Vale “patently unreasonable” during lengthy strike: ruling

SUDBURY, Ont (Canadian OH&S News)

The Ontario Labour Relations Board (OLRB) has ruled that mining giant Vale acted “patently unreasonable” in its conduct towards nine employees that were fired during a bitter year-long strike at its mine in Sudbury, Ontario.

In the decision released on February 24, OLRB vice-chair Ian Anderson directed Vale to enter into arbitration with the United Steelworkers (USW) union with respect to whether or not the company had just cause to discharge eight miners for alleged misconduct during the strike, which began in July of 2009 (An agreement was reached in which one worker has retired).

During negotiations, Vale did not make “every reasonable effort to make a collective agreement” by refusing to any procedure which might give rise to possibility of reinstatement of the affected employees, Anderson writes, constituting a failure to bargain in good faith and a breach of Section 17 of the Labour Relations Act, 1995.

Over the course of the strike, Vale terminated the employment of nine striking workers. Mike French, Jason Patterson and Patrick Vienot were fired in January 2010; Vale alleged that they were involved in assaulting a worker while that person was out jogging. The assaulted worker had previously crossed the picket line to resume work. Criminal charges were filed and following a trial, French was convicted while Patterson and Vienot were acquitted.

“We have no legal obligation to extend just-cause arbitration to any of the discharged employees,” the decision quotes John Pollesel, now-chief operating officer of Vale Canada Limited, as saying. “I was concerned that any process which permitted persons to return to work after having been dismissed for misconduct during the strike would have a negative affect on our ability to deter bad behaviour during any future labour dispute,” he says.

“This reason is particularly troubling,” Anderson says. “An employee who did not engage in the conduct alleged, or engaged in the conduct but would not reasonably have thought it would warrant dismissal, was being told they faced the prospect of non-negotiable job loss simply for participating in a lawful picket line. [This] reason, then, comes perilously close to an attempt not to deter future picket line misconduct, but future picket lines themselves.”

While Anderson agrees that an employer is not legally required to agree to just-cause arbitration, that “is not in itself sufficient basis to refuse to agree to such a provision, given the significance of this issue to trade unions. It is an issue of particular importance and sensitivity to trade unions, indeed one described by the Supreme Court of Canada as being of ‘fundamental importance.’”

Wayne Fraser, director of the Ontario and Atlantic Canada district of the USW, says that the union has sent a letter to Vale urging the reinstatement of the eight workers or the setting of arbitration dates. “We’re excited with the board’s decision,” Fraser says. “This decision has serious implications to workers in the labour movement across the country. When they went public and said, no matter what, we are not taking these guys back, that just impeded the whole process of collective bargaining.”

Vale could not be reached for comment by COHSN press time.