Ontario Labour Relations Board
2687-98-R; 3150-98-U United Steelworkers of America, Applicant v. Baron Metal Industries Inc., Responding Party.
BEFORE: Christopher J. Albertyn.
APPEARANCES: Mark Wright, Brando Paris and Doug Lefaive for the applicant; Joseph Liberman and Scott Bates for the responding party.
DECISION OF THE BOARD; February 3, 2000
1Board File No. 2687-98-R is a certification application. Board File No. 3150-98-U is an unfair labour practice application. They are in the course of being heard by me.
2At the hearing yesterday, on February 2, 2000, the responding employer’s counsel brought two motions concerning the evidence in these applications. The first is a request to have certain evidence I have admitted struck from the record; the second is a request to exclude certain evidence which the union’s counsel intends to present today, February 3, 2000. The evidence the employer wants struck consists of the criminal records of two men, who are known colloquially as Kodi and Kutti. The evidence the employer wants excluded is that of a police officer of the Metropolitan Toronto Police Intelligence Squad. I deal with each of these motions in turn.
Kodi and Kutti’s criminal records
3On January 25, 2000 I made an evidentiary ruling. The union sought to present the criminal records of Kodi and Kutti who are alleged to have intimidated employees of the responding employer in the period immediately preceding the representation vote in the certification application. The endeavour was strenuously resisted by the employer’s counsel. After hearing argument on the issue, I allowed the union to have the criminal records entered into evidence as exhibits. I did so on a limited basis, without making any undertaking as to the evidentiary weight, if any, to be attributed ultimately to the records. I made clear that the criminal records were not received as evidence of a propensity by the two men to carry out the threats they are alleged to have made. One of the potential issues in dispute in these applications concerns the knowledge and/or perception in the minds of the employees as regards the two men. I ruled that the criminal records were arguably relevant to that issue and so admitted them.
4The employees who allege that they were threatened by Kodi and Kutti have now testified. It appears that only one of them had some slight knowledge of Kodi before the alleged intimidating incidents in the workplace which give rise to the union’s unfair labour practice complaint, but otherwise the employees had no prior knowledge of the two men. One of the employees has testified that Kutti told him that he was a criminal and Kutti showed him gun shot scars on his chest. This gesture was apparently to impress upon the employee Kutti’s capacity to carry out a violent threat. It is arguable that Kutti’s criminal record has some corroborative value in relation to this latter testimony.
5The union’s case is that the employer deliberately employed Kodi and Kutti to intimidate its Sri Lankan employees from voting in favour of the union in the representation vote. The criminal records of the two men is of arguable relevance in the decision by the employer to engage them.
6I recognize that the criminal records may ultimately be of no evidentiary value, but I am not satisfied that is now the case. At the close of all of the evidence this issue may then be raised again.
The Police Intelligence evidence
7The evidence the union intends to lead is that Kodi and Kutti were the leaders or prominent members of a dangerous Sri Lankan gang at the time they are alleged to have intimidated the employees. The notoriety of the two men is arguably relevant to the employer’s decision to employ them shortly before the taking of the representation vote. I make no ruling as to the evidentiary weight to be attached to this evidence. I recognize that this evidence may ultimately be of no evidentiary value, but I am not satisfied that is now the case. At the close of all of the evidence this issue may then be raised again.
“Christopher J. Albertyn”
for the Board