Labourers’ International Union of North America v. 870528 Ontario Ltd., o/a Lido Construction Co.
3278-00-R Labourers’ International Union of North America, Applicant v. 870528 Ontario Ltd., o/a Lido Construction Co., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
3717-00-U Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. 870528 Ontario Ltd., o/a Lido Construction Co. and Labourers’ International Union of North America, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; October 11, 2001
The Carpenters and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America (“Local 27”) by letter dated October 5, 2001 seeks an order directing Lido Construction Company (“Lido”) to produce further documents on the grounds that it has failed or refused to produce documents that are, at the very least, arguably relevant to the issues in these proceedings.
Local 27 submits that there are documents encompassed by the Board’s decision of June 19, 2001 that Lido has failed or refused to produce despite two requests from Local 27 for production of those documents. Local 27, on August 24, 2001 advised Lido that documents described in paragraphs 3(a) and 3(b) of the Board’s June 19, 2001 decision had not been produced. That decision stated at paragraph 3:
In the course of discussions, Lido agreed to produce for inspection by Local 27 (and by LIUNA, I assume) its records relating to the period between January 1and February 28, 2001 (the “Relevant Period”) in the following categories:
a) spread sheets maintained by Lido showing the hours worked and the locations of work done during the Relevant Period by the individuals in the bargaining unit in these proceedings;
b) records created by the individuals in the bargaining unit and records created by their supervisors relating to the actual work they performed during the Relevant Period;
c) the last Employment Insurance Record of Employment issued by Lido prior to February 8, 2001 (the application date) in respect of each individual in the bargaining unit as well as the prior Employment Insurance Record of Employment in respect of any person that was laid off during the Relevant Period; and
d) the first spreadsheet showing when an individual for whom a Record of Employment was issued has resumed working with Lido after the date of that Record of Employment produced by Lido in paragraph (c) above.
- Local 27, in a letter to Lido dated September 7, 2001 requested further production. It went into considerable detail about the documents it sought from Lido and stated:
For the purposes of this request we will refer to the production order at paragraph 3 of the Board’s decision in this matter dated June 19, 2001 as the “Board’s Order”. We are not at this time seeking a further Order from the Board but reserve the right to do so.
Lido had provided Local 27 with production of some documents subsequent to the Board’s June 19th decision. Local 27 asserts that production was inadequate and submits further and better production is necessary. Lido has responded to those submissions and requests that the matter be dealt with expeditiously as the hearings are fixed to continue on October 29th.
Lido responded to Local 27 by letter dated September 20, 2001 in which it pointed out that much of what Local 27 seeks does not exist. I would note, in that regard, that paragraph 3(b) of the Board’s June 19, 2001 decision referred to documents created by bargaining unit employees and their supervisors relating to actual work performed during the relevant period of time. Local 27 also sought Lido’s invoices for all projects during the relevant period, as well as Records of Employment, spreadsheets for all employees and site meeting minutes and other documents created by supervisors relating to work performed by Lido. Lido’s response, in addition to indicating that it has produced all of the documents that exist in relation to work hours, submits that invoices for its work are not relevant, and that it has provided all of the Records of Employment and spreadsheets requested. It also pointed out that Local 27 had never sought invoices and that it had provided site meeting minutes that were in its possession even though those documents had not been requested.
Local 27, in its letter of October 5, 2001 has now requested a formal production order from the Board for those documents. (I note that the Board’s decision of June 19th did not include a production order; rather it noted that Lido had undertaken to produce the documents described in that decision.) Local 27 requests production of what it terms “primary documents” that it describes as the records kept by supervisors and employees of the work they perform. Lido in submissions dated October 10, 2001 argues that no order is necessary and says that the primary documents sought by Local 27 do not exist if they have not already been disclosed to Local 27. The Board will not order production of documents that do not exist.
With respect to site meeting minutes, Lido points out that site meeting minutes are not prepared by Lido but rather are prepared by “persons not parties to this proceeding and without the participation of Lido”. The Board understands Lido’s submission to mean that site meeting minutes are maintained by persons who are not employees of Lido and over whom Lido does not exercise control. If the Board’s understanding of Lido’s submission is wrong however, and site meeting minutes, although prepared by third parties, are under the control of Lido, then the Board directs that such minutes, if they exist and relate to the relevant time period be produced forthwith.
Local 27 seeks production of invoices from Lido to its customers. In my view, invoices are not even arguably relevant to the issue before the Board which is the propriety of the layoff of two employees. While the invoices might show where work was done and the value of such work, they would not in my view provide an explanation for Lido’s decision to lay-off those two employees nor would they provide any information to challenge the reasons that Lido puts forward for its decision.
These proceedings relate to the propriety of the layoff of two persons. Local 27 submits that their layoff was contrary to the Act. The burden of proving that Lido’s decision to lay off those two employees was not a violation of the Act rests squarely on Lido. Lido will have to justify why it did what it did. That justification will, one can reasonably assume, relate to the work that those employees were doing and whether work was available for them. It appears that Lido has produced a good deal of information to Local 27 already so that Local 27 can be in a position to challenge the explanations Lido provides. Although there has been no order requiring Lido to produce to Local 27 all documents upon which it intends to rely at the hearing of this matter, such an order is not necessary in light of Rule 36 of the Board’s Rules of Procedure. Obviously, Lido will not be permitted to rely on or refer to any document that it has not already produced to Local 27.
The Board directs Lido to produce for inspection forthwith by Local 27 site meeting minutes for site meetings that took place during the relevant time period if such minutes, if any, are in the control or possession of Lido whether or not the persons who prepared such minutes or is in possession of them is an employee of Lido. The Board is not prepared to order any further pre-hearing production.
These matters are scheduled to proceed before this panel of the Board on October 29 and 31, 2001. The parties should be prepared to adduce their evidence at that time.
“Harry Freedman”
for the Board