Commotion at NB Power arbitration hearing sparks concerns over witness interference

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A recent arbitration hearing between New Brunswick Power and IBEW Local 37 took a bit of an unexpected turn when a key witness made a controversial statement and later expressed concerns over a text he received from the union president during a break.

The witness, BM, was a general foreman for NB Power. He had been called to testify on behalf of the employer. BM, a member of the union, drew attention when he commented on a recent death at NB Power that was unrelated to the current hearing which was a grievance over the termination of a worker for safety-related misconduct.

At the end of his direct examination, he said this in French (translated): “We had a death at NB Power not long ago and I think it’s because young people may not want to talk. And what we’re going through today just sets an example to other young people that if you talk, you’ll have to come and sit here.”

Then looking at the representatives of the union, he added in English, “It’s on you. Trust me if something else happens at NB Power, the local 37 will have a part of the blame for this.”

After lunch, BM revealed he had received a text from the union president. The text expressed sympathy for BM’s predicament while also highlighting the union’s duty for fair representation. It also referenced a disagreement about the union’s role in the safety culture at NB Power.

“When members are pitted against one another goes against the constitution etc.,” it read in part.

BM, interpreting the text, believed the union president was trying to silence him and felt blamed for alleging the union’s role in the aforementioned death. He also expressed concerns about potential retaliation from the union, feeling “a little intimidated” by the president’s mention of a possible visit to the area where he worked — feeling that meant he wanted to “confront him.”

He also feared the union was going to “kick him out” because he shared the text message with his employer.

Arbitrator Michel Doucet said that while the text from the union president was ill-advised, it did not constitute witness interference.

Doucet further stressed the difference between this case and a 1985 incident, raised by NB Power, where a union representative directly threatened a witness with potential charges that the employer.

“In that case, a union representative had written, one week prior to the hearing, to a union member who was likely to be called by the employer, warning her to seek legal counsel as she could be charged under the union’s constitution,” said Doucet.

The text in this case was “very ambiguous.” While the arbitrator was unsure what the union president meant when he talked about going against the constitution, he failed to see how it could have on impact on BM’s testimony. Further, the post-lunch cross examination consisted of only one question and lasted just a few minutes.

But Doucet did remind the union president, and all parties, that it is “certainly not a good practice or procedure to communicate, in any form, with a witness of the other party during a hearing. I strongly discourage repetition of what occurred here.”

For more information, see International Brotherhood of Electrical Workers, Local 37 v New Brunswick Power Corporation, 2023 CanLII 73602 (NB LA)

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