Ontario Labour Relations Board
0775-01-R Teamsters Local Union No. 419, Applicant v. Capital Environmental Resources Inc., Responding Party.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: David W. Cass, Paul Dunne and Douglas Power appeared for the applicant; Daniel Leone and Rick Denyes appeared for the responding party.
DECISION OF THE BOARD; August 14, 2001
Decision
1This is an application for certification. A representation vote was held with respect to this application on June 18, 2001 and a hearing was held on July 23 and 24, 2001. At the outset of the hearing the responding party asked that the application be dismissed because it had not received a copy of the application prior to it being filed with the Board. The Board denied the responding party’s request to dismiss the application at that time and ruled as follows:
The responding party asks that this application be dismissed because it failed to receive a copy of the application prior to when it was filed with the Board. The reason it did not receive an application was that its fax machine was defective and confirmed faxes which it had not printed. The responding party filed its objection with the Board prior to the vote. It was provided with a copy of the application and the vote was delayed. There has been no actual prejudice to the responding party. In these circumstances the responding party’s request to dismiss the application is denied.
2The Board also heard evidence and submissions with respect to the status of three employees. At the representation vote there was a dispute between the parties as to whether Ed Sidsworth, David Patchett and Fred Bruntz are employees in the bargaining unit agreed to by the parties. Their ballots were therefore segregated and not counted. At the conclusion of the hearing the applicant conceded that Mr. Sidsworth is an employee. The Board then ruled that Mr. Patchett and Mr. Bruntz are also employees in the bargaining unit and the three ballots were counted. The Board stated as follows in its ruling:
The Board has considered the submissions of the parties and has decided that both Mr. Patchett and Mr. Bruntz should be included in the bargaining unit.
Mr. Patchett could arguably be included in either the Brampton or Scarboro bargaining units. However, he has not been included in the Brampton one and the union never claimed he should be until after this application was filed. There is no question that he performs work at Scarboro and in these circumstances the Board finds that he is an employee in that unit as it has been described by the parties.
Mr. Bruntz does not exercise managerial authority in matters relating to labour relations. He has some administrative responsibilities and acts as a lead hand. However, most of his day is spent doing bargaining unit work. The drivers are supervised by City employees and by Mr. Dupuis. Mr. Bruntz does have some authority with respect to coordinating work and overtime and filling vacancies and he can initial time cards. The only discipline he is involved in are verbal reprimands which are not recorded. Those reprimands would not appear to have any real effect on the employees’ prospects with the company because Mr. Bruntz is not involved with, or, it appears, even consulted, with respect to more serious discipline. He may alert Mr. Dupuis to facts about which Mr. Dupuis may decide to impose discipline but the Board has said on a number of occasions that that is not managerial authority for the purposes of subsection 1(3)(b). The Board has considered Ford Motor Company of Canada [1993] OLRB Rep. Jan. 1 and similar decisions which refer to front line supervisors which are the “eyes” of management. However, the authority of the supervisors in those cases exceeds that exercised by Mr. Bruntz. Mr. Bruntz’ status on the health and safety committee as a management representative may reflect the parties’ view but the Board uses an objective test and Mr. Bruntz is an employee for the purposes of the Labour Relations Act, 1995.
3During the course of the hearing the responding party objected to certain evidence being called by the applicant as it had not complied with the rule in Browne v. Dunn ((1893) 1893 CanLII 65 (FOREP), 6 R. 67) in cross-examining the responding party’s witnesses. The Board upheld the objection and the applicant was precluded from calling evidence to contradict the testimony of the responding party’s witnesses where they had not been put on notice that such evidence would be called. The responding party’s witnesses were not advised that the applicant would be calling evidence which contradicted them or what that evidence was. They were not even advised that the applicant had a version of the facts which differed from theirs. The rule in Browne v. Dunn (supra) is a principle of fairness which requires that a witness be put on notice that evidence will be called to impeach his or her testimony so that the witness may provide any explanation or modification relevant to the discrepancy. In the one authority provided by the applicant the authors make this very point. After quoting Lord Herschel’s decision in Browne v. Dunn they state “Accordingly, if counsel is considering the impeachment of the credibility of a witness by calling independent evidence, the witness must be confronted with this evidence in cross-examination while he or she is still in the witness box.”(Sopinka, J., Lederman, S.,Bryant, A., The Law of Evidence in Canada 2nd ed., 1999, Butterworths) The Board has applied the rule in Browne v. Dunn in the way described by the authors on many occasions. (see for example John Clark, [1991] OLRB Rep. May 598 and Ontario Hydro, Board file no. 0570-95-OH, July 16, 1996, unreported) In this case the applicant’s counsel did not tell the witnesses that he would be calling any contradictory evidence let alone what that evidence was. The Board therefore refused to permit such evidence to be submitted.
4On the taking of the representation vote directed by the Board, not more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
5The application is therefore dismissed.
6The Board directs the parties’ and the employees’ attention to section 10(3) of the Act. Should an application for certification be filed within one year of the date of this decision, the effect, if any, of this decision and section 10(3) of the Act on that subsequent application may be determined, if necessary, at that time.
7The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
8The responding party is directed to post copies of this decision immediately, adjacent to the “Notice of Vote and of Meeting” posted previously. These copies must remain posted for a period of 30 days.
“Laura Trachuk”
for the Board