1446-00-U International Brotherhood of Boilermakers, Ironship Builders, Blacksmiths, Forgers and Helpers, Local 128, Applicant v. James McKeary, Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: Micheil Russell, Reg White and Bruce Tingley for the applicant; Martin Rosenbaum and James McKeary for the responding party.
DECISION OF THE BOARD; October 9, 2001
The Board, in its decision in this matter dated January 15, 2001, [2001] OLRB Rep. Jan/Feb. 86, described this application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. (the “Act”) as involving allegations that James McKeary (who is the applicant in an ongoing application under section 96 of the Act (Board File No. 0842-00-U) alleging violations of section 75 with respect to the selection and referral of Mr. McKeary to employment through the hiring hall operated and administered by the applicant International Brotherhood of Boilermakers, Ironship Builders, Blacksmiths, Forgers and Helpers, Local 128 (“Local 128”)) threatened and intimidated Bruce Tingley, a member of Local 128 and a person who Local 128 is going to call to give evidence, during a conversation between Mr. McKeary and Mr. Tingley in the morning of July 4, 2000. Local 128 also alleges that Mr. McKeary had Colin Docherty, who was alleged to be a personal friend of Mr. McKeary, make other threats against Mr. Tingley and asserts that Mr. McKeary violated the Board’s order directing witnesses not to discuss the evidence given at the hearings with any person who may be a witness when he discussed with Mr. Tingley the evidence of Jayne Patterson, a witness that had been called by Local 128 to give evidence in the hearings in Board File No. 0842-00-U.
Mr. Tingley testified that he was approached by Mr. Docherty and was told not to go to the hearing without a subpoena and that the lawyers there would tear him apart. Mr. Tingley also said that Mr. Docherty had told him he was giving Mr. Tingley some friendly advice and that he should think about going to court to give evidence about one of his brothers as Mr. Tingley would be working with Mr. McKeary over the next 10 to 15 years. Mr. Tingley’s evidence, in my view, fell far short of establishing that he had been threatened by Mr. Docherty. He was told that he should not appear without a subpoena and that attending at a hearing would allow the lawyers to “tear him apart”. At its highest, the comments made to Mr. Tingley by Mr. Docherty were a warning about what he could expect to face at a hearing. Furthermore, there was absolutely no evidence linking Mr. Docherty to Mr. McKeary other than Mr. Tingley’s evidence that he considered Mr. McKeary and Mr. Docherty to be friends. Local 128 has failed to establish that the conversation between Mr. Docherty and Mr. Tingley constituted a violation of the Act by Mr. McKeary.
Local 128 alleged that Mr. McKeary’s conversation with Mr. Tingley in which Mr. McKeary threatened Mr. Tingley was a violation of both sections 76 and 87(2) of the Act. Those sections provide:
No person, trade union or employers’ organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers’ organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
87(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,
(a) discriminate against a person in regard to employment or a term or condition of employment; or
(b) intimidate or coerce or impose a pecuniary or other penalty on a person
because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.
It was clear that the threats, if any, were made by Mr. McKeary, not by a trade union and certainly not by Mr. McKeary on behalf of a trade union. Therefore, the allegation by Local 128 that Mr. McKeary violated section 87(2) of the Act must be dismissed. It remains to consider whether Mr. McKeary’s conversation with Mr. Tingley constituted a violation of section 76 of the Act.
Local 128 alleged that Mr. McKeary threatened Mr. Tingley and disclosed testimony to Mr. Tingley (who Mr. McKeary knew was going to be a witness at the hearings into Mr. McKeary’s complaint against Local 128 in Board File No. 0842-00-U) that was adduced at the Board’s hearing into Mr. McKeary’s complaint when they were both working at the P.M.I job at Cortice Steel in Cambridge. Mr. Tingley testified that he had approached Mr. McKeary about another union matter. In cross-examination, Mr. Tingley explained that he had been kicked off an earlier job at Canamera Foods while employed by O’Connor Tank and had sought Mr. McKeary’s advice about filing a grievance. He said that when he had talked to Reg White, a business agent of Local 128 about the matter, Mr. White had told him that nothing could be done about it because the union could not pursue a grievance against a non-union company. Canamera Foods had engaged O’Connor Tank to perform work and was the owner of the premises. Mr. Tingley said that he had been advised that Canamera Foods had kicked him off of its premises and that O’Connor Tank had to have him leave. He also testified in cross-examination that O’Connor Tank did not have another job for him and that when he went back to the Local 128 hiring hall, he was dispatched somewhere else. Mr. Tingley said that he had been told by Mr. White (who had been called to come to the Canamera Foods job at the time of the incident that gave rise to Mr. Tingley being removed from the job) that his departure could be treated as a layoff from O’Connor Tank.
The discussion about the situation at Canamera Foods and O’Connor Tank preceded the conversation in which Mr. Tingley said he was threatened by Mr. McKeary and the discussion between them about the testimony that had occurred at the previous Board hearing. Mr. Tingley explained that after discussing whether Mr. McKeary had any suggestions about dealing with the Canamera Foods incident, they began to discuss what had taken place at the hearing when Jayne Patterson (an employee of Local 128 who was involved in record keeping and dispatching members of Local 128 to jobs) was testifying. Mr. Tingley acknowledged that he was the first to say something about Ms. Patterson’s testimony and attendance at the hearing. In examination in chief, he could not recall what was said, but indicated that the discussion between Mr. McKeary and him involved Mr. McKeary saying that Ms. Patterson had been caught in several lies after Mr. Tingley commented about having seen Ms. Patterson crying. Mr. Tingley said that Mr. McKeary had told him that it served her right for having got caught in several lies. Mr. Tingley in cross-examination said that he had mentioned to Mr. McKeary that Ms Patterson had been crying after she gave her evidence. He testified that he had seen Ms. Patterson coming out of the hearing and saw that she was upset. Mr. Tingley could not recall if he had said anything to Ms. Patterson but does remember her saying something to the effect that she’s glad that it’s over. Mr. McKeary also said to Mr. Tingley that the paperwork did not “jive”, there were white outs over some names and that the white outs and the names did not add up. Mr. Tingley also said that Mr. McKeary had told him that Ms. Patterson would be fired and that she would be the scapegoat for Mr. White.
Mr. Tingley conceded in cross-examination that Mr. McKeary had never shown him any of the documents relating to the job referrals in issue in Mr. McKeary’s complaint against Local 128. Mr. Tingley was shown that paperwork by Mr. White, but could not recall when he saw that material. Mr. McKeary testified that Mr. Tingley had told him after they had talked about the Canamera Foods incident that it was terrible about how Ms. Patterson was treated, being grilled for 9 hours and making her cry. Mr. McKeary conceded that he likely said to Mr. Tingley that if one looked at the union documents, they would not add up.
It is clear to me that Mr. Tingley first raised Ms. Patterson’s reaction to testifying with Mr. McKeary. Mr. McKeary’s response to Mr. Tingley’s statements did not amount to more than commenting about the case in general terms and his view of Ms. Patterson’s evidence. He did not discuss nor did Mr. Tingley suggest that Mr. McKeary mentioned the specific evidence that Ms. Patterson had given or the explanations for the referrals that were the subject of detailed cross-examination. I am satisfied that Mr. McKeary did not, in his discussions with Mr. Tingley, violate the Board’s order concerning the exclusion of witnesses and the prohibition about discussing the evidence given at the hearing. Therefore, I need not consider the preliminary legal argument made by counsel for Mr. McKeary that the allegation of a violation of a Board order could not, even if established, constitute a violation of the section 76 of the Act.
The alleged threat to Mr. Tingley occurred during that discussion with Mr. McKeary after they had talked about Ms. Patterson. Mr. Tingley testified that Mr. McKeary had told him that Mr. White would try to convince Mr. Tingley to lie for Mr. White. Mr. Tingley said that would not be able to do that. Mr. Tingley went on to testify that Mr. McKeary had said something about lying which Mr. McKeary vehemently denies saying to Mr. Tingley. As Mr. McKeary’s alleged statement to Mr. Tingley about lying was not suggested to be a threat, I need not concern myself with that. The threat was said to have been in a statement that Mr. McKeary made to Mr. Tingley during that conversation. Mr. McKeary said, according to Mr. Tingley, that other members (brothers) on the job had asked Mr. McKeary why he had not taken Mr. Tingley out to the parking lot. Mr. McKeary told Mr. Tingley that he had told those others that Mr. Tingley had not done any harm to him yet. Mr. Tingley understood Mr. McKeary to be indicating that the word “yet” referred to Mr. McKeary losing his case against Local 128. Mr. Tingley said he understood the reference to being taken out to the parking lot as a threat to being beaten by Mr. McKeary and others if he testified and as a result Mr. McKeary lost his case. Mr. Tingley also said that Mr. McKeary had told Mr. Tingley that he should not go to court unless he gets a subpoena and that he should not ask for a subpoena if he does not get one. Mr. Tingley went on to say that Mr. McKeary would prove that Mr. Tingley was a liar and he would make sure the members of Local 128 learned that Mr. Tingley was a liar.
Mr. Tingley acknowledged that the discussion with Mr. McKeary in which Mr. McKeary is said to have threatened him occurred when a large number of other people were present. Mr. Tingley had also talked to Mr. McKeary about leaving work early that night and that he had assumed that Mr. McKeary would advise the foreman that he (Mr. Tingley) would be leaving early. Mr. Tingley later learned that his foreman had not been advised and subsequently raised the matter with Mr. McKeary. Mr. Tingley was advised by Mr. McKeary later that there might have been some confusion about which foreman was responsible and nothing more came of it. Mr. Tingley’s recollection of the conversation with Mr. McKeary was clear that Mr. McKeary had indicated to Mr. Tingley that he should not testify without being served with a subpoena and also that Mr. McKeary had not had a problem with Mr. Tingley up to the time of that conversation. The threatening element of the conversation was clearly the reference to there being no reason to take Mr. Tingley out to the parking lot yet. While one might view that as a possible threat, Mr. Tingley indicated at the end of his examination in chief that he was more concerned that Mr. McKeary would tell the membership Mr. Tingley was a liar. Mr. Tingley said that it hurt him to hear that Mr. McKeary would tell the membership he was a liar and that was the reason he was at the Board.
Mr. McKeary denies having threatened Mr. Tingley. He admits having told Mr. Tingley that he should not attend to give evidence unless he is served with a summons. He also told Mr. Tingley that he should not come to the Board and lie because it’s a very serious matter and that if he did lie Mr. McKeary would make sure the membership knew about it. He also said that he told Mr. Tingley that he thought that Mr. White was pressuring him. Mr. McKeary did acknowledge in cross examination that he had said that other members had asked him why he had not taken Mr. Tingley out to the parking lot yet. He said that he told the others that he had no problem with Mr. Tingley yet, but could not recall who or how many had asked him. He was adamant that he had no problem with Mr. Tingley and believed that Mr. White was behind the problems he was having with Local 128. He also said that he had never intended to threaten Mr. Tingley and only wanted to make sure Mr. Tingley understood that the matter before the Board was very serious and that he should not lie to help out Mr. White.
Mr. McKeary believed that Mr. Tingley was getting preferential treatment from Local 128 specifically because he understood that Mr. Tingley would be dispatched as if he had been laid off rather than being benched after walking out on jobs. He also believes that Mr. White is putting pressure on Mr. Tingley to have him give testimony that would prejudice Mr. McKeary’s case against Local 128.
The cross-examinations of both Mr. Tingley and Mr. McKeary were strenuous and searching. Although each witness was somewhat ambivalent about certain events, and were caught in inconsistencies, I cannot conclude that either Mr. McKeary or Mr. Tingley were fabricating their evidence. Rather, I attribute much of the difference between their versions of the conversations of the morning of July 4, 2000 to the passage of time and subsequent events affecting their perceptions and recollections.
The burden of proof of these allegations rests on Local 128 to establish on the balance of probabilities that Mr. McKeary threatened Mr. Tingley when he had that conversation with Mr. Tingley on the morning of July 4, 2000. Although I am satisfied that Mr. McKeary and Mr. Tingley discussed what other members had asked Mr. McKeary, in the context of the conversations that Mr. Tingley initiated, I am not persuaded that the conversation conveyed a threat of harm to Mr. Tingley. Mr. Tingley came to Mr. McKeary for advice. Mr. Tingley, I am satisfied, raised the treatment of Ms. Patterson with Mr. McKeary in the course of discussing how one might proceed with a grievance. The discussion about Ms. Patterson then moved to a discussion about Mr. Tingley giving evidence. It is clear that Mr. McKeary (and not disputed) told Mr. Tingley he should not testify unless he was served with a summons to witness. It is also clear that Mr. Tingley and Mr. McKeary discussed giving evidence before the Board and witnesses lying when testifying. It is in that context that the exchange at the root of this application must be assessed. In the circumstances, it does not seem reasonable to me that Mr. McKeary would threaten Mr. Tingley because of what Mr. Tingley might say in his evidence and then almost immediately tell Mr. Tingley to be sure to have a summons to witness before going to the Board. That exchange also took place in the course of a conversation started by Mr. Tingley in which he was seeking the assistance of Mr. McKeary. While the statement made by Mr. McKeary is of course open to interpretation and it could be objectively viewed as somewhat threatening I am not persuaded that Mr. McKeary had intended to threaten Mr. Tingley for the purpose of not having him testify.
Section 76 of the Act prohibits a person from seeking by intimidation or coercion to compel a person to refrain from performing obligations under the Act. Even assuming that giving evidence at a hearing before the Board can be treated as an obligation under the Act (a very reasonable assumption), the intimidation or coercion must be intended to have that person not give evidence. The Board in Keith MacLeod Sutherland, [1983] OLRB Rep. July 1219 commented on the elements of intimidation when it wrote at page 1227:
…for intimidation or coercion to be established, there must be a threat or other intimidating or coercive action coupled with an express or implied demand that a person (for example) refrain from exercising a right under the Act or performing an obligation under the Act.
The concept of what constitutes intimidation was considered by the Supreme Court of Canada in Regina v. McCaw, (1991), 1991 CanLII 29 (SCC), 66 C.C.C. (3d) 517 where the Court at page 525 wrote:
…the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat.
The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?
It is clear Mr. McKeary told Mr. Tingley to be sure he had been served with a summons to witness before testifying. Mr. McKeary also conveyed to Mr. Tingley what others had said to Mr. McKeary about Mr. Tingley. Mr. McKeary, according to Mr. Tingley, said to the others that he did not have a problem with Mr. Tingley yet. In my opinion, Mr. McKeary is telling Mr. Tingley that he does not have a problem with Mr. Tingley and that he wants Mr. Tingley, if he is going to testify, not to lie for the benefit of Reg White. While it is possible to construe what Mr. McKeary said as a threat to Mr. Tingley that should he testify so as to hurt Mr. McKeary, Mr. McKeary at that point might have a problem with Mr. Tingley, that is at best a possibility and is, in my view, too remote to be considered as conveying a threat of bodily harm. It is not as if Mr. Tingley was told that Mr. McKeary would take him out to the parking lot if he testified against him. Rather, Mr. Tingley was told that others had asked Mr. McKeary why he had not taken Mr. Tingley out to the parking lot and Mr. McKeary responded by saying that he did not have a problem with Mr. Tingley yet. (I note that Mr. McKeary denied having used the word “yet” with Mr. Tingley at one point in his cross-examination and suggested that he had said to Mr. Tingley that others had asked him why had not taken Mr. Tingley out to the parking lot yet.) In any event, I am not persuaded, as I must be in a case in which the allegations have serious consequences (see Indusmin Ltd., (1978), 1978 CanLII 3524 (ON LA), 20 L.A.C. (2d) 87 (M.G. Picher); Hanes v. Wawanesa Mutual Insurance Co., (1963), 1963 CanLII 1 (SCC), 36 D.L.R. (2d) 718 (S.C.C) on the balance of probabilities through clear and cogent evidence that the statement made by Mr. McKeary to Mr. Tingley during their conversation in the morning of July 4, 2000 amounted to intimidation or coercion.
As Local 128 has failed to persuade me that Mr. McKeary had engaged in conduct that violated sections 76 or 87(2) of the Act as alleged in this application, this application is dismissed.
“Harry Freedman”
for the Board