Imagine There’s No Labour Board - Point

Roughly seven of 10 Canadian workers are unable to collectively negotiate their conditions of work. There are many reasons for this unsatisfactory state of affairs, including employer opposition to collective bargaining and inadequacies in our labour policy framework. One important reason for the representation gap has gone generally unrecognized. The language that we use to talk about labour relations, and the imagery embedded in that language, have put us in a prison of our own construction. Our language places constraints on our imagination and on our ambition and vision regarding collective representation.

A good example appeared in Our Times's winter issue (Vol. 25, No.6). In her otherwise informative article about part-timers in Ontario colleges (see "Part-timers are People, Too: College Workers Organize"), Valerie Dugale reported that "Ontario is the only province in Canada where it is against the law for part-time college workers to join a union." The statement can be read to mean that college part-timers in Ontario are forbidden by law to organize and to bargain collectively. But that is not true. What Dugale meant to say is that part-timers in Ontario are excluded from the coverage of the Colleges Collective Bargaining Act and, being excluded, are unable to make use of its provisions. But that is not the same as being forbidden by law to organize and to bargain collectively.

In fact, all Canadian workers have a constitutional right to organize, to select leaders of their own choosing, to develop a program to advance their interests, to make representations to their employers and, should the result prove unsatisfactory, they have a right to organize action designed to compel the employer to change position. In the case of Dunmore vs. Ontario, which involved agricultural workers, the Supreme Court also strongly suggested that in such circumstances, the employer has a constitutional responsibility to meet with the employee organization and consider its proposals. That is the way that a very worker-unfriendly Conservative government in Ontario interpreted the case, because it included that requirement in the law it constructed to comply with the Supreme Court's order.

Ontario's Agricultural Employees' Protection Act was not greeted with joy by the unions. UFCW Canada (the United Food and Commercial Workers), the union that brought the case, wanted the Court to require Ontario to place agricultural employees under the province's general labour relations act. Unions generally were unimpressed with the AEPA because it does not include a "bargaining in good faith" clause and because it does not provide for a dispute resolution mechanism such as binding arbitration (UFCW Canada's preferred option), or the right to strike.

I am sure that readers of Our Times understood what Valerie Dugale meant when she said it was against the law for part-timers to unionize. The term "unionize" in Canada has come to mean the establishment of a government-mandated collective bargaining arrangement. Anything short of that is considered to be something other than a "union." One very ironic aspect of this situation is that a union in this conception cannot come into being except through a governmental process. Throughout most of the world, unions have tenaciously insisted on their freedom from government. Indeed the word "free" in the title of the International Confederation of Free Trade Unions, the world's largest union organization until a recent merger with the World Confederation of Labour, meant freedom from government. In Canada, however, we have created a language and imagery in which a union cannot exist without a government certificate.

Surveys indicate that roughly 40 per cent of unorganized workers would like to be represented by a certified bargaining agent. They cannot get their way, however, in part because of technical aspects of the system and in part because of the way that we think about the system. To be certified by the state, more than a majority of workers in appropriate bargaining units must indicate their support for that option. But only four of 10 unorganized workers want that option. If those workers were evenly spread across the economy, none of them could get their wish because certification requires majority support. In each appropriate unit they would be outvoted six to four. Of course, it is very unlikely that such an even spread exists, but it is a virtual certainty that there are lots of workplaces where some of the employees want a traditional bargaining arrangement but cannot get it because a majority of their compatriots don't want it (or are too afraid to speak up).

Although a majority of the unorganized do not want a traditional bargaining arrangement, certified and tightly regulated by the state, surveys indicate that about nine of 10 unorganized workers want some form of independent representation. They can't have it, however, in part because the language and imagery that we use all but precludes the consideration of options other than traditional state certification and regulation.

We think of union organizing as something that unions do with respect to the unorganized. For instance, the Ontario Public Service Employees Union organizes provincial government employees, the Canadian Auto Workers organizes auto workers (and lots of others these days), and the United Steelworkers organizes steelworkers and many others. But the right to organize and bargain collectively is an individual human right, one that all workers possess simply as a function of their humanity. If I work in a non-union retail store, I don't have to wait for UFCW Canada or the Service Employees International Union to show up to organize me. Along with my co-workers I have a right to organize myself. As citizens, people are organizing groups every day to influence city hall or the provincial or federal government or some government agency. They don't have to go to the government to get certified. The same is true in industry. Any group of employees can get together to influence their conditions of work. They can, if they want, go to an existing union for help, but they don't have to. They can, if they want, certify an exclusive agent, but they don't have to.

Our language and imagery hide these choices and make it appear that indeed it is only possible to "be organized" rather than to organize ourselves. It is also part of our culture that to unionize, one needs a piece of paper from the government.

Our language makes it appear that nothing can be done unless a majority of our colleagues can be won over. Not so. Just like any group of concerned citizens, any group of employees have a human and constitutional right to get together and work out a strategy to convince their employer to improve their conditions, strengthen their job security, correct inequities, refrain from tampering with the pension plan, or whatever other issue might be of concern. Short of certification, they have a right to at least try to work out with their employer a tailor-made bargaining arrangement. In its Dunmore decision, the Supreme Court said nothing about majoritarianism, and the majority rule is conspicuous by its absence from the Agricultural Employees Protection Act.

Some unionists believe that these rights are not of much value. They fear that without strong government backing, mandatory bargaining in good faith, and the protected right to strike, they will not be able to negotiate meaningfully. If I were a union leader, I would certainly want employers to accept that they had to bargain in good faith, and that failure to agree might well produce an operational shutdown. But with some imagination a lot could be accomplished, in particular circumstances at least, even without those supports.

For example, police in the United States are, in many states, not provided with any public support for collective bargaining. Indeed, after a police strike in Boston in 1919 resulted in riots, discouragement of police unionism became the rule and police unions were outlawed in many jurisdictions. Police, however, did not simply buckle under. They formed "benevolent associations" and organizations with other innocuous names and, through them, lobbied government and developed a range of pressure tactics such as the "blue flu" (in which a portion of the police force would call in sick until the dispute was resolved), in order to pressure their employers to meet their demands. Without the help of labour legislation, but using imagination, police associations across the U.S. have been able to develop quite effective organizations.

But police are not the only ones to organize outside of traditional channels. In Chicago, public sector workers refused to accept their exclusion from labour legislation coverage, organized themselves, and worked out a range of direct action tactics to achieve their goals. Closer to home, when principals in Ontario's public school system were legally expelled from the teachers' unions by an anti-union government, they quietly formed their own associations and worked out tailor-made bargaining arrangements with their school boards. In short, what the Supreme Court calls "non-statutory unionism" is an option for workers who don't want to, or can't, certify an exclusive agent. But it is an option that is generally not being considered, largely because of the conceptual blinders that prevent us from recognizing its potential.

The labour relations language and imagery that has wended its way into our psyche is a huge aid to the union-avoiding enterprise. As things now stand, "unorganized" employers simply assume, without challenge, that they have no responsibility to negotiate with their employees unless confronted with a certified bargaining agent. Our way of thinking about union organizing as something that existing unions do also allows employers to characterize unionization as something alien to the enterprise. To be organized, many employers argue, is to allow a "third party" to divide a unified workplace society. Even if no illegality is involved, this characterization sends a signal to employees that to organize is to piss off the boss. Since most employees want to keep on the boss's good side under most circumstances, this imagery is an effective barrier to the exercise of a fundamental human right. In short, this entire body of thought is an effective defence of an authoritarian enterprise governance system that is a deadweight on our aspiration to be a democratic society

The exclusion of seven of 10 workers from having any meaningful say about their conditions of employment, conditions that are critical to their well-being, is offensive to our notions of democracy and human dignity. Having no control over key areas of their lives, workers without collective representation are being treated as little better than chattel. Even where the masters are relatively benevolent, we still need to put an end to "wage slavery." We need to get beyond the conceptual constraints that do not even allow us to consider reasonable options to the undemocratic, undignified status quo. The only choice that workers really want is between formal, traditional collective bargaining and informal collective representation. We need to give them what they want and are entitled to. We need to make independent workplace representation for all workers, through either formal or informal means, our goal. We will not become a really democratic society until that goal is reached.

Roy J. Adams is a professor of industrial relations at McMaster University in Hamilton, Ontario. He is the author of Labour Left Out: Canada's Failure to Protect and Promote Collective Bargaining as a Human Right (ISBN: 0-88627-469-9).