1646-00-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Applicant v. Mannesman Dematic Rapistan Limited, Responding Party.
0258-01-R International Association of Bridge, Structural, Ornamental and Reinforcing Iron workers, Local 721, Applicant v. Mannesman Dematic Rapistan Limited, Accu-Line Conveyor Inc., and The Gap Inc. Responding Parties v. Millwright Regional Council of Ontario, Intervenor.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; July 16, 2001
The Board, in its decision in this matter dated May 30, 2001 directed the parties to make submissions with respect to the production order sought by the applicant . The applicant sought a number of documents falling into eight categories as set out in the applicant’s letter of May 29, 2001. These two applications relate to a claim by the applicant that Mannesman Dematic Rapistan Limited (“Rapistan”) and Accu-Line Conveyor Inc. (“Accu-Line”) carry on associated related activities or businesses under common control and direction or that there was a sale from Rapistan to Accu-Line. The Gap Inc. (the “Gap”) to the extent it took on responsibility for the installation of a conveyor system at the Old Navy Distribution Centre in Brampton (the “Distribution Centre”) that it owns is also alleged to have carried on a related activity or business under common control and direction with Rapistan and Accu-Line.
The relevance of documents that the applicant seeks to have produced can only be determined at the pre-hearing stage by reviewing the pleadings of the parties and the basis for the applicant’s case. The documents requested by the applicant in its letter of May 29, 2001 are:
All written material in any form whatsoever describing the manner in which the work pertaining to the installation of the conveyor system at the Old Navy Distribution Centre in Brampton, Ontario was obtained, the manner in which it was to be performed, the amount of compensation for performing the work and the actual amounts paid by The Gap to Rapistan and/or AccuLine for the purchase and installation of the equipment. This should include but not be limited to all invitations to tender or price, tenders, all bids or prices received, all contracts, purchase orders, invoices and subcontracts.
The building permits for the project, any change orders and minutes of site meetings.
A list of all jobs performed by Accu-Line in Ontario.
All contracts or purchase orders for all jobs performed by Accu-Line for The Gap prior to the Old Navy Distribution Centre job regardless of where the contracts were performed.
All contracts or purchase orders for all jobs performed by Accu-Line prior to the Old Navy Distribution Centre job in which Rapistan was involved either as the manufacturer of a material handling system or as a contractor if such documents are not already subsumed within the documents described in paragraph (4) above.
The dates on which the work in this matter was performed, the names of all persons directing the work, and a detailed description of the scope of work if not already described in a document referred to in paragraph (1) above.
Copies of all time cards, time sheets, applications for employment, work diaries, records of employment, cheques and cheque stubs, all documents pertaining to Revenue Canada Taxation Division, Employment Insurance Commission and all other related and supporting documents or writing pertaining to matters with respect to those persons employed at the Old Navy Canada Distribution Centre in Brampton, Ontario, involved with the installation of any material handling or storage system, whether or not they were employees of Ellis-Don, Rapistan or Accu-Line.
Any Workers' Safety and Insurance Board clearance for the employer of persons installing material handling systems at the Old Navy Distribution Centre.
Counsel for Accu-Line, Rapistan and the Gap submit that the applicant’s request for production is far too broad. They suggest it is a fishing expedition to determine whether the applicant can establish a case. They also argue that much of what is requested is irrelevant. The applicant points out that its theory of the case, as set out in its applications, is that Accu-Line was incorporated in 1994 and operates as a non-union installer of material handling equipment manufactured or sold by Rapistan. The applicant claims that one of Accu-Line’s principals was the manager of construction operations of Rapistan and that since its inception, Accu-Line has performed installation work for Rapistan. The applicant’s allegations at paragraphs 8(viii), 8(ix) and 8(x) of its application in Board File No. 0258-01-R are specific about the relationship it alleges exists among the responding parties.
There is no doubt that documents arguably relevant to an application can be the subject of a pre-hearing production order. Responding parties in a proceeding under sections 69 and 1(4) of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. are not, however, obliged to answer questions prior to the hearing or create documents. In our view, there is a difference between directing production of documents and directing a party to provide information. Certainly, the hearing of this type of application could be shortened if the responding parties provide information and documents that are relevant to the issues in dispute well before the hearing. Indeed, both sections 1 (5) and 69 (13) require the responding parties to disclose the evidence that is relevant to the issue of whether the responding parties are under common control or direction (in the case of section 1 (5)) and whether a sale of a business has occurred (in the case of section 69 (13)) and to that end are required to disclose relevant documents.
One of the differences between the parties is whether the documents sought exist or are in the possession or control of the parties. In that regard we note that counsel for the Gap, in her letter to the Board dated June 11, 2001 indicated that a number of documents were delivered to counsel for the applicant without prejudice to her client’s position that the documents sought are irrelevant, or at best marginally relevant. The letter also seemed to suggest that a number of documents had been delivered to the Board as well as to counsel for the applicant as the letter refers to documents found at certain tab numbers. The Board did not receive a book of documents from counsel for the Gap.
With respect to item 1 of the applicant’s request, counsel for the Gap submits that the “documentation enclosed with this letter fully addresses this issue and that nothing further should be required.” Aside from nothing being enclosed with the letter, if there are other documents in existence and in the possession of the Gap that come within the description of the documents the applicant described in item 1, they are to be produced. Accu-Line objects to production of all documents because the description of documents sought is too broad and it does not want to disclose the monetary amounts. It is prepared to provide some of the contract and tender documents with the pricing deleted. In our view, based on the applicant’s theory of the case all of the documents described in category 1 of the applicant’s request are relevant. The applicant has also indicated why the prices or dollar amounts in those documents are relevant. The Board notes the applicant’s undertaking “that all confidential information obtained as a result of this request or otherwise through this proceeding will not be shared with any of the responding parties commercial competitors”.
Rapistan submits that it was not involved in the sale or installation of the material handling system at the Distribution Centre and does not have any documents in its possession that the applicant describes in item 1. The applicant contends that Rapistan was involved in some manner with the equipment that was installed at the Distribution Centre. It will be up to the applicant to demonstrate Rapistan’s role in the installation of the Distribution Centre conveyor system at the hearing, but in the face of Rapistan asserting that it has no knowledge of or possession of the documents requested in item 1, the Board is in no position to make the production order the applicant seeks in respect of Rapistan with respect to the documents described in item 1.
The Board therefore directs the Gap and Accu-Line, to the extent that such documents have not been produced, to produce for inspection:
All written material in any form whatsoever describing the manner in which the work pertaining to the installation of the conveyor system at the Old Navy Distribution Centre in Brampton, Ontario was obtained, the manner in which it was to be performed, the amount of compensation for performing the work and the actual amounts paid by The Gap to Rapistan and/or AccuLine for the purchase and installation of the equipment. This should include but not be limited to all invitations to tender or price, tenders, all bids or prices received, all contracts, purchase orders, invoices and subcontracts.
Despite the applicant’s undertaking, the Board directs the applicant not to disclose any information about the costs or pricing of work done by Accu-Line and any document obtained as a result of the Board directing production of documents to any person who is not involved in these applications and further directs the applicant not to disclose or use such information or document for any purpose other than in connection with these applications.
- The applicant seeks the building permits, change orders and minutes of site meetings. The Gap and Accu-Line submit the request is too broad and Rapistan submits that it has no knowledge of or possession of such documents. In our view, the request for building permits is specific, as is the request for minutes of site meetings. As for change orders, the change orders in respect of items not related to the installation of the conveyor system could not, in our view, be relevant to this case. Therefore the Board directs the Gap and Accu-Line to produce for inspection:
The building permits and minutes of site meetings in respect of the construction of the Distribution Centre (including, of course, the installation of the conveyor system) and any change orders relating to the conveyor system at the Distribution Centre.
- Item 3 of the applicant’s request is a list of all of jobs done by Accu-Lines in Ontario. Accu-Line submits that the request is too broad and as Accu-Line was incorporated in 1994 and carried on business before being incorporated, the request for information is simply too far reaching over an extended period of time. In our view, given the theory of the applicant’s case, that list, if it exists, is clearly relevant. Accu-Line’s relationship with Rapistan is in issue. When that relationship started is a matter that Accu-Line and Rapistan would have to disclose to meet their obligations under section 69(13) and 1(5) of the Act. Rapistan submitted that it has asked Accu-Line for that list. That list, if it exists should be produced. Therefore the Board directs Accu-Line to produce for inspection:
A list of all jobs Accu-Line has performed in Ontario.
- The applicant in item 4 wants production of contracts and purchase orders for any jobs done by Accu-Line for the Gap prior to the Distribution Centre, regardless of the location of those jobs. Obviously, if Accu-Line has been doing work for the Gap directly for many years at locations around the world, the applicant may have more difficulty in proving its case. Nevertheless, based on the applicant’s theory of the case, those documents are relevant. Accu-Line does not object to producing such documents provided the pricing information is deleted. The Gap submits such documents are either irrelevant or at best, marginally relevant. Rapistan has no knowledge or possession of any such documents. In our view, the pricing information about previous jobs has far less significance than the pricing information about the job at the Distribution Centre. Therefore, the Board directs the Gap and Accu-Line to produce for inspection:
All contracts or purchase orders for all jobs performed by Accu-Line for The Gap prior to the Old Navy Distribution Centre job regardless of where the contracts were performed, with pricing information deleted at the option of the Gap and Accu-Line.
- The applicant in item 5 seeks documents that specifically relate to any installation work done at any time prior to the installation work at the Distribution Centre by Accu-Line in which Rapistan was either the manufacturer of the equipment being installed or a contractor. In our view, that request is far too broad, since it can encompass jobs around the world after Accu-Line started in business. The applicant is not just looking for a list, but rather is seeking purchase orders and contracts for any job Accu-Line did that involved equipment manufactured by Rapistan. If the applicant had sought just a list of jobs in Ontario in which Rapistan was the equipment supplier and Accu-Line was the installer, then that request would clearly be relevant and contracts or purchase orders for such jobs would have to be produced. The Board is not prepared to require Accu-Line to review records to determine whether a particular installation included a piece of equipment manufactured by Rapistan and to then produce the contracts and purchase orders for the installation work. The Board is prepared to order some limited production in respect of item 5. The Board therefore directs Rapistan and Accu-Line to produce:
All purchase orders and contracts for work done in Ontario by Accu-Line in which Rapistan supplied equipment and Accu-Line installed such equipment.
The production requested by the applicant in item 6 is in the nature of information, as opposed to documents. The Board is not prepared to direct the responding parties to answer questions about who was employed and what work those employees performed prior to the hearing.
The applicant seeks comprehensive information about the persons who performed the conveyor system installation work at the Distribution Centre, regardless of who was the nominal employer of those persons. In our view, it would be sufficient, as Accu-Line has submitted, for the responding parties to produce documents establishing an employment relationship with those individuals who did the actual installation work at the Distribution Centre. In our view, Revenue Canada TD-1 Forms, applications for employment, time sheets and payroll records for those persons would be adequate. Rapistan submits it did not employ anyone to do that work at the Distribution Centre. The Gap submits that information relating to its client’s employees would not be relevant. We disagree. If any of the Gap’s employees performed work in relation to the installation of the conveyor system at the Distribution Centre, then the information sought by the applicant is relevant with respect to such persons. Therefore, the Board directs the Gap and Accu-Line to produce for inspection:
All TD-1 forms, applications for employment, time sheets and payroll records in respect of any employee performing work in relation to the installation of the conveyor system at the Distribution Centre.
The applicant, in item 8 seeks WSIB clearance certificates in respect of the employer of employees doing the conveyor installation work at the Distribution Centre. The Board notes that Accu-Line does not object to producing evidence of its standing with the Workers Safety and Insurance Board while the Gap submits that its standing with that Board is irrelevant. In our view, given that Accu-Line is prepared to voluntarily produce that information and that the Gap’s objection on the basis of relevance appears to be well founded, the Board declines to make any order, but simply notes that Accu-Line submitted that it is prepared to provide that evidence. The Board assumes that Accu-Line will produce that material to the applicant within the time stipulated by the Board to produce those documents.
In summary, in our view, based on the applicant’s theory of the case, the Board is satisfied that the applicant is entitled to have the documents described earlier produced for its inspection. The Board directs the responding parties who have been order to produce documents to produce for inspection to the applicant within 15 days of the date of this decision (or such further time as the parties agree) the documents described in paragraphs 7, 8, 9, 10, 11 and 13 of this decision.
These matters are referred back to the Manager of Field Services to have a Labour Relations Officer meet with the parties to continue settlement efforts.
This panel of the Board is no longer seized with this matter.
“Harry Freedman”
for the Board```