A tighter embrace

The Canadian labor relations system has a number of features envied by the American labor left. These include card-check certification in some jurisdictions (labor law is largely a provincial matter) — where a union can secure recognition if it gets a majority of workers to sign union cards, bypassing a secret-ballot election — and first contract arbitration, where an arbitrator will impose a collective bargaining agreement in a newly unionized workplace if the two sides cannot reach a deal.

There is considerable excitement when these kinds of measures make it onto the agenda in the US, from the (ultimately failed) Employee Free Choice Act of 2007 to presidential candidate Bernie Sanders’s labor platform.

But it’s not so simple that Canadian workers have it better. Instead, Canadian workers are more aggressively funneled into a tightly regulated and regimented labor relations regime. The price paid for making it somewhat easier to secure union representation is curbing expressions of worker power. Canadian workers find themselves in a tighter embrace with both employers and government.

General relationship between employers and workers

First, it’s worth noting that the overall relationship between employers and workers is viewed differently in the two countries.

In Canada, workers and employers are presumed to have obligations to one another. In practice, this means that you have to give notice before quitting a job, and likewise your employer has to give you notice before letting you go (generally two weeks in both cases). This traces back to Britain’s Master and Servant act of 1823, which enforced (individual) employment contracts. It was mostly used to punish workers fleeing horrendous conditions, but it also meant that workers were guaranteed a certain length of employment. In the present day in Canada, this also means that employers generally have to have some kind of reason for letting you go, although enforcement against wrongful dismissal is fairly weak.

In the United States, by contrast, there is a presumption that workers and employers have no obligation to each other. This is known as “at-will employment,” and it means that you can quit your job, or your employer can fire you, at any time, without having to give justification. The Supreme Court case Payne vs Western Atlantic RR (1844) established that “All may dismiss their employees at will, be they many or few, for good cause, for no cause, or even for cause morally wrong, without thereby being guilty of a legal wrong.” This advances the fiction that employers and workers meet each other as equals in the marketplace. But notice that the Canadian / British law’s reciprocal formulation maintains that same farce.

At any rate, these respective framings anticipate the ways that Canadian labor relations involve a tighter embrace between workers and employer.

Card check and first contract arbitration

As mentioned, the biggest apparent advantages of the Canadian system are card check and first contract arbitration.

There is some evidence that card check results in higher certification rates. However, it is not itself sufficient to stem the tide of overall union decline, as Roy Adams has pointed out. David Doorey argues that this is because of the overall lack of fit between the Wagner Act model, which was conceived with larger, industrial workplaces in mind, and contemporary part-time, “flexible” (etc.) labor arrangements in generally smaller workplaces. But we can also question how much this model organizes and activates workers in the workplace.

Which brings us to first contract arbitration. Labor negotiators will tell you that it ties the union’s hands. Says one:

I find it disempowering because when you decide to go to first contract arbitration, you pretty much agree to give up whatever leverage you have and leave the deciding power in the hands of a third party. It might be different in each province, but where I’m at now, the arbitrator usually looks at specific factors that shape their decision. So you’re bound more by those factors and less by your ability to mobilize and take job action.

One of the locals I’ve worked with was in first contract arbitration. They made the decision to go to arbitration because bargaining wasn’t moving as quickly as they wanted it to. The idea was that bringing in a third party would create pressure on the two parties to get a deal. Some arbitrators like to try to mediate a deal before making a decision, so we tried that. When we ended up getting to wages, we were offered less than what similar groups of workers were making. In normal circumstances we could’ve just walked away and taken action or gone on strike, but we basically gave those options up when we decided to go to arbitration. We ended up getting the boss to put a little more money on the table and we accepted, but it was less than where we wanted to be, and probably less than we would’ve been able to get if we had been free to strike. Now the workers are going to have to wait until the next round of bargaining to be able to really fight for what they should be making now. It got them their first contract, but it pushed the real negotiations into the second round.

As noted, card check and first contract arbitration were two elements of the proposed Employee Free Choice Act. Commenting at the time, IWW organizer Adam W. noted what the political implications of this kind of policy would be, namely to undermine worker militancy and strength:

Mainstream labor’s embrace of this aspect of the EFCA is actually the most troubling in my eyes because it represents the same problem that has been plaguing mainstream unions since the passage of the National Labor Relations Act (NLRA) in 1935: trading easier membership gains and labor peace in exchange for the shop floor militancy that can actually fight effectively to win against employers. If unions are able to gain recognition through card check that they wouldn’t have been able to do through fighting for voluntary recognition, this drastically increases the likelihood that the large, centrally-controlled business unions will be meeting employers at the table with stacks of authorization cards and passive bodies of workers, rather than the well-organized rank-and-file committees needed to win. These unions would rely on two-year, government-imposed contracts that workers will not be able to vote down and which will bar workers from striking.

In Canada, employers face more legal pressure to recognize a union, but unions face more legal pressure to keep work flowing. Once worker militancy is off the table, that limits the kinds of contracts that can be achieved.

Dues and union security

Similar concerns about worker militancy have been raised with respect to the effects of automatic union membership and dues check-off (dues collection by the employer), two features of what are called “union security” agreements.

In Canada, unions are entitled to dues for all workers in a bargaining unit, collected by the employer, regardless of whether those workers are actually voluntary members of the union in good standing. This is known as the “Rand formula” after the Canadian Supreme Court Justice who devised it, following a 1946 strike at Ford in Windsor, Ontario.

In the United States, union membership and dues collection have been undermined by state-level “right to work” legislation, which allows members to opt out of union membership (and thus dues), and by the Janus v. AFSCME Supreme Court decision, which established that public sector unions cannot collect fees from non-union members who nonetheless enjoy union representation in collective bargaining and grievance processes.

As far as union security clauses go, Canadian unions seem to be at an advantage. However, some have argued that there are a number of ways that the Rand formula undermines worker militancy. It requires unions to discipline economically disruptive worker activity or else face loss of dues handover from the employer. It also allows unions to become less accountable to members, and more bureaucratized. Says Sebastian Lamb, “when all workers must pay dues no matter what union officials do, officials have less reason to respond to workers’ concerns.” 

Concerted activity and strikes

A major difference between the US and Canada is that in the United States, there are protections for “concerted activity” in the workplace. Employees can fight to improve conditions in the workplace through their collective action, all the way through to striking – even in the absence of a certified union. Granted, employers often retaliate against workers in spite of this being illegal, but the point is that collective action does not have to be part of a formal union drive in order to be legally protected.

In Canada, by contrast, workers can only legally engage in work stoppages once a union has been recognized and a formal strike vote taken (which itself often involves a number of restrictions, like waiting periods).

American workers can also strike for recognition (albeit this is seldom used), and can strike over Unfair Labor Practices (violations of labor relations law), but Canadian workers can legally do neither.

Finally, strictly speaking, American workers can sign contracts without a “no-strike clause” which would bar them from striking during the life of the contract. In Canada, such clauses are read in insofar as the provincial labor relations code will spell out the conditions under which a strike can legally take place, stipulating that the contract has to have expired.

Overall, workers in the US have far more protections for striking than workers in Canada. The Canadian government has also been legislating striking workers back to work more and more frequently.

Anti-scab legislation and employment insurance

In the United States, employers have the right to replace striking workers with “scab” labor, and are not even required to dismiss those workers once the strike ends. This is known as the “Mackay Doctrine” since it traces back to a Supreme Court decision regarding Mackay Radio and Telegraph Co. Naturally, this significantly undermines the effectiveness of strikes.

In Canada, a few jurisdictions have experimented with anti-scab legislation, including Ontario (briefly: 1993-1995), Quebec (since 1975), and British Columbia (since 1993). An attempt to introduce a federal anti-strike bill (in 2006/2007) failed. Although intuitively preventing the hiring of scabs makes strikes more powerful as a tactic, it is somewhat difficult to assess the effect of this kind of legislation on the use of strikes. Work stoppages dropped in jurisdictions where anti-scab legislation was introduced – perhaps because employers settle faster when their business has successfully been struck (although note that managers themselves can still scab). But work stoppages have dropped precipitously overall, as labor has beat a retreat while under political attack under neoliberalism.

In the United States, the vast majority of jurisdictions do not allow workers to collect employment insurance (EI) in the event of a strike. The only exceptions I could find were New York and New Jersey. The vast majority of states also don’t even allow workers to collect EI in the event of a lockout (Massachussetts and Colorado being exceptions, sort of). In Canada, workers are not entitled to EI benefits during either strikes or lockouts.

Comparison table of US and Canadian labor relations Law

  Canada US
Concerted activity protections No Yes
Recognition strike No Yes
Card-check certification In some jurisdictions No
Anti-scab legislation Quebec, BC No
Employment insurance during strikes / lockouts No In very few jurisdictions
First contract arbitration In some jurisdictions No
Union security agreements Dues checkoff for all workers in bargaining unit Undermined by state right-to-work legislation / Janus decision
No-strike clauses No-strike clause generally read in as matter of law Technically can sign a contract without one
ULP strikes Not permitted Permitted

Conclusion

The original title of the 1935 National Labor Relations Act in the US – on which Canada’s is patterned as well – betrays its true purpose and concern: “An act to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce.” The goal was to keep commerce flowing by keeping workplaces operating even during labor disputes like contract negotiations and grievances. The legislation was a reaction to the waves of strikes and lockouts of the earlier part of the decade.

Against this background, we can see how the Canadian system is geared even more towards labor peace and class compromise. The government mediates a tighter embrace between employers and workers, between workers and unions, and between unions and the labor relations regime. The tradeoff in Canadian law is that, in exchange for making it somewhat easier to get a recognized union and a contract, workers are pressured to minimize disruption and use the certification and arbitration process. Unions that don’t abide by the legal restrictions governing strikes and bargaining could in turn ultimately get their bargaining certificate revoked.

Marianne Garneau

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