[1991] OLRB Rep. March 413
1686-89-U Windsor Printing Pressman and Assistants' Union, Local 274, Complainant v. Sumner Press Ltd., Respondent
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members G. 0. Shamanski and B. L. Armstrong.
DECISION OF THE BOARD; March 18, 1991
This is an evidentiary ruling in a proceeding filed by the union pursuant to section 89 of the Labour Relations Act. The details of the complaint need not be set out here. It suffices to say that the union's allegations focus on the employer's collective bargaining strategy and bargaining positions which the union contends were undertaken "in bad faith", with a view to eliminating the union presence from the workplace.
Given the nature of the case, the union proceeded first, calling such evidence as it considered necessary to establish the basis for its claim. The company responded with three witnesses who testified about the course of bargaining, the employer's bargaining strategy, and the financial concessions which the company hoped to achieve at the bargaining table. One of those witnesses was Kai Freis who, at the time, was Plant Manager and a member of the company's bargaining committee. Mr. Freis was examined at length by counsel for the company, then cross-examined, at length, by counsel for the union. As is customary in Board proceedings, the evidence was given under oath.
After the company had closed its case, the matter was put over, on the agreement of the parties, to a later date when the Board reconvened to entertain the union's reply evidence. The union indicated its intention to call Mr. Freis as its witness in reply. The company objected, however, the Board ruled that (at that stage) such objection was premature. There is no general rule of evidence that a witness that has been called once cannot be called again, nor is there any rule preventing a union from calling a company witness to give "reply evidence" - provided the evidence is otherwise relevant and proper "reply".
As it turned out, however, there was a problem with the evidence sought to be led through Mr. Freis. Counsel for the union indicated that Mr. Freis would be called "in reply to himself". We were told that, since giving his evidence, Mr. Freis' employment with the company had been terminated and that, accordingly, Mr. Freis might now be disposed to give a more complete, candid, and credible version of events than he had done before. Counsel advised the Board that he had not spoken to Mr. Freis at all about his evidence, nor had he ascertained whether Mr. Freis would, in fact, recant or contradict his earlier testimony - counsel merely suggested that Mr. Freis might be disposed to do so as a result of his discharge. Counsel did not identify any fact or particular episode in the bargaining to which Mr. Freis' "new evidence" might be directed, or which might be clarified or rebutted by what Mr. Freis might now be inclined to say about his former employer. Counsel simply invited the Board to hear Mr. Freis anew so that it could weigh both his own credibility and that of the other company witnesses with whom he had first given evidence.
The Board (by a majority) declined to do so. In our view, this was not "reply evidence" at all but rather a request by the union to reopen its cross-examination of Mr. Freis so that it could embark upon a "fishing expedition" to see if he might now repudiate factual assertions he had previously advanced. Counsel could not say how or in what way that evidence would be any different -only that it might be, and if it was, that might be relevant to the credibility issues before us. Despite counsel's novel suggestion that Mr. Freis was being called in reply "to himself', we did not think that this was proper reply evidence, and there was no other foundation advanced which would warrant hearing further from Mr. Freis on matters about which he had already been examined and cross-examined at some length.
We also note counsel's submission that if Mr. Freis were heard, it would be open to the company to demand a further "reply" to recall its witnesses if anything new, or startling did emerge from Mr. Freis' further testimony. Counsel asserted that this second reply would eliminate any prejudice to the company if it was caught by surprise by anything Mr. Freis said. On this theory of "reply evidence", litigation would be never-ending.
Board Member Armstrong would have received Mr. Freis' testimony, reserving as to the weight (if any) which should be given to it, at the end of the day.