[1989] OLRB Rep. August 860
1213-88-U; 1446-88-G; 1570-88-G Nicholis-Radtke Limited, Complainant v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada Local 46, and Bill Weatherup, Respondents; Nicholls-Radtke Limited, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada Local 46, and Bill Weatherup, Respondents; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Applicant v. Nicholls-Radtke Limited, Respondent
BEFORE: R. A. Furness, Vice-Chair, and Board Members J. Lear and S. Weslak.
APPEARANCES: M. Patrick Moran, Bill Nicholls, Sr. and Bill Nicholls, Jr. for Nicholls Radtke Limited; A. M. Minsky, Q. C. and William Weatherup for Local Union 46 and Bill Weatherup.
DECISION OF THE BOARD; August 1, 1989
Counsel for Nicholls-Radtke Limited (the "employer") sought to introduce in evidence a tape recorded telephone conversation between William Nicholls, Sr., a vice-president of the employer and Brian St. John, an employee of the employer, a member of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46 ("Local 46") and a steward for Local 46 on the employer's job site. This conversation was tape recorded without the knowledge of Mr. St. John.
Counsel for Local 46 objected to the introduction of this evidence on two grounds. Firstly, the conversation recorded on the tape and the transcript prepared therefrom is not a proper exception to the hearsay rule because Mr. St. John is neither an employee of nor an officer of Local 46 and accordingly his evidence is not a proper exception to the hearsay rule as an admission against interest. Secondly, the Board in the exercise of its discretion under section 103(2)(c) of the Labour Relations Act ought not to accept this evidence. Whether or not such evidence is admissible in a court of law such evidence was obtained without the knowledge of Mr. St. John and constituted a type of entrapment with its solicited responses.
The Board has considered the representations of the parties. With respect to the first ground raised by counsel for Local 46, the Board finds that there was no evidence before it that Mr. St. John was a paid officer of Local 46. In fact, he was an employee of the employer and paid by the employer. The duties of the steward are referred to in the collective agreement which is binding on Local 46 and the employer particularly at article 103 thereof. None of the duties set forth in the collective agreement include assisting the employer by reporting on the affairs of Local 46 and others. In reporting to Mr. Nicholls, Sr., Mr. St. John was not carrying out any prescribed duties as a steward for Local 46. The Board is not prepared to find that Mr. St. John was acting within the scope of his stewardship in his taped telephone conversation with Mr. Nicholls, Sr. The Board was not referred to any authorities which have stated that a union steward is the agent for his trade union.
The Ontario Court of Appeal has considered the circumstances under which an employee may make admissions which are admissible as evidence against his employer. In Regina v. Strand Electric Ltd., 1968 CanLII 421 (ON CA), [1969] 1 OR. 190, MacKay, J.A., stated at page 193 as follows:
I am of the view that the Court below has right in holding that a supervisor on the location of the work was a person with authority as agent and employee of the appellant to make the admissions he did and that such statements were admissible as evidence as against the appellant company.
I adopt the statement of the author of Cross on Evidence, 2nd ed., pp. 441-2, as being a correct statement of the law on this point. The statement in part is:
Statements made by an agent within the scope of his authority to third persons during the continuance of the agency may be received as admissions against his principal in litigation to which the latter is a party. So far as the reception of admissions is concerned, the scope of authority is a strictly limited conception. It is sometimes said that the agent must be authorized to make the admission, but that is a confusing statement for no one expressly or impliedly authorizes others to make informal admissions on his behalf which may be proved against him in subsequent litigation. A better way of putting the matter is to say that the admission must have been made by the agent as part of a conversation or other communication which he was authorized to have with a third party.
The Board adopts the views of MacKay, J.A. and finds that the evidence in the form which counsel for the employer seeks to introduce before the Board is not admissible as an exception to the hearsay rule because even assuming (for the purpose of argument) that Mr. St. John was either an employee and/or agent of Local 46 and/or Bill Weatherup, the alleged "admission" was not part of a conversation or other communication which Mr. St. John was authorized by Local 46 and/or Mr. Weatherup to have with Mr. Nicholls, Sr. In view of the ruling of the Board on the first ground it is not necessary for the Board to consider the second ground raised by counsel for Local 46.
The objection of counsel for Local 46 is upheld and the hearings in these matters are to be continued on August 8, 1989.