Informe provisional - Informe núm. 294, Junio 1994

Caso núm. 1737 (Canadá) - Fecha de presentación de la queja:: 09-AGO-93 - Cerrado

1. 683. The Canadian Association of Smelter and Allied Workers (CASAW) presented a complaint against the Government of Canada in communications dated 9 August and 15 October 1993.
2. 684. The federal Government transmitted its observations and information in a communication of 31 March 1994.
3. 685. Canada has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). It has not ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 686. In its communication of 9 August 1993, the complainant states, in relation to a labour dispute which took place at Royal Oak Mines Inc. in Yellowknife (Northwest Territories), that the Government has appointed five dispute resolution mechanisms which, at the date of the communication, had all failed. The complainant argues that these delays and the conduct of the courts have helped the employer refuse to bargain. CASAW also complains about the "biased conduct" of the Royal Canadian Mounted Police (RCMP) which it says contravened Conventions Nos. 87 and 98.
2. 687. The complainant submits that the employer has engaged in a deliberate policy of union-busting which began shortly after it purchased the Giant Mine in November 1991. The lockout on 22 May 1992 was part of the company's policy to get rid of CASAW Local 4. These policies are contrary to the Canada Labour Code.
3. 688. It adds that the federal Government and the Government of the Northwest Territories have assisted Royal Oak Mines in a variety of ways in carrying out its union-busting objectives. This assistance includes the provision of police forces which have policed the strike in a one-sided manner; allowing Royal Oak to repeatedly violate safety and environmental laws in order to keep the mine operating; and in permitting endless delays to the processes initiated by the Canadian Labour Relations Board and the special mediators/Industrial Inquiry Commission which were supposed to resolve this dispute.
4. 689. The RCMP have also acted as agents of Royal Oak Mines in the biased manner in which they have policed the labour dispute from the outset. The RCMP investigation of the 18 September 1992 explosion at the Giant Mine has been conducted in a manner that has resulted in the constant harassment of the leadership of CASAW Local 4 and most of the active union members and, in the course of this investigation, the civil rights of union members have been violated.
5. 690. CASAW attaches to the complaint a letter, dated 21 July 1993, from its Local 4, directly involved in the lengthy and bitter labour dispute, which culminated on 18 September 1992 with an underground explosion at the mine, killing nine people. CASAW Local 4 contends that under the guise of investigating the explosion, the RCMP has been playing a major and inappropriate role in the dispute, and submits that many of its members have been brought to the courts on criminal charges which were later dropped or found to be without basis. Several members against whom charges were dismissed at preliminary hearings faced new charges. Very few charges have been laid by the RCMP against company security guards and strikebreakers who have provoked much of the violence during the strike, and the Crown has been slow to prosecute where charges have been laid. Some CASAW members have been sentenced to jail for unjustly long periods of time.
6. 691. CASAW Local 4 contends that the RCMP helped foster the perception by the Yellowknife community that its members were largely responsible for the violence which erupted during the strike, which added to the frustration of being unable to end the strike, and to the long delays of conciliation, mediation, etc. It highlights some of the events which occurred:
   • - In June 1992 relations were already bad enough that CASAW asked the RCMP to assign a labour coordinator to the local detachment to ease communication between them; this request was denied on the ground that it was unnecessary.
   • - On 9 November 1992, CASAW filed a complaint with the RCMP Public Complaints Commission alleging improper involvement in its labour dispute and harassment and intimidation of its members and their families. The Commission has not yet issued a report.
   • - On 25 May 1993, CASAW wrote to the Labour Minister to complain of improper conduct by the Commanding Officer of the Yellowknife RCMP. The officer had erroneously claimed, in writing, to another union that CASAW was in agreement with the RCMP's investigation of the explosion. CASAW was told by the Labour Minister that the matter would be passed to the Solicitor General of Canada; there has been no further acknowledgement of the issue.
   • - On 2 June 1993, CASAW wrote to the Solicitor General to request increased protection by the RCMP against strikebreakers who were threatening and assaulting picketers on the picket line. CASAW also continued in this letter some of its complaints against the RCMP, and made the letter public.
   • - Since the incident outlined in the letter of 25 May, CASAW has ceased to have "liaison" meetings with the RCMP. It renewed its request to have a labour coordinator assigned, and was again refused.
   • - On 15 June 1993, the RCMP, in what was termed a "dragnet" operation, harassed a large number of CASAW members in their homes, in the presence of their children. This operation, the first of its kind, was ostensibly related to the investigation of the explosion. CASAW believes it was conducted in retaliation and to intimidate it and its members.
7. 692. The complainant attaches to the complaint a series of press clippings from local newspapers reporting some of the events and describing the tense atmosphere which then prevailed.

B. The Government's reply

1. 693. In its communication of 31 March 1994, the Government replies on the first allegation (failure of the authorities in the bargaining process) that the Labour Department made every effort to assist the parties to settle the dispute. When the parties were unable to conclude a renewal of their collective agreement in direct negotiations, a conciliation officer was appointed by the Minister on 20 March 1992 to assist them in their negotiations. The parties' collective agreement expired on 31 March 1992. The conciliation officer met with the parties on 7-9 April 1992, and they were successful in concluding a tentative settlement on 18 April 1992. However, that tentative settlement was rejected in a vote by the union membership. The conciliation officer met with the parties again but, when it became clear that negotiations were at an impasse, the officer filed his final report to the Minister. The parties were advised on 15 May 1992 that the Minister would not be appointing a conciliation commissioner in their dispute (such appointments are rarely made). A legal work stoppage commenced on 23 May 1992.
2. 694. On 1 June 1992, the Minister appointed a mediator to meet with both sides and attempt to settle the dispute. Mediation meetings were held on 7-8 June 1992 in Yellowknife but an agreement was not achieved. Further mediation meetings were held on 22-23 July 1992 without success but the mediator remained in contact with both sides and there were indications just before the 18 September 1992 fatal explosion at the mine that the parties might be prepared to resume negotiations. On 24-25 September 1992, the Federal Minister of Labour met with the parties in Edmonton, Alberta, to discuss ways of settling the dispute. The suggestion that the dispute be settled by binding arbitration did not receive unanimous agreement, but there was an indication from the parties that a further mediation effort would be welcome.
3. 695. On 30 September 1992, the Minister of Labour appointed Messrs. Donald R. Munroe, Q.C., and Vincent Ready, two high-profile, experienced labour practitioners from Vancouver, BC, as special mediators. They familiarized themselves with the parties' positions and held joint meetings prior to the release of an interim report with recommendations on 26 November 1992. The union accepted the recommendations which provided a process of arbitration for employees dismissed during the strike, but the company rejected the recommendations on 21 December 1992.
4. 696. On 22 December 1992, the Federal Minister of Labour took the extraordinary step of appointing Messrs. Munroe and Ready as an Industrial Inquiry Commission under the Canada Labour Code, with a mandate to settle the labour dispute or file a report with recommendations if no settlement was forthcoming. The Commissioners held public hearings in late January 1993, and held numerous meetings with the parties over the following months until late August 1993, when it was decided to file a report with recommendations. The Commission suspended proceedings for two or three months in early 1993 while awaiting the outcome of Canada Labour Relations Board (CLRB) proceedings concerning an unsuccessful challenge by a rival union to replace CASAW as bargaining agent for the miners. The Commission's report, which provided a comprehensive process for settlement of the dispute was released to the parties and the public on 16 September 1993. The report was accepted by the union but rejected by the company.
5. 697. The CLRB is an independent, quasi-judicial tribunal established under the Canada Labour Code, consisting of a chairman, five vice-chairmen and eight members appointed by Order-in-council for specified terms. The union requested the CLRB in October 1993 to resume hearings into its complaint, alleging that the company had failed to bargain in good faith. In order to file the complaint, CASAW needed the consent in writing of the Minister of Labour. Consent was requested on 14 April 1993, and after a response from the company was requested, and received, as provided for in the Canada Industrial Relations Regulations, both submissions were considered and ministerial consent was granted on 14 May 1993. The CLRB scheduled hearing dates beginning in late July 1993, but those dates were postponed sine die at the request of the parties.
6. 698. After eight days of public hearings in Yellowknife, the CLRB found on 11 November 1993, that the employer had failed to bargain in good faith, contrary to section 50(a) of the Canada Labour Code. The order of the CLRB provided a process for settlement of the labour dispute which was based upon the recommendations of the Industrial Inquiry Commission. Pursuant to that order, the company made an offer to the union which was accepted by the union membership in a ratification vote on 16 November 1993. Four outstanding collective bargaining issues were decided in an award of 13 December 1993, by mediators/arbitrators appointed by the CLRB. Surface employees returned to work on 1 December 1993, and underground employees returned to work on 21 December 1993. Some 50 employees, who were dismissed during the work stoppage, have the opportunity to have their case reviewed by the mediators/arbitrators, with hearings scheduled to begin in April 1994.
7. 699. On 7 December 1993, Royal Oak Mines Inc. filed an application with the Federal Court of Appeal seeking judicial review in order to overturn the CLRB decision of 11 November 1993. A company motion for a stay of proceedings pending a final decision on its application was rejected by the court on 21 December 1993. The Federal Court of Appeal was scheduled to hear the company's application for judicial review on 23-24 March 1994.
8. 700. This brief history of the labour dispute illustrates that every effort was made by the federal Government to assist the parties to arrive at a resolution of their collective bargaining differences. The complainant's allegation that the federal Government is responsible for the length of time it took to settle this labour dispute is not supported by the facts.
9. 701. On the second issue raised by the complainant (biased conduct of the RCMP) the Government states that the police force has been caught in the middle of the situation from the outset of the dispute, and criticism has been levelled at the RCMP from both the union and the employer.
10. 702. As regards the allegation that the manner in which the murder investigation was conducted amounted to constant harassment of CASAW members, while it is true that CASAW members had to be interviewed on several occasions, this was primarily due to the lack of cooperation extended by the CASAW union as a whole and/or its individual members. Ultimately, one CASAW member has been charged with nine counts of murder, and two other CASAW members have been charged with a number of other serious criminal charges. All three of these persons are being held without bail. An aggressive criminal investigation was necessary in this case and, as these matters are before the courts, it would be inappropriate to comment further at this stage.
11. 703. In addition to these serious criminal charges, a number of other criminal charges have been laid during this 18-month dispute. These charges are for the most part related to assaults, weapons offences and property offences, and involved CASAW members, replacement workers, and some company employees. While individuals from all groups have been charged, the majority of people charged are CASAW members. Approximately 25 CASAW members have already been convicted in criminal court and a number of others are awaiting decisions of the courts.
12. 704. During the last 18 months, either individual union members, or the union itself, has tendered numerous public complaints regarding the conduct of members of the RCMP. Approximately 50 such allegations have been investigated by the independent RCMP Public Complaints Commission (PCC). While that investigation is complete, their final report is still being prepared. In addition to the matters being examined by the PCC, the RCMP has investigated another 28 public complaints. To date, only one such complaint throughout this very volatile labour dispute has required that discipline be administered to a police officer.
13. 705. The Government also communicates a letter of 18 January 1994, from the Government of the Northwest Territories, dealing with several environment and mining safety issues, which generated some controversy between the parties from May 1992 to October 1993. The Government also attaches several reports and decisions relating to the dispute:
    • - report of the Special Mediators, 25 November 1992;
    • - report of the Industrial Inquiry Commission, 13 September 1993;
    • - decision of the CLRB, 11 November 1993;
    • - report of the Mediators/Arbitrators, 13 December 1993.

C. The Committee's conclusions

1. 706. The Committee notes that the allegations in this case are related to events surrounding a private sector labour dispute in the Northwest Territories of Canada. The CASAW complains about the long delays incurred throughout the dispute resolution procedures which, it alleges, have helped the employer refuse to bargain; it also criticizes the biased conduct of the Royal Canadian Mounted Police which it says constitutes interference, contrary to Conventions and principles on freedom of association.
2. 707. Concerning the first issue, the Committee notes that the Canada Labour Code establishes an elaborate framework for the settlement of labour disputes, including mediation, conciliation and other third-party intervention with the help of the Department of Labour (now the Department of Human Resources Development).
3. 708. The reports and decisions submitted to the Committee show that that dispute was inordinately protracted and bitter, and that violence erupted on several occasions, with the tragic culminating event which took nine workers' lives. It also appears that the dispute was further complicated and prolonged by several factors, including: the fact that the initial tentative agreement was rejected by the union membership, which meant the emergence of a different union leadership, both in terms of collective bargaining and executive responsibility; the continued operation of the mine despite the legal strike/lockout; the dismissal of some 45 striking employees by reason of their alleged serious misconduct; the general destabilizing impact of the explosion and resulting deaths; and the parallel representational proceedings lodged by a second workers' organization which attempted to be certified as bargaining agent for the workers of Royal Oak Mines.
4. 709. The Committee would in particular quote some extracts from the report of the special mediators, dated 25 November 1992, which illustrate the unusual nature of the dispute and might explain the long delays involved:
   • The work stoppage was attended by considerable violence. This reached a tragic crescendo on 18 September 1992, when an explosion at the mine killed nine miners. The responsible police authorities continue to investigate the explosion and resulting deaths as a culpable homicide ... we can say without equivocation that this is the most difficult labour dispute that either of us has witnessed (p. 3) ... To that end, (a settlement of the issues) both parties must adjust their negotiation behaviour. In the more recent stages of our mandate, the union has acknowledged the earlier tentative agreement as being at least something of a benchmark: indicating that a settlement of the dispute can be found somewhere between the content of the expired collective agreement, on the one hand, and the earlier rejected tentative agreement, on the other. While that amounts to a new position and might therefore be regarded as progress, it falls short of comprising a realistically concrete proposal sufficient to generate real momentum at the bargaining table. But if the union is to be further motivated toward settlement, the employer must likewise be realistic. More particularly, the employer must restrain itself from taking bargaining positions which it surely must know would be unacceptable to virtually any organization of workers. It is one thing to say that circumstances have changed such that the content of the tentative agreement is no longer good enough. It is another to construct unmanageable bargaining gaps (p. 7) ... As a matter of law, the dispute between these parties is essentially private in nature. But as a matter of fact, the public fallout from the dispute has been enormous and, at least in our experience, unprecedented. Both sides owe it to the surrounding community to take a serious and tangible step toward a resolution of this seemingly intractable dispute (p. 8) (emphasis added).
5. 710. The same labour law practitioners were appointed later as an Industrial Inquiry Commission and issued on 13 September 1993 a report and recommendations, which made extensive reference to their previous conclusions, and stated, inter alia:
   • The bargaining logjams between the parties are not easily broken. As we stated in our first report as special mediators, and as we now repeat, both parties must adjust their negotiating behaviour. On the one hand, the union must come to the realization that the expired collective agreement and the once-rejected tentative agreement are not the exclusive reference points. Things have changed. And a settlement is not likely to be achieved so long as the union continues to firmly anchor itself to those two documents. On the other hand, drawing once more on our report as special mediators, "... the employer must restrain itself from taking positions which it surely must know would be unacceptable to any organization of workers". Succinctly stated, it is one thing to come forward with a settlement package which is tough and even unpalatable. But it is quite another thing to knowingly adopt an overall bargaining stance making it impossible for the other side to participate in a resolution of the dispute (p. 30) (emphasis added).
6. 711. CASAW Local 4 had also filed a complaint of unfair labour practice against Royal Oak Mines to the Canada Labour Relations Board (CLRB), which determined that the respondent employer had not been bargaining in good faith and had not made every reasonable effort to enter into a collective agreement, as required by section 50(a) of the Code. The Board found, inter alia, that the employer had required, as a precondition of bargaining, that there be no independent process for the adjudication of cases of employees discharged for picket line and related activity. The Board found that, in the circumstances, this was an improper condition that amounted to a failure to bargain in good faith. The Board ordered the employer to submit to the union, as an offer, a proposal or a collective agreement, and ordered a back-to-work protocol and a procedure for determining the question of just cause with respect to the dismissed employees. The Board was highly critical of the bargaining postures of both parties.
7. 712. In the meantime, another decision had been issued by the CLRB, denying an application by a second workers' organization, the Giant Mine Employees' Association (GMEA); the CLRB found that the GMEA lacked majority support and was dominated by the employer. Finally, as there remained some unresolved collective bargaining issues, a further third-party intervention was necessary, and a mediation/arbitration decision containing binding recommendations was released on 13 December 1993.
8. 713. In the Committee's opinion all these documents give ample objective reasons explaining the delays in this dispute. In addition, and perhaps more importantly, the excerpts quoted above demonstrate that there were on both sides subjective factors which complicated and delayed it even more. On balance, the evidence adduced shows that, taking into account the unusually difficult circumstances of this dispute, the Government made every effort to help the parties conclude a settlement, through the various procedures established under the Canada Labour Code. It should be pointed out however that, in the last analysis, primary responsibility for the settlement of disputes rests with the parties concerned. The Committee considers that this aspect of the case does not call for further examination.
9. 714. As regards the second issue, namely the allegedly biased police attitude and interventions during the strike/lockout, the Committee refers to the description of events given above and notes that the independent RCMP Public Complaints Commission conducted an investigation on some 50 allegations regarding the conduct of members of the RCMP during the dispute, and that it is preparing its report in this respect. It requests the Government to provide a copy of that report once it is published.

The Committee's recommendations

1. 715. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee considers that the Government made every effort to help the parties to the dispute conclude a settlement, through the various procedures established under the labour legislation, and that this aspect of the case does not call for further examination.
   • (b) The Committee requests the Government to provide a copy of the report of the independent RCMP Public Complaints Commission on the allegations regarding the conduct of members of the RCMP during the dispute, once it is published.