2723-99-R Teamsters Local Union No. 879, Applicant v. Dufferin Custom Concrete Group c.o.b. as Peninsula Niagara Ready Mix, Responding Party v. Christian Labour Association of Canada, Intervenor

BEFORE: Patrick Kelly, Vice-Chair.

DECISION OF THE BOARD; August 15, 2000

1The applicant sought certain particulars and production of documents from the responding party (“the company”) and the intervenor. By decision dated July 27, 2000, the Board directed the company and the intervenor to provide those particulars and produce those documents to which they had no objection, and to file reasons for any item requested by the applicant to which they objected. Both the company and the intervenor had objections to portions of the applicant’s request, and filed their written submissions in support of their objections. The applicant replied to those written submissions.

Notice of this proceeding

2Subsequent to the Board’s July 27, 2000 decision, the applicant requested that the Board provide notice of this proceeding to Teamsters Local Union 230 and any other bargaining agent holding rights for any group of employees of St. Lawrence Cement Inc. or its subsidiaries, as well as to any employees of St. Lawrence Cement Inc. or its subsidiaries not currently covered by a collective agreement. In addition, the intervenor sought of the company production and particulars, some of them identical to those requested by the applicant. The company objected to the intervenor’s request, arguing that the items sought are either not relevant, or have been produced previously, and arguing further that the Board should, if necessary, conduct a hearing on the issue of production and particulars.

3The final disposition of this application for certification will not affect or disturb any existing bargaining rights of any other bargaining agents of the company. The outcome of the issues raised by the intervenor will bind only the company, the applicant and the intervenor. The intervenor has been clear that, in intervening in this matter, it is not seeking to represent employees in any bargaining unit currently represented by any other trade union. There may be implications which flow for the present parties and other entities who are not parties to this matter as a result of the disposition of the intervenor’s claims, but those interests will not be directly affected by the outcome in this matter. In the event the intervenor’s position in this matter is upheld, the interests of entities or persons not party to this matter can only be affected by a further, separate and discrete application and decision of the Board.

4The Board declines to provide notice to the bargaining agents and individuals cited by counsel for the applicant.

The information sought by the applicant and the intervenor

5The intervenor objected to producing to the applicant all proposals and notes relating to negotiations of any clauses in the current applicable collective agreement (and its predecessor collective agreements) between the intervenor and the company, upon which the intervenor relies for its assertion of bargaining rights for the employees affected by this certification application. The intervenor claims that the recognition clause upon which it relies is clear and unambiguous, was negotiated in good faith, and that, consequently, the items sought by the applicant in relation to that clause (presumably the only clause upon which the intervenor relies for its assertion of bargaining rights) are irrelevant.

6The company agreed with the basis for the intervenor’s objection, and added that the request for production of the collective bargaining notes and proposals was overly broad.

7The Board is of the view that the documents to which the intervenor (joined by the company) objects to producing are arguably relevant. As the applicant points out, the current recognition clause refers to “the Employer”, the identity of which is crucial to these proceedings. The collective agreement (“the CLAC agreement”) in question is between the intervenor and St. Lawrence Cement Inc. operating as Peninsula Ready-Mix & Supplies. The certification application is in respect of employees of an entity whose name does not match the name of the identified employer in the CLAC agreement, and yet it is the intervenor’s contention that the CLAC agreement covers those employees. It would appear that extrinsic evidence relating to the identity of “the Employer” in the CLAC collective agreement will have to be adduced in this matter. The documents sought by the applicant relating to the negotiation of the recognition clause and its predecessors may have some bearing on the determination of this issue.

8The company had other objections to producing or providing some of the items requested by the applicant. In his reply, counsel for the applicant indicated that he took issue with the company’s objections, and argued that the applicant’s production request was wholly appropriate. However, he accepted on a provisional basis the documents and/or will-say described by counsel for the company in numbered paragraph 1 on page 4 of letter dated August 4, 2000, subject to renewing the production request for those items which remain outstanding, should it become necessary to do so.

9By letter dated August 2, 2000, the intervenor joined in part to the applicant’s production request of the company, and added eleven other areas of pre-hearing production relating to the purchase by the company, and the commercial transactions, since that purchase, of the Niagara Falls plant (“the plant”) which is the subject of the certification application. As indicated above, counsel for the company objected to the intervenor’s request, advancing in general terms the same arguments of relevance and prejudice to the company that were advanced in respect of the applicant's production request. Counsel for the intervenor replied by letter dated August 9, 2000, in which she endeavoured to set out the basis for her production request of the company.

10Having reviewed the submissions of the company and the intervenor with respect to the intervenor’s production request, the Board offers the following observations. It is not entirely clear to me that the documents sought by the intervenor in respect of the purchase by the company of the plant are arguably relevant to this application (although they might be relevant in the intervenors section 1(4) application which we are not dealing with at this time). The fact of the purchase is undisputed. What followed the purchase, as opposed to the details surrounding the transaction itself, would seem to be the relevant area of inquiry as far as an understanding of “the Peninsula business” of the company is concerned – an understanding which this panel of the Board previously indicated is critical to a determination of this application. On the other hand, documents that reveal how the plant has operated or represented itself to the public, to business contacts and to its employees since the purchase may be relevant to that issue in dispute.

11In his August 10, 2000 submissions, counsel for the applicant expressed the view that, rather than conduct a hearing regarding the positions taken by the parties on the preliminary issues, as suggested by counsel for the company, the parties might be able to agree on a number of facts which could obviate the need for much of the production requests by the applicant and the intervenor. Exactly how that process of endeavouring to reach such an agreement would develop was not made clear. However, in the Board’s view, the suggestion of counsel for the applicant is one that should be encouraged before the Board makes further rulings, save the one in paragraph 13 below, regarding the preliminary production issues raised by the parties.

12The Board directs the Manager of Field Services to arrange for the Labour Relations Officer assigned to this file, or another Labour Relations Officer, to consult with the parties concerning any assistance that the Labour Relations Officer might offer regarding an agreed statement of facts, or any other matter, including the preliminary issues already raised by, or that may be raised by the parties prior to the continuation of this matter on August 29, 2000. The Labour Relations Officer shall report back to the Board with respect to these matters, on or before August 23, 2000. At that time, the Board will consider whether it is necessary to issue further directions or rulings.

13The Board orders the intervenor and the company to produce and submit copies to the applicant of all proposals and notes within their respective possession or control relating to their collective bargaining negotiations concerning article 2.01 (the recognition clause) of their current collective agreement, as well as all collective bargaining notes and proposals concerning the recognition clause in all previous rounds of negotiation between them. Copies of these documents are to be provided to the applicant on or before August 21, 2000.

14The intervenor and the applicant are not hereby precluded from renewing their production/particulars requests in respect of any outstanding item within those requests that remains unsatisfied in the view of either.

15I am seized.

“Patrick Kelly”

for the Board