IN THE MATTER OF THE LABOUR RELATIONS CODE  
UNITED FOOD AND COMMERCIAL WORKERS UNION,  
LOCAL NO. 401  
Applicant  
- and -  
CARGILL LTD.  
Respondent  
Date of Decision: April 29, 2022  
FILE: GE-08267  
BOARD MEMBERS  
J. Leslie Wallace Vice-Chair  
Carol Graham Member  
Peter Marsden Member  
APPEARANCES  
For the Applicant:  
Kara O’Halloran (Counsel), Kristan McLeod (Counsel), Devin Yeager,  
Joe Attwood, Miriam Tukku, Jamie Walsh-Rollo  
For the Respondent: Damon Bailey, Q.C. (Counsel), Alison Adam (Counsel), Rebecca  
Silverberg (Counsel), Tanya Teeter  
Classification: Public  
REASONS FOR DECISION  
I.  
Introduction  
[1]  
These are reasons given in an application to summarily dismiss an unfair labour practice  
complaint at the close of the Union’s case. They explain and amplify the “bottom line” decision  
given in this matter on May 20, 2021, which allowed the application and dismissed the  
complaint.  
[2]  
Cargill Ltd. (“Cargill” or the “Employer”) operates the largest meat packing plant in  
Canada just outside High River, near Calgary, Alberta. In March and April, 2020, it was the  
location of what was, for the first year of the COVID-19 pandemic, the largest outbreak of the  
COVID-19 virus in Canada measured by direct and linked cases. Over 1000 cases linked to the  
plant occurred. Two employees died of the virus during that time.  
[3]  
The outbreak placed immense strains on the workplace and on the bargaining relationship  
between the Employer and its employees’ bargaining agent, United Food and Commercial  
Workers Union, Local No. 401 (“UFCW”, “Local 401”, or the “Union”). It posed a very serious  
threat to employee health and safety, to ongoing production at the plant, and more generally to  
public health in the Calgary region. It became a major issue for government agencies, notably  
Alberta Health Services (“AHS”) and Occupational Health and Safety (“OHS”), which both  
became involved in the Employer’s response to the outbreak.  
[4]  
Part of the Employer’s response was an approximately two-week shutdown of the plant  
in late April 2020. The Union had already publicly called for a shutdown before this. It viewed  
Cargill’s health and safety measures as inadequate, and opposed the reopening of the plant from  
this shutdown on May 4, 2020. On May 1, 2020, it filed a complaint to this Board that the  
Employer had interfered with the Union’s representation of employees and discriminated against,  
restrained or intimidated employees for union membership or activity, contrary to sections  
148(1)(a)(ii) and 149(1)(a)(i), (ii) and (viii), 149(1)(b) and (c) of the Labour Relations Code (the  
“Code”). It sought, among other relief, an interim order that the plant remain closed.  
Classification: Public  
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[5]  
The Board denied an urgent hearing, scheduled the matter to hearing before this panel in  
the normal course, and appointed its Vice-Chair Lyle Kanee, Q.C., to assist the parties to resolve  
some or all their issues. Their meetings with Vice-Chair Kanee resulted in an interim agreement  
that operated for some or all the time occupied in bringing the complaint to the stage of hearing  
that it reached.  
[6]  
Though we will canvass all aspects of the Union’s complaint presently, for now it is  
enough to say that the crux of the Complaint is that the Employer failed to accord the Union its  
proper representational role in evaluating and responding to the outbreak. It says this failure  
manifested itself in multiple ways, including undermining or failing to recognize the roles both  
of full-time Union representatives, and Union appointees to the Employer’s Joint Workplace  
Health and Safety Committee (“JWHSC”). A secondary aspect of the Complaint alleged that  
Cargill suspended its second shift starting April 13, 2020 in retaliation for the Union’s public  
advocacy.  
[7]  
The Union presented evidence over six days in separate groups of hearing days in June  
2020 and January 2021. At the close of the Union’s case, the Employer applied for the Board to  
dismiss the Complaint on the basis that the evidence did not disclose a substantive case that  
either section 148 or section 149 of the Code had been violated.  
II.  
A.  
Facts  
Overview  
[8]  
The Cargill plant at High River supplies approximately 30% of Canada’s beef. It  
employs some 2000 unionized employees, along with out of scope salaried employees and  
managers, in two principal production areas: harvest, colloquially the “kill floor”, where animals  
are slaughtered; and fabrication, where the carcasses are broken down and cut into wholesale  
cuts, and packaged for shipping. The Union’s predecessor Local 1118 was the certified  
Classification: Public  
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bargaining agent for the production employees of Cargill from 1991. In 2016, Local 1118  
merged with Local 401, the present bargaining agent.  
[9]  
The Cargill workforce is exceptionally diverse. A great many of the production  
workforce are recent immigrants to Canada. Many national communities are represented.  
Turnover is high. Many employees have a first language other than English and imperfect  
command of the English language, along with the unfamiliarity with labour relations that exists  
in many industrial workforces. The production process is highly integrated. It depends upon  
continuous, high-speed operation of the production line, and minimizing down time. Food safety  
and occupational health and safety are imperatives. All of this makes union representation of the  
workforce much more challenging than in most other workplaces.  
[10] The Union relies heavily on face-to-face communication with its members in the Cargill  
unit. This is so in part because the exceptional diversity of the workforce tends to fragment  
social media communities by ethnicity and culture and so makes electronic communication more  
difficult. Although the Union assigns two full-time representatives to the plant, there are other  
key elements to its representational work. Important to this case are the employee  
representatives to the JWHSC and the “walking stewards”, production workers who by the  
collective agreement are entitled to be released from their production role to “roam” the floor,  
monitor workplace conditions and represent union members in the immediate vicinity of their  
work stations.  
[11] It is convenient at this point to list the principal actors on behalf of both parties in these  
events:  
Local 401  
Thomas Hesse: President of the Union. Mr. Hesse was a long-time organizer and official  
for the Union until 2019, when he succeeded to the presidency after the death of  
President Douglas O’Halloran.  
Devin Yeager: Labour Relations Officer for the Union, formerly Executive Director of  
Local 1118, now with responsibility for members at the smaller Cargill Case-Ready plant  
in Calgary, and as a representative at Cargill High River.  
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Joe Attwood: Labour Relations Officer for the Union, with secondary responsibility for  
Cargill, and temporary representative on the JWHSC in the fall of 2019.  
Jamie Walsh-Rollo: Cargill employee, at the time of the hearing a “Cryovac [sealing  
machine] operator”, shop steward, and employee representative on the JWHSC.  
Miriam Tukku: Cargill employee and shop steward, at the time of the hearing working in  
the “back packoff” area, and the other employee representative and co-chair on the  
JWHSC.  
Cargill  
Tanya Teeter: Vice-President of Human Resources, working out of Cargill offices in the  
United States. She is the principal Employer contact to Mr. Hesse.  
Dale LaGrange: General Manager of the High River Plant.  
Devin Tretiak: Senior Employee Relations representative at the High River Plant. He is  
the most senior Employer labour relations representative on site and the principal point of  
contact with Messrs. Yeager and Attwood.  
Rob Hale: Senior Human Resources representative at the High River Plant, most often in  
contact with Mr. Yeager.  
Renee Siki: Safety Manager, High River Plant. She was member of, and the principal  
Employer point of contact with, the JWHSC, and therefore with Ms. Walsh-Rollo and  
Ms. Tukku.  
[12] The COVID-19 respiratory virus surfaced in Canada at some time in February 2020. It  
proved to be highly contagious, spreading by various means respiratory droplets, aerosolized  
particles, and fomite (inanimate surface-to-host) transmission, the relative ease of each being still  
under study and debate over two years later. It presents in a baffling range of virulence,  
affecting some hosts so little as to be essentially asymptomatic (and undetected), while  
hospitalizing and killing others, most notably older persons and those with underlying health  
conditions and the immunocompromised, and all points in between. At the time of writing,  
several mutant variants, with differing characteristics, have fed new waves of the pandemic.  
Although the medical world still struggles to achieve a full understanding of the epidemiology of  
COVID-19, early in the pandemic, and still, there was little doubt that the dominant transmitter  
Classification: Public  
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of the disease is close indoor contact with infected hosts. The risk increases greatly with the  
number of contacts and exposure time. The environment of a meat packing plant, featuring large  
numbers of employees working close together on an open production line and performing  
physically demanding work, congregating in lunchrooms, hallways and other common areas, and  
often travelling to and from work by shared transportation, is an example of an extremely high-  
risk transmission environment.  
B.  
A Timeline  
[13] We have elected to set out the Union’s evidence of the main events of the first COVID-  
19 wave at the Cargill plant in a timeline drawn from the documentary and testimonial evidence.  
Although the Employer has not yet led evidence, most of these bare events are documented and  
allow for little doubt. More at issue are the meanings of and motivations behind what happened,  
and we address those issues later by canvassing the evidence more fully and as necessary,  
witness by witness. For brevity, and with no disrespect, we will often refer to the principal  
actors by their surnames.  
[14] Here is how the first wave of COVID-19 and the response to it unfolded at Cargill:  
1. Early March 2020: Cargill High River plant management and staff are on heightened  
alert for first signs of the COVID-19 virus in the plant.  
2. March 10, 2020:  
global pandemic.  
The World Health Organization (WHO) declares COVID-19 a  
3. March 10, 2020:  
The first indication appears in the documentary record of Cargill’s  
COVID-19 response. Minutes of the Health and Safety Committee meeting make brief  
mention of the need to observe hand washing protocols.  
4. March 17, 2020:  
Cargill is monitoring the number of employees under quarantine.  
In response to an enquiry from Union plant representative Devin Yeager, Cargill Senior  
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Employee Relations Specialist Devin Tretiak reports 7 employees quarantined, and no  
confirmed cases yet.  
5. March 17, 2020:  
emergency.  
The Government of Alberta declares COVID-19 a public health  
6. March 20, 2020:  
Local 401 President Tom Hesse and Secretary-Treasurer Richelle  
Stewart issue an eight-page letter to Local 401’s major employers, including Cargill. It  
advocates a culture of workplace respect in response to the pandemic; heightened  
tolerance of workplace absences; waiver of sick note requirements; increased sanitizing  
of surfaces; frequent health and safety meetings; social distancing marked by reduced line  
speeds, increased space between workstations, reconfiguring of work schedules to reduce  
the number of workers in close proximity, and staggered breaks and lunch periods; paid  
isolation, personal and family illness absences; waiver of waiting and eligibility periods  
for access to benefits; suspension of grievance time limits; and an expedited dispute  
resolution process. It asks for detailed responses, including employers’ action plans in  
the event COVID-19 appears in the workplace.  
7. March 23, 2020:  
Cargill Vice-President Tanya Teeter responds to the Hesse/Stewart  
letter with a two-page reply stating the safety measures being implemented at High River.  
Among these measures are staggered break times; changed table configurations in  
lunchrooms; heated outdoor break space; small-group training; increased sanitation  
procedures in the common areas; restriction of visitors; premium pay of $2.00 per hour  
for a six-week period; a $500 bonus for completion of 8 weeks of scheduled shifts; and  
14 days of paid time off for COVID-19 related absence, including unavoidable childcare  
absences. Mr. Hesse is disappointed with the overall response, though he considered the  
monetary changes to be “positive steps”. He leaves it to Union plant representatives to  
monitor the situation.  
8. March 24, 2020:  
The staggering of break times, without reducing chain speed on the  
fabrication floor, and the high number of absentees, cause a spillover controversy about  
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the Union’s walking stewards. They are now sometimes not released by their  
supervisors as being unable to be absent from their work station at the usual times.  
Union walking steward and JWHSC member Jamie Walsh-Rollo is unable to “walk”  
from March 17, 2020 onwards. Devin Tretiak informs Union plant representatives Joe  
Attwood and Devin Yeager that where walking stewards cannot be released, walking  
stewards from the kill floor will be made available. On March 25, 2020, an alleged  
incident of a Cargill supervisor refusing to release a walking steward and purporting to  
designate a replacement causes Yeager to protest to Tretiak and insist that the Company  
not try to designate the Union’s stewards.  
9. March 25, 2020:  
Mr. Yeager corresponds with Cargill to propose the general waiver  
of grievance time limits Mr. Hesse’s letter spoke of. Senior Human Resources Specialist  
Rob Hale replies with agreement, excepting grievances with accumulating liability.  
Yeager misunderstands Hale to mean any grievance with any degree of monetary  
liability, and seeks clarification. The issue appears not to have been spoken of again in  
the documentation.  
10. March 25, 2020:  
Safety Manager Renee Siki asks Myriam Tukku and Jamie Walsh-  
Rollo of the JWHSC for assistance locating translators among the bargaining unit to  
assist in preparing documentation for the new COVID-19 active screening process to be  
implemented at the entrance to the plant. No response is provided.  
11. March 26, 2020:  
The regular JWHSC meeting occurs. Walsh-Rollo and Tukku  
attend. COVID-19 issues dominate the meeting.  
12. March 27, 2020:  
Alberta’s Chief Medical Officer of Health (“CMO”) orders closure  
of non-essential businesses in Alberta. The CMO order exempts essential businesses.  
Cargill is considered an essential service for purposes of public health restrictions.  
13. March 30, 2020:  
Union representatives start advocating for more robust health and  
safety responses from Cargill, based on their understanding of practices at Olymel, a pork  
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producer in Red Deer that is also a Local 401 employer. Yeager proposes to Hale a  
meeting at the plant to discuss the issues. Hale replies on April 2 with a qualified “yes”,  
but one qualification is to exclude Yeager because, as a Union representative with more  
than one assigned workplace (he is the principal Union representative at Cargill’s smaller  
Case-Ready plant in Calgary), he fell afoul of Cargill’s new rules against employees and  
visitors moving from plant to plant. Hale also notes that managers are extremely busy  
with COVID-19 issues and high absenteeism, and suggests meetings once every two  
weeks. The discussion of this point breaks off for about a week.  
14. March 31, 2020:  
contact quarantine.  
Walsh-Rollo is absent from the workplace until April 13 on close  
15. March 31, 2020:  
Mr. Hesse corresponds with Plant Manager Dale LaGrange about  
the temperature screening program. He expresses concerns about employee privacy and  
the efficacy of temperature screening as a safety measure; asks for details of  
administration of the checks and use of the resulting information; and asks for assurances  
that employees sent home will be compensated.  
16. April 3, 2020:  
Ms. Teeter responds to the March 31 letter to Mr. LaGrange. She  
outlines the screening process, confirms the application of the 14-day paid time off  
provision, and confirms no deductions from pay for late starts due to the testing.  
17. April 4, 2020:  
The first positive COVID-19 case at the plant is confirmed.  
Yeager telephones Teeter to ask her to inform the Union early of positive cases because  
of the climate of fear and the prevalent “rumour mill” around COVID-19 at the plant.  
18. First week of April, 2020:  
Union officials receive accumulating news of confirmed  
COVID-19 diagnoses at other meat plants, principally in the United States. They hear  
that one eastern U.S. plant is closed in the face of over 100 diagnoses. The volume of  
calls from members to Local 401 officials and representatives steeply increases as “panic  
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sets in”. The Union receives at least one report of a sick employee being scheduled to  
work that it takes up with Cargill. The concern turns out to be unfounded.  
19. April 7, 2020:  
Alberta Health Services performs a site visit and tour of the plant.  
Union representatives are neither invited nor involved. During the visit, AHS discloses a  
second confirmed case among plant employees. AHS does not issue a report of the  
results of this visit.  
20. April 8, 2020:  
Amid building anxiety about the upcoming Easter weekend,  
LaGrange writes a letter to employees that is posted in the plant. It is sent to Yeager in  
advance and copied to the Union after posting. It advises employees of the second  
confirmed COVID-19 case at the plant. He attempts to reassure them about plant safety,  
while exhorting them to practice good sanitation habits and to mitigate or cancel outside  
social gatherings.  
21. April 9, 2020:  
The Union is aware of approximately five confirmed cases.  
Yeager renews his March 30 request to Hale for an immediate meeting over health and  
safety issues. No immediate response is provided.  
22. Easter Weekend (April 11-13, 2020):  
Going into the weekend holiday closure,  
stewards make anecdotal reports to Yeager and other Union representatives of more  
COVID-19 cases in the plant. Yeager texts Teeter asking for the latest numbers. She  
reports 38 cases 29 bargaining unit members, 5 salaried employees, and 4 contractor  
employees. This confirms some of the anecdotal evidence. Yeager reports the  
developing situation to Hesse. This is the last formal notification from the Employer to  
the Union of case numbers at the plant.  
23. April 11, 2020:  
Safety Manager Renee Siki advises shop stewards and JWHSC  
members Tukku and Welsh-Rollo that the April JWHSC meeting is cancelled. Tukku  
protests that it should continue, but the message does not list Siki as a recipient, and so  
does not get to Siki until too late. Siki later emails Tukku and Walsh-Rollo saying, “we  
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need to talk about this”, but Walsh-Rollo, on the verge of an illness, does not follow up.  
Nor does Tukku. On April 14, Siki emails Yeager and Attwood to offer to reschedule the  
meeting the following week if enough members are available. The plant shutdown  
intervenes and the meeting is never held.  
24. April 12, 2020 (AM, Easter Sunday):  
Mr. Hesse writes and sends a two-page letter  
(the “Easter Sunday Letter”). It is addressed to LaGrange and copied to the Premier of  
Alberta, the Minister of Labour and Immigration, Teeter, Tretiak and Hale, and published  
that day to members through the Union’s e-mail system. The letter expresses fear that  
hundreds of employees in the plant may soon be carrying the virus. It says that as many  
as 30 UFCW members across North America have died of COVID-19 at that point. It  
expresses the view that the Employer is not doing enough for employee health and safety  
and says, “It is time to act”. It calls for an immediate two-week plant closure, a  
comprehensive safety assessment, continued pay for employees, and an immediate  
meeting with Union officials, experts and government officials to design enforceable  
health and safety rules for the workplace.  
25. April 12, 2020, evening:  
A brief phone conversation between Teeter and Yeager, in  
reaction to the Hesse letter. Teeter asks if the Union is trying to instigate a work  
stoppage. Yeager says no. Teeter enquires about distribution of the letter to members;  
Yeager confirms it has been distributed to the membership. He assures her Union staff  
were under direction to answer members’ questions by saying the plant is not closed and  
wait to hear from your employer.  
26. April 13, 2020:  
Another phone call from Teeter to Yeager. She advises that  
attendance at the plant is down, the line speed has been reduced and the second shift  
would be cancelled. She suggests that the Union had been “irresponsible”. Layoff is  
mentioned. Teeter suggests that the Union’s letter put the staffing issue outside the  
Employer’s control, thus justifying layoff, but Teeter declines an invitation to set out the  
Employer’s position in writing. Ultimately the Union files a grievance over the shift  
suspension.  
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27. April 13, 2020:  
Teeter sends a letter to Hesse announcing immediate suspension of  
the second shift. It expresses “deep concern” with the Union’s “inflammatory” letter of  
April 12, rejects the argument that Cargill’s health and safety measures were insufficient,  
restates the measures taken, and expresses Cargill’s view to be that closure is not  
warranted. It advises that 45% of day shift employees failed to attend work that day and  
says the Union’s letter “likely contributed” to that. It advises that willing second shift  
employees would have opportunity to work on the day shift, according to needs, skills  
and seniority. At the plant level, Tukku has a brief exchange with Tretiak in the cafeteria  
area in which he blames the Union for the loss of the second shift.  
28. April 13, 2020:  
Union representative Joe Attwood e-mails Hale to request full  
updated information on confirmed positive cases in the plant.  
29. April 13, 2020:  
Cargill posts notice in the plant of the immediate shutdown of the  
second shift. It also distributes a letter to second shift employees over LaGrange’s  
signature confirming suspension of the shift and opportunities for second shift workers to  
temporarily move to day shift. It advises that employees unable or unwilling to move  
will be laid off without pay. The shutdown of the second shift in fabrication requires the  
kill floor to be shut down to avoid overflowing the coolers. After this, the kill floor  
remains shut down day-to-day depending on the state of cooler space.  
30. April 14, 2020 (AM):  
A virtual meeting is held between Alberta Occupational  
Health and Safety officials and Cargill. Tukku and Walsh-Rollo are in attendance as  
members of the JWHSC. Tukku asks to have Yeager patched in by phone from outside,  
but this is not done. Yeager sends an email that afternoon, after the meeting is over,  
asking for a call in number. He learns that the meeting was already held. The meeting  
canvasses health and safety measures in place at the plant and promises an OHS virtual  
site inspection at a date to be determined (in fact, it takes place the next day). The OHS  
report of the meeting mentions the Union’s expressed concerns, but does not indicate  
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whether the meeting was intended as a response to those. Tukku and Walsh-Rollo are not  
satisfied with the report, but do not express these concerns to other Union representatives.  
31. April 14, 2020:  
Hale sends a letter to Yeager advising that Cargill had sufficient  
day shift work for all willing fabrication employees to work; and so no employees would  
be laid off at that time. It also advises that kill floor employees with fabrication  
experience were invited to report to the fabrication day shift. Now and following, Yeager  
expresses concern about the consistency and completeness of Cargill communications of  
these work opportunities to the bargaining unit, because bonuses and other compensation  
items may depend on employees’ knowledge that work is available.  
32. April 15, 2020, PM: OHS conducts its promised virtual inspection of the fabrication  
facilities and common areas (the kill floor being inactive). Tukku attends for the Union.  
The OHS report issued the next day notes the health and safety measures in place. It  
concludes:  
It is the opinion of the officer, that the employer, as far as it is reasonably  
practicable for the employer to do so, ensure [sic: ensured?] the health and safety  
and welfare of workers engaged in the work of that employer (…)  
33. April 15, 2020:  
Another friction point appears between Union and Employer. The  
Union had scheduled a virtual “town hall” meeting with members in its industrial units,  
including Cargill, for Sunday, April 19, 2020. To publicize the meeting, and without  
prior notice to Cargill, it engages a contractor to erect a mobile sign outside the plant.  
Similar signs go up in front of other major UFCW industrial employers. The sign  
mentions COVID-19. Hale calls Yeager. He is upset. Several emails follow between  
them, and the exchange becomes acrimonious. He tells Yeager the sign is on company  
property. Yeager denies any intent to use company property and requests property  
information to support moving the sign. Verbal information only is provided. After a  
delay, the sign is moved, but Yeager chides Hale for being so concerned about the  
Union’s communication to its members.  
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34. April 16, 2020:  
AHS convenes a virtual meeting on the state of COVID-19 at the  
plant. Hesse, Yeager and Teeter attend. AHS participants leave the impression upon the  
Union that they are attempting to broker better communication between Employer and  
Union. The Union expresses the need for more factual information on the current state of  
the workforce and the case numbers that AHS is recording. The meeting ends when AHS  
indicates its allotted time is up. Two days later (April 18), Teeter forwards Yeager the  
April 15 OHS inspection report, and a full list of employees who are under quarantine for  
either a positive test, a close contact, or screened out by active screening. In this e-mail,  
Teeter confirms to Yeager that management is willing to have him and Hesse tour the  
plant. The invitation is not accepted, and no tour takes place.  
35. April 17, 2020:  
In the course of an email enclosing notes of the April 14 OHS  
meeting, Siki asks Tukku and Welsh-Rollo for the names of possible “rovers” (i.e.,  
walking stewards) for the reduced shift currently operating. Yeager emails Hale and  
Tretiak to protest Siki’s involvement in assignment of walking stewards and directs that  
such matters go through himself or Attwood.  
36. April 17, 2020:  
The Union concludes from AHS sources that there may be over  
300 cases of COVID-19 at the plant.  
37. April 17, 2020:  
Teeter informs Yeager that Alberta government officials and  
Cargill will be conducting a virtual “town hall” meeting of their own on Saturday, April  
18, 2020, the day before the Union’s meeting. Yeager reports this to Hesse. The Union  
is unhappy with the news, considers that it is likely to undermine the Union’s own  
meeting the next day, and is concerned at the possibility it was purposively scheduled to  
do so and may have been a response to the sign controversy. To Yeager, Teeter offers to  
try to get the meeting moved, but it is not.  
38. April 18, 2020 (AM):  
The Union sends a letter by email to members. It  
disparages Cargill’s and the government’s motives in scheduling that afternoon’s meeting  
as late and inauthentic. It reminds members to join the “real authentic” town hall  
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meeting, the Union’s, the next day to get the “real facts” and “real truth”. It tells  
members the Union is aware of 358 confirmed cases from the plant, with one member in  
intensive care.  
39. April 18, 2020 (afternoon): The government/Cargill town hall takes place. Union  
officials are not invited to participate, but Walsh-Rollo and Yeager attend virtually. The  
presenting panel includes only one production employee. Yeager’s opinion is that the  
call was aimed at conveying the messages that the plant was safe and it was imperative  
the plant stay open.  
40. April 19, 2020:  
The Union town hall is held. “A few thousand” members  
participate, the largest number from Cargill. Hesse speaks to general issues. Yeager  
speaks to Cargill-specific issues, including reinforcing Teeter’s information about  
availability of work.  
41. April 19, 2020:  
The first employee fatality from COVID-19 at Cargill. A female  
worker in fabrication dies of the virus. The Union learns of it the next day.  
42. April 20, 2020:  
Cargill management decides to temporarily idle the entire plant.  
Teeter discloses this to Yeager by phone and indicates a planned closure date of  
Wednesday, April 22, after the coolers were emptied. Yeager follows up with questions  
on the operational details of the shutdown.  
43. April 21, 2020:  
Yeager corresponds with Hale for details of how the idling period  
will roll out, whether maintenance or other non-production employees will report to  
work, and what level of income maintenance will operate. Teeter responds to Yeager’s  
email of the previous day with some details. She indicates the Employer will not be  
implementing a layoff, but paying guaranteed weekly hours instead. Hale responds the  
next day, April 22, to the same effect, adding that Maintenance, Waste Water and  
Warehouse personnel will continue to work.  
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44. April 22, 2020:  
45. April 22, 2020:  
The plant closes to slaughter and fabrication employees.  
Union counsel Mark Wells, at Hesse’s instruction, writes and  
sends a letter to Teeter, OHS Investigations Unit Director Marc Smith, and Labour and  
Immigration Deputy Minister Shawn McLeod. It formally reports the death of the Cargill  
employee and states that another Union member is hospitalized and in medical distress.  
It calls for an investigation. It demands Union participation in that and any further  
investigation. It expresses frustration with the level of information provided by Cargill to  
the Union, and skepticism at the accuracy of the information provided so far. Deputy  
Minister McLeod replies on April 26, 2020, advising that OHS has issued a demand to  
the Employer to carry out an investigation, and prepare a report with participation of the  
JWHSC, as required by the Occupational Health and Safety Act.  
46. April 23, 2020:  
Hesse writes a letter to the Premier. It calls for a new regulatory  
regime for food industry employers during the COVID-19 pandemic. It outlines what the  
Union sees as necessary features of that regime, both generally in the food industry and  
specific to grocery stores. The letter is a call for government action and is not sent to  
Cargill. It is copied to many political and trade union officials.  
47. April 23, 2020:  
OHS schedules an inspection of the plant for the afternoon of  
Monday, April 26. Cargill advises the Union and invites a Union representative.  
48. April 24, 2020:  
The Union files a group/policy grievance alleging breaches of the  
collective agreement, occupational health and safety legislation, and public health orders.  
It canvasses the course of the pandemic at the plant to date and the Employer’s response.  
It cites the death of one member and the hospitalization in ICU of another. Prominent in  
the particulars are allegations that the April 15, 2020 OHS virtual inspection was  
inadequate; and that Tukku and one other member had been called back to work from  
COVID-19 isolation in breach of the quarantine period. It alleges failure to adequately  
involve the Union in the COVID-19 response and “reckless and negligent” actions in  
respect of safety.  
Classification: Public  
16  
49. April 24, 2020 (PM):  
Teeter sends an invitation to the Union to participate in a  
tour of the plant along with OHS officials on April 27, 2020. Mr. Wells at Hesse’s  
instruction responds two days later, on Sunday, April 26. The letter takes issue with the  
conduct of a tour of the idled plant without progress on the Union’s grievance, its April  
22, 2020 call to OHS for an investigation into the employee death, and Hesse’s letter to  
the Premier. It calls for a “worker-based methodology” to identifying COVID-19  
hazards at the workplace. The letter nevertheless engages cautiously on the subject of a  
tour and requests information on its origin, the participants and the scope of the  
inspection, among other things.  
50. April 27, 2020:  
Cargill outside counsel Alison Adam responds to Wells. She  
rejects criticism contained in his letter and restates Cargill’s intent to have a Union  
representative at that afternoon’s inspection. The in-person inspection occurs as  
scheduled. Yeager attends it. During the inspection, Yeager takes some photos on his  
phone. This generates a side controversy that the photos may disclose Cargill proprietary  
business information in connection with the plant layout. Adam emails Wells that  
afternoon to protest and seek for the photos be deleted. Yeager refuses to delete photos  
identified as problematic by Cargill. There is no indication in the record that Cargill  
pursued it further.  
51. April 28, 2020:  
OHS releases its report of the previous day’s inspection. The  
report details the health and safety measures in place, insofar as those are apparent in the  
idled plant.  
52. April 29, 2020:  
There is apparently another inspection of the plant by AHS, OHS,  
and the Canadian Food Inspection Agency. The Union is not advised or invited. We say  
“apparently”, because there was no evidence about it except for a mention in Exhibit #A-  
49, the Employer’s document entitled “Safety Measures Taken by Cargill in Response to  
COVID-19”.  
Classification: Public  
17  
53. April 29, 2020 (morning):  
Yeager e-mails Teeter to say employees are receiving calls  
from supervisors that the plant will soon reopen. Teeter phones Yeager to advise that the  
plant is to reopen on May 4, 2020.  
54. April 29, 2020 (PM):  
That afternoon a press release issued by a Calgary media  
consultant confirms the reopening. It contains a quote attributed to Cargill’s President  
containing the assertion: “We’ve been in regular communication with the union, AHS  
and OHS and have welcomed them for site visits which served to validate the enhanced  
safety measures in our facility”.  
55. April 29, 2020 (PM):  
A letter from LaGrange goes to employees stating a return  
to work for May 4 and May 6, 2020, for slaughter and fabrication employees  
respectively. It states the health and safety measures adopted both before and during the  
shutdown. It also takes issue with four items of “misinformation…circulating in the  
community” and attempts to refute them.  
56. April 29, 2020 (PM):  
Teeter emails Hesse. She attaches the LaGrange letter to  
employees and states that Cargill is meeting the “majority” of items specific to food  
manufacturing contained in Hesse’s April 23 letter to the Premier.  
57. April 29, 2020 (PM):  
Shortly before this, Hesse emails Teeter to say that Cargill  
should not reopen the plant. He speaks of the lack of any “reliable process” to conclude  
the plant is safe. The message closes by saying “Our concerns are grave. We will be  
taking steps to prevent reopening. (…)”.  
58. April 30, 2020:  
At Hesse’s instruction, Wells sends a letter to Deputy Minister  
McLeod, OHS Director Smith, and Teeter, requesting that OHS and Alberta Labour issue  
a “stop work” order for the High River plant under the Occupational Health and Safety  
Act. Alternatively it requests active OHS monitoring of the reopening of both parts of the  
facility. It alleges that Cargill had not yet investigated or reported on the fatality and  
serious illness complained of by the Union in its April 22 letter. It indicates that AHS  
Classification: Public  
18  
sources had confirmed as of April 28 seven Cargill employees hospitalized, of which five  
were in intensive care. The letter then listed the Union’s outstanding concerns with  
OHS’s processes, including: failure to speak with employees in the investigation; failure  
to share hazard assessments, COVID-specific safety policies, or other safety documents,  
with the Union; and failure of the investigation to address a number of issues like  
crowding, enforcement of safety policies, staff shortages, and adequacy of personal  
protective equipment. It complains of the Union’s exclusion from inspections by OHS,  
AHS, or the Ministry of Labour and Immigration leading to the determination the plant  
could be reopened. Cargill by counsel responds the same day, rejecting allegations it has  
not complied with its OH&S obligations, but agreeing to UFCW’s suggestion that an  
OHS officer be assigned to monitor the resumption of operations.  
59. May 1, 2020:  
This Complaint is filed with the Labour Relations Board, leading  
to the appointment of Vice-Chair Kanee under section 11 of the Code, and the interim  
agreement in effect pending this litigation. The Union also files a group/policy grievance  
about the cancellation of the second shift on April 13, 2020, and two grievances about  
weekly pay guarantees for that and the following week.  
60. May 3, 2020:  
Hesse emails Teeter during the course of the LRB mediation.  
Although he speaks of being encouraged by some of the dialogue, he also reports that a  
poll of Union members recorded 85% were afraid to return to work and 80% believed the  
plant should not reopen. He requests that Cargill voluntarily continue to idle the plant  
pending results of the Board’s process.  
61. May 4, 2020:  
62. May 6, 2020:  
63. May 7, 2020:  
Slaughter operations reopen as scheduled.  
Fabrication operations reopen as scheduled.  
The second death occurs in the bargaining unit. A senior employee  
and shop steward dies after a lengthy time in intensive care.  
Classification: Public  
19  
[15] With this timeline in mind, we briefly state the Union’s Complaint. We then canvass the  
evidence of each witness insofar as it bears on the case. We have not attempted to exhaustively  
reproduce witnesses’ testimony, but have selected the aspects of the evidence that we considered  
important to the issues.  
C. The Complaint  
[16] The thrust of the Complaint was stated by the Union as follows, after extensive  
particularization of the facts:  
71.  
The Employer suspended the 2nd shift operations, resulting in lost shifts,  
confusion, fear, and uncertainty to employees in retaliation for the Union representing  
their members and advocating on their members’ behalf on issues of health and safety.  
By taking this retaliatory action the Employer is trying to ensure workers fear for their  
employment, attend work and not exercise their right to a safe and healthy workplace.  
72.  
Further, the Employer has refused to substantively deal with the Union with  
respect to the COVID-19 outbreak at the workplace, creating mass confusion, and  
interfering with the Union’s ability to represent its members in a most critical time.  
There is an ongoing failure on the part of the Employer to consult with and include the  
Union in discussions and decisions related to COVID-19, while at the same time the  
Employer is taking its message directly to employees and/or allowing the government to  
do it for them. The Employer’s decision to reopen the facility again created fear,  
confusion and uncertainty. The Employer failed to consult with the Union on this  
decision or give them appropriate Notice. The employer’s communication to employees  
in respect to the reopening was inaccurate and misleading and/or designed to create  
employee distrust in the Union. The Employer’s conduct has served to interfere with the  
representation of employees by the Union and the employees’ rights to representation in  
violation of s. 148(1)(a)(ii) and 149(1)(b) of the Code. Employees are particularly  
vulnerable during this time of pandemic and in light of the rapid increase of COVID-19  
cases at their workplace; ignoring their Union and retaliating against employees for their  
Union advocating for employees’ health and safety is particularly egregious interference  
with representational rights.  
73.  
The Employer’s conduct has also discriminated against the affected employees in  
regard to their employment and/or any term or condition of their employment in violation  
of ss. 149(1)(a)(i), (ii), (viii) of the Code. By taking this action the Employer also sought  
to compel employees to cease to be a member of a trade union in violation of s. 149(1)(c)  
of the Code.  
Classification: Public  
20  
D.  
Evidence of Thomas Hesse  
[17] Mr. Hesse testified about these events from his position of executive responsibility, i.e.,  
about the Union’s strategic response to COVID-19 among all its members’ employers, and not  
necessarily with knowledge of every Union-employer communication pertaining to Cargill. That  
said, he was heavily involved in these events. He started his testimony with comments about the  
unique challenges to representing employees in meat processing plants generally, and  
specifically at Cargill. He characterized the work as hard and dangerous, requiring employees to  
work quickly at minute tasks. The mechanized line running at a set speed makes it impossible to  
perform representational tasks except at breaks and away from the line. The workforce is  
fragmented by their many different languages and cultures and often-imperfect command of  
English. Representation is made more than ordinarily difficult by the large number of  
commuting employees and the sheer physical exhaustion employees feel at the end of a shift. To  
an unusual degree, the Union depends upon face-to-face contact with its members: “It’s like  
social work”, he said, Nothing else is as effective.”  
[18] Mr. Hesse said of the pandemic, “it turned us upside-down”. The Union had to rely  
much more on telephone contact with members and much more upon the in-plant presence of its  
shop stewards, as the full-time representatives found their mobility and frequency of workplace  
visitations reduced. He noted that this plant did not have a large supply of experienced,  
sophisticated shop stewards. To this was added the pressure of having to learn quickly about the  
disease and its workplace implications and then engage with all employers in a “complete  
reassessment” of the normal employer-employee relationship.  
[19] The March 20, 2020 circular to major UFCW employers (Ex. #A-3) was an effort to  
engage in this reassessment. Mr. Hesse characterized the Cargill response as cursory for a plant  
of its size and pointed to its brief discussion of sanitation measures and failure to mention the  
role of workplace health and safety committees. He contrasted it unfavourably to the Union’s  
experience at the Olymel plant in Red Deer, which he visited, and Olymel’s closure of its  
Quebec plant based on a small number of positive cases. He came away with the impression that  
that employer had “real, substantive engagement” with the Union and its employees and a level  
Classification: Public  
21  
of cooperation and transparency not seen with Cargill. In cross-examination, Mr. Hesse agreed  
that he did not follow up with Ms. Teeter about this dissatisfaction with her response, and offered  
the explanation that he was trying to be circumspect and not make a bad situation worse so early  
in the dialogue.  
[20] Mr. Hesse testified to the origins of his Easter Sunday (April 12) letter to major food  
processing employers, including Cargill, and copied to government officials (Ex. #A-10). By  
then he had reports of Cargill’s first positive case and tentative information of an increase to over  
30 cases; news of plant outbreaks in the U.S.; and first cases at the JBS plant in Brooks. He was  
greatly concerned at the trajectory of case numbers. He considered it a matter of conscience to  
do something and wrote and sent the letter calling for a two-week closure, a comprehensive  
safety assessment, enhanced compensation and high-level tripartite meetings of employer, union  
and government to formulate new health and safety rules. He denied any intent to incite Cargill  
workers to stay home, and said, although there was “plenty of enthusiasm” for a wildcat strike, “I  
wouldn’t have it”. Mr. Hesse testified that he was disheartened by Ms. Teeter’s response,  
especially that (in his view) the employer had rushed to blame the Union for absenteeism.  
[21] Later that week, Mr. Hesse was invited by AHS to the April 16 conference call  
concerning safety at the plant. He attended, but was not reassured by what he viewed as AHS  
participants’ qualified answers to the question of plant safety and failure to say whether the plant  
should close or not. His own view was to wonder, if the plant was safe, why were so many  
employees not coming to work?  
[22] The next major event for Mr. Hesse was the controversy over the back-to-back town hall  
meetings on April 18 and 19, 2020. He learned about the meeting of the 18th scheduled by the  
government only a day earlier, in a phone call with the Minister of Labour and Immigration.  
This generated an email exchange between Hesse and Teeter in which he expressed the view that  
the event occurring the day before the Union’s event would be confusing to employees and  
would undermine the Union. He testified, as our notes record it, that “There’s a global  
pandemic, the plant has slowed significantly, there is mass confusion, the message should be to  
employees that they should talk to their union. To the extent they’re saying, ‘don’t talk to the  
Classification: Public  
22  
union, talk to us’, they were at least turning a blind eye to the obvious conduit through which  
information should flow”. Mr. Hesse protested to the Minister of Labour and Immigration the  
next morning (Ex. #A-27), urging him to cancel the government town hall, and saying “[It] feels  
like a dirty trick.”  
[23] The government town hall meeting went ahead, and late on the morning of April 18 the  
Union sent out an email circular to members (Ex. #A-28). It was critical of the government town  
hall, suggested that it was only being done as a result of the Union’s pressure, and urged  
members to ask questions if they attended it. It spoke of 358 cases of COVID connected to the  
plant, and revealed that one employee was in a coma on a ventilator fighting for life. And it  
reminded them that “the REAL AUTHENTIC absolutely necessary Town Hall is tomorrow  
(Sunday) at 2 PM.”  
[24] The Union town hall went ahead the next day. Mr. Hesse testified that his main  
impression of the meeting was “a lot of fear”, that employees were not reassured by what the  
Employer and government were saying.  
[25] By then, Ms. Teeter had extended an offer to Mr. Yeager for he and Mr. Hesse to tour the  
plant to see the safety protocols in place (Ex. #A-29). It is not clear exactly when Mr. Hesse  
became aware of the invitation; but he testified that when he did get it, he was skeptical. He was  
wary of going into a plant that most of his members said was unsafe, and thereby sending  
“contradictory messages”. And anyway, by then the plant had been idled (suggesting he learned  
of the offer only on the 20th); he did not believe it would give the same picture as the plant in full  
operation.  
[26] Mr. Hesse spoke of the letter of April 22 from Mark Wells to Shawn McLeod, Deputy  
Minister of Labour and Immigration, and others (Ex. #A-33) as his acting on the belief that the  
Employer was ignoring the Union and failing to give it reliable, or any, information. It raised the  
specific issue that Cargill’s spreadsheet of employee availability (Ex. #A-29) showed both the  
deceased Union member and the member in intensive care to be available to work. It speculated  
Classification: Public  
23  
that AHS and OHS may have relied upon unreliable information about safety issues at Cargill,  
and demanded that the Union be involved in future evaluations of Cargill’s worksite.  
[27] Discussion continued about a Union viewing of the plant during the idled period. On  
April 23, OHS scheduled an inspection of the plant for the following Monday, April 27. Ms.  
Teeter the next day invited the Union to participate in this inspection. Mr. Wells, again at Mr.  
Hesse’s instruction, replied on Sunday, April 26 (Ex. #A-38), expressing skepticism about the  
inspection’s motivation, advocating a more “worker-centred” approach to safety evaluation, and  
asking a series of questions about the inspection. It closed by saying:  
To be clear, Union officials are very interested in observing and understanding  
working conditions at Cargill’s High River operations, but it strikes the Union  
that if the goal of a “tour” is to establish whether the facility is safe for workers,  
workers’ perspectives should first be obtained. The unfolding tragedy in High  
River appears to be a product of a top-down approach to worksite safety dictated  
by Cargill, Alberta Health Services and Alberta Occupational Health and Safety.  
The Union’s position is that it would be unwise to repeat that approach and expect  
a better result.  
[28] The inspection went ahead with Mr. Yeager in attendance, leading to the side issue of the  
photographs he took in the plant. Two days later, April 29, Cargill announced its reopening  
with one shift on May 4, 2020. Mr. Hesse was put in contact with the communications  
consultant handling the press release and received Cargill’s statement (Ex. #A-43). He testified  
that he was not satisfied with the announcement because it did not contain any representation  
from Cargill that the plant was safe. Further, he did not like the reference in a statement in the  
press release attributed to Cargill North American Leader Jon Nash saying [emphasis added],  
“We’ve been in regular communication with the union, AHS and OHS and have welcomed them  
for site visits which served to validate the enhanced safety measures in our facility”. In his view,  
this was “pure spin, not authentic”. He considered that it was both untrue and an attempt to co-  
opt the Union to look like it was approving the message.  
[29] Mr. Hesse immediately emailed Ms. Teeter to express his view that the plant should not  
reopen, to complain about the lack of any report on plant safety coming out of the OHS  
Classification: Public  
24  
inspection (or otherwise), and advising the Union would take steps to prevent the reopening.  
There followed three days later the Union’s request to OHS for a “stop work” order (Ex. #A-46),  
and another day later this Complaint to this Board. No stop work order was issued, this  
Complaint was mediated to produce an interim protocol, the plant reopened as scheduled, and the  
second member of the bargaining unit died. Through it all, Mr. Hesse testified that he was  
concerned that the plant was reopening in the face of the widespread fear among his members  
and the still-increasing trajectory of COVID-19 cases in Alberta. In his testimony in chief, he  
closed by saying, “Institutionally, the Union struggled with this. But more importantly, our  
members are in an unprecedented head space. The world turned a blind eye to the vulnerability  
of these workers, or that they had a union. Someone needs to say something about that, and  
that’s why we’re here.”  
[30] In cross-examination, Mr. Hesse admitted that his early communications with Ms. Teeter  
did not express any building reservations he may have been feeling about Cargill’s response to  
COVID-19. He was reluctant to “beat up” on company officials at a difficult time, and instead  
thought it best to “shift focus to the plant level”. The atmosphere of the relationship changed,  
however, with Hesse’s Easter Sunday letter and Teeter’s response to it. Mr. Hesse  
acknowledged not thinking about giving Cargill advance warning of his letter. And while he  
admitted that Teeter’s response did engage to some extent on issues of plant safety, he felt the  
“three big asks” – a closure, comprehensive safety assessment, and high-level meetings on safety  
measures were not addressed. He said that from the letter and Mr. Yeager’s reports from the  
plant, production rather than safety was Cargill’s first concern.  
[31] Mr. Hesse was pressed on the seeming disconnect between the Complaint which alleges  
failure to communicate about safety issues, and two invitations to personally view the plant that  
he did not accept. He agreed that the first invitation did not cause him to think differently. In an  
evocative turn of phrase, he said, “It was way too little, way too late… I’m not going to tour  
Hiroshima after the bomb”. Of the second invitation, around April 24, he insisted that it would  
be pointless because it was a “walk-through” of an idled plant, not a real investigation or the  
worker-centred enquiry it insisted upon; and by then, the Union was wary about being drafted  
Classification: Public  
25  
into events that might look like an endorsement of the plant. Whatever value the second tour  
might have, he said, it could not be the basis of a decision to reopen.  
[32] Of the two “Town Hall” meetings scheduled on consecutive days, Mr. Hesse  
acknowledged that he did not know whether Cargill or the Government of Alberta organized it,  
but he maintained that they acted together, and by timing and design it was bound to confuse  
workers and undermine the Union’s position in the workplace when the “obvious legal advocate”  
did not have a central role in the meeting. He agreed that legally the Employer did not need pre-  
approval to speak to its employees about COVID-19 issues, but maintained that it was in ethical  
terms a “dirty trick”, because “in context, it had to look like it was undermining us”.  
[33] Of Cargill’s decision to reopen and the Union’s reaction, Mr. Hesse acknowledged that  
Ms. Teeter attempted to inform him that day (April 29), and later sent an email to him (Ex. #A-  
44) enclosing Cargill’s letter to employees and inviting further discussion. He acknowledged  
that he did not follow up on that invitation, and said that the Union was considering its litigation  
options, so he was not going to engage the Employer under those circumstances.  
[34] Mr. Hesse’s cross-examination ended with a discussion of the cancellation of the second  
shift on April 13th, the day after the Union’s Easter Sunday letter. Mr. Hesse agreed that he was  
made aware of attendance being significantly down that day, but said that he considered Ms.  
Teeter’s response and reports from Mr. Yeager to indicate that the Employer was “in no small  
measure” punishing both the Union and employees; though he agreed it would not be  
punishment of employees for exercising a right under the Code.  
E.  
Evidence of Devin Yeager  
[35] Mr. Yeager was in many ways the principal witness for the Union. As both a salaried  
Union representative reporting directly to Mr. Hesse, and the representative serving as the  
principal Union contact to both plant management and union stewards (in the frequent absences  
of Joe Attwood in collective bargaining), he had the broadest combined knowledge of executive-  
level and shop floor-level events among the Union’s witnesses. Mr. Yeager started his testimony  
Classification: Public  
26  
with discussion of the Union’s presence at the Cargill plant. It comprised a small Union office;  
himself and Mr. Attwood as full-time salaried Union employees with shared responsibility for  
this and at least one other employer (Mr. Yeager’s other charge was the Cargill Case-Ready plant  
in Calgary); part-time or relief representatives Joseph Kob and Ben Salonius; several volunteer  
job stewards; and walking stewards, who are more highly trained than regular stewards. He  
explained that under the collective agreement, walking stewards are entitled to scheduled  
absences from their production jobs to perform representation on the floor and deal directly with  
supervisors and company human resources officers. Walking stewards serve on six-week  
rotations, increased from two weeks at the time of these events.  
[36] Asked about the quality of the overall labour relations relationship at Cargill, Mr. Yeager  
said it was mixed, “we had some good times and not-so-good times”. Though he would not call  
it one of the Union’s “better” units, the Union had a fair working relationship with some of the  
human resources officers, and he had worked successfully with Ms. Teeter as lead negotiators for  
the most recent Cargill Case-Ready agreement.  
[37] Mr. Yeager’s testimony about the events in question started with the issue of walking  
stewards not being released at scheduled times. He noted that restricting the mobility of the  
walking stewards and replacing them with other representatives put the Union and employees at  
a disadvantage, both from the loss of the walking stewards’ greater knowledge and experience,  
and the loss of continuity when issues are dispersed among several stewards. He said that he  
advised Devin Tretiak that the Union was willing to work with the Employer to overcome  
problems, but that it could not let the Employer nominate its stewards.  
[38] The walking stewards issue came up again in mid-April, when Yeager received Renee  
Siki’s email transmitting the OHS Report of its April 14, 2020 virtual meeting and the  
accompanying mention of the “rovers” (walking stewards) issue. Mr. Yeager said that he  
“keyed” on the mention of the rovers, and was concerned that the health and safety department  
was now attempting to get involved in the assignment of walking stewards. Historically this had  
been a matter for discussion between senior HR personnel and the full-time union  
representatives. Yeager sent Tretiak and Hale an email protesting Siki’s involvement and  
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27  
saying, “We believe that Renee [Siki] has shown a pattern in the last week of attempting to  
exclude the Union Labour Relations Officers [i.e., he and Attwood] from discussions or meetings  
and as such, we request that she should direct all labour relations matters to either yourselves to  
address to us, or to us directly”.  
[39] The next significant issue in time was the Union’s early request for more frequent health  
and safety meetings, tracking the experience at the Olymel plant. He was disappointed in the  
Employer’s failure to adopt that idea, and further at the news that he would be restricted from  
attending at the plant because of the new Cargill rule against employees moving between  
locations. At the time, Joe Attwood was heavily involved in collective bargaining for the  
Union’s very large Safeway bargaining unit. Yeager’s exclusion thus put the Union in a difficult  
position at Cargill: He said, “we just don’t have enough people trained up to do [the job]”. It  
moved one experienced walking steward to help with phone enquiries, and relied as far as  
possible on phone and video contact, but, in his words, “it was a busy, trying time”.  
[40] Mr. Yeager testified at length about the consequences of the first confirmed case at  
Cargill on approximately April 4. He said that without accurate information directly from the  
Employer, the Union was left to contend with the “rumour mill”. Supervisors sometimes  
announced news of a positive case, sometimes it was simply employees chasing information  
about an absence, but “the anxiety level spiked, exponentially”; and it manifested itself in Union  
voicemail systems being inundated with calls and demands for information from “freaked out”  
employees. There was confusion between public gathering limits instituted by Alberta Health  
and workplace restrictions, many employees asking why Cargill continued to operate with so  
many employees close together. Rumours developed about absent employees coming back to  
work inside the isolation period. And some employees reacted badly to Dale LaGrange’s April  
8th notice urging compliance with public health directives over the upcoming Easter weekend,  
asking (in Mr. Yeager’s words), “why the concern about 15 people and not the 500 people on the  
production floor?”  
[41] Mr. Yeager confirmed that he was not made aware of the first AHS site visit to Cargill on  
the afternoon of April 7 until after it occurred.  
Classification: Public  
28  
[42] There was still no progress on increasing the number of health and safety meetings going  
into the Easter 2020 weekend. Yeager started getting reports from his stewards that there were  
many more positive cases than the five the Union knew about. Even though Cargill shut down  
production for the Saturday and Sunday, Union phone and email systems were jammed with  
enquiries. Yeager had started building a list of reported COVID-19 related absences among the  
membership, and he reported his concerns to Mr. Hesse leading up to Easter Sunday. He was  
involved in the review, but not the writing, of Mr. Hesse’s Easter Sunday letter and oversaw its  
communication to members through the Union’s email system. And he spoke with Ms. Teeter  
that day and the next, first clarifying that the Union was not inciting a stoppage and would be  
telling enquiring employees that the plant was not closed and they should “wait to hear from  
your employer”; and the next day, repeating that the Union was not inciting employees not to  
come in to work, then discussing whether the Employer would treat a suspension of the second  
shift as a layoff. He said that he fielded many employee calls that day, mostly asking why the  
plant was not closing down, and after the shift suspension announcement, whether they were laid  
off and what should they do now?  
[43] Cargill soon backed away from the thought of laying employees off and instead resolved  
to merge willing workers into the remaining shift, as it explained to the Union (Ex. #A-17) and  
started trying to communicate to its workforce. But that, Mr. Yeager explained, made the  
Union’s communication difficulties with the Employer and with its members more acute. The  
Union had no answers for how and when enquiring members would be contacted about the  
availability of work. It faced confusion among members whether they were laid off or not, and it  
was unhappy that management efforts to contact employees about the availability of work (when  
attendance bonuses might depend upon it) seemed to it to be haphazard. Further, the Union had  
not yet received the positive case numbers from the Employer it had requested and took to  
prodding management about it (Ex. #U-19). The situation was made more chaotic by a  
temporary shutdown of the kill floor when the loss of the second fabrication shift created a  
bottleneck in the coolers. Mr. Yeager spoke of the Union having to assign up to six people to  
triaging phone enquiries from members.  
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[44] The Union remained confused and unsatisfied with the Employer’s direction on health  
and safety issues. Yeager testified that he and his colleagues did not see how merging two shifts  
into one, at an unreduced chain speed, helped to achieve social distancing. And they were  
concerned that they were learning about some safety measures, like the installation of Plexiglas  
shielding between stations, only from Ms. Teeter’s communications to Mr. Hesse.  
[45] Mr. Yeager’s testimony then turned to the three main events of that week (April 13-19):  
the OHS conference call of Tuesday, April 14 that he attempted to join but did not; the April 16  
conference call with AHS officials that he and Mr. Hesse attended; and the controversy over the  
upcoming Town Hall meetings, including the conflict over the Union’s sign advertising its  
meeting. Of the OHS call, he confirmed that he was waiting to be patched into the call, but  
never was. He learned that Miriam Tukku had asked for him to be on the call, but received no  
answer. When he received a copy of the OHS report of its virtual inspection the next day, he  
was struck by a reference to “rovers”, the walking stewards, and became concerned that Cargill  
health and safety officials, principally Renee Siki, had started to become involved in the  
assignment of walking stewards. The result was an email from Yeager to Rob Hale and Devin  
Tretiak (Ex. #A-25) expressing concern at this, reiterating that this was an issue to be directed to  
himself and Attwood, and asking how the Employer was meeting its obligations to release  
walking stewards with the kill floor suspended.  
[46] Of the April 16, 2020 virtual meeting with AHS officials, Mr. Yeager, like Mr. Hesse,  
thought that AHS was making an effort to facilitate dialogue between the parties. He said the  
tone was one of, “how do we move forward?”, but much of the time was occupied by he and Mr.  
Hesse getting basic information from AHS: case numbers, contact tracing procedures, and  
inspection procedures, for example. Yeager said that Union participants were surprised when  
AHS ended the call, and said that had they known there was limited time, they might have  
allocated their own time differently.  
[47] Mr. Yeager related his dispute with Rob Hale over the placement of the Union sign  
advertising the Union town hall meeting of April 19, 2020. It spanned several phone calls and e-  
mails in which Hale was insistent that the sign had been erected on Cargill property and  
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demanding removal, while Yeager disavowed any intent to trespass, asked for the real property  
report to show the property line, and informed Hale that he was doing what he could to get the  
sign moved. The sign was eventually moved after the discussion had descended to mutual  
threats of removal and legal action. Mr. Yeager testified that the main thing he took away from  
the exchange was that the Employer was focused on something trivial like the sign, where it  
should have been more concerned with getting health and safety information to the Union.  
[48] At the time of this exchange, the Union was not yet aware of the government/Cargill  
telephone town hall meeting scheduled for April 18 (we will call it the Government” meeting,  
while acknowledging the initial ambiguity about who sponsored it; the best indication in  
evidence is the e-mail from Ms. Teeter to Mr. Hesse on the evening of Friday, April 18, Ex. #A-  
26, in which she attributes the meeting to Alberta’s Minister of Agriculture). Mr. Yeager said  
that he did not believe that it had yet been set up, and he believed “they” – in context, probably  
Cargill, though he did not specify – got the idea after learning about the Union’s meeting. When  
he did learn about the Government town hall, on Friday, April 18, he too was concerned about  
the prospect of confusion among employees. He attended the Government town hall meeting,  
and testified that to him, the call was a joint effort between Cargill and the Alberta government.  
It was a moderated call; the Minister of Labour and Immigration, Minister of Agriculture, Chief  
Medical Officer of Health, and Cargill senior executive Jon Nash were all present. In Yeager’s  
view, the dominant message was that the plant was safe and it was imperative that it stay open.  
He contrasted it with the mood of the Union’s town hall the next night, where he agreed with Mr.  
Hesse’s testimony that there was a great deal of fear expressed about the safety of the plant.  
[49] Mr. Yeager’s testimony then turned to the events of the first “shutdown week”, April 20  
to 26, 2020. On the evening of Saturday the 18th, he had received Ms. Teeter’s email attaching  
the report of the OHS inspection on the 15th and a full list of Cargill employees with quarantined  
employees highlighted, along with the invitation for he and Mr. Hesse to tour the plant. Like Mr.  
Hesse, Mr. Yeager indicated that they did not follow up the invitation, for fear that the Employer  
was trying to enlist the Union into validating its safety claims. However, on Monday the 20th, he  
then learned from Ms. Teeter that the plant would be idled on the following Wednesday. The  
next day, he sent emails to Mr. Hale and Ms. Teeter asking for some details of who, if anyone,  
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remained working, their hours, employer contact information during the shutdown, the  
anticipated length of the shutdown, and employee pay while idled. Late that day, Ms. Teeter  
responded with answers to most of these questions (Ex. #A-31). She indicated that maintenance  
and other ancillary employees would tentatively work through, some shift schedules might  
change for them, the shutdown would last that week and the next, and the Employer would pay  
employees’ weekly guaranteed wages rather than lay them off.  
[50] Asked what his view of the shutdown was, Mr. Yeager responded that it was the right  
thing to do, but it had been too late and the Union remained concerned that some employees  
were still working. He also said, “we were questioning whether it was sincere or just motivated  
by the first fatality”.  
[51] The second week of shutdown, April 27 to May 3, 2020, was dominated by the OHS  
inspection of the idled plant on Monday, April 27. Mr. Yeager testified that he received notice  
of it and an invitation to participate from Ms. Teeter on April 24, but collectively he and his  
UFCW colleagues were unsure of the intent, i.e., was it in preparation for a relaunch, and were  
again suspicious that it was an attempt to co-opt the Union into the message that the plant was  
safe. He attended the OHS inspection on April 27. He said that he was generally happy with the  
OHS Officer’s conduct of the tour, and wanted to document with his phone camera the items that  
the OHS Officer was looking at. This is what led to the dispute over his photos of the plant  
floor. Mr. Yeager said that he also asked Renee Siki about rumours of the plant reopening on  
May 4, a week away, but both she and Plant Manager Dale LaGrange deflected the question. He  
noted, however, that upon returning to his office he was already in receipt of a letter from Cargill  
counsel objecting to the picture-taking. He said that this was “part of the pattern of focusing on  
small things rather than the things of real importance”.  
[52] Mr. Yeager testified that on the Monday and Tuesday (April 27-28), he received  
increasing reports from members that Cargill supervisors were talking about reopening the plant  
on May 4, 2020. So, on Wednesday, April 29 he emailed Ms. Teeter to ask her directly. She  
responded that it was true, the decision had just been made. That afternoon, Cargill’s  
announcement to that effect was released (Ex. #A-43); Ms. Teeter confirmed the news to Mr.  
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Hesse, forwarded to Mr. Yeager; and a letter over Mr. LaGrange’s signature went to Cargill  
employees (Ex. #A-44).  
[53] Of Cargill’s public announcement of the reopening, Mr. Yeager testified that the Union  
was concerned about some of the content of the quotation attributed to senior executive Jon  
Nash. (Ex. #A-43) The quotation said, in part:  
In partnership with health, regulatory officials and after taking actions suggested by the  
local union, we have made the decision to reopen our facility (…).  
(…)  
We’ve been in regular communication with the union, AHS and OHS and have  
welcomed them for site visits which served to validate the enhanced safety measures in  
our facility. (…)  
[54] Mr. Yeager said that these comments made it seem to employees as if the Union had been  
involved with the reopening more than it was, while in fact it had not been given the information  
needed to approve what the Employer had done. He said, “I was allowed into the plant for the  
first time two days prior, and to say that we’re working with them is inaccurate”.  
[55] The LaGrange letter to employees of that day set resumption dates of May 4 and May 6  
for the kill floor and fabrication employees respectively, outlined safety measures in place, and  
sought to correct several points of what Cargill referred to as “misinformation” about the  
COVID-19 response at Cargill. It also made references to the Union:  
“Cargill will begin reopening the High River facility on May 4. This decision comes  
after significant deliberation among the Cargill leadership, as well as discussions with  
your Union and support from health authorities and other regulators. (…)  
“We have also been in communication with the local UFCW, inviting them to be part of  
an April 16 discussion with AHS and subsequent meetings. While our views and  
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approach differ, we believe that we share the same goal: to ensure your safety and  
wellbeing. (…)  
[56] Mr. Yeager said that he and his colleagues did have some concern about the content of  
the LaGrange letter, mostly that the reference to “misinformation”, Cargill’s pledge of “honesty”  
and the listing of the points it responded to, gave an impression of disparaging the Union’s  
message and work.  
[57] When questioned about the Union’s April 30, 2020 letter to Alberta Labour and  
Immigration Deputy Minister McLeod and others, Mr. Yeager indicated he contributed  
background information for its drafting.  
[58] Mr. Yeager concluded his direct examination by speaking of his involvement in the  
reopening. He said that he attended two Zoom calls with AHS and employees at the plant, and  
participated despite not being initially invited, and being “heavily vetted” by the AHS  
participants at the outset. He also followed the AHS and OHS tours of the facility on May 3,  
2020, and joined the debriefing afterwards. Mr. Yeager also identified the Union’s letter of May  
4, 2020 to the OHS Officer responsible for the inspection, constituting a final effort to have the  
reopening stopped. He explained that he and his colleagues were not satisfied the plant was safe  
because, as he put it, “the basic tenor of a lot of the inspection on May 3 was, “we’ll figure it out  
as we go”. And he spoke of Cargill’s list entitled “Safety Measures taken by Cargill in Response  
to COVID-19” (Ex. #A-49) to indicate that that document had not been shared with the Union  
before and “none of this was known to us” around the dates stated for their implementation. He  
expressed the criticism that the safety reviews had not sufficiently involved the workers  
themselves, had not shared hazard assessment and other safety documents, had not involved the  
JWHSC, and failed to address several topics.  
[59] Overall, Mr. Yeager offered the view that the central aspect of the Union’s dissatisfaction  
with Cargill’s actions during these events was what he called the Union’s “exclusion” from  
health and safety discussions and the responses Cargill adopted. He said, “I jokingly refer to [the  
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health and safety issues] as a ‘national secret’. I think this has caused the issue we’re here  
about”.  
[60] Mr. Yeager was cross-examined first about the early issues that developed between the  
parties about walking stewards, and relaxation of grievance time limits. Of the walking  
stewards, he acknowledged that the issue was not the Employer’s refusal to give walking  
stewards release from their duties on the line, but purporting to designate their replacements. He  
agreed that this issue died down between himself and Devin Tretiak by the end of March, only to  
be revived when the amalgamation of two shifts into one after April 13, 2021 occurred. He said  
of this, “I think Devin [Tretiak] was honest, he was trying, but I think that he was not always  
being told of the situations developing out on the floor”.  
[61] Of his conversations with Rob Hale on suspension of grievance time limits, he agreed  
that he interpreted Hale’s refusal to suspend limits to be related to any grievance with a monetary  
value, not just ones where liability builds over time.  
[62] The next topic in cross-examination was the abortive attempt to schedule a meeting  
Yeager made to Hale on March 30, 2020. Mr. Yeager acknowledged that his initial proposal was  
for a meeting on short notice of only a few hours and required “rounding up” participants from  
other areas, though he noted that the short notice was not unprecedented between them. He  
confirmed that Hale did not refuse a meeting outright, but wanted them less often and wanted  
someone other than Yeager to participate because Yeager was exposed to another workplace. He  
agreed that he did not respond to this by email, but only sent a letter saying he would speak to  
legal counsel. The request for a meeting was not renewed until April 9, a week after Hale’s  
response. Mr. Yeager agreed that this was not a type of meeting contemplated by the parties’  
collective agreement, though it was “not unusual” for them, and that he did not assert any  
provision of the agreement (notably Article 15.5) to any of Hale, Tretiak, or Tanya Teeter in  
support of the demand for a meeting.  
[63] Mr. Yeager was asked about the follow-up to Mr. Hesse’s letter of March 20, 2020  
advocating pandemic response measures to Cargill and other food industry employers, and Ms.  
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Teeter’s “disappointing” response of March 23. He agreed that he had been left as the person  
responsible for follow-up, and did not specifically raise the letter with Mr. Tretiak in their  
meeting the next day. He said that they talked about some topics around COVID-19, like traffic  
flow, social distancing in congested areas, and the special problem of the cafeteria. He said that  
it was a “good conversation”, and he did not fault Tretiak if he did not yet have answers.  
[64] The lack of information coming from the Employer to the Union about positive cases was  
a theme in Mr. Yeager’s direct examination. In cross-examination, he was asked about the news  
of the first confirmed COVID-19 diagnosis among plant employees, and how it was  
disseminated. He testified that Hale had told Joe Attwood that supervisors were the source of the  
information, and the Employer had directed them to tell employees in small groups. Asked,  
“what was your problem with that?”, Mr. Yeager responded, “it makes us look useless if we  
don’t get that information beforehand”. Mr. Yeager took the question up with Ms. Teeter, who  
said she was willing to share that information, but only on the strength of confirmed case  
information, not rumours. Unfortunately, rumours were rife, there would be delays before  
Cargill got the information, and then it might be conveyed to any of several people in the  
Union’s and Employer’s organizations.  
[65] On that same theme, Mr. Yeager had expressed unhappiness about not getting advance  
notice of Mr. LaGrange’s April 8 letter to employees about the second positive test at the plant  
(Ex. #A-9). He agreed, however, that he was not entirely sure about that, and that an email in  
Exhibit #E-43 shows that the Union was indeed given advance notice of the letter that morning.  
He also agreed that in another incident around that time, a report received by the Union about a  
sick employee returning to work, the Employer responded quickly and the matter was resolved.  
[66] Cross-examination then moved to the April 7, 2020 site visit by AHS personnel that the  
Union was not invited to. Mr. Yeager could not recall whether he expressed displeasure to Ms.  
Teeter when they next spoke. He confirmed that Teeter agreed to share information about the  
report verbally, without committing to sharing the report itself without having seen it; and he  
acknowledged that AHS in fact did not send out any report.  
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[67] Turning to Mr. Hesse’s Easter Sunday letter and its aftermath, Mr. Yeager confirmed that  
there had been no attempt by the Union to deal with the confusion among employees by sending  
a mass email to members calling on them to report to work. Instead, he and his colleagues were  
completely occupied with responding to employees individually. He acknowledged that  
attendance the next morning, April 13, was reduced, though he did not have numbers. He agreed  
that Ms. Teeter did not tell him that the shift suspension was an attempt to punish employees for  
the Union’s Easter Sunday letter, but says that he considered that to be the effect. And he  
confirmed that the Union filed a grievance over the shift suspension, one of the issues being  
whether the Union’s letter made the situation one “outside the company’s control” that obviated  
the requirement of two days’ notice of layoff.  
[68] There was significant cross-examination about the missed meeting with representatives of  
OHS on the morning of April 14, 2020. Counsel reviewed two related lines of communication:  
a text string between Myriam Tukku and Renee Siki from the previous day (Ex. #A-15); and an  
email string from that day between Siki and Joe Attwood, copied to Mr. Yeager (Ex. #E-46).  
Reading them together, Mr. Yeager confirmed that, in fact, three meetings were originally  
scheduled for April 14: the virtual meeting with OHS in the morning, and the joint ergonomics  
committee (JET) and JWHSC meetings that normally proceeded in the afternoon. On April  
11, Ms. Siki proposed cancelling both the JET and JWHSC meetings. The next day, Ms. Tukku  
asked that the JWHSC meeting go ahead.  
[69] The text string between Tukku and Siki occurred the evening of the next day, Monday,  
April 13. Tukku asked, “what about including Jamie [Walsh-Rollo] and Joe Attwood in  
tomorrow’s safety meeting?”. Siki responded, “Sure they could join the call if they are in the  
plant?”. Tukku replied, “Are you able to get Jamie off the FAB floor and Joe will be there  
tomorrow.” Siki agreed, “Okay, will need to schedule a larger room for everyone to fit.(…)”.  
And the next morning, Siki confirmed to Tukku that the front board room was reserved for 9:30  
am and she and Walsh-Rollo would be let off the floor at 9:15 am.  
[70] Returning to the email string, as of the morning of April 14, the OHS call was going  
ahead at 9:30 am and no steps had been taken to have the afternoon joint committee meetings go  
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ahead. Forty minutes before the start time of the OHS meeting, Joe Attwood advised Siki,  
copied to Yeager, that “someone from my office would attend” on “this [unspecified] call”. Ten  
minutes later, Siki advised Attwood, copied to Yeager, that she had arranged the larger front  
boardroom for in-person attendees to meet social distancing requirements. The OHS virtual  
meeting went ahead at 9:30 am. Mr. Attwood was not there. Ms. Tukku asked for Yeager to be  
patched into the call. This did not happen. At 2:41 p.m. that day, Mr. Yeager emailed Ms. Siki  
asking for a call in number for the meeting. She advised that the call with OHS had already  
taken place, OHS would provide a report of the call, the JWHSC meeting was cancelled, but she  
was open to rescheduling it for the next week.  
[71] In cross-examination, Mr. Yeager confirmed what was plain from the overlapping text  
and email strings: that Siki had voiced no objection to Joe Attwood attending the OHS safety  
meeting, and it was anticipated that it would be Attwood attending for the Union along with  
Tukku and Walsh-Rollo. He confirmed that he had not been happy that he and Attwood had not  
been included in the original emails about the cancellation of the JET and JWHSC meetings, but  
acknowledged that he had not attended any of these meetings before. To counsel’s question  
whether Attwood had attended at any time since relinquishing his co-chair responsibilities in the  
fall of 2019, he could not say.  
[72] Of his 2:41 p.m. email on April 14, after the OHS meeting had concluded, Mr. Yeager  
acknowledged that he had believed the meeting in question was the regular JWHSC meeting that  
afternoon, but noted that there had been no employer response to Tukku’s request he be patched  
into the morning OHS call. He stated that he believed he had been intentionally excluded. To  
counsel’s question of how this squared with Siki’s text expressing willingness to have Attwood  
there, Mr. Yeager could not offer a response. He also agreed that he did not know whether Ms.  
Siki had been present in person for the morning OHS meeting, or had attended virtually.  
[73] Finally on this point, Mr. Yeager was asked why he did not respond positively to Ms.  
Siki’s offer to reschedule the cancelled JHSC meeting. He responded that he did not read Siki’s  
email as a request for his dates, that he gave no specific instructions to reschedule the meeting,  
and, “it was chaotic” at the time. Nor did the Union express interest in a new date for the JHSC  
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meeting in an exchange with Ms. Siki on April 17, when she raised the topic. Mr. Yeager said  
he strongly denied the suggestion that the Union was not interested in another meeting, but  
acknowledged there was no evidence of that interest in this email.  
[74] Cross-examination then turned to the April 16, 2021 call with AHS that Messrs. Yeager  
and Hesse attended. Mr. Yeager reiterated that the Union had been cut off before they had  
finished their questions, but could not speak to the proposition that AHS had scheduled the  
appointment and limited it to one hour, nor that AHS had been the party to conclude the call.  
Mr. Yeager was pressed, however, on the matter of the follow-up to this meeting. He  
acknowledged that Mr. Hesse in the conference call had mentioned that the Union had not been  
afforded an opportunity to tour the plant, and that Ms. Teeter in her follow-up email two days  
later (Ex. #A-29) did offer a tour to either or both of Yeager and Hesse. Questioned why neither  
accepted the offer, he repeated Mr. Hesse’s testimony to the effect that, as he put it, “it would be  
hypocritical to say the plant was unsafe, and then be paraded around to make it look like an  
endorsement”.  
[75] Cross-examining counsel then asked a pointed question, which our notes record as:  
“How can you reconcile saying, we aren’t being told what the company is doing, then when  
invited to see, we won’t go, and we’ll later say in a complaint that they aren’t telling us what  
they’re doing?” Mr. Yeager did not make a substantive reply. To counsel’s follow-up, “It’s the  
optics, isn’t it?”, he denied it, without elaboration.  
[76] Of the town hall meetings of April 18 and 19, 2020, Mr. Yeager was asked whether he  
had been worried about the government “getting the first word in” and contradicting the Union’s  
message. He responded that he and his colleagues had inferred that the government had learned  
about the Union’s town hall and then, “only days later, they had one scheduled for the day  
before”. He did not answer the question whether it would have been any different had the  
government town hall been scheduled the day after the Union’s, except to say, “it may have  
been, I don’t know, it’s hypothetical”.  
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[77] Mr. Yeager was cross-examined on an important theme in his testimony, that the Union  
did not get satisfactory information from the Employer on the case counts in the plant at any time  
after the report of 38 cases on April 11, the start of the Easter weekend. Challenged as to  
whether he disbelieved Teeter’s and Hale’s responses that the Employer did not have a number  
to give them, he said, “It was odd to me that they went silent after it went public that there were  
38 cases, it all ceased after April 12. (…) It seemed odd that they were so focused on tracking  
and tracing, yet couldn’t tell us what the numbers were.” In re-examination by Union counsel,  
Mr. Yeager noted that he had not considered the last confirmed case count of 38 to be “small”; it  
was higher than expected, and by far the largest outbreak in the Local. Even the numbers  
publicly released by AHS were not entirely satisfactory, he also said, because they never broke  
the case counts down between salaried employees, contractors, and bargaining unit members.  
[78] Eventually, as the outbreak exploded, AHS began providing the Cargill case numbers  
publicly, but the Union continued to be dissatisfied with its access to the numbers. To counsel’s  
question why it continued to be so concerned, Mr. Yeager responded that he and his colleagues  
were highly concerned that the Union had to rely on the news to learn about its sick members; he  
called it “highly troubling” that this was the case. He admitted that he did not renew his original  
requests for positive test numbers after getting the quarantine list, but said “I didn’t feel I needed  
to repeat [the request] every day”. He also confirmed that he did not approach Ms. Teeter about  
the Union’s concerns about the accuracy of the quarantine list after learning that it showed its  
critically-ill steward as “available for work”. To the question, “why did you file a complaint  
with OHS instead, was it just a desire to be adversarial and give no opportunity to explain?”, he  
responded simply, “we chose to file a complaint, to go another way”.  
[79] The last topic in Mr. Yeager’s cross-examination was the lead-up to the plant reopening  
on May 4. He could not say whether the April 27 inspection was done at the instance of OHS  
rather than Cargill, only that Cargill told the Union it was an OHS request. He confirmed that  
Cargill representatives were upset about his taking photos, but ultimately did not pursue that  
issue any further.  
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F.  
Evidence of Joe Attwood  
[80] Joe Attwood, the second full-time Union representative with responsibilities for  
employees at the Cargill plant, gave limited evidence. He was not physically present at the plant  
between March 4 and May 21, 2020. For much of that time he was heavily engaged in  
bargaining two other collective agreements, with Canada Safeway and Mountain Creek Farms,  
then was away for three weeks of scheduled vacation starting approximately April 15, 2020. His  
testimony was mainly directed at discrete topics: the operation of the JWHSC at Cargill, the  
walking stewards controversy, the early friction between Union and Employer over COVID-19  
case numbers, the missed OHS virtual meeting of April 14, 2020, and in cross-examination, the  
state of Union-Employer communications in respect of several items early in the period under  
review.  
[81] Mr. Attwood testified about his efforts to transform the JWHSC into a more effective  
committee when he was first assigned to the Cargill plant in May 2019. He found that the  
committee lacked structure and attendance was lax. He named himself Union co-chair of the  
committee and started a process of recruiting and appointing Union representatives to the  
committee. This ended in July 2019 with appointment of Ms. Tukku and Ms. Walsh-Rollo along  
with six other members and seven alternates. There remained occasional problems with  
supervisors releasing committee members on time for meetings, but the structure was robust  
enough that Attwood terminated his co-chair assignment in favour of Tukku and Walsh-Rollo in  
September 2019. He did not attend JWHSC meetings after that.  
[82] Mr. Attwood took the panel through several emails with Devin Tretiak and Rob Hale  
early in the COVID-19 pandemic, in which he stated the Union’s position that it should receive  
full information about positive results. Both sides, Union and Employer, were cautious about  
their information, trying to observe a measure of employee privacy while guarding against  
rumour and gossip. Attwood became more insistent around April 11, 2020, asking Hale for  
accurate information. Hale responded that he would supply an update and was seeking the  
information himself. On April 13, Easter Monday, Attwood sent a more pressing email to Hale  
complaining of the lack of information. In cross-examination, however, Mr. Attwood  
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41  
acknowledged that Ms. Teeter had sent the complete list of quarantined employees to Mr. Yeager  
the day before, and he (Attwood) had been unaware of that at the time.  
[83] Mr. Attwood was peripherally involved in the walking steward controversy, in that Jamie  
Walsh-Rollo complained to him and Devin Yeager that she had been denied opportunity to  
“walk” three days in a week. He confirmed that Mr. Yeager was the representative most  
involved, and that he shared Yeager’s view that the Union had the “definitive” right to designate  
the walking stewards. He expressed that he was surprised when Renee Siki appeared to become  
involved in the issue of the walking stewards in her enquiry to Tukku and Walsh-Rollo about  
other possible “rovers”. He acknowledged in cross-examination, however, that he was unaware  
of any communication to Siki that issues around the walking stewards would be confined to  
people other than her – himself, Yeager, Tretiak and Hale. He said that “maybe” Siki had  
unknowingly become involved an issue she was not expected to be part of.  
[84] Of the April 14 OHS meeting, Mr. Attwood added only that he thought he had told Mr.  
Yeager that the OHS meeting was at 9:30 am that day. Cross-examining counsel put it to him  
that Siki thought he, Attwood, would be attending; Attwood did not say specifically Yeager is  
attending; but Yeager believed the meeting is at 3:30 pm; so was it not just a colossal  
misunderstanding rather than an attempt to exclude the Union? Mr. Attwood said, “it ended up  
that way”, i.e. a “colossal misunderstanding”. To further questioning about the Union’s failure  
to respond to Siki’s offer to reschedule the JWHSC meeting also scheduled for that day, and  
what that said about the Union’s degree of concern, Mr. Attwood acknowledged, “this may be an  
example of a communication that was missed”.  
[85] Employer counsel took Mr. Attwood through several email chains in late March 2020  
that Attwood participated in: one about a sign that went up in the workplace about revised break  
times; one about the Union assisting the Employer to locate translators; and another one about an  
employee rumoured to have returned to work after going home with symptoms. In each case,  
Mr. Attwood acknowledged that the Employer and Union had timely discussions about them,  
and any missed communications were inadvertent.  
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G. Evidence of Jamie Walsh-Rollo  
[86] Jamie Walsh-Rollo cryovac operator in Fabrication, walking steward and Union co-  
chair of the JWHSC testified mostly with respect to JWHSC operations, her activities and role  
as a walking steward, and the early events of Cargill’s COVID-19 response in March 2020. She  
had little to say about events in April 2020 because she worked only four days that month: she  
was absent from March 31 to April 12 inclusive on COVID-19 quarantine; at work April 13 to  
15; absent April 16 to 20 with an unrelated illness; at work April 21; and then absent from the  
plant-wide idling for the rest of the month.  
[87] After describing her work as a walking steward, Ms. Walsh-Rollo spoke of the start of  
problems doing that work in mid-March of 2020. Her walking steward assignment commenced  
on March 16, but for that day and the remainder of that week her supervisor declined to release  
her at the usual time due to, he said, too many absentees in her area. She spoke to Attwood or  
Yeager about this, probably on March 17, and was eventually released to walk that day, but the  
problem recurred after that. On March 20, she advised Renee Siki of her inability to “walk”,  
without response. In the end, combined with her absences, she did not resume walking steward  
duties until after the reopening in May.  
[88] Ms. Walsh-Rollo described the routine of preparing and then following up a JWHSC  
meeting. Union members are canvassed for agenda items. These and management items are  
incorporated into a Power Point presentation. Minutes are kept by a management member and  
distributed on request, and in any event at the next monthly meeting. Since the reopening,  
follow-up is now done through an “action register” recording tasks and the action taken. Ms.  
Walsh-Rollo said, however, that previously she had to check to ensure JWHSC tasks had been  
carried out. She related what she considered to be an ongoing problem leading up to the  
pandemic of management representatives “swamping” the small numbers of union members who  
were interested enough to attend the JWHSC meetings. She also noted that each department  
normally held its own health and safety meetings as well, but these stopped around the time of  
the pandemic because, she said, management considered that there was “too much going on”.  
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[89] Ms. Walsh-Rollo testified that COVID-19 measures first came up in JWHSC meetings  
only in mid-March 2020, and then only briefly, but that by March 26, it was the dominant topic  
of that day’s JWHSC meeting. There was already controversy on the floor about supervisors  
wearing masks while bargaining unit members had none. She (Walsh-Rollo) raised issues about  
crowding of locker rooms, lunchroom tables and microwave areas, and the lack of hand sanitizer.  
[90] As earlier noted, Ms. Walsh-Rollo was absent from March 31 to April 12, during which  
time the Union’s Easter Sunday letter was written and sent. She returned on April 13 and was  
quickly asked by one of the supervisors whether “you (the Union) are telling people not to come  
in?”, adding “now they (management) are looking at layoffs”. She heard nothing more, but  
experienced three long days in which uncut meat piled up and the line had to be stopped.  
[91] Ms. Walsh-Rollo was in attendance at the April 14 OHS meeting, and confirmed that on  
Mr. Yeager’s instructions she asked if he could be put into the call. No answer was given and, as  
we know, neither Yeager nor Attwood attended. She spoke of some of the topics covered in the  
OHS meeting –– poor social distancing between operators and stagers (helpers), noise levels  
inhibiting communication from a safe distance, difficulties with mask use, problems sourcing  
face shields, and the state of communications between management and union. Asked to  
comment on the OHS Report on this meeting (Ex. #A-20), she noted the absence of any mention  
of masking problems and microwave cleaning.  
[92] Ms. Walsh-Rollo then was absent again until the reopening. She did, however, attend  
both virtual town hall meetings. She expressed her own confusion about the sudden meeting  
called by the government, and concern that the presenters in that meeting included only one plant  
worker. In her view, the Sunday meeting the Union hosted was the better one, with many more  
questions asked and answered.  
[93] In cross-examination, Ms. Walsh-Rollo was asked about the controversy over walking  
stewards, starting with her not being allowed to “walk” as normal in late March. She said that  
initially she did not believe the statement of her supervisor that there were too many absences to  
release her because her own immediate area was not obviously shorthanded; but she accepted  
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that assessment upon returning to work from her quarantine absence on April 13. Nevertheless,  
she raised the issue of walking stewards at the April 14 OHS meeting because the kill floor was  
idled at that time, making substitute walking stewards from the kill floor unavailable. Renee Siki  
asked her and Myriam Tukku for names of substitutes, leading to Devin Yeager’s complaint to  
Cargill management about Siki becoming involved in an issue reserved to the full-time UFCW  
representatives and their management counterparts (Tretiak and Hale). Ms. Walsh-Rollo said  
she had been unaware of the Yeager complaint, and did not speak to Yeager about her role in  
getting Siki involved in the issue.  
[94] Asked about her concerns of management attendees “swamping” the few Union members  
attending JWHSC meetings, Ms. Walsh-Rollo agreed that member interest was low leading into  
the COVID-19 period (only three or four of fifteen authorized representatives typically  
attended), but in response to her concern, Joe Attwood elected not to ask management to reduce  
its attendance, but told her he would try to get more Union attendees to come. Nonetheless, she  
agreed that Union member concerns were addressed early in each meeting, were never removed  
from the agenda, and were generally followed up. The problem with follow-up, in her view, was  
simply that the actions taken were not sufficiently communicated to her; she never had occasion  
to complain to management that Union safety concerns from the JWHSC meetings were being  
ignored.  
[95] Ms. Walsh-Rollo agreed with the proposition that she was absent from the plant for a  
significant time in April 2020, during which there were changes made to safety measures in the  
workplace, including installation of barriers, adjustment of break times, and changes to the  
lunchroom configuration. Face shields were slow to be distributed; she acknowledged, however,  
that management informed her they were not available in sufficient numbers and she did not  
doubt that to be the case. Also slow to happen was rearrangement of the lunchroom tables,  
which took at least three weeks. She noted that she was frustrated by this delay because it posed  
a serious potential for transmission.  
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H.  
Evidence of Myriam Tukku  
[96] Myriam Tukku, shop steward and Union Co-Chair of the JWHSC, works in the Back  
Packoff area, the last group of stations in the fabrication area before shipping. She was a major  
witness for the Union, in that she was the only witness who was present on the plant floor for the  
entire time under review that the plant operated.  
[97] Ms. Tukku spoke of some of the same issues from early in the period under review as did  
Jamie Walsh-Rollo: the role of the walking steward, walking stewards not being released from  
the line, efforts to make the JWHSC more effective and the perceived imbalance on the JWHSC.  
She noted some of the early problems with COVID-19 response in the workplace that concerned  
her: poor support for social distancing, lack of hand sanitizer and substitution of bleach solution  
for bargaining unit employees, and a lack of masks until sometime around the Easter weekend.  
She expressed support for the Union’s early efforts to advocate for better COVID-19 response,  
and particularly for Mr. Hesse’s Easter Sunday letter. She also criticized Mr. LaGrange’s April 8  
letter to employees cautioning against normal social interactions over the Easter weekend, saying  
that she felt the company was placing safety responsibilities on the employees, and potential  
blame, while safety measures in the plant fell short.  
[98] Of the aftermath of the Easter Sunday letter, Ms. Tukku testified that on April 13, 2020,  
she had an encounter with Devin Tretiak, who was moving tables in the lunchroom and told her  
that the night shift was cancelled, that “that is what your union wants”, and that “people were  
going to be let go”.  
[99] Ms. Tukku then spoke of the OHS conference call on April 14 and the virtual tour it  
conducted the next day. It will be recalled that she and Jamie Walsh-Rollo were the only Union  
representatives physically present for the April 14 call, that Renee Siki had been told Joe  
Attwood would be present, but Attwood was away in collective bargaining. She said that she  
learned late that Mr. Attwood could not attend, after she had cleared it with Renee Siki for him to  
be patched into the call; and the morning of the meeting, when Siki’s assistant was setting up the  
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call (Ms. Siki was attending virtually), she declined to try to add Yeager because she only had  
instructions to expect Walsh-Rollo and Tukku.  
[100] Of the OHS virtual tour on April 15, Ms. Tukku took the panel through an email chain in  
which Ms. Siki asked her to participate in the virtual tour and arranged for her to be released to  
do that. She testified that after this exchange, she and Siki talked, and the discussion centred on  
the walking stewards problem. Siki indicated that she was unaware of the problem before then  
and would look into it, but expressed that some kind of steward coverage would be available.  
[101] Ms. Tukku spoke of the virtual tour, the course that it took through the plant, and her  
criticisms of it. She noted that the cafeterias were closed, hallways were empty, the line was  
“really slow”, harvest and night shift had both been cancelled, and day shift had been reduced  
from about 500 to 200 employees. Overall, she felt it had not been conducted at a normal time  
and was not a fair depiction of the plant.  
[102] Later that day, April 15, Renee Siki emailed Tukku and Walsh-Rollo to send them the  
Contact Report prepared after the April 14 conference call (Ex. #A-25). In the course of that  
email, Siki asked for suggestions for substitute walking stewards, and for their views of a  
rescheduled smaller JWHSC meeting to replace the cancelled one. Siki repeated the request in  
another email two days later. Ms. Tukku did not respond to either request. She explained this by  
noting Ms. Siki had been upset that Jamie Walsh-Rollo had raised topics in an earlier OHS  
meeting that had not been raised with her (Siki) beforehand. Ms. Tukku said she did not want to  
similarly get in Siki’s “bad books” over the fact Devin Yeager had rebuked management for Siki  
becoming involved in the walking stewards issue; she said it would be known she was Yeager’s  
source for that information, and so just didn’t respond.  
[103] The last part of Ms. Tukku’s examination-in-chief addressed the plant’s reopening on  
May 4 and the OHS inspection prior to opening shift that morning. Counsel took her through the  
OHS Notice to Produce given to Cargill beforehand, requiring several documents: the most  
recent COVID-19 hazard assessment, various worker training procedures and policies, a rapid  
response plan for workers becoming symptomatic on site, and meeting minutes of recent JWHSC  
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meetings. She testified that she had never been given copies of those documents by  
management. That morning, she delivered to the OHS Officer a copy of the Union’s demand to  
close the plant, with which she agreed.  
[104] In cross-examination, Ms. Tukku was questioned about some of the concerns she  
expressed in her evidence and the degree of communication about them that existed between  
herself and either management, or other Union representatives. Of the JWHSC meetings, she  
acknowledged that she did not pursue with Joe Attwood the problem of inadequate Union  
attendance that developed after he stepped down as Union co-chair. She indicated that she was  
focused on her own participation, and did not report the ongoing difficulties getting a quorum of  
Union participants. Of her dissatisfaction with the degree of follow-up her issues in the JWHSC  
received, she spoke of specific issues that were not addressed quickly or at all, but acknowledged  
that for a couple of issues a problem with box stand design and placement, and COVID-19  
preparedness at the March 10, 2020 meeting she also missed opportunities to follow them up.  
Of Renee Siki’s March 25, 2020 request for assistance in locating translation resources to  
implement the new active screening process, she agreed that she did not attempt to tell Siki that  
she, Tukku, could not find translators for that task. And to Ms. Tukku’s criticism that hand  
sanitizer was not available to bargaining unit members while administrative staff were observed  
using it, she allowed that perhaps there was a general shortage as Ms. Siki had claimed, and that  
she did not pursue with Siki her concern of differential treatment among parts of the workforce.  
Finally, Ms. Tukku acknowledged some productive exchanges on safety topics with Renee Siki  
in an impromptu meeting they had on April 2, 2020, and that she did not at that time raise with  
Siki some of the criticisms she voiced in her testimony.  
[105] Ms. Tukku was cross-examined in some detail about the April 14, 2020 meeting with  
OHS officers that neither Attwood nor Yeager attended. She testified that Attwood was added to  
the call list at her suggestion in a phone conversation with Siki the evening before. She had, she  
said, spoken with Attwood that evening and agreed that “the Union” (meaning, presumably, a  
full-time representative) should be included; but Attwood had not committed to coming at that  
point (doubtless because he had Safeway bargaining the next day). Yet she advised Siki he  
would be attending, to which Siki agreed, on the understanding Attwood would be in the plant.  
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She, Tukku, learned late that evening that Attwood would not be there and Yeager would phone  
in instead. The next morning, she was busy with her work until being released from her station,  
and so did not tell anyone from management that Yeager would be on the call until the meeting  
was assembling. She told Ms. Siki’s assistant, she said, that Yeager would be calling in, but the  
assistant had no instructions to that effect. Yeager was not added (and indeed, we know from  
other evidence that he was unaware that the call was in the morning rather than the afternoon).  
Asked why she did not protest that Yeager should be on the call, she answered, “I just felt  
defeated, they outnumbered us”.  
[106] Counsel reviewed with Ms. Tukku the notes of the meeting kept by Jamie Walsh-Rollo to  
challenge the assertion that the Union members of the Committee felt intimidated. He noted that  
the notes showed she and Ms. Walsh-Rollo raising several topics. Ms. Tukku said she was  
comfortable raising “some, not all” of her concerns during the meeting; but of the example she  
gave, the lack of hand sanitizer for bargaining unit employees, she acknowledged that she had  
simply forgot to raise that issue. Of the issues she did raise, she testified that the management  
representatives there were quick to “jump in with an answer”, making things uncomfortable for  
her.  
[107] Ms. Tukku’s cross-examination then moved to address the next day, April 15, 2020, and  
the email from Renee Siki attaching the OHS Contact Report from the previous day’s meeting.  
She acknowledged that she did not respond to Siki’s suggestion of a rescheduled, smaller,  
JWHSC meeting the next week. Asked why that was so, she was not able to answer other than  
to speculate that she may not have carefully read the entire email.  
[108] Ms. Tukku was asked about Siki’s follow-up email of April 17 on that topic, which also  
prodded Ms. Tukku for the names of possible “rovers”, i.e., walking stewards. She  
acknowledged that this was Siki’s attempt to help after hearing the complaints of Tukku and  
Walsh-Rollo that they were not being released from the line to perform those duties. The email  
chain shows, and Ms. Tukku acknowledged, that she forwarded the email to Yeager and relief  
Union representative Ben Salonius in order to enlist their help in finding substitute walking  
stewards. This, of course, led Yeager to believe that Siki was inappropriately intervening to deal  
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directly with stewards on a matter that was properly dealt with by the full-time Union  
representatives and their Human Resources counterparts; the result was Yeager’s email late that  
afternoon to Tretiak and Hale objecting to Siki’s involvement.  
[109] Asked why she did not speak to either Yeager or Siki to clear up the confusion and  
identify herself as the (innocent) instigator of the controversy, rather than “let the Union rip into  
Renee (Siki)”, Ms. Tukku did not offer an explanation, other than she was worried about herself,  
she assumed that Siki would understand what had happened, and she felt the need to support her  
Union.  
[110] The last topic in cross-examination was the OHS virtual tour of April 15, 2020, i.e., the  
day after the missed conference call with OHS officers noted above. Ms. Tukku acknowledged  
that she did not ask for a full-time Union representative to be on the tour, because “it was just  
[Siki’s subordinate] Rob Petersen leading it” and she had been hurriedly released from the  
production floor to attend it. She was not able to offer an answer why she did not inform the  
Union of the tour when, in hindsight, it was now apparent that the Union was annoyed it had not  
been invited.  
[111] This closes our review of the Union’s evidence. We proceed to our analysis of the case  
presented thus far.  
III.  
Decision  
[112] In the Board’s jurisprudence, an application to summarily dismiss a complaint may be  
made at any time, and without putting the moving party to its election whether to call its own  
evidence. The standard such an application must meet is sometimes expressed as, whether the  
proceedings to that point raise an arguable case. Sometimes the test is put as, whether the  
applicant has established a case with a “reasonable prospect of success”: see, e.g., UNA, Loc.  
311 v. Good Samaritan Society, [2009] Alta. L.R.B.R. 1; UNA v. Capital Care Group Inc. et al.,  
[2016] Alta. L.R.B.R. LD-059. Practically, the analysis to some extent depends upon the stage  
of the proceedings when the application is made. If made at the close of the “pleadings” –  
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application, response, and any particulars the Board has little ability to make any nuanced  
evaluation of the facts; it must proceed on the assumption that the facts pled in support of the  
application will be established by evidence, unless the facts pled lack even an “air of reality”:  
Complainant v. AUPE, [2021] Alta. LR.B.R. 1. This tends to focus the enquiry in such cases  
upon whether the materials raise an arguable case according to law. The case generally proceeds  
if the pled and assumed facts arguably entitle the applicant to relief within the Board’s existing  
jurisprudence. If, like in this case, the application is made at the close of the complaining party’s  
evidence, where usually the vast majority of the documentary evidence has been admitted and  
one side’s witnesses have been subject to both direct and cross-examination, the actual facts of  
the case should be much more readily apparent. The focus in such cases is whether the  
complaining party has indeed established facts that give it a reasonable prospect of success  
unless the other party leads its evidence. The Board is able, and entitled, to make a more  
searching analysis of the facts than in a pre-hearing application for summary dismissal.  
[113] Some preliminary general comments are warranted about the facts of this case. At the  
outset of our analysis, we consider it necessary to remind ourselves and readers of something that  
is fundamental to our decision: the questions before the Board are narrow ones. Has the  
Employer interfered with the Union’s statutory right to represent its employees? Has it  
discriminated against, intimidated or restrained employees in the exercise of their rights to  
belong to and participate in the Union? That is what this case is about. It is not about many  
other things that came up in the course of the evidence. It is not about whether the response to  
the COVID-19 pandemic as it played out at the Cargill plant, whether by the Employer, Alberta  
Health Services, or the Alberta government writ large, was optimal, or even adequate. It is not  
about whether Alberta’s occupational health and safety regime properly protects worker safety in  
a crisis like this pandemic. It is not about whether sickness and deaths could have been avoided  
had things been done differently, except as the “doing things differently” involves not violating  
rights under the Code.  
[114] The case is not about philosophical issues around the relative roles of management and  
organized labour in a workplace such as this. There can be profound but genuine differences of  
opinion about whether “co-management” of enterprise, and of what degree, is better public  
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policy than a regime of robust management rights. For our purposes, we accept that the policy  
response in Alberta, as in North America generally, has been that management retains all rights  
to reasonably direct the enterprise that are not expressly constrained by a collective agreement or  
statute.  
[115] These are issues for academics and policy-makers. Our task is to evaluate the evidence  
and determine whether by the facts presented so far, and our understanding of the established  
law, there is a case that has a reasonable prospect of success. We should take note of, and  
respect, the high stakes and heightened emotion that forms the background to the case: of the  
sickness and death the pandemic visited upon vulnerable employees, and the fearsome stress that  
it placed upon employees, Union personnel, and management alike. But we must not allow that  
to drive us to conclusions that are not supported by either the evidence in front of us, or the  
established law.  
[116] Overall, in our view, the evidence of the Union fails to show a case with a reasonable  
prospect of success, either of a substantial failure of the Employer to communicate with and  
engage the Union on the workplace issues it was raising, or of any positive action by the  
Employer to inhibit or undermine the Union’s basic statutory role as employee bargaining agent,  
or of retaliation against employees for their and their union’s actions. What it shows instead is  
that there was sustained communication between Union and Employer on multiple levels:  
Between Teeter, Hesse, and Yeager; Tretiak, Hale, Yeager and to a lesser extent, Attwood; and  
between Siki and Tukku and Walsh-Rollo. The problem was much less a failure to communicate  
than merely a failure to agree on some basic issues whether a shutdown, or a continuance of  
the shutdown, was necessary to ensure employee safety; whether the Union’s model of a  
worker-centred” safety assessment was necessary; and perhaps, whose – the Union’s or the  
Employer’s – should be the loudest voice that employees hear on issues of plant safety. There is  
perhaps also a more profound disagreement over what “safe” means in the context they were  
presented with. But our view of the evidence is that it does not support the Union’s basic  
complaint that it was not being listened to and its rightful role as bargaining agent was  
suppressed. Instead, it shows only that it was heard but the Employer did not necessarily agree.  
These disagreements may lend themselves to legitimate debate and sometimes proceedings in  
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other forums like grievance arbitration and occupational health and safety proceedings. What we  
think untenable, however, is that the Employer’s declining to accept the Union’s positions  
amounted to more than mere disagreement, and was in fact an attempt to deny and hobble the  
Union in its representative role.  
[117] What the evidence also shows is the extent to which the pandemic, infiltrating a high-risk  
working environment staffed by vulnerable employees, with many vectors inside and outside the  
plant by which the virus could spread, and no vaccine or other medical means available to  
combat it, created a level of human resources mayhem that Union and Employer alike were  
simply, and understandably, ill-equipped to deal with.  
[118] The evidence certainly shows that of the Union. It was left trying to perform its  
representational role for a bargaining unit of 2000 employees through only two permanent  
representatives, both of whom also carried other responsibilities. One of them (Attwood) was  
absent for most of the time under review in collective bargaining or on vacation, and the other  
(Yeager) operated at the distinct disadvantage of having his access to the plant limited by  
Cargill’s COVID-19 rules. The small number of relief representatives and stewards available did  
not redress the shortage. Mr. Yeager, in particular, spoke eloquently of his and his colleagues’  
experience of trying to cope with the flood of issues, enquiries and communications that the  
pandemic generated. This is not to criticize the Union in any way for the lack of available  
resources during this time; we would fully expect to hear much the same story from the  
Employer witnesses were they to testify. We only note it to say that nothing about the early days  
of the COVID-19 pandemic at Cargill could be considered “normal” labour relations. While the  
obligations and strictures of the Code nevertheless continue to apply, this Board must examine  
the evidence sensitively and be careful assigning blame in a situation where it was nearly  
impossible for the parties to conduct themselves with anything close to labour relations  
perfection.  
[119] The evidence predictably showed many examples of stress, miscommunication and  
failures to choose what, in hindsight, might have been the best course. One of the clearest  
impressions the evidence conveyed was that all involved in the situation were groping toward the  
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best responses, with insufficient or imperfect information. There were occasional flashes of  
anger in the bargaining relationship. But all these things should not distract from the essential  
issues before us: was the Union’s statutory representative role undermined, and were employees  
penalized for the activities of their union or for themselves exercising statutory rights?  
[120] We may deal briefly with the Union’s allegation that the Employer violated the various  
subsections of Section 149 of the Code. This allegation centres on the suspension of the second  
shift on April 13, 2020. It asserts that the suspension of the second shift, and the resulting loss of  
work to employees, was punishment for the Union’s Easter Sunday letter calling for a shutdown  
of the plant.  
[121] Unlike the prohibition against interference with union representation of employees set out  
in Section 148, the prohibitions in Section 149 require some form of intention: that employees  
were dismissed, disciplined or discriminated against “because” of union membership, activity or  
exercising a right under the Code; or that the Employer did “seek” to intimidate, penalize or  
discriminate against an employee for a protected reason or activity. Adams in Canadian Labour  
Law (2017: Looseleaf: Canada Law Book) states the requirement this way (at §10.130):  
Canadian statutory provisions, barring discharge or other discriminatory treatment  
“because” or “for the reason that” employees are engaged in legitimate union  
activities, have been interpreted by courts as requiring scrutiny to see if  
“membership in a trade union was present to the mind of the employer in his  
decision to dismiss, either as a main reason or one incidental to it, or as one of  
many reasons regardless of priority” for the dismissal. Improper motive does not  
have to be the dominant motive. Since employers are not likely to confess to an  
anti-union animus, tribunals have to rely on circumstantial evidence to draw  
inferences about employer motivation. (…)  
[122] Our analysis on this point must contend with the fact that this aspect of the Union’s  
complaint –– and unlike the principal allegations of interference in union representation of  
employees –– involved a “reverse onus” provision of the Code. (This Complaint was filed  
before the reverse onus provision was amended by the Restoring Balance in Alberta’s  
Workplaces Act, 2020. Pursuant to the transitional provision contained in section 209(2)(i) of the  
Code, the previous section applies.) Section 149(2) says that the burden of proof in respect of  
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allegations under section 149(1)(a) and (c), among other subsections, is on the employer to show  
that it did not act in contravention of these provisions. The Union argues that an application to  
summarily dismiss these aspects of the Complaint is not appropriate in the circumstances, as the  
Union has put sufficient evidence of the section 149(a) and (c) breaches before the Board to  
require a response from Cargill.  
[123] In our opinion, the fact that an aspect of a complaint carries a reverse onus upon the  
employer does not disable that employer from seeking a summary dismissal of those allegations,  
or of the entire complaint, at the close of the Union’s case. The predominant rationale for a  
reverse onus in parts of section 149 of the Code is that, as we have noted, these provisions  
prohibit intentional conduct. Intent is often uniquely within the knowledge of the employer.  
While labour boards have long been willing to draw inferences about intent from suspicious  
circumstances and the overall factual context, a reverse onus effectively forces the employer to  
contribute to the Board’s task of discerning the intention behind the acts complained of, at the  
risk of otherwise losing its case.  
[124] This purpose of the reverse onus, however, is not necessarily engaged at the stage of a  
summary dismissal at the end of the Union’s case. As we have noted, there can be a great deal of  
testimonial and documentary evidence before the Board at that point. (That is certainly true of  
this case, where the principal allegations involved interference with the Union’s representation of  
employees: the Union accordingly proceeded first without objection, unlike a case where the  
principal or only allegation is one upon which the employer bears the burden of proof: See, e.g.,  
Widewaters Calgary Hotel Management Co., ULC [2018] Alta. L.R.B.R. 20 (at para. 64)).  
Where the totality of that evidence –– which can include many Employer documents admitted by  
agreement or through the Union’s witnesses, and many Employer communications to which the  
Union was a party –– not only does not raise a case requiring a response from the Employer, but  
instead defeats the Union’s case, we see no policy rationale for denying summary dismissal of  
the section 149 allegations. While the reverse onus places the substantive burden of proof upon  
the employer, it does not necessarily compel it to lead evidence. If summary dismissal were  
denied, the Employer could simply decline to lead any evidence of its own, and it would be  
entitled to a dismissal on the basis that the Union’s evidence discharged the Employer’s reverse  
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onus. As long as the Board keeps in mind that, for the section 149 allegations, evenly balanced  
probabilities entitle the Union rather than the Employer to succeed, we see no reason why an  
application for summary dismissal should not be available to terminate proceedings that have  
shown no realistic prospect of success. Practically, summary dismissal applications in mixed-  
onus cases like this one are unlikely to succeed until the union’s evidence is complete and a  
robust evidentiary record is before the Board. Only at that point will a hearing panel likely  
conclude that the union’s section 149 case has already been defeated. But to exclude the use of a  
summary dismissal application entirely would unnecessarily deprive the Board of an important  
tool to promote the efficiency of its proceedings.  
[125] The Union’s evidence here fails to raise an arguable case that the suspension of the  
second shift commencing April 13, 2020 was motivated even in part by the Union’s advocacy in  
its Easter Sunday letter, or a desire to retaliate against employees for failing to attend work.  
Rather, it establishes the contrary. We must observe that it is itself a dubious proposition that the  
Employer would suspend half of its principal revenue-producing activity, with all the  
organizational and logistical difficulties this would pose, out of a desire to muzzle the Union or  
punish a workforce that was already very nervous about going to work. But it becomes an  
untenable proposition when the evidence shows that the plant in fact experienced a wave of  
absenteeism starting that day. Ms. Teeter for Cargill management immediately asserted to Mr.  
Yeager that attendance was down and that a layoff might be necessary (though ultimately the  
layoff did not happen). In the later email announcing suspension of the second shift, she claimed  
absenteeism of 45% on the day shift that day. No witness for the Union contested that assertion  
in the document. Ms. Tukku acknowledged that during the period immediately after the Easter  
Sunday letter, “it looked like no one was there”.  
[126] Unquestionably, the evidence shows that Cargill management was angry at the Union for  
its suggestion that safety measures were inadequate and the plant should shut down. It reacted  
initially with suspicion and some barely-concealed hostility that at worst the Union might have  
fomented a strike, and at best it had been “irresponsible” in its messaging. This suspicion and  
hostility showed up not just in Ms. Teeter’s initial response, but at other levels of management,  
like Devin Tretiak’s comments to Myriam Tukku while rearranging the cafeteria tables, and  
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comments attributed to unnamed supervisors. But these comments do nothing to advance the  
case that the Employer suspended the second shift to punish the Union and employees in the  
bargaining unit. Respecting the Union’s right to represent employees does not oblige the  
Employer to like the Union’s message. It does not have to stay silent in the face of a message it  
considers provocative, though it may be counsel of caution to measure its words. This was one  
of the “flashes of anger”, under conditions of extreme stress, that we noted earlier in this  
bargaining relationship. It should not be surprising that something like these comments  
occurred, and it would be highly unrealistic to jump to even a provisional conclusion that they  
reflected an intention to punish employees and the Union. The evidence, to us, shows that the  
comments were only what they appeared to be: a surge of frustration at the chaotic aftermath of  
the Easter weekend.  
[127] In the end, the Employer backed away from assertions that the Union intentionally or  
irresponsibly brought about the wave of absenteeism. We are left with evidence of a claimed –  
and uncontested absence rate of 45% from the day shift on April 13, at a time when COVID-19  
case numbers were accelerating and, by all indications, anxiety among employees was justifiably  
high. There was every indication that this would not be a problem confined to the single date of  
April 13, as indeed it was not. We do not need direct evidence to conclude that this level of  
absenteeism, or anything close to it, presented management with an overwhelming practical  
problem of how to keep the line running normally for both shifts. Whether that was a reasonable  
management decision, or one in accordance with the Collective Agreement, is a grievable issue,  
and one on which the Union in fact filed a grievance. But in the face of the evidence of this  
overwhelming practical problem, much more would be required for this panel to see a triable  
issue in the assertion that it was really, or even partially, a way to punish employees and their  
Union for questioning the safety of the plant and then failing to attend work in large numbers.  
The evidence simply does not support that part of the Union’s case with any real force, and  
instead shows that the Employer was motivated to cancel the second shift by permissible  
operational considerations.  
[128] The principal thrust of the Union’s Complaint is that the Employer interfered with its  
representational activities, by undermining or otherwise failing to recognize its representational  
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role in the early period of response to the COVID-19 pandemic under review, and particularly in  
regard to the Union’s role in ensuring the workplace health and safety of its members. Intention  
is not a necessary element of a claimed violation of section 148(1)(a)(ii): “No employer … shall  
… interfere with (…) the representation of employees by a trade union”. Instead, this and other  
Canadian labour boards have employed a balancing approach, by which the prohibition is  
measured against the legitimate employer interests that may impact upon the union’s  
representative activities. Again, Adams in Canadian Labour Law, supra, sums up the governing  
approach this way (using the specific example of Ontario’s then-section 70, Labour Relations  
Act, and “no solicitation” rules in the workplace), at §10.3:  
What is apparent in comparing s. 70 with s. 72 … of the Ontario Act is the  
presence of the words “because” and “seeks” in s. 72 and the sole reference to  
“interference” in s. 70. Section 70 is cast in very general terms and deals with  
interference with the formation, selection or administration of a trade union. (…)  
The Ontario Board has responded (…) by holding that it will confine itself to a  
very limited balancing of interests under s. 70 and to employer conduct that more  
than incidentally affects a trade union (…).  
Indeed, all labour boards have refused to hold that any interference whatsoever  
with the formation or administration of a union is improper and, instead, have  
confined their examination to the bona fides or legitimacy of the management  
action complained about. The “no solicitation” cases are representative of this  
approach. While the cases have downplayed or ignored motive, they have not  
involved a delicate weighing of the legitimate but conflicting interests of labour  
and management. Only a very limited balancing of interests has gone on. (…)  
They [labour boards] will only intervene where there is little or no business  
justification for the imposition of the no-solicitation rule.  
[129] Another attribute of the prohibition against interference in union representation of  
employees typified by section 148(1)(a)(ii) is that it might be described as broad, but not deep.  
What this means is that it protects a wide range of union activities, from the initial acquisition of  
bargaining rights, to the right to bargain collectively, and to the everyday representational work  
involved in administering and enforcing the collective agreement; but it protects them only at  
what is described as the “foundational” level. It leaves a wide field for collective bargaining to  
add to the representational rights the bargaining agent enjoys in the workplace, like the right to a  
union office on employer property, other rights of access in the workplace, the right to file  
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grievances and advance them through a customized grievance procedure, most joint committee  
structures, and rights to certain information about employees. These additional rights are  
considered enforceable by grievance arbitration, not through unfair labour practice proceedings.  
The dividing line between these types of representational rights is, essentially, whether the right  
asserted is one of statutory proportions: does the denial of the right significantly threaten the  
union’s basic status as the exclusive bargaining agent, or its fundamental efficacy as the  
representative of employees? Examples of such a foundational right are the right of the union to  
basic contact information for employees in the bargaining unit: Central Web Offset Ltd., [2011]  
Alta. L.R.B.R. 308; and the right of an employee to require, and the union to provide, union  
assistance at an interview where there is a significant prospect that discipline will be imposed:  
CALCO Club [1992] Alta. L.R.B.R. 77; and UNA, Loc. 37 v. Mistahia Health Region [1997]  
Alta. L.R.B.R. 635.  
[130] The Board has explained this distinction between statutory and contractual representation  
rights as follows in this extended passage from CJA, Loc. 2103 v. Calgary Exhibition and  
Stampede Ltd., [2015] Alta. L.R.B.R. 1:  
[19] In cases that have found a breach of section 148(1)(a)(ii), a common thread is  
employer actions that impede, subvert or deny the exercise of the union's  
legitimate role in the workplace, whether that be as party to a collective  
agreement, as employees' agent of mutual support and assistance, or as  
employees' exclusive bargaining agent further to section 38(1) of the Code.  
[20] A smaller subset of these cases is those which would impose positive  
obligations on an employer to facilitate the Union’s representation. Without  
expressly articulating it, labour boards appear to have found such obligations in  
cases where, without the employer’s positive action, the existence, efficacy or  
perceived legitimacy of the Union would be significantly threatened. The  
disclosure of employee contact information, referred to above at paragraph 18, is  
one example. There must be clear parameters upon the positive obligations placed  
on the employer in facilitating representation. Otherwise, the statutory obligation  
of section 148(1)(a)(ii) subsumes many topics which ought to be legitimately the  
subject of bargaining between the parties.  
(…)  
[23] The Board’s approach to positive obligations of information disclosure under  
section 148(1)(a)(ii), outside of the bargaining context, must strike a balance  
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which protects the core of a union’s representation without imposing obligations  
beyond that core. In our view, the only information subject to such a statutory  
obligation is that without which the viability of the union’s representation would  
be significantly undermined or significantly threatened. Other information which  
simply aids the union’s administration of the collective agreement on behalf of the  
employees is appropriately the subject of negotiation and potential inclusion in  
the collective agreement. We see such terms for instance, requirements of  
employers to provide an up-to-date seniority list in many collective agreements.  
The Ontario Labour Relations Board recognized this distinction of acquiring  
rights both through statute and collective bargaining in Millcroft Inn Ltd., [2000]  
O.L.R.D. No. 2581, 63 C.L.R.B.R. (2d) 181, another decision in a long line of  
cases involving the withholding of names, address, and telephone numbers of  
employees. At paragraph 19 the Board states:  
Rights in labour relations are acquired in two primary ways: under  
the Act and by agreement in collective bargaining. The rights  
acquired under each regime are different in quality. The rights  
under the Act are enabling in character. They provide the basis  
upon which a collective bargaining relationship can be established  
and maintained. They create the foundation upon which the edifice  
of the relationship is built. The substantive rights which a union  
secures for itself and the employees in a collective agreement are  
of a different sort. They are substantive entitlements which  
advance the interests of employees. They are the outcome of the  
exercise of the enabling rights protected under the Act. Thus, for  
example, union rights to sit on joint employer-employee  
committees, to be consulted in planning decisions, to raise  
grievances, to be present before, at or after disciplinary inquiries,  
these are the kinds of rights which a union can negotiate through  
the employer’s agreement. In contrast, the basic rights, those  
protected by the Act, are not dependent upon the employer’s  
consent. They exist independently. Their purpose is to ensure that a  
union is able to meet its statutory obligations, particularly its duty  
to represent employees in a fair and effective manner.  
[131] The Union’s submissions attempt to characterize the matters upon which it alleges the  
Employer’s conduct was deficient or improper as being of the “statutory” or “foundational” kind  
of representational issue. It relies in particular upon two things: first, that many of the matters  
arose out of the Union’s attempts to protect and advance employees’ interests in workplace  
health and safety, which it characterizes as “legitimate and core union activities”; and second,  
that the circumstances of the COVID-19 pandemic required a “heightened sensitivity” to the  
Union’s representational rights, such that the Board should protect those representational rights  
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as assiduously as it does during other critical periods like the initial organization of a union at the  
worksite, or first collective agreement bargaining, when employee support is typically unstable  
and subject to improper influence.  
[132] We are unable to agree with these propositions. Of the first, we agree that worker health  
and safety is a highly important workplace interest for employees and their bargaining agents. It  
has been a catalyst for union organizing and collective bargaining since the grim days of Upton  
Sinclair’s novel The Jungle, and earlier. But it does not follow that it is a “foundational”  
representational interest in the sense the jurisprudence conveys. The idea of a “foundational”  
representational interest is that of an interest that is so fundamental to the concept of the  
exclusive bargaining agent that it must be inferred even where the statute is silent. Health and  
safety interests do not fall into this category. That is not to say that these protections are not of  
the utmost importance. Indeed, so important is the subject of worker health and safety that it is  
addressed by a separate statutory regime, the modern occupational health and safety code, that  
grants rights in respect of health and safety directly to employees, independent of their union’s  
exclusive bargaining agency. Alberta’s version, the Occupational Health and Safety Act, S.A.  
2020, c. O-2.21 (the “OHS Act”) enforces worker participation in health and safety matters even  
in the absence of a bargaining agent. Where there is a bargaining agent, the OHS Act mandates  
joint health and safety committees with a minimum parity of employee to management  
participants on them, and a statutory mandate for the joint health and safety committee: OHS  
Act, ss. 13-16. Unions can and often do negotiate specific health and safety provisions in their  
collective agreements, but these generally either formalize the mechanisms of the joint health  
and safety committees within the context of that bargaining relationship, or grant union and  
employee rights above and beyond the statutory occupational health and safety regime. These  
are bargainable matters, and they are grievable matters where collective agreement language  
exists (or even where it does not, on the basis that the OHS Act is an “employment-related  
statute” the provisions of which are implied by law into every collective agreement: Parry  
Sound (District) Social Services Administration Board v. OPSEU, Loc. 324, 2003 SCC 42,  
1 This and other references are to the current OHS Act, effective December 1, 2021. The statute  
in force at the time of the events in this case was the Occupational Health and Safety Act, S.A.  
2017, c. O-2.1. Nothing in this case turns on the amendments.  
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[2003] 2 S.C.R. 157). We are unable to see in this structure any real parallel to the foundational  
representational interests that labour boards view as necessary to protect, even in the absence of  
collective agreement language, through section 148(1)(a)(ii) of the Code and its counterpart  
provisions elsewhere.  
[133] We are also unable to agree with the second proposition, that the COVID-19 pandemic  
demanded heightened sensitivity to Union representational interests. On the surface, this  
assertion may seem attractive. Closer scrutiny, however, leads us to consider that the appropriate  
degree of involvement of the union in pandemic response and management (beyond what the  
collective agreement entitles it to) should be viewed as an operational issue, arguably a moral  
one, but not a legal one. True foundational representational interests that should be protected by  
unfair labour practice prohibitions are relatively easy to discern. Their limits, whether described  
by time or by type of interference, are relatively certain. Terminating a union organizer during a  
certification drive or during bargaining of a first collective agreement; bargaining directly with  
employees, to the exclusion of the union; holding a closed-door disciplinary interview with a  
vulnerable employee without a union representative present; withholding employee contact  
information that the union needs before it can even know who it represents: these are not  
difficult situations to recognize and delimit.  
[134] If we accept the Union’s proposition, though, questions arise. What constitutes an  
emergency that triggers a regime of enhanced representational rights: a declared pandemic? An  
undeclared but appreciable public health crisis? A workplace fatality? Non-health emergencies,  
like, arguably, looming business failure? When does the period of heightened sensitivity begin?  
With the provincial declaration of a public health emergency, perhaps, though there might be  
other possible starting points. More awkward, perhaps, is the question of when does the period  
of heightened sensitivity end? As the course of the COVID-19 pandemic has shown, it may be  
extremely difficult to state with certainty when the special circumstances justifying enhanced  
union representational rights during a public health crisis no longer exist. And, during a period  
of heightened sensitivity, on what range of matters should the union get an increased role: just  
narrow questions relating to pandemic preparedness or response? Or other issues, too? And if  
the latter, how are the parties to know the dividing line between issues requiring union  
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involvement and those management may safely leave to the exercise of the broad management  
rights it has (usually) specifically reserved in its collective agreement? There seems a serious  
risk of multiplying unfair labour practice proceedings and collateral questions within them if the  
Board were to expand the scope of section 148(1)(a)(ii) beyond the protection of foundational  
representational rights as its jurisprudence has recognized them.  
[135] For these reasons, we consider it appropriate to evaluate the Union’s case according to  
the established criteria of a foundational representative interest articulated in Calgary Exhibition  
and Stampede: do the Employer’s actions “impede, subvert or deny” the Union’s legitimate role  
in the workplace? And if the Union asserts a positive obligation upon the Employer to do or  
permit something that enhances the Union’s representation, would the “existence, efficacy or  
perceived legitimacy of the Union be significantly undermined or significantly threatened”  
otherwise? With these observations, we assess the individual actions and incidents related by the  
evidence and relied upon by the Union as follows.  
[136] Unilateral introduction of enhanced employment terms. The Union in argument says that  
the Employer’s changes to employee terms and conditions of employment in the early stages of  
the COVID-19 pandemic (on or about March 23, 2020) interfered with the Union’s  
representation of employees. It will be recalled that these adjustments were a $2.00 per hour  
wage premium, a $500.00 attendance bonus for eight weeks without missed shifts, and 14 days  
of paid leave for COVID-19 illness and childcare absences. While the Union’s evidence raises a  
prima facie case that these were unilateral changes that ignored the Union’s exclusive bargaining  
agency, the evidence was that these were all enhancements to current terms; and that the Union,  
speaking through Mr. Hesse, did not object to the substance of these changes. There was no  
evidence that anyone from the Union voiced objection to the unilateral nature of the changes. It  
was a grievable matter, being a potential breach of the Union recognition clause, Article 1.3 of  
the Collective Agreement; yet no grievance was filed. The unilateral changes occurred in the  
context of a mature bargaining relationship of over 30 years duration. In these circumstances,  
the evidence does not raise an arguable case that the Employer’s unilateral changes were of  
statutory proportions or threatened a foundational representational interest of the Union. While  
an objection or even a grievance might have been justified, the fact that the Union itself did not  
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take any steps to challenge these measures deprives the argument of a breach of Section  
148(1)(a)(ii) of any force.  
[137] The walking stewards issue. The Union points to the Employer’s refusal to release Jamie  
Walsh-Rollo and other walking stewards to perform their duties, and Employer’s attempts to  
procure substitute walking stewards not designated by the Union, as another change to existing  
terms and conditions of employment that interfered in its representational rights. The Union’s  
rights in respect of walking stewards are set out in Article 21.21 of the Collective Agreement:  
21.21 Walking Stewards  
The Union will designate representatives from day shift and afternoon shift who  
will be excused from work and paid for all hours starting after first break to attend  
to Union business. The Union shall keep the Company apprised of whom the  
representatives being utilized are.  
[138] The evidence led does not show any hint that the Employer’s refusal to let walking  
stewards “walk” at times was a purposeful attempt to subvert the Union’s representation. To be  
sure, and as earlier noted, intent is not a necessary element of a breach of section 148(1)(a)(ii) of  
the Code. But insofar as that leads to an approach that balances Union representational rights  
against legitimate Employer interests, it is relevant that the rationale advanced to the Union by  
Employer representatives was that the line was too understaffed to permit release as normal. No  
Union witness seriously challenged that assertion. Indeed, Devin Yeager testified that he was  
prepared to work with the Employer to resolve that issue, and let that be known to Employer  
representatives. He also testified in cross-examination that the Union’s issue was not the refusal  
to release walking stewards, but management purporting to designate their replacements. That  
evidence is inconsistent with an assertion that the Employer’s action so threatened the Union’s  
ability to represent its members that it can be described as interference with the Union’s  
foundational representational interests.  
[139] No doubt, the Employer’s actual or proposed handling of the walking stewards problem  
might have lent itself to a grievance. That grievance could have explored the relationship  
between Article 21.21 and management rights to ensure continuation of production in the  
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specific circumstances of the refusals. It could have examined the Union’s seemingly strong  
prima facie case that the Employer had no role in designating who could perform walking  
steward duties. But in this mature bargaining relationship, the dispute is not one of statutory  
proportions. A grievance was the available and proper channel to raise the dispute, and it is  
telling that the Board did not hear evidence of a grievance being filed on this issue.  
[140] We also wish to make particular reference to the later resurrection of the walking  
stewards issue when Safety Manager Renee Siki queried Myriam Tukku about possible “rovers”  
to perform in relief in that role, and was then criticized by Devin Yeager for becoming involved,  
when Siki’s email was forwarded to him. The evidence is quite clear that Siki bore no blame for  
this incident. She was responding to concerns raised by Tukku and Walsh-Rollo, neither of  
whom rose to her defence when Yeager became irritated at her involvement. It was a perhaps  
unguarded attempt to help, not an improper attempt to insert herself into a labour relations matter  
properly reserved to Messrs. Yeager, Attwood, Tretiak and Hale.  
[141] Unilateral suspension of the second shift. The Union argues that the Employer  
improperly and unilaterally altered terms and conditions of employment when it suspended the  
second shift in response to the absenteeism that occurred starting April 13, 2020, just after the  
Easter weekend. It says that the Employer was instead obliged to meet with the Union in  
response to Mr. Hesse’s Easter Sunday letter calling for a meeting and an immediate plant  
closure. We are similarly unable to see that this action threatened a foundational representational  
interest of the Union. Prima facie, a decision to suspend a shift and, as it later transpired, staff  
the remaining shift with willing workers from among the entire workforce, is an exercise of core  
management rights to organize production and direct the workforce. It is not a decision that  
typically requires management to give advance notice to, or negotiate with, the Union. It is  
instead a grievable issue to the extent that the Collective Agreement furnishes a basis to grieve.  
We note that this Agreement contains many and detailed restrictions upon managerial powers,  
and in Article 3.1, the management rights clause, a general agreement to act reasonably in  
application of the collective agreement. This was again the available and proper means of  
challenge to the shift suspension. The Union in fact filed a grievance about it. In our view,  
whether the Employer should speak to or negotiate with the Union in advance about a suspension  
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of the shift, or on the topics raised by Mr. Hesse’s Easter Sunday letter, was a choice about the  
best labour relations response, and not a matter of statutory compulsion enforceable by section  
148(1)(a)(ii) of the Code. The Employer’s conduct on this point does not support a case of  
interference in Union representation of employees.  
[142] Failure to share COVID-19 information with the Union. The Union complains that  
Cargill shared information with the Union about COVID-19 cases in the workplace and its  
measures in response belatedly or not at all, and in so doing interfered with its representation of  
its members. It notes that the Union generally learned of positive cases and close contacts  
through the workplace rumour mill; that the Employer was unwilling to entertain Union  
enquiries based on “gossip”; and that the Employer did not share any information about positive  
cases after April 12, 2020. It says that specific and repeated requests for timely information  
about infections in the workplace were not acted upon, even though information was shared with  
supervisors. It further argues that Cargill failed to provide timely information to the Union about  
a number of operational issues, like hazard assessments; that it failed to engage the Union about  
the decision to shut the plant down in the third week of April or to reopen it on May 4, 2020 and  
failed to inform the Union about the reopening for two days after it started contacting employees  
about it. Last in this group of arguments, it says that Cargill’s failure to engage with the Union  
on COVID-19 topics impeded the Union’s efforts to represent employees regarding a number of  
workplace issues like eligibility for pay and bonuses, disability benefits, risk of discipline and  
scheduling concerns.  
[143] The first difficulty with this line of argument is that it ignores or minimizes certain  
aspects of the evidence. Cargill officials did not provide information on positive cases as  
quickly, completely or accurately as the Union wanted. But there is no evidence of a direct  
refusal to provide such information. Rob Hale, after modest delay, responded to Devin Yeager’s  
early enquiries. Tanya Teeter later told Yeager that she was prepared to share information, but  
only on the basis of confirmed cases, not rumour a reasonable proviso. She alerted him to  
Cargill’s own difficulties interpreting the information. On April 18, 2020, Cargill provided a  
complete spreadsheet of employees absent from work on quarantine. It seems to have been  
inaccurate, at least insofar as it listed two desperately ill employees as available to work. But  
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that speaks only of the inaccuracy of the list. It does not speak to any unwillingness to share  
information with the Union; rather, it is evidence to the contrary. There was evidence that  
eventually the date is not clearly stated in the evidence Alberta Health Services started  
providing the case counts at the plant that the Union desired. At that point, further case  
information coming directly from the Employer would have been at best unnecessary and at  
worst, confusing.  
[144] To the Union’s criticism that it learned of the reopening two days late, that is not  
consistent with Ms. Teeter’s response to Mr. Hesse’s direct enquiry of April 29, 2020 confirming  
the May 4 reopening date and saying that the decision had “just been made”. That Union  
witnesses reported hearing employees report their earlier hearing from supervisors that the plant  
would reopen May 4 is third-hand hearsay evidence that does little to establish that the definite  
decision to reopen was made long before it was communicated to the Union. It could at least as  
easily have been an option the Employer was exploring, that was misinterpreted by supervisors  
and employees alike as a decision.  
[145] And last, the Union’s general assertion that Cargill’s uncommunicativeness interfered  
with its ability to administer aspects of the collective agreement and amended terms like  
attendance bonuses, is weakened by the fact that there was no evidence of any particular  
grievance or potential grievance that was actually impeded by a lack of such information. Union  
witnesses instead expressed their difficulties in prospective or extremely generalized terms, i.e.,  
that the lack of information could make it difficult to advise employees or know when a  
grievance should be filed.  
[146] The larger problem with the Union’s case on this point, however, is that it presupposes a  
right to the desired information that is unsupported by law or anything in the collective  
agreement. As the Employer argues, nothing in either the general law or the law particular to  
labour relations creates a right in the Union to be given information like absentee numbers,  
illness case counts, or a decision to shut the plant or to reopen it, in advance of employees or the  
general public. It might have been good, co-operative labour relations to do so, and maybe some  
opportunities to practice this were missed. It might have assisted the Union to be, and to appear,  
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more in control of the pandemic situation at Cargill than it was. But advance notice of such  
things is not a matter of right for a trade union unless it either arises from other legislation, such  
as occupational health and safety laws, or is bargained into the collective agreement. Those do  
not exist in this case, and so the Union’s case on these points also fails to raise a triable  
allegation of interference in its representation of employees at the “foundational” level.  
[147] Exclusion of the Union from COVID-19 related meetings and tours. The Union  
complains that it was generally denied a role in Cargill’s crafting of its pandemic response and  
Cargill’s interactions with government agencies throughout. Specifically, it points to its repeated  
unsuccessful requests for meetings with Cargill management; its exclusion from an AHS and  
Canadian Food Inspection Agency (“CFIA”) tour of the plant on April 7, 2020; the absence of  
any full-time union representative from the April 14, 2020 OHS conference call and the April 15,  
2020 virtual tour that resulted; an AHS site visit on April 17, 2020; and the April 29, 2020 pre-  
reopening tour by AHS, OHS and CFIA.  
[148] One aspect of this allegation is simply not supported by the evidence. Insofar as the  
complaint is that “the Union” was not present on the April 14, 2020 conference call and the April  
15, 2020 virtual tour, the evidence was that one or both of Myriam Tukku and Jamie Walsh-  
Rollo attended them. Both held union positions as walking stewards and union co-chairs of the  
JWHSC. As such, they were representatives of the Union with statutory rights and  
responsibilities under the OHS Act. What the evidence did show was that neither Devin Yeager  
nor Joe Attwood, the full-time Union representatives for Cargill, attended. In the case of the  
April 14 conference call, it is absolutely plain that Yeager’s non-attendance was nothing more  
than a mistake, or a series of mistakes: Attwood gave Myriam Tukku the impression he would  
be attending the meeting when he meant someone senior in the Union would be on the call,  
presumably Yeager; that impression was conveyed to the Employer; Tukku did not correct the  
contact information late the night before when Attwood’s absence became known; the  
Employer’s administrative representative did not have instructions to patch Yeager in and  
declined to do it on her own; Tukku and Walsh-Rollo did not insist on having Yeager contacted  
when that occurred; and Yeager was confused about the time of the meeting, so did not try to call  
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in himself. Nothing about this chain of events supports a finding that Yeager was purposely, or  
even negligently, excluded from the meeting.  
[149] Of the April 15 virtual tour, the evidence was that Ms. Tukku knew of it in advance and  
could have informed Mr. Yeager of it if his attendance was deemed necessary, but did not.  
Again, while it might have been good labour relations practice to have included the Union’s full-  
time representative in the discussion, even by something as simple as copying him with emails, it  
was not a necessity for the Employer to guess which representative of the Union would be  
attending and so needed to know. Ms. Siki was used to dealing with the Union co-chairs of the  
JSHSC, and it was not a purposeful undermining of the Union to have informed them and placed  
upon them any initiative to have another Union representative present.  
[150] The other aspects of the Union’s allegation assert entitlements to meet with the  
Employer, or to be present at meetings with government officials, that exist neither by the law  
nor by the collective agreement. The Union made several requests early in the pandemic period  
to meet with the Employer and was disappointed that it did not get a meeting. Whether such  
meetings would have been an exercise in good, productive labour relations, the Union possessed  
no positive right in the collective agreement to require them, and we are unable to say that the  
meetings sought, at the time they were sought, were so fundamental to the Union’s statutory role  
as exclusive bargaining agent that a positive right to them should be recognized through section  
148(1)(a)(ii) of the Code. Though the Union was not informed of meetings and site tours with  
AHS on April 7 and April 17, 2020, whether it should be present and the scope of its  
involvement was something for AHS and the Employer to decide. The joint OHS-AHS-CFIA  
re-opening tour of April 29, 2020 was also not a meeting that the Union possessed a positive  
right to attend. Section 15 of the current Occupational Health and Safety Act places the Union’s  
attendance in the hands of the OHS officer conducting a site inspection; it is entitled to be in  
attendance if the officer requests. This is not in any way to say that it would not have been a  
good idea to have either or both of a full-time Union representative or a member of the JWHSC  
present at any or all of these events. As earlier noted, that is a question not before this Board. It  
is a question of effective administration of the OHS Act and public health statutes, not one of  
core representational rights under the Code. To the extent that these other statutes give  
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employees or their bargaining agent a role in the proceeding, any remedy lies under those  
statutes.  
[151] We also feel obliged to say that the Union’s case, to the extent it asserts an entitlement to  
participate in inspections and tours of the plant as being a foundational right of representation, is  
damaged by the evidence that several offers for the Union to be involved in other health and  
safety meetings or tours of the plant were rejected or ignored. It did not respond to the  
Employer’s suggestion to reschedule the missed JWHSC meeting of April 14, 2020. It declined  
to follow up Ms. Teeter’s offer of April 18, 2020 for Messrs. Hesse and Yeager to tour the plant.  
It was reluctant to participate in the April 27, 2020 OHS inspection tour, though it eventually  
did.  
[152] The evidence before us indicates strongly that as time went on, the Union position  
hardened and it became greatly concerned that its participation in Employer initiatives to assess  
the health and safety status of the plant would undermine its message that the plant was unsafe,  
and perhaps “co-opt” the Union into the Employer’s position. That is a strategic judgment that  
the Union may be entitled to make, but by adopting such a position the Union cannot avoid the  
logical consequence: if participating in such meetings and inspections is truly a “foundational”  
aspect of representation, i.e., it is essential to exercise of the Union’s exclusive bargaining  
agency, can its refusal or reluctance to accept what appear to be bona fide offers to participate be  
ignored? We find ourselves unable to ignore them. They illustrate that where it conflicted with  
important strategic considerations, the Union treated participation in such meetings as  
discretionary rather than a matter of necessity.  
[153] Direct communication with employees. The Union argues that there were several  
incidents of the Employer directly communicating to employees either in advance of, or to the  
exclusion of, the Union and that this undermined the Union’s representation of its members. It  
points specifically to: the communication of its decision to suspend the second shift on April 13,  
2020; comments by an unnamed supervisor to Jamie Walsh-Rollo and Devin Tetiak to Myriam  
Tukku, both suggesting that the Union’s Easter Sunday letter was to blame for the shift  
suspension; the Employer’s participation in the Government Town Hall meeting of April 18,  
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2020; communication of the decision to idle the plant on April 21, 2020; and both the timing and  
the substance of its communication of the decision to reopen the plant leading up to the May 4,  
2020 reopening. The Union says that certain passages in the letter to employees announcing the  
reopening painted a false picture to employees that the Union participated in and approved of the  
opening and thereby misled employees, sowed confusion in the workplace, and undermined the  
Union’s representation.  
[154] In our view, the evidence of these events neither individually nor collectively establishes  
a case of interference with union representation that has a reasonable prospect of success. Two  
general points should be made at the outset of this part of our remarks. First, employers are not  
under a form of “gag order” in their communications to either the Union or their employees.  
Section 148(2)(c) of the Code, sometimes referred to as the “employer free speech” provision,  
says:  
148(2)  
An employer does not contravene subsection (1) [which includes the  
prohibition against interference in union representation] by reason only that the  
employer  
(…)  
(c)  
expresses the employer’s views so long as the employer  
does not use coercion, intimidation, threats, promises or undue  
influence.  
[155] The legislative intent evident in this provision is plainly to establish a relatively high  
threshold before mere employer speech will be taken to be, among other things, interference with  
union representation prohibited by the Code. The speech will be permissible so long as it is not  
coercive or intimidating in nature, and does not convey threats or promises or exercise an undue  
influence. Further, whether employer speech is coercive or threatening or otherwise falls outside  
the scope of protected speech under section 148(2)(c) is assessed on an objective standard:  
Teamsters, Loc. 362 v. Rolling Mix Concrete LP, [2016] Alta. L.R.B.R. LD-049. While this  
Board is aware of academic opinion that holds that much employer speech is inherently of one or  
more of these characters, the statutory direction contained in Section 148(2)(c), as interpreted in  
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this Board’s jurisprudence, is that unions and their members are to be credited with some  
resilience and ability to assess their employer’s words without the intervention of the Code.  
[156] The second, related, point is that the Board should assess the strength of an allegation of  
interference with Union representation with some degree of reference to the nature of the parties  
in the case and their relationship. This Union is not a small, weak or inexperienced bargaining  
agent. It is one of the largest locals of the largest private-sector union in Canada, with long and  
successful experience in representing employees, often in sectors of the economy where union  
representation of employees is a daunting task. It has a relationship of many years with Cargill.  
It has access to the resources that a large local of a large national union can command. It is  
managed and represented by capable, experienced people. It has professional communications  
and information technology personnel and the means to communicate effectively with its  
members, some of which we heard about. We do not reject Mr. Hesse’s evidence of the  
difficulties inherent in representing workforces like the one at Cargill, which is plainly true.  
However, it remains the case that, in our view, this is a bargaining relationship in a stage of its  
history where the relationship rarely experiences an existential threat. Nor, in our experience, is  
this a Union that intimidates easily or tolerates circumstances where it views its members as  
being intimidated, coerced or improperly influenced.  
[157] What this surrounding context means to us, is that this Board should take a view of the  
evidence that uses a healthy dose of realism. Especially considering the legislative attitude to  
employer speech in Alberta, and the realities of this union and this bargaining relationship, are  
the facts and evidence relied upon capable of establishing that the Employer has in a real,  
substantive way interfered with the Union’s ability to represent these employees?  
[158] The answer must be “no”. One element that comes out clearly in the evidence is the  
sparseness of the allegedly problematic Employer communications in relation to the volume of  
communications with Union and employees that happened during this time. Considering the  
number of contentious topics that arose between Cargill and the Union during this time like the  
walking stewards controversy, the meetings with government officials, the dispute over the  
Union’s signage, the Easter Sunday letter, and the cancellation of the second shift it is notable  
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that Employer speech overtly critical of the Union was minimal. Where it arguably occurred, it  
was directed privately to Union officials. Even the comments suggesting the Union’s  
responsibility for the absenteeism that resulted in suspension of the second shift were directed at  
employees who happened to be Union stewards or full-time representatives.  
[159] Nor is there anything of substance in the evidence that suggests the Employer was  
endeavouring to bypass the Union to get its message directly to employees. Nothing in the Code  
requires the Employer to communicate with the Union before, or to the exclusion of, its  
employees in these circumstances. In this case, communications to employees were sometimes  
preceded by “heads up” notifications to the Union, sometimes the Union was informed at the  
same time, and on a few occasions the Union was notified shortly afterwards. Where the latter  
happened, nothing suggests to us that it was anything more than the normal vagaries of  
communication among busy people, in this case operating in “crisis mode”.  
[160] Particular mention should be made of the Employer’s involvement in the April 18, 2020  
virtual town hall meeting held by the Alberta government. The Union viewed the timing of this  
event with suspicion, and it was clearly frustrated at the inevitable employee confusion and the  
threat of its own town hall being to some extent “hijacked”. But nothing in the evidence pointed  
to Cargill as the instigator of the April 18 meeting or to any nefarious purpose behind it of  
interfering in the Union’s representative activities.  
[161] What is ultimately fatal to this part of the Union’s case, however, is that nothing in the  
Employer communications relied upon can in our opinion be reasonably viewed as coercive,  
intimidating, an undue influence, or promissory or threatening in nature. The most serious  
charge of this type is that the Employer gave employees a false impression that their Union had  
been thoroughly involved in the assessment of plant safety and therefore approved of the plan to  
reopen the plant on May 4. While aspects of, especially, the April 29 letter to employees perhaps  
lend themselves to that criticism, any failings of truth or accuracy in the Employer’s statements  
fall short of coercion, intimidation, threats or undue influence. They are statements that by  
legislative intention are left to the Union to correct through its own freedom of speech and for  
employees to assess for themselves.  
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IV.  
Conclusion  
[162] This closes our review of the arguments in this summary dismissal application. Overall,  
we take the view that the evidence of the Union does not disclose a substantial case, i.e., one  
with a realistic prospect of success, either that the Employer retaliated against employees for the  
Union’s representational activities (s. 149), or that the Employer interfered with Union  
representational rights that are properly seen as “foundational” (s. 148). The Union may not like  
that the Employer gave it a much lesser role in the overall pandemic response in the workplace  
than it wished or than it believes was necessary to cope with the crisis. In our view, however, the  
Code does not elevate such desires and honest beliefs into rights through an unduly expansive  
approach to what constitutes union “representation”. To the extent that the Union has  
enforceable rights in respect of the Employer’s handling of the early phases of the COVID-19  
pandemic, they exist under other statutes or as grievances under the Collective Agreement.  
[163] In a hearing comprising six days of testimony and over one hundred documents, it is  
inevitable that this panel will not have specifically commented on every aspect of the evidence or  
the parties’ submissions. We have endeavoured to record our views of the most important  
issues, but the parties can be assured that the entirety of the case has been considered. Nothing  
upon which we have remained silent alters the result.  
[164] We repeat our comment made at the outset of these reasons: this is not an inquiry into  
the pandemic response at the Cargill plant, nor is it an audit of the parties’ labour relations and  
how they might have been improved. It is an unfair labour practice complaint alleging specific  
breaches of the Code. In its entirety, and for the reasons articulated, we judge that the evidence  
does not establish a case with a reasonable prospect of success. It is in our view appropriate to  
grant the Employer’s summary dismissal application and terminate the proceedings at this point.  
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[165] The Complaint is dismissed. The Board thanks the parties for their patience and for their  
co-operative, professional and thorough presentation of the case.  
ISSUED and DATED at the City of Edmonton in the province of Alberta this 29th day of April  
2022 by the Labour Relations Board and signed by its Vice-Chair.  
J. Leslie Wallace, Vice-Chair  
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