Labor law doesn’t advance class struggle, the end

Nick Driedger argues two provocative points: that “the purpose of labor law is to condition non-militant unions into existence” and that “union contracts are a way of creating a tiered labor law for different parts of the workforce.”

Let’s take two campaigns, one at a hotel in Calgary, Alberta and another at a courier company in Toronto, Ontario. Besides the obvious differences in the workplaces there are also differences in the legal jurisdictions [labor law is a provincial matter in Canada – Ed.]. Alberta was in the middle of a wild ride with a social democratic NDP government and they had all the trademark NDP changes to labor law in place: card check certification, first contract arbitration, etc. In Ontario they had the kinds of rules you would expect with alternating Liberal and Conservative governments. To a lot of the labor movement, the rules the NDP put in place are the reason they engage in this process: the end game is that kind of labor legislation. But let’s look at the organizing on the ground.

Hotel in Calgary

When the organizer at the hotel started his work, he was aiming to build a strong majority, put in cards and get to bargaining a contract. The United Food and Commercial Workers local 401, probably the most politically powerful union in the province, had lobbied hard for the new rules; they also supported a number of electoral candidates with volunteers and money. They were playing the political game and they were playing it the way the game was intended to be played.

Trouble on the campaign came fast, though. Before the organizer had even talked to 25% of the workforce he was found out and fired, stopping the organizing dead in its tracks. The hope in these kinds of campaigns and under these kinds of rules is to sign a strong majority of cards (70%-80%) and then to put in the cards and bypass the requirement for an election. The idea from there is to get your certification and move on to bargaining.

What happened instead was that the organizer got fired, and the labor board looked at the case and had a hearing. The boss tried the usual excuses but it was clear the organizer was fired for talking union so the board used their remedial powers to impose the union certification on the employer as a punishment for firing an organizer.

After that the next step was to go into bargaining. Again, though, a direct confrontation by the employer had been headed off. When bargaining reached impasse, the union applied for first contract arbitration — another rule UFCW 401 had lobbied hard for and won with the NDP, after campaigning hard for the NDP and supporting them in the previous election.

After a couple of years, despite the hotel campaign being down the key organizer, the union had enough support to populate a bargaining committee long enough to have an arbitrator give them their first contract. The union was established without ever having to demonstrate more than 25% support from the membership because the employer was so over-the-top aggressive that they sealed their own fate. They went from a non-union shop with some grievances to a first contract without their organization ever being tested and without having to resort to confrontation on the job.

Couriers in Toronto

The couriers campaign in Toronto went very differently. The organizers with Canadian Union of Postal Workers worked under the radar for years without getting found out and slowly built support. Countless hours of one-on-one conversations, of patiently building committees and of developing a strong union structure followed a plan to go public and sign the last corners of the company that could just simply not otherwise be reached. In the early stages of a campaign in transportation you are always flying blind. Its hard to tell how many people are working at the business because of the nature of the work. Everyone is out on their own most of the day and it’s not at all unusual for a worker to only know a handful of their colleagues.

There are ways around this but most of them involve constant mapping, constantly gathering contacts and constant one-on-one meetings with workers to establish a connection between the union organizers and members. When they finally reached everyone they knew about they moved towards more public tactics including mass bike rallies in downtown Toronto as a show of strength.

Over a period of a few years though they built strong support among the couriers and had a lively internal politics with meetings and structures being developed prior to certification. There were several legal barriers, however, the first one being whether or not they were a kind of subcontractor that could be unionized or one that could not. The other was the certification election. The certification election was held up — the ballots held until the other issues were settled.

While navigating this complex legal terrain the organizers kept the members mobilized continuing the union meetings, trying to address issues as they came up, and also continuing the one-on-one’s and building the union as if it already existed.

In the end though two things happened in late Spring of 2020. The couriers were informed first that the company in question, Foodora, based in Europe, was winding up its operations in Canada. The second thing is they were told they won their certification election by almost 90%. They simultaneously demonstrated tremendous support on the job and in the streets for the union and developed a militant union local and then also were told the company was folding.

Lessons to be learned

The first lesson from this is an important one that applies to life generally: doing things right is no guarantee that you are going to win. Good organizing does not always prevail, you can do everything right and have everything work out for you until one critical moment and then it falls apart. The other lesson though is a less obvious one and that is that labor law does not exist to create impartial benchmarks, it exists to condition a certain kind of union into existence.

The organizers in the UFCW 401 campaign were not bad organizers but this was not a great campaign from an organizing perspective. Sometimes those are just the breaks and as an organizer you deal with events as they come up and you play the hand your dealt not the hand you have taped to the bottom of the table. It’s easy to Monday morning quarterback something like this and that is not fair but it is also telling that one campaign that succeeded in building a union with all of the right pieces in place to challenge the employer from a position of strength was completely taken apart, and it was completely legal, and meanwhile a union where the members never had to show any deeper kind of solidarity now have a certification.

It is not just that life is unfair and sometimes you don’t win but also that labor law does not exist to reward militancy; in fact, it exists to dampen it.

How the law “works”

Once upon a time I was in a Political Action Committee meeting with senior officials from several large unions and I was arguing for concerted activity protections like exist in the United States and the people from a few of the unions were uneasy about that. My argument was that, on the one hand, we should be protecting the ability to act on the job as a right independently of the presence of a union contract, and on the other, that these rights would be less reliant on a sympathetic labor board. The bigger union official’s argument was that unions have fought over many years in Canada to create a situation where union members enjoy enhanced rights by virtue of their union membership, over and above the labor law the non-union sector enjoys. Part of the pitch in convincing workers to go union is that the rights they enjoy are better than what they have as non-union members.

Labor law in Canada and the United States has its origins in the same law from the 1930’s, the National Labor Relations Act, also called the Wagner Act. You can see a lot of similarities in these laws even after seventy years of practice but also they have drifted in different directions too. One place where they have drifted in different directions is the degree to which the rules are different for workers in certified bargaining units versus workers engaging in union activity but who do not have a legally certified union.

You see, union contracts are basically a way of creating a tiered labor law for different parts of the workforce. The rules are different for workers in a certified bargaining agent than for those who are not.

In the United States, under the National Labor Relations Act section 7, you have the statutory right to engage in “concerted activity” on the job

the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection

This can even include certain kinds of strikes and other job actions in non-union workplaces.

Canadian labor law stands in stark contrast to this. Take for instance the Alberta Labour Relations Code, which says: “No employees, no bargaining agent and no person acting on their behalf shall strike or cause a strike or threaten to strike or to cause a strike unless that strike is permitted by this Act.” (Division 13 Lockouts and Strikes, section 71).

Those who argue that a union contract makes things more stable do so because they see legal status as what defines whether or not a union is in place. This understanding of what it means to be in a union is actually something that came about only after the Wagner Act Model had been in place for quite some time. Prior to that, workers had an understanding that a union came down to their level of organization and ability to fight back on the job.

This is the thing about the law: it doesn’t enforce itself. You need organization on the ground to file grievances or ULPs or OSHA complaints (which are not dependent on a contract). A union contract can represent a more favorable legal terrain for certain disputes but more often than not it’s also about writing down a series of trade-offs. Legal knowhow, or burying a boss in grievances, can flex a certain amount of power, but you also aren’t going to grieve things you don’t have a right to already.

New rights are not won through the grievance process by its nature, and you don’t make gains in power through settlements at the labor board. CUPW won pay equity in the 1970s through massively disruptive strikes that were less than legal. The Employment Insurance we have in Canada is as much due to a riot in the 1930s in Regina, Saskatchewan than any other single factor. Class struggle is how we turn around the current state of things. We certainly don’t win every time. But if you count up all the wins over a long period you notice that you make a staggering amount of progress that way, far more than you would from all of the best legal minds and an infinite budget for arbitrations and board hearings.

Nick Driedger is a former member, shop steward, Local Organizing Officer and National Organizing Coordinator for the Canadian Union of Postal Workers. He is currently the Executive Director of the Athabasca University Faculty Association and a member of the Industrial Workers of the World.