Labour Relations Act, and which is arguably relevant to the economic terms of the collective agreement. Such information will include documents within its control, and facts reasonably believed to be true based on information and belief.
5Having heard the parties' arguments and considered all the material before me, it is clear that the entitlement of the union to the basic economic information requested is not disputed except as indicated below. The main objection to the information requested from the responding parties is the actual lease agreements, The responding parties both take the position that it is inappropriate to order that the leases be disclosed in that they have information in them that does not pertain to bargaining between these parties and also contains information that is sensitive in the sense of providing information that would not normally be available to the various competitors in the industry. The Associates point out that there is competition for plates, leases and favorable terms within the group of Associates. There was opposition as well to providing financial information in a manner that would identify the names of the individuals or Associates with any specific information. And Metro says it has produced the information it has and the rest is in possession of the Associates.
6I have considered the factors normally considered by the Board on application for interim relief, i.e. whether there is an arguable case on the main application and whether the balance of harm from a labour relations standpoint favours the issuing of an interim order. See LOEB Highland, [1993] OLRB Rep. March 197. There is in my view an arguable case on the merits. Further, it is my view, and it was not contested in argument except for the points mentioned above, that there is no serious harm that would flow to the responding parties from the granting of an interim order. Further, it is my view that considerable benefit would flow to the parties' bargaining relationship from granting an order providing the information both sides need in order to bargain.
7As to the provision of the lease agreements, it is my view that there is insufficient reason to except them from the information to be provided. The responding parties did not indicate, when asked, that there was anything substantive that would be argued if the main application proceeded that was different than what was before the Board at the moment. The leases are documents which are fundamental to the economic arrangements in this industry and thus are important to the union's ability to structure its economic proposals. Further, on the question of identifying economic information with the names of any Associates or individuals, it appears, particularly in light of the different roles various people play in this industry, and the large variety of interlocking relationships, that it would be very difficult to analyze or verify the accuracy of the material provided without the provision of the names. Further, the major concern expressed about confidentiality will be dealt with by way of restricting the use the union can make of the material, and the number of people with access to it.
8Both responding parties indicated that if an order were to issue a process of dividing the responsibility for collecting the information would be of practical assistance in having the information provided, and they both argued any order should apply to lessees as well. Given the section 1(4) order by which the responding parties are considered to be one employer for the purpose of the Act, the obligation is binding on both of them. However, the directions for collecting the information have taken into account the process outlined by the responding parties.
9Having regard to the above, the Board orders and directs as follows:
The Associates' Committee and Metro are directed to produce the information requested by the union in its letter of February 16, 1997 to the union as soon as possible, and in any event no later than May 30, 1997. As a mechanism to provide for the collection of this information the Board orders as follows:
(a) Metro is to provide to the union a list of their Associates, their floaters and their single car members, along with their addresses, telephone numbers and fax numbers, and the plate numbers they operate, by May 12, 1997.
(h) The primary Associates are to provide to the Associates' Committee the names, addresses, telephone and fax numbers of all sub-Associates and their cab numbers by May 12, 1997.
(c) Prior to sending out the material set out in paragraph (g) below, the Associates' Committee is to provide Metro the list of Associates to whom the Associates' Committee proposes to deliver the material. Metro is to forthwith provide the Associates' Committee with any suggested additions.
(d) Metro shall forthwith post this decision in its offices in a location or locations most likely to come to the attention of the Associates, and will use the dispatch system on a sufficient number of occasions between May 10 and May 25, 1997 to bring to the Associates attention the existence of the decision and to reinforce the obligations to provide the information to the Associates' Committee by May 25.
(e) All Associates (whether a primary Associate, sub-Associate or any other designation) are to provide to the Associates' Committee no later than May 25, 1997 the following information current as of April 30, 1997:
(1) Name, address and phone number of each driver (including lessees, floaters and shift drivers) driving for the Associate and cab number.
(2) If the driver is a lessee,
(i) a copy of the lease agreement;
(ii) the cab number;
(iii) the price he is paying for the plate including an indication of what the price includes, i.e. plate lease, renewal fees, dispatch fees, insurance and whether monthly or weekly;
(iv) his seniority with the Associate;
(v) his seniority with the brokerage;
(vi) a list of drivers who drive for the lessee;
(vii) the cost of the shift they are paying to the
lessee.
(3) If the Associate is a multi-lessee himself and leases no plates, the following information is to be provided in respect of shift drivers:
(i) the name, address, telephone number and cab number of each driver driving for the Associate;
(ii) the seniority date with the Associate and the seniority date with the brokerage;
(iii) a breakdown of the drivers' shift premiums along with any records that would substantiate the statement;
(iv) an indication whether the driver is full or part-time;
(v) an indication whether or not benefits are paid on the drivers behalf;
(vi) an indication whether or not E. I. premiums are paid on behalf of the driver.
(f) All lessees and drivers are directed to forthwith provide any necessary information requested of them by an Associate to allow the Associates to provide the above information to the committee.
(g) To cause the production of the above information:
The Associates' Committee shall deliver to all Associates a copy of this decision together with a covering letter, indicating what information is to be provided and to whom at the Associates' Committee the information should be sent, in the most expeditious manner available which is most likely to bring it to the attention of the Associates whether by hand, facsimile transmission or priority post, by May 16, 1997;
The Associates' Committee shall keep a written record of all steps taken by it in connection with delivery of the above letter and decision and the response that it gets from the Associates.
(h) The union is ordered to keep all material disclosed above confidential and to restrict access to the material disclosed to union counsel and Messrs. Havell, Collins, Garvey and Ghadban unless leave of the Board is otherwise granted. The union is to use the material disclosed only for purposes of collective bargaining, any proceedings arising under the Labour Relations Act, 1995 and collective agreement administration.
10In the event of any non-compliance by Metro, an Associate, lessee or driver in the production of the material ordered, the parties may return to the Board for an enforcement of the order on short notice. All parties should understand that the above directions are part of an order of the Board; failure to comply is potentially contempt of the Board which can be punished by the Courts by various measures including criminal prosecution.
11Having regard to the submissions before me, it is appropriate to adjourn the main application sine die. Unless any party asks that it be brought back on within one year of the date of this decision, it will be dismissed.