Jenna Cameron and Canadian Union of Public Employees, Local 5483 v Wynn Park Villa Limited

LB-1909

2022 NSLB 11

ORDER

LABOUR BOARD

Nova Scotia

BETWEEN

Jenna Cameron and Canadian Union of Public

Employees, Local 5483

- Complainants

-and-

Wynn Park Villa Limited

- Respondent

NATURE OF MATTER

Complaint of Unfair Labour Practice under

Section 53 of the Trade Union Act

DATE OF FILING

BEFORE

May 7, 2021

E.A. Nelson Blackburn, Q.C., Vice-Chair

Tom Patterson, Employee Member

Gordon MacLean, Employer Member

REPRESENTATIVES

Susan Coen and Jason Edwards, for the

Complainants

Bradley Proctor and Jennifer Singh, for the

Respondent

CASE MANAGEMENT DATES

May 25, 2021

DATES AND PLACE OF HEARING

June 2, 3, 14, 15, 23, 24, 25, July 2, 7, 9 and 12,

2021 Remote Hearing (via videoconference); June

30, 2021 (scheduled but not held)

ORDER

The Board declares that the termination of Tevin

Crawford was not contrary to the Trade Union

Act, as described in the reasons that follow.

The Board declares that Wynn Park Villa Limited

has engaged in unfair labour practices contrary to

the Trade Union Act, as described in the reasons

that follow. Wynn Park Villa Limited is ordered to

cease and desist such conduct, as also described

in the reasons that follow.

The Board orders, in accordance with the reasons

that follow, that the result of the vote held on

March 26, 2021, be set aside and orders a new

certification vote be held. The Board also directs

that the employees eligible to vote in the new

certification vote are those employees agreed

between the Union and the Wynn Park as being

eligible to vote in the Vote Agreement and who

are also still employees of Wynn Park at the date

of the second vote.

Further, as described in the reasons that follow,

the Board retains jurisdiction regarding remedies

relating to Ms. Nielsen, Ms. Beaver, Ms. Rafuse

and Ms. Waldron and to address issue that arise

concerning the implementation of this decision.

REASONS FOR DECISION

Background

[1]

This matter addresses five unfair labour practice complaints arising out of an application

for certification filed by Canadian Union of Public Employees, Local 5483 (“CUPE” or “the

Union”) pursuant to Section 23 of the Trade Union Act, R.S.N.S. 1989, c. 475 (the “Act”)

on March 19, 2021 in relation to employees at Wynn Park Villa Limited (“Wynn Park” or

“the Employer”); Labour Board file reference LB-1864 (“the Certification”) (“the

Complaints” or the “ULPs”).

[2]

The Complaints were filed with the Board as follows:

1.

Labour Board File LB-1867 (also referred to as “ULP 1” or “ULP 1867”):

Complaint under Sections 53(1), 53(3) and 58(1) of the Act

Date filed: March 26, 2021

Complainant: CUPE, Local 5483

Respondent: Wynn Park Villa Limited

Names of Aggrieved Person(s): Elaine Nielsen (“Ms. Nielsen”), Leslie (Joy)

MacKenzie (“Ms. MacKenzie”), Shalene Rafuse (“Ms. Rafuse”), and Jennifer

Beaver (“Ms. Beaver”); other employees of the Respondent Employer whom the

Employer (or persons on its behalf) have spoken to/asked about union activities;

CUPE and its local 5483.

2.

Labour Board File LB-1869 (also referred to as “ULP 2” or “ULP 1869”):

Complaint under Sections 53(1), 53(3) and 58(1) of the Act

Date filed: April 1, 2021

Complainants: Tevin Crawford and CUPE, Local 5483

Respondent: Wynn Park Villa Limited

Names of Aggrieved Person(s): Tevin Crawford (“Mr. Crawford”); other employees

of the Respondent Employer who became fearful of being known as union

supporters; CUPE and its Local 5483.

3.

Labour Board File LB-1882 (also referred to as “ULP 3” or “ULP 1882”)

Complaint under Sections 53(1), 53(3) and 58(1) of the Act

Date filed: April 27, 2021

Complainants: Tevin Crawford and CUPE, Local 5483

Respondent: Wynn Park Villa Limited

Names of Aggrieved Person(s): Tevin Crawford; other employee of the

Respondent Employer whom the Employer (or persons on its behalf) have spoken

to/asked about union activities, intimidated, discriminated against, or otherwise

treated in violation of the Act, particularly s. 53(3)(a) and (e); CUPE and its local

5483.

4.

Labour Board File LB-1909 (also referred to as “ULP 4” or “ULP 1909”)

Complaint under Sections 53(1), 53(3) and 58(1) of the Act

Date filed: May 7, 2021

Complainants: Jenna Cameron and CUPE, Local 5483

Respondent: Wynn Park Villa Limited

Names of Aggrieved Person(s): Jenna Cameron (“Ms. Cameron”); employees of

the Respondent Employer, such as Morgan Macumber (“Ms. Macumber”), whom

the Employer (or person on its behalf) have spoken to/asked about union

activities, intimidated, discriminated against, used undue influence upon, or by

any other means treated in violation of the Act, particularly s. 53(3)(a) and (e);

CUPE and its local 5483.

5.

Labour Board File LB-1910 (also referred to as “ULP 5” or “ULP 1910”)

Complaint under Sections 53(1), 53(3) and 58(1) of the Act

Date filed: May 7, 2021

Complainants: Shalene Rafuse and CUPE, Local 5483

Respondent: Wynn Park Villa Limited

Names of Aggrieved Person(s): Ms. Rafuse; other persons employed by the

Respondent Employer whom the Employer (or persons acting on its behalf) have

spoken to/asked about union activities, intimidated, discriminated against, used

undue influence upon, or by other means treated in violation of the Act,

particularly s. 53(3)(a) and (e); CUPE and its local 5483.

[3]

A Case Management Conference (“CMC”) was held by the Board with CUPE and the

Respondent on April 13, 2021, to discuss ULP 1 and ULP 2 and how those matters would

proceed before the Board. A subsequent CMC was held on April 20 when the Union and

the Respondent let the Board know that they had agreed, as part of a settlement

concerning the Certification, ULP 1 and ULP 2 (“the Vote Agreement”), that if the

Certification was unsuccessful (following the counting of the representation vote) they

would agree to attempt mediation, but if that was not successful, the Union wished to

proceed to a hearing in relation to ULP 1 and ULP 2. The Union also confirmed that if the

certification was unsuccessful, the Union would pursue remedial certification as well as

the other remedies requested in the complaints. Further discussion on ULP 1 and ULP 2

was therefore deferred pending the outcome of the vote count in relation to the

Certification. The vote count took place on April 21, 2021, and the outcome was that the

Certification was not successful. Given that ULP 1 and ULP 2 remained to be determined

by the Board, the Certification was placed in abeyance until the Board could determine if

the result of the vote count was determinative of that application.

[4]

Further CMCs were held on April 27 and May 25 to discuss next steps, possible hearing

dates and any relevant filing deadlines and at the CMC on May 25, counsel for Union put

forward a motion that the ULPs be heard at the same time. The Board heard from the

parties on this motion and decided to hear ULPs in one hearing as they arise out of similar

fact situations in relation to the Certification and the Union’s requested remedy for

remedial certification. Initial hearing dates were set down for a video hearing on June 2,

3, 14, 15, 23, 24, 25, 30 and July 2, 2021, and the Board made a preliminary procedural

order pursuant to Rule 11.06 of the Board’s Rules of Procedure to consolidate the

Complaints and hear them together. The June 30 hearing date was subsequently released

after the Board identified a scheduling conflict and at the video hearing on July 2,

subsequent hearing dates were set down for July 7, 9 and 12.

[5]

[6]

Between the parties, there were 21 witnesses called over the 11-day hearing, which was

carried out via Microsoft Teams, an online virtual conferencing platform. There were

numerous exhibits filed, some of which were provided in advance of the hearing and

many which were introduced during the hearing.

At the conclusion of the hearing, the parties were directed to provide written closing

submissions. The Board ruled that closing arguments, including the reply filed by the

Union, would form part of the record of the hearing. In addition to the closing arguments

and reply, the original complaints and reply thereto, and also pre-hearing briefs, will form

part of the record. The Union provided their written closing submissions and authorities

on July 22, the Respondent on August 5 and the Union filed a written reply on August 12,

2021.

[7]

[8]

Mr. Proctor argued at the hearing an abuse of process in relation to ULPs 3, 4 and 5, as

they were filed by the Union subsequent to the Vote Agreement at the time the vote was

taken with respect to ULP 1 and ULP 2. The Board will address Mr. Proctor’s argument

later in this decision

The Union’s position is that Wynn Park violated the Act by interfering with the

certification vote, the details of which are set out in the ULPs. The Union is requesting

remedial certification under Section 29(9) of the Act, which would replace the final vote

with an order certifying the union as a bargaining agent for the employees of Wynn Park.

In the alternative, the Union is requesting an order authorizing a new vote. Specifically,

the Union is requesting the following remedies (Union Post-Hearing Brief, Page 75):

1. Certification under s. 25(9).

 Alternatively, another vote (which the Union says would not be an

adequate remedy).

2. Remedies for particular individuals:

1.

2.

3.

Tevin Crawford

Shalene Rafuse

Elaine Nielsen, Jennifer Beaver and Beverley Waldron.

3. A range of other general remedies as stated in the complaints.

4. Conditions with Remedial Certification

5. That the Board retain jurisdiction regarding remedy and implementation.

[9]

It is Wynn Park’s position that the ULPs have not been substantiated and that the Union

has not provided evidence or proof of interference. Wynn Park requests that ULPs 3, 4

and 5 be thrown out on the basis that they are an abuse of process. In the alternative,

Wynn Park states that if there was a violation of the Act, the Unions request for remedial

certification is not appropriate. Wynn Park also requests that, if the ULPs are dismissed,

a time bar of 12 months be ordered in respect of the Certification.

[10] The relevant sections of the Act are section 25 (9); section 53 (1) and (3); section 58 (1)

which state as follows:

Certification of bargaining agent

25 (9) Where, in the opinion of the Board, an employer or employer’s

organization has contravened this Act or regulations made pursuant to

this Act in so significant a way that the representation vote does not

reflect the true wishes of the employees in the bargaining unit

determined to be appropriate for collective bargaining, and in the

opinion of the Board the applicant trade union, at the date of the filing

of the application for certification, had as members in good standing not

less than forty per cent of the employees in the unit, the Board may, in

its discretion, certify the trade union as bargaining agent of the

employees in the unit.

….

Prohibited activities of employer

53 (1) No employer and no person acting on behalf of an employer shall

(a) participate in or interfere with the formation or administration of a

trade union or the representation of employees by a trade union; or

(b) contribute financial or other support to a trade union.

….

(3) No employer and no person acting on behalf of an employer shall

a)

refuse to employ or to continue to employ any person or

otherwise discriminate against any person in regard to

employment or any term or condition of employment, because

the person

(i)

(ii)

is or was a member of a trade union,

has been expelled or suspended from membership in a

trade union for a reason other than a failure to pay the

periodic dues, assessments and initiation fees uniformly

required to be paid by all members of the trade union

as a condition of acquiring or retaining membership in

the trade union,

(iii)

otherwise participate in a proceeding under this Act

(iv) has made or is about to make a disclosure that he may

be required to make in a proceeding under this Act,

has testified or otherwise participated or may testify or

(v)

has made an application or filed a complaint under this

Act

(vi)

has participated in a strike that is not prohibited by this

Act or exercised any right under this Act.

….

Intimidation respecting union membership

58 (1) No person shall seek by intimidation or coercion to compel a

person to become or refrain from becoming or to cease to be a member

of a trade union or an employers’ organization.

Hearsay Evidence

[11] There was a preliminary motion at the hearing regarding hearsay evidence. The Board

ruled that if there is direct evidence to support the hearsay evidence then the appropriate

weight would be given to it, otherwise it is disallowed.

Witnesses

[12] The Board notes that there were several individuals who were not called as witnesses but

whose evidence could have been of assistance in this matter. As the individuals in

question could have been called by either party, the Board puts no weight on the fact that

those individuals were not called. Accordingly, the Board takes no adverse inference

against either party for not calling witnesses.

Un-Contradicted Facts

[13] While there are several facts to which the parties disagree, the basic elements of the

situation giving rise to the ULPs are not in dispute. The following list represents those

areas where the parties appear to be in agreement:

 Wynn Park is a privately owned, government funded nursing home

and residential care facility, located in Truro, Nova Scotia which

was opened in June 2008. There is space for 60 residents.

 There are 5 managerial staff at Wynn Park:

Sheila Peck (“Ms. Peck”), Administrator

Marc Thody (“Mr. Thody”), Director of Support Services

Cassie Blois (“Ms. Blois”), Human Resources Manager

Brittany Thody (“Ms. Thody”), Director of Finance

Teresa McEwen (“Ms. McEwen”), Director of Care

 Wynn Park is a family own and operated business, with various

employees having family connections to other employees.

Examples of those relationships include Mr. Thody being married

to Ms. Thody, Ms. Thody being the daughter of Ms. Peck, Madison

Murphy and Megan Murphy being the daughters of Ms. McEwen,

and Megan Murphy being engaged to Ms. Peck’s son, Ryan

Barnett. There may be other relationships that were not

referenced during the course of this matter.

[14] The following outlines some of the significant events that were identified by the parties

and/or the witnesses:

 February 24, 2021 - A meeting took place between Ms. Peck, Ms.

Blois and Mr. Crawford regarding employees’ safety concerns at

the East Unit nurses’ station. There were several other employees

present, at time, during the conversation but no one else was

present for the whole conversation. During the discussion there

were options discussed to address the concerns but there was no

agreement on what was to be done.

 February 26, 2021 – Mr. Crawford is terminated from his position

at Wynn Park.

 March 2, 2021 – Rank and File article comes out, which discusses

the termination of Mr. Crawford and included quotes from Mr.

Crawford from an interview that was done with him.

 March 4, 2021 – Ms. MacKenzie was provided a letter from Wynn

Park from Ms. McEwen and that Ms. MacKenzie asked who would

be able to join the union. Ms. MacKenzie also acknowledged that

she did not have an email address at that point, which Wynn Park

points to as the reason for her being given the letter in person.

 March 5, 2021 - The Union organized a car rally to take place

outside of Wynn Park. In attendance were members of the Union,

including Govind Rao (“Mr. Rao”) with a van equipped with a PA

system, and members from other unions.

 March 16, 2021 - The parties both agree that a meeting took place

between Ms. Peck and Dianne Vaughan (“Ms. Vaughan”), although

there is no agreement on the content or purpose of that meeting.

 March 19, 2021 – Application for Certification was filed by the

Union with the Labour Board.

 March 21, 2021 - There was a meeting between Ms. McEwen and

Ms. Beaver about alleged complaints about Ms. Beaver sending

messages to other employees about the Union.

 March 21, 2021 – There was a Union meeting for employees to ask

question and discuss the upcoming vote, at the Best Western in

Truro, NS.

 March 22, 2021 – The Labour Board gave Wynn Park notice of the

upcoming vote.

 March 26, 2021 - Voting by the employees of Wynn Park took

place.

 March 26, 2021 – Union files ULP 1.

 April 1, 2021 – Union files ULP 2.

 April 7, 2021 - There was a meeting held with Denise MacKenzie,

Ms. McEwen, Ms. Beaver, Ms. Nielsen and Ms. Waldron.

 April 7, 2021 – Wynn Park files response to the Application with

the Labour Board.

 April 9, 2021 – Wynn Park files reply to ULP 1.

 April 13, 2021 – Wynn Park files reply to ULP 2.

 April 16, 2021 – Union files response to Wynn Park’s response to

ULPs 1 and 2.

 April 20, 2021 – Union and Wynn Park enter into Vote Agreement.

 April 21, 2021 – Certification vote counting takes place. 88 eligible

votes are cast – 42 votes in favour of certification, 46 votes against

certification.

 April 25, 2021 - Lisa Burris (“Ms. Burris”) resigned from her position

at Wynn Park. At some time previous to that, she spoke with Mr.

Rao about her employment at Wynn Park, although what was

discussed is not agreed to between the parties. It was asserted by

Wynn Park, and confirmed by Mr. Rao, that ULP 3 was filed by the

Union in relation to alleged events involving Ms. Burris but Ms.

Burris did not approve of the information included in ULP 3 and

stated that it was untrue. Mr. Rao further confirmed that he signed

the Statutory Declaration associated with ULP 3, despite not being

present for the events outlined, and that he refused Ms. Burris’

request for him to retract ULP 3. He also testified that he did not

provide any clarification to the Board about his personal

knowledge of the information that he swore the Statutory

Declaration about or that Ms. Burris took issue with the accuracy

of the information or that she wished to have it retracted.

 April 27, 2021 – Union files ULP 3.

 May 4, 2021 – Employers files reply to ULP 3.

 May 7, 2021 – Union files ULP 4 and 5.

 May 18, 2021 – Wynn Park files reply to ULPs 4 and 5.

 The parties agree that Ms. Peck spoke with Ms. Nielsen on 2

different occasions, and while there is no agreement on the

content of the first conversation, it is agreed that union issues,

specifically the Rank and File article and the circumstances

surrounding Mr. Crawford, were discussed.

Union’s Facts

[15] The Union contends that Wynn Park noted a push against unionization as far back as the

first general meeting with the staff, before Wynn Park officially opened and relies on the

affidavit and oral evidence of Ms. Beaver to support this position. This point was testified

to by James Moore (“Mr. Moore”) and Ms. Vaughan as well.

[16] Mr. Crawford testified that he disclosed the issues that he had with his previous employer

during the interview process with Ms. McEwen and believed that Ms. Blois was only

present for a portion of the interview

[17] Ms. Vaughan testified that she raised concerns with Ms. McEwen at the Supervisor staff

meeting the morning of March 16, 2021, about Ms. Peck coming onto units to speak with

employees privately, as it was intimidating. Ms. Vaughan stated that in the afternoon of

that same day Ms. Peck met with her in the adult day room and warned her that she had

to support management and told that she was to pretend that the conversation never

took place. Ms. Vaughan testified that during the meeting there was no discussion of her

performance or the need to leave the adult day room and go on the floor.

[18] Ms. Nielsen testified that, after returning from a leave of absence, she spoke with Ms.

Peck on February 25, 2021, regarding safety issues associated with moving residents and

that the conversation turned to union activities, during which Ms. Peck asked questions

about who was involved with union activity, the interest in bringing a union into Wynn

Park etc.

[19] The Union states that there were 91 total votes cast, with 2 envelopes having being

mislabeled and 1 vote being cast by Mr. Crawford, which was left unopened as the parties

agreed, as per the Vote Agreement, that his vote would not be counted. Therefore, the

Union claims that if all three of those votes had been votes in favour of unionization the

vote would have been 45 in favour and 46 against (Union Post-Hearing Rebuttal Brief –

Page 2).

[20] The Union argues that Wynn Park’s allegation, as referenced on paragraph 45 of its Post-

Hearing Brief, that complaints had been made about Mr. Crawford by Ms. Waldron, Ms.

Beaver and Ms. Nielsen, is unfounded and incorrect. It bases that on the fact that Wynn

Park did not cross-examine any of those individuals about the alleged complaints and

Wynn Park witnesses did not address them directly.

Wynn Park’s Facts

[21] To begin, Wynn Park states that they called 9 witnesses, including Ms. Vaughan (recalled)

and Lisa Smith (“Ms. Smith”), who were not included in the Union’s list of witnesses.

[22] Wynn Park refers to the testimony of Ms. Peck, Mr. Thody and Ms. Blois, who all stated

that they were not aware of previous attempts to unionize at Wynn Park and confirmed

that no employee, to their knowledge, had been terminated for comments or actions

relating to unionization.

[23] Ms. Blois and Ms. McEwen both testified that they were present for the complete

interview on May 1, 2019, of Mr. Crawford and that at no time did he mention the issues

he had while employed at his previous employer, namely the allegations of theft of

needles and falsifying a report.

[24] Ms. Peck disputes the account of Ms. Vaughan as to the conversation that took place

between them in the adult day room on March 16, 2021. Ms. Peck asserts that she went

to the meeting as a result of concerns expressed to her about Ms. Vaughan being in the

adult day room instead of on the units. Ms. Peck acknowledged that the conversation

turned to the issue of a union, as a result of Ms. Vaughan indicating she did not wish to

be on the units where union discussion was prevalent.

[25] Ms. Peck testified that she did not know who was for or against a union and just wanted

everyone to vote. She denied stating to Ms. Vaughan that she should pretend the

conversation never took place. Ms. McEwen stated that after Ms. Vaughan met with Ms.

Peck that Ms. Vaughan went to Ms. McEwen’s office and stated that she felt better after

speaking with Ms. Peck. Ms. Vaughan denied doing so.

[26] Ms. Peck also disputes the assertion from Ms. Nielsen that she brought up union issues

during her discussion with Ms. Nielsen on February 25, 2021. Ms. Peck asserts that she

was not even aware of union activity at Wynn Park until March 2, 2021, after the Rank

and File article came out.

[27] Ms. Peck testified that a subsequent conversation with Ms. Nielsen on March 5, 2021,

which is the same day the car rally was taking place, did involve a discussion of union

issues, specifically inaccuracies in the Rank and File article, according to Ms. Peck. Ms.

Peck acknowledged that she told Ms. Nielsen that the article was not true and Mr.

Crawford had not been terminated for union activity. Ms. Peck also stated that she

apologized to Ms. Nielsen for everything she and the other staff were going through.

Union Witnesses

[28] The Union called a total of 14 witnesses.

Testimony of Elaine Nielsen

[29] Ms. Nielsen testified she is a continuing care assistant (“CCA”) employed at Wynn Park

Villa and has been since June 2014, and she worked at all material times on the East Unit

at Wynn Park Villa. She referred to her sworn affidavit referred to in the Union’s Exhibit

Book U-1, tab 2, upon which she was cross-examined by Mr. Proctor.

[30] Ms. Nielsen testified that on February 15, 2021, she took a personal leave of absence of

four weeks to take care of her father who was ill. She stated that on or about February 15

or 16, 2021, she saw a letter on the East Unit meeting room table that described a concern

with resident access to the East Unit nurses’ station, raising health and safety, privacy,

hygiene and work efficiency issues. She understands that Megan Murphy, LPN on the East

Unit, drafted the letter, which described separate incidents between January and

February 2021 of residents reportedly urinating on the vitals cart, taking a binder with

patient contact information, sitting at the computer and flipping through the patients

charts, attempting to take things off the desk, trying to use the phone, and sitting on the

floor in the nurses station. Further, there was reference to a 2020 death certificate

missing from the station.

[31] Ms. Nielsen said the letter was addressed to Ms. Peck, Administrator of Wynn Park Villa,

stating that staff felt they spent so much time keeping residents away from the nurses’

station that it was taking away from their work. The letter addressed to Ms. Peck

requested there be Plexiglas barriers and gates to keep residents out of the nurses’

station. She said she signed the reprinted letter either February 15 or 16, 2021, as it was

reprinted by Denise MacKenzie, LPN, who typed it due to the original copy being smeared

with packets of butter by one of the residents. The letter was signed by several staff in

addition to Ms. Nielsen.

[32] Ms. Nielsen testified she heard from her co-workers that the letter was submitted to Ms.

Peck after February 17, 2021, by Megan Murphy. She also heard from co-workers that

Ms. Peck did not agree with the recommendations as she believed any barriers around

the nurses’ station would cause health and safety issues.

[33] Ms. Nielsen testified that on February 24, 2021, at some point in the morning, Mr.

Crawford, told her and Ms. Beaver and other CCA’s at Wynn Park that he had sent emails

to two unions that day. She testified that around 11:00 a.m. on February 24, 2021, Ms.

Peck and Ms. Blois, Human Resources Manager, went to the East Unit to investigate the

concerns raised in the letter submitted by Megan Murphy concerning resident access to

the nurses’ station. Ms. Nielsen said that she observed Ms. Peck and Mr. Crawford in

conversation, but she was not paying much attention to it as she returned to her duties

on the East Unit. A little later that day, Mr. Crawford informed her that Ms. Peck was not

in agreement with the recommendations in the letter.

[34] Ms. Nielsen testified that around noon that same day, Mr. Crawford told her that he had

heard back from one union, CUPE. He said this while Ms. Nielsen and Ms. Beaver were

having lunch in the meeting room and he indicated, “if we could just find a couple of

people we could trust, we can get started”. She said that later that afternoon, Mr.

Crawford asked both Ms. Beaver and herself if they would be interested in attending a

meeting about joining a union, to which she agreed.

[35] Ms. Nielsen testified that on Thursday, February 25, 2021, around 10:15 a.m., she was in

the process of delivering two newspapers for East Unit residents when she noticed Ms.

Peck standing between the nurses’ station and the dining room. When Ms. Nielsen

reached one of the resident’s room, Ms. Peck approached her and asked her if she was

happy to be back at work. Ms. Waldron, another CCA, was present when Ms. Peck made

the comment. Ms. Nielsen testified that she believed that Ms. Peck’s tone indicated that

Ms. Peck believes that Ms. Nielsen was not happy to be back at work. Ms. Nielsen

indicated to Ms. Peck that she missed her work routine and as she walked down the hall,

Ms. Peck followed her and asked her the names of residents in rooms that they had

passed, with a question, “are they the problem?” Ms. Nielsen testified that she

understood that the questions were in respect to whether these were the residents

referred to that were wandering into the nurses’ station and taking things.

[36] Ms. Nielsen further testified when she got to a resident’s room, referred to at the hearing

as DC, Ms. Peck inquired whose room it was as the resident was not in their room. Ms.

Peck then requested Ms. Nielsen to come into the room and close the door. Ms. Nielsen

testified that Ms. Peck then made the comment “I shouldn’t be asking you this, but you

are a loyal staff member so I will ask you anyways”. Ms. Peck then asked her if she had

heard of any talk going around about getting a union in Wynn Park Villa. Ms. Nielsen

replied to Ms. Peck that she had not heard anything, notwithstanding she had heard some

talk from Mr. Crawford the previous day. She testified Ms. Peck repeated the question

several times and indicated it would take 50 percent of the staff to get a union. Ms. Peck

then wondered aloud if 50 percent of the staff could be unhappy. Ms. Nielsen said Ms.

Peck named Ms. Waldron as perhaps being a complainer. Ms. Nielsen told Ms. Peck she

did not know, but Ms. Peck could ask Ms. Waldron

[37] Ms. Nielsen testified she asked Ms. Peck if anyone had tried to get a union into Wynn Park

previously to which Ms. Peck responded that years ago there was an attempt and she had

told the union organizers at that time that a union was not wanted and if they did not like

that they should go work somewhere else. Ms. Nielsen further testified that Ms. Peck

stated, “…if it is still the same, if people are not happy, they should not work here”. She

said Ms. Peck then indicated Ms. Peck thought it was mostly staff in the East Unit that

were wanting a union. She questioned Ms. Peck whether it was her own rotation, or

another rotation and Ms. Peck said she did not know. Ms. Peck wondered out loud if the

talk of a union had to do with the request for the Plexiglas or nurses’ station barrier.

[38] Ms. Nielsen testified that, when the conversation with Ms. Peck ended and Ms. Peck went

to leave the room, Ms. Peck turned to her and said, “do not tell anyone we had this

conversation, this conversation never happened”. Ms. Nielsen said that she felt the

conversation with Ms. Peck was very intense and she left the room feeling uncomfortable,

interrogated, intimidated and threatened. She said she was shaken and that when she

saw Ms. Beaver, she told Ms. Beaver about the conversation with Ms. Peck and that she

was stressed out having to deal with her father and having to deal with the confrontation

with Ms. Peck. Ms. Nielsen said she became very emotional and cried and she felt abused,

especially where she was told not to tell anyone about the conversation.

[39] Ms. Nielsen testified Ms. Waldron came by and saw her condition and she did not want

to discuss it right there with Ms. Waldron, but a few days later she told Ms. Waldron about

the conversation with Ms. Peck. She testified she also emailed Mr. Crawford the next

morning about her conversation with Ms. Peck and she referred to Exhibit A attached to

her affidavit.

[40] Ms. Nielsen testified that the next day, Friday, February 26, 2021, when she was off work,

she received a text message from Mr. Crawford around 3:00 p.m., stating that he had

been fired over the phone by Ms. McEwen and he was not given a reason, but the letter

was going to come to him on Monday. Ms. Nielsen said she felt terrible because, due to

her conversation with Ms. Peck the day before, she felt that Mr. Crawford might have

been fired for his union involvement. She said Ms. Peck made it clear that management

did not want a union. She said she felt scared about what may happen next.

[41] Attached as Exhibit B to her affidavit was a Facebook friend request from Ms. Peck of

February 27, 2021, but she did not accept that request.

[42] Ms. Nielsen testified that on Monday, March 1, 2021, the Director of Care, Ms. McEwen

came and got her, Ms. Beaver and Ms. Waldron and took them to the East Unit meeting

room and informed them that Mr. Crawford no longer worked at Wynn Park Villa and that

she could not discuss any reasons due to privacy. She testified that Ms. McEwen looked

around the room and said that she, Ms. McEwen, sometimes thinks the room is bugged.

Ms. McEwen then indicated she had no reason to fire Mr. Crawford, and that

management had written a letter and had her sign it. Ms. Nielsen further testified that

Ms. McEwen admitted that Mr. Crawford was fired because Ms. Peck found out that he

wanted a union. Ms. Nielsen testified that she believed, between the firing of Mr.

Crawford and the behaviour of Ms. Peck, people who would otherwise have signed union

cards and voted for the union were scared and afraid of losing their jobs.

[43] Ms. Nielsen testified on March 5, 2021, around 1:30 p.m., as she was coming out of Room

328, she saw Ms. Peck coming down the hall and calling out her name. Ms. Peck said that

she wanted to apologize to Ms. Nielsen because, when she read the Rank and File article

she believed she must have offended Ms. Nielsen. Ms. Nielsen responded to Ms. Peck by

saying, “that’s funny because when I read the article in the paper, I thought she must be

doing that to other people”. Ms. Nielsen testified that Ms. Peck then commented by

saying “I did not do that to anyone else, you were the only one”.

[44] Ms. Nielsen testified that she did not believe Ms. Peck as she had spoken to another staff

member who said that Ms. Peck did the exact same thing to her on the same day that she

did it to Ms. Nielsen. Ms. Nielsen said that she and Ms. Peck sat on the couch outside

Room 328, which was recorded on camera, and had a long conversation. Ms. Nielsen said

that Ms. Peck wanted to apologize to her and she accepted her apology, although she felt

very uncomfortable. Ms. Nielsen testified that Ms. Peck told her that the union rally had

been terrible, and that Mr. Crawford had told someone to “F-off”.

[45] Ms. Nielsen said Ms. Peck continued to discuss Mr. Crawford and said that while Mr.

Crawford had not made reference to ”that word” (referring to the word union) at the

nurses’ station, someone has called Ms. Peck at home and told her that Mr. Crawford was

claiming he had said it. Ms. Nielsen assumed that since Ms. Peck was talking about the

Rank and File article that the word she was referring to was the word ”union”. She said

while Ms. Peck was talking to her, Ms. Peck was not wearing a face mask and Sheila Dale

(“Ms. Dale”), administrative assistant, came down the hallway and gave Ms. Peck one to

put on.

[46] Ms. Nielsen testified that she questioned Ms. Peck why she was so suspicious of her as

she would never bad mouth the place, especially as the residents get good care at Wynn

Park and co-workers treat each other with respect. She said Ms. Peck asked her if she still

feels that way and she replied that she did. Ms. Peck indicated that when staff were

unionized at Townsview Estates they were horrible to each other and it was a terrible

atmosphere. Ms. Nielsen said Ms. Peck said she hoped we had made an informed decision

and did our research because once you get a union you are stuck with it forever and Ms.

Peck said it would be awful. She said Ms. Peck was shaking her head and not finishing her

sentences, but conveyed a very negative view of unionization. She said Ms. Peck was very

emotional about it and indicated that she hoped that staff would make an informed

decision.

[47] Ms. Nielsen said that she went back to work and was visibly affected by the conversation

with Ms. Peck and she asked Denise MacKenzie, LPN, if the staff could have their break

together that day, which they did in the meeting room. She said Sarah Weatherbee (“Ms.

Weatherbee”) and Ms. Waldron sat with her and she told them about the conversation

she had had with Ms. Peck. Ms. Nielsen said that after the break she spoke to Denise

MacKenzie, who advised that Ms. Peck had done the same to her. Ms. Nielsen testified

the atmosphere had been like walking on eggshells since the firing of Mr. Crawford.

[48] Ms. Nielsen said that on Sunday, March 22, 2021, she was working, as was Ms. McEwen,

which was rare for her. When Ms. Nielsen was in a shower room with a resident, Chantel

Hamilton, LPN, opened the door and told her that Ms. McEwen had come and taken Ms.

Beaver off the unit and indicated that she was concerned that perhaps Ms. Beaver was

going to be terminated for union activities. Ms. Nielsen said that later that day she walked

by the meeting room and saw Ms. Beaver crying. Ms. Beaver told her that Ms. McEwen

had taken her into her office and accused her of campaigning for the union on work time,

which Ms. Beaver denied. Ms. Nielsen said she believed Ms. Beaver because CUPE staffer

Mr. Rao told them in previous conversations that they should not be organizing on work

time.

[49] Ms. Nielsen testified that, prior to the vote on March 26, 2021, she was informed that Ms.

Peck had also spoken to Ms. Macumber who felt pressured, and to Ms. MacKenzie by

phone at home.

[50] She further testified that on April 7, 2021, Ms. McEwen and Denise MacKenzie, LPN, came

to the East Unit meeting room when she, Ms. Beaver and Ms. Waldron were having their

break. She said Denise MacKenzie had a list of things that she wanted to speak to Ms.

Nielsen, Ms. Beaver and Ms. Waldron about. In particular Denise MacKenzie stated that

the three employees’ breaks were too long, they were not starting the day early enough

and Ms. McEwen had raised concerns about the atmosphere in the East Unit for the

residents as no one wanted to come and work on that unit. Ms. Nielsen testified that she

asked to know who she may have offended so that she could apologize, and Ms. McEwen

said, “if it was me, I would have to take you in my office and speak to you about it”. Ms.

Nielsen said that Ms. McEwen said that to her while she was looking at Ms. Beaver. Ms.

Nielsen said that Ms. McEwen then turned to Ms. Beaver and pointed her finger right at

her and said she had been the one most passionate about this and that they were very

angry and were not used to Ms. Beaver acting like that. Ms. McEwen said her daughters

Megan Murphy and Madison Murphy had been afraid to come to work. Ms. Nielsen

testified that Ms. McEwen questioned them as to why they felt their jobs were not secure

and Ms. Nielsen, Ms. Beaver and Ms. Waldron said it was because Mr. Crawford was let

go without reasons being given. Ms. Nielsen said they told Ms. McEwen they did not feel

that they were acting rudely to anyone and that they felt they were being watched by

other staff all the time. She testified she felt she was, as well as Ms. Beaver and Ms.

Waldron, being targeted and treated differently and unfairly due to their support of

getting unionized because of the complaints the union had filed.

[51] Ms. Nielsen testified that on April 8, 2021, she ran into Ms. Vaughan at Walmart and Ms.

Vaughan told her how Ms. Peck had spoken to her privately and stated that as an RN Ms.

Vaughan needed to support management. Ms. Nielsen understood that to mean to

support Wynn Park and not support the union. Ms. Vaughan told Ms. Nielsen that Ms.

Peck had told her not to tell anyone about their conversation and further that Ms. Peck

said “this conversation never happened”.

[52] Ms. Nielsen testified that, based upon her conversations with Ms. Vaughan, Denise

MacKenzie, and Mr. Crawford and what others had told her, she suspected that Ms. Peck

also spoke to other staff to pressure them to support management and vote against the

union. She testified that it was her belief that the actions of management probably made

a difference in the outcome of the vote held March 26, 2021, which was counted on April

21, 2021. Ms. Nielsen said she was informed by Mr. Rao of CUPE that the outcome of the

vote was 42 Yes, and 46 No with 2 envelopes not being opened due to a labelling error.

[53] With respect to allegations about Mr. Crawford, Ms. Nielsen testified some residents who

had dementia and cognitive issues often wander into the nurses’ station and some may

give back rubs or back scratches, but she never heard of any of the RNs, LPNs or CCAs

inviting the residents in. She said Mr. Crawford received a back rub from a resident who

had cognitive issues. She conceded on cross examination that she did not mention in

paragraph 6 of her affidavit that some residents were giving back rubs or back scratches

to staff. She testified that Mr. Crawford said in the Rank and File article that he had been

fired for saying the word ‘union’, however she said she did not hear Mr. Crawford say that

at the nurses’ station.

Testimony of Sarah Weatherbee

[54] Ms. Weatherbee testified she has worked at Wynn Park since May 2012 as a CCA, mainly

full time in the North Unit, since February 2020. She previously worked part time in all

three units. She testified she heard from other employees that Mr. Crawford was fired in

February 2021. She also read the article in Rank and File publication which indicated Mr.

Crawford was fired for saying the word ‘union’. She testified that did not surprise her as

Ms. Peck had said a few years prior to not say the word ‘union’ around her. Ms.

Weatherbee testified however, that Ms. Peck did not say that to her, and she does not

remember who told her that. She testified she was not surprised because other

employees had told her that Wynn Park did not want a union. Ms. Weatherbee also

testified that Ms. McKay indicated to her that she was concerned of being let go and

advised Ms. Weatherbee not to use the word ‘union’.

[55] Ms. Weatherbee testified that on Friday, March 5, 2021, she saw Ms. Nielsen after lunch

and Ms. Nielsen had indicated she had been talking with Ms. Peck while both were sitting

on a couch in the hall. Ms. Weatherbee said it was unusual to see Ms. Peck as she very

rarely came to their floor and when she saw Ms. Peck, Ms. Peck was not wearing a mask

and she wondered why she had Ms. Nielsen aside to talk to her. Ms. Weatherbee said

that after Ms. Nielsen spoke to Ms. Peck, Ms. Nielsen appeared to be upset. Ms.

Weatherbee identified, in Exhibit U-1, Tab 14, the East Unit area where Ms. Peck and Ms.

Nielsen were seated while talking outside Room 328 and she identified a video camera

that overlooked that area. Ms. Weatherbee testified that Ms. Nielsen had told her that

Ms. Peck was sorry for the article in the Rank and File publication.

[56] Ms. Weatherbee testified that she was curious of Facebook comments showing screen

shots of the Wynn Park Villa team and she said Julie White (“Ms. White”) created the

Wynn Park Villa Facebook page. Ms. Weatherbee said that there were comments by Ms.

Peck, Ms. McEwen, Ms. Blois, Megan Murphy and others. Ms. Weatherbee testified that

it was her view that Wynn Park was trying to get staff to vote against the Union. Ms.

Weatherbee testified that on the day of the vote, staff of Wynn Park were given pizza

around lunch time. She said this was interesting because it was not very often that they

received free food from Wynn Park, aside from special occasions such as Christmas,

Thanksgiving, Easter, etc. Ms. Weatherbee said that she thought there were pro-union

and non-union camps and Ms. White was in the non-union camp, as well as Ms. McKay.

She thought the Wynn Park Facebook was more of a public Facebook and not a union

Facebook page. She said she did not look at the Wynn Park Villa’s Facebook page very

often.

[57] Ms. Weatherbee was referred to the Respondent’s Exhibit Book, Tab 4, being the notice

to employees of application for certification being posted. She said with respect to the

pizza being given to staff on the day of the vote, to her knowledge it was not pre-planned

and she thought about three to four years ago they were given free pizza during a snow

storm. She said she was not there at the time, but she had heard about it. She said a few

years’ earlier coffee and muffins were brought in and sometimes there was a BBQ.

[58] Ms. Weatherbee testified Ms. Beaver’s daughter brought in some cupcakes the day of the

vote which were available to everyone in the unit as well as the pizza that was supplied

by Wynn Park. She said she was not surprised when she saw the article in the Rank and

File publication that Mr. Crawford said he was fired for using the word ‘union’. She

accepted the article at face value.

Testimony of Leslie “Joy” MacKenzie

[59] Ms. MacKenzie testified she is a CCA and has worked at Wynn Park since June 2012. She

filed an affidavit referred to in the Union’s Exhibit Book 1, Tab 3. She testified that she

heard around March 2, 2021, from her co-workers that Mr. Crawford had been fired. She

said she was shocked that he had been fired for saying the word ‘union’. She said she has

been working at Wynn Park for over 9 years and it was common knowledge among staff

that if you say the word ‘union’, you will be fired.

[60] Ms. MacKenzie testified she never saw the article in Rank and File and she does not use

technology. She testified that on Thursday, March 4, 2021, she was having lunch in the

North Unit lunchroom with Kathy Blaikie, another CCA, when Ms. McEwen, Director of

Care, came into the lunchroom and shut the door. Ms. McEwen indicated there was a lot

of talk going on about a unionization drive and indicated to them that if they had any

questions to come and ask her, but she was not allowed to talk. She testified that Ms.

McEwen told her and Ms. Blaikie that they would not be allowed to be part of the union

because they were supervisors. Ms. MacKenzie said she was left with the impression that

management was concerned that employees would join the union and management was

discouraging it. Ms. MacKenzie further testified that she was left confused as to whether

RNs or LPNs could be part of the union and she had heard from some employees who

were supporting the union that LPNs and RNs could be in the union. She said she was

informed by Ms. Rafuse on March 21, 2021, that there would be a union meeting at the

Best Western, but she could not attend.

[61] Ms. MacKenzie testified she did not know about any union organization on or about

March 4, 2021, or whether a union campaign drive was ongoing. She testified that around

March 4, 2021, when Ms. McEwen met with them, that she, Ms. MacKenzie, did not know

of the union drive. With respect to her affidavit, paragraph 6, Ms. MacKenzie testified

that while there was a lot of talk going on, she did not use those words, and someone

prepared the affidavit on her behalf. She believed it might have been Mr. Rao. Ms.

MacKenzie testified that she did not recall seeing her affidavit before the hearing and she

acknowledged there may be some inaccuracies in it, although she did acknowledge

signing it. She confirmed that she did not read over her affidavit before she signed it and

only started to read it when she began testifying at the hearing.

[62] Ms. MacKenzie testified that, with respect to the union meeting on March 21, 2021, she

did not participate as she was off work that day. She said she received a phone call on

Monday March 22, 2021, from Ms. Peck who wanted to know if she was at the meeting

at the Best Western on Sunday night, March 21, and she indicated she was not as she was

home with her elderly mother. She testified Ms. Peck told her there was a lot of stuff

going on and if she had any questions, she could call her at any time. Ms. MacKenzie said

Ms. Peck expressed concern that Ms. MacKenzie may have attended a union meeting.

She said she felt upset after Ms. Peck called her at home and she felt intimidated. Ms.

MacKenzie testified that Ms. Peck only talked to her a few times over the 9 years that she

worked at Wynn Park and she never called her at home. Ms. MacKenzie testified she did

not think it was any of Ms. Peck’s business if she did attend a union meeting. She felt Ms.

Peck did not want her to get involved with the Union. Ms. MacKenzie said following the

call with Ms. Peck, she texted Ms. Rafuse to tell her about the phone call.

[63] Ms. MacKenzie testified that she was aware that in reply to the union complaints that

Wynn Park has claimed that Ms. Peck only called to inform her where and when to vote.

However, Ms. MacKenzie testified that Ms. Peck never mentioned anything on the phone

about where the union vote would happen, and she only found out of the location of the

vote a day or two later when she texted again with Ms. Rafuse.

[64] On cross examination, Ms. MacKenzie indicated that paragraph 15 of her affidavit did not

reflect her language. Specifically, she said that she would not use the words “third day of

vacation”. Ms. MacKenzie acknowledged that she could have proofread her affidavit and

that she did not read it carefully before she signed it. She thought Mr. Rao had given it to

her to read over and sign. She also acknowledged, on cross examination, that she does

not use email and it would not be unusual for someone to call her, such as Ms. Peck, to

inform her of the union vote; however, she said Ms. Peck did not tell her of the date and

place for the union vote during that call.

Testimony of James Moore

[65] Mr. Moore testified that he has worked at Wynn Park since March 2009 and in the year

2013, he became a CCA and he is now working in the West Unit of Wynn Park.

[66] Mr. Moore testified that he saw the Rank and File photo of Mr. Crawford with his dog,

but he did not read the article and he thought that was around March 2, 2021. He testified

that Denise MacKenzie, a co-worker, told him that Mr. Crawford was terminated and that

he had used the word ‘union’ at a meeting with management. Mr. Moore testified that

he was at a meeting on March 14, 2021, attended by approximately 15 to 20 people, and

there was information on unionization. He also attended a meeting on March 22, 2021,

with approximately 20 to 30 people there. At the meeting of March 14, he indicated that

Mr. Rao of CUPE was in attendance and Mr. Rao was providing information on behalf of

the Union and Mr. Crawford was also there and at that time he had been terminated.

[67] Mr. Moore testified that at the meeting of March 22, 2021, which he understood to be a

sharing of information meeting, he asked questions of Mr. Rao. Also, he saw Ms. McKay

and Madison Murphy speaking to Mr. Rao outside in the hall. He testified there was a lot

of support for the union at that meeting.

[68] Mr. Moore testified that he was aware of a lock being broken on March 22, 2021, on a

filing cabinet which was used by Ms. Rafuse; however, he did not see who took off the

lock and someone just told him about it. He said employees have access to filing cabinets

and he did not speak to Ms. McEwen about the lock being broken nor did he ask Ms.

Rafuse about it.

[69] He testified he had been dissatisfied with working at Wynn Park over the last two years

as he had friction with a co-worker, which he spoke to Ms. McEwen about. He also applied

for a recreation coordinator position but was unsuccessful, although he never expressed

any upset with the person who received the job.

[70] Mr. Moore testified on April 1, 2021, April Fool’s Day, he had set off an alarm bell and was

disciplined by Ms. McEwen.

Testimony of Shalene Rafuse

[71] Ms. Rafuse testified that she is an LPN at Wynn Park and has worked there since

November 2011. She was cross examined on her affidavit referred to in Exhibit U-1, Tab

4. She testified she works on the North Unit of Wynn Park and when she started working

in November 2011, she recalled seeing a posted sign on the double doors leading to the

back maintenance hallway saying words to the effect, “if approached by a union

representative, do not talk to them”. She stated these doors led to the housekeeping

rooms, staff break room, laundry room, EMO room, maintenance room, etc. She testified

she concluded that management opposed unions.

[72] Ms. Rafuse further testified this belief was supported by a former employee, Jacqueline

Dale, who also saw signs in 2011 to 2012 that talk of a union would not be tolerated. Ms.

Rafuse testified that on March 2, 2021, she was made aware that a co-worker, Mr.

Crawford, had been fired. She found this out from a Rank and File article, which was a

CUPE union publication. She also testified that on March 2, 2021, she had a conversation

with Ms. Vaughan, RN, who told her that Ms. McEwen, Director of Care, had told her that

there were no grounds to fire Mr. Crawford and that Ms. McEwen did not agree with his

firing, but Ms. Peck wanted him terminated.

[73] Ms. Rafuse testified that on the morning of March 5, 2021, Ms. McEwen came onto her

unit and said that day was going to be disruptive because of a rally going on and the fact

that Mr. Crawford was terminated. She said Ms. McEwen also said to her words to the

effect that, “you know as a supervisor, you would not be able to be involved with the

union”. She said Ms. McEwen wanted to know where her head was with all of this and

she was referring to the union drive and rally. Ms. Rafuse said she told Ms. McEwen that

she was just taking it all in.

[74] Ms. Rafuse further said Ms. McEwen told her they expect support of the supervisors to

be on board with management, and thus she believed they expected her to be against

the union drive. Ms. Rafuse said she felt upset, scared and confused as to whether she

should sign a union card. She testified on that same day, March 5, 2021, Ms. Vaughan,

RN, had told her of a similar conversation she had with Ms. McEwen whereby Ms.

McEwen informed Ms. Vaughan that RNs would not be able to join CUPE and that senior

staff were expected to be on board with management. She said she subsequently found

out in days to follow that Ms. Cameron, LPN; and Bonnie Ross, RN had similar

conversations with Ms. McEwen as well as Ms. MacKenzie and Cathy Blaikie. Ms. Rafuse

testified that on March 5, 2021, at 2:00 p.m., she was at the desk in the nurses’ station

doing paperwork and she saw on the monitor that Ms. Peck was talking to Ms. Nielsen for

more than 30 minutes in the East unit. She said there are three units, East, West and

North Unit and she mainly works in the North unit.

[75] Ms. Rafuse testified that on March 16, 2021, at approximately 10 a.m., Ms. McEwen held

a meeting in the board room on the first floor and Ms. Rafuse was present as well as Ms.

Vaughan, Denise MacKenzie, and Janet Stone. Ms. Rafuse said Ms. McEwen told them

they were expected to be supportive of Wynn Park as supervisors and they were not to

be whispering in the hallways to each other. Ms. Rafuse testified that she took that to

mean they had to be supportive of senior management’s position of being anti-union.

[76] Ms. Rafuse testified that Denise MacKenzie and Ms. Vaughan raised concerns that some

staff were being intimidated and upset by Ms. Peck talking to staff members in private

and Ms. McEwen indicated that Wynn Park was Ms. Peck’s building and she had every

right to come up to the units. Ms. Rafuse said Ms. McEwen said staff get upset when she

does not go to the units and now they are upset that she is coming up. She said Ms.

McEwen did not answer the questions about staff members being taken aside and talked

to privately with Ms. Peck.

[77] Ms. Rafuse testified she felt intimidated and upset that Ms. McEwen, who was the

Director of Care, was directing comments at her and Ms. Vaughan. She said Ms. Vaughan

called her in the evening of March 16, 2021, to say she also felt Ms. McEwen was speaking

to them directly.

[78] Ms. Rafuse testified that on Sunday, March 21, 2021, Ms. McEwen asked to speak with

her in her office. Ms. Rafuse said she found it strange that Ms. McEwen came to work on

a Sunday as she rarely comes in on the weekend. She testified she had seen her on a

monitor entering the East Unit with Ms. Beaver going into her office and then leaving her

office and walking toward the North Unit. Ms. Rafuse testified that she asked Ms. McEwen

if Ms. Burns could accompany her to Ms. McEwen’s office and was told by Ms. McEwen,

“there is no union here, you do not need someone with you”.

[79] Ms. Rafuse testified that Ms. McEwen requested her to stop harassing co-workers about

the union and also questioned her about who had told Ms. Rafuse that she could

campaign for the union on her breaks. Ms. Rafuse said that she told Ms. McEwen that it

was CUPE, but Ms. McEwen stated that it was not allowed as they were paid breaks. Ms.

Rafuse said Ms. McEwen indicated that staff were feeling harassed and felt as if they could

not come to work or visit on the unit. Ms. Rafuse further said she told Ms. McEwen that

the claim of harassment was not true and she had been careful not to set up any follow-

up messages to people who were not interested and she was not aware of anyone being

uncomfortable. Ms. Rafuse testified that, even though they had paid breaks, they had to

stay on the premises.

[80] Ms. Rafuse testified that Ms. McEwen said to her that she did not know why Ms. Rafuse

was so passionate about the union and that she needed to continue to be a supervisor.

Ms. Rafuse testified that, since she knew Mr. Crawford was a supervisor who had been

fired, she was fearful for her job if she did not stop participating in the union.

[81] Ms. Rafuse testified that following the meeting with Ms. McEwen she returned to the

North Unit shaken up, crying, and feeling intimidated. She said she told her co-workers,

Ms. Burns, Kelly LeBlanc and Bonnie Ross, that she was scared that she was going to be

fired for supporting the union. She said that on March 22, 2021, she was informed by Mr.

Moore, CCA that he knew management went into her filing cabinet on her day off. Ms.

Rafuse said she received a text message on her day off, March 22, 2021, from Ms.

MacKenzie in which Ms. MacKenzie explained that she had received a call from Ms. Peck

who asked if she was at a union meeting on Sunday, March 2, 2021. Ms. Rafuse testified

that a complaint was filed on Ms. MacKenzie’s behalf and Ms. Peck said she was calling

to convey information about the day, time and place of the union vote. Ms. Rafuse

testified that she found that strange as she only found out from the CUPE staffer, Mr. Rao

on the evening of March 23, 2021, when the vote would take place. She testified she was

informed by Ms. MacKenzie that Ms. MacKenzie was only informed of the time of the

vote on March 24, 2021.

[82] Ms. Rafuse testified that she told her coworkers and they were all upset that management

would go into her filing cabinet. She said management’s reason was that if there was a

licensing inspection or audit it would have to be opened. Ms. Rafuse said that since she

had been working there since 2011, she finds this to be too much of a coincidence. She

testified since 2011, whenever there would be a licensing inspection or audit, there was

preparation to ensure everything was in order. She said they never had charts or drawers

cleaned or reorganized in her unit or any other unit.

[83] Ms. Rafuse testified she was made aware by a co-worker, Danielle McCallum, that Ms.

Peck had made statements to kitchen staff that their pensions would be affected if the

union came in. Ms. Rafuse said she was concerned that management was spreading

untruths to convince employees to oppose the union. She said Ms. McCallum indicated

an employee who was near retirement would most likely decide to oppose the union if

that was the case.

[84] Ms. Rafuse testified that on Thursday, March 25, 2021, that she had a conversation with

Ms. Vaughan who told her that Ms. Peck expected her to remain loyal to the company

and said words to the effect, “do I have your loyalty?” and she was pressuring Ms.

Vaughan to support the management. Ms. Rafuse testified that Ms. Vaughan told her that

she told Ms. Peck that she was just staying neutral, which was consistent with what Ms.

Vaughan had told Ms. Rafuse before. Ms. Rafuse said Ms. Vaughan was very upset and

emotional and was nervous about her continued employment.

[85] Ms. Rafuse testified that, in a subsequent conversation with Ms. Vaughan, after March

25, 2021, Ms. Vaughan provided additional information about her discussions with Ms.

Peck. One conversation took place in Ms. Vaughan’s office in the adult day room, where

Ms. Peck closed the door and told Ms. Vaughan that someone had said she had been

whispering with Ms. Rafuse which raised the suspicion that Ms. Vaughan was pro-union.

Ms. Rafuse testified that Ms. Vaughan said that Ms. Peck had made numerous comments

about the union and said “if people talk union, you need to ask people - why do you need

a union?”

[86] Ms. Rafuse further testified that on March 26, 2021, which was the voting day, she read

a Facebook post by Ms. Peck on the Wynn Park Villa Facebook page, which is attached as

Exhibit C to her affidavit, thanking staff for their support. Ms. Rafuse said that it was her

belief that Ms. Peck would reward those that supported management and target those

who did not. Further, she testified Ms. Beaver shared a screen shot where Ms. Peck had

posted to her Facebook page the words “unfortunately, Karma is going to hit some of you

all for ya’ll people who had nothing but good intentions for you”. Ms. Rafuse said she

found that very alarming and she felt it was directed at pro-union staff such as herself.

[87] Further, Ms. Rafuse testified that on April 24, 2021, Ms. Burris texted her regarding Ms.

Thody. Apparently, Ms. Thody had said she was devastated because she thought

everyone liked working at Wynn Park and it was a tragedy certain people were forcing a

corrupt union on everyone and victimizing her family. Ms. Rafuse testified that on that

same day, Ms. Burris texted her regarding Mr. Thody, who had threatened to keep Ms.

Burris’ benefits from her for another three months because she had 2 sick days. Ms.

Burris’s text said of Brittany and Mark Thody, “they have to be accountable”. Ms. Rafuse

testified she was informed by Mr. Rao that Ms. Burris’ texted him on April 23, 2021, saying

Brittany and Mark Thody portrayed the union as an evil entity that was out to ruin her life

and Mr. Thody was no better than Ms. Thody by threatening Ms. Burris’ for missing a few

days.

[88] Ms. Rafuse further testified she saw the union rally from the balcony and it was peaceful

and there was no honking of horns, contrary to Ms. McEwen saying the day was going to

be a disruption due to the rally.

Testimony of Jenna Cameron

[89] Ms. Cameron filed an affidavit referred to in Exhibit Book U-1, Tab 5. She testified that

she is an LPN at Wynn Park and works on the East Unit. She has worked at Wynn Park for

five years. She testified that on March 23, 2021, the CA Ms. Macumber, who is now an

RN, told her that the administrator Ms. Peck questioned her about how she was going to

vote and pushed her to vote for the employer against the union. At 3:00 p.m. on that

same day Ms. McEwen came into the nurses’ station on the East Unit and started a

conversation with Ms. Cameron, Ms. Macumber, Sharon Fiddes and Santana Higgins.

[90] Ms. Cameron testified that, during her conversation with Ms. McEwen, Ms. Peck came by

and Ms. Macumber left the area. After Ms. McEwen left, Ms. Macumber reappeared and

said that Ms. Peck had pulled her aside and asked her to be there for the vote because

she knew where Ms. Macumber’s vote was. Ms. Cameron testified that Ms. Macumber

further said that Ms. Peck had repeated words to the effect of, “well, I do don’t I?” Ms.

Macumber appeared visibly upset and said she was shocked, upset and concerned that

Ms. Peck was pressuring employees to vote against the union.

[91] Ms. Cameron testified on cross examination that her affidavit was prepared for her to

sign by Mr. Rao and she went through it many times before she signed it.

Testimony of Tessa Burns

[92] Tessa Burns (“Ms. Burns”) testified on her affidavit referred to in Exhibit U-1, Tab 6 that

she has worked as a CCA at Wynn Park since the summer of 2018. In September 2019,

she went back to school but remained an employee at Wynn Park as a casual employee.

Due to Covid-19, she left school early and came back to work at Wynn Park, working on a

casual basis from March until August 2020, and then going into a permanent position on

March 1, 2021.

[93] Ms. Burns testified she was personally present and saw Ms. Peck in the North Unit not

wearing her mask while talking to David McNutt on March 5, 2021. Ms. Peck interrupted

her break to tell her that management would put a box downstairs and Ms. Peck would

like them to vote yes or no to a union using the employer’s box so she could see where

the employees stood regarding wanting a union or not. Ms. Burns said Ms. Peck inquired

where Ms. Rafuse was as she wanted to speak to her.

[94] On cross examination Ms. Burns testified that, according to Ms. Peck, the box was a

suggestion box and not a voting box, and confirmed that it is still there today. She

conceded suggestions can be put in the box and conceded there was no discussion

generally about union or voting. She said the box was actually placed there by Ms.

Waldron.

Testimony of Beverley Waldron

[95] Ms. Waldron testified on her affidavit referred to in Exhibit Book U-1, Tab 7, and

confirmed that she has worked as a CCA at Wynn Park since May 2012 on the East Unit.

She testified she is one of those who signed a letter of February 16, 2021, outlining the

East Unit staff’s concerns about residents getting into the nurses’ station and she stated

that letter was drafted by LPN Megan Murphy and was passed on the administrator, Ms.

Peck, around February 17, 2021.

[96] Ms. Waldron testified that on or about February 24, 2021, Ms. Peck and Ms. Blois, Human

Resources Director, were along the hallway and were discussing with Mr. Crawford issues

that were raised in the letter that Megan Murphy had sent to Ms. Peck. She testified she

joined the conversation for a few minutes and then returned to her duties. Ms. Waldron

said subsequently when she saw Mr. Crawford at a union meeting at the Glengarry Best

Western, he told her that Ms. McEwen had said to him, “way to go” on February 24, 2021,

when he told her of his suggested changes to the nurses’ station with Ms. Peck. Ms.

Waldron indicated on cross examination, however, that with respect to paragraph 8 of

her affidavit, she was not present when Ms. McEwen made the statement, “way to go”

to Mr. Crawford.

[97] Ms. Waldron testified that on Thursday, February 25, 2021, she was entering a resident’s

room to deliver towels and she found Ms. Nielsen and Ms. Peck already in the room

having a conversation. Ms. Waldron heard Ms. Peck ask Ms. Nielsen if she was happy to

be back at work. She said Ms. Nielsen and Ms. Peck then started to walk down the hallway

and she was following behind when she realized she was not part of the conversation and

she returned to her duties. Ms. Waldron said later on she found Ms. Nielsen in Room 337

with Ms. Beaver. Ms. Nielsen was crying and upset and did not want to talk about it. Ms.

Waldron testified that a few days later Ms. Nielsen told her what happened, which was

Ms. Peck had pulled Ms. Nielsen aside to ask her whether people were organizing a union.

Ms. Nielsen said that Ms. Peck said “was it Beverley Waldron who was talking about a

union” and Ms. Nielsen replied “why don’t you ask her?” On cross examination with

respect to paragraph 9 of her affidavit, Ms. Waldron stated she was not present for the

conversation between Ms. Nielsen and Ms. Peck.

[98] Ms. Waldron testified that on March 1, 2021, Ms. McEwen came to the East Unit and

wanted to talk to her, Ms. Nielsen and Ms. Beaver. Ms. McEwen took them into the

meeting room and closed the door and said she wanted to let everyone know what had

happened to Mr. Crawford, and she said it was not her idea to fire him. Ms. Waldron said

that Ms. McEwen looked around the room and said the room might be bugged,

commenting, “I have nothing against him”, “I would not have fired him, I was forced to

sign the paper”, and then the meeting ended.

[99] Ms. Waldron testified that on Friday, March 5, 2021, she was going to a resident’s room

and she saw Ms. Peck walking down the hallway without a mask looking for Ms. Nielsen

and calling out her name. She said Ms. Peck asked her where Ms. Nielsen was and Ms.

Waldron indicated that she would go get her. Ms. Waldron located Ms. Nielsen and told

her that Ms. Peck was looking for her, to which Ms. Nielsen replied, “oh no, not again”.

[100] Ms. Waldron testified that in the afternoon of March 5, 2021, on her break, she and Ms.

Weatherbee were told by Ms. Nielsen that Ms. Peck had apologized to her and told Ms.

Nielsen that she, Ms. Peck, should not have been on the unit talking to her. Ms. Nielsen

seemed to be very emotional and upset about that conversation with Ms. Peck.

[101] She also testified Mr. Crawford did help others with residents on the unit.

[102] Ms. Waldron further testified expandable barriers were not always up in the nurses’

station, and nurses and CCAs were constantly coming in and out. However, she said the

concerns raised by Mr. Crawford about having Plexiglas were raised, she believed,

sometime around the end of February 2021.

Testimony of Kristen Crawford

[103] Kristen Crawford (“Ms. Crawford”) testified she is a second cousin of Mr. Crawford and is

in the licensing practical nursing program. She said she started working at Wynn Park in

April 2018, and Ms. Blois, HR Manager, had hired her as a casual in housekeeping. She

said she worked approximately 30 to 40 hours a week and she worked in all the units,

North, East and West. She testified she became full time around October 2019 and she is

a residential care assistant and eventually went into CCA work.

[104] Ms. Crawford testified that after being hired she was warned by others to not say the

word ‘union’ and she was aware a housekeeper was spoken to by Ms. McEwen for talking

about attending a meeting at a union. Ms. Crawford testified that she saw Ms. Peck’s

screen shot of Wynn Park team Facebook page, referred to in Exhibit Book U-1, Tab 14,

and she believed the site was created by Ms. White who works in housekeeping. Ms.

Crawford said she saw the Facebook page the day it was created and Ms. White had sent

a Facebook invitation to her, which she declined. Ms. Crawford believes the site was open

to the public; however, she was told by Ms. Waldron that Ms. McEwen blocked Ms.

Waldron from the Facebook page.

[105] Ms. Crawford testified she thought Ms. White was friends with management. She said

Ms. Burris thought the union would be helpful and was trying to get cards signed by staff

members, however, Ms. Burris did not get along with some of the housekeeping staff.

Ms. Crawford said she talked to Mr. Crawford after she saw the article in the Rank and

File publication stating he was terminated for using the word ‘union’.

[106] Ms. Crawford testified she was worried for her job and she thought the vote was a

confidential vote and you should not feel intimidated. She said that, as of the day of her

testimony, she was no longer employed by Wynn Park as she gave her two weeks’ notice

effective May 14, 2021. Ms. Crawford said she had been nervous about her job security

and felt the work environment was different after the vote and Ms. McEwen had blocked

her off her Facebook page and she did not feel wanted at work.

[107] Ms. Crawford testified on cross examination that there was a family connection to get

into Wynn Park as her grandmother had been the Director of Care at Wynn Park, but the

position is now filled by Ms. McEwen. Ms. Crawford said she received a reference from

Mr. Thody for a VON position. She testified Ms. Beaver had told her not to say the word

‘union’, due to issues from before Ms. Crawford started at Wynn Park.

[108] Ms. Crawford said the pressure was on from both sides during the union campaign. She

said when she received a text from Angela Meisner that Mr. Crawford was fired for using

the word ‘union’, and management would not give a reason, she believed Mr. Crawford

and the comments in the Rank and File article.

Testimony of Tevin Crawford

[109] Mr. Crawford was examined on his affidavit referred to Exhibit Book U-1, Tab 8. He

testified he is a licensed practical nurse and worked at Wynn Park from June 2019 to

February 26, 2021, when he was terminated by Ms. McEwen, Director of Care. He testified

he was previously employed as an LPN at Glen Haven Manor, New Glasgow from July 20,

2018, to May 16, 2019. He referred to his affidavit, paragraph 3, that he voluntarily

resigned from Glen Haven Manor (after he misappropriated needles and gave untrue

information on an incident report). He admitted his mistakes and was remorseful and

admitted he learned from his experience.

[110] Mr. Crawford testified that he applied in June 2019 (although on cross-examination he

confirmed the application was earlier, with his interview in May 2019) to be an LPN at

Wynn Park. Mr. Crawford said, when questioned as to what he told Ms. McEwen his

reasons for applying to Wynn Park were, he did not say his girlfriend would be moving to

Truro to attend NSCC, but rather that she had hoped to pursue a career in correction

services.

[111] Mr. Crawford testified that he disclosed to Ms. McEwen, at the job interview, the reasons

for leaving his employment at Glen Haven Manor. Specifically, he told her that he was

suspended without pay and did not have a management reference. He referred to

paragraph 5 of his affidavit where he explained to Ms. McEwen, he could not get a full

reference from his past manager, Janice Gordon. Mr. Crawford testified that Ms. McEwen

told him that she did not require a management reference and agreed to two non-

management references from Aran Gallur and Kim Rafuse, who had been supervisors at

Glen Haven Manor. He acknowledged on cross-examination that neither one may have

been aware of his suspension. He testified he did not use unauthorized references when

he applied for his job at Wynn Park.

[112] Mr. Crawford testified that he had told Ms. McEwen at the interview of the 2 incidences

that led to his suspension with pay. He noted that Ms. Blois, HR Manager, only attended

the meeting for half the interview. Mr. Crawford said that Ms. Blois might not have been

present when he indicated to Ms. McEwen he was under suspension and the reasons for

the suspension at Glen Haven Manor.

[113] Mr. Crawford testified on cross examination that after Glen Haven Manor discovered he

had misappropriated five needles and five syringes in addition to falsifying an incident

report involving a vial of hydromorphone that he broke, he was sent home in March on

paid leave from the workplace, pending an investigation which took place through April

and May of 2019. He conceded that when he applied to Wynn Park he knew he was under

suspension with pay for almost one month prior to applying.

[114] In paragraph 3 of his affidavit Mr. Crawford states that he voluntarily resigned from Glen

Haven Manor but acknowledged in cross examination that he was terminated and later

signed a settlement agreement. He referred to a series of emails in Exhibit 1, Tab 9, and

the Settlement Agreement, Exhibit R-3. He did acknowledge that the Settlement

Agreement that he signed included a clause that required him to get management

approval for his references.

[115] Mr. Crawford said he received positive performance appraisals while working at Wynn

Park. Mr. Crawford testified that at Wynn Park he received one disciplinary record,

received from Ms. McEwen. It was in regards to a co-worker, a female LPN, who was

having personal issues at home. The co-worker showed up on his night shift and they

went into a room, with a closed door, for approximately 10 minutes, although he

acknowledged on cross-examination it was closer to 20 minutes. Mr. Crawford admitted

that the optics were not good that he saw her in behind closed doors and he

acknowledged that he should not have left the nurses’ station especially without anybody

covering it and leaving other nurses to handle some of the workload. In his affidavit there

is a copy of a letter of a verbal warning at Exhibit A.

[116] Mr. Crawford testified that it was possible that, at times, he might have left the nurses’

station unattended and the Med Room open. He testified that at the nurses’ stations

some patients with dementia and memory problems come in to give back rubs and he

received some back rubs from some of these residents as did others on the nursing staff.

[117] Mr. Crawford testified, through his affidavit, that on February 24, 2021, he had a meeting

with Ms. Peck to discuss the safety concerns raised in the letter that had been signed by

the staff about the East Unit nurses’ station. Mr. Crawford testified that he told Ms. Peck

that staff felt that their voices were going unheard and that their opinion did not matter.

He advised her that if there was a union that they would not be dealing with the safety

issues contained in the letter. Mr. Crawford said that Ms. Peck responded that ‘whether

we are unionized or not would not affect the fire marshal’s decision’, referring to the

proposed installation of the Plexiglas. Ms. Peck also reminded him that Wynn Park ‘was

non-unionized and would be staying that way.’ Mr. Crawford testified that Ms. Blois and

other staff participated in the conversation between himself and Ms. Peck from time to

time.

[118] Mr. Crawford acknowledged that the Med Room should never be left alone as it contains

patient’s medicines and residents often walk in the nurses’ station. He testified that there

should always be somebody present for security. He felt that they should have either

Plexiglas or a secured door to prevent residents from wandering in. Mr. Crawford testified

that Ms. Peck disagreed. Mr. Crawford testified that at the meeting with Ms. Peck over

his concerns about the nurses’ station he indicated to Ms. Peck if there was a union

present his concerns would be addressed. He testified that the next day he was

terminated for, in his opinion, using the word ‘union’ at the meeting with Ms. Peck. He

referred to R-1, Tab 14 a Rank and File article where he was quoted as saying the reason

he was terminated was because he used the word ‘union’ in front of Ms. Peck at a

meeting.

[119] Mr. Crawford testified that he spoke to some staff about the need for a union the same

day that he spoke to Ms. Peck, including Meagan Murphy.

[120] He said that up to his termination he believed that he had a good relationship with Ms.

Peck and Ms. McEwen. He and the other nursing staff were concerned with the safety

issues at the nurses’ station and thought that it could be resolved, however there was

resistance from Ms. Peck.

[121] Mr. Crawford said that he spoke to a couple of unions as he was concerned about security

issues at the nurses’ station. Mr. Crawford said that the only union that got back to him

was CUPE. Mr. Rao, the union representative, referred him to a reporter.

[122] Mr. Crawford testified that subsequent to his termination he became aware of a

complaint filed by Carrie Best, who was a casual part time worker. The complaint

stemmed from a text he sent to her and included a claim that he hit on her. Mr. Crawford

denied it and said that after she told him to stop texting her he did. Mr. Crawford said he

respects women in the workplace and takes extra care in dealing with them.

[123] Mr. Crawford confirmed that his affidavit was prepared by Mr. Rao.

Testimony of Govind Rao

[124] Mr. Rao testified that he is the National Service Representative for CUPE as well as a

researcher and had previously lectured at McMaster University in Labour and Political

Studies. He says that with respect to this hearing he was in email correspondence with

Mr. Crawford in February 2021. Mr. Crawford advised that he had been terminated from

Wynn Park and told Mr. Crawford that he believed the termination was as a result of his

saying the word ‘union’ during a meeting with Ms. Peck. Mr. Rao also referred to Mr.

Crawford stating that other workers had felt threatened and intimidated about joining a

union.

[125] Mr. Rao referred to Exhibit U-1, Tab 28, which is a notification of a CUPE car rally and said

that at that time he was preparing for a March 5, 2021, car rally at Wynn Park. He

indicated his intention was to be respectful of the neighborhood and of Covid-19. He

stated that the purpose of the car rally was to support the worker who was terminated

and exercising his rights to organize.

[126] Mr. Rao also referred to a photograph of March 5, 2021, Exhibit U-1, Tab 15, which is a

copy of a photograph of the car rally which was posted in the Truro News. Mr. Rao

testified that he instructed the people attending the car rally not to honk horns or disrupt

the neighbourhood and intended for it to be a peaceful rally. Following the car rally Mr.

Rao said he organized a meeting for March 14, 2021, at the Best Western Hotel in Truro,

Nova Scotia. He believed that approximately 17 people attended. Mr. Rao testified that it

was just a meeting to inform employees of Wynn Park about the benefits of a union. He

testified that this was followed by another meeting on March 21, 2021, also at the Best

Western.

[127] Mr. Rao testified that at the March 21, 2021, meeting approximately 26 people attended.

He noted that Madison Murphy, Ms. McKay and Jennifer MacEachern were in attendance.

Mr. Rao testified that some people appeared to be on edge as they felt that those

individuals were attending as Wynn Park’s representatives. Madison Murphy indicated

that she wished to ask some questions and Mr. Rao said he told her respectfully that he

would answer questions at the conclusion of the meeting. After the meeting, he was

questioned in the hall by Madison Murphy and Ms. McKay regarding losing pension

benefits in the event of unionization. Mr. Rao testified that he told them that CUPE does

not go backwards and would fight to keep their benefits. On March 22, 2021, he had an

hour long question and answer session on Facebook and responded to similar questions

to the ones posed by Madison Murphy the night before.

[128] Mr. Rao testified that he was approached by Ms. Burris and she indicated that she wanted

to become involved with the CUPE campaign. He got in touch with her to see if she wanted

to help out and distribute information. Mr. Rao testified that Ms. Burris told him that Mr.

Thody was going to have her probation extended for several months and she was

concerned about filing a complaint.

[129] Mr. Rao referred to Exhibit R-1, Tab 2, which is a transcript of a conversation between Ms.

Burris and Ms. Blois, which took place on April 28, 2021. Mr. Rao referred to the first page

of the transcript and said that he did not file the affidavit on Ms. Burris’ behalf but on

behalf of the union. Mr. Rao also said that he did not use nasty words about Ms. Thody.

Mr. Rao testified that he believed that, due to Ms. Burris requiring a good reference for a

position she was applying for at the time, she changed her position with respect to

supporting the union.

[130] Mr. Rao testified that the Wynn Park campaign had only been his second union campaign

in Nova Scotia. He did acknowledge that employees are not able to organize during

working hours and he acknowledged that he never visited at Wynn Park. On March 5,

2021, Mr. Rao organized a car rally beside Wynn Park. He acknowledged there were CUPE

vans present and there were cars and union signs and other unions were represented.

[131] Mr. Rao then testified about the Rank and File article, dated March 2, 2021. Mr. Rao said

that he referred Mr. Crawford to journalist, Lisa Cameron, who wrote the article on Mr.

Crawford’s dismissal from Wynn Park. Mr. Rao testified that he made no inquiries of

Wynn Park about the background or the reason for the termination of Mr. Crawford. Mr.

Rao said that he accepted Mr. Crawford’s explanation, including Mr. Crawford’s

information about workers who had indicated that there had been previous attempts to

unionize and there was anti-union sentiment expressed by Wynn Park. Mr. Rao testified

that he filed five unfair labour practices with the Labour Board and was the union

organizer at Wynn Park.

[132] Mr. Rao testified about Ms. Burris and confirmed that he was aware that she did not want

him to file an affidavit on her behalf. He referred to the transcript of her call with Ms.

Blois and acknowledged that he was aware that she told him that information about her

in the affidavit was not correct or true. Mr. Rao testified that he decided to file the

affidavit anyway, knowing Ms. Burris’ position and the issue of the accuracy of the

statements, and did not advise the Labour Board about the accuracy of the statements.

He testified that he was filing the declaration on behalf of the Union and not Ms. Burris.

Mr. Rao noted that he did not say the declaration was based on information and belief

from certain people. He further testified that his declaration dealing with the unfair

labour practices was based on information he collected and he swore the statutory

declaration as coordinator of the union drive at Wynn Park.

[133] He testified that, in respect to Ms. Burris and a meeting she had with Mr. Thody referred

to in ULP 3, Mr. Rao says that he had a lengthy meeting with her on April 24, 2021, for

approximately 90 minutes. Mr. Rao testified that he sent Ms. Burris a draft Statutory

Declaration on April 26, 2021, for her review. He did not hear back from her so he decided

to put in the complaint, under his own name. He noted that as he did not hear back from

Ms. Burris, he deleted some of her comments from the final version of the affidavit. In

response to a question about why he filed the affidavit, knowing that Ms. Burris was very

upset about the contents of it, Mr. Rao said that he assumed that she was scared to file a

complaint, so he decided to file it anyway. Mr. Rao testified that he believed that she was

afraid, as she needed a reference from Mr. Thody for a job she had applied for and

thought that was the reason she did not agree to the affidavit. Mr. Rao conceded that he

did not inform the Labour Board of her retraction.

[134] Mr. Rao testified that he held the view that Wynn Park was an anti-union workplace. He

conceded that it was unusual for the union to have a car rally with a lot of media in

attendance for a union drive certification. He said that he supported the Rank and File

article, even though there may have been some inaccuracies. With respect to the

meetings he held on March 14, 2021, and March 25, 2021, were open to the public,

including anybody that may be related to management at Wynn Park.

[135] Mr. Rao testified that at the March 26, 2021, meeting people signed union cards. He

denied being disrespectful to Madison Murphy or Ms. McKay. He acknowledged that

parent/child relationships or family status should not matter and acknowledged that

Wynn Park has numerous family relationships.

Testimony of Sheila Dale

[136] Ms. Dale testified that she is an Administrative Assistant of Wynn Park and has been there

approximately 13 years. Her desk is at the main entrance way into the building. Her duties

generally are answering the phone, ordering supplies, inventory and taking minutes of

meetings for the various departments such as nursing, dietary, housekeeping etc. Ms.

Dale testified that she does not take minutes of all meetings or attend all meetings.

[137] Ms. Dale testified that the atmosphere leading up to the certification vote was tense. She

said that she got a call at her desk that Ms. Peck was on the unit without her mask so Ms.

Dale went to the East Unit with a mask for Ms. Peck. Ms. Dale located Ms. Peck sitting on

the couch with Ms. Nielsen. When she went up to give Ms. Peck her mask Ms. Dale noticed

that Ms. Nielsen, who was seated on Ms. Peck’s left side, appeared to be nervous.

[138] Ms. Dale testified that Mr. Thody had access to the video cameras posted around the

building. She testified that she saw Ms. Vaughan from the day room after a meeting with

Ms. Peck, looking very upset and anxious. Ms. Dale heard that Ms. Peck had talked to Ms.

Vaughan about the union and that Ms. Vaughan had to be loyal to Ms. Peck and also about

Ms. Vaughan whispering on the floor.

[139] Ms. Dale testified that she reports to Ms. McEwen, Director of Care. She testified that she

recalls an incident five or six years ago, where there was a lengthy article about Ms. Peck’s

son that Ms. Vaughan showed others and it was an un-favourable article about him. Ms.

Vaughan was upset about having shown it.

Testimony of Jennifer Beaver

[140] Ms. Beaver testified on her affidavit, Exhibit U-2, Tab 13, that she has worked as a CCA at

Wynn Park since it opened in May 2008. She initially worked in the West unit and moved

to the East Unit a few years ago. She testified on her first day of work in 2008, at an

orientation meeting, Ms. Peck told staff that they are a family run business and they do

not have a union and do not want one. She further testified that over her years at Wynn

Park she has been questioned 3 times about involvement in organizing a union.

[141] Ms. Beaver testified that it is common knowledge that there are familial relationships

between members of management and some staff. She noted that Ms. Peck is the mother

of Ms. Thody; one of Ms. Peck’s son is engaged to Meagan Murphy, who is the daughter

of Ms. McEwen; Ms. Thody is married to Mr. Thody; and Ms. McEwen is the mother of

Meagan Murphy and Madison Murphy.

[142] Ms. Beaver testified that on February 17, 2021, Meagan Murphy prepared a letter about

the East Unit’s staff concerns about the residents accessing the nurses’ station. Meagan

Murphy asked the CCA’s and the LPN’s to sign the letter. Ms. Beaver confirmed that she

signed the letter, along with others, and believes that it was submitted to Ms. Peck and

Ms. McEwen.

[143] Ms. Beaver testified that in the morning of February 24, 2021, Mr. Crawford advised her

that he had reached out to some unions as he believed Wynn Park should have a union.

Later that morning, Ms. Peck and Ms. Blois came to the nurses’ station and Ms. Peck

questioned Mr. Crawford about the issues in the staff letter. She testified that she

suggested, to Ms. Blois, the need for barriers at the nurses’ station, in order to keep the

residents out. Ms. Beaver said that Ms. Peck was not receptive to any suggestions from

Ms. Beaver or Mr. Crawford. Ms. Beaver testified that later on Ms. McEwen asked her to

discuss the concerns with Ms. Peck to make her understand. Ms. Beaver said that she told

Ms. McEwen that there was nothing she could do as Ms. Peck would not acknowledge

her. Ms. Beaver testified that around lunchtime that same day, Mr. Crawford told her and

Ms. Nielsen, that CUPE had responded to him, and he wanted to know if Ms. Beaver and

Ms. Nielsen would attend a meeting and be involved in a union drive. Ms. Beaver said

both she and Ms. Nielsen agreed to attend a meeting.

[144] Ms. Beaver testified that on Thursday, February 25, 2021, Mr. Crawford told her that he

had spoken to Denise MacKenzie that morning about the fact that he had raised the need

for a union with Ms. Peck. Ms. Beaver said that Mr. Crawford told her that he said to Ms.

Peck “if we had a union, we wouldn’t have this problem”.

[145] Ms. Beaver said that around 10 a.m. that same day she noticed Ms. Nielsen being very

upset and was told by Ms. Nielsen that Ms. Peck had asked Ms. Nielsen if she was happy

to be back at work. Ms. Beaver said that Ms. Nielsen told her that when she responded

yes to Ms. Peck, that Ms. Peck responded “really?” Ms. Beaver recounted what Ms.

Nielsen told her Ms. Peck had said, including questioning Ms. Nielsen about a union and

suggesting that Ms. Waldron might be aware of a union. Ms. Nielsen also told Ms. Beaver

that Ms. Peck finished the discussion by saying “this conversation never happened.” Ms.

Beaver testified that Ms. Nielsen said she felt like an abused child and that she felt Ms.

Peck had been testing her loyalty.

[146] Ms. Beaver testified that on Friday, February 26, around 3:00 p.m. in the afternoon, Mr.

Crawford texted her to say that he had received a phone call from Ms. McEwen telling

him that he had been fired. She testified she was wondering where the rest of them stood

and she thought he was fired because he had used the “U” word. Ms. Beaver said that

she did not use the full word at work as they knew by saying the word ”union” they could

get called into management’s office.

[147] Ms. Beaver further testified that on March 1, 2021, Ms. McEwen came to the East Unit

and asked her, along with Ms. Nielsen and Ms. Waldron, to come with her to the meeting

room. Once they entered, she said that Ms. McEwen closed the door and indicated to

them she wanted to let them know that Mr. Crawford had been fired. Ms. Beaver said

she already knew this because Mr. Crawford had texted her on February 26, 2021. Ms.

Beaver testified that Ms. McEwen indicated she could not give the reasons but there were

concerns that were brought to management’s attention.

[148] Ms. Beaver testified that Ms. McEwen looked over her shoulder and Ms. Beaver then

asked Ms. McEwen if she thought someone was listening to her and Ms. McEwen replied

“yes, sometimes I wonder if this room is bugged”.

[149] Ms. Beaver further testified that Ms. McEwen told them that if it had been up to her, she

would not have fired Mr. Crawford. Ms. Beaver said Ms. McEwen said, “they wrote up the

letter and made me sign it”. Ms. Beaver testified that the feedback from the employees

was shock over the firing and they were fearful to talk about the union and some

expressed concerns about getting involved with the union.

[150] Ms. Beaver testified that in the period between March 1 and March 15, 2021, she thought

she had a good rapport with Ms. MacKay and she did not think Ms. MacKay was anti-

union. However, later during the month, she found interactions with Ms. MacKay to be

out of the ordinary and around March 15, 2021, Ms. McKay stopped talking to her

altogether.

[151] Ms. Beaver testified that on Sunday, March 21, 2021, the day of the union meeting, Ms.

McEwen came down the hallway in the late morning and asked to speak to her. Ms.

Beaver said that Ms. McEwen took her into her office, closed the door, and accused her

of harassing co-workers in regard to texting information about the union, including

harassing them on their way to work. Ms. Beaver said that Ms. McEwen told her to stop

contacting people about the union and told Ms. Beaver that she was not allowed to talk

about it at work. Ms. Beaver testified that Ms. McEwen further said supervisors had told

Ms. McEwen that Ms. Beaver was going around on her breaks to talk to other staff about

the union. Ms. Beaver denied harassing any staff and inquired of Ms. McEwen who those

people were and Ms. McEwen would not share the information. Ms. Beaver said that Ms.

McEwen told her that she was a good co-worker and team player, but it did not look like

that currently.

[152] Ms. Beaver testified that she left the meeting with Ms. McEwen very upset and in tears

and was intimidated. She said she went to the union meeting at the Best Western and

just prior to the meeting Madison Murphy, Jennifer McEachern, and Ms. MacKay came

into the room. Ms. Beaver testified that she was shocked to see Madison Murphy there

and the atmosphere in the room changed as many of the people in attendance knew that

Madison Murphy and Ms. MacKay were opposed to the union drive as they had been

vocal in questioning the need for a union. Ms. Beaver said that Ms. MacKay and Julie

Groulx had been seen in Ms. Peck’s office a lot since March 1, 2021. Ms. Beaver testified

that many of the people who attended the union meeting felt that Madison Murphy

would report back to management about who was at the meeting and they were reluctant

to say anything at the meeting. Ms. Beaver said at the meeting on March 21, 2021, CUPE

staff Mr. Rao announced that the union had submitted the certification application on

March 19, 2021.

[153] Ms. Beaver testified that she heard from co-workers and later from Mr. Moore that Ms.

Rafuse’s filing cabinet had been broken into and her papers removed on March 22, 2021.

Ms. Beaver said she believed that Wynn Park, by opening Ms. Rafuse’s filing cabinet, was

sending a message to other staff about how they could be treated unfairly and have their

papers gone through and relocated if they supported the union.

[154] Ms. Beaver also testified that on the day of the vote, she heard that Ms. Dale had been

told by Ms. Peck and Ms. McEwen that she was not allowed to vote and Ms. Dale left

work early, upset. Ms. Beaver testified that she became aware of a personal Facebook

post by Ms. Peck which was posted on March 31, 2021, which she found out about on

April 1, 2021, which has the wording, “unfortunately, karma is going to hit some of ya’ll

for breaking people who have nothing but good intentions for you”. Ms. Beaver referred

to Exhibit B of her affidavit with that posting. She said she was frightened as she knew

how Ms. Peck treated those that supported the union and she was afraid she would be

targeted.

[155] Ms. Beaver further testified that on April 7, 2021, Ms. McEwan and Denise MacKenzie

went into the East Unit meeting room after 3:00 p.m. when she, Ms. Nielsen, and Ms.

Waldron were having their break and Ms. MacKenzie had a list of things she wanted to

discuss. In particular, that their breaks were too long; they were not starting the day early

enough; and Ms. McEwen was concerned about the atmosphere in the East Unit and for

the residents as she indicated no one wanted to come to work on that unit. Ms. Beaver

testified that Ms. McEwen said they were reluctant to put students on the unit because

of the negativity.

[156] Ms. Beaver testified that Ms. Nielsen said at the meeting that she wanted to apologize to

anyone she had offended and Ms. McEwen replied “if it was you [Elaine], I would have

pulled you into my office and spoke to you about it”. Ms. Beaver said when Ms. McEwen

said those words she was looking directly at Ms. Beaver.

[157] Ms. Beaver testified that Ms. McEwen turned directly to her and pointed and said, “You

have been the one most passionate about this and so angry. We are not used to you acting

like this”. She testified that Ms. McEwen indicated that her daughters, Megan and

Madison Murphy, had been afraid to come to work.

[158] Ms. Beaver testified that Ms. McEwen asked them why, if they had issues, they did not

come to management and questioned why they wanted a union and asked them if they

were unhappy. She said Ms. McEwen asked why they were not happy. Ms. Beaver

testified that both she and Ms. Nielsen indicated that it was because Mr. Crawford had

been let go and they were worried that people may be fired without a reason being given.

[159] Ms. Beaver testified that she did not think the atmosphere had changed amongst the

workers on the unit and they were not acting rudely to anyone. She testified she believed

that she, Ms. Waldron and Ms. Nielsen were targeted and treated differently and unfairly

due to their support of being unionized and the fact that they provided information to

CUPE that was used in its complaints against Wynn Park.

Testimony of Dianne Vaughan

[160] Ms. Vaughan testified she is a registered nurse and has worked at Wynn Park for

approximately 11 years. She testified that when she started work at Wynn Park in 2010

she had no idea about Wynn Park’s views on unions. She testified Ms. Beaver had told her

that unions were discouraged by management.

[161] Ms. Vaughan testified she became aware that Mr. Crawford was looking into the

possibility of unionizing and he had spoken to her about her support before he was

terminated. She testified she did not work with Mr. Crawford as he was on another floor

and she had no issues with him. She said she found out he was terminated when he texted

her, but he did not say why he was terminated. She testified she was never told by

management the reason for terminating Mr. Crawford.

[162] Ms. Vaughan testified that at a supervisor’s meeting on March 16, 2021, Ms. McEwen said

she heard some supervisors were whispering in the hallways and some people were upset

about being called by the union and felt bullied. Ms. Vaughan testified that she, Ms.

Vaughan, raised concerns at that meeting that staff were intimidated and upset that Ms.

Peck was coming onto the units and talking to staff privately. Ms. Vaughan testified that

at the supervisors meeting on March 16, 2021, Ms. McEwen said RNs could not vote as

they were supervisors and were part of management.

[163] Ms. Vaughan said that in the afternoon of March 16, 2021, Ms. Peck came to her when

she was working in the adult day room and told her to sit next to her on the sofa. Ms.

Peck then informed Ms. Vaughan that people had seen her whispering in the hall and Ms.

Peck felt she was supporting the union. She also testified Ms. Peck inquired of her why

she wanted a union. Ms. Vaughan testified that she felt terrible following her meeting

with Ms. Peck and felt she was being told how to vote and that she could not be neutral

and was expected to support management.

[164] Ms. Vaughan testified that she told Ms. Peck that she remained neutral and Ms. Peck

replied if people were not happy and they want a union, then they could leave. Ms.

Vaughan testified that Ms. Peck questioned her about her loyalty and Ms. Peck said when

loyalty is gone, the trust is gone. Ms. Vaughan testified that Ms. Peck repeated several

times to her that she must support management and she cannot sit on the fence and if

asked by staff, question them on what a union can do for them that they do not have

now.

[165] Ms. Vaughan testified that she believed Ms. Peck felt all RNs were against the union and

Ms. Peck never mentioned anything about her performance and did not make a

suggestion as to why Ms. Peck has heard from staff that she was hiding out in the adult

room and needed to get out more on the floor.

[166] Ms. Vaughan testified she was shocked when Ms. Peck, prior to leaving the room told her,

“and this conversation never happened, right”. She testified she told Ms. Rafuse about

the conversation with Ms. Peck as she was so distraught.

[167] Ms. Vaughan testified that she was an infection, prevention and control nurse at Wynn

Park and reported to Ms. McEwen and this position came about in the Fall of 2020 and

was a government funded position resulting from the COVID-19 pandemic. She

acknowledged part of her duties were to update infection control binders in accordance

with the new information about COVID-19, educate staff and keep staff updated on any

government changes, and as such, she had a temporary work space set up in the adult

day room. She acknowledged she used the adult day room for that work and in providing

support and education to staff.

[168] Ms. Vaughan testified that Ms. McEwen said to her that some staff had not seen her on

the units much and that she was spending a lot of time in the adult day room. She

testified, however, on March 16, 2021, when Ms. Peck spoke to her in the adult day room,

she never mentioned anything about Ms. Vaughan spending too much time in that room

and not enough on the floor units.

[169] Ms. Vaughan further testified she knew there was a lot of tension on the floors, but denies

Ms. Peck talked to her about hiding out in the basement because she did not want to be

asked about the union.

[170] Ms. Vaughan testified she retired from her position at Wynn Park by way of resignation

on May 23, 2021.

[171] Ms. Vaughan testified on recall by counsel for Wynn Park, after being shown a CCTV

footage, Exhibit R-6, from March 17, 2021. It was stated that Mr. Thody had obtained, at

the instruction of Ms. Peck, the video in question, which appeared to show Ms. Vaughan

removing the contents of her purse and taking a box of band aids and placing them in a

plastic bag and putting them in her purse and then replacing the contents she had taken

out of the purse on top of the band aids in her purse. Ms. Vaughan testified that she had

placed the band aids in a plastic bag so that she would notice them and taken the band

aids up to the north unit Med Cart. She said her wallet was placed on the top along with

the plastic bag and she said she never stole anything from her employer and she was very

disturbed that an accusation could be made and a blemish put on her work record by her

employer. She testified the incident recorded on camera was in full view of video

surveillance which she knew was present and there would be no reason for her to steal

band aids. She said that did not happen.

[172] Ms. Vaughan testified it would not be unusual to take some supplies from time to time to

a unit to replenish the Med Cart notwithstanding it was not her responsibility. She said

she would never steal anything and denied doing so and she felt blindsided by the actions

of Wynn Park in raising that matter.

[173] Ms. Vaughan also testified she apologized to Ms. Peck about an article that was in a

publication which had negative comments about Ms. Peck’s son that she had brought to

work and shown to other staff. She testified that the incident took place a few years ago

and she thought that matter had been dealt with between her and Ms. Peck.

[174] There was an objection raised by counsel for the Union that Ms. Vaughan should not have

been recalled as there was no new information. Counsel for Wynn Park indicated he just

found about this information over a lunch break and wanted the video presented, but this

could have been presented during direct examination as this was information Wynn Park

had in its possession for some time as the video was from March 17, 2021, and could have

been shown to Ms. Vaughan earlier. Mr. Proctor argued credibility is an issue and

especially that of Ms. Vaughan and it goes to weight and he did not learn of the video

until Ms. Vaughan testified.

[175] The Board ruled that the evidence of Ms. Vaughan on recall goes to credibility and the

Board will determine what weight will be given to the evidence provided on recall.

Testimony of Morgan Macumber

[176] Ms. Macumber testified she started working at Wynn Park in 2015 and was hired as a

dietary aid and became a CCA in 2016. She testified that in March of 2021, while at the

nurses’ station, she was approached by Ms. Peck who wanted to know what her vote was.

Ms. Macumber testified that Ms. Peck told her to be there for the vote, which Ms.

Macumber understood as Ms. Peck believed she would be against the union. Ms.

Macumber testified that when she did not immediately reply, Ms. Peck said “well I do,

don’t I?” Ms. Macumber testified that she was confused and uncomfortable and did not

feel she had to discuss her vote as it was supposed to be confidential. Ms. Macumber said

she told Ms. Cameron, who was also at the nurses’ station, about the conversation with

Ms. Peck and said she was very upset.

[177] Ms. Macumber testified on cross examination that she has a nursing degree from St. FX

and she got her RN shortly after that. She said she heard of the CUPE organizing campaign

from Facebook and Ms. Beaver had asked her if she wanted a union card with CUPE. Ms.

Macumber testified that she did not follow the Wynn Park Facebook page, nor did she

follow the CUPE Facebook page.

[178] Ms. Macumber testified that prior to Ms. Peck coming to the nurses’ station, she never

discussed with Ms. Peck any union matter and never told her how she was going to vote.

Ms. Macumber testified her mother used to work at Wynn Park and she did overlap with

her mother when she was in housekeeping.

Wynn Park Witnesses

[179] Wynn Park called a total of 9 witnesses.

Testimony of Julie White

[180] Ms. White testified she works at Wynn Park and would have been there 3 years in August,

2021. She works in Housekeeping, where she cleans the North Unit primarily. It involves

sanitizing, cleaning Residents rooms and offices. Ms. White testified that she created a

Facebook page for Wynn Park. It was her idea alone to create it for the purpose of inviting

others to express comments, especially during Covid-19 which was a rough year. She

wanted to spread positivity amongst the staff.

[181] Ms. White testified that management did not threaten her about how she was to vote in

the upcoming union vote. Mr. Thody, Director of Support Services, was her supervisor

and asked her to give evidence in this hearing. Ms. White testified that she did not see

any affidavits or documents before coming to testify. Mr. Thody did not tell her what

other people were saying.

[182] Ms. White testified that the first time she heard any talk about the union was around

February 24, 2021, in the East Unit nurses’ station. Mr. Crawford had a conversation with

her, but she did not tell anyone about the conversation. The next day when she spoke

with Ms. McKay, Ms. McKay told her that Mr. Crawford wanted a union at Wynn Park.

Ms. White believed it was a couple of days after that that she spoke to Ms. Beaver and

Ms. Nielsen about her conversation with Mr. Crawford. Ms. White testified that she did

not get the notice/invitation for the March 21, 2021, union meeting.

[183] Ms. White testified that she believed that Ms. McKay did not want the union at Wynn

Park and neither did Ms. White. She also believed that management did not want a union

at Wynn Park. Ms. White referred to Exhibit U-14, noting that it did not say to Facebook

users to vote no. She was of the belief that Wynn Park was not allowed to tell employees

how to vote. Ms. White said management never spoke to her about the Facebook page.

Many in management, including Ms. Peck and others, indicated they liked the comments.

She says that on March 25, 2021, it was seen on Facebook in reference to ”support today,

go to vote”. She did not say go to vote no for a union at Wynn Park.

Testimony of Lisa Smith

[184] Ms. Smith testified she was appearing under subpoena. She is the CEO at Glen Haven

Manor, New Glasgow and will have been there for 14 years this coming November (2021).

She testified that a former employee, Mr. Crawford, was employed there beginning July

20, 2018, first as a casual employee and becoming a permanent employee on June 20,

2019. Ms. Smith testified that on March 31, 2019, there was an incident whereby they

had to send Mr. Crawford home as he had taken 5 needles and five syringes from the

supply room. Mr. Crawford admitted to doing so and said he was taking it for his girlfriend.

Ms. Smith testified that Mr. Crawford falsified an incident report wherein a vial had

broken. There was an investigation undertaken between April and May, 2019 and there

was a finding of breach of trust. On May 22, 2019, he was terminated from Glen Haven

Manor for cause, with the caveat that they would accept his resignation. Ms. Smith

testified that as of April 1, 2019, Mr. Crawford would have been aware that he was in

trouble, specifically that he had breached the trust and confidence of management.

[185] Ms. Smith further testified that only managers can supply job references. The references

that Mr. Crawford used at Wynn Park, namely, Aran Gallur and Kim Rafuse, were not

authorized by Glen Haven Manor and they had no authority to give a reference.

[186] Ms. Smith referred to a settlement agreement, Exhibit R-3, dated June 28, 2019, signed

by Mr. Crawford. She testified that the union at Glen Haven Manor knew that Mr.

Crawford was being terminated. Ms. Smith further testified that Mr. Crawford would not

have received a reference from Glen Haven Manor as management had determined that

there was a breach of trust and confidence in him as an employee that they could not

support.

Testimony of Rebecca McKay

[187] Ms. McKay testified that she has been at Wynn Park since 2019, as a recreational

coordinator and part of her duties are to plan programs for residents for their well-being,

including exercise, trivia, outings etc. She testified she works in all the units and said that

in the February to March 2021 time period Mr. Crawford, was an LPN but also supervised

recreation.

[188] Ms. McKay testified about allegations of back rubbing and other matters pertaining to

Mr. Crawford. She referred to Exhibit R-1, Tab 21, which are notes she took at the nurses’

station about instances where Mr. Crawford asked residents to rub his back, made

comments about other staff etc. She acknowledged on cross-examination that she, on

some occasions, had received back rubs from residents and she was not disciplined. Also,

both she and Madison Murphy had used cell phones at work and were not disciplined.

[189] Ms. McKay said she attended the Best Western meeting on March 21, 2021, believing

from the Facebook notice that it was for Wynn Park employees to attend to learn about

union benefits. Ms. McKay said that there were some employees of Wynn Park that were

sworn in and signed union cards. Ms. McKay testified that Mr. Rao moderated the

meeting of March 21, 2021, and she found him disrespectful when he refused to answer

questions from Madison Murphy. Ms. McKay referred to an email that she sent to CUPE,

dated March 30, 2021, Exhibit U-23, complaining about the disrespect showed by Mr. Rao

at the union meeting she attended. Ms. McKay indicated on cross-examination that while

she had referred to harassment by union supporters in her email March 25, 2021, to

CUPE, she could not state who may have been harassed and confirmed that she was not

harassed.

Testimony of Zoe Lindsay

[190] Ms. Lindsay testified that she has worked at Wynn Park as a cook since 2008. She was

previously a cook at West Side Villa. She testified that she reports to Mr. Thody. Other

than this current union activity in 2021 she does not recall any union campaign prior to

this campaign.

[191] Ms. Lindsay testified that she does not recall management ever talking about being a non-

union facility or seeing any signs to that effect. At one point Ms. Peck was in the kitchen

and a question was raised about whether, if the union got in, it would affect their

pensions. Ms. Peck said she would check into it and get back and later confirmed that

their pensions would be safe.

[192] Ms. Lindsay was referred to notes of a meeting from March 19, 2021, Exhibit U-24, which

meeting was held by Mr. Thody to talk about dietary and housekeeping issues. Again, the

issue of pensions came up and Mr. Thody said that he would ask Ms. Peck if pensions

would be protected. Ms. Lindsay testified that Mr. Thody did not tell anybody how to or

what way to vote and he said that it was their own personal decision

[193] In reference to Exhibit U-14, the Facebook page for Wynn Park, Ms. Lindsay testified that

Ms. White invited her to the group. Ms. Lindsay testified that there was a lot of anxiety

about the union vote coming up. Ms. Lindsay interpreted the Facebook page, where it

says ‘don’t forget to vote’ as Ms. White trying to get people to make sure they voted, not

to tell them how to vote. Ms. Lindsay said she was never harassed by the union.

Testimony of Marc Thody

[194] Mr. Thody testified that he is the Director of Support Services and has worked at Wynn

Park since November 2008. During his employment at Wynn Park he was not aware of

any other union drives and there was no talk of management opposing a union. With

respect to IT matters, he is responsible for the video cameras, which include ones on the

main floor, hallway, foyer and back door. The cameras are for the safety of residents. Each

nurses’ station has cameras. He testified that he was asked by Ms. Peck, as a result of a

meeting with Ms. Peck and Mr. Crawford on February 24, 2021, to get a copy of the video

of Mr. Crawford’s shifts on February 20, 2021, and February 21, 2021. He confirmed that

there is no audio attached to the video. Mr. Thody was asked by Ms. Peck to review the

videos to see whether or not he was concerned that Ms. Vaughan did not spend enough

time on the floor in the adult room. Mr. Thody testified that he noted that Mr. Crawford

was away from the nurses’ station without anybody being in attendance to watch over

that area including the Med Room. In particular he noted that Mr. Crawford left for a

period of time with a female co-worker and entered in a room, closing the door behind

them. He testified that he supplied those video tapes to Ms. Peck. The video from

February 25, 2021, were overwritten prior to his being asked for them.

[195] With respect to Ms. Burris who worked in housekeeping, Mr. Thody testified that as of

July 2020, she was a casual employee. In February 2021, Ms. Burris became a full time

employee, required to complete 70 hours bi-weekly. Mr. Thody said all employees are on

a probation period when they start. In April 2021, Ms. Burris was increased to 80 hours

bi-weekly. In a meeting with Ms. Burris on April 21, 2021, they discussed a letter he had

sent her regarding a requirement for 80 hours bi-weekly. Mr. Thody testified that the

policy was that attendance had to be a minimum of 96.1% and Ms. Burris was averaging

87%. In support of his testimony Mr. Thody referred to Exhibit R-8 which are the time

sheets of Ms. Burris.

[196] Mr. Thody referred to Exhibit R-1, Tab 26 which is a copy of the notes he took when he

met with Ms. Burris to advise her that she had to increase her hours. He also noted that

while her probation was not being extended, it could be extended if her hours were not

increased. Mr. Thody said that at the meeting when he provided the memo to her that

the discussion with her was not a punitive discussion - it was just to try to get her up to

96.1%.

[197] Mr. Thody testified that he had never heard that Ms. Burris ever reported her locker being

broken into. In regard to Ms. Burris’ absences, he testified that he understood her

absences were due to illnesses or the fact that she could not get to work due to road

conditions. Mr. Thody testified that he was aware that she had applied for a school board

job and asked him for reference, which he gave her. He noted that he believed that she

resigned to take a job at the school board and does not recall if she worked after she gave

her notice. Mr. Thody did not recall ever giving a letter of reference since Ms. Burris left

her employment.

[198] He had separate staff meetings on March 17, 2021, with housekeeping and dietary to go

over team matters. At neither meeting did he tell staff how to vote on union certification

[199] Mr. Thody testified that he never heard Ms. Peck ever say she did not want a union. Nor

did he ever hear it at committee meetings. Mr. Thody testified that he first heard about

a union drive on March 3, 2021, from Ms. Peck who told him about the possibility. He

testified that the suggestion box was set up for suggestions - it was not a voting box for

the union campaign.

[200] Mr. Thody was referred to the Facebook page created by Ms. White, Exhibit U-14. He said

that his wife uses Facebook but he does not.

[201] In cross examination Mr. Thody was asked about Ms. Blois recording a telephone call with

Ms. Burris. He said he does not know where or when that happened, and he never helped

Ms. Blois set it up or record the call. Mr. Thody testified that, with respect to Ms.

Vaughan’s video, he was asked on March 18, 2021, by Ms. Peck, to download it. He said

Ms. Peck never said she was downloading Ms. Vaughan’s video to test her loyalty. Mr.

Thody testified that he never looked at the Facebook photos of the Union meeting nor

did Ms. Peck ever talk to him about people on the Facebook page. He testified that he

could not recall when he knew about Mr. Crawford being terminated. He believed that

either Ms. Peck and or Ms. McEwen advised him. At no time did Ms. McEwen tell Mr.

Thody that she had no reason to fire Mr. Crawford. He was referred to Exhibit U-1, Tab 4,

which is the letter of termination, and he confirmed that he had not seen it.

Testimony of Teresa McEwen

[202] Ms. McEwen testified that she has worked at Wynn Park for 7 years and she is currently

the Director of Care and is also a registered nurse. Ms. McEwen testified that she reports

to Ms. Peck, Wynn Park Administrator.

[203] Ms. McEwen testified that she had never heard of any previous union drives nor any

general discussion about unions. She said she had never seen anything posted regarding

any negativity towards unions at Wynn Park and explained that when the candidates

asked about a union during their initial hiring meeting she would indicate that Wynn Park

is not unionized.

[204] Ms. McEwen testified that she was involved with the hiring process of Mr. Crawford,

including conducting the interview. She testified that the interview took place in her office

in early May of 2019 and Ms. Blois was present for the entire interview. The notes from

the interview said that Mr. Crawford apologized for being late for the appointment as he

was stopped by the police for using a cell phone. Ms. McEwen testified that Mr. Crawford

never mentioned during the interview process that he was suspended or under

investigation at Glen Haven Manor, nor did he indicate he misappropriated needles or

falsified a report. Ms. McEwen testified that if he had told her about those issues, she

would not have hired him. Ms. McEwen said that she checked 2 references that were

provided by Mr. Crawford, one from Kim Rafuse and the other from Aran Gallur. Ms.

McEwen testified that she thought that Aran Gallur was Mr. Crawford’s supervisor at Glen

Haven Manor. She further testified that she did not speak with senior management at

Glen Haven Manor. Ms. McEwen testified that she would not always do that as she

expects the applicants to be truthful with information they provide in their interview.

[205] Ms. McEwen testified that she had a few issues with Mr. Crawford during his

employment. She recalled an incident where he was upset that patient was in palliative

care and he informed her that he did not believe that patient needed palliative care

withstanding it was on a physician recommendation. Mr. Crawford told Ms. McEwen that

the nurse did not make the right decision to put her in Palliative care. Mr. Crawford, upon

learning that the patient had passed away, apologized to her for his remarks.

[206] Ms. McEwen testified that she disciplined Mr. Crawford on one occasion, along with the

CPA that he supervised, after it was reported that he spent time in a closed room with

her, for approximately half an hour. She referred to Exhibit R-1, Tab 10, which is a written

copy of a verbal warning. Ms. McEwen testified that she contacted Mr. Thody to check

the cameras to verify if Mr. Crawford was in fact spending time at the nurses’ station,

after seeing that he was in the room for 20 minutes, which is not normal. Ms. McEwen

approached Mr. Crawford and he admitted to the incident with the CPA. Ms. McEwen

advised him that the optics did not look good and that it was unacceptable. She gave both

Mr. Crawford and the CPA a warning.

[207] Ms. McEwen testified that it is a serious breach of policy to leave the Med Room door

open as well as leaving the Med Cart unattended as they both have items such as

narcotics, alcohol, and other medications for residents. This is especially importation as

some of the residents have a tendency to wander into the nurses’ station. Ms. McEwen

testified that Ms. Peck and Ms. Blois met with Mr. Crawford to deal with concerns

surrounding the patients entering the nurses’ station and Mr. Crawford wanted to have

Plexiglass installed for better security to keep the residents out of the nurses’ station. At

that time there was just a retractable band that went across the opening, easily removed

by residents and often times the retractable band was left open.

[208] Ms. McEwen testified that when watching the videos of Mr. Crawford, she witnessed him

sitting at his desk and not helping the nursing staff.

[209] Ms. McEwen testified that she was asked by Ms. Peck to terminate Mr. Crawford. She

referred to Exhibit R-1 Tab 8, the termination letter from February 26, 2021, that she

signed. She said that prior to signing it, she had a discussion with Ms. Peck and Ms. Blois

as to the wording. Ms. Peck wanted something included in the letter about Mr. Crawford

showing a lack of trust and being unworthy. Ms. Blois wanted something more short and

simple. Ms. McEwen testified that she called Mr. Crawford on Friday as the letter would

not get to him until Monday. She told him over the phone that he was terminated, and

he had asked for reasons and she said for privacy she could not give them at that time.

[210] Ms. McEwen testified that she had a staff meeting on March 1, 2021, informing Ms.

Waldron, Ms. Nielsen and Ms. Beaver to inform them that Mr. Crawford was no longer

employed at Wynn Park. She denied saying to the staff that she was concerned about the

room being bugged, or that she never agreed to terminate Mr. Crawford. Ms. McEwen

also said that there was no discussion about a union at that meeting at all.

[211] On March 4, 2021, Ms. McEwen was delivering a letter to staff, Exhibit U-1, Tab 7, in

person, including posting it on a bulletin board. At one point Ms. MacKenzie asked Ms.

McEwen if all staff could join the union and Ms. McEwen indicated that she did not know

the answers and she would try to obtain that for them. She testified that during that

interaction she did not tell the staff how to vote and would never do that. She remained

neutral. Ms. McEwen denied that, on March 5, 2021, she told Ms. Rafuse that she could

not be in the union. Ms. McEwen testified that she did not say to anyone, including

supervisors, that they were ineligible to join the union.

[212] Ms. McEwen testified that, on March 16, 2021, she was at a meeting, the notes of which

are at Exhibit R-1, Tab 18, with Ms. Vaughan, Janet Stone, Ms. Rafuse and Ms. Mackenzie.

Ms. McEwen said that the meeting was with rotational staff and there was some

questions raised concerning whispering in the hallways by supervisors. It was noted that

the morale was low at the time and staff seemed nervous when Ms. Peck was around,

but she was the administrator. There was no discussion from management about

supporting the union. Ms. McEwen met later with Ms. Rafuse in her office, as Ms. McEwen

was concerned that there was campaigning being done on work time and Ms. Rafuse

indicated that the union official told her that she was allowed to on her breaks.

[213] Ms. McEwen testified that, with respect to Ms. Rafuse missing things out of a filing

cabinet, there were no assigned filing cabinets to any LPN’s or RN’s. She said that there

was a Department of Health Audit and they had to check all filing cabinets and charts. Ms.

McEwen said that all the documents and items from the filing cabinet that Ms. Rafuse

used were moved but that she did not look at any documents or items unrelated to Wynn

Park or its residents.

[214] Ms. McEwen noted that Wynn Park management were always respectful to staff and no

comment was made about them wanting to join the union or not. She said that no

coercion was applied or threats made to prevent from them joining a union.

[215] Ms. McEwen testified that she had a meeting with Ms. Beaver, Ms. Nielsen and Ms.

Waldron on April 7, 2021, with Denise MacKenzie present, to discuss their arrival time at

work and the length of their breaks. She said the meeting was a discussion and was not a

reprimand. She denied intimidating them and says that there was no union issue

discussed.

[216] On cross examination Ms. McEwen said that she had not seen any CCA’s or LPN’s use a

cell phone on the floor during work. She acknowledged that it may have occurred. With

respect to Mr. Crawford she never disciplined him for any use of a cell phone while on

duty. She testified that with respect to the February 19, 2021, letter to Ms. Peck from

staff with their safety concerns, she found a copy of that letter in her mailbox.

[217] With respect to paragraph 34 in Mr. Crawford’s affidavit, Exhibit U-8, Ms. McEwen said

that she did not hear him say anything regarding a union.

[218] Ms. McEwen also said she did not recall Ms. Peck saying to Ms. Vaughan or Ms. Rafuse

that they had to support Wynn Park or support management. Ms. McEwen never pointed

a finger at staff, or intimidated them in any way with respect to how to vote.

[219] Ms. McEwen testified that she understood that Ms. Blois had reviewed the tapes of Mr.

Crawford from February 20, 2021, and February 21, 2021, and told Ms. McEwen that the

tape showed Mr. Crawford was careless in leaving the Med Cart, Med Room and nurses’

station unattended. Ms. McEwen said those incidents, along with the incident involving

the co-worker and Mr. Crawford going into a room together, made Ms. Blois determine

that he was untrustworthy. Ms. Blois, Ms. Peck and Ms. McEwen then decided to

terminate him.

[220] Ms. McEwen conceded that Mr. Crawford and his co-worker were not suspended for the

impropriety of spending time alone during the evening shift in the room. She denies

saying in the March 1, 2021, meeting that the room might be bugged or that she did not

agree with the termination of Mr. Crawford. Those statements were referred to in the

affidavits Ms. Waldron, Ms. Beaver and Ms. MacKenzie and also in the affidavit of Ms.

Nielsen.

Testimony of Cassie Blois

[221] Ms. Blois testified that she is the HR Manager for Wynn Park. She started as a Scheduling

Ward Clerk in May 2009, a year after Wynn Park opened in June 2008. She testified that

she has been Human Resource Manager since 2014, and works with all department

managers. She reports to Ms. Peck, the Administrator.

[222] Ms. Blois testified that it is policy that staff attendance be at least 96.1%. Management

meet with staff on a quarterly basis to go over their attendance requirements.

Management go over any concerns they have that the staff do not meet those standards

to assist the staff.

[223] Ms. Blois testified that she is involved in the recruitment of new hires, including job

postings, email, coordinating interviews, taking notes and writes all employment related

letters, such as disciplinary letters. Ms. Blois testified that she has never, since she has

worked at Wynn Park, seen any negativity towards unions. She has never seen any

signage at Wynn Park, complaints from employees, about unionization. She said when

people are hired if they ask about unions she indicates to the hires that Wynn Park is non-

unionized. However, she says she does not recall if it has ever been raised.

[224] Ms. Blois testified that she first heard of the rally on or about March 3, 2021, from a copy

of the Rank and File article. With respect to a meeting with Mr. Crawford on February 24,

2021, about the safety issues that were raised by staff, Ms. Blois testified that staff

wanted to try to keep residents out of the nurses’ station and were requesting Plexiglas

or some other type of structure, to create a barrier for the 2 entrances. Ms. Blois said that

Ms. Peck did not want Plexiglas as this was the resident’s home and it was too intrusive.

The conversation with staff was not heated, but rather focused on problem solving and

suggestions. There was no talk of union at all, just safety concerns. There also was some

concern that they needed extra staff. Ms. Peck said the funding comes from the

Department of Health and Wellness and it would be unlikely. The main concern was with

extra staff for the night shift.

[225] Ms. Blois testified that, in regard to the termination of Mr. Crawford, Ms. Peck asked her

to write up the termination letter. Ms. Blois said she did discuss it also with Ms. McEwen

who was in agreement. Ms. Peck found that after watching the videos of Mr. Crawford

and the issue with Mr. Crawford’s female co-worker, and leaving the Med Cart

unattended in the Med Room area, and that Med Room door open and unattended, that

she found him to be untrustworthy. Ms. Blois testified that those were the main reasons

for his termination. She said that the letter was not scheduled to be delivered by courier

until Monday. As such, Ms. McEwen decided to call Mr. Crawford on Friday afternoon to

let him know of the termination letter.

[226] Ms. Blois testified that Mr. Crawford applied for a LPN position and he was interviewed

on May 1, 2021 in Ms. McEwen’s office. Ms. McEwen conducted the interview while Ms.

Blois was present. Ms. Blois estimated the interview took approximately 15 minutes.

Wynn Park had his references and his resume. Mr. Crawford indicated that he was still

working at Glenn Haven Manor. Ms. Blois testified that Mr. Crawford indicated that he

wanted to pursue his RN designation. As well, Ms. Blois said that Mr. Crawford told them

that his girlfriend was going to attend Community College in Truro. Ms. Blois testified that

Mr. Crawford never disclosed that he was suspended and under investigation for

misappropriating needles or failing to complete an incident report at his place of

employment. She further testified that she did not leave the interview early. She was

there for the entire interview process. Ms. Blois identified Exhibit R1 Tab 8, which is the

termination letter to Mr. Crawford dated February 26, 2021, as the letter she prepared.

[227] Ms. Blois testified that Ms. Burris, a former employee, resigned April 25, 2021. Ms. Blois

referred to Ms. Burris’ resignation email, Exhibit R-11. Ms. Blois referred to Exhibit R-8

being an attendance report for Ms. Burris between January 21, 2021, and March 31, 2021.

Wynn Park has an attendance requirement of 96.1% and Ms. Burris was 87.7%. Ms. Blois

forwarded that attendance record to Mr. Thody, Director of Support Services, who met

with Ms. Burris to go over her attendance. Ms. Blois testified that Ms. Burris was not

disciplined, but just made aware of her attendance requirements. Ms. Blois testified that

she had a good working relationship with Ms. Burris. Ms. Burris had come to Ms. Blois

confidentially on April 28, 2021, as her lock was missing on her locker in the locker room.

Ms. Blois asked Ms. Burris to put the incident in writing, but Ms. Burris did not want to do

that.

[228] Ms. Blois testified that Ms. Burris texted her that she wanted to call Ms. Blois because she

had heard there was an unfair labour practice filed and that Ms. Burris was named in the

document. Ms. Blois testified that she recorded the phone call with Ms. Burris. Ms. Blois

referred to Exhibit R-1 Tab 2, which is a transcript of the call. Ms. Blois testified that Ms.

Burris was not aware of the recording of the call and referred to Exhibit R-1, Tab 1 as the

audio of the call and Exhibit R-1, Tab 2 being the transcript of her call. Ms. Blois testified

that she was very upset that her name was being used in an affidavit filed in an unfair

labour practice complaint by Mr. Rao. Ms. Blois testified that Ms. Burris told her that she

had contacted a friend at Patterson Law, who was prepared to file an affidavit to have it

removed as most of the contents of the affidavit filed by Mr. Rao in reference to what Ms.

Burris had said was not true. Ms. Blois testified that Wynn Park would offer to reimburse

Ms. Burris for legal counsel to prepare an affidavit, if she wanted to pursue it.

[229] Ms. Blois testified that during the pandemic it was a stressful time as they had to juggle

things with staff, supplies and morale was down generally. She said Wynn Park had a pizza

party in March following staff suggestions. Wynn Park put in a staff suggestion box for

staff comments. Wynn Park felt that the pizza party could boost morale. Ms. Blois said it

was decided and planned well before they knew that the Labour Board had picked a vote

day.

[230] Ms. Blois testified that five to six times a year she would socialize with Ms. Peck. They

went away on a shopping trip three or four years ago and a trip to Myrtle Beach in 2017

and Edmonton in 2018. Ms. Blois was part of the management group that went on these

trips but they socialized with Ms. Peck’s brother and sister-in-law and nieces.

[231] Ms. Blois testified there was no mention of unionization by management that she is aware

of or by staff prior to the Rank and File article. She testified that Ms. Peck never asked her

to pull Mr. Crawford’s personnel file after she saw the videos given to Ms. Peck by Mr.

Thody. With respect to the recording of the telephone call with Ms. Burris, Ms. Blois said

she did not inform Ms. Burris that she was going to be recorded. Ms. Blois said that she

did not check with Ms. Peck to see if she could record it without Ms. Burris’ consent.

[232] Ms. Blois testified that with regard to the pizza party she never consulted with Ms. Peck.

She ordered the pizza, preplanned. She said that during COVID-19 they would order ice

cream cake, KFC, and pizza two or three times with the night staff.

[233] Ms. Blois testified that she was never asked by Ms. Peck to look at any personnel file on

Ms. Vaughan or Ms. Dale or any other employees. She testified that she did not check any

references from Glen Haven Manor for Mr. Crawford, nor with the HR people at Glen

Haven Manor. She acknowledged on redirect that many people that worked at Wynn Park

were related to others. Over the years staffing can be difficult and in a small town, it is

not unusual in their type of business to have staff that are related to one another.

[234] On cross-examination Ms. Blois was referred to video footage of the nurses’ station on

the East Unit, Exhibit U-35, and she said that, although she was not in close proximity to

the conversation between Ms. Peck and Mr. Crawford, she believed she was within a few

feet and she could hear their conversation. She testified that at no time did she hear Mr.

Crawford use the word ‘union’. Ms. Blois testified that, with regard to the February 17,

2021, staff letter with staff concerns that was discussed at the February 24, 2021, with

Ms. Peck and Mr. Crawford, she only saw the letter at that meeting, however Ms. Peck

had previously told her about it.

Testimony of Sheila Peck

[235] Ms. Peck testified on behalf of the employer. She is the administrator and part owner of

Wynn Park in Truro, which opened in 2008. Ms. Peck said that Wynn Park is not unionized

but that she has been involved with the unionized business of Tower View and was

involved in the certification process there. She said she has an open door policy with

residents and staff at Wynn Park. There is an employee assistance program for staff. She

testified that it was a scary and stressful time operating during the COVID-19 pandemic

and staff found it very stressful. Ms. Peck testified that the management team at Wynn

Park consists of Ms. Blois, Human Resources Director; Ms. McEwen, Director of Care; Mr.

Thody, who supervises services such as housekeeping and dietary; Ms. Thody who works

in the business office; and Ms. Dale who answers the phone, delivers diapers to the floors,

takes some notes in some meetings and does blood runs to the hospitals.

[236] Ms. Peck testified that the Department of Health inspects the facility for high standards.

She said it is very exhaustive when the inspectors come. They usually come unannounced.

She testified that Wynn Park is funded by the Department of Health. Staffing, food

supplies, salaries/wages are set by the Department of Health.

[237] Ms. Peck said that Wynn Park has been in business for 13 years and has a waiting list and

a very good reputation. She testified that she is not aware of any prior union attempts at

Wynn Park. She is aware of the unionization process as she was involved in the process

at other places that she worked. Ms. Peck testified that she has never disciplined anybody

for union talk and never put up any anti-union signs on her premises. She testified that

there were names of former employees raised by the Union, of people who did not testify,

that had either left Wynn Park or been terminated for reasons unrelated to any potential

union activity.

[238] Ms. Peck testified that she first learned of the CUPE campaign around March 3, 2021,

after Wynn Park had terminated Mr. Crawford. Ms. Thody informed Ms. Peck that Mr.

Crawford went to the media and told her about the Rank and File article, Exhibit R-1 Tab

14, which included comments from Mr. Crawford. Ms. Peck said the article was incorrect

and that Mr. Crawford was not terminated for any union activity. She did not know about

any unionization attempts at that time. Ms. Peck testified that Mr. Crawford was

terminated for being careless and untrustworthy in leaving the Med Room open and

leaving the Med Cart unattended on numerous occasions. Ms. Peck testified that she has

never intimidated any of her staff or workers and she was very upset over the article in

the Rank and File. She said it affected her business and reputation.

[239] Ms. Peck testified about the CUPE car rally, referred to in Exhibit R-1 Tab 15, in support

of Mr. Crawford. She decided to have security present. She is aware that CUPE, NSNU,

Unifor are three unions that showed up for the rally. There was some horn blowing. She

said that she was inside her office at Wynn Park and did not know what was going on.

[240] Ms. Peck testified that she was aware of the letter received under her door on February

17, 2021, signed by staff with their safety concerns about placing Plexiglas on the East

wing nurses’ station and questioned why they needed Plexiglas. Ms. Peck testified that

she was concerned for the residents’ home life environment and she thought that

Plexiglas would be too intrusive. She also did not think the fire Marshall would approve.

Ms. Peck had a meeting with staff, with Ms. Blois present, along with herself and Mr.

Crawford, to go over the letter. Ms. Blois was present in the area approximately 7-8 feet

away. Ms. Peck said that she told Mr. Crawford that she was against Plexiglas because of

the reasons mentioned. She said that Mr. Crawford was not receptive to her answers. She

said no other units had concerns, however the meeting was amicable.

[241] Ms. Peck testified that she asked Mr. Thody to obtain the video of Mr. Crawford’s shifts

from February 20, 2021, and February 21, 2021, to see what the safety concerns were

that had been raised in the staff letter from February 17, 2021, and the meeting with Mr.

Crawford. Wynn Park’s analysis of those videos at located at Exhibit R-13.

[242] Ms. Peck testified that she reviewed those videos and said that, in addition to Mr.

Crawford, there was only one CPA on at that time. Ms. Peck said that Mr. Crawford would

have only had an hour worth of paperwork to complete, so he should have been able to

help out. She referred to video analysis Exhibit R-13 and as a result of looking at the videos

she saw several safety issues that she was concerned with. These include things such as

leaving the Med Cart unattended, which, if it is not in use, should be locked in the Med

Room. The Med Cart has to be locked at all times. The cart being unattended was a major

concern for her as there are medications on the cart that could be taken by residents. She

said she noticed a CPA not getting any help from Mr. Crawford. There were incidental

instances during the night, such as diapers that had to be delivered to rooms, where he

did not appear to be helping out. In another instance, she noted that the Med Room door

was wide open and Mr. Crawford had left the unit unattended. This all occurred at the

nurses’ station on the East Unit. Ms. Peck testified that they were serious violations of his

duties.

[243] Ms. Peck testified about her review of the video located at Exhibit R-1, Tab 29, where she

observed the Med Cart being left unattended, and the Med Room door open. The Med

Cart was left unattended for 6 1/2 minutes. She said that, again, throughout the video it

showed the Med Room door being left open. At one time Mr. Crawford left the unit and

went into a meeting room. Sheila Crombie was the only CCA on duty that evening as they

were short staffed. Ms. Peck said that the video showed that Mr. Crawford left Med door

open and the cart unattended on number of occasions. Ms. Peck testified that there were

several infractions of safety policies of Wynn Park and found those infractions disturbing.

Ms. Peck said she called Ms. Blois to say that she had lost faith in Mr. Crawford and she

had to terminate him as he was untrustworthy for leaving the Med door unlocked and

Med Cart unattended on numerous occasions. As such, a termination letter to Mr.

Crawford was issued, dated February 26, 2021, Exhibit R-1, Tab 8.

[244] Ms. Peck testified that Mr. Crawford never, at any time, used the word ”union” or said

that if a union was present that there would be better benefits and working conditions.

She testified that before issuing the letter of termination she never heard Mr. Crawford

using the word ”union” at all. Ms. Peck said that she had a discussion with Ms. Nielsen on

March 5, 2021, as Ms. Nielsen had read the Rank and File article and heard about the

termination of Mr. Crawford. Ms. Peck wanted to inform Ms. Nielsen that the article was

not true and that Mr. Crawford had never mentioned the word ”union”. Ms. Peck testified

that Wynn Park is not an anti-union employer, and she never asked Ms. Nielsen for her

views on union support.

[245] As for Ms. Burns, Ms. Peck said that she never told Ms. Burns to vote one way or the

other. With respect to the meeting with Ms. Vaughan’s on March 16, 2021, Ms. Peck said

there was some talk that Ms. Vaughan was hiding in the adult room and that she was not

seen very much on the floors and that was the reason Ms. Peck wanted to speak with her.

Ms. Peck testified that she never asked Ms. Vaughan for her loyalty. When the application

for certification was filed by the Union, it did not matter to Ms. Peck as she would just let

the process work. She did not try to influence any of the staff on how to vote. Further,

Ms. Peck testified that she had no involvement with Ms. White in creating the Facebook

page for Wynn Park.

[246] Ms. Peck testified that she was always available to answer any questions the staff may

have about the vote process. There was no coercion or intimidation of the work process

or how they would vote. The process is a secret ballot and no one would know how they

voted. Ms. Peck said that she had good relations with staff. She encouraged all of them

to exercise their right to vote. Ms. Peck testified about the letters to staff, located at

Exhibit U-1 Tab 7, Tab 8, and Tab 11 and said that she never intimidated staff with respect

to their right to vote.

[247] On cross examination Ms. Peck said that the staff safety issues letter of February 17, 2021,

Exhibit U-39, was slipped to her under her door and Ms. McEwen also got a copy of the

letter.

[248] Ms. Peck testified, with respect to Exhibit R-1 Tabs 1 and 2, Ms. Blois did not ask Ms. Peck

for permission to record Ms. Burris’ telephone call. Ms. Peck testified that Ms. Blois was

very annoyed that an unfair labour practice complaint that was filed included comments

from Ms. Burris that were not true. Ms. Peck said that Ms. Blois told her that Ms. Burris

wanted them pulled from the file. Ms. Peck offered, if Ms. Burris wanted to put it in an

affidavit, for Wynn Park to pay for the expense for her lawyer to draft it. Ms. Burris did

not take up the offer.

[249] With respect to Ms. Burns believing that the suggestion box was a voting box to see which

way staff would vote, Ms. Peck testified that was not correct. It was strictly for the

purpose of suggestions from staff. Ms. Peck testified that the first time she heard of

whispering by supervisors in the hall was after the car rally. She denies telling Ms.

Vaughan that she should not be sitting on the fence about supporting the union. Ms. Peck

testified that she never said that RN’s could not belong to a union. Ms. Peck said that if

there was any talk, any reference by her of loyalty, it was loyalty to the residents of Wynn

Park and not in relation to union activities. She denies the comments attributed to her by

Ms. Nielsen and Ms. Vaughan.

[250] In respect to allegations that Ms. McEwen made a comment that a room may be bugged,

Ms. Peck testified that no room was ever bugged and that they would never authorize it.

Further, in regard to allegations by Ms. Nielsen that Ms. McEwen had told her that Ms.

McEwen did not support the firing of Mr. Crawford, Ms. Peck testified that was not true.

Ms. McEwen signed the letter and was in full agreement to terminate Mr. Crawford.

Union Argument

Unfair Labour Practices

Law

[251] The Union allege that the management discussed the Union inappropriately with

employees, in violation of sections 53(1)(3)(a) (i), (iii) (iv) (v (v) (vi), 53(3)(e) and Section

58 of the Act which states as follows:

53

(1)

….

No employer and no person acting on behalf of an employer shall

(3)

(a)

No employer and no person acting on behalf of an employer shall

refuse to employ or to continue to employ any person or

otherwise discriminate against any person in regard to employment or

any term or condition of employment, because the person

(i)

is or was a member of a trade union,

….

(iii)

has testified or otherwise participated or may testify or

otherwise participate in a proceeding under this Act,

has made or is about make a disclosure that he may be

required to make in proceeding under this Act,

has made an application or filed a complaint under this

Act,

(iv)

(v)

(vi)

has participated in a strike that is not prohibited by this

Act or exercised any right under this Act;

….

(e)

seek, by intimidation, threat of dismissal or any other kind of

threat, by the imposition of a pecuniary or other penalty or by any other

means, to compel a person to refrain from becoming or to cease to be a

member, officer or representative of a trade union or to refrain from

(i)

testifying or otherwise participating in a proceeding

under this Act,

ii)

making a disclosure that he may be required to make in

a proceeding under this Act,

(iii)

….

making an application or filing a complaint under this

Act;

58

(1)

No person shall seek by intimidation or coercion to compel a

person to become or refrain from becoming or to cease to be a member

of a trade union or an employers’ organization.

(2)

Nothing in this Act shall be deemed to deprive an employer of his

freedom to express his views so long as he does not use coercion,

intimidation, threats or undue influence.

Note: In the Union’s Post-Hearing Brief, on page 51, there is reference to clause

(2) as D. It is assumed this is a typo and the reference is Section 58(2) of the Act.

[252] The Union refers to the Amalgamated Transit Union Local 508 v. Zinck’s Bus Company

Limited 1994 17662 (NS LRB), quoting from it significantly. The key principle that

the Union relies from that case is that employers have to be sensitive to the inherently

unbalanced power dynamic between an employer and an employee, as the employee

relies on the employer for their job and income. The messages themselves, while they

may appear, or be made to appear, non-coercive, need to be reviewed within that context

to understand whether an employee who disagreed with the message would feel that

they were being disadvantaged because of their position. The Board also considered the

motive of the employer in expressing their opinion, noting in that case the employer was

anti-union thus tipping the scales in favour of protecting the union from interference. The

Union quotes one particular section (Union Post-Hearing Brief – Page 53, Paragraph 314):

…interrogation of employees…about membership in or attitude

towards a union, or about the membership or attitude of other

employees, is inherently destructive of significant rights of union and

employees under the Act and under the Charter. …infiltration of union

meetings by them or by other agents or representatives of the

employer as conduct that interferes even if the union and/or the

employees are unaware of it. Into this same category of inherently

destructive conduct that will be treated as “interference” we add also

cases of…disproportionate discipline.

[Emphasis added.]

[253] The Union argues that the burden to prove anti-union animus is light, relying on

International Brotherhood of Electrical Workers, Local 625 and Taycar Electric 2018 NSLB

105 and Canadian Union of Public Employees, Local 4919 v. Lunenburg Home for Special

Care (Harbour View Haven) 2009 NSLRB 8. It further noted that “Labour boards piece

together a pattern of circumstantial evidence” (Union Post-Hearing Brief – Page 55,

Paragraph 321) and refers to Commercial Logistics v. Teamsters Local Union No. 31. 2019

95335:

30

The crux of such an unfair labour practice case is the employer’s

motivation in the [discipline], something which rarely will be

disclosed by admissions. Employers don’t ordinarily advertise

their anti-union activities. Such intention must be pieced

together from a pattern of circumstantial evidence.

…

32…

whether their evidence was in “harmony with the

preponderance of the probabilities which a practical and

informed person would readily recognize as

reasonable in

that place and in those conditions” (Faryna v. Chorny, para. 11)

Evidence

[254] The Union identifies the key actions taken by Wynn Park that it considers “inherently

destructive conduct (Union Post-Hearing Brief - Page 53):

1.

Interrogation of employees about membership in or attitudes

toward a union, or about the membership or attitude of other

employees.

2.

While perhaps not overly “planned” infiltration of Union meeting

March 21, (which is questionable in light of Teresa McEwen’s

actions/words toward Shalene Rafuse or Jennifer Beaver that Sunday

morning, followed by the matching “questions” to Mr. Rao by Madison

Murphy that evening); that’s exactly what it turned out to be. Madison

Murphy and Rebecca MacKey(sic) involved management possibly that

same night, and certainly the next day. Too much coincidence.

3.

Disproportionate discipline of Mr. Peck.

Note: It is assumed by the Board that this is a typo and the reference is

intended to be Tevin Crawford.

[255] The Union argued that there is general agreement with the incidents surrounding Ms.

Burris and the filing of ULP 3. While Ms. Burris did not testify, Mr. Rao did and Ms. Blois

recorded her call with Ms. Burris and provided an audio recording of the call, Exhibit R-1,

Tabs 2 and 3.

[256] The Union argues Mr. Rao testified that after Ms. Burris was pulled into a meeting with

Mr. Thody on April 21, 2021, he spoke with her on April 22, 2021, and April 24, 2021.

Following the second call with Ms. Burris, Mr. Rao says he prepared ULP 3 based on the

information she provided and sent her a draft of the complaint for her review on April 26,

2021, the day following Ms. Burris’ resignation from Wynn Park. He confirmed that he did

not receive a response to his email but acknowledged that he spoke with her on April 27,

2021, wherein she requested that he retract the complaint and stated that what she had

read was untrue. Mr. Rao refused to retract ULP 3 and filed it with the Board.

[257] The Union argues Mr. Rao testified that while he knew he did not have Ms. Burris’ consent

to file ULP 3, he viewed it as being his complaint and therefore he did not believe he

required Ms. Burris’ consent.

[258] The Union refers to several alleged encounters, some more developed than others. The

key ones that the Union appears to be relying on include:

1.

February 24, 2021 – Mr. Crawford alleges that Ms. Peck

responds to his comment about unionization by reminding him

that Wynn Park is “non-unionized and would be staying that way”,

something that Ms. Peck denies. (Union Post-Hearing Brief – Page

10, Paragraph 47)

2.

February 25, 2021 – Ms. Nielsen states that Ms. Peck asks

her questions about whether she had heard any union talk going

on and asks her about specific employees and whether Ms. Nielsen

was aware if they were supporters of the Union or not. Ms. Nielsen

also testified that Ms. Peck told her not to tell anyone about the

conversation. Ms. Peck disputes the content of the conversation,

as outlined later in this decision.

3.

March 4, 2021 – It is alleged that Ms. McEwen entered the

lunchroom and advises Ms. MacKenzie and Cathy Blaikie that RNs

and LPNs cannot be in the union. Ms. McEwen denies stating it as

a fact.

4.

March 5, 2021 – Ms. Rafuse testified that Ms. McEwen

advised her that management expects the support of supervisors

on the union issue. Tessa Burns (“Ms. Burns”) also states that Ms.

Peck advised her that a box would be put up for voting, something

that Ms. Peck denies saying.

5.

March 16, 2021 – Ms. Vaughan testified that Ms. Peck has

a discussion with her, asking her about loyalty and the need to

support management. It is alleged that Ms. Peck told Ms. Vaughan

to pretend that the conversation never happened. Ms. Peck denies

saying the things that Ms. Vaughan alleges her to have said.

6.

March 21, 2021 – The Union alleges that Ms. McEwen

spoke to Ms. Beaver, accusing her of harassing other employees

about the Union and told her to stop talking about the Union

during her breaks. It is also asserted that Ms. McEwen

reprimanded and intimidated Ms. Rafuse when she met with her.

7.

reprimanded, intimidated and threatened.

8. March 22, 2021 – Ms. Peck contacts Ms. MacKenzie at

March 21, 2021 – The Union alleges that Ms. Beaver was

home and allegedly questions her about whether she was at the

meeting the previous night. Ms. Peck claims she called to tell her

about the upcoming vote. Ms. McEwen also arranges to have the

lock cut off on a filing cabinet used by Ms. Rafuse, moving business

files as well as personal items to an unlocked filing cabinet.

9.

March 23, 2021 – Ms. Macumber testifies that Ms. Peck

approached her and tells her to attend at the vote because she

believed she knew what Ms. Macumber’s vote would be. Ms.

Macumber said she felt panicked by Ms. Peck’s questioning.

10.

April 7, 2021 – Ms. Beaver, Ms. Nielsen and Ms. Waldron

testified that they were verbally reprimanded by Ms. McEwen and

Denise MacKenzie. Ms. Nielsen says that the issues raised, while

legitimate, had not been raised before.

[259] The Union argues that the events referred to above are more than just coincidental with

the timing of the organizing drive, suggesting it is not a “logical conclusion” (Union Post-

Hearing Brief – Page 55, Paragraph 323). It refers to the following incidents or discussions,

suggesting they are not coincidences (Union Post-Hearing Brief – Page 56, Paragraph 324):

(1) After receiving the East Unit letter on February 17, Administrator

Sheila Peck only happened to go to East Unit a week later, on

February 24, to investigate the concerns after Mr. Crawford spoke to

co-workers about unionizing during his morning and noon break that

day.

(2) Sheila Peck’s questioning of Tevin Crawford and Elaine Nielsen

(which Ms. Peck denies) coincidentally occurred the next day, on

February 25. [According to what Ms.

Peck told Ms. Nielsen

on March 5, someone had phoned her at home the evening of

February 24 to inform her that Tevin was interesting (sic) in

unionizing, so it wasn’t a coincidence.] Peck’s follow-up conversation

with Elaine Nielsen March 5:

(3) Sheila Peck on February 25 decided to scrutinize video surveillance

recordings of only Tevin Crawford shifts – not others – and

coincidentally she discovered infractions which the Employer relied

upon (in its response to the unfair labour practice complaint, not in

the termination letter) to justify its termination.

(4) Sheila Boyle Peck just happened to make a FB friend request to Elaine

Nielsen on February 27.

(5) Madison Murphy just happened to raise with Govind Rao after the

Union meeting two points that Teresa McEwen had admonished

Shalene Rafuse and Jennifer Beaver about that day: 1. Employees

feeling harassed; and 2. No campaigning at work.

(6) Teresa McEwen just happened to be “not happy” on March 22, after

hearing from Madison Murphy about her complaint re the Union

meeting.

(7) Teresa McEwen just happened to need to move materials from

Shalene Rafuse’s filing cabinet on March 22, rather than wait for her

to be at work on Wednesday, when an audit wasn’t scheduled until

April.

Issue 2 - Shalene Rafuse Meeting/Filing Cabinet Lock Removal

[260] The Union refers to a number of incidents with respect to Ms. Rafuse and Ms. Beaver:



March 5, 2021 – Ms. Rafuse testified that Ms. McEwen advised

her that management expects the support of supervisors on the union

issue and also attempted to find out Ms. Rafuse’s position on the Union.



March 21, 2021 – It is asserted that Ms. McEwen reprimanded

and intimidated Ms. Rafuse when she met with her, based solely on an

accusation from Ms. White, which was based on things that Ms. White

heard from others. Ms. Rafuse testified that she had never heard from

people she had messaged that they did not wish to receive messages

about the Union.



March 21, 2021 – The Union alleges that Ms. McEwen spoke to

Ms. Beaver, accusing her of harassing other employees about the Union

and told her to stop talking about the Union during her breaks. It asserts

that the basis for Ms. McEwen speaking to Ms. Beaver was information

based to her by other people, which she did not investigate prior to

confronting Ms. Beaver.

Issue 3 – Elaine Nielsen, Jennifer Beaver and Beverley Waldron Meetings

[261] The Union raises the issue of Wynn Park’s decision not to call Denise MacKenzie, who was

involved in the meeting on April 7, 2021, with Ms. Nielsen, Ms. Beaver and Ms. Waldron

and appears to infer that meant that Ms. MacKenzie “got the message” (Union Post-

Hearing Brief – Page 65, Paragraph 386), although it is not clear what is meant by that.

The Union argued there is also reference to conversations, some which were clear

hearsay and others that appeared to have been assumed to have happened. The result of

this inference, as argued by the Union, is that the meeting on April 7 was a violation of

the Act. It is also suggested that the actions on April 7 were precipitated by the filing of

ULP 2 the previous day.

[262] With respect to the March 1 meeting with Ms. McEwen, the Union argues that the fact

that Ms. Nielsen was not shaken on cross-examination about what Ms. McEwen said

about her lack of a reason for firing Mr. Crawford is telling. Also, the Union argues the fact

that in response to a question from the Vice-Chair, Ms. Waldron confirmed that Ms.

McEwen had in fact said those things (Union Post-Hearing Brief – Page 72, Paragraph 431).

[263] The Union argues it is also noted that the first time that the allegations about what Ms.

McEwen said on March 1 were disputed was when Ms. McEwen testified. They were not

denied in either responses to any of the ULPs, in the pre-hearing submissions filed by

Wynn Park or was the point put to the Union witnesses during cross-examination. The

Union also challenges whether the notes that Ms. McEwen states she created about the

March 1 meeting were made contemporaneously, especially as they were only produced

on July 2, 2021, and not before.

Issue 4 – March 21, 2021 Union Meeting

[264] The Union argues on March 5, 2021, the Union organized a car rally to take place outside

of Wynn Park. In attendance were members of the Union, including Mr. Rao with a van

equipped with a PA system, and members from the NSNU and UNIFOR. Mr. Rao testified

that there was no honking and the rally was peaceful.

[265] The Union argues on March 14, 2021, Mr. Rao organized a meeting at the Best Western

in Truro, where he went over the process for starting a union and the right of a Nova

Scotian to join a union. Approximately 17 people attended the meeting. After an

application for certification was filed on March 19, 2021, a second meeting was organized

by the Union for March 21, 2021, for all current and future employees of Wynn Park. Mr.

Rao testified that the meeting was run by Nan McFadgen, CUPE Nova Scotia President,

and himself. He stated that 26 people attended the meeting at the Best Western hotel.

Issue 5 - Discipline of Tevin Crawford

[266] The Union alleges that Ms. Peck’s Facebook friend request issued to Ms. Nielsen was for

the sole purpose of trying to get Ms. Nielsen on side with management and to get her to

maintain her silence as to the conversation with Ms. Peck, although no evidence has been

tendered to support that allegation. The Union asserts that the reason Ms. Peck wanted

Ms. Nielsen to stay quiet was in order to ensure that Ms. Peck could maintain her position

that she was not aware of Mr. Crawford’s involvement with the Union when she

terminated his employment. The Union asserts that Ms. Peck’s testimony that she was

not aware of Mr. Crawford’s Union involvement does not hold up when it is considered

with the testimony of Ms. Nielsen, Mr. Crawford, Ms. White and Ms. McKay, who all said

they were aware of it prior to the termination.

[267] The Union argues that the evidence shows that there was anti-union animus in play when

Mr. Crawford was terminated, drawing inferences from the alleged statement by Ms.

McEwen that she was pressured into signing the letter (which Ms. McEwen denies) and

the fact that Ms. Peck did not consult with Andrew Kenny after reviewing the video

recording of Mr. Crawford at work (Union Post-Hearing Brief – Page 58, Paragraph 335).

The Union notes that Ms. Peck did not review the video recordings after receiving the

complaint on February 17^thbut instead waited until February 24^thand requested only

those videos of Mr. Crawford’s shifts. It is also noted that while Ms. Peck testified that

she compared Mr. Crawford’s shifts to other people’s shifts, Mr. Thody testified that he

was only asked to pull Mr. Crawford’s and the USB tendered as evidence only includes

Mr. Crawford, Exhibit U-35. It relies on the case of United Brotherhood of Carpenters and

Joiners of America, Local 93 v. 1443760 Ontario Inc. operating as Swing Stage Equipment

Rentals [2007] O.L.R.D. No. 2672 in support of its argument that the reasons for the

termination of Mr. Crawford are not supported and the timing of the termination suggests

that it was due to his support of the union.

[268] With respect to the video recordings themselves, the Union argues that the analysis that

was conducted by Mr. Thody differs from that of the Union. One of the key differences is

the allegation by Ms. McEwen that Mr. Crawford did not do any systems, when the videos

from both the February 20/21 and February 21/22 shifts show Mr. Crawford completing

the systems.

[269] The Union alleges that Ms. McEwen’s testimony lacks credibility due to denying speaking

with Ms. Beaver on February 24, 2021, when there was a meeting taking place at the

nurses’ station with Ms. Peck and Mr. Crawford. Ms. McEwen asserted that she did not

request that Ms. Beaver, who had been in a resident’s room, to come down to the nurses’

station to speak with Ms. Peck, but when confronted with the video recording showing

her entering the resident’s room, she could not recall why she had, surmising that she

may have been speaking with the resident.

[270] The Union also alleges that Ms. McEwen was supportive of Ms. Peck because Ms. Peck is

the Administrator and therefore her boss, and because Ms. Peck is the boss of Ms.

McEwen’s daughters, Megan Murphy and Madison Murphy. The Union further notes that

Ms. Peck’s son is engaged to Megan Murphy. Due to these familial relationships, the

Union asserts that Ms. McEwen got “on board” with Ms. Peck (Union Post-Hearing Brief

– Page 61, Paragraph 362) in relation to a number of incidents:

 East Unit nurses’ station issues, as in February 17 letter.

 February 24 nurses’ station discussions;

 Claims re what’s on video from February 20/21 and 21/22

 Termination of Mr. Crawford.

 March 1 admission and statement re wondering if room

bugged.

 July 2 surprise by Teresa McEwen: deny admission, and new

evidence.

[271] The Union asserts that Wynn Park has relied heavily on hearsay and failed to call

witnesses who could have provided direct evidence. There is an accusation that Wynn

Park failed to put questions to Union witnesses and instead attempted to have Wynn Park

witnesses testify as to what was in the mind of the Union witnesses (Union Post-Hearing

Brief – Page 62, Paragraphs 365 and 366).

[272] The Union also argues that Wynn Park utilized information about Mr. Crawford that

occurred in the past but that was not addressed prior to his termination (Union Post-

Hearing Brief – Page 63, Paragraphs 367 and 368).

Request for Remedial Certification

Law

[273] The Union takes the position that the actions of Wynn Park were in breach of the Act, to

the extent that Section 25(9) applies. As such, the Union requests that this Board order

Remedial Certification.

[274] The Union identifies the key points to be assessed when determining whether Section

25(9) can or should be utilized (Union Post-Hearing Brief – Page 28, Paragraph 197):

197. Eight pivotal points about s. 25(9) emerge in the jurisprudence, from

Michelin (BOA Tab 18) through Oil, chemical & Atomic Workers

International Union,

Local 9-856 v. Connors Bros. Limited, 1980

3286 (NS LRB). (BOA Tab 24) through White Point Holdings (BOA Tab 16),

through Zinck’s Bus (BOA Tab 1) through Comeau Sea Foods (BOA Tab

17):

(1)

Employers much take great care when exercising their s. 58(2)

right, so as not to exert undue influence.

(2)

(3)

(4)

Undue influence can occur intentionally or unintentionally.

No ULPs need to be filed or proven in order for s. 25(9) to apply.

Employer must have contravened in Act or Regulations in so

significant a way that the vote doesn’t reflect the true wishes of

employees.

(5)

(6)

(7)

The test is objective.

Remedial certification is not punitive.

Statutory safeguards are available.

To this the Union notes an 8^thpoint:

(8)

When exercising its discretion under s. 25(9), the Board must do

so in accord with Charter values, and in light of the Preamble to the Trade

Union Act.

….

(1) s. 58(2): Employer must take great care to avoid undue influence

The Union referred to the case of Connors Bros 1980 3286 (NS LRB)with respect to

this point, noting that the Labour Board in that case found that the employer has a duty

to take ”great care” with respect to their meetings with employees after an Application

for Certification has been filed. The Union notes that communication with employees may

be different than it was when Connors Bros. was decided, referring to Facebook as an

example.

(2) Undue influence might be intentional or unintentional

The Union notes that both Connors Bros. and Manor Cleaners Ltd. [1982] OLRB Rep.

December 8, 1982, address the issue of whether a deliberate act is required for a

contravention of the Act to be found. In the former, it states (Union Post-Hearing Brief –

Page 29, Paragraph 201):

no evidence was adduced that would indicate a deliberate act on his part

to contravene the Act.

The decision then continues on to order a certification of the union. In Manor Cleaners,

the Board acknowledges the difficulty to drawing a line between an employer’s right to

express an opinion and exerting undue influence on an employee, finding that each case

needs to be assessed based on its own facts (Union Post-Hearing Brief – Pages 29-20,

Paragraph 202).

The Union also provided quotes from MacDonald v United Food and Commercial Workers

Union Canada Local 864, 2021 NSLB 41 and United Food and Commercial Workers, Local

864 v Comeau’s Sea Foods Limited 2007 90566 (NS LRB).

(3) Union need not file any ULPs at all in order for s. 25(9) to apply; It is irrelevant whether union

established Proofs of violations under ULP

The case of United Food and Commercial Workers, Local 864 v Comeau’s Sea Foods

Limited 2007 90566 (NS LRB)is put forward by the Union to support this point,

referring to a quote where the Chair concluded (Union Post-Hearing Brief – Page 31,

Paragraph 206):

…Thus it is irrelevant whether the “proofs” offered by the Union

“prove” violations under the Complaint or simply establish its

entitlement to have the Board consider and if appropriate, certify the

Union despite its vote-loss pursuant to Section 25(9). [Emphasis added.]

(4) Employer must have contravened the Act or Regulations in so significant a way that the vote

doesn’t reflect the true wishes of employees

The Union references White Point Beach Holdings 1989 8744 (NS LRB); 1989

1480 (NS SC); 1990 2462 (NS CA). as an example where remedial certification was

granted due to the employer’s actions, noting that it was upheld on judicial review and

appeal. The Union submits that the test has been deemed to be somewhat objective and

requires some amount of compelling evidence, either cumulative, circumstantial or

contextual, which it claims has been proven in this case. There is a reference to a

Facebook message posted on Ms. Peck’s private Facebook page, on or around March 31,

2021, and the Union asserts that it forms part of the compelling evidence.

On this basis, the Union submits that the first 4 parts of the test under section 25(9)

have been met.

(5) Objective Test

The Union refers to Connors Bros, White Point Beach and Comeau (supra) as supporting

its position that the test is an objective one and asserts that, as a result, it is not required

for employees to testify how they voted. The concern for that type of testimony is that

could reveal whether an employee signed a membership card, which is prohibited by

Regulation 101/92 s. 9(3) and it would obviously reveal how they voted, which the Union

states (Union Post-Hearing Brief – Page 31, Paragraph 212):

…The Board is loathe to allow revelation of the secret ballot vote.

The Union refers to the ‘but for’ test when determining the impact on the outcome of

the voting, but concedes that the language does not appear in the Act.

(6) S. 25(9) is not punitive

It is submitted by the Union that, while an order for remedial certification is not meant to

act as a punishment, it is supposed to have a deterrent effect, suggesting that it de-

incentivizes employer violations of the Act, referring to a comment in Comeau (supra).

that otherwise an employer would derive a benefit from those violations. There is also

reference to Labourers’ International Union of North America, Local 1059 v. Carlos

Barbosa Concrete Limited [2008] O.L.R.D. No. 2083, which includes a quote, a portion of

which states (Union Post-Hearing Brief – Page 33, Paragraph 221 – Emphasis added by

Union):

131. In either of these two scenarios, it is well established that the

remedy of “remedial certification” is not to be utilized by the Board in

a punitive manner, but rather is a remedial option provided to the

Board to ensure that an employer is not rewarded for its misconduct

during a union organizing campaign…

The Union asserts that there is a history of ordering remedial certification in Nova Scotia,

and while rare, it is not “exceedingly rare” (Union Post-Hearing Brief – Page 33, Paragraph

223), noting the case of Canadian Union of Public Employees Local 2498 v. Victoria Haven

Limited 1981 3936 (NS LRB) ordered remedial certification but did not provide

reasons.

With respect to applications for remedial certification that pass the 40% vote threshold,

the Union asserts that it is only aware of one case, Michelin, where it was not granted,

although it acknowledges that Energy & Chemical Workers Union Local 40 v. Farmers Co-

operative Dairy Limited 1989 8685 (NS LRB), was denied without reasons, and that

the White Point Beach case involved a competing union that failed in its application

against another union.

(7) Statutory Safeguards

The Union argues that Justice MacDonald, in White Point (supra) stating at page 8:

There are other rights that parties can utilize in the future according to

their wishes, if they choose to do so, and I think that is what should occur,

if they so wish.

(8) Charter of Rights and Freedoms; Charter values; Preamble to Act

The case of Egg Films Inc v. Nova Scotia (Labour Board) 2014 NSCA 33, is referred to by

the Union, asserting that it was instrumental in declaring that collective bargaining is a

constitutional right. The interpretation of the application of the Charter of Rights and

Freedoms (Part 1, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK),

1982, c 11), Charter values and the Preamble to the Act are canvassed in Georgakakos v.

IBEW Local 625 2020 NSLB 44, 2021 NSSC 128, with there being a requirement to

proportionally balance the values of the Charter with statutory objectives (Union Post-

Hearing Brief, Page 36, Paragraph 234).

The Union further asserts that when balancing these considerations, the analysis tips in

favour of employees having the freedom to associate at the early stages of the

unionization drive, referencing Ed Klassen Pontiac Buick GMC (1994) Ltd. v. Teamsters,

Local 213 1996 CarswellBC 3005, which states (Union Post-Hearing Brief – Page 37,

Paragraph 238):

…in R. v. Big M Drug Mart…Chief Justice Dickson referred to freedom as

being the absence of coercion:

Freedom can primarily be characterized by the absence of coercion or

constraint. If a person is compelled by the state or the will of another to

a course of action or inaction which he would not otherwise have chosen,

he is not acting on his own volition and he cannot be said to be truly free.

One of the major purposes of the Charter is to protect, within reason,

from compulsion or restraint. Coercion includes not only such blatant

forms of compulsion as direct commands to act or refrain from acting

on pain of sanction, coercion includes indirect forms of control which

determine or limit alternative courses of conduct available to others.

…

In conclusion, it is clear that the law places greater restraints on

employer speech at the initial stage of collective bargaining than when

collection bargaining rights have become more established. This is

because employer resistance to collective bargaining has tended to be

greatest at this initial point when employees are most vulnerable.

…

It is clear that employer free speech and an employee’s freedom of

association are interrelated. An employer has a general right of free

speech guaranteed under the Charter, in the Labour Relations Code, and

in the Board’s policy. Any infringement of the right must be justified in

specific terms. The circumstance where that is most justifiable is where

union representation is in issue. The certification and unfair labour

practice provisions of the Labour Relations Code are designed to

facilitate and protect an employee’s freedom of association. In

interpreting Section 8 we have balanced the employer right of free

speech with the employees’ right of freedom of association in favour of

employees at the initial state of organization. This determination

reflects the balance struck in other Canadian jurisdictions. [Emphasis

added.]

Evidence

[275] In response to these points the Union submits arguments under six headings:

(1) Commencement of Employment; Workplace messages

[276] The Union references a number of incidents that it suggests, viewed objectively and

cumulatively, demonstrate unfair labour practice. It argues that Wynn Park’s

management asserted that it was a family run establishment and non-union and that it

wished to remain that way, noting that family-run businesses are not entitled to any

special treatment under the Act. The Union also notes that there was testimony about

the union word being taboo and that witnesses were not surprised that Mr. Crawford’s

employment was terminated. There is also an allusion to the audio taped conversation

between Ms. Burris and Ms. Blois, where, according to the Union, Ms. Burris attempts to

convince Ms. Blois that she is not a union supporter.

[277] The testimony of Ms. Rafuse included comments about having seen signs in 2011 against

unionization, with was contradicted by Mr. Thody and Ms. Peck, whom the Union says is

not credible.

[278] The Union also asserts that Ms. Peck and by extension Wynn Park, “equates being

“happy” with being non-union” (Union Post-Hearing Brief – Page 39, Paragraph 249),

providing examples of when Ms. Peck either referenced the mood of Wynn Park as being

happy or other witnesses testified about Ms. Peck talking about whether people were

happy.

(2) Attempts to identify union supporters or “attitude toward union”, find out who attended

union meeting, talking union or attempting to organize union

[279] The Union alleges that Ms. Peck spoke to Mr. Crawford on February 25^th, relying on the

testimony of Mr. Crawford which was contradicted by the testimony of Ms. Peck.

[280] There is also reference to the conversation that Ms. Peck had with Ms. Nielsen, which the

Union asserts was “chilling” (Union Post-Hearing Brief – Page 40, Paragraph 257) for Ms.

Nielsen and other staff. It relies on the case of Canadian Hotel and Service Workers Union

v. Romzap Ltd (Sheraton Fallsview Hotel & Conference Centre) 1995 10034 (ON LRB)

for the argument that speaking to one, or a select group of employees, can influence all

employees due to the way information travels in the organization. The Union submits

(Union Post-Hearing Brief – Page 40, Paragraph 258):

…The Employer poisoned the well, before and after firing Tevin

Crawford. Its other statements don’t neutralize the impact of its

contraventions.

[281] It is also pointed out that portions of the testimony of Ms. Nielsen, specifically the manner

in which Ms. Peck motioned her into the patient’s room, how the door was closed, and

the fact that Ms. Peck told her not to tell her about the conversation went unchallenged

in cross-examination.

[282] The Union suggests that Ms. Peck’s testimony that she was shocked to find out that Ms.

Rafuse was a union supporter, as well as her comment that she did not think RNs wanted

a union, shows that Ms. Peck kept who was pro-union in the front of her mind.

[283] There is also reference to other alleged communications between various individuals,

including Ms. Peck, Ms. White, Ms. McEwen, Ms. Patton, Madison Murphy Ms. McLeod,

Ms. Rafuse and Ms. MacKenzie.

(3) Employer fires Tevin Crawford

[284] The Union argued that Ms. Nielsen testified about the effect that Mr. Crawford being fired

had on her. Specifically she testified to her belief that it was related to his support of the

union, and her concern for her own employment due to it, as well as the things said to

her by Ms. Peck and other things she heard from co-workers. The Union relies on that

evidence, as well as the testimony of Kristen Crawford and James Moore, to assert that

union supporters were concerned for their jobs.

[285] The Union further argues that Wynn Park’s suggestion that Ms. Nielsen’s email of

February 26 was made as a result of Mr. Crawford’s termination is not possible as the

email was created before Mr. Crawford was advised he had been fired. As well, it is argued

by the Union that the claim that the employees were affected by the Rank and File article

is without merit and it was the termination of Mr. Crawford and other actions by Wynn

Park that created the concern amongst the employees (Union Post-Hearing Brief – Page

71, Paragraph 422).

(4) Implied threat/undue influence upon others: some large and some small

[286] The Union references several comments that Ms. Peck is alleged to have said, to Ms.

Nielsen and Ms. Vaughan as well as the suggestion that Wynn Park received information

from employees who were not supportive of the union and accepted it at face value. The

latter is in reference to Ms. White, who the Union claims fed “unfounded accusations

against union supports to management, and management ate it up.” (Union Post-Hearing

Brief – Page 43, Paragraph 268). To support its claim the Union notes that Ms. McEwen

was instructed to speak to Ms. Rafuse due to the unchallenged allegations by Ms. Peck,

informed by Ms. White, that Ms. Rafuse was harassing coworkers about unionization. It

also notes that the day following Ms. McEwen’s conversation with Ms. Rafuse, the lock

on the filing cabinet that Ms. Rafuse kept personal items and files in was cut off and the

contents moved to an unlocked filing cabinet. Mr. Moore testified of the effect that the

lock being cut had on other employees, specifically the concern that they had with respect

to their job security.

[287] The Union refers to the cross-examination of Ms. Rafuse and argues that Ms. Rafuse was

not extensively challenged on her affidavit and did not put issues to her that Wynn Park

witnesses would contradict her. The argument put forward by the Union is that the

treatment of Ms. Rafuse had a ”chilling effect” on the employees and was a violation of

the Act, and that the reason for the cutting on the lock and movement of the contents

put forward by Wynn Park was not credible. It also disputes Wynn Park’s suggestion that

the action was not disciplinary in nature and asserts that simply labeling something as not

being discipline does not make it so.

[288] It also references the allegation that Ms. McEwen reprimanded and made threats against

Ms. Beaver for harassing employees on the basis of complaints from several individuals.

The Union submits that Ms. McEwen failed to do any investigation of the complaints and

noted that, absent Ms. White, none of the individuals who purportedly made the

complaints to Ms. McEwen testified.

[289] The interaction between Ms. Peck and Ms. Macumber was also raised by the Union. In

addition to the fact that Ms. Peck was on the floor more than normal, according to several

Union witnesses, the Union noted that Ms. Macumber testified that Ms. Peck took her

aside and spoke to her of being aware of what Ms. Macumber’s feeling were with

reference to the Union. Ms. Cameron provided an affidavit that stated that Ms.

Macumber told her about the conversation and both were cross-examined on the issue

but remained consistent.

[290] The Union references Ms. Macumber’s mother, who both Ms. Peck and Ms. McEwen

claim as a friend, as supporting the contention that Ms. Peck believed she knew what Ms.

Macumber’s vote would be and therefore, by extension, was “pulling the “no” vote, and

overly or subtly influencing how employees voted.” (Union Post-Hearing Brief – Page 46,

Paragraph 285)

[291] Ms. Peck, on the other hand, testified that she was just expressing the hope that Ms.

Macumber would be home to vote, which the Union asserts constitutes undue influence

because it involves a member of Wynn Park management talking one on one with an

employee about voting. They also note that Ms. Peck responding to texts from either Julia

Schmidt, a university student working at Wynn Park, or Julia Schmidt’s mother, that Julia

Schmidt should come back to vote also constitutes undue influence.

[292] The Union asserts that Wynn Park demonstrated undue influence by liking and loving

posts on the Wynn Park Villa Team Facebook page, asserting that it was created by “anti-

union employee” Julie White. The Union contends this showed Wynn Park’s management

was onside and/or favoured employees opposing unionization. It notes that Ms. White

herself testified that she openly admitted that she wanted employees to vote no to the

union and her reference to ‘show your support’ was made in support of voting no to

unionization.

[293] The Union clarifies the name of the Facebook page created by Ms. White, noting that it

was not called “Friends of Wynn Park Villa” which is how Wynn Park counsel referred to

it. The Union submits that the actual name, “Team Wynn Park” supports their contention

that it was created to campaign for voting no.

[294] Ms. Peck’s testimony about the Facebook page was canvassed, focusing on her support

of the Facebook page and the fact that it was set up, according to its creator, in favour of

the no-vote. Due, in part, to Ms. Peck’s support of the Facebook page and her

acknowledgment that it was set up during the campaign, the Union asserts that Ms. Peck

and Wynn Park were involved with influencing employees and thus in breach of the Act.

It also references a post Ms. Peck made on March 26, 2021, on Ms. White’s Facebook

page, wherein Ms. Peck states:

Thank you to all our wonderful staff for your support. We know that no

matter what you are all there each and everyday for our Residents. Either

way we will always be the Wynn Park Team. It’s be (sic) a long couple of

weeks. I’m sorry for all the stress you have been under. Hopefully

next week we will all be rested and back to our happy and caring selves.

Have a great weekend. (Emphasis added.)

[295] The Union argued that the timing of the Wynn Park supplied pizza on voting day was also

called into question by the Union. While Ms. Blois testified that Wynn Park would often

provide those types of treats, many of the union witnesses disagreed. Ms. Blois also

testified that she organized the pizza for the 26^thapproximately 2 weeks prior, which

would have been after the union organized car rally. The Union argues that it was

inappropriate to have the pizza on voting day and once the date was set and known to

Wynn Park the pizza day should have been cancelled or rescheduled. It distinguished the

provision of the pizza by Wynn Park from that of a child of a long term employee, who

testified for the Union, providing homemade cupcakes in thank you for the workers

during COVID-19.

(5) Incorrect/False information by Employer and those on its behalf

[296] The Union asserts that Ms. McEwen stated to both LPNs and RNs, including Ms. Rafuse,

“as a matter of fact”( Union Post-Hearing Brief – Page 49, Paragraph 307) that they could

not be in the union and alleges that she said the same things to CCAs Ms. MacKenzie and

Cathy Blaikie.

(6) Attempts by employer to raise allegations for employees/Inference of Infiltration

[297] The Union argued that the participation of Madison Murphy, Ms. McKay, Sidney Patton

and Jennifer MacEachern in the union meeting was not contested by the Union, but it

questioned the conduct of Madison Murphy and Ms. McKay at the meeting. It references

Ms. Peck’s testimony that Madison Murphy asked about complaining about the meeting;

Ms. McKay’s email to CUPE about the meeting (Exhibit U-23); and Ms. Patton’s complaints

about receiving messages from the Union as evidence that they did not attend the

meeting for a legitimate purpose. There is also an allusion to the fact that the issues that

Ms. McEwen discussed with Ms. Rafuse, specifically with respect to campaigning at work

and harassment by union supporters, were the same issues that Madison Murphy raised

with Mr. Rao later that same day, suggesting that leads to the inference that Wynn Park

management was communicating with Madison Murphy and Ms. McKay prior to the

union meeting.

Argument

[298] The Union argues that there is not a requirement for an unfair labour complaint to be

laid, or to be founded, in order for a remedial certification to be ordered under Section

25(9). The test for contravention of the Act or the Trade Union Procedure Regulations

("the Regulations”) is a high one, specifically that the contraventions are so significant

that the “vote doesn’t reflect the trust wishes of employees” (Union Post-Hearing Brief –

Page 31). As support for its claims that Wynn Park committed these contraventions, the

Union refers to a post-vote post by Ms. Peck on Ms. Peck’s personal Facebook page which

refers to karma. Ms. Peck testified that the post was referring to a family members

divorce, although it was liked by at least one employee of Wynn Park.

[299] The Union refers to the test to be applied as being objective, and notes that there is no

true way to know the impact of the alleged contraventions as the employees are not

asked, nor should they be, if they would have voted the way they did if the contraventions

by Wynn Park had not taken place. The Union argues that the Board does not have to find

that “but for” the contraventions of the Act the vote would have passed, but argues that

even that more stringent test has been met in this case (Union Post-Hearing Brief – Page

32). The Union asserts that the legal test for determining whether an employer’s actions

constitute unfair labour practices does not include the requirement for there to be ”actual

interference” (Union Post-Hearing Rebuttal Brief – Page 1).

[300] The Union relies on the closeness of the vote and the requirement for the contraventions

to be so serious as to cause the vote to not be a true representation of the wishes of the

employees as explanation of how the objective test should be applied in this case.

[301] The fact that s. 25(9) is not a punitive remedy, and should not be viewed as one, is

characterized by the Union as ”particularly important in the context at hand.” (Union

Post-Hearing Brief – Page 32, Paragraph 219). The Union notes that while it is not a

punishment as against an employee, it has a deterrent effect and prevents the employer

from gaining a positive result from a negative act. In the case law referenced by the Union

in this section, there is mention of cumulative actions which affect an employee’s ability

to make a free choice, which is an important consideration. There is also mention of the

undermining of the rule of law if the actions by the employer leads to a situation where

the employee is limited in their ability to choose how to cast their vote.

[302] The Union also asserts that, while there may not be a significant history of orders for

remedial certification, the Board must ensure that they protect the integrity of the vote

and ensure that employers do not take actions, believing it is ”worth the risk” (Union Post-

Hearing Brief – Page 33, Paragraph 222).

[303] With respect to the 40% threshold, the Union asserts that, consistent with Salade (Salade

Etcetera! Inc. v (A Division of Vegpro International) v United Food and Commercial

Workers International Union, Local 1518) 2020 BCLRB 109 , the Act “…“incentivizes”

a “hit hard, hit early’ strategy of union-avoidance” by employers” (Union Post-Hearing

Brief – Page 34, Paragraph 226) and the early actions that it claims were taken by Wynn

Park are significant.

[304] The Union asserts that the balance of Charter values and the Preamble of the Act tip in

favour of remedial certification.

[305] When outlining its position on why this Board should grant remedial certification under

s. 25(9), the Union also noted the statutory safeguard that allows for a vote of

decertification, in the event that remedial certification is not accepted by the majority of

the employees, as well as the requirement to assess the applicability of s. 25(9) in light of

the Charter of Rights and Freedoms. The second issue, that of the interpretation of the

Charter right of freedom of association as well as the consideration of the preamble to

the Act, are important considerations when determining if the solution for any

contraventions, should they been found, is remedial certification.

Union Response to Wynn Park Issues

Issue 1 – Does the Filing of ULPs 3, 4 and 5 by the Union constitute an abuse of process?

[306] The Union disputes any claim that the filing of ULPs 3 4 and 5 was an abuse of process. It

asserts that the Vote Agreement was “merely a sensible procedural sequence” (Union

Post-Hearing Rebuttal Brief – Page 8, Paragraph 63) and that the Union neither agreed to

forego any of its right under the Act nor did Wynn Park assert that the Vote Agreement

would prevent the Union from filing subsequent unfair labour practice complaints.

Referring to Skinner v. Nova Scotia (Labour Board) 2020 NSSC 280, which confirms that

the Act does not allow a Board to extend the 90-day time limit for filing complaints, and

Slaunwhite v. Aluma Systems 2018 NSLB 171, which determined that the provisions of the

Act had no “temporal elasticity” (Union Post-Hearing Rebuttal Brief – Page 9, Paragraph

160), the Union argues that the reverse is true in that the Board does not have the

authority to abridge the time for filing a complaint. As such, the Union argues that neither

the Board, nor the Vote Agreement, can prevent it from filing unfair labour practice

complaints.

[307] With respect to statutory exceptions that would allow for the Board to refuse to hear a

complaint, the Union refers to Sections 56(2) and 56(4) and argues that neither apply in

this case.

Issue 2 – Did the Union waive their right to file further unfair labour practice complaints

following entering into the Vote Agreement?

[308] The Union asserts that the only purpose of the Vote Agreement was “…a practical good

faith way to potentially save time and resources, without a lengthy hearing of the ULPs”

(Union Post-Hearing Rebuttal Brief – Page 2). It asserts that the doctrine of waiver is about

“clearly relinquishing the right to rely upon a defect or deficiency” (Union Post-Hearing

Rebuttal Brief – Page 13, Paragraph 80) and argues that it does not apply in these

circumstances.

Issue 3 – Should the statutory declaration filed and sworn by Govind Rao with ULP 3 be thrown

out?

[309] The Union asserts that the comments made by Ms. Burris to Ms. Blois are “consistent with

Ms. Burris getting cold feet” (Union Post-Hearing Rebuttal Brief – Page 14, Paragraph 88),

referencing Ms. Blois’ statements that she did not say things about Brittany Thody, which

the Union claims were reflected in her text messages to Mr. Rao and Ms. Rafuse. The

Union also states that the information conveyed by Ms. Burris to Ms. Blois does not “erase

the accuracy of what Ms. Burris had told Mr. Rao, more than once” (Union Post-Hearing

Rebuttal Brief – Page 14, Paragraph 89). It is also submitted that changes were made to

ULP 3 by Mr. Rao after not hearing back from Ms. Burris, prior to it being filed.

[310] With respect to Wynn Park’s position that Mr. Rao’s failure to advise the Board about

alleged false information, the Union object strenuously to that characterization of the

events and argues that a statutory declaration does not require that each piece of hearsay

be identified and the source and belief in it be set out.

Issue 4 – Did the Union breach the Nova Scotia Human Rights Act by differentially treating

employees who are family members of management of the Employer?

[311] The Union asserts that this is a frivolous allegation and submits that the Board lacks the

jurisdiction to deal with the claim.

[312] With respect to Madison Murphy, the Union indicates that Wynn Park cannot speculate

why Madison Murphy attended the union meeting, but then asserts that she asked

questions and made statements that it says are consistent with Wynn Park’s position. It

also states that any different treatment was as a result of Madison Murphy acting

differently and posing different questions, than the other attendees.

[313] It does acknowledge that familial relationships may be relevant, referring to “…lines of

communication, favouritism, circumstantial evidence, and inferences drawn.” (Union

Post-Hearing Rebuttal Brief – Page 16, Paragraph 105).

Issue 5 – Should an adverse inference be drawn against the Union for failure to call Lisa Burris

as a witness?

[314] The Union argues that Wynn Park cannot draw the inferences it does about Ms. Burris or

the phone call with Ms. Blois (Union Post-Hearing Rebuttal Brief – Page 16).

Issue 6 – Are the Union’s unfair labour practice complaints substantiated? (Many of the Union’s

arguments on these points are canvassed above.)

[315] The Union argues that only those complaints filed pursuant to s.53(1)(a) of the Act require

”actual interference” due to the language in that section.

[316] In response to Wynn Park’s argument that there is no steep decline of support for the

Union, it is submitted that because the actions by Wynn Park began early on, it was harder

for the Union to raise even initial interest, thus causing less of a drop off.

[317] The Union relies heavily on the testimony of Ms. Nielsen.

[318] With respect to the termination of Mr. Crawford, the Union argues that Wynn Park has

the burden of showing that his firing was not due to its anti-union animus and submits

that that factors that are to be considered support the Union’s and Mr. Crawford’s

position.

Issue 7 – Did the Union Breach section 54(d) of the Act by Organizing during paid breaks?

[319] The Union asserts that section 54(d) does not require employer approval for employees

to discuss union matters during their breaks, noting that Wynn Park, if it felt it was a

breach, could have filed a complaint under section 55 of the Act. As no complaint was

filed, Wynn Park cannot argue it now.

Issue 8 – In the event the Union’s unfair labour practice complaints are substantiated, is

remedial certification appropriate?

[320] The Union’s argument on this issue was canvased extensively previously in this decision.

Additional points made by the Union include the argument that Wynn Park’s assertion

that the test for remedial certification is “truly egregious” (Union Post-Hearing Rebuttal

Brief – Page 24, Paragraph 164) employer behaviour. It also notes that Wynn Park referred

to only 2 Nova Scotia cases in which remedial certification was ordered but it found 4

reported cases.

Issue 9 – Reply to Union submissions not already addressed

[321] The issue of Ms. White’s Facebook page was canvased previously, as was the post made

by Ms. Peck on her personal Facebook page, as were the workplace messages and the

pizza party.

Issue 10 – In the event the Union is unsuccessful in their unfair labour practice complaints, what

is the appropriate time bar?

[322] The Union disputes Wynn Park’s suggestion that it has acted inappropriately in any way

and asserts that requesting an extended time bar demonstrates Wynn Park’s attempt to

limit association and unionization.

Wynn Park’s Argument

Wynn Park’s Response to Union Unfair Labour Practices

Issue 1 - Employer’s Discussion of Union with Employees

[323] Wynn Park’s position is that they had 3 formal communications to employees about the

unionization process, encouraging people to get informed and vote (Union Exhibit Book

1 – Tabs 7, 8 and 11). Ms. Peck testified that all verbal communications she had with

anyone was consistent with that messaging.

[324] Wynn Park argues with respect to the pizza party that took place on March 26, 2021, Ms.

Blois testified that it was planned well in advance of Wynn Park becoming aware of the

date for the certification vote and was organized in attempt to boost morale as a result

of the pandemic.

1. Employer’s Discussion of Union with Employees

a. Dianne Vaughan

Wynn Park argues that Ms. Peck’s interaction with Ms. Vaughan on March 16, 2021,

was about the need for Ms. Vaughan to be present on the floor rather than staying in

her office space in the adult day room. Ms. Peck testified that the meeting was not

disciplinary in nature and that in response to Ms. Vaughan’s comment about not

wanting to be asked about the union she stated that she did not know who was in or

out of the union but wanted everyone to vote. Ms. Peck testified that at no time

during the meeting did she ask Ms. Vaughan how she intended to vote. Ms. Vaughan

testified about a very different conversation, stating that Ms. Peck, among other

comments, told her that Ms. Vaughan cannot be “seen sitting on the fence you have

to be seen as supporting management” and “this conversation never happened right”

(Wynn Park Post-Hearing Brief Page 12, Paragraph 89, original source unclear).

The credibility of Ms. Vaughan was called into question after her testimony, when

Wynn Park alleged that she had been seen on CCTV stealing Band-Aids, Exhibit U-31.

She was recalled to the stand and stated that she had taken the Band-Aids in order to

restock the north unit Med Cart. Wynn Park submits that she is not responsible for

restocking supplies and therefore she was dishonest about the Band-Aids under oath.

Ms. Vaughan resigned from her position at Wynn Park on May 23, 2021.

b. Elaine Nielsen

Wynn Park argues Ms. Nielsen testified that on February 25, 2021, she spoke with Ms.

Peck about safety issues and Ms. Nielsen being under pressure because her father was

ill. The conversation then allegedly turned to union issues, with Ms. Peck asking

whether there was any discussion about bringing a union into Wynn Park, who the

union supporters were and more. This recollection is disputed by Ms. Peck, who

testified that there was no union discussion during her conversation with Elaine

Nielsen on February 25, 2021, and that she did not refer to any residents as problem

residents. Wynn Park takes the position that Ms. Peck and the other Wynn Park

managers were not aware of any union activity before March 2, 2021, which is when

the Rank and File article came out.

Ms. Peck did note that she had a 2^ndmeeting with Ms. Nielsen on March 5, 2021, the

day of the car rally, and that she used the meeting to identify the inaccuracies in the

Rank and File article. She was also apologized for what Ms. Nielsen and the other staff

were going through.

c. Leslie “Joy” MacKenzie

Wynn Park argues Ms. MacKenzie testified about an interaction she had with Ms.

McEwen, which took place on March 4, 2021, while Ms. McEwen was handing out

letters from Wynn Park in advance of the car rally scheduled for the following day.

Ms. MacKenzie stated that she asked Ms. McEwen who could join the union and Ms.

McEwen indicated that LPNs and RNs would not be eligible to join. Ms. McEwen

testified that she advised that she could not discuss the union but that if they had

questions that she would attempt to provide answers.

Wynn Park argues that Ms. McEwen, at all times and specifically during her

conversation with Ms. MacKenzie, did not try to influence people as to how to vote.

With respect to Ms. Peck calling Ms. MacKenzie at home, Wynn Park states that the

reason for calling her was to ensure she was aware of the upcoming vote, as she would

not have received the email notification as she did not have an email address. Ms.

MacKenzie testified that she felt intimidated by the call, as she did not speak to Ms.

Peck on a regular basis.

d. Morgan Macumber

Wynn Park argues Morgan Macumber testified that at one point Ms. Peck spoke with

her and indicated that she knew where Morgan Macumber’s vote was, something that

Ms. Peck denied ever saying. Ms. Peck also testified that she did not try and influence

how Morgan Macumber would vote.

e. Tessa Burns

Wynn Park argues Tessa Burns (“Ms. Burns”) testified that on March 5, 2021, Ms. Peck

met with her and advised that management was installing a box on site for people to

vote yes or no to the union. Ms. Burns was the only one who testified being told that

the box was for union voting. Ms. Peck testified that the purpose of the box, which

she explained to Ms. Burns, was for suggestions from staff. James Moore testified that

the idea for the suggestion box came from the Wynn Park employee relations

committee.

f. Lisa Burris

Wynn Park argues Ms. Burris did not testify. Mr. Rao did testify of his recollections of

the discussion he had with Ms. Burris about her situation and stated that he drafted

ULP 3 based on that discussion. He advised that he sent the draft ULP 3 to Ms. Burris

on April 26, 2021, the day after Ms. Burris provided notice of her resignation from

Wynn Park, but did not receive a response. Despite not being present when the events

involving Ms. Burris occurred, Mr. Rao swore a statutory declaration about the events

as set out in ULP 3. He did not identify the fact that he was relying on his discussion

with Ms. Burris when making the sworn statement.

Wynn Park argues on April 28, 2021, Ms. Burris had a phone call with Ms. Blois, which

was recorded and entered in as evidence through Ms. Blois, and Ms. Burris stated that

on the same day that Mr. Rao swore the statutory declaration in support of ULP 3 she

had a telephone call with him. Ms. Burris stated that when she spoke to Mr. Rao she

advised him that he did not have her permission to file the ULP and told him that the

information contained within the draft he had provided to her was not true. Ms. Burris

also advised that she had asked Mr. Rao to withdraw ULP 3 and attached statutory

declaration.

In his testimony Mr. Rao confirmed that he did not have Ms. Burris’ consent to file

ULP 3 but was of the belief that he did not require it because it was his complaint.

g. Julie White

Wynn Park argues Ms. White is a housekeeper at Wynn Park and testified that she

decided to start the Facebook page “Wynn Park Villa Team” to boost morale among

employees. She confirmed that no one from Wynn Park suggested or instructed her

to create the Facebook page.

Issue 2 - Shalene Rafuse Meeting/Filing Cabinet Lock Removal

[325] Wynn Park argues that Ms. Rafuse alleges that Ms. McEwen, on March 5, 2021, advised

her that supervisors were expected to be on side with management, something that Ms.

McEwen denied stating.

[326] Wynn Park argues there was another meeting, on March 21, 2021, where Ms. McEwen

raised concerns expressed by another colleague about Ms. Rafuse campaigning for the

union at work and messaging employees. Ms. Rafuse testified that the union advised her

that she was allowed to campaign at work. Ms. McEwen testified that while she did not

allow Ms. Rafuse to bring a subordinate to the meeting, she did not influence or attempt

to influence Ms. Rafuse in terms of her support of the union. Ms. McEwen also stated that

she did not see Ms. Rafuse crying.

[327] On March 22, 2021, when Ms. Rafuse was not working, Ms. McEwen had the lock

removed from a filing cabinet and moved to the medication room. Wynn Park had not

assigned the filing cabinet to anyone nor had it authorized a lock to be placed on the filing

cabinet. Ms. Rafuse testified that she kept notes about her conversations with other

employees in the locked filing cabinet, along with personal items. Ms. Rafuse

acknowledged that she was the only employee who had their own filing cabinet and

confirmed that she had placed the lock on herself.

[328] There were supervisor meetings held on March 16 and 17, 2021, chaired by Ms. McEwen.

She raised concerns with staff morale, professionalism and the tension in the building.

She noted that there was whispering occurring in the hallways while staff were to be

attending residents. Ms. Rafuse interpreted the comments about not whispering in the

halls to mean that Ms. McEwen was advising them that she expected them to be anti-

union.

Issue 3 – Elaine Nielsen, Jennifer Beaver and Beverley Waldron Meetings

[329] Wynn Park argues on March 21, 2021, Ms. McEwen has a discussion with Ms. Beaver

about complaints made by other employees about Ms. Beaver contacting them about the

union, allegedly making them feel uneasy, harasses and uncomfortable. Ms. McEwen

stated that she did not influence or attempt to influence Ms. Beaver’s support of the

union.

Issue 4 – March 21, 2021 Union Meeting

[330] Wynn Park argues Ms. Peck testified that she only became aware of the car rally

scheduled for outside of Wynn Park from the internet and did not know what was

planned. As a result she hired security and put up barricades for safety. Ms. Peck said that

she did hear some honking during the rally and that there were reports about the rally on

Global, and in Rank and File, the Chronicle Herald and the Truro News.

[331] Wynn Park argues Mr. Rao testified that car rallies are not organized by the Union very

often in Nova Scotia and he was not aware of one being organized by the Union in front

of a nursing home.

[332] Wynn Park argues with respect to the March 21, 2021, meeting, Rebecca McKay testified

that she attended to ask some questions as she was not familiar with Unions. She was not

allowed to ask a question during the meeting and was taken into the hallway by Mr. Rao,

along with Madison Murphy, and was treated rudely by Mr. Rao in response to her

question about how long negotiations would take. Rebecca McKay also testified that Mr.

Rao questioned Madison Murphy about her mother, Ms. McEwen meeting with 2

employees that date, indicating that those individuals felt harassed and were affected.

Following the meeting, Rebecca McKay wrote to Tracey Pinder (“Ms. Pinder”), who works

for CUPE, and complained about Mr. Rao’s behaviour at the meeting.

Issue 5 - Discipline of Tevin Crawford

[333] With respect to the termination of the employment of Mr. Crawford, Wynn Park asserts

that it was solely for reasons unrelated to union activity or the discussion of union activity.

Wynn Park asserts that it was a combination of disciplinary history; safety infractions such

as leaving the Med Room door open, Med Cart unattended, all on numerous occasions as

seen in Exhibit U-31; failing to assist others in their work; which resulted Mr. Crawford’s

termination. Wynn Park also relies on after the fact information it received advising that

Mr. Crawford had failed to advise Wynn Park, at the time of his being hired, that he had

been terminated by his former employer for the theft of syringes and falsification of an

incident report (Wynn Park Post-Hearing Brief page 6). Lisa Smith, who is the

administrator at Mr. Crawford’s former employer, testified that Mr. Crawford had not yet

been terminated at the time he was interviewing at Wynn Park.

[334] Wynn Park refers to Canadian Union of Public Employees, Local 5124 v Shannex

Incorporated 2014 NSLB 134, for the test for determining whether anti-union animus was

one of the factors in an employee’s termination, noting that the review by the Board in a

situation like this is not about whether the termination was valid in an employment law

context. The four factors to consider, as set out in that case, are:

1. the existence of a pattern of anti-union activity;

2. the extent of the respondent’s knowledge of the existence of a union

activity and of the employee’s involvement in the activity;

3. the manner in which the employee was discharged; and

4. the credibility of the witnesses.

[335] Wynn Park asserts that there is no pattern of anti-union activity, as testified to by Ms.

Peck and others. While there was suggestion by the Union that previous employees (Lucy

Lewis, Connie Doran, Glenda Casey, and Charles Hounsell) may have been terminated due

to their involvement with or interest in union activities, none of them were called to

testify. As such, Wynn Park asserts that an adverse inference against the Union should be

made.

[336] Wynn Park argues Ms. Peck testified that the reason for Mr. Crawford’s termination was

his previous disciplinary history and his failure to follow safety procedures while working.

Ms. Peck stated that she had not heard Mr. Crawford refer to a union or discuss any

intention to join a union prior to terminating Mr. Crawford’s employment.

[337] Wynn Park argues, in terms of the grounds on which Wynn Park relies on for the

termination, there was information provided about previous discipline of Mr. Crawford,

from February 2020, relating to him spending “undue amounts of time” (Wynn Park Post-

Hearing Brief page 7) with another employee while working, and not answering bells,

being on his cellphone and not assisting other staff. He received a verbal warning, which

was confirmed in writing.

[338] Wynn Park argues that, as a result of his previous disciplinary history, and what was

observed on the video, including serious safety infractions that, according to multiple

witnesses constitute a serious offence for a regulated health professional, that it made

the decision to terminate Mr. Crawford’s employment on a without cause basis and was

provided 2 weeks’ pay in lieu of notice. Mr. Crawford’s employment was terminated on

February 26, 2021 (there is reference to the termination being March 26, 202, at page 9,

paragraph 63 of the Wynn Park Post-Hearing Brief. That is assumed to be a typo) and a

letter was sent to him by courier. When it was advised that the letter would not reach

him that day, Ms. McEwen called him and advised him of the termination over the phone,

advising that the letter would provide more detail.

[339] Wynn Park argues that the termination of Mr. Crawford was conveyed to the staff that

reported to him on March 1, 2021, and no information was provided as to the reason for

the termination, other than it was without cause. Wynn Park then states that some

employees indicated after Mr. Crawford’s termination was announced that they had

complaints about Mr. Crawford’s conduct, which Wynn Park requested they put in

writing. Mr. Crawford did not dispute many of these complaints, with the exception of

sending inappropriate text messages, which he denied doing.

[340] Wynn Park argues it was not until ULP 3 was filed by the Union that Wynn Park became

aware of the reason for his termination from his previous employer, namely the theft of

needles and falsifying a report. Mr. Crawford testified that he disclosed the reasons for

his termination from his previous employer during the interview process, but both Ms.

McEwen and Ms. Blois, who were present for the interview, stated that they did not recall

him mentioning anything about a theft of needles or falsification of a report and Ms. Blois

stated that she made no notes about either of those things in the notes she took during

the meeting. There was a dispute about whether Ms. Blois was present for the whole

meeting or not. Ms. Blois testified she was present throughout the interview with Mr.

Crawford.

[341] Wynn Park argues subsequent to Mr. Crawford’s termination, Wynn Park was advised

that Mr. Crawford had provided unauthorized references from his previous employer.

According to the testimony of Lisa Smith, the two individuals who provided references for

Mr. Crawford were not authorized to provide them. The testimony of Lisa Smith provided

some insight into the allegations against Mr. Crawford made by his previous employer.

With respect to the theft of needles, the issue was misappropriation of 5 needles and 5

syringes. The falsifying a report was with respect to an incident with a vial of hydromorph,

which he broke. The theft of needles resulted in Mr. Crawford being off work and under

investigation by his previous employer in April and May 2019, and his employment being

terminated on May 10, 2019, which was 9 days after his interview with Ms. Peck and Ms.

Blois.

[342] Wynn Park argues that Mr. Crawford is not a credible witness and that Ms. Peck and Ms.

McEwen are and that no anti-union animus has been established.

Response to Request for Remedial Certification

[343] Wynn Park argues that there has been no breach of the Act established by the Union. In

the alternative, Wynn Park states that if there has been a breach, remedial certification is

not the appropriate remedy. It relies on Canadian Labour Law, 2^nded. (Thomson Reuters:

Toronto, 1993) by George W. Adams to supports its position (Wynn Park Post-Hearing

Brief – Page 53, Paragraph 355, emphasis added by Wynn Park):

10.13(iii)(i) – Unfair labour practice certificate

The express power to certify in response to an unfair labour practice

exists in many jurisdictions. Generally, the power will be used where an

employer’s unfair labour practice has destroyed the usefulness of a

representation vote to gauge employee support and where there is

adequate support in the bargaining unit for collective bargaining. The

onus lies upon the trade union to establish that remedial certification is

appropriate in the circumstances. Generally, remedial certification has

been seen as extraordinary relief and, subject to legislation directing

otherwise, is only available where no other remedy or combination of

remedies can rectify the situation. (emphasis added)

[344] Wynn Park also references United Food and Commercial Workers, Local 864 v Comeau’s

Sea Foods Limited, (supra) as the source for the preconditions that must be satisfied

before remedial certification can be granted pursuant to section 25(9) of the Act (Wynn

Park Post-Hearing Brief – Page 53, Paragraph 357, emphasis added by Wynn Park):

58. There are four pre-conditions that must be met before the Board can

consider certifying the Union under Section 25(9) [see paragraph 3]

despite its loss of the vote-count:

(i) in the opinion of the Board, the Employer contravened the Act

or the Regulations;

(ii) in the opinion of the Board, such contraventions(s) must be

so significant that the representation vote “does not reflect the

true wishes of the employees” in the “appropriate” bargaining

unit;

(iii) in the opinion of the Board, the Union has as members in

good standing, “not less than” forty per cent of the employees in

the unit determined by the Board to be “appropriate” for

collective bargaining, as of the date of filing of the Application for

certification with the Board; and

(iv) the representative vote was counted and the Union lost.

(emphasis added)

[345] Wynn Park argues that Comeau was an example of egregious behaviour on the part of the

employer, clear evidence of undue influence, including spying and threats, and a drastic

reduction in union support over time, estimated to be 40% overall.

[346] Wynn Park argues with respect to the standard to be applied, Wynn Park refers to White

Point Beach Holdings Ltd. v. U.F.C.W., 1989 1480 (NS SC), which found that an

objective standard applies (emphasis added by Wynn Park):

In the argument before me, a great deal was made of the fact that at the

hearing before the Board, ten, I believe, of the eleven witnesses said

their vote represented their true wishes. However, I do not know if that

can be entirely accepted. If an employee is intimidated so that in the

privacy of a voting booth he cannot express his true wishes, certainly, it

would appear to me, that the intimidation would carry forward on the

witness stand where he had declared his disposition in public, more or

less. The key word, of course, in my opinion, is in a “significant” way. The

only test would have to be somewhat objective, I should think.

The Board’s power to deny the effect of a person’s choice, as expressed

by a secret ballot, should be cautiously exercised. To deny a person’s

wish, as it is clearly stated and expressed by a secret ballet; or for a

tribunal to decide that that person knows not what he is doing; or if it

is the Board’s opinion that a person has been so influenced that he

cannot, even in the privacy of the voting booth express his true opinion,

there should be very compelling evidence. Otherwise, it would seem to

be an arrogant and undemocratic assumption. The essence of the

secret ballot is to give the voter the right to secretly exercise his true

wish.

I am not, however, the judge of that opinion. If I may have found that the

evidence fell short of that heavy burden, it is not my decision in that

respect that rules. This is, as I said before I believe, a judicial review and

not an appeal. (emphasis added)

[347] Wynn Park argues that the granting of remedial certification is a rare order in Nova Scotia

and that it “…evidently requires very compelling evidence that supports an objective

finding that employees have or likely have changed their wishes as a result of the

employer’s conduct/misconduct” (Wynn Park Post-Hearing Brief – Page 56, Paragraph

366).

[348] Wynn Park refers to United Rubber v Michelin Tires (Canada) Limited, 1979 3313

(NS LRB) as well, submitting that it found that “…direct evidence of the impact on

employees was not required, but there needs to be evidence that would suggest to the

Board that employees likely would have changed their votes as a result of the employer’s

conduct” (Wynn Park Post-Hearing Brief – Page 56, Paragraph 367).

[349] In arguing that remedial certification should not be ordered, Wynn Park argues that there

has been no significant contravention of the Act and no evidence tendered to show a

dramatic loss of Union support. It notes that there was no direct evidence tendered to

suggest that management told any employee to vote no or that there were any direct

threats to anyone’s employment if they voted in favour of a union. With respect to Mr.

Crawford’s termination, Wynn Park argues that it took place well in advance of the

Union’s organizing campaign and was completely unrelated to any Union activities. As

such, Wynn Park submits that even if there was a small violation of the Act, it was

“…circumstantial and minor; there was no grand action by the Employer, rather a series

of side conversations that could be interpreted in multiple ways.” (Wynn Park Post-

Hearing Brief – Page 58, Paragraph 373).

[350] In addition, Wynn Park argues that there was only low support for the Union from the

beginning, noting that at the first meeting there were 17 people and 26 present at the

second meeting. In addition, while the vote count was close, it also showed a significant

increase in union support from the 2^ndmeeting. Wynn Park asserts that support for the

Union actually increased over the campaign rather than decreased. Wynn Park notes that

the Union did not put forth any evidence to show that the votes that were cast do not

represent the intentions or wishes of the employees who cast them.

[351] As such, Wynn Park argues that since there was no significant contravention of the Act

and no loss of union support, remedial certification is inappropriate and should not be

granted.

Wynn Park Issues

Issue 1 – Does the Filing of ULPs 3 4 and 5 by the Union constitute an abuse of process?

[352] Wynn Park argues that because the Union failed to advise Wynn Park that there were

additional unfair labour practice complaints that were being prepared during the

negotiation of the Vote Agreement, the unfair labour practice complaints filed after April

20, 2021, constitute an abuse of process. Wynn Park asserts that any issues raised in those

complaints, for events that took place before April 20, 2021, and that the Union was

aware of at the time of entering into the Vote Agreement, Exhibit R-15, should be barred.

Wynn Park relies on Nichols v. Purdy, 2021 NSSC 30 (), and states that abuse of

process is a flexible doctrine and is applicable in this situation because (Wynn Park Post-

Hearing Brief – Page 24, Paragraph 198):

…(a) CUPE has ample opportunity to advance the allegations in the

complaints in their previous ULPs (1867 & 1869), and chose not to do so;

and (b) CUPE drafted and subsequently entered into the Vote

Agreement, which contemplated only the two pending ULPs and

subsequent courses of action pending the outcome of the certification

vote count….

[353] Wynn Park argues that as a result of the Vote Agreement being put before this Board

during a Case Management Conference and the process of this matter being altered from

the normal course as a result of the Vote Agreement, namely the delay of hearing ULP 1

and 2 until after the counting of the vote, allowing the additional complaints to be

determined would cause Wynn Park to be significantly prejudiced.

[354] Wynn Park further argues, referencing Toronto (City) v. CUPE, Local 79, 2003 SCC 63, that

allowing ULPs 3 4 and 5 would “…undermine the integrity of the Board and flout misuse

of the Board’s procedure” (Wynn Park Post-Hearing Brief – Page 24, Paragraph 201).

Wynn Park asserts that that allowing those complaints to be heard would:

(a)

create a multiplicity of proceedings which could and should have

been raised prior to the Union’s signing of the Agreement;

(b)

(c)

be manifestly unfair to the Employer;

undermine the principle of settlement, having had two

sophisticated parties comes to a formal Vote Agreement within a legal

process before this Board; and

(d)

Disincentive such resolutions in the future.

Issue 2 – Did the Union waive their right to file further unfair labour practice complaints

following entering into the Vote Agreement?

[355] Wynn Park argues that by entering in the Vote Agreement on April 20, 2021, the Union

waived its right to file additional unfair labour practice complaints based on facts that it

was aware of prior to April 20, 2021. By failing to disclose its intention to file additional

unfair labour practice complaints while negotiating the Vote Agreement, Wynn Park

claims that the Union treated Wynn Park unfairly and caused it significant prejudice.

Wynn Park acknowledges that some of the events referred to in ULP 3 4 and 5 may have

occurred after the signing of the Vote Agreement, but the majority took place before that

date.

[356] Wynn Park refers to Canadian Labour Arbitration, 5^thedition, by Donald Brown and David

Beatty when addressing the issue of a waiver of rights, which notes that the party

providing the waiver should be aware of their waiving of the right and must have the

intention to waive the right. There is also reference to G C Lobster Ltd. v. B Atkinson Boat

Builders Limited, 2019 NSSC 342, a recent Nova Scotia case that confirms the two part

test for determining whether a waiver exists, specifically (Wynn Park Post-Hearing, Page

27, Paragraph 213):

…whether CUPE possessed full knowledge of their right to file additional

ULPs relating to circumstances arising prior to the Vote Agreement, and

whether CUPE demonstrated an unequivocal and conscious intention to

abandon that right

[357] Wynn Park argues that Bradfield v. Royal Sun Alliance Insurance Company of Canada 2019

ONCA 800, sets out the principle that knowledge of the right can be inferred from

conduct, but that the conduct must show an unequivocal intention to waive the right.

Wynn Park argues that the Union was fully aware of its right to file additional unfair labour

practice complaints prior to the signing of the Vote Agreement.

[358] Wynn Park argues with respect to the intention to waive, Wynn Park relies on

Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co. 1994 CarswellAlta 769,

[1994] 2 S.C.R 490, and takes the position that the intention can be demonstrated by

conscious action, such an express statement, or inferred by conduct. Wynn Park

acknowledges that Bruce Power LP and Society of Energy Professionals (BRPW-2016-

2555), Re 2017 CarswellOnt 20291, sets the threshold for finding that a party has waived

substantive rights in the labour context is higher than in other circumstances.

[359] Wynn Park argues that the Vote Agreement includes an expression by the Union to waive

its right to file additional unfair labour practice complaints, referring specifically to the

reference to “…other remedies in the complaints.” (Wynn Park Post-Hearing, Page 29,

Paragraph 222 – Emphasis added by Wynn Park). Wynn Park’s position is that the Vote

Agreement refers only to the complaints in existence at the time and “does not

contemplate additional claims pertaining to the timeframe preceding the Vote

Agreement.” (Wynn Park Post-Hearing, Page 29, Paragraph 222). Wynn Park further

notes, in support of its position, that the Union showed additional intention to waive its

right to file additional unfair labour practice complaints by proceeding with the counting

of the votes.

[360] Wynn Park argues that the facts in CUPE, Local 488 and Newfoundland and Labrador, Re

2017 CarswellNfld 516, were similar to the situation in this matter, and Wynn Park

submitted that the findings of that hearing should apply here, namely that the signing of

the Vote Agreement (in this matter) should be viewed as a ”fresh step” by the Union and

is sufficient evidence to find that the Union has waived its right to file subsequent unfair

labour practice complaints. As such, Wynn Park argues that ULPs 3 4 and 5 should be

dismissed.

Issue 3 – Should the statutory declaration filed and sworn by Govind Rao with ULP 3 be thrown

out?

[361] Wynn Park argues that the statutory declaration filed by Mr. Rao (Exhibit LB1882 –

Appendix A) should be thrown out on the basis that it is a fraudulent statutory declaration

and the statutory declaration signed by Mr. Rao and Mr. Crawford (Exhibit LB1882 –

Appendix A) contains false statements and unacknowledged hearsay.

[362] Wynn Park refers to both the Interpretation Act R.S.N.S. 1989, c.235 and the Canada

Evidence Act RSC 1985, c. C-5 and states that “…a statutory declaration is a solemn

declaration stating a, or a set of, facts which are conscientiously believed to be true by

the person making and signing the declaration.” (Wynn Park Post-Hearing Brief – Page 30,

Paragraph 228).

[363] Wynn Park argues that a fraudulent statutory declaration should be withdrawn on the

basis that it is an act of fraud against the Board, and relies on Retail Clerks International

Association v. Dominion Stores Limited 1975 1702 (NS LRB) and United Brotherhood

of Carpenters & Joiners of America, Local 83 v Impact Contracting 1987 7913 (NS

LRB).

[364] The evidence on which Wynn Park relies to ground their assertion that the statutory

declaration by Mr. Rao is fraudulent is the testimony of Ms. Blois and specifically her

conversation with Ms. Burris, which was recorded and submitted as an exhibit (Exhibit

R1, Tabs 1 and 2). In the recording, Ms. Burris states that at least parts of the statutory

declaration (which she refers to as an affidavit) contains incorrect information. She also

states that Mr. Rao did not have her permission to file the statutory information.

[365] Wynn Park argues with respect to whether Mr. Rao was aware that the information in the

statutory declaration was incorrect, Wynn Park notes that Mr. Rao filed the document

without receiving a response to his email to Ms. Burris and after filing he was informed

by Ms. Burris that it was incorrect but made no effort to withdraw or amend the

document.

[366] Wynn Park argues Mr. Rao confirmed in his testimony that he read both the jurat before

signing and that he did not indicate in the statutory declaration where he was relying on

information provided to him by someone else. Mr. Rao also acknowledged that Ms. Burris

asked him if the statutory declaration could be withdrawn and refused to do so, and that

he did not have Ms. Burris’ consent to file the statutory declaration.

[367] Wynn Park points out that the Union also had Mr. Crawford swear to the statutory

declaration, and asks that an adverse inference be drawn due to the fact that the Union

subpoenaed Ms. Burris but did not call her to testify. It also submits that it was incumbent

on the Union to withdraw the statutory declaration once it became aware that there were

inaccuracies.

[368] In addition to the issue of inaccuracies within the statutory declaration and Ms. Burris’

assertion that she did not consent to the filing of the document, Wynn Park raises the

issue of unacknowledged hearsay within the statutory declaration. It relies on Waverley

(Village) v. Nova Scotia (Acting Minister of Municipal Affairs) 1993 NSSC 71, which sets

out the principles to be followed when preparing and filing an affidavit. Wynn Park argues

that statements in the declaration which are hearsay, or double hearsay when they

involve statements alleged to have been made to Ms. Burris, are improper because Mr.

Rao did not disclose that the information was hearsay. It also notes that there is no

statement by Mr. Rao or Mr. Crawford about whether they believed the information

received from Ms. Burris.

[369] Wynn Park argues that Mr. Rao knew what he had filed was not accurate, and knew his

actions in filing the statutory declaration was not honest. It calls into question his

credibility as a witness due to his actions surrounding the statutory declaration and their

belief of his experience and knowledge about statutory declarations and these types of

applications. To support their position on that point, Wynn Park relies on Teamsters,

Chauffeurs, Warehousemen and Helpers, Local 880 v. Tecumseh (Town) (Bialkowski

Grievance) [2004] OLAA No 5050. As such, Wynn Park requests that Mr. Rao’s other

statutory declarations be questioned and be given little weight, and even that “…any

originating documents (pleadings) filed by Mr. Rao should be dismissed/thrown out.”

Issue 4 – Did the Union breach the Nova Scotia Human Rights Act by differentially treating

employees who are family members of management of the Employer?

[370] Wynn Park argues that the Union engaged in discrimination contrary to the Human Rights

Act RSNS 1989, c. 214, at the March 21, 2021, meeting through the actions of its

employee, Mr. Rao, by treating individuals who are related to members of management

at Wynn Park, specifically Madison Murphy, differently than other Wynn Park employees.

Wynn Park refers to Ms. McKay’s testimony where she describes Mr. Rao treating

Madison Murphy aggressively and his assumption that she was anti-union due to her

mother/daughter relationship with Ms. McEwen. Wynn Park submits that the differential

treatment, based on her family status, “…whether intentional or not, would have an

impact on an individual’s decision as to whether or not they wish to join a trade union.”

(Wynn Park Post-Hearing Brief – Page 34, Paragraph 254).

[371] Wynn Park argues that, despite what it asserts is the Union’s “…heavy emphasis on

attracting attention to various familial relationships in the facility, primarily parent-child”

(Wynn Park Post-Hearing Brief – Page 34, Paragraph 251) it would be “…inappropriate for

the Board to imply anything based on parent-child relationships within the Employer’s

operation.” (Wynn Park Post-Hearing Brief – Page 35, Paragraph 256).

Issue 5 – Should an adverse inference be drawn against the Union for failure to call Lisa Burris

as a witness?

[372] Wynn Park argues that the Board should draw an adverse inference as against the Union

for its failure to call Ms. Burris as a witness and relies on Canadian Labour Arbitration, 5^th

edition, by Donald Brown and David Beatty (Wynn Park Post-Hearing Brief – Page 35,

Paragraph 257, emphasis added by Wynn Park):

Arbitrators generally have adopted the same view as the civil courts with

regard to the conclusions to be drawn from the failure of a person to be

called as a witness who could have been called and who could have given

evidence of matters within his knowledge. Thus, where a party can, by

his own testimony, throw light on a matter and failure to do so, an

arbitrator is entitled to infer that such evidence would not have

supported his position. As well, failure to call a witness who is available

to be called, where the evidence is material, can lead to the same

inference being drawn and the uncontradicted evidence by the other

party accepted. Moreover, where a witness’s testimony is only rebutted

by hearsay evidence when it could have been directly met, the arbitrator

may accept the less-than-satisfactory direct evidence. (emphasis added)

[373] Wynn Park also refers to CUPE, Local 1259 and Whitehills Long Term Care Centre Ltd.

(Ford), Re 2018 CarswellNS 1013, which states:

113 […] As a result, it is only appropriate to apply an adverse inference in

a case where a party has called evidence, but has omitted to call a

material witness whose role in the proceedings was such that one would

expect him or her to be called. In the absence of any other explanation

for his or her lack of attendance one might drawn [sic] the adverse

inference that the witness would not help the party’s case.

[374] Wynn Park argues that, as Ms. Burris’ personal experiences form the basis of ULP 3, she

would be considered a material witness. It notes that the individuals whose experiences

formed the basis of the other unfair labour practice complaints were all called as

witnesses. Wynn Park argues that the Union’s decision not to call Ms. Burris is indicative

that she would not have been beneficial to the Union and thus the Board should draw an

adverse inference as a result.

Issue 6 – Are the Union’s unfair labour practice complaints substantiated?

[375] Wynn Park argues that the Union, in order to prove a violation of sections 53(1), (3) and

58(1) of the Act, must prove “actual interference” (Wynn Park Post-Hearing Brief – Page

36, Paragraph 261). It relies on Amalgamated Transit Union Local 508 v Zinck’s Bus

Company Limited NSLRB Decision 4137, arguing that the Board in that decision held that

in some instances “…it was appropriate and necessary for a union to adduce proof of

actual interference before the Board would sanction an employer.” (Wynn Park Post-

Hearing Brief – Page 36, Paragraph 261). In IUOE, Local 721 B and National Gypsum

(Canada) Ltd., Re 2018 CarswellNS 270, the Board in that matter found that actual

inference was required for a breach of the Act and in United Rubber, Cork, Linoleum, and

Plastic Workers of America, Local 1028 and Michelin Tires Limited 1979 CarswellNS 243,

the interpretation of actual interference was that it required a positive act by the

employer.

[376] Wynn Park noted that the Union had made the argument that there had been a breach

of Section 58(1) of the Act by Wynn Park, but argued that section 58(2) of the Act allows

for an expression of viewpoints by the employer, “…so long as they do seek to coerce,

threaten, intimidate, or engage in undue influence:” (Note: It is presumed this is a typo

and that the sentence is supposed to have the word “not” between do and seek, Wynn

Park Post-Hearing Brief – Page 38, Paragraph 266).

[377] With respect to the rights of the employer to have direct communications with its

employees, Wynn Park relies on Sedpex Inc (1988), 72 di 148, as quoted in Air Canada

2001 CIRB 131 () (Wynn Park Post-Hearing Brief – Page 39, Paragraph 268):

...

In short, if an employer speaks the truth, and does so moderately and

rationally, exercising appropriate recognition of the legitimacy and role

of the bargaining agent, the communication will probably be judged to

be within the realm of permissibility. Where the communication does not

distort the truth or mislead, sets out a reasonably fair and accurate

summary of the situation, does not denigrate the union or have the

purpose and effect of undermining its efforts to represent its people, it

can be considered to be outside the prohibition of section 184(1)(a).

[378] Wynn Park argues that all the evidence that has been tendered demonstrates that Wynn

Park’s actions have been consistent with these principles (Wynn Park Post-Hearing Brief

– Page 39, Paragraph 269):

…There has been no threatening or coercive conduct, no misleading

information, selling pitch or attempt to denigrate this union. All

communications have been based in fact, moderate and fair. In short, it

is the Respondent’s position that the facts do not support a finding of

any improper communications by the Respondent…

[379] Wynn Park also argues that there has been no evidence of actual interference, such as a

dramatic loss of support in union membership or other negative effects.

[380] With respect to credibility, Wynn Park argues that Faryna v. Corny [1951] B.C.J. No. 152

sets the standard for the assessment credibility, noting that the legal test set out in that

case has been applied in Nova Scotia in R. v. D.D.S [2006] N.S.J. No. 103 and in Nova Scotia

Teachers Union v. Nova Scotia Community College [2006] N.S.J. No. 64 . Wynn Park argues

that Mr. Crawford, Mr. Rao and Ms. Vaughan are not credible and submits that their

testimony “…should not be relied upon or, in the alternative, carry very little weight.”

(Wynn Park Post-Hearing Brief – Page 41, Paragraph 277).

ULP 1 (LB-1867) and ULP 2 (LB-1869)

[381] Wynn Park argues that on February 24, 2021, a meeting took place between Ms. Peck,

Ms. Blois and Mr. Crawford, with other individuals (Ms. Beaver, Ms. Nielsen and Ms.

Waldron) involved with the discussions on an occasional basis, regarding the nurses’

station on the East Unit. Mr. Crawford asserted in testimony that he made reference to a

union and not having to deal with safety issues if there was a union during the meeting.

Ms. Peck and Ms. Blois testified that there was no mention of a union or a union negating

the need for the discussion by Mr. Crawford or anyone else. The other people present

nearby did not hear all of the conversation but confirmed that they did not hear a

reference to a union during the time they could hear what was being said.

[382] Wynn Park argues while there was discussion about options for the nurses’ station, no

agreement was reached. Wynn Park then had Ms. Peck review CCTV footage of the

nurses’ station to confirm the safety issues. During that review Ms. Peck testified that she

found numerous examples of Mr. Crawford leaving the medication room door open while

not seated at the nurses station and not assisting other staff with their work, among other

issues. Mr. Crawford acknowledged that he may have left the Med Room door open while

he was working, which is, according to Ms. McEwen, a serious safety infraction.

[383] Wynn Park argued with respect to the credibility of Mr. Crawford, claiming that he had

lied about why he was no longer an employee of his previous employer; had provided

references who were not authorized to provide a reference for him and would not have

been in a position to have witnessed his abilities at work; did not accurately recollect the

circumstances leading up to his employment at Wynn Park; and he admitted that

paragraph 4 of his affidavit was inaccurate, something that he had not taken any steps to

address. Another issue raised by Wynn Park with respect to Mr. Crawford’s credibility

were the video tapes of him committing safety infractions while at work. It was noted

that the reason for reviewing the tapes was, in part, due to Mr. Crawford’s complaint that

residents were getting into the nurses’ station. However, Mr. Crawford was seen inviting

residents into the nurses’ station, the situation he himself was complaining about. Wynn

Park submits that is further evidence that Mr. Crawford lacks credibility. There was also

reference to Mr. Crawford admitting that he may have left the medication room door

open when in fact he was caught on video tape doing it 14 times overs 2 night shifts.

Other points raised were Mr. Crawford’s denial that he called a colleague “hot” while

admitting that he posted a flame emoji on one of her photos and arguing that it could be

interpreted as “hot”.

[384] Due to the issues with Mr. Crawford’s credibility, Wynn Park argues that the testimony of

Ms. Peck and Ms. Blois about what took place at the February 24, 2021, should be

preferred to his.

February 25, 2021 Interaction

[385] Wynn Park argues that the testimony of Ms. Peck, which asserted that she did not follow

Ms. Nielsen around the unit and that she did not discuss union organizing or activities,

should be preferred to Ms. Nielsen. They base this assertion on the fact that, according

to Ms. Peck, she was not even aware that there was discussion of forming a union until

March 3, 2021, and therefore would have had no reason to raise the issue with Ms.

Nielsen on February 25, 2021. Wynn Park asserts that the discussion was simply part of

the regular course of business at the home.

February 26, 2021 Termination of Tevin Crawford

[386] Wynn Park argues that this matter was addressed above, under the Union’s Issue 5.

Employer Communiques

[387] Wynn Park argues that there was nothing inappropriate in the 3 communiques that they

issued and note that the Union did not argue that there was. Ms. Peck testified that all of

her discussions with staff were consistent with the messaging in the communiques.

March 4, 2021 Interaction Between Ms. McEwen and Leslie “Joy” MacKenzie

[388] Wynn Park argues that the testimony of Ms. McEwen should be preferred over that of

Ms. MacKenzie due to her recall of what took place and the reasonableness of her

providing the paper copy of the communique given Ms. MacKenzie does not have an

email address. In addition, Ms. MacKenzie admitted under oath that paragraph 6 of her

affidavit, which alleged that Ms. McEwen spoke of a union drive being underway, was

inaccurate and that Ms. McEwen never stated that a union drive was underway. As such,

Wynn Park argues that Ms. McEwen testimony of her response to Ms. MacKenzie’s

inquiry about whether all staff could join the union, namely that she was not sure who

were excluded, should be preferred over Ms. MacKenzie’s testimony that Ms. McEwen

stated that RNs and LPNs would not be allowed to join, on the basis of Ms. McEwen

credibility and her recall of events.

March 22, 2021 Phone Call Leslie “Joy” MacKenzie and Ms. Peck

[389] Wynn Park argues Ms. Peck testified that she received notice from the Labour Board on

March 22, 2021 that there was a vote scheduled for the Friday of that week. As Ms.

MacKenzie was on vacation, Ms. Peck stated that she contacted her by phone to advise

her of the vote and encourage her to vote.

[390] Wynn Park argues Ms. MacKenzie’s position was that, as she did not communicate with

Ms. Peck very often, the phone call was intimidating. Wynn Park takes the position that

her impression was not reasonable, nor is it sufficient to ground a claim of undue

influence or management trying to pressure her to vote one way or another.

Jennifer Beaver Not a Known Union Supporter

[391] Wynn Park argues that no one in management was aware that Ms. Beaver was a union

supporter.

March 21 Meetings Between Ms. McEwen, Ms. Rafuse, and Ms. Beaver

[392] During the hearing, there was multiple references to Ms. Rafuse and Ms. Beaver assisting

with the union organizing drive. Wynn Park argues Ms. McEwen testified that she

received a number of complaints from other employees about alleged harassment from

Ms. Rafuse and Ms. Beaver regarding union activity. As such, Ms. McEwen called a

meeting with both of them on March 21, 2021, which Wynn Park argues were normal

business meetings in the course of the business of the home. Ms. McEwen testified that

she advised Ms. Rafuse and Ms. Beaver about the complaints from other employees

feeling uneasy, harassed, and uncomfortable and told them to stop conducting union

drive communication during business hours, which Wynn Park states was her right under

the Act. Ms. McEwen states that she did not issue any discipline to either Ms. Rafuse or

Ms. Beaver and her actions were for the purpose of “managing inappropriate conduct in

the workplace” (Wynn Park Post-Hearing Brief – Page 48, Paragraph 315) and was not for

the purposes, not could it be construed, that she was intending to influences or intimidate

either employee.

Filing Cabinet

[393] Wynn Park argues that it was within its right to remove the lock from the filing cabinet

that had been placed there by Ms. Rafuse without permission. The lock was removed in

order to place the files in another location for the purposes of an upcoming audit and was

not related in any way to union issues. Wynn Park argues that there is no basis for Ms.

Rafuse to form the impression or assumption that the removal was for anti-union

purposes.

ULP 3 (LB-1882)

[394] Wynn Park argues that ULP 3 should be thrown out on the basis of Mr. Rao’s credibility,

as referred to above. In the alternative, an adverse inference should be made about

statements involving Ms. Burris due to the issues outlined above regarding Mr. Rao’s

signing of the statutory declaration and Ms. Burris’ lack of consent for the complaint to

be filed.

April 21, 2021 Meeting Between Mr. Thody and Ms. Burris

[395] There is agreement that a meeting took place between Mr. Thody and Ms. Burris on April

21, 2021. Wynn Park argues that Mr. Thody’s evidence of what took place during the

meeting should be accepted as Mr. Thody had taken contemporaneous notes, had a detail

recollection of the event and Ms. Burris was not called to testify to respond to Mr. Thody’s

evidence. Wynn Park argues that any information provided about what Ms. Burris recalled

about the meeting should be treated as hearsay and be given no weight.

[396] As such, Wynn Park argues that the evidence is that the meeting was business related, in

no way related to the Union and occurred well after the Union vote took place.

March 19, 2021 Housekeeping and Dietary Staff Meetings

[397] Wynn Park argues that the meetings held by Mr. Thody were regular staff meetings and

had nothing to do with the Union, as shown by the topics that were covered. It was

acknowledged that a question was asked about the process for voting and the risk of

losing a pension by Zoe Lindsay (“Ms. Lindsay”), which Mr. Thody referred to Ms. Peck.

Both Ms. Peck and Ms. Lindsay testified that Ms. Peck responded to the questions,

specifically that Ms. Lindsay would not lose her pension under a union. Ms. Lindsay also

confirmed that during the meeting Mr. Thody encouraged everyone to vote and did not

influence people to vote one way or another.

March 1, 2021 Meeting Between Ms. McEwen, Ms. Nielsen, Ms. Beaver, and Ms. Waldron

[398] Wynn Park argues while Ms. Nielsen, Ms. Beaver and Ms. Waldron testified that Ms.

McEwen made a comment about the room being bugged and claimed that she was forced

to sign Mr. Crawford’s termination letter, Ms. McEwen denies saying any of those things.

She testified that she met with the 3 employees, as they had reported to Mr. Crawford,

to advise them that Mr. Crawford was no longer an employee of Wynn Park. In response

to questions about why, she advised that she could not answer them due to privacy

reasons. Wynn Park submits that Ms. McEwen is a credible witness and the similarities in

the recollection of the 3 employees suggest collusion. There is also reference to the fact

that Mr. Rao allegedly crafted the majority of their affidavits, which it contends further

supports the theory of collusion.

ULP 4 (LB-1909)

[399] Wynn Park argues that Ms. Cameron’s testimony is hearsay evidence and therefore

should be given no weight.

[400] With respect to Ms. Macumber’s allegation that Ms. Peck told her that “…she wanted her

to be there for the vote and that she knew “where her vote was” (Wynn Park Post-Hearing

Brief – Page 51, Paragraph 340) Wynn Park notes that Ms. Peck denied making any such

statement and argues that Ms. Peck’s evidence should be preferred over Ms.

Macumber’s.

ULP 5 (LB-1910)

Allegations that Employees Told They had to Support Management

[401] Wynn Park argues Ms. Rafuse alleges that Ms. Peck stated that because Ms. Rafuse was

a supervisor she was not allowed to join the Union, something that Ms. Peck denies. Wynn

Park asserts that Ms. Peck’s evidence should be preferred over Ms. Rafuse on the basis of

credibility.

[402] Wynn Park argues that any allegations relating to Danielle MacCallum (“Ms. MacCallum”)

should be thrown on the basis that they are hearsay and the Union chose not to call Ms.

MacCallum to testify. In the alternative, if the allegations are considered by the Board, an

adverse inference should be drawn in relation to the Union’s decision not to call Ms.

MacCallum.

March 16 Supervisors’ Meeting with Teresa McEwen

[403] Wynn Park argues that the meetings with supervisors that were held on March 16 and

17^thby Ms. McEwen were carried out in the normal course of business and had nothing

to do with Union activities. Ms. McEwen testified that she discussed concerns that had

been brought forward about whispering in the halls and reminded people of the need to

act professionally and in the best interests of the residents at all times. She also asked

about how management could help boost morale, as there was a great deal of tension

due to the rise of two different camps within the home (union and non-union). Ms.

McEwen testified that at no time did she attempt to influence people on how to vote. In

response to Ms. Rafuse’s testimony that she interpreted Ms. McEwen’s comments about

whispering in the halls as a caution that Ms. McEwen expected the people at the meeting

to be anti-union, Wynn Park submits “…Such an interpretation is clearly not reasonable

in the context of the meeting as a whole and is subjective to Ms. Rafuse.” (Wynn Park

Post-Hearing Brief – Page 52, Paragraph 348).

March 16 Meeting Ms. Peck and Ms. Vaughan

[404] Wynn Park argues that, in relation to the meeting between Ms. Peck and Ms. Vaughan,

that the testimony of Ms. Peck should be preferred. Wynn Park relies, in part, on the

alleged theft of Band-Aid’s by Ms. Vaughan that was shown on video and Ms. Vaughan’s

explanation for why she placed the Band-Aid’s in her purse, for its position that Ms.

Vaughan has reduced credibility. Wynn Park alleges that the evidence shows that Ms.

Vaughan committed theft against her employer and lied at the hearing.

CUPE Organizing Campaign

[405] Wynn Park argues that the organizing campaign undertaken by the Union was

“…aggressive and extremely disruptive to the workplace” (Wynn Park Post-Hearing Brief

– Page 52, Paragraph 351) which resulted in a division within the home between pro-

union and non-union employees. Wynn Park notes that Mr. Rao admitted that having a

rally does not normally happen in Nova Scotia and he was not aware of any examples of

it taking place in front of a nursing home before. He also acknowledged that it was unusual

to start a campaign by way of an article in Rank and File, but conceded that the article

was a campaign tool.

Issue 7 – Did the Union Breach section 54(d) of the Act by Organizing during paid breaks?

[406] Wynn Park argues that Ms. Rafuse was outside the bounds of acceptable behaviour by

carrying on organizing activities during paid breaks at the home. Mr. Rao testified that it

was his understanding that employees are allowed to campaign for the Union while on

paid breaks. Wynn Park relies on Section 54 of the Act, which states:

(d) except with the consent of the employer of an employee, attempt, at

an employee’s place of employment during the working hours of the

employee, to persuade the employee to become, to refrain from

becoming or to cease to be a member of a trade union;

[407] Wynn Park argues that International Brotherhood of Painters and Allied Trades, Local

1439 and Kidston Glass Company Limited 1990 11786 (NS LRB), states that a

business agent “…and those whom he may enlist as agents to organize works, knows or

must be taken to know the rules – to know the law.” (Wynn Park Post-Hearing Brief –

Page 48, Paragraph 318). Wynn Park’s position is that when employees are on paid breaks

they are on standby and must be prepared to respond to resident’s needs at all times.

Further, it states that the needs of the residents would be undermined if employees are

distracted by organizing activities during paid breaks.

[408] Wynn Park argues further, organizers were approaching employees while they were on

shift, without the consent of the employer, which is required under the Act.

Issue 8 – In the event the Union’s unfair labour practice complaints are substantiated, is

remedial certification appropriate?

[409] Wynn Park argues that it addressed this issue at pages 53 to 58 of its Post-Hearing Brief

and the main points of its argument are outlined above, in its response to the Union’s

argument for Remedial Certification.

Issue 9 – Reply to Union submissions not already addressed

Facebook

[410] Wynn Park denies that Facebook was used by management to influence anyone with

respect on how to vote, noting that there was no evidence tendered about any posts on

the Wynn Park Facebook page that was opposed to the Union. Ms. White testified that

she created the Wynn Park Villa Team Facebook page of her own volition, with no

interference from management, with the intention to improve morale. She pointed out

that the posts are neither pro nor anti-union and simply encourage people to cast their

vote.

[411] With respect to management liking posts on Ms. White’s Facebook page, namely a post

encouraging people to go out and vote, Wynn Park argues that there is nothing for or

against the Union in that post and liking the post is well within the rights of an employer,

as set out in section 58(2) of the Act.

[412] Wynn Park argues Ms. Peck’s post on her personal Facebook page, which was posted after

the vote, is, according to Wynn Park, irrelevant to this matter. Ms. Peck testified that it

was in relation to a personal family matter and unrelated to Wynn Park. Wynn Park also

noted that there was nothing in the post that was anti-union in nature. As for the fact that

Megan Murphy liked the post, it is not surprising as she is soon to be a member of Ms.

Peck’s family and would be aware of her personal situation.

Commencement of Employment; Workplace Messages

[413] Wynn Park contests the allegations by the Union that there is a history of anti-union

sentiment by management, noting that all the information tendered to support the

allegations was hearsay and/or based on a witness’ subjective opinion. It also does not

accept the claims that there were previously signs up that were anti-union in nature,

noting that no signs were entered into evidence and none of the management witnesses

could recall seeing any signs.

[414] Wynn Park disputes the Union’s conclusion that Ms. Peck being surprised that Ms. Rafuse

was a union supporter means that she was keeping track of who was in support or not.

Wynn Park also disagrees with a variety of other allegations put forward by the Union,

including that Ms. McEwen told Ms. Rafuse that she could not be in a union and that Ms.

Peck asked Ms. MacKenzie if she attended the Union meeting. Wynn Park asserts that any

alleged ”chill” that Mr. Crawford’s termination may have had on the employees was due

to the actions of Mr. Crawford, including publishing the Rank and File article with

inaccuracies.

Pizza Party

[415] Wynn Park states that the decision to host the pizza party was taken well in advance of

the date being set for the vote and that changing the date could have been viewed as

management taking away a benefit, something that Wynn Park believes could have

triggered a unfair labour practice complaint. It also notes that Ms. Beaver, a supporter of

the Union, brought in baked goods on the same day.

Issue 10 – In the event the Union is unsuccessful in their unfair labour practice complaints, what

is the appropriate time bar?

[416] Wynn Park’s position is that if the ULP’s are dismissed, this Board is required to set the

period of time the Union must wait before making a new application for certification.

Wynn Park suggests that the Board should make an order for a 12-month bar, pursuant

to section 25(16) of the Act. It acknowledges that 12 months is greater than the normal

3-month time-bar normally imposed and refers to United Brotherhood of Carpenters and

Joiners of America, Millwrights and Machine Eretors, Local 1178 v Atlantic Mining NS Corp

2018 NSLB 168 (), for the principle that fault forms part of the assessment for

determining the time bar to be imposed. In National Automobile, Aerospace,

Transportation and General Workers Union of Canada (CAW-CANADA) v Michelin North

America (Canada) Inc. 1999 33047 (NS LRB), the Board imposed a 12 month time

bar, in a situation where the union had made 5 certification attempts. Wynn Park further

notes that 12 months was imposed in National Automobile, Aerospace, Transportation

and General Workers Union of Canada (CAW-CANADA) v Michelin Tires North America

(Canada) Ltd. 1995 17219 (NS LRB). Wynn Park submits that 12 months should be

ordered in this matter due to (Wynn Park Post-Hearing Brief – Page 62, Paragraph 399):

(a)

(b)

A tumultuous organizing campaign conducted by the Union;

Media scrunity of the organizing campaign by the Chronicle

Herald and Rank and File, which have impacted staff recruitment;

Negative workplace morale, which has impacted teamwork; and

Negative impact on residents due to low staff morale.

Wynn Park argues that the above-noted behaviour justifies a

time bar in excess of 3 months and that 12 months will provide

sufficient time for workplace relationships to be rebuilt and

morale to improve.

c)

(d)

Decision With Reasons

[417] The Board has carefully reviewed all of the exhibits tendered, heard the testimony of the

witnesses, and arguments of counsel, including their briefs and closing arguments which

form part of the record. The Board notes that in its Decision with Reasons that it may not

refer to each and every exhibit tendered or each witness’s testimony in any specific detail

or distinguish any authorities that may have been cited. However, the Board had carefully

considered all the evidence, arguments and authorities cited by counsel.

Credibility

[418] Counsel for both parties acknowledged that credibility of the witnesses is of paramount

importance. The main criteria for determining credibility of witnesses, which both parties

acknowledged, are set out in the case of Faryna v. Chorny [1951] B.C.J. No. 152 (BCCA):

If a trial Judge's finding of credibility is to depend solely on which person

he thinks made the better appearance of sincerity in the witness box, we

are left with a purely arbitrary finding and justice would then depend

upon the best actors in the witness box. On reflection it becomes almost

axiomatic that the appearance of telling the truth is but one of the

elements that enter into the credibility of the evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and

memory, ability to describe clearly what he has seen and heard, as well

as other factors, combine to produce what is called credibility, and cf.

Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p.

460, 17 O.W.N. 295….

The credibility of interested witnesses, particularly in cases of conflict of

evidence, cannot be gauged solely by the test of whether the personal

demeanour of the particular witness carried conviction of the truth. The

test must reasonably subject his story to an examination of its

consistency with the probabilities that surround the currently existing

conditions. In short, the real test of the truth of the story of a witness in

such a case must be its harmony with the preponderance of the

probabilities which a practical and informed person would readily

recognize as reasonable in that place and in those conditions….

[419] The Board finds that an additional relevant case, dealing with the issue of assessing

credibility, is Nova Scotia Teachers Union v. Nova Scotia Community College [2006] N.S.J

64 (NSCA):

[38] There is nothing wrong with an arbitrator believing one witness and

disbelieving another. What the arbitrator should do, as stated in Farnya,

is make a finding in harmony with the preponderance of probabilities

overall, a finding based “not on one element only to the exclusion of

others, but based on all the elements” of the evidence by which it can be

tested. The arbitrator did this. He assessed the complainant’s testimony,

and the testimony of third party witnesses, which on balance he found

to support the complainant’s version. He assessed the grievor’s evidence

independently of the complainant’s testimony and questioned his

credibility. Based on all this evidence, the arbitrator made his finding.

[420] The Board further acknowledges, in Teamsters, Chauffeurs, Warehousemen and Helpers,

Local 880 v. Tecumseh (Town) (Bialkowski Grievance) [2004] O.L.A.A. No. 505, the

arbitration board reviewed the law as set out in Faryna:

18 There is no hard and fast rule. But obviously, a lack of candour

in one testimonial area may cast doubt on other aspects of the

witnesses’ evidence, and may reflect upon his general credibility.

A witness who is not candid, runs the risk that the totality of his

evidence will be disbelieved.

[421] Wynn Park argues that Mr. Crawford, Mr. Rao and Ms. Vaughan are not credible

witnesses. The Union generally submits that most of the Wynn Park witnesses are not

credible.

Board Findings on Union Issues

Issue 1 - Employer’s Discussion of Union with Employees

[422] The Union argued Wynn Park violated section 53(1), (3)(a)(i)(iii)(iv)(v)(vi); 53(3)(e); and

section 58(1)(2) of the Act, all of which is set forth in their argument referred to in this

decision.

[423] The Union further referred to Amalgamated Transit Union Local 508 v. Zinck’s Bus

Company Limited (supra), in their argument to support the premise that employers have

to be sensitive to the inherently unbalanced power dynamic between an employer and

an employee. This is due to the fact that the employee relies on the employer for their

job and income. An employer should not interrogate employees about memberships or

attitudes toward a union as it is inherently destructive of significant rights of union

employees under the Act and under the Charter.

[424] The Union further referred to many cases, and in particular, Commercial Logistics v.

Teamsters Local Union 31, 2019 95335 (BC LRB), to argue that the burden of proof

of anti-union animus is light. These cases indicate that it is rare an employer will admit

they are anti-union and a board may piece together a pattern of circumstantial evidence

as proof of anti-union animus. The question is whether the evidence is consistent with

the preponderance of probabilities which a practical and informed person would find to

be reasonable in the circumstances.

[425] The Board finds, with respect to issue 1, that there were three formal communications to

employees about the unionization process, as referred to in Exhibit U-1, Tab 7, being a

letter of March 4, 2021; Exhibit U-1, Tab 8, being a letter of March 12, 2021; and Exhibit

U-1, Tab 10, being a letter of March 25, 2021. In addition, notwithstanding Wynn Park’s

argument to the contrary, the Board find that there were numerous other informal

communications with employees that the Board finds violated sections 53 and 58 of the

Act, which are hereinafter set out in the decision.

[426] Mr. Crawford alleges that, during his conversation with Ms. Peck on February 24, 2021,

when he raised the fact that a union would address the safety issues that were set out in

the staff letter, that Ms. Peck advised him that Wynn Park was non-unionized and would

remain that way. Ms. Peck denies hearing Mr. Crawford mention the word ‘union’ and

denies telling him that Wynn Park would remain non-unionized. Due to findings that

follow concerning Mr. Crawford’s credibility, the Board finds that it prefers the testimony

of Ms. Peck with respect to the discussion that took place between Ms. Peck and Mr.

Crawford on that date. The Board notes that despite Mr. Crawford’s assertion that other

employees were in and out of the discussion at times, no other witness testified to

hearing either Mr. Crawford or Ms. Peck say those words.

[427] Ms. Nielsen testified about Ms. Peck approaching her on February 25, 2021, and asking

her questions about whether Ms. Nielsen had heard anything about a union and whether

any employees were union supporters, including Ms. Nielsen. Ms. Nielsen alleges that at

the end of the conversation, Ms. Peck cautioned her not to tell anyone about the

conversation. The Board finds that, with respect that conversation, that it prefers the

evidence of Ms. Nielsen over that of Ms. Peck, due to the clear memory of Ms. Nielsen

and the testimony of other individuals about Ms. Nielsen being upset after the

conversation. The Board gives more credence to the evidence of Ms. Nielsen, for reasons

to follow, with respect to other discussions with Ms. Peck and Ms. McEwen.

[428] Ms. MacKenzie testified that on March 4, 2021, she and Cathy Blaikie were in the lunch

room when Ms. McEwen advised them that RN’s and LPNs could not be in the union. Ms.

McEwen testified that she did not state it as a fact but rather was advising that she would

obtain more information. The Board finds that Ms. MacKenzie’s interpretation of Ms.

McEwen’s declaration as being a statement of fact is reasonable and credible due to Ms.

McEwen’s position at Wynn Park and her failure to clearly identify that she was unsure of

the issue and was only providing her initial opinion.

[429] Ms. Vaughan testified that on March 16, 2021, Ms. Peck demanded her loyalty and

directed her to support management, warning her at the end of the conversation to

pretend the conversation had not taken place. Ms. Peck denied this and testified that the

reason she went to speak with Ms. Vaughan was because she was told that Ms. Vaughan

had not been seen on the units very much and advised Ms. Vaughan that she needed to

be on the units more. The Board accepts the testimony of Ms. Vaughan that Ms. Peck

inquired about how Ms. Vaughan was going to vote, asking for her loyalty and support of

management, and the conversation was not about Ms. Vaughan’s need to be on the floor.

[430] The Board finds that Ms. Vaughan’s testimony was very credible as she was a senior RN

who retired from Wynn Park, effective May 23, 2021. The Board gives more credence to

the testimony of Ms. Vaughan over that of Ms. Peck, notwithstanding Ms. Vaughan was

questioned and recalled by counsel for Wynn Park about allegations of her taking band

aids without permission and thus stealing band aids from Wynn Park and therefore being

dishonest. The Board finds Ms. Vaughan was very credible in her testimony,

notwithstanding the CCTV footage of March 17, 2021, Exhibit R-6, which showed Ms.

Vaughan removing some contents from her purse and taking a box of band aids and

placing them in a plastic bag and placing them in her purse.

[431] The Board accepts Ms. Vaughan’s testimony that, although she did not play any role in

the stocking of supplies, she had on occasion brought some supplies such as band aids to

the Med Carts on various units and she never at any time stole any items from Wynn Park.

The Board, on viewing Exhibit R-6 and hearing both Ms. Peck and Ms. Vaughan, find that,

on the balance of probabilities, that there was no intention on the part of Ms. Vaughan

to steal those items. There was no evidence that, by putting the band aids in her purse,

that there was an intention to steal them, especially in light of the fact that both parties

acknowledge that Ms. Vaughan was aware that there was a camera present. Ms.

Vaughan’s distress over this issue being raised in this hearing, having never received any

notice of there being an issue previously, was very credible and consistent with her

testimony.

[432] The Board allowed Ms. Vaughan to be recalled, however the Board notes that Wynn Park

was in possession of the evidence which was presented to Ms. Vaughan on recall. The

Board finds Wynn Park had the video footage for some time and it could have been

presented during the examination in chief or revealed earlier to the Union and also to Ms.

Vaughan.

[433] Ms. Beaver testified that, on March 21, 2021, she had a meeting with Ms. McEwen, who

said that she had heard Ms. Beaver was harassing employees about joining the union. Ms.

McEwen told Ms. Beaver that some staff reported feeling uneasy, harassed or

uncomfortable due to the contact from Ms. Beaver concerning the union and advised her

that she could not talk about the union during breaks. Ms. Beaver denied harassing

employees and said she asked Ms. McEwen which employees were complaining, but Ms.

McEwen would not tell her. Ms. McEwen testified about the people that claimed they

were harassed, but none of them testified. Ms. McEwen acknowledged during her

testimony that she had not investigated the complaints that she raised with Ms. Beaver

prior to talking to her. The Board finds that Ms. McEwen’s comments to Ms. Beaver were

based on unverified hearsay and that there was no evidence to support Ms. McEwen’s

allegation to Ms. Beaver that she was harassing people or talking about the union on her

breaks.

[434] Ms. Rafuse also testified that she had a meeting with Ms. McEwen on March 5, 2021, and

was advised by Ms. McEwen that management expects the support of supervisors on the

union issue. Ms. Rafuse testified she was so upset that she cried after the meeting. Ms.

McEwen denies making that statement to Ms. Rafuse. The Board finds, between Ms.

Rafuse and Ms. McEwen, that Ms. Rafuse was more credible in her testimony. The Board

finds that Ms. McEwen indicated to Ms. Rafuse said she was a supervisor and could not

be in the union.

[435] Ms. MacKenzie testified that, on March 22, 2021, she received a phone call from Ms. Peck,

who questioned her about whether she was at a union meeting the previous night at the

Best Western. Ms. Peck testified that the reason she called Ms. MacKenzie was to inform

her about the upcoming vote because Ms. MacKenzie did not have an email address and

she wanted to make sure Ms. MacKenzie was aware of the time and place to vote. Ms.

MacKenzie denied Ms. Peck’s assertion that the call was about the time or location of

voting. Ms. MacKenzie testified that she was upset to have Ms. Peck, who rarely spoke to

her, call her at home and felt intimidated because Ms. Peck repeated the question about

her attendance at the meeting, which Ms. MacKenzie did not think was any of Ms. Peck’s

business. The Board finds Ms. MacKenzie was forthright throughout her testimony, noting

that she specifically pointed out an error in her affidavit, Exhibit U-3, Paragraph 6, and

clarified that she did not say Ms. McEwen said the words ‘unionization drive’. The Board

finds that Ms. Peck contacted Ms. MacKenzie for the purpose of questioning her about

her attendance at the union meeting and not to inform her about the vote.

[436] Ms. Macumber testified that, on March 23, 2021, Ms. Peck approached her to tell her to

attend at the vote because she believed she knew what Ms. Macumber’s vote would be,

using the words, “I do, don’t I?” Ms. Macumber said she was panicked by the questioning

and answered Ms. Peck in the affirmative, but was very intimidated and felt threatened

by the remarks of Ms. Peck. The Board finds, that between Ms. Macumber and Ms. Peck,

it prefers to the testimony of Ms. Macumber, who had a distinct and clear recollection of

Ms. Peck’s words.

[437] Ms. Burns testified that, on March 5, 2021, Ms. Peck interrupted her break to inform her

that there would be a box downstairs and she would like employees to vote yes or no to

a union using the box. Ms. Peck testified that she did not say that and just informed Ms.

Burns that there was a suggestion box downstairs. Mr. Moore testified that he was aware

it was a suggestion box. The Board finds that the testimony of Ms. Burns was not all that

helpful and that, on a balance of probabilities, there is insufficient evidence to show that

Ms. Peck stated that it was a voting box, especially in light of the testimony of Mr. Moore

who said a pizza party suggestion was found in the box.

[438] Ms. Peck testified that in the evening of February 24, 2021, she received an anonymous

phone call stating that Mr. Crawford was looking into the possibility of a union. Given that

telephone call, the Board finds that it was more probable than not that there were

whisperings from staff that got back to Ms. Peck. However, the Board finds that,

regardless of her knowledge about Mr. Crawford contemplating a union, on the balance

of probabilities, Ms. Peck requested Mr. Thody obtain video surveillance recordings of

Mr. Crawford’s shifts on February 21 and 22, 2021 for the purpose of investigating the

safety concerns that he had asserted at the meeting on February 24, 2021.

[439] The Board finds on the balance of probabilities, after hearing testimonial evidence and

review of authorities cited and for the reasons stated and from reviewing the testimony

and the exhibits tendered, that Wynn Park through Ms. Peck and others, did, contrary to

the Act, have discussions about the union with employees, and in particular, Ms. Nielson,

Ms. Beaver, Ms. Rafuse, Ms. Vaughan, Ms. Macumber, and Ms. MacKenzie, all of whom

the Board finds to be credible and all whom felt intimidated and feared what may happen

to them if they continued to support the union. The Board finds these employees felt

harassed with the numerous inquiries made by management of them to find information

on the unionization drive and how they were going to vote, all contrary to the Act.

Issue 2 - Shalene Rafuse Meeting/Filing Cabinet Lock Removal

[440] Ms. Rafuse testified that, on March 21, 2021, Ms. McEwen reprimanded her about

allegedly harassing staff about the union and talking about the union on break, and also

questioned Ms. Rafuse about why she was so passionate about the union. Ms. Rafuse said

that she felt intimidated by Ms. McEwen, and concerned about her employment given

Mr. Crawford’s termination and returned to the East Unit shaken up and crying. Ms.

McEwen denied that the conversation took place in the manner that Ms. Rafuse asserts,

although she did not deny the content of the conversation as stated by Ms. Rafuse and

acknowledged that she asked Ms. Rafuse why she was so passionate about the union. The

Board finds that, based on Ms. Rafuse’s clear recollection of the conversation and the

testimony of other witness’ about Ms. Rafuse’s demeanor after the meeting, Ms. Rafuse’s

testimony is accepted. As such, the Board finds that Ms. Rafuse felt intimidated and

concerned about her employment at Wynn Park.

[441] Ms. Rafuse testified that on March 22, 2021, Wynn Park removed the lock on a filing

cabinet where she kept personal items, including notes regarding her conversations with

staff and staff concerns, while she was at home. Ms. McEwen testified that the reason

that the lock was removed was because the Department of Health and Wellness required

access to all the records and Ms. McEwen did not have a key, although she acknowledged

that the inspection by the Department of Health and Wellness was not scheduled until

April 2021. The Board finds that the lock did not have to be removed at that time due to

a surprise inspection or needed access to records and that, on a balance of probabilities,

the removal of lock from a filing cabinet where Ms. Rafuse kept personal and confidential

documents and items, at a time when she was not present and not advised in advance,

was done as a form of reprimand or rebuke due to Ms. McEwen’s involvement with the

union campaign.

[442] The Board finds on the balance of probabilities, after hearing testimonial evidence and

review of authorities cited and for the reasons stated and from reviewing the testimony

and the exhibits tendered, that Ms. McEwen did, contrary to the Act, have discussions

about the union with Ms. Rafuse and did so in a way that made Ms. Rafuse feel

intimidated and concerned for her employment. In addition, the Board finds that Ms.

McEwen’s decision to cut off the lock from the filing cabinet where Ms. Rafuse kept her

personal documents, on a day when Ms. Rafuse was not present and without giving her

prior notice, without there being any urgency to access the cabinet, appears to the board

to have been done to check her files on union activity. As such, the Board finds that it was

malicious and contrary to the Act.

Issue 3 – Elaine Nielsen, Jennifer Beaver and Beverley Waldron Meetings

[443] Ms. Beaver, Ms. Nielsen and Ms. Waldron testified that on March 1, 2021, Ms. McEwen

met with them and advised that Mr. Crawford had been terminated. The 3 staff each

testified that Ms. McEwen made a comment about the room being bugged and stated

that she was not in agreement about Mr. Crawford’s termination. Ms. McEwen denied

saying either of those statements. The Board finds that it prefers the testimony of Ms.

Beaver, Ms. Nielsen and Ms. Waldron and finds that, on a balance of probabilities, it is

more likely that not that Ms. McEwen did express that she was not in agreement with Mr.

Crawford’s termination.

[444] Ms. Beaver, Ms. Nielsen and Ms. Waldron all testified that, on April 7, 2021, being a day

after UPL 2 had been sent to Wynn Park, they were verbally reprimanded by Ms. McEwen

and Denise MacKenzie over issues of them being late to work and spending too much

time on breaks, issues that had not been raised before. Ms. McEwen acknowledged that

the meeting took place and the topic of the meeting was about the 3 staff’s tardiness and

length of breaks, but denied reprimanding them or intimidating them.

[445] The Board accepts the testimony of Ms. Beaver, Ms. Nielsen and Ms. Waldron that they

were verbally reprimanded at the meeting. Further, the Board finds that at that meeting,

Ms. Beaver also was intimidated and threatened and thus, those that attended the

meeting were very upset and intimidated by Ms. McEwen reprimanding them.

Issue 4 – March 21, 2021 – 2^ndUnion Meeting

[446] Mr. Rao testified that, on March 14, 2021, he organized a meeting at the Best Western in

Truro and he went over the process for starting a union and the right of Wynn Park

workers to join a union. He testified that approximately 17 people attended the meeting.

[447] Mr. Rao further testified that, after an application for certification was filed with the

Labour Board on March 19, 2021, he arranged a second meeting at the Best Western in

Truro for March 21, 2021, for current and future employees of Wynn Park to attend. Mr.

Rao said that the meeting was run by Nan McFadgen, CUPE Nova Scotia President, and

that approximately 26 people attended that meeting.

[448] Ms. McKay testified she attended the March 21, 2021 meeting to ask questions as she

was not familiar with unions. Ms. MacKay said that she was not allowed to ask questions

during the meeting and was told that any questions would have to be put to Mr. Rao in

the hallway. Ms. McKay testified that Madison Murphy, who also attended, attempted to

ask questions as well and Mr. Rao reiterated that questions were not to be asked during

the meeting.

[449] Ms. McKay testified that she heard Mr. Rao asked Madison Murphy about her mother,

Ms. McEwen, meeting with two employees on March 21, 2021, which left them feeling

intimidated. Ms. McKay testified that she felt Mr. Rao was very rude and disrespectful

and wrote an email to CUPE, dated March 30, 2021, concerning Mr. Rao’s lack of respect.

There were emails on record between Ms. MacKay and Ms. Pinder with respect to a

concern raised about Wynn Park employees who may be related to senior management

and the suggestion that perhaps they should not be in attendance at the meeting.

[450] The Board accepts the evidence of Ms. MacKay with respect to what took place at the

March 21, 2021, meeting. The Board finds that the questions about relationships between

employees and management have no bearing on the employee’s right to attend an

organizational meeting to gather information on whether they want to join a union. The

Board finds it is the right of all employees to join a union if they should so desire.

Issue 5 – Discipline of Tevin Crawford

[451] Mr. Crawford testified that he was offered full-time employment as an LPN with Wynn

Park on May 8, 2019, and began his employment on May 27, 2019. Mr. Crawford testified

that during his interview for employment on May 1, 2019, he told Ms. McEwen that he

had been suspended by his current employer, Glen Haven Manor, pending an

investigation into a theft of syringes and falsification of an incident report. He said that

Ms. Blois was present for a portion of the interview but not for the whole time. Mr.

Crawford provided two references from Glen Haven Manor, Kim Rafuse and Aran Gallur.

[452] Ms. Blois was very firm in her testimony she was present for the full duration of the

interview with Mr. Crawford and that the interview was not very lengthy. She stated that

he did not disclose that he was under investigation at Glen Haven Manor, pointing out

that there was nothing about that in her notes from the meeting. Ms. McEwen, after

confirming that Ms. Blois was present for the whole meeting, also denied that Mr.

Crawford mentioned anything about his past employment issues at Glen Haven Manor

and she testified that had she known he had misappropriated needles and falsified

reports, they would not have hired him. Ms. McEwen testified these are serious violations

of trust.

[453] Ms. Smith, Administrator of Glen Haven Manor, testified that at the time Mr. Crawford

was being interviewed on May 1, 2019, he had not yet been terminated. Ms. Smith said

the references used by Mr. Crawford were not authorized to make references as the

policy at Glen Haven Manor was that any references have to be approved by the

Administrator. Ms. Smith testified she would not have given a reference for Mr. Crawford

had she been contacted. Neither Kim Rafuse nor Aran Gallur testified at the hearing. Mr.

Crawford subsequently entered into a settlement agreement with Glen Haven Manor on

June 28, 2019, which included a clause stating that he was not authorized to request a

reference from any current or former Glen Haven Manor employee and a neutral

reference would be provided by an Employee Relations Specialist.

[454] Ms. McEwen testified that, in February 2020, staff complained that a female employee at

Wynn Park was staying after her hours, during Mr. Crawford’s shifts. Staff complained

about the amount of time Mr. Crawford spent with her as it impacted with his duties as a

LPN. Ms. McEwen testified that she contacted Ms. Peck, who in turn asked Mr. Thody to

obtain video footage to see if staff concerns were validated. Mr. Thody found a number

of occasions in which Mr. Crawford and the female LPN spent undue amounts of time

together and one night in particular, around 1:20 a.m., Mr. Crawford and the female LPN

shut the Med Room door and were in the Med Room together for approximately 20

minutes. Mr. Crawford said the female staff member was having personal problems and

he was trying to help her. He agreed the optics were not good.

[455] Ms. McEwen testified that both she and Mr. Thody met separately with the female LPN

concerning the incidents and Ms. McEwen issued a written warning to each staff member,

Exhibit R-1, Tab 10. Ms. McEwen also testified about receiving reports from staff such as

Ms. Waldron, Ms. Beaver and Ms. Nielsen, that Mr. Crawford was not answering bells,

was on his cell phone a lot and was not helping other staff with their shifts.

[456] Mr. Crawford testified that, on February 15, 2021, there was a letter written by Megan

Murphy, LPN, documenting problems with residents coming into the nurses’ station on

the East Unit and some other problems with the residents. Mr. Crawford said that he

signed the letter, which he understood was given to Ms. Peck and Ms. McEwen between

February 17 and 19, 2021. He testified he came to work on February 24, 2021, around

6:20 a.m. and Megan Murphy had commented that her mother, Ms. McEwen, expressed

annoyance with the letter from staff. He said he indicated to Megan Murphy at that time

that they could unionize as it was not a hard process.

[457] Mr. Crawford testified that later in the morning on February 24, 2021, Ms. Peck and Ms.

Blois attended at the East Unit nurses’ station and had a conversation about the safety

concerns in the letter. Mr. Crawford explained that he thought there should be a Plexiglas

barrier constructed enclosing the entire nurses’ station, however, Ms. Peck was not in

favour of that and said that she wanted to have more of a home like environment and

stated that the fire marshal would not approve. Mr. Crawford testified that he said that if

they had a union at Wynn Park that they would not have to deal with these safety issues.

Mr. Crawford said that he said those words to Ms. Peck, when Ms. Blois was not around.

Both Ms. Peck and Ms. Blois testified that Mr. Crawford never made any reference to a

union during that conversation.

[458] Ms. Nielsen, Ms. Beaver and Ms. Waldron were also CCAs on duty in that unit at the time

Ms. Peck and Ms. Blois were speaking with Mr. Crawford and they all testified that they

intermittently heard parts of the conversation as they were working. They all noted that

they did not hear all the conversation and that they did not hear Mr. Crawford use the

word ‘union’.

[459] Ms. Peck testified that following the meeting she requested that Mr. Thody provide a

copy of video footage from Mr. Crawford’s shifts from February 20 and February 21, 2021,

stating that she wanted to see video of the safety concerns that he had raised. Ms. Peck

testified she compared Mr. Crawford’s shifts to other people’s shifts, however, Mr. Thody

testified he was only asked to pull Mr. Crawford’s shifts. The USB containing copies of the

video footage from those shifts was tendered as Exhibit U-35.

[460] Ms. Peck testified that she reviewed the videos, Exhibit R-1, Tabs 27, 28 and 29 and

observed Mr. Crawford sitting at the nursing station on February 20, 2021, for an undue

and inordinate amount of time and not assisting the lone CCA on duty. In addition, Ms.

Peck testified that she saw that Mr. Crawford had left the door to the Med Room open

14 times for varying lengths of time while he was not seated at the nurses’ station. Ms.

Peck noted that, on some occasions, Mr. Crawford left the door to the Med Room open

when he left the East Unit altogether. There were also incidents where Mr. Crawford left

the Med Cart unattended in the hallway. Ms. Peck said she observed that while Mr.

Crawford was in the Med Room, a resident entered and remained for approximately 45

seconds.

[461] Ms. Peck testified that on February 25, 2021, she met with Ms. McEwen and shared the

videos of Mr. Crawford with her. Ms. McEwen was shocked by the safety infractions she

saw Mr. Crawford commit, especially where he has raised concerns about safety

infractions during the meeting with Ms. Blois and Ms. Peck on February 24, 2021.

[462] Ms. McEwen testified that the Med Room door has to be closed at all times, except when

a nurse is at the nurses’ station. Ms. McEwen testified that leaving the Med Room door

open and unattended and Med Cart unattended are serious safety infractions. She said

that the Med Room has controlled substances such as narcotics and various medications

and alcohol kept for residents, some of which are also kept on the Med Cart, including

narcotics.

[463] Mr. Crawford admitted in his testimony that it was possible that he had left the Med

Room door open while he was working and conceded that as an LPN he was trained to

secure the Med Room and acknowledged that it was a violation of the safety regulations

and policies of Wynn Park.

[464] Ms. Peck testified that, as a result of Mr. Crawford’s previous disciplinary history and

safety infractions, Ms. Peck determined Mr. Crawford was not suitable to be in a

supervisory position and authorized the termination of his employment.

[465] Ms. Peck testified Ms. Blois, as director of Human Relations, drafted Mr. Crawford’s

termination letter of February 26, 2021, Exhibit R-1, Tab 8. The letter was sent to him by

courier, who advised it would not make it the same day, so Ms. McEwen testified that she

called Mr. Crawford on February 26, 2021, to inform him of his termination over the

phone. She did not provide any details and indicated he would receive his termination

letter on Monday by courier. Ms. McEwen testified following Mr. Crawford’s termination

at no time did she tell any employee at Wynn Park that she did not support the decision

to terminate Mr. Crawford.

[466] Mr. Crawford was cross-examined on a letter from Marie Maclean-Bent, Exhibit U-34,

which complained about Mr. Crawford sending inappropriate messages to her daughter,

Carlee Bent, who was a Wynn Park employee, including telling her she was ”hot”, when

she was only 18 years old. Mr. Crawford acknowledged texting her, but denied sending

inappropriate messages, stating that he did not think posting a fire emoji on one of her

photos was inappropriate and he thought she was closer to 25 years old.

[467] At Exhibits R-1, Tab 12 and Tab 21, Ms. MacKay and Megan Murphy submitted complaints

after Mr. Crawford was terminated stating that he had made inappropriate comments

about staff members’ bodies and asked residents to rub his back. In addition, there were

allegations that he spoke about playing video games on the night shift. Mr. Crawford

denied making inappropriate comments about staff member’s bodies, but admitted to

receiving a back rub/scratch from a resident, noting other staff had received them as well.

He acknowledged bringing a controller to Wynn Park to play video games on his phone

and also admitted to falling asleep on the night shift.

[468] The Board finds that Mr. Crawford lacked credibility for a number of reasons, consistent

with the criteria set out in Faryna (supra), which was followed in NSTU (supra). First, the

Board finds that Mr. Crawford was not upfront about his employment situation when he

was interviewed for the position at Wynn Park and specifically he did not disclose that he

was on suspension due to an ongoing investigation concerning the theft of needles and

falsification of a report. While Mr. Crawford testified that he did inform Ms. McEwen and

Ms. Blois about the situation, their combined lack of recollection and lack of any notes on

what was a significant point, are telling.

[469] In addition, the Board finds that Mr. Crawford attempted to dismiss or diminish the other

disciplinary infractions that were raised, including spending time in a closed door room

with a female LPN while on shift; receiving back rubs from residents; posting a “fire emoji”

on a young co-worker’s photo; falling asleep and/or playing video games during the night

shift; and, most concerning, leaving the Med Room door open and the Med Cart

unattended. These final two issues created serious safety and security risks for the

residents, staff and Wynn Park as Mr. Crawford’s employer. His causal acknowledgement

that he may have left the Med Room open or the Med Cart unattended suggested that

he did not view that as a significant concern, despite his considerable concern about

safety issues, as were raised in his discussions with Ms. Peck.

[470] The Board finds that the mischaracterization of the events of Mr. Crawford’s hiring,

employment and termination in the Rank and File article and Mr. Crawford’s failure to

correct it reflects poorly on his honesty.

[471] The Board has reviewed the authorities cited by both counsel and in particular, agrees

with the principles set out in Canadian Union of Public Employees, Local 5124 v Shannex

Incorporated 2014 NSLB 134, which states:

194 The legal test set out in our jurisprudence place the onus on the

union to demonstrate that anti-union animus was one of the factors

involved in the termination. Once the union succeeds to that extent, the

onus shifts to the employer to prove on the balance of probabilities, this

is not a significant factor. The Board refers to Peter Macintyre v Usen

Fisheries, LRB No. 2319, October 15, 1976, and Matthew Sodys v Pratt

and Whitney Canada, LRB No. 4184, September 21, 1984, supra.

(emphasis added)

[ ... ]

197 This case has been quoted often in labour relations cases

dealing with termination as a result of anti-union animus. The

four factors are:

1.

2.

The existence of a pattern of anti-union activity;

The extent of the respondent's knowledge of the

existence of a union activity

involvement in the activity;

and

of

the

employee's

3.

4.

The manner in which the employee was discharged; and

The credibility of the witnesses.

198 Further, the Board must look at all the facts with respect to

termination of these Complainants in order to determine anti-

union animus towards these employees which caused their

termination.

[472] The Board finds that with regards to the four factors, there is insufficient evidence to

show that Wynn Park had a pattern of anti-union activity. There was testimony, much of

which was hearsay, of posters being put up several years ago expressing anti-union

animus, which Ms. Peck denied. There was also evidence that there were anti-union

comments made over time, which were also denied. That evidence alone does not

support a pattern of anti-union animus.

[473] The Board finds from the evidence presented and on the balance of probabilities that the

managers of Wynn Park were not aware of a union organizing campaign prior to Mr.

Crawford’s termination, notwithstanding that there may have been some talk among the

staff about a union.

[474] In terms of the manner in which Mr. Crawford was terminated, the Board finds it arose

immediately following the review of video footage of his committing multiple violations

of his duties. These violations include leaving the Med Room door open and the Med Cart

unattended, the seriousness of which were not challenged or disputed by any of the

witnesses.

[475] The Board has considered the credibility of Ms. Peck, Ms. McEwen and Ms. Blois and

specifically their stated reasons for terminating Mr. Crawford, and finds that they are

credible. The justification for the termination, specifically the violations of his duties

caught on video, are reasonable and credible. The Board furthers finds that the reasons

why the videos were observed is consistent with Ms. Peck meeting with Mr. Crawford on

February 24, 2021.

[476] The Board finds, on the balance of probabilities, after hearing testimonial evidence and

review of authorities cited and for the reasons stated above, that the termination of Mr.

Crawford was not related to his union activity and at most, Mr. Crawford had indicated

to some co-workers about the possibility of unionizing. The Board accepts, not only the

evidence of Ms. Peck and Ms. McEwen, but also from viewing the video of the night shifts

of February 20 and 21, 2021, that Mr. Crawford did leave the Med Room door open on

numerous occasions, left the area unattended with a resident being seen there, and left

the Med Cart unattended on numerous occasions, all of which are serious violations of

his duties as an LPN. The Board finds even if Mr. Crawford had mentioned to Ms. Peck or

Ms. McEwen about unionization of Wynn Park, which in itself, from the authorities cited

and on review of the Act, does not constitute unfair labour practice.

[477] Accordingly, as Mr. Crawford was terminated well before the application for certification

was filed, the events of his termination upon the employer seeing his serious infractions

dealing with the care of the Med Room and Med Cart and his interactions with staff, the

Board finds his termination was unrelated to a violation of the Act for the reasons stated.

Board Findings on Request for Remedial Certification

[478] The Union is requesting remedial certification pursuant to section 25(9) of the Act: