Ontario Labour Relations Board
0459-00-R Industrial Wood & Allied Workers of Canada, Local 700, Applicant v. Supply Chain Express Inc., Canadian Merchandising Employees’ Union, Responding Parties.
2990-99-R Industrial Wood & Allied Workers of Canada, and its Local 700, Applicant v. Wilson’s Truck Lines Limited, Wilson Logistics Inc., and Supply Chain Express Inc., Responding Parties v. Canadian Merchandising Employees’ Union, Intervenor.
3843-99-U Industrial Wood & Allied Workers of Canada, Local 700, Applicant v. Wilson Logistics Inc., Supply Chain Express Inc., Canadian Merchandising Employees Union, Tom Rees and Scott Carter, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Jim Fyshe, Ron Diotte and Bill Brady for the applicant; Andra Pollak, Scott Carter and Patrick Bourk for Supply Chain Express Inc.; Fred von Veh, Maria McDonald and Dave Chapman for Wilson Logistics Inc. and Wilson’s Truck Lines Limited; Richard Blair and Tom Rees for Canadian Merchandising Employees’ Union.
DECISION OF THE BOARD; July 6, 2000
1These three files involve separate but related matters involving some, but not all, of the same parties in each one. Board File 2990-99-R (the “section 1(4) application”) is an application seeking a related employer declaration and other relief in respect of Wilson’s Truck Lines Limited (“WTL”), Wilson Logistics Inc. (“WLI) and Supply Chain Express Inc. ("Supply”). Board File 3843-99-U is a section 96 application alleging various unfair labour practices against Supply and Canadian Merchandising Employees’ Union (“CMEU”). Board File 0459-00-R is an application under section 66 naming as responding parties WLI, Supply, CMEU and two individuals. A hearing was held June 28, 2000 to deal with any and all preliminary matters in these applications.
2The first issue was the order of proceeding. The applicant wished to proceed with all matters simultaneously. For various and sometimes different reasons, the other three parties submitted that the Board should separate the issue of whether the minimum statutory requirements of section 1(4) are met on the evidence of this case, from the issues raised by the section 96 and section 66 applications and the issue of the validity of the collective agreement between Supply and CMEU (the “unfair labour practice issues”). Obviously, these latter issues have a bearing on the exercise of the Board’s discretion under section 1(4). However, the issue of the Board’s discretion under section 1(4) would conceivably involve a consideration of issues not related to the issues raised by these latter applications. Thus, while the finding that the minimum statutory requirements of section 1(4) are not present would end the section 1(4) proceeding, any other result will require the resolution of all other issues in all three proceedings.
3The Board is concerned primarily with expedition and economy in determining the order of proceeding. Since some of the issues relating to the Board’s discretion under section 1(4) are different from the “unfair labour practice issues”, there is a substantial risk that dividing the hearing as suggested would lead not only to the potential of calling the same witness twice, but the much more disruptive potential for objections to many of the questions asked in cross-examination on the basis that the question is relevant to one issue but not to the other. On the other hand, if the minimum statutory requirements of section 1(4) are not present, it would, at least in theory, be preferable to know this before all other matters are litigated.
4The Board will proceed in the following manner. All three files will be heard simultaneously, at least initially. The Board directs WTL and WLI to call all of their evidence on all matters in all three files, including the factual basis for assertions made about the common control and direction of these two parties, as well as the issue of associated or related businesses or activities. Counsel indicated that, not surprisingly, WTL and WLI would have little evidence on the “unfair labour practice issues”. Supply will then call all the witnesses who have evidence with respect to the section 1(4) application. These witnesses will be subject to cross-examination on all issues in all three files, that is, they will give all of their evidence with respect to all of the matters before the Board and will not be called to testify again. After counsel indicates that she has called all of her witnesses with respect to the section 1(4) application and is turning to the “unfair labour practice issues”, the responding parties may address the question of whether the proceedings should then be split in the manner suggested at this hearing. The Board will determine that question at that time.
5The second issue related to the production of certain documents and particulars by the responding parties. Since those parties have not had a chance to consider the specific issues raised by the applicant, the applicant is to advise counsel for the other parties on or before July 7, 2000 of the documents and/or particulars that it asserts should be produced. These submissions should include documents which the Board has already addressed in this proceeding, and any new issues arising out of the documents which counsel has seen for the first time after they were produced to him. The responding parties shall either provide the documents or particulars to counsel for the applicant or, on or before July 28, 2000 advise the counsel for the applicant, in writing, of the reasons why they decline to produce them. If there is still an issue, it will be the responsibility of the applicant to raise it with the Board, either by way of written submissions or by a telephone conference call, well before September 15, 2000. In either case, the Board will need to have copies of the correspondence between counsel contemplated in this decision in order to deal with any disputes, but will not require it before then.
6The third issue related to production from the CMEU. The CMEU agreed to produce a copy of its Constitution to the applicant. The CMEU is directed to advise the applicant of the names of the three individuals who are the source of Mr. Rees’ information as pleaded in paragraph 7, Schedule “A” to the response to the section 96 application on or before September 25, 2000.
7This hearing is now set for September 15, October 2, 3 & 6, November 23 & 24, December 4, 5 & 6 (subject to availability of counsel), 2000 and January 18, 19 & 25, 2001.
8I am seized of these applications.
“David A. McKee”
for the Board