[1986] OLRB Rep. April 422
2829-85-U The Canadian Red Cross Society Blood Transfusion Service, Complainant, v. The Canadian Red Cross Blood Transfusion Service Employees Association, Respondent
BEFORE: Patricia Hughes, Vice-Chairman, and Board Members R. I. Gallivan and L. C. Collins.
APPEARANCES: John W. Woon, Hector B. Martinez and Peter Friesz for the complainant;
B. P. Beilmore, Mary Jean O'Connor and Ann Noble for the respondent.
DECISION OF THE BOARD; April 30, 1986
I. The Canadian Red Cross Society Blood Transfusion Service (the "Service") alleges that The Canadian Red Cross Blood Transfusion Service Employees Association (the "Association"), the bargaining agent for the Service's employees, has contravened section 15 of the Labour Relations Act. The Service argues that the Association has bargained to impasse on the issue of a single collective agreement for both full-time and part-time employees and that it is unlawful to bargain to impasse on that issue. The full-time employees have been certified for several years. The part-time employees were certified December 18, 1985 in a separate bargaining unit.
The hearing into this complaint began on April 15, 1986. During the hearing, the Board was required to make several procedural rulings. This decision deals with the entitlement of the Association to notes prepared by the Society's first witness, Mr. Peter Friesz, Senior Labour Relations Officer for the Society, during negotiations on the renewal of the collective agreement for the full-time employees. During cross-examination of Mr. Friesz by counsel for the Association, Mr. Friesz acknowledged that he had taken notes during the negotiating meetings held between the Society and the Association on November 20, 1985 and on January 16, 17 and 21, 1986.
Mr. Friesz had testified in chief that during these meetings, the chief spokesperson for the Association, Mr. Brian Bellmore, had threatened strike action or other unspecified consequences, if the Service refused to bargain one agreement for both the full-time and part-time workers. In addition to his role as the Association's chief negotiator, Mr. Bellmore also appeared as counsel for the Association at the hearing. During cross-examination, Mr. Friesz admitted that he would probably have made a record of Mr. Bellmore's comments at the meetings because they were "unusual" (with specific reference to the November 20th meeting) and agreed that he would note comments he perceived to be a threat (with reference to the January meetings). Mr. Friesz further testified that he had used his November notes to refresh his memory before testifying, but that he had not looked at his January notes before attending the hearing.
Thereupon counsel for the Association sought production of all the notes made at
the November and January meetings. He submitted that the witness, as an experienced negotiator, would make a note of a strike threat by a party at the bargaining table and that therefore the absence of such notation would cast doubt on the witness's credibility.
Because the Association's requests for the notes were based on different reasons for the meeting of November 20, 1985 and for the three January 1986 meetings, our rulings are set out separately.
Since Mr. Friesz admitted that he had referred to his November 20, 1985 notes prior to giving his testimony in order to refresh his memory, we ordered that those notes be produced to counsel for the Association. The Service produced the November 20th notes in compliance with the order. The November 20th notes raise no further issue.
The question of production of the January notes was not as easily resolved. Mr. Friesz testified that he had not looked at them before coming to the hearing to give his testimony. Counsel for the Association thus sought production of the three sets of January notes on the basis that they had been prepared by Mr. Friesz in the ordinary course of business. We ruled that the Association was entitled to production of all relevant notes dealing with Mr. Bellmore's comments, as negotiator, relating to a strike threat made during negotiations. We accordingly ordered the Service to produce the January 16th, 17th and 21st notes. Counsel for the Service was given an opportunity to examine all the notes to determine which of them were relevant to the issue of Mr. Bellmore' s comments.
After examining the notes, counsel for the Service agreed to produce notes relating to Articles 1 and 2 of the Proposals for a Collective Agreement which had been entered as Exhibit 4 by the Service; these Articles were entitled "Interpretation" and "Recognition", respectively, and referred to part-time employees. He also stated that there was one other line in notes on wage levels which he could produce without revealing the other material on the same page. However, he further stated that the other notes were all concerned either with bargaining issues other than a single collective agreement and so were not relevant, or dealt with the Society's bargaining strategy and so should not be revealed. Counsel for the Association demanded production of all the notes on the basis that he was entitled to view them to determine whether there were other notations made which had not been revealed by counsel for the Service. He submitted in addition that the detail in which Mr. Friesz kept notes might be relevant, since if his notes were detailed, a failure to refer to any particular event would be especially significant with respect to Mr. Friesz's credibility. Obviously, sketchy notes would be less significant. The extent of the detail could be determined only by assessing all the notes in that light.
We explained that in this situation we had a responsibility to balance two important interests: the right of the Association to make a full defence to the allegations made against it by the Service and the right of the Service to maintain the secrecy of its negotiating strategy. More broadly, we desired to maintain both the integrity of the hearing process in a particular case before us and the integrity of the collective bargaining process underlying labour relations in Ontario. In an attempt to reach agreement between counsel, we suggested that counsel for the Association could obtain evidence about what Mr. Bellmore had said at the meetings through other witnesses. The evidence had indicated that several representatives of the Service and the Association, other than Mr. Friesz and Mr. Bellmore, had been present at the meetings. If their testimony contradicted that of Mr. Friesz, it would be available to the
Association to impugn Mr. Friesz's credibility. Counsel for the Association rejected other testimony as a substitute for Mr. Friesz ' s notes. We then proposed that we examine the notes to determine whether there were other references to statements made by Mr. Bellmore. Counsel for the Service agreed to that proposal. Counsel for the Association rejected the proposal, arguing that the Board might see material not relevant to the issue, but nevertheless capable of influencing the Board. He would have accepted an "independent adjudicator", but not the panel sitting on the case. We then retired to consider whether our ruling required production of the January notes other than those which counsel for the Service had already indicated he would produce.
- In reaching our decision, we were influenced by our reluctance to permit the Board's own procedures to be used, even potentially, to benefit one party to negotiations when the material which would be revealed was not the subject of the complaint. In this case, the matters which the Service objected to revealing to the Association concerned bargaining issues which were not part of the complaint. Upon resuming the hearing, we confirmed that the Service was prepared to produce the notes relating to Articles 1 and 2 of the Association's proposals, which dealt with matters directly in issue in the complaint, as well as the one line elsewhere in the witness's notebook. We further confirmed through the representation of the Service's counsel that the remainder of the notes dealt with matters not directly at issue in the complaint, but at issue at the bargaining table. We then issued the following oral decision:
In considering this matter, the Board has attempted to balance the right of the Association to present its case and the right of the Service to keep its negotiating strategy secret. The Board therefore determines that the notes agreed to be produced by the Service, that is the notes of January 16, 17 and 21 relating to Articles 1 and 2 of the Proposals and the single line referred to by counsel for the Service, satisfy the Board's order to produce the January 16, 17 and 21 notes. The other notes are not relevant to the issues in this case. They do, however, contain references to the Society's bargaining strategy. Therefore, even where there might be some relevancy, to require their production simply to permit Mr. Bellmore to determine that there was nothing in them relevant to the issue of Mr. Friesz's credibility would be unreasonable in light of the prejudice to the employer's bargaining position involved in such production. The Board rules that its order to produce the January 16, 17 and 21 notes will be satisfied by production of the notes relating to Articles 1 and 2 and the additional single line. The other notes are outside the scope of the Board's order.
- Our order in this matter must be understood in the context of factors specific to the case at hand. First, the notes were sought in order to impugn credibility; they were not sought because the union was bringing the entire bargaining process or strategy of the employer into issue. Counsel for the Association had not otherwise impugned Mr. Friesz's credibility; he wished the notes to determine whether he could use them for that purpose. Second, the Board accepted that the notes which were not produced were related to bargaining matters which were not directly at issue in the complaint; that is, they were not related to the question of a single agreement for both full-time and part-time employees. The employer agreed to produce the notes which related to the issue of a single agreement. Third, there were other ways to obtain the evidence necessary to challenge the credibility of the Service's witness and
the truth or otherwise of his allegations that Mr. Bellmore, in his role as the union's chief negotiator, had made certain comments during negotiations. In particular, the Association could call other witnesses who were, the evidence already showed, present at the relevant meetings. Thus our decision does not prevent the Association from bringing evidence relating to whether Mr. Bellmore had made the alleged comments.
No one proposed that counsel for the Association be permitted to look at the notes on condition that he undertake not to reveal the Service's bargaining strategy or to use them for ulterior motives (see Shaw-Almex Industries Limited, [1984] OLRB Rep. April 659 at paragraph 18). Consequently, we did not have to address the difficult question of whether it would have been appropriate in the circumstances of this case to release the type of notes at issue here to counsel who was also the party's chief negotiator.
While the Association of course has the right to make its case in the way it considers most effective, there are limits. One limit which is constant in all cases is the prejudice which might occur to the opposing party in admitting otherwise relevant evidence; where the relevancy of the evidence is tenuous, the potential for prejudice must be considered even more carefully. In addition, in this case, those limits include the need to maintain the integrity of the collective bargaining regime. We are most reluctant to risk undermining that system which reflects the labour relations policy of the Legislature, particularly where the advantage to the party which benefits from disclosure of documents is minimal.
The hearing was scheduled to continue on September 16 and 17, 1986, on the agreement of the parties.