One of the biggest news items dominating in Canada these days is the on-going trilateral negotiations between Mexico, the U.S. and Canada. It is a complex deal with many hurdles to overcome. One of the biggest from Canada’s perspective is the U.S. insistence on having a sunset clause that would require the parties to renegotiate every 5 years or allow any party to simply walk away.
Taking sides on this particular issue is difficult as the arguments supporting each are somewhat compelling. From a self-serving Canadian perspective having a sunset clause that essentially allows any of the parties to leave the deal creates instability particularly for Canada and dissuades long-term investors from banking on Canadian growth. From the U.S. perspective the world is evolving very quickly, and it is important to have a vehicle that can be updated regularly to keep pace with change.
In labour relations we often are faced with an analogous dilemma. Collective Agreements, though they are subject to periodic renewal and updating, are relatively rigid instruments. Moreover, membership in a union is not strictly speaking a matter of free choice for the individual. New employees under the union shop scheme that is most prevalent in Canada are compelled to join the union regardless of their disposition or orientation to organized labour. (Aside: In the Construction and Marine industries the Closed Shop Model is common, but these represent a small segment of organized labour in Canada). Over time it is quite possible that the majority of employees working for a particular company in a specific location might not support the union but they are not provided with an individual choice.
Arguably, if a majority of employees at an establishment no longer wanted to belong to the union representing them they can, during the open window that occurs every three years and/or at the expiry of the collective agreement, opt out. They simply need to establish that this is the will of the majority and make an application to the respective Labour Relations Board in their jurisdiction (province or federally). While for the expert in Labour Relations this is a simple process, for the uninitiated it can be daunting. Certifying a bargaining unit is easy because the union has the resources and know-how to manage the process. Decertification is not as simple because the employees have no organization and means to collectively organize themselves to make the requisite applications to decertify.
In Rights of Man, published in 1791, Thomas Paine wrote: “Every age and generation must be as free to act for itself, in all cases, as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.” When new employees are forced to join a union without being given a choice they can perceive that the union is just another institutional player they are required to deal with. Unions understand that the perception of resentment and detachment is very real today. It is reflected in their heightened fear of allegations of unfair representation which is perceived to be on the rise precisely because there are many individuals who do not feel the unions actually represent their interests. It is easier to file a complaint with the Labour Board about the union then it is to organize a group of fellow workers to remove the institution.
On the plus side having a system that creates an enduring relationship between a company and a union allows that relationship the time to mature. If decertification were too easy or there was some automatic mechanism that required a union to demonstrate support periodically the system would be inherently unstable and the consequences would be significant. It would simply put too much focus on a need for continuous campaigning on the part of the union to maintain the requisite support and the result would be a massive distraction from the business to provide its core goods and services.
There are countless examples across Canada of union-management relationships that are cooperative and positive. However, in many other instances, the protection afforded the union under the union shop model can act as a barrier to the natural maturation one would hope all relationships evolve to. Hence, we generally describe labour relations in Canada as being adversarial and confrontational. This is one of the reasons many new employee entrants to a unionized workforce (whether just entering their first job or who are new to Canada) are leery of being part of a union. They do not want to work in an environment where the employees and management act as adversaries.
So, is there an argument that would support legislation for the Right to Work? This is an American term for what is technically called an Open Shop. In U.S. states that passed Right to Work legislation the clear intent was to reduce organized labour’s influence by attacking their ability to raise money through dues. Under the traditional Union Shop model everyone in a given bargaining unit has to pay union dues, regardless of whether they choose to participate in the union or not. The simple rationale for this is that everyone derives the benefits from the collective agreement and therefore should support the union financially. In an Open Shop, employees can choose whether or not they want to participate in the union and can choose whether or not to support the union by paying dues.
This is the American model and is clearly motivated by anti-union animus. Interestingly, in comparative studies in the U.S. wages in Right to Work states are approximately 3% less than in States where Union Hopesare legislated – hence why former President Obama noted that the adoption of Right to Work laws was a “race to the bottom.” Open shops however exist elsewhere in the world and are not necessarily designed to dissuade people from being part of the labour movement.
In theory a truly open system would allow for individual choice and force unions to offer a competitive package of goods and services that would compel employees to consider membership in their union as their best option. Where a Union can work closely with management and create an environment where the company can be successful, and the employees can have a voice and a sense of security from arbitrary measures, we believe there would be a win-win-win solution. We also believe that the world has changed significantly over the last few generations and it is time to examine the labour models and develop a system where unions, companies and employees have balanced power and all will benefit.
Right to Work is not the answer but some other open approach needs to be examined in Canada in order to ensure that each generation is free to act for itself. Our current system is just too vulnerable to the tyranny of rigid institutional arrangements where economic actors, like unions, have to resist change in order to maintain their survival. We need a system that is flexible and fluid that ultimately promotes cooperation and change and strives for mutual benefits and shared value.
Perhaps it is time to stop looking south for examples of how things get done and turn to others, such as Europe and Germany in particular, who seem to have been able to create better ways to promote democracy in the workplace and have thriving mixed industrial and service economies.