[1994] OLRB Rep. May 593
1191-89-U Antoine A. Plennevaux, Applicant v. Labourers International Union of North America, Local 1036, Responding Party
BEFORE: Judith McCormack, Chair.
DECISION OF THE BOARD; May 9,1994
- This is an application for reconsideration which relates to a decision issued on December 10, 1990, [reported at [19901 OLRB Rep. Dec. 13141. In that decision, the Board found that
the respondent union had not violated what was then section 69 [now section 70] of the Labour Relations Act and dismissed the complaint.
In his request for reconsideration the applicant asks for a certified copy of the Chair's notes of the original hearing so that he can ask the Crown to study them to assess whether perjury charges can be laid against the union. This is apparently based on his view that union witnesses were not truthful at the hearing of this matter, which occurred in October of 1990. He also asserts that he was libelled in that he was accused of threatening people, and expresses the view that the decision was wrong in finding that he broke one of the union's bylaws by soliciting his own work or in relying upon it. Finally, the applicant states that in August of 1993, he requested and was denied a list of the occupational qualifications filed for each union member in the local.
Turning first to Mr. Plennevaux's request for my notes, it is useful to clarify the role of notes taken by panel members in the Board's hearing process generally. They do not constitute a transcript or record of the proceedings and have no official status or role whatsoever. Rather, they are merely personal memory aids to assist panel members in their subsequent deliberations. They may contain references to testimony and they may not. Indeed, there may be cases where few or no notes are taken. Since they are entirely for the personal use of the adjudicator who takes them, it is left to the discretion of each panel member whether to takes notes at all and what, if anything, to put in them. Among other things, this means that the notes in question are likely to be of little value to the applicant for the purpose he cites, since they are not a verbatim transcript of the evidence in his case.
In addition, there are important public policy considerations involved. Notes taken by panel members are inextricably linked to the Board's thought processes and mental deliberations. They may record tentative or preliminary reactions and assessments which may be subsequently changed. This is particularly true in a tripartite system, which involves a joint discussion and decision-making process. It is not an overstatement to say that delivering up the Board's notes would be an invasion of the delicate and confidential nature of decision-making.
In Consolidated-Bathurst Packaging Ltd. and International Woodworkers of America, Local 2-69 et al. (1985), 1985 CanLII 2157 (ON HCJ), 51 O.R. (2d) 481 (Div. Ct.) the Court referred to notes and draft decisions in the same breath in commenting on the harm to the process:
Apart from being contrary to the procedure and traditions of this court, the effect upon this and other boards of the precedent that we were asked to establish would be incalculable. Who is to say how many drafts of any particular judgment or decision may have been prepared before the final document issues? If a full draft, why not brief memoranda prepared in contemplation of a draft? If such memoranda, why not notes taken by board members in the course of their hearing or their private and personal deliberations? No justification for such an order can be shown, at least in the present case. In any event, the thrust of the attack on the decision of the board is as to the procedure adopted, and the fate of the application should depend on our review of that procedure, not the contents of a particular document.
(emphasis added)
While notes are an important memory aid for most adjudicators, particularly in lengthy and complex cases, they are also highly personalized. Among other things, they may include initial or passing thoughts undiluted by the overall perspective of the case the adjudicator will ultimately possess. If the Board produced its notes to the parties, this would be likely to restrict or change the nature of note taking significantly. The effect may be to diminish the value of the notes to the adjudicator, and to hinder or interfere with the hearing or decision-making process in this respect as well.
Moreover, the Board's notes may often be misleading or meaningless to the parties. For example, they may be illegible or in various shorthand forms. There is also no way of knowing why a note was made of one point and not another. Notes may be made because the adjudicator agreed with a point, disagreed, thought it was significant, thought it was so insignificant that he or she would need a note to even remember the point, and so forth.
The Board issues reasons for its final decisions, in some cases, routinely, and in others, upon request. Those reasons set out the basis on which the Board has reached its conclusion. They contain all the information about the decision-making process to which a party is fairly entitled. The release of notes even for a purpose unrelated to its proceedings would create a precedent which would be highly problematic, and which has the potential to erode the high standard of administrative justice reflected in the Board's proceedings. As a result, I decline to provide a copy of my notes, certified or otherwise, to the applicant.
Turning next to Mr. Plennevaux's reference to libel, he has not asked the Board to adjudicate or take any action, nor does the Board have any jurisdiction to do so. For his clarificalion however, I note that the original decision indicates that Mr. Suppa did not testify that Mr. Plennevaux had threatened anyone, but only that a representative of Stone and Webster had referred to this in telling Mr. Suppa the company did not want to hire him. The Board made no finding with respect to whether such threats were made, as this was not relevant to the complaint.
The applicant's reference to breaking a bylaw appears to relate to these portions of the decision:
At approximately 9:30 a.m., Mr. Emsley, the three men from London, and Mr. Plennevaux arrived at the respondent's office. Mr. Suppa directed the London men to Roberta Peron, the respondent's office secretary, to complete the necessary paperwork for their transfers. In the meantime, he and Mr. Plennevaux discussed his situation. Mr. Plennevaux said to Mr. Suppa "you caught me, Billy, you can't blame me for trying". This was apparently a reference to the respondent's by-laws which prohibit members soliciting work on their own, rather than being referred by the respondent. Mr. Suppa and Mr. Plennevaux talked about the fact that Mr. Plennevaux was not supposed to be soliciting work, that he knew better, and that he knew the proper way to go about it. At this point, Ms. Peron came to Mr. Suppa and told him that there were three men wishing to transfer from London rather than two. Mr. 5uppa then spoke to Mr. Emsley and pointed out that they had agreed that two men would be allowed to transfer in, that he didn't care which two they were, but that there would only be two. He then went and spoke to Mr. Plennevaux again while two of the three men from London filled out all the papers and deposited their transfer cards. When this was done, Mr. Suppa instructed Ms. Peron to issue referral slips to them.
Finally, I do not find that Mr. Suppa's chastisement of Mr. Plennevaux reflects any animosity towards the latter, or dominated Mr. 5uppa's conduct toward him. By soliciting his own work, Mr. Plennevaux had broken one of the respondent's by-laws, and it is readily apparent that if such a practise were to become widespread, the respondent's hiring hall would become undermined to a very significant degree. There was no evidence that Mr. 5uppa's reaction was excessive, or indeed anything more than simple irritation. Not only did he immediately refer Mr. Plennevaux to Stone and Webster when the request for cement finishers came in, but the respondent filed and pursued a grievance on the complainant's behalf when Stone and Webster refused to hire him. There is nothing about these events which suggests that the respondent acted towards Mr. Plennevaux in a manner that was arbitrary, discriminatory or indicative of bad faith.
Mr. Plennevaux is of the view that whether or not he broke a bylaw is not the concern of the Board. This is quite true in the sense that the Board in this case was not addressing whether
or not Mr. Plennevaux violated any part of the Labour Relations Act by soliciting his own work or breaking a union bylaw. However, this evidence was relevant to Mr. Plennevaux's allegations that the exchange described above between Mr. Suppa and himself reflected an attitude on the part of the union toward him which was in violation of the duty of fair referral. The Board found that Mr. Suppa's irritation related to Mr. Plennevaux's soliciting his own work in breach of the bylaw, rather than to underlying animosity, discrimination or bad faith.
Finally, it appears that Mr. Plennevaux's request for the classification listings of local members relates to evidence given at the hearing and recited in the decision that "[miembers may check the out-of-work list at any time during office hours". Assuming, without finding, that Mr. Plennevaux made such a request, I do not find it suggests that the union witnesses lied at the hearing about whether the members could check the out-of-work list. In the first place, it is not clear that checking the out-of-work list, and obtaining a list of classifications for all members amounts to the same thing. In addition, Mr. Plennevaux's request appears to have been made almost three years after this evidence was given, during which time the practice of the union may have changed. The union may find it useful to provide the information listed; at this point, however, that is up to the union.
As a result, the application for reconsideration is dismissed.