Is Refusing to Arbitrate the Dismissal of Striking Workers Illegal?

There was an interesting case out of the Ontario Labour Relations Board last month involving the long strike at Inco in Sudbury. That strike was resolved last summer, but one issue remained:  What about the 9 employees that Inco had dismissed during the strike for misconduct? (I don’t recall what they were accused of doing).  The Steelworkers wanted an agreement to refer the dismissals to an arbitrator to determine if the employer had “just cause” for dismissal.  The Employer refused this demand, and argued that since there was no collective agreement in place when the dismissals occurred, there was no just cause protection covering the employees. Therefore, if the employees wanted to dispute the dismissals, they could file a common law lawsuit for wrongful dismissal (which is what non-union employees do), but could not file a grievance alleging no “just cause” under an expired collective agreement.  The parties agreed to resolve the strike but to ask the Labour Board to decide if the employer was bargaining in bad faith by refusing to agree to a term that would allow the union to arbitrate the dismissals.
The Vale-Inco decision has now been posted.
The union argued it is a violation of Section 17 of the Labour Relations Act (the duty to bargain section) if the employer adopts a bargaining position that   “is objectively unreasonable having regard to the comparable standards and practices within a particular industry.” That would mean, in essence, that it would be illegal for an employer to refuse to a union’s proposal for a contract term that is so common in the industry that it is unreasonable for the employer to refuse it.  The Union argued that this is what the Supreme Court of Canada ruled in Royal Oak Mines, a case we study in labour law classes at law school.  Moreover, the Union argued that the B.C. Health Services decision, which ruled their is a Charter protected right to collective bargaining, leads also to the conclusion that there is a Charter right to strike, which must mean that employers can’t just fire strikers and deny them a right to challenge the reason for dismissal.
The Board rejected the union’s argument that it is illegal per se for an employer to refuse to agree to a term that is common in the industry.  In other words, the mere fact that most employers agree to a term does not make it illegal for an employer to refuse to agree to that term.  Sometimes, an employer who refused to agree to a specific term may indeed be bargaining in bad faith, if it is part of a pattern of conduct that demonstrates that the employer has no interest in reaching a collective agreement.  But that means the Board needs to explore all of the circumstances of bargaining to put the refusal to agree to the term into a broader context.  So the argument in this case will continue to a further hearing that will examine more closely Vale-Inco’s behavior  in relation to its refusal to agree to arbitrate the dismissals.
For labour law students, think carefully about the employer’s argument here that unionized employees dismissed during a strike can sue their employer for wrongful dismissal under the common law.  Do you think that is right?
What is the legal status of a striking employee?  Are they covered by the common law rules that apply to non-union employees, or the collective bargaining regime, which covers unionized employees?
Why would an employee prefer going to an arbitrator over going to a court?