Teamsters Local Union 91 v. R.W. Tomlinson Ltd., 2001 CanLII 3524

Ontario Labour Relations Board

File Nos.: 1190-01-R; 1328-01-U Date: November 13, 2001

Teamsters Local Union 91, Applicant v. R.W. Tomlinson Ltd., Responding Party.

Before: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.

Appearances: James Robbins, Andre Papineau, Yvon Ouilette, Randy Doner, Brian Konick and Lyle Duffy for the applicant; Cindy Keon, William R. Tomlinson, Michael S. Ruddy and Jan Shiells for the responding party.

DECISION OF THE BOARD

1Board File No. 1190-01-R is an application for certification. Board File No. 1328-01-U is an unfair labour practice complaint brought under section 96 of the Labour Relations Act, 1995, as amended ("the Act").

2The representation vote in the application for certification was held on July 27, 2001. Ninety-two individuals cast ballots, and of those, fifty-six were challenged by the applicant, and two by the responding party. The ballot box was sealed. Subsequently, the responding party withdrew one of its two challenges. At the commencement of the hearing in these matters on July 27, 2001, the parties agreed to count thirty-four ballots. Those ballots were cast by individuals who would be in the applicant's proposed bargaining unit, if that bargaining unit were found to be appropriate. The count of those ballots was eighteen in favour of the applicant, sixteen against. However, as the responding party contends that the applicant's proposed bargaining unit is not appropriate, and that the bargaining unit that is appropriate is considerably larger than that proposed by the applicant, the counting of the thirty-four ballots was not determinative of the application for certification.

2At the conclusion of the second day (August 28, 2001) of hearing in these matters, counsel for the applicant informed the Board that an issue concerning production of documents remained outstanding. The Board directed the filing of written submissions, and indicated that it would issue a decision in respect of the production issue. The parties complied with that direction. This constitutes the Board's decision on the preliminary matter only.

Background

3In its application for certification, the applicant proposes a bargaining unit consisting of certain employees of the responding party, R. W. Tomlinson Ltd. ("Tomlinson") working at or out of the County of Lanark. The applicant's focus is on a specific quarry owned by OMYA Inc. ("OMYA") on Tatlock Road in Lanark County, which quarry ("the OMYA quarry") is managed and operated by Tomlinson. The applicant claims there are 30 employees in that bargaining unit, carrying out duties related to the crushing, loading, removal and transport of quarry materials from the OMYA quarry to an OMYA processing operation in Perth, where the employees covered by this application remove and dump certain waste materials.

4Tomlinson states there are 53 employees in the applicant's proposed bargaining unit. It claims to be related to Beaver Road Builders Ltd. ("Beaver"), which owns and operates the Beaver Quarry in Ottawa. Tomlinson claims to own, manage and operate a quarry on Moodie Road in Ottawa, as well as to manage and operate what is known as the Hanson Quarry in Russell Township and the Steeprock Quarry in Sault Ste. Marie. It contends that much of its operation and that of Beaver are integrated. (The response was filed on behalf of both Tomlinson and Beaver). Tomlinson therefore proposes a bargaining unit of certain employees of both Tomlinson and Beaver in Lanark County and Ottawa. That bargaining unit would comprise 94 employees working at or out of the Tatlock Road, Moodie Drive, Beaver and Hanson quarries. Other outstanding issues include status disputes, and disputes concerning voter eligibility (for convenience, we refer to these as "list issues").

5The unfair labour practice complaint alleges that Tomlinson held captive employee meetings, suspended and dismissed certain employees as a form of intimidation, called in an employee loan as a form of intimidation, and reduced the working hours of individuals supportive or key to the applicant's organizing drive and application for certification. Tomlinson denies it violated the Act.

6At the hearing, counsel for Tomlinson and Beaver (for convenience we shall simply refer to Tomlinson and Beaver jointly as "T&B" or "the responding parties", and to their counsel as "counsel for T&B" throughout) produced a large quantity of documents which relate to the period of time one year prior to the filing date of the application for certification, July 20, 2001. Among them were daily equipment reports, daily cost reports and daily equipment revenue reports over that period of time.

The production issue

7In arriving at our conclusions regarding production of the information sought by the applicant in this matter, we have adopted the well known test of arguable relevance to the issues raised by either party. In other words, if the information might be relevant to such an issue, it ought to be produced. If not, then the holder of the information should not be put to the time and expense of production.

8We do not, at this point, intend to make final determinations concerning the positions of the parties regarding the relevance of the documents at the heart of the applicant's production request. However, where there are disputes between the parties concerning this preliminary issue, we think it useful to identify those disputes in this decision, and offer, where we deem it appropriate, our observations concerning those disputes so as to assist the parties in the ongoing litigation.

9The applicant's request for particulars and copies of documents relates to three broad areas in dispute: one, the appropriate bargaining unit; second, the list issues; and third, the unfair labour practice complaint (which the applicant refers to as the "Section 96 Complaint"). In its letter of September 21, 2001, the applicant seeks a Board order regarding production of particulars and copies of documentation, and sets out its rationale under the heading of one or more of the three broad areas in dispute:

1. All documentation pertaining to the scheduling, routing, hours of work and work performed by all employees listed on Schedule "A" of the employer's response, for a one year period up to an including the date of application (July 20, 2001), including but not limited to all work schedules, dispatch sheets, pre- and post-trip reports, trip tickets, punch cards, daily logs, load receipts, invoices, payroll records, paystubs, automatic deposit slips and cancelled cheques, daily equipment reports and daily cost reports;

List Issues

These materials are relevant to the determination of which individuals actually perform bargaining unit work, and how they are treated organizationally.

The Company has introduced into evidence selective daily equipment reports and daily cost reports as well as daily equipment revenue reports for the period from July 2000. The Union submits that these documents are therefore prima facie relevant and that the Board should have the complete, rather than selected, record of employee activity during this period.

2. Particulars and documentation set out at paragraph 1 supra for all remaining individuals on the voter's list and for Guy Bisson;

Appropriate Bargaining Unit

These materials, together with those requested in paragraph 1 supra, are relevant to the Company's allegations of intermingling of employees in support of its multi-municipality bargaining unit description.

List Issues

See item 1, supra, Guy Bisson name [sic] did not appear on the voter's list, but he voted as an "add-on"; the Union has challenged him as not performing bargaining unit work.

3. All documentation concerning any transfers of employees between work locations or interchange of employees between work locations for the individuals listed on the voter's list and who voted including particulars of the time and duration of the transfer, type of work performed and particulars of where and when such duties were performed, for a one year period up to and including the date of application;

Appropriate Bargaining Unit

This material is relevant to the Company's allegations of intermingling and assertions of a "community of interest" shared by employees in the Union's proposed bargaining unit and employees working at or out of Ottawa and Russell Township.

List Issues

This material is relevant to the determination of which employees perform work within the Union's proposed bargaining unit work and the extent to which they performed it as opposed to other work for the Company.

4. All records pertaining to any maintenance work performed by the maintenance employees on the voter's list for a one year period prior to the application date, including but not limited to particulars of the type of vehicle or machinery repaired, its registration or other identification number, the nature of the repair, the individual or individuals who performed the repair, when the repair was carried out, any receipt, invoice or certificate indicating completion of the work;

Appropriate Bargaining Unit; List Issues

The Company has already introduced a number of these records spanning this chronological period into evidence; the Union submits that they are therefore prima facie relevant. The evidence of the Company's witness was that she did not know if the records were complete. The Union submits that the Board should have before it the complete record of relevant events – here, maintenance work – rather than the record selected by the Company.

5. For the drillers, blaster and equipment operators on the voter's list, please provide all documentation pertaining to their work assignment including dispatch sheets, punch-card records, hours of work and location of work, for a one year period up to and including the application date;

List Issues

This is relevant to the Company's allegation that certain individuals who operate drillers, blaster and other equipment spend a large proportion of their time at the OMYA quarry and should therefore be included in the Union's proposed bargaining unit.

The Company has provided records for one individual – Noel Yantha – in this category of materials. The Union submits that the documents are prima facie relevant on that basis and should be provided for all individuals in this category.

6. All contracts, agreement, letters of understanding, memoranda, and related documentation between the Company and its agents and affiliates and:

a. OMYA Inc. ("OMYA") and its agents and affiliates pertaining to the supply of rock and materials from the OMYA Quarry at Tatlock;

b. any similar materials in respect of any work carried out by the Company and its agents, affiliates for any other individual, company or business style supplied with materials out of the OMYA Quarry;

c. any similar materials in respect of any work carried out by the Company and its agents and affiliates for any other quarries;

Appropriate Bargaining Unit

The Company has alleged that its operations are so integrated that the Board's normal practice of single-municipality bargaining units is inappropriate. These materials are relevant to the degree of integration of the work performed in the Union's proposed bargaining unit (i.e., servicing OMYA in Lanark county [sic]) and that which the Company asserts to be appropriate.

Section 96 Complaint

The Company has alleged that its actions in cutting back hours of work coincidentally with the Union's organizing drive and certification application were "business as usual" due to its business arrangements with OMYA. These materials, which describe those business arrangements, are relevant to that allegation.

7. Particulars of and copies of all contracts and agreements pertaining to all construction work carried out by R.W. Tomlinson Limited, Beaver Road Builders Ltd. and/or Tarcon Ltd. for a one year period up to and including the application date;

Appropriate Bargaining Unit

See item 6, supra

8. Copies of all documents and records pertaining to the disability claim of Harold Flentje; any notes, memoranda or similar record of any discussion between representatives of R.W. Tomlinson Limited and Mr. Flentje, his immediate family and physicians;

The Union has been advised that the Company's complete file of documents in this category has been produced as exhibit 4-8. The Union requests that the Company confirm this to the Board or else provide the remaining documents, if they exist, and reserves the right to make further submissions depending on the Company's response.

9. Copies of all records pertaining to remittances for dues and benefits made to any union by R.W. Tomlinson Limited or any related or associated employer on behalf of any individual on the voter's list or who cast a ballot, for a one year period up to and including the application date;

List Issues

This is relevant to the Union's allegation that a number of individuals on List "A" are primarily construction workers who work on construction sites in the Ottawa area and are currently members of another union.

10. Any schedules, trip sheets, delivery reports and invoices, route plans, pertaining to all drivers trucking garbage for R.W. Tomlinson Limited and any other related or associated employer;

List Issues

It is the Union's understanding that among the employees whom it challenged on Schedule "A" of the Company's response are a number who work in and out of Ottawa and who periodically truck garbage at sites in Lanark County, unlike the employees servicing the OMYA facilities in the Union's proposed bargaining unit. The requested material is relevant to determining the extent to which the work these individuals perform falls within the Union's proposed bargaining unit.

11. Copies of any letters, memoranda, notes, and related materials pertaining to any discipline issued to any individual who cast a ballot or is on the voter's list, for a one year period up to and including the application date;

Unfair Labour Practice

This material is relevant to the Union's allegations that the Company threatened and attempted to intimidate supporters of the union prior to the representation vote, during the organizing drive, and after the vote, and suspended and dismissed employees and significantly reduced the hours of work of suspected union organizers and supporters.

12. A list of all individuals who have or were issued a time-swipe card for the operations at the Tatlock Quarry for a one year period up to and including the application date;

Appropriate Bargaining Unit

This is relevant to the Union's submission that the time-swipe system is one of the factors distinguishing the OMYA work in Lanark Country [sic] from the rest of the Company's operations.

List Issues

This is relevant to the organizational treatment by the Company of employees pertaining to the OMYA work in Lanark county [sic] and those working mainly elsewhere.

13. All documents pertaining to the corporate, business, and organizational structure of the related companies, R.W. Tomlinson Limited, Beaver Road Builders Ltd., and Tarcon Ltd., including but not limited to an organizational chart of the three companies indicating their various operations (including Moodie Drive, Beaver, Hanson, and OMYA quarries and the Ontario Trap Rock quarry in Sault Ste Marie), their chains of authority, and any corporate, managerial and administrative interrelationships between the three companies;

Appropriate Bargaining Unit

This is relevant to the Company's allegations of an integrated business structure (including functional coherence between the operations in the different municipalities, interdependence of operations, and centralized managerial authority) which includes the OMYA operations but does not include all of the Company' operations.

14. A complete sample Daily Equipment Revenue Report.

Incomplete versions of these documents have been introduced by the Company as exhibit 1-1. The Union submits that where the Company has introduced part of a document into evidence, the entire document is prima facie relevant, and at the very least, may be relevant. The Union requires a sample document in order to determine whether the information which has been edited is indeed relevant, and reserves the right to make further requests after having had the opportunity to examine a complete sample document.

The Union submits that confidentialty [sic] does not constitute privilege (see infra).

10Counsel for T&B indicates the unqualified agreement of the responding parties to provide the items identified in paragraphs 3, 8, 12 and 14 of counsel for the applicant's letter of September 12, 2001 ("the production request"). Counsel for T&B submits that it has produced or will produce the items identified in paragraph 8 of the production request. There is substantial, though not full, agreement to produce the documents in paragraphs 4, 5 and 10. The issue raised by T&B in respect of those latter three paragraphs, as well as much of paragraph 1 of the production request is that a number of the documents requested therein do not actually exist.

11Paragraph 2 of the production request indicates that the applicant seeks information in respect of one of the individuals on the voter's list who allegedly cast a ballot, Mr. Guy Bisson. T&B alleges that Guy Bisson is not an employee of any entity identified in these applications. A review of the voters' list issues appended to the Certification Worksheet identifies an individual by the name of Marcel Bisson, whose ballot the applicant challenged. Perhaps the discrepancy explains T&B's assertion that Guy Bisson is not an employee. In any event, if the applicant is seeking information concerning an individual who T&B assert is not an employee, and regarding whom T&B presumably have no information, then the production request in respect of that individual cannot succeed. If, on the other hand, the applicant was seeking information in respect of Marcel Bisson, it should clarify that request with the responding parties, and if a dispute still exists, it may be referred to the Board.

12Counsel for T&B objects to the production of "invoices" in paragraph 1 of the production request. The applicant contended that the items listed in paragraph 1, including invoices, are relevant to the determination of which individuals actually perform bargaining unit work, and how they are treated organizationally. Counsel for T&B asserts that the responding parties' invoices do not disclose that kind of information, nor do they disclose any other information relevant to other issues in these matters, such as the identity of employees, vehicles and equipment, or hours of work. If that is so, the invoices would appear to have no value in assisting the Board with the determination of facts in this matter.

13Counsel for T&B objects to paragraph 6 and 7 of the production request except to the extent that the responding parties are prepared to produce one copy of a 2001 contract between Tomlinson and OMYA Inc. Counsel appears to concede some degree of relevance in respect of the documents sought by the applicant in paragraph 6, but resists production because, in its view, the evidence those documents reveal concerning the degree of integration of T&B's operations will emerge through other documents. However, we note that this does not constitute a complete reply to the applicant's proffered rationale for seeking production of the contracts. The applicant asserts that the contracts go not only to the issue of integration, but also may shed light on the issue of reduced hours of work of employees affected by the application for certification, which reduction the applicant contends in its unfair labour practice complaint was unlawful. The applicant, in our view, has established a relevant link between the documents sought and the issue of integration of operations as well as that relating to the reduction of hours of work.

14Counsel for T&B objects to paragraph 9 of the production request in reference to information regarding dues and benefits remittances made to any union of Tomlinson on behalf of individuals who cast ballots or were on the voters' list in the application for certification. Counsel for T&B questions the relevance of that information. The applicant contends that this information is relevant to the applicant's contention that a number of individuals on T&B's Schedule A list of employees are in fact primarily construction workers and members of another union. While it is not necessarily determinative, if it is demonstrated that there are individuals sought by the responding parties to be included in the bargaining unit who engage primarily in construction work and who are represented by another union, that may be a factor in the determination of the appropriate bargaining unit. The applicant has met the threshold of arguable relevance concerning this information.

15Counsel for T&B objects to paragraph 11 of the production request wherein the applicant requests copies of all documentation respecting discipline issued to any individual who cast a ballot or is on the voters' list in connection with the application for certification. Counsel contends that only the discipline issued to the two employees named in the unfair labour practice complaint (Lyle Duffy and Brian Konink) is relevant in that matter. In our view, the applicant must at least allege further material facts suggesting an actual (and unlawful) imbalance of approach by the employer in matters of discipline before the responding parties are required to make production of the entire catalogue of discipline as requested by the applicant.

16T&B contend that all the items identified in paragraph 13, and some of the items identified in paragraphs 1, 2, 4, 5 and 10 of the production request do not exist, or do not exist in the form contemplated by the applicant. We agree that, pursuant to a production request, the responding parties are not required to create documents or arrange into new formats information that is contained in existing documents. However, as the applicant points out, some of the types of documents that the responding parties claim do not exist have already been produced on a limited basis, or have been referred to by them in the evidence they have tendered in the hearing of these matters. To the extent there are other documents of this nature, they ought to be produced for inspection.

17Counsel for T&B argues that the responding parties should be at liberty to delete or otherwise block from view any and all references to pricing, rates, contract values and other information by which contractual figures and values may be arrived at in any records which Tomlinson or Beaver agree to, or are ordered to, produce. Counsel for T&B claims that the information is not relevant, and is confidential and sensitive, such that disclosure might prove injurious to its competitive position in the industry. The applicant responds to this concern by pointing out that the mere assertion of confidentiality does not protect the information from disclosure, and that, in any event, it recognizes its implied undertaking that such information will not be used for any collateral or ulterior purpose. However, the applicant did not explain how this information is relevant to the issues before us.

18Given the rather broad scope of the applicant's request for production, and the potential for significant expense of time and money in photocopying materials, we are of the opinion, notwithstanding the applicant's objections to the contrary, that this is an appropriate case for the production of documents for inspection by the applicant and its counsel. Counsel for T&B suggested that this could be accomplished by having counsel for the applicant and one other representative of the applicant attend at Tomlinson's offices on Power Road in Ottawa. Counsel for the applicant resists that suggestion, arguing that there is no basis for restricting the number of its representatives entitled to participate in the inspection, and further, that, in the event of an inspection, the documents should be deposited with the Registrar of the Board for inspection by the applicant.

19Counsel for T&B anticipates that the applicant will require an extraordinarily large, volume of photocopies following inspection. For this reason, counsel for T&B contends that the applicant should pay any photocopying charges that may result from the applicant's inspection. We agree that the applicant should pay the reasonable photocopying costs incurred by the responding parties in responding to the applicant's production request.

20We order the responding parties to make available for inspection to counsel for the applicant and a representative or representatives of the applicant all existing original documents requested in counsel for the applicant's letter of September 12, 2001, but for invoices in paragraph 1, and the documents requested at paragraph 11, of said letter. With respect to the documents required hereby to be produced for inspection, Tomlinson is entitled to delete or otherwise "block from view" any and all commercial references to pricing, rates, contract values and other information by which contractual figures and values may be determined. We further order Tomlinson is to provide to counsel for the applicant a photocopy of each document requested by counsel for the applicant in writing following the inspection herein ordered within ten days of delivery of the written request.

21There are differences between the parties concerning the details of an inspection, including its location and the number of representatives that the applicant might wish to utilize. Possibly there are other matters relative to the timing and duration of the inspection, as well as the calculation of photocopying costs. Each of the parties' counsel is a seasoned labour relations practitioner. Now that we have determined that an inspection of original documents is appropriate, it may well be that counsel can resolve between them these collateral issues. If not, either or both may write to the Board within five days of the date of this decision indicating the outstanding items associated with the implementation of this decision, and we shall issue a further decision forthwith.

22We note the applicant's acknowledgement of, and we hereby confirm, the principle with respect to the implied undertaking of parties to whom production of documents is made that those documents will not be used for any collateral or ulterior purpose unrelated to the proceeding at hand.

23We make no final determination at this point concerning the relevance of the documents examined or copies of which are ultimately produced. To the extent there continue to be disputes between the parties concerning the relevance of any documents, those may be referred to the panel during the course of the continuation of the hearing, at the time of their proposed introduction into evidence.

23We are seized.

"Patrick Kelly"

for the Board