[1984] OLRB Rep. January 109
1649-83-U United Steelworkers of America, Complainant, v. Shaw-Almex Industries Limited, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members J. D. Bell and W. F. Rutherford.
APPEARANCES: C. M. Mitchell and N. Carriere for the complainant; James T Heather, T Churchmuch and L. Shaw for the respondent.
DECISION OF THE BOARD; January 4, 1984
This is a complaint filed under section 89 of the Labour Relations Act. The complainant alleges violations of sections 3, 15, 64 and 66 of the Act. The major complaint is that the respondent has failed to bargain in good faith with respect to the renewal, with amendments, of the parties' last collective agreement, which expired January 31, 1983.
The respondent made two preliminary objections to the Board's hearing this matter. The first was that the allegations set out in the complaint, and further particularized by the complainant in a two-page schedule filed under cover of its counsel's letter of November 15th, were insufficiently particularized and for that reason violated Rule 72 of the Board's Rules of Procedure. The second objection was that there had been such delay in filing the complaint as should lead the Board to refuse to hear it, in the exercise of its discretion under section 89(4) of the Act. Both objections were argued together.
The particulars filed by the complainant alleged that notice to bargain was given January 5, 1983, and the parties first met January 27, 1983. The employer applied for the appointment of a conciliation officer on January 31, 1983. A second meeting between the parties took place March 22, 1983. A "no board" report was issued April 5, 1983, followed by the appointment of a "mediator" by the Ministry of Labour on April 11th. A meeting with the mediator took place April 21, 1983. On April 22nd the complainant began a legal strike. The complainant alleges that no negotiations whatsoever took place during the period April 22 to September 26, 1983. During argument, counsel for the complainant enlarged the complainant's allegations regarding that period, to add that in June of 1983 Mr. Carriere, an official with the complainant trade union, had a conversation with Mr. Shaw in which he requested a further meeting and Shaw told him there would be no point. On September 26th, officials of the union are said to have met with one Jim Heather, a consultant who had negotiated for the respondent in previous years but had not been directly involved in the current negotiations. At this meeting, the complainant says the union put forward a settlement offer to which it had not, to the date the complaint was filed, received a response.
The complaint is summarized in paragraph 14 of the complaint's further particulars filed November 15, 1983, which reads:
The union asserts that from the commencement of negotiations, and at the very least from the commencement of the strike in April 1983, the respondent employer has formed an intention not to bargain and not to enter into a collective agreement with the applicant union and has engaged in superficial surface bargaining with no intention of entering into an agreement, and indeed since the commencement of the strike has refused to meet and bargain at all.
The existence of this intention is something which the complainant says may be inferred from the positions taken by and behaviour of the respondent at bargaining meetings and on other occasions during the period up to the filing of the complaint, October 21, 1983.
The respondent's argument that the complaint lacked particularity was that the particulars supplied failed to disclose a violation of the Act. The respondent's argument with respect to timeliness was that seven months had elapsed from April 22nd, the point at which the complainant says the respondent formed its intention to violate section 15 of the Act, to November 22, 1983, the date on which the hearing of the complaint commenced. Arguing that a delay of this length is excessive and should result in a refusal by the Board to hear the complaint, the respondent's representative cited a number of Board decisions. Those which dealt with delay in alleging bad faith bargaining, however, ante-dated the amendments to the Labour Relations Act which permitted such allegations to form the basis of a complaint under section 89. Other cases cited by the respondent involved certification applications in which the Board refused to entertain allegations of improper conduct where there had been a delay in asserting them. Fotomat Canada Limited, [1980] OLRB Rep. Oct. 1397 was cited for the proposition that the Board must be careful to avoid being used by a trade union to supplement its bargaining power when the trade union finds its economic strength insufficient to move the employer from a hard bargaining position.
Counsel for the complainant argued that the violation complained of was a continuing one, in which the existence of an improper intention on the part of the employer at one point in time will normally only become apparent from subsequent conduct. He noted the employer had made no allegation that its defence of the complaint had been prejudiced by the delay in filing it.
After considering the submissions of the parties, the Board ruled as follows:
We see no merit in the respondent's argument that the complaint lacks particularity. The respondent does not complain that there are allegations of wrongdoing which are too vague for him to investigate and prepare a response. He merely says the complaint alleges no wrongdoing. As to the particulars disclosing the basis of a complaint,, we are unable to say at this point that the evidence in support of the facts alleged would not lead us to infer a violation of at least section 15. We are not prepared to dismiss the complaint for failure to disclose a prima facie case.
We are unable to say whether the union has delayed until we hear the evidence and assess whether there has been a violation and, if so, when the union could fairly be expected to have been aware of it. If there has been delay, it may effect the remedy. The effect may go so far as to lead to a denial of remedy. We cannot say whether there will be any such effect until we hear the evidence.
We hereby confirm that ruling.
II
At the conclusion of the first day of hearing, a question of admissibility of evidence arose during the evidence of Norman Carriere, a staff representative of the United Steelworkers of America with responsibility for the affairs of the bargaining unit covered by the expired collective agreement with the respondent. Through him, the complainant sought to introduce evidence of private conversations between the witness and an officer from the Conciliation and Mediation Service of the Ministry of Labour appointed by that Ministry to act as a mediator" following the issuance of the "no board" report. The Board expressed concern at receiving such evidence and the respondent thereupon objected to it. The Board's concern and the respondent's objection were based both on the relevance of the proposed evidence and the impropriety of receiving it in the face of the relevant confidentiality provisions of the Labour Relations Act.
Complainant's counsel argued that evidence of what was said in meetings between the union representative and the mediator was relevant on several grounds. Explanations of the union's position to the mediator were relevant to show the state of mind of the union and to provide some evidence of what was likely conveyed by the mediator to the respondent company with respect to that position. Evidence of what was said by the mediator to the union concerning the company's position was said to be relevant to a determination of what the company's position was at the relevant time.
With respect to subsection (2) of section 111 of the Act, counsel for the complainant took the position that the officer who met with the parties following the release of the no board report was not a "mediator" within the meaning of that subsection. He argued that "mediator" in that context means a mediator appointed in the manner contemplated by section 17 of the Act, and noted that the "mediator" in question here had not been so appointed. In any event, the Board has a practice, counsel argued, of hearing evidence of what is said between a mediator and one party to the mediation process in the absence of the other party. In support of this proposition, counsel cited the "Ottawa Journal" case (The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. June 309, [1977] OLRB Rep. Sept. 549, and [1977] OLRB Rep. Nov. 748). The Board reserved and now delivers its decision on this issue.
We agree with counsel for the complainant that the "mediator" referred to in the evidence was not a mediator appointed pursuant to the provisions of section 17 of the Act. He was not a mediator from whom a formal report is contemplated under the Act, nor would his appointment or the duration of that appointment effect the timeliness of lawful economic conflict or of any certification or termination application which might affect the complainant's bargaining rights. He was not, therefore, "a mediator...under this Act..." within the meaning of subparagraph (a) of section 111(2) of the Act. The involvement of officers of the Ministry of Labour's Conciliation and Mediation Services, however, does not necessarily end when lawful economic conflict begins. Conciliation officers are regularly made available by the Ministry of Labour after a "no board" report has been released, as in this case, to continue what began as the conciliation process. This role is expressly contemplated by subparagraph (b) of section 111(2) of the Act. In our view, the "mediator" who became involved with these parties was an officer of the sort described in those provisions. He was, moreover, a "person designated by the Minister to endeavour to effect a collective agreement" within the meaning of section 111(4) of the Act and, hence, not competent or compellable as a witness in these proceedings.
Although descriptive of the functions of members of a conciliation board, the following passage from the Board's decision in Thenton Memorial Hospital, 64 CLLC ¶16,302, aptly describes the role of a conciliation officer, whether acting before or after the release of a "no board" report:
Obviously, if he is to be a successful conciliator, a conciliation board chairman or member must win and retain the personal confidence and trust of both parties to the dispute. It will usually be an essential first step to any settlement of their differences, through the efforts of a conciliator, that the parties are willing, frankly and openly, to discuss their respective positions in private with the conciliator without fear that he will later divulge the confidences of their conversations to the opposite party. One must also take cognizance of the fact that in bargaining for collective agreement, parties are often driven, for one reason or another, to adopt rigid or intransigent positions. In such circumstances, the conciliator will have to utilize all the diplomatic skills at his disposal to break the resultant stalemate. His capacity to persuade the parties to move from entrenched positions and to compromise their differences will, in a large measure, depend upon their willingness to communicate freely to him explanations and information concerning the matters which induce or compel them to adopt their respective positions and what compromises or alternatives they might or might not be persuaded to accept in lieu thereof and in what circumstances..., it cannot be doubted that much of the explanations and information itself contained in these communications.., will originate only in the confidence that the contents of the conversations themselves will not later be disclosed to the other party. It seems to us that the element of confidentiality is indispensable to the inception and maintenance of any satisfactory or effective conciliatory relationship between the conciliator and the parties. It is not unreasonable to expect, therefore, subject to any exceptional and compelling reasons to the contrary which may exist in the particular case, that the mandatory and indiscriminate disclosure of these private and confidential communications would probably result in seriously undermining and damaging the relationship and the conciliation process as a whole. The resultant detriment to the labour relations community and to the public at large which would be occasioned by such disclosure, would likely eclipse and outweigh any near-sighted benefit to be gained to the party seeking their disclosure for the immediate purposes of a particular case.
The Trenton Memorial Hospital case involved an application for consent to prosecute the respondent employer for its alleged failure to bargain in good faith. It decided, prior to the enactment of the predecessor provisions of subsections (2) to (5) of section 111, that the Board would not compel the testimony of the chairman of a conciliation board and, further, that evidence of private communications between either party to the conciliation process and any member of the conciliation board were confidential and would be treated by the Board as inadmissible. Although the Act has since been amended to provide the same result, the decision is important in its demonstration that these results can be derived from basic principles. (See also 4 Way Wholesale Ltd., [1979] 3 Can. L.R.B.R. 295 (Alta), where the Alberta Board came to a similar conclusion despite the absence in its governing statute of provisions equivalent to subsections (2) through (5) of section 111 of the Ontario Act.)
Read literally, section 111(2) would exclude evidence of face to face bargaining conducted in the presence of a conciliation officer. The Board's decision in Trenton Memorial Hospital expressly left open the question whether the general principles there considered would require the exclusion of such evidence. That issue arose for consideration in Gorman Eckert and Company Limited, [1969] OLRB Rep. Dec. 1135, which also involved an application for consent to institute prosecution against an employer for its alleged refusal to bargain in good faith. The predecessor of section 111(2) had by then been enacted. The question for determination by the Board was whether it would admit a proposed collective agreement which had been submitted both to the union and to the conciliation officer in the course of the conciliation process. The Board concluded that what is now section 111(2) was intended to protect conversations of a private nature, but not conversations or matters of a non-private nature occurring in the presence of both parties. The proposed collective agreement, having been directly communicated by the employer to the trade union, was not by reason of its communication also to the conciliation officer a protected communication.
The Board reviewed the scope of subsection (2) of section 111 again in C C H Canadian Limited, [1974] OLRB Rep. June 375, where the trade union applicant applied for consent to prosecute the respondent employer for its alleged failure to bargain in good faith. The issue which arose there, and its resolution, are set out in the following passage from the decision in that case:
Mr. Cavalluzzo, through his witness Mr. H. Peacock, who was present at most of the negotiation sessions, wanted to adduce evidence of the course of negotiations through both conciliation and mediation. There was a strong implication that this involved the tendering of evidence about what the conciliation officer or mediator said to Mr. Peacock or what he said to the officers and a strict reading of section 100(2) would preclude any evidence of this kind. However, in Bakery and Confectionary Workers' International Union of America, Lacal 415 and Gorman Eckert and Company Limited OLRB M.R. December 1969, p.1135, the question arose as to whether a proposed collective agreement submitted by one party to the other during conciliation (it was submitted to the conciliation officer) was admissible in evidence. After extensively reviewing the case of Building Service Employees' International Union, Lacal 183 and Thenton Memorial Hospital 64 CLLC ¶ 16.302 which gave rise to the enactment of sections 100(2), 100(3), 100(4) and 100(5), the Board ruled that "the purpose of Section 83(2) [now section 100(2)] was intended to protect those conversations of a private nature but that conversations or matters of a non-private nature are not protected by section 83(2) [now section 100(2)]". Accordingly, the proposed collective agreement presented to the applicant and to the conciliation officer was found to be a non-private nature and properly admissible in evidence.
It must be recognized that neither section 14 nor section 100(2) can be read to the exclusion of the other. The Board must attempt to accommodate and integrate the purposes of each of these sections and only where there is an irreconcilable difference between them should the Board read the more specific wording of section 100(2) as overriding the values of section 14. It is believed that the Gorman Eckert decision follows such an admonition. The "private-non-private" distinction breaths meaning into the obligation to bargain in good faith during the conciliation and mediation processes while recognizing the fragile function of the conciliator or mediator - a function of integrity of which depends upon the confidentiality of private communications. This confidentiality was outlined by the Board in Canadian Stackpole Ltd. 59 CLLC ¶ 18,412 wherein the majority wrote at p. 1778;
Although the extent to which an administrative board may rely on official notice has not been clearly defined, it would be preposterous to suppose that the members of this Board, constituted as it is, can fail to take cognizance of the fact that most successful conciliators have achieved their success by the use of manifold techniques among which are those of conferring separately with each of the parties and of meeting only with key principals and of the further fact that conciliators in this jurisdiction have from time to time relied on each of these last two mentioned methods of breaking down the barriers to the settlement of a dispute. It is common knowledge that skilled conciliators act as a channel of communication between the employer, on the one hand, and a senior official of the trade union, on the other, at time without a single employee even being aware that the conciliator is dealing with either of the "principals". It would require clear and unequivocal language in the Act to convince us that it was the intention of the Legislature, in enacting the several provisions of the Act that are included under the heading "Negotiation of Collective Agreements", to lay down that conciliation officers must desist from resorting to such techniques should they in their wisdom in any particular case deem it desirable to do so, except perhaps where the other party to the proceeding consents thereto. Similarly we cannot bring ourselves to believe that the Legislature in enacting the sections referred to, intended to deny to conciliation boards freedom to resort to tested and time-honoured methods of reconciling the parties to an industrial dispute, as they have done so in this jurisdiction time without number in the past.
Accordingly, private communcations — communications with the conciliator or mediator when the parties are not in presence of each other —must have the protection of section 100(2). This is so because the mediator or conciliator must be able to discover a party's true "resistance point" [see; Stevens, Strategy and Collective Bargaining Negotiations (1963) p.122 and Simkin, Mediation (1973)] and to do so a party must be assurred [sic] that the confidentiality of such communications is inviolable. However public statements — statements made while the parties are in each others presence — if admissible in evidence do not undermine the integrity of the conciliator's or mediator's function and hence are not precluded by section 100(2).
Applying these principles to the facts at hand, the Board was prepared to permit Mr. Peacock to give his opinion that at the conclusion of the conciliation and mediation processes the parties were little closer to reaching an agreement but the Board was not prepared to allow him to elaborate on this opinion if it entailed the description of communications he had had with the mediator or conciliator while out of the presence of the company's negotiators. Such communciations would be clearly of a private nature.
Finally, Mr. Cavalluzzo argued that section 100(2) should be analogized to the privilege of solicitor and client. In other words, he suggested that section 100(2) was a privilege of the parties before the Board and therefore could be waived by any one of the parties. The Board rejected this contention. Section 100(2) is intended to protect the integrity of the conciliator's or mediator's office — it is not a privilege of the parties. If one of the parties could waive the application of section 100(2) and reveal the communications between it and a conciliator for instance, the effectiveness of this official could be seriously impaired. He may have tempered the comments received from the parties or made projections that were based on his own informed but personal speculation. Such revelations would only undermine the usefulness of such offices.
The Board's approach to these questions has always recognized that the primary function of a conciliation officer or mediator is not to act as a postman, courier or telegraph service. He is not the agent of either party for the delivery or receipt of messages to and from the other. The officer has no duty to repeat to one party everything he is told by the other. Indeed, as the above-quoted passages demonstrate, he attempts to have the parties disclose to him things that they do not wish disclosed to the opposite party. Each party is aware that this occurs. This adds to the effectiveness of the officer's private communications are often carefully crafted so as to blur the line between speculation and revelation. Of course, conciliation officers do convey those positions and changes of position which either party wishes conveyed. Even these communications, however, take place within a context of confidential discussion of the nature sought to be protected both by the principles outlined in Trenton Memorial Hospital and the express provisions of section 111 of the Act, and are ordinarily inseparable from the context when they occur in the absence of the party from which they originate.
Accordingly, we do not accept the argument that testimony concerning one party's private conversations with a conciliation officer or mediator should be accepted in evidence as prima facie proof of what must have taken place between the mediator or conciliation officer and the opposite party. Apart from the doubtful logic and, in the case of statements by the mediator, the hearsay dangers involved in that approach, its adoption would completely undermine the confidentiality of such private conversations. One party's revelations would force the other party to reveal his version of what he said to the mediator. Both parties would then clamour for permission to call the mediator to resolve the inevitable inconsistencies. Even on a question (if relevant) of the party's mental state, any inference that might be drawn from the party's version of his conversations with the mediator is no more trustworthy than his direct statement of what he was thinking at the time, since the other participant in the alleged conversation is not a compellable witness. Reference to the conversation, therefore, adds nothing but further adverse pressure on the confidentiality, and thence the efficacy, of the conciliation process.
We have reviewed the reported decisions in The Ottawa Journal case, supra. Only one passage suggests that the Board there entertained any evidence of discussions which occurred between a "mediator" and one party in the absence of the other. That appears at paragraph 38 of the Board's first decision at [1977] OLRB Rep. June 309, at p.3 18:
- The parties then met with Ray Illing, a Ministry of Labour mediator. The meetings commenced on April 1st, and continued through the weekend. On Saturday, The Journal, through the mediator, presented a proposal in respect of the Joint Council. The proposal dealt with a number of proposals relating to the terms and conditions of employment of the pressmen, stereotypers, and mailers, and also a proposal referring to a "damage and good conduct clause and orderly return to work clause". At the mediator's request, The Journal provided a clarification of this latter matter on the next day. This clarification referred to specified damage to vehicles, property, and newspapers, and the reservation of the right to claim damages resulting from the union boycotts. On that same day, The Journal presented, through the mediator, its proposal for the Guild contract. Then, on Tuesday, April 5th, The Journal presented its proposal for the Ottawa Typographical Union contract. These two proposals also contained a proposal concerning damage, good conduct, and orderly return to work. The Unions apparently regarded the first two proposals as being bargainable, but regarded the proposal for the Ottawa Typographical Union as being completely unacceptable, primarily because, in addition to not-giving any concession on jurisdiction, it provided no job guarantees at all.
[emphasis added]
It is not clear how these facts were established in evidence. They might have been agreed facts. If they were, their admission would not have offended the principles established in the Board decisions reviewed in this decision. While we do not know from the Ottawa Journal decision how the parties established the facts recited in the passage quoted above, we do know there is no discussion of their admissibility of section 111 of the Act or of the underlying principles reviewed in the Board's previous jurisprudence. Any intended departure from that jurisprudence would, we believe, have been the subject of express comment by the Board. We do not, therefore, take that case as confirming or announcing a policy inconsistent with that jurisprudence.
In the result, we adopt the approach taken by the Board in C C H Canadian Limited, supra. We will not entertain evidence from either party as to what was discussed between its representative and a conciliator or mediator in the absence of the other party where, as here, the other party objects to the introduction of that evidence. We will give no weight to any evidence of that sort which may have been received up to this point.
Evidence of direct communications between the parties is not, of course, affected by this ruling. That is the answer to any concern that the Board's approach hinders enforcement of the duty to bargain in good faith. The course of negotiations can be charted by evidence of direct communications undertaken from time to time to confirm or obtain confirmation of changes in position. Each party, therefore, has the means to ensure that the confidentiality of the conciliation process is not used as a cloak for bad faith bargaining.