Surreptitious Tape Recording Not Admitted Into Evidence

August 26th, 2014 by

Michelle Farb, Student-at-Law

The issue in this May 2014 decision was whether a surreptitious tape recording of bargaining negotiations was allowed to be admitted into evidence.

The Canadian Airliner Dispatcher’s Association (“CALDA”) and Jazz Aviation LP (“Jazz”), a subsidiary of Air Canada, began collective bargaining negotiations in April 2012. One of the main issues between the parties was a new wage schedule.

On April 23, 2012, the chief spokesperson for CALDA asked Jazz whether the union could record the bargaining sessions. On behalf of Jazz, Suzanne Asseff responded by stating that the company was not comfortable with the recording of any of the bargaining sessions.

On August 21, 2012, the parties met, at which time an interim memorandum of settlement was entered into and signed by the parties.

On August 30 and 31, 2012, the parties met to review and discuss the matters contained in the August 21, 2012 memorandum. At the August 30, 2012 meeting, without advising or seeking consent from Jazz, CALDA decided to record the discussions at the negotiating table.

Differences later arose between CALDA and Jazz over the new wage schedule in the collective agreement, so the union filed a grievance. At the grievance arbitration, the union sought to introduce its audio recordings concerning the bargaining of the new wage schedule into evidence. The union contended that the recording was the best evidence of what was said at the time. The employer objected.

Arbitrator Kevin M. Burkett weighed the relevance of the recording against the component of mutual trust in a collective bargaining relationship and came down on the side of mutual trust. He declined to admit the recording into evidence.

If the evidence had been admitted it would have had the effect of rewarding the union’s conduct as the recording was done notwithstanding the employer’s refusal to give permission for the recording when previously asked at the outset of the bargaining.

The Arbitrator stated that there can be no dispute that even a consensual recording of bargaining sessions would inhibit open, frank and often creative discussions that are required in order to arrive at a collective agreement. Yet, what is more concerning is the surreptitious recording of bargaining sessions by one party, as this completely undermines the trust that is needed in order to arrive at an agreement.

The Arbitrator also turned his mind to the adverse precedential impact of admitting the recording. If the recording was admitted into evidence, it would send a message to the labour relations community that it is acceptable in an ongoing collective bargaining relationship to surreptitiously record discussions.

Furthermore, the Arbitrator concluded that the recordings were a violation of the requirement to bargain in good faith.  The Arbitrator Stated:

“If a further basis for refusing to admit this tape into evidence is required, it is to be found in the statutory requirement to bargain in good faith. The surreptitious tape recording of bargaining discussions in circumstances where the party doing the recording has requested permission and been denied is the antithesis of good faith.”

All in all, the recordings were not accepted into evidence, yet the employer’s request to punish the union for its bad faith conduct by excluding all other evidence pertaining to the bargaining sessions was denied. Oral evidence of any union witness who was not heard on the recording nor read a transcript of the tape was admitted into evidence.

The Arbitrator was also prepared to admit the bargaining notes that were taken by the union. The distinction between the recording and the notes taken during a bargaining session lies in the fact that both parties have an equal opportunity to take notes, and both parties are aware notes are being taken. Furthermore, taking notes during bargaining is in no way a departure from norms and expectations as it is quite common. When there is any ambiguity surrounding an agreement, notes can be introduced into evidence for clarification on the issues in dispute.

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