Editor’s Note: In January 2019, the federal government announced a plan to end the Cape Breton Development Corporation’s (Devco) coal operations — Phelan Mine was to close in late 2000 and Prince Mine to be sold. The original scheme, as reported by the Globe & Mail’s Kevin Cox, would see about 500 people “work for the privatized coal-mining company,” while 340 would receive pensions and 650 severance packages.
This is a true story about Canada’s first strike of the new millennium and – simultaneously – the last strike ever staged by Cape Breton’s fabled coal miners. The story is less about the public face of the strike – picket lines, fire barrels, coal blockades and a faux hunger strike — than it is about the damage the ill-advised strike inflicted on the miners’ legal fight for justice. As President of District 26, United Mine Workers of America (UMWA), I had front row seats on both sides of the picket lines.
The 2 January 2000 wildcat started and ended in divisive chaos. Miners had no appetite for a strike. They had recently voted to dissolve their strike fund and were awaiting a decision from a nationally recognized arbitrator on their legal case against the employer. As usual, internal politics were already in play and a tiny faction of de facto strike leaders were determined to hammer in the first wedge.
The Government Plan
The spark that ignited the powder keg was the notion that the statutory right — of all Devco employees — to work and retire with dignity was not relevant to the contrived government plan to “privatize” the Cape Breton coal industry. Responsibility for the decision to ignore contractual and legislated obligations was rooted in government policy. Some may recall the 1995 federal budget that axed 56,000 civil service jobs, shredded pension programs and slashed hundreds of millions from departmental budgets – including the department responsible for Devco. Veteran miners, and their families, were pompously told there was no bag of money and no rabbits in the hat.
By the time Industry Minister Ralph Goodale paraded into town on 28 January 1999 his scripted talking points were locked and loaded. The gist of his drive-by lecture was that the government was entitled to impose its last downsizing package on Devco’s final troop. The package consisted of 340 pensions, 650 severances and 500 “fantasy” jobs in a privatized industry. Minister Goodale told the unions the package was non-negotiable. Devco’s board of directors and management sided with their political masters.
Once the fog of disinformation lifted three things became clear: 1) the final 1,162 employees had targets on their backs; 2) there were no 500 jobs; and 3) the government was afraid to defend its shoddy case in any legal venue.
The miners were incensed. I understood their anger – I was one of them. However, they elected me to fight for their legal interests not to get arrested on the picket lines of an ill-fated crusade.
Legislated safety net
For the next few weeks, I spent my evenings digging through the government document stacks at (what was then) the University College of Cape Breton (UCCB) Library. Here is what I dug up:
In 1967, Parliament invoked s.92(1) of the Constitution Act, 1867 and declared the Cape Breton coal industry as works for the general advantage of Canada thereby taking legal responsibility for 6,500 DOSCO employees. The Cape Breton Development Corporation Act created a mandatory employment and pension safety net for all Devco employees. Carry over of pensionable service from Dosco to Devco was part of that safety net. (I memorized s.17(4)(b) the “all reasonable measures” section for future swordplay.)
Prince Mine, Cape Breton, NS.
In 1974, Devco abandoned its no-hiring mandate and began luring young people into the industry to fight the oil crisis. About 2,500 of us were enticed with assurances of lifetime jobs and retirement with dignity.
Here is the golden nugget: On 19 June 1967, in the House of Commons debates on Cape Breton coal, the Honorable Jean-Luc Pepin, Minister of Energy and Resources, stated:
The pension plan concerns those who are now employed, those who have been employed and those who will be employed by the Corporation.
It all seemed straightforward to me – work and retire by law.
Finally, Devco’s annual reports revealed that between 1968 and 1999, Devco provided mandatory employment and pensions to more than 7,500 employees. The 28 January 1999 announcement treated the final 1,162 employees differently – based on age alone. Most of that final troop had between 20 and 31 years of service with the federal Crown Corporation.
I presented the case to the district executive board, the locals, the miners, the international executive and eventually, our lawyers. My main point was that s.17(4)(b) placed us inside the same statutory safety net as the 6,500. Everyone was onside with the idea of a legal fight for justice.
Kneejerk reaction
My original plan was to take the government to court and let a Superior Court Justice decide the employment and pension issues on the merits. On the advice of union lawyers, the more practical path to justice was said to be through the collective agreement. So, with the assistance of our legal team, the union filed a grievance and picked a legal fight with Devco and the federal government – simple as that.
The basis for the legal argument can be found in the collaborative (four union) submission to the House of Commons Committee on Bill C-11 here.
The union plan required a high-profile arbitrator. After six months of comprehensive and costly preparation, the miners’ case was put before nationally recognized arbitrator, Marc Lapointe, Q.C., Chairman Canada Labour Relations Board 1973-1989. Between 17-18 November 1999, Lapointe heard the opening salvos and adjourned for a decision on Devco’s preliminary objections. While the membership was waiting, the de facto strike leaders were stirring the pot of dissension and discontent. A strike was brewing.
There was no strikers’ plan. The wildcat was a kneejerk reaction to a 19 December 1999 voice mail from the Phalen Mine manager to the union office advising that Devco had decided to close the mine a day earlier than planned. He framed the paid day off as a Christmas gift from Devco. The 20 December 1999 closure headlines were salt in the wounds of a workforce already in crisis. Hundreds of Prince Mine’s junior employees were to be permanently laid off. The de facto strike leaders’ telephone blitz to “shut ‘er all down in the new year” ramped up almost immediately. Support was tepid.
The apparent notion was that old-school tactics would force the government to hand over the roughly $200 million required to fund a better deal. How to achieve that complex goal is an issue the de facto strike leaders have failed to address to this very day. The strikers were aware the best they could hope for would be a Canada Labour Code committee with inevitable arbitration. That plan was already in play with the Marc Lapointe arbitration. Logic didn’t matter. The wedge, between the strikers and the rest of the membership and district executive, was hammered home.
Barely a handful of miners showed up to picket on the 11-7 backshift at Prince Mine on 2 January 2000. Regrettably, the public face of the strike soon began to change to less radical, unmasked and better-organized miners. Many of them were my friends. I knew it would take something of redeeming value to get them off the lines. Like the 1990 strike – they needed a vote.
Barnburner
When the illegal wildcat started, the already complex legal case became instantly mired in a more potentially dangerous situation: how to avert 185 trained and fully armed
Contributed by Stephen Drake. (Click to enlarge)
RCMP officers – and Sniper Team – from enforcing the legal rights of Devco and Nova Scotia Power to move coal to the power plants. The miners wanted no trouble or bloodshed.
As luck would have it, the RCMP were operating under an established “Measured Approach” using non-confrontational mediation techniques to broker a peaceful resolution. The union endorsed the peaceful approach. However, as the strike wore on, and provincial electricity interruptions were looming, pressure was mounting on the RCMP to take the miners out by force if necessary. Public safety was of primary concern. Bloodshed could result. Everyone was on high alert.
In a last-ditch effort to avoid a confrontation, the union leaders attended a morning meeting with Minister Goodale, his advisor and Devco representatives on 12 January 2000 in Ottawa. By any standard, the meeting was a 26-hour barnburner. I took 33 pages of notes for posterity. Minister Goodale advised that the package was a collective decision of Cabinet and was non-negotiable. Devco representatives agreed. The unions remained laser focused on one goal: work with pensionable credits and retirement benefits for 1,162 employees negotiated under the Canada Labour Code.
By 9:40 PM, little progress had been made and the meeting was about to end. From experience, I knew politicians were vulnerable to two things – the media and the courts. The media were right outside the door. I pointed my finger at Minister Goodale and angrily told him that any bloodshed would be on his hands. He was visibly shaken and asked for a five-minute break. It proved to be the turning point. The unions got what the strikers’ demanded – a Joint Planning Committee (JPC) under the Canada Labour Code to negotiate or arbitrate a package.
On 13 January 2000, in an Ottawa hotel, a three-point Letter of Understanding was signed and faxed to the District 26 office for distribution to the miners. They would have the final say by democratic vote.
On 14 January 2000 at 11:00 AM., the coalition of unions walked into Ring 73 – a renowned boxing Club in Glace Bay. The club was jam-packed with hundreds of miners anxiously waiting for an explanation and a vote. The tentative deal and the risk of the JPC process was explained. The jeopardy that another arbitration might pose to the Lapointe arbitration was clarified. There were few questions. The ballots were cast in the boxing club and on the picket lines. The miners voted 83% in favor of ending the strike. Fewer than 100 voted to support the wildcat. The last strike by Cape Breton’s fabled coal miners was over.
Pyrrhic Victory
The union leaders and lawyers made the same s.17(4)(b) “Lapointe” argument in front of two government-appointed arbitrators. The June 2000 decision added 246 pensions and the October 2001 decision added 96 pensions to the retirement list. Inclusive of all arbitrated benefits, the decisions amounted to a $140 million legal rout of the federal government of Canada. Was it a victory? Of course it was — but Pyrrhic in nature.
The collateral damage inflicted on the coal industry’s final troop tells a repugnant story about our political institutions. That the government and Devco did the deed with a straight face still galls me. From a total of roughly 9,000 employees, just 820 – most of whom had between 20 and 24 years /364 days service with Devco – were denied the right to retire with dignity because they were hired when they were young. The miners understand what role the de facto strike leaders played in that ignominious end.
You may be wondering what happened to the Lapointe arbitration? I have no idea. Two of my local union “brothers” were appointed as administrators of the remains of District 26 in 2000. The international president fired me in September 2000 because I announced my candidacy for mayor of the CBRM. I still have his ruthless letter. The Lapointe case was left in their hands.
The rest is history.
Stephen J.W. Drake
New Waterford
