Ontario Labour Relations Board

[1985] OLRB Rep. September 1386

1607-84-U Donald McConvey, Complainant, v. United Association of Journeymen and Apprentices of The Plumbing and Pipefitting Industry of The United States and Canada, Local 46, Respondent

BEFORE: Owen V. Gray, Vice-Chairman.

DECISION OF THE BOARD; September 10, 1985

1. During the ongoing hearing of this complaint, I have ruled on more than one occasion that I will not admit into evidence a letter written to the complainant by a third party and tendered by the complainant as evidence of the truth of its contents. Counsel for the complainant has filed a written request that I reconsider those rulings and admit the letter into evidence when the hearing of this complaint continues September 10, 1985. Having now considered the submissions made by counsel for the complainant in his letter of August 19, 1985, and the submissions of counsel for the respondent trade union in his letter of August 30, 1985, I am satisfied that the request should be denied.

2. The complainant is a member of the respondent trade union. When work is available, he works as a pipefitter for pipeline contractors who are party to collective agreements with the respondent's parent International Union and those of its Locals, including the respondent local, to which it has assigned pipeline jurisdiction. The provisions of those collective agreements which control the hiring of journeymen pipefitters and welders for pipeline construction projects give the employer the right to fill a certain percentage of the available jobs with trade union members it requests by name with the trade union selecting and referring the remainder of the required employees. Because pipeline contractors have the right to "name hire" a percentage of their crew, experienced pipeline workers solicit work by approaching contractors directly and asking that they be "name hired".

3. The complainant says the respondent trade union violated section 69 of the Labour Relations Act by refusing to honour contractors' requests to "name hire" him and by interpreting and administering the applicable collective agreements in such a way as to restrict the opportunity for "name hires" and, therefore, the opportunities for direct solicitation of work.

4. The complainant alleges that Marine Pipeline of Canada Limited ("Marine") is one of the contractors whose request to "name hire" him was refused by the respondent trade union, and says the particulars of this allegation are set as out in a letter written to him on August 22, 1984 by Jerry Lozynsky, a Project Administrator employed by Marine. The body of the letter reads as follows:

This letter will confirm our endeavours to name request you for employment on our pipeline project for I.P.L. in Clarkson, Ontario. The following is a brief summary of the events:

1. On July 5, 1984, we called the Local 46 dispatch office and name requested you as a journeyman for our pipeline project. We were advised at that time by the pipeline business agent that you were too far down the list and therefore you were unable to be dispatched to the project.

2. On July 6, 1984, we again called the Local 46 dispatch office and requested you as a Straw Boss. We were advised that this could be facilitated, but you were not able to perform any journeyman work.

We found this situation impractical and inefficient for our project, and therefore we ceased our endeavours to obtain your services on our project.

Should you require additional information, please contact us at 403-274-3443 in Calgary.

This is the letter counsel for the complainant wishes admitted into evidence as proof of the allegations contained in it.

5. Counsel for the complainant had originally intended to call Lozynsky as a witness. His availability was one of the factors cited by counsel when dates for the continuation of this hearing were arranged. When Lozynsky was not called on the arranged continuation dates, counsel for the complainant explained to the Board that he had had the impression that Mr. Lozynsky would come without a subpoena, but only the day before the hearing had been told by Lozynsky that he would "fight it." Counsel did not request an adjournment for the purpose of serving a subpoena or otherwise seeking to compel the attendance of Mr. Lozynsky as a witness. Although Lozynsky is said to reside in Calgary, counsel did not then and does not now argue that Lozynsky would have refused on jurisdictional grounds to comply with a formal demand by this Board that he testify in these proceedings if such a demand were served on him together with the appropriate conduct money. Without exploring any of these issues, counsel chose to close the complainant's case-in-chief without having introduced any direct evidence of the matters referred to in Mr. Lozynsky's letter. Counsel has never suggested that he did so because an attempt to bring Lozynsky before the Board would have been futile. Indeed, he has said he may attempt to call Lozynsky as a reply witness once he has heard the evidence of the respondent's witnesses. His decision not to call Mr. Lozynsky in his case-in-chief is not inconsistent with a prudent reluctance to call a witness who may be unwilling, when under oath and subject to cross-examination, to repeat what has been said in a private communication. Even counsel's request for reconsideration makes no suggestion that Lozynsky could not be made available to testify before this Board. The only reference to the complainant's difficulty with Mr. Lozynsky is in the final paragraph of the request for reconsideration:

The Ontario Labour Relations Board as a specialized administerial tribunal, empower to decide on the standard of representation an employee can expect from his union who holds the exclusive right to set and administer the terms of his employment, will be aware of the difficulty such employees encounter when they must rely upon the assistance of an employer to prove their case; especially an employer who is concerned about maintaining a continuous, harmonious relations with the union. It is respectfully submitted that the Board's broad powers in regards to the evidence it has the discretion to accept, coupled with its expertise were designed to be exercised in just such a case as this one of Mr. McConveys.

The implication of this submission is not hard to discern. However reluctant we may expect employers to be about taking sides in a dispute between an employee and his trade union bargaining agent, the Board is not prepared to assume that this reluctance will lead employers and their representatives to commit perjury rather than endanger harmonious relations with that trade union.

6. During his examination-in-chief, the complainant testified to a telephone conversation with Mr. Lozynsky in which Lozynsky said the same things as are set out tn his letter of August 22nd. The letter itself is nothing more than the complainant's testimony was: a report of what Mr. Lozynsky said to McConvey about certain matters in issue in these proceedings. The testimony and the letter may well be reliable evidence that Lozynsky said these things to Mr. McConvey, but the mere fact that he said them has no relevance in these proceedings. The content of the statements attributed to Lozynsky by his letter and by McConvey's testimony would be relevant if true, but the letter and the testimony are only hearsay evidence of the truth of the statements attributed to Lozynsky.

7. Hearsay evidence may take many forms and arise in a wide range of circumstances. In some forms and circumstances, such evidence is inadmissible in a court of law bound by the strict rules of evidence. In other forms and circumstances, evidence of a hearsay nature may be admissible even in a court bound by the strict rules of evidence. In the latter case, the hearsay nature of the evidence is a matter which goes to the weight the trier of fact should give to it in determining the issues at hand. By virtue of subsection 103(2)(c) of the Act, this Board has the power "to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not." Whether or not the decision of the Ontario Divisional Court in Re Girvin et al and Consumers Gas Co., 1973 CanLII 706 (ON HCJDC), 1 O.R. (2d) 421 stands for the proposition that a statutory power of this sort does not permit an administrative tribunal to make a decision based exclusively on hearsay evidence, it does support the perhaps obvious proposition that the discretion imported by a statutory power of this kind does not relieve a tribunal of the obligation to conduct a fair hearing.

8. When Mr. Lozynsky spoke and later wrote to Mr. McConvey, he was not giving testimony in circumstances in which a knowing failure to tell the truth, the whole truth and nothing but the truth would attract criminal sanctions, if not also spiritual ones. The accuracy and completeness of his statements were not then subject to cross-examination by the respondent, and the letter cannot be cross-examined in this hearing before the Board. I accept as a general proposition that the rules of natural justice and fairness will not always require a quasi-judicial tribunal to exclude from consideration hearsay reports of statements made without the accompaniment of an express solemn undertaking to tell the truth by persons who are not made available to be cross-examined before the tribunal with respect to those statements. Judgements whether any weight should be given to such reports turn on a number of factors, including the nature of the issue to which the proposed evidence is directed and the circumstances in which the hearsay statements were originally made. The issue addressed by the hearsay evidence in question here is not collateral or uncontroversial. The letter speaks directly to acts and omissions complained of as violations by the respondent of the Labour Relations Act. It was written to answer McConvey's questions of Marine about its failure to provide an expected job. Nothing in the nature of the issue itself warrants shifting the burden of adducing evidence on this aspect of the complaint to the respondent on the strength only of the complainant's belief that wrongdoing has occurred. Nothing in the circumstances which brought the letter into existence minimizes the dangers normally associated with reception of hearsay evidence. In my view, fairness to an accused respondent requires that testimony addressed directly to such a central and controversial issue be received directly, under oath (or solemn affirmation) and subject to cross-examination, or not at all. I was and am satisfied that the conduct of a fair hearing of this complaint requires that I give no weight to the Lozynsky letter as evidence of the truth of its contents. Having come to that conclusion, I was and am of the opinion that it would not be proper to mark it as an exhibit or otherwise formally receive it into evidence. Accordingly, I confirm my ruling that I will not receive the letter into evidence.

9. After this complaint was filed and before Board's hearing of it began, counsel for the complainant provided a copy of the Lozynsky letter to the respondent trade union. During his cross-examination of Mr. O'Ryan, the respondent's business manager, counsel for the complainant asked questions about the letter and about a conversation O'Ryan had had about it with a representative of Marine. In his request for reconsideration, counsel for the complainant asks that I reconsider what he describes as my:

further ruling denying the Complainant the opportunity to ask questions of the Respondent's witnesses as to their knowledge of this letter, its contents and the enquiries the Respondent made, if any, as to the truthfulness of the allegations contained in the letter.

The ruling referred to was on an objection by counsel for the respondent to questions designed to have Mr. O'Ryan recite the allegations in the Lozynsky letter and repeat what Marine's Mr. Nash, Lozynsky's superior, said to O'Ryan about the truth or otherwise of the allegations made in Lozynsky's letter. While counsel for the complainant argued that the quality and results of O'Ryan's investigation of McConvey's complaint were somehow relevant to these proceedings, there is no allegation that the respondent was obliged by section 69 of the Act to conduct such an investigation in a particular way, or at all. The hearsay statements contained in Lozynsky's letter are no more admissible for the truth of their contents when they come from the mouth of Mr. O'Ryan than they are when they come by means of a piece of paper or through the mouth of Mr. McConvey. If Lozynsky later said something to Mr. Nash which Mr. Nash repeated to Mr. O'Ryan, Nash's report of that conversation would not be admissible for the truth of its contents, and would have no relevance for any other purpose. I ruled that questions designed to elicit information about what Lozynsky said to others would not be admitted as evidence of the truth of the statements attributed to Lozynsky, and I confirm that ruling.

10. It is important to note that counsel's characterization of this ruling was potentially imprecise. In ruling that the respondent's witnesses could not be asked about the content of the Lozynsky letter, it was made quite clear it was the content per se, and not the subject matter of the content of the letter, which was the subject of the ruling. Counsel for the complainant has asked the respondent's witnesses about any conversations which may have occurred between them or anyone in the respondent's office and anyone in Marine's office during the relevant time with respect to the employment by Marine of Mr. McConvey. At this point in the hearing, the respondent has called its business manager and both of its dispatchers. The issue of the union's dealings with Marine at the relevant time has been the subject of questions and cross-examination of each of these witnesses. If the respondent calls its pipeline business agent, as it has said it proposes to do, then counsel for the complainant will have an opportunity to cross-examine him on these issues as well. In that context I am unable to understand what counsel for the complainant had in mind in his submission that:

To deprive the Complainant of being able to cross examine on this letter restricts him from fully presenting his case.

11. In summary, I am not persuaded either that these rulings should be reconsidered or that they should be varied, and the request contained in counsel's letter of August 19, 1985, is, therefore, denied.