Vale must open its gates to fired worker: Board (Legal view)

Union vice-president, terminated during strike, banned from company property
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 02/14/2012

An Ontario company violated its collective agreement when it banned from its property a fired employee who was a union executive, the Ontario Labour Relations Board has ruled.

Patrick Veinot worked for Vale Canada, a Toronto-based nickel mining and metals company. He had a good employment record with no instances of discipline from the time of his hiring in 2001 until Vale employees went on strike on July 13, 2009.

Veinot was also a union activist who served as a chief steward, sat on the grievance committee and was vice-president of his local for a time. He also made an unsuccessful bid for his local’s presidency before the strike.

Tensions boil over

The strike was long and several employees decided to cross the picket line and resume working for Vale. This added to the acrimony and, on Jan. 19, 2010, Veinot was involved in an incident where an employee who crossed was assaulted. One striking worker was charged with assault and Veinot and another employee were charged with criminal harassment. Vale investigated and, although Veinot refused to give his account of the incident, determined he had verbally assaulted the victim and encouraged the other employee who carried out the physical assault.

Vale terminated Veinot’s employment on Jan. 22, along with that of the other employees involved. They were also banned from Vale’s property.

The strike ended on July 8, 2010, and the union local president retired. The vice-president took over and the union’s executive board appointed Veinot vice-president on Aug. 2. However, Vale refused to lift the ban from its property and refused to recognize his union role because it said the collective agreement required him to be an employee if he was to be on the union executive. On Jan. 31, 2011, Veinot was found not guilty of criminal harassment but Vale stood behind its findings and felt his presence would pose a risk to the physical and mental well-being of employees, particularly those who crossed the picket line.

Though Veinot wasn’t allowed on Vale’s property, the company contacted him by phone to deal with ongoing grievances. There were several meetings between the company and union representatives on Vale property between August and November 2010 from which Veinot was excluded, though the union never asked to use Vale’s teleconferencing or videoconferencing facilities.

The company also noted Veinot was not a member of the union executive when he was dismissed and when he was appointed vice-president, he wasn’t a member anymore.

The union filed a grievance, complaining Vale was interfering with union activity by refusing to allow its vice-president on company property for meetings. It also argued there was no justifiable reason for banning Veinot, since he was acquitted on charges from the incident and had no history of violent activity during his employment. With regard to the safety of employees who crossed picket lines, there was no reason to differentiate Veinot from any other union members who remained on strike, said the union.

No requirement for union vice-president to be employee

The board found the collective agreement didn’t specifically require the vice-president of the union local be an employee. Though the agreement stipulated the grievance committee must consist of employees, a separate letter of understanding named the vice-president as part of the joint grievance committee — a separate committee — without listing any obligation to be an employee. This situation had never come up before, so it was unlikely both sides contemplated the possibility in the collective agreement, said the board.

Vale also dealt with Veinot over the phone to handle other grievances, so the company was prepared to deal with him, though not on its property, said the board. The union had grieved the termination of all striking employees, including Veinot, with the possibility they would be reinstated. With this possibility in mind and with Veinot having been so active in union affairs, it wasn’t surprising he was appointed vice-president, said the board.

Vale’s refusal to allow Veinot on its property negatively impacted the union president and other representatives by depriving them of Veinot’s ability to help in the meetings on its property, the board said. It also made it difficult for union members to access their vice-president while at work.

This was contrary to how previous union vice-presidents were treated and was a “cold and hard” message that caused “substantial interference in both the administration of the union and its representation of employees.”

Even if the company was concerned for the safety of employees, this shouldn’t affect his ability to attend the meetings, said the board.

Without a concrete reason that employee safety was threatened, Vale couldn’t justify its banning of Veinot — he had no history of workplace violence and was acquitted of the criminal harassment charges, said the court. It found Vale interfered with union activities, contrary to the Ontario Labour Relations Act, and Vale was ordered to stop such interference and allow Veinot on its property for union meetings.

For more information see:

U.S.W. v. Vale Inco Ltd., 2011 CarswellOnt 14302 (Ont. Lab. Rel. Board).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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