Court File and Parties
1699-99-U Brotherhood of Maintenance of Way Employees (“BMWE”), Applicant v. CLN Industries Ltd. (“CLN”), Responding Party.
1855-99-U Brotherhood of Maintenance of Way Employees (“BMWE”), Applicant v. CLN Industries Ltd. (“CLN”), Responding Party.
3427-99-U CLN Industries Ltd. (“CLN”), Applicant v. Brotherhood of Maintenance of Way Employees (“BMWE”), Responding Party.
BEFORE: Caroline Rowan, Vice‑Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: David Law, Jay Nusca, Bob Rusten, J. White, N. Lavergne and K. Ranger for CLN; Denis Ellickson, Ron Bowden, David Brown, John Rioux, Rick Phillips, Jack Chokan and Dan Kennedy for BMWE.
DECISION OF THE BOARD; March 29, 2000
Decision
1Board File No. 1699-99-U is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) filed by the Brotherhood of Maintenance of Way Employees (“B.M.W.E.”) alleging that CLN Industries Inc. (“CLN”) violated sections 70 and 72(c) of the Act. Board File No. 1855-99-U is also an application under section 96 of the Act filed by B.M.W.E. alleging that CLN violated section 17 of the Act. Board File No. 3427-99-U is an application under section 96 of the Act filed by CLN alleging that B.M.W.E. violated section 17 and 87 of the Act.
2The hearing in these matters will continue on July 12, 13, 14 and 18, 2000 on the agreement of the parties.
3Counsel for B.M.W.E. raised two preliminary matters before the Board on March 8, 2000, in anticipation of the continuation of the hearing in these matters. Firstly, counsel for B.M.W.E. requested an order for particulars of allegations contained in paragraph 2, 3, 4 and 6 of the CLN’s application in Board File No. 3427-99-U. No order is however required, since CLN subsequently indicated to the Board that it agreed to satisfy any request by B.M.W.E. for particulars of these paragraphs within the ten (10) day period from March 8, 2000 stipulated by counsel for B.M.W.E. The Board therefore simply notes the agreement of CLN in this regard.
4The second preliminary matter raised by counsel for B.M.W.E. involves a request for an order compelling CLN to produce the following business records within a period of ten (10) days:
all business or financial records whatsoever of CLN Industries Ltd. and any related company or companies, including but not limited to any loan agreements between officers and/or directors of CLN Industries Ltd., for all contracts for work, proposals, bids, capital expenditures, business plans, etc. from January 1999 to present.
CLN resisted this request for various reasons, including but not limited to the fact that the parties are currently engaged in collective bargaining and that CLN has, in any event, already produced a summary of the financial information requested in the form of an unaudited financial statement.
5Following the hearing in these matters, counsel for CLN wrote to the Board to advise that his client had been served with a summons to witness to appear before the Board at the continuation of this matter scheduled for July 12, 2000 with the same materials described in the union’s request for an order for production of documents. Counsel for CLN did so out of an apparent concern that B.M.W.E. took the position that the Board’s ruling with respect to B.M.W.E.’s request for an order of production “could be trumped” by delivery of this summons to his client.
6The Board notes that the test for determining whether or not documents are required to be produced either by a virtue of a summons issued by the Board or by virtue of a Board order is the same; that is, whether or not the documents requested or summonsed are arguably relevant to the issues in the case.
7Having considered the various submissions of the parties, the Board determines that the documents requested are at least arguably relevant to the issues between the parties in these matters. In this respect, the Board notes that the documents requested are arguably relevant to B.M.W.E.’s allegation that CLN breached its duty to bargain in good faith by taking the position that CLN cannot afford the union’s demands when this is not, in fact, the case. In addition, the Board notes that CLN proposes to rely on summaries of its financial records in its own application under Board File No.
3497-99-U. In these circumstances, B.M.W.E. is entitled to review the documentary records on which these financial summaries are based.
8Having regard to the foregoing, the Board orders CLN to produce the documents described in paragraph 4 above to counsel for B.M.W.E. within thirty (30) days of the date of this decision. In making this order, the Board notes that there is an implied undertaking by a party to whom documents are produced as a result of a Board order or as a result of a summons issued by the Board that the documents not be used for collateral or ulterior purposes (see for example, Mollenhauer Ltd., [1987] OLRB Rep. September, 1156).
“Caroline Rowan”
for the Board