Arbitrator’s decision puts employers in unfair position, says management-side lawyer
Although an arbitrator has reinstated one of nine workers fired during the tense 2010 strike at Vale’s mine in Sudbury, Ont., the union’s lawyer says the decision is only a partial victory for the worker.
On one hand, Mike Courchesne will get his job back. The real issue was not so much his firing, but why the company chose to fight a labour board decision to have an arbitrator hear the case, says Brian Shell, lawyer for the United Steelworkers union, which represents Courchesne.
“That’s what makes this case so unsettling,” he says. “What we experienced is the exercise of naked power by a powerful company.”
About six weeks into the strike, Courchesne showed up at the picket line drunk and continued to drink. He was not on picket duty at the time. One security officer said she heard him say he was losing his wife, daughter and house and he should come back and shoot everyone. Another security officer testified Courchesne said, “someone will be hurt when the smelter shows signs of smoke.”
Courchesne left the picket line when he was asked to do so. He was fired shortly afterward.
The decision to terminate his employment was “too severe,” said Arbitrator Wes Rayner, adding Courchesne’s actions happened in the midst of a serious labour dispute.
“I am prepared to accept that his threats were little more than the frustrations of a troubled man who was under a great deal of personal, emotional and financial stress,” he wrote in his decision.
Vale’s lawyers argued Courchesne never apologized or showed any remorse. But Rayner noted in his ruling that Courchesne was fired before a face-to-face meeting could be arranged and that he made a suicide attempt.
“The fact the grievor tried to commit suicide suggests that he was not in any mental state to consider an apology,” Rayner wrote. “With respect to rehabilitation potential I note that the grievor has been working underground as a miner with another company since November 2011.”
The union never disputed the necessity of a fitness hearing for Courchesne’s return to work, Shell says. Vale only pursued the case to make a point to other workers, he says.
“It’s a flexing of muscles and delivers a message — ‘You will suffer and you will suffer and you will suffer,’” he says.
In its submission to the arbitrator, Vale did offer damages in lieu of reinstatement should the arbitrator rule against the company — an option Shell strenuously resisted.
“If you are to lightly allow an employer to pay off an employee, you undermine the protection of the collective agreement,” Shell says.
Vale turned down a request for an interview and instead offered a written statement.
“Vale acknowledges the decision of the arbitrator in this case. Although we stand by our view that Mr. Courchesne’s conduct warranted discipline — something the arbitrator concluded as well — we will follow through on the decision as directed.”
While the decision is “positive” for labour law in Canada, it also shows the deficiencies in the legislation, says John Peters, a political science professor at Laurentian University in Sudbury, Ont.
“The tone it sets is that labour laws still sets a balance between employee and employer,” he says. “The fact that despite Vale’s intransigence, it still has to abide by the law makes a very positive statement.”
But Peters says the decision also shows deficiencies in labour legislation.
“Our labour law still gives a lot of strength and power to employers,” he says, adding that in many Western European countries legislation would have prevented such a strike from dragging on. The fired employees would have had their cases heard within six months, not two years later, he says.
“The United Steelworkers has a great deal of resources,” Peters says. “But let’s say you’re a small union that does not have those resources to take on this case for years on end.”
The arbitrator’s decision is “troubling” for two reasons, according to Erin Kuzz, a management-side employment lawyer with Sherrard Kuzz in Toronto.
First, the union had agreed to a drug, alcohol and weapons protocol with Vale.
“I always find it disappointing where a union agrees that a behaviour shouldn’t be tolerated and then when something happens, acts on it to defend it,” she says.
Arbitrators also tend to have a higher tolerance for behaviour on the picket line because it is an emotionally charged situation, says Kuzz, who disagrees with that perspective.
“I understand (Courchesne) was in difficult circumstances but I’m not sure that makes his behaviour okay,” she says.
In an era where threats of violence are tolerated much less than in the past, this decision sends the wrong message, Kuzz adds.
“The employer’s in a difficult position,” she says. “If, heaven forbid, something had happened, people would have looked at that threat and said, rightly, how could they not have fired him?”
Kuzz would still tell employers in Vale’s position to do the same thing.
“I’d rather deal with reinstatement than deal with violent consequences,” she says. “And remember, we’re talking about a strike where there was violence.”
Of the nine workers originally fired, one has retired and two have found other jobs. It’s expected the remaining five cases will not wrap up until later this fall.
Unlike the Courchesne case where both parties agreed to a statement of facts, the evidence in the other cases is heavily disputed, according to Shell.The other employees also have longer service at the mine. Most have worked there 17 to 22 years, whereas Courchesne had only been on the job for a year and two months.