0239-01-R Geremiah Geldart, Applicant v. Labourers’ International Union of North America, Local 183, Responding Party v. Underground Service (1983) Ltd., Intervenor.
0241-01-R Brad Martin, Applicant v. Labourers’ International Union of North America, Local 183, Responding Party v. Underground Service (1983) Ltd., Intervenor.
1307-01-U Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Underground Services (1983) Ltd. and Geremiah Geldart, Responding Party.
1308-01-U Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Underground Services (1983) Ltd. and Brad Martin, Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; November 21, 2001
1The Board is in receipt of correspondence from the parties in respect of the particulars filed by the responding parties in the termination applications (“the Labourers’ Union”), and in respect of the pre-hearing production sought by them.
2The particulars filed are sufficient with one exception. I find that to be so in light of the fact that the Labourers’ Union will proceed first and the other parties will hear the evidence as it goes in. The panel hearing the matter can deal with any issue of a variance from the pleadings (if such occurs), prejudice and surprise, or any need for time to respond.
3With respect to paragraph 5 of the pleadings, the dates or approximate dates of the alleged statements would be preferable. It is possible that employees did not record such statements in a detailed daily diary. However, counsel can imagine the kinds of questions asked on cross-examination to establish a date. The Board directs the Labourers’ Union to make its best efforts to narrow the time frame as much as possible before the hearing. The panel hearing this matter can determine if any real prejudice is created when the evidence is heard.
4With respect to paragraph 9 of the pleadings, the Labourers’ Union is directed to file whatever details it has with respect to the physical description of the person who allegedly ordered Mr. Chedore to report to another job site, or the details which enabled whoever the Union plans to call as a witness to identify the person as a member of management. This information is to be provided not later than one calendar week before the date set for hearing, failing which the hearing panel will deal with the matter.
5With respect to the documents requested by the Labourers’ Union, the test is whether the documents are arguably relevant to issues in the proceeding, whether they are excluded by virtue of some rule of law, and whether there is some difficulty in producing the documents themselves. There is little to be gained by repeated adjournments while parties examine documents they have seen for the first time, or seek to recall witnesses who have been unable to comment on documents when they were first on the stand.
6Most of what is sought from the applicants in the termination applications is protected by solicitor-client privilege. Once the fact of representation is voluntarily disclosed (as it has been here in the filing of the application), the only question that may be asked is the date on which the lawyer was first consulted. Mr. Geldart and Mr. Martin are directed to produce to the other parties the letters of January 24 and February 13, 2001 with all the text of the letter obscured except those portions that indicate the date of their first contact with counsel. Counsel is directed to bring clean copies of the letters to the first day of hearing. If there is any issue the Labourers’ Union wishes to raise, the Board may chose to arrange for an examination of the originals in some fashion.
7The employer in these applications is directed to produce to the other parties all records of any sort of any monies paid to Mr. Geldart and Mr. Martin during the pay periods that include April 23, 2001 and April 30, 2001, regardless of the reason for making that payment.
8The employer states that it has no records of the type referred to in paragraph 5 of Mr. Moszynski’s letter of November 7, 2001. This may be because the employer asserts no such events occurred or because the establishment in question prefers to be paid in cash for its services. The employer is directed to specify which it asserts is the case and, if it is the second, to advise of the amount spent on the evening in question.
9I am not seized of these applications.
“David A. McKee”
for the Board