Wednesday, 6 March 2013

A Formula for Security

Out of the Windsor Ford Strike of 1945 was borne a formula now largely viewed as vital to the continued existence of unions in this country.  This, of course, is the Rand Formula, which was designed by Ivan Rand for the purpose of facilitating more pacific labour relations in Canada. When Rand came up with the formula it was amidst one of the most significant labour disputes in Canadian history.

During the dispute, the union had two key demands: (i) union security via a dues check-off system whereby employers would be required to collect union dues from all workers; and (ii) mandatory membership in the union for all workers in the company. The employer was bitterly opposed to each of these demands.

Rand approached the dispute with an even-hand and came up with a compromise that could work for each side. The compromise Rand set out sought to achieve balance between the positions of the unions and the employer and was based on a conception of organized labour as a necessary counterweight to the power of employers.

Rand was of the view that not only is organized labour a vital part of Canada’s labour and economic system, the power of organized labour is crucial to the proper functioning of the system:

…the power of organized labour, the necessary co-partner of capital, must be available to redress the balance of what is called social justice; the just protection of all interests in an activity which the social order approves and encourages[1].

Rand recognized that unions needed economic means in order to fulfill their vital role of being a counterweight to the power of employers and/or capital. For this reason, the dues check-off system was deemed to be crucial. Further, Rand reasoned that since union activity is a benefit to all workers, it is only right that all workers should contribute to the union:

It would not then as a general proposition be inequitable to require of all employees a contribution towards the expense of maintaining the administration of employee interests, of administering the law of their employment[2].

At the same time that Rand advocated a dues check-off system he rejected any notion that union membership should be compulsory. Unions often represent an ideological stance and Rand protected a worker’s individual right not to support this or that ideology by deciding that union membership cannot be imposed. In Rand’s estimation, workers must be free to opt out of union membership while still being required to pay union dues.

This was the subtle genius of the Rand Formula – it protects the collective right of unions to security via a dues check-off while simultaneously ensuring the individual right to freedom of thought and opinion by refraining to require union membership.

In emphasizing and ensuring union security through the dues check-off system, Rand made clear that with financial stability comes responsibility. Unions must act responsibly and must function in a democratic fashion.

By most accounts Ivan Rand’s wisdom has been time-tested and is as relevant today as it was nearly 70 years ago when he helped to resolve the Ford Strike. Despite the success of the Formula in facilitating peaceful labour relations, anti-union forces continue to challenge the Formula.

Critics often couch their opposition to the Formula in benign language, positioning themselves as champions of individual freedom. The argument from the individual freedom position is that along with the s. 2(d) Charter guarantee of freedom of association comes the freedom not to associate. Less than a decade after the Charter was enacted the case of Lavigne v OPSEU[3] made its way to the Supreme Court, challenging the Rand Formula and arguing that provincial legislation allowing for a dues check-off provision to be incorporated into a collective agreement was unconstitutional. The court challenge was financed by the National Citizen’s Coalition, a lobby group known to vehemently oppose organized labour.

At issue in the case was not whether union dues could be deducted for purposes of collective bargaining, but rather whether the use of funds stemming from the dues check-off for purposes unrelated to collective bargaining were constitutionally valid[4]. In other words, could employees legitimately opt out of paying union dues where the money did not go explicitly to collective bargaining purposes, or where the worker simply did not agree with how or where the money was being spent? In these circumstances could a worker assert a Charter right to be free from association?

In a unanimous judgment, the Court rejected the idea that s. 2(d) of the Charter included a negative right to not associate at all. The Court ruled that it was sufficient that a worker could distance him or herself from the union’s political actions by choosing not to be a member of the union. In other words, the dues go to the democratically organized union and, just as a citizen cannot opt out of paying taxes because of disagreement with the way the government spends the money, so union members cannot simply decide not to pay union dues because of disagreement with the union’s use of the money. Justice McLachlin emphasized the democratic nature of unions, referring to the Rand Formula as a “carefully crafted balance” between the majority of the members in the union and individual workers who do not wish to be members of the union. Justice McLachlin also stated that the separation of dues check-off from union membership was entirely valid, and for the Court to consider that the objects of association can found a claim that the dues do not need to be paid would be for the Court to engage in “one-sided justice”[5].    

Despite this clear decision from the Supreme Court that the dues check-off was valid and an employee could not opt out of paying dues, the challenges to the Formula continue. In a recent policy paper, the Ontario Conservative Government made a volley at the Rand Formula, stating:

Because all unionized employees must pay dues or be fired, the union doesn’t have to respond to their wishes or needs. We think that should change.

Notice that the Conservatives completely ignore the democratic nature of organized labour. Unions hold elections, take votes on matters of importance and give their members a voice during union meetings. They are representative democracies. Disgruntled union members can oust their leaders. The union leaders, therefore, must respond to the wishes or needs of its members, lest they be replaced. By the rationale contained in the policy paper, democratically elected governments could be subject to the same criticism as unions. One has to wonder if the Conservatives have a problem with unions or with democracy altogether.

Typical of the strategy employed by anti-union actors, the Conservatives also attack the dues check-off, clothing their criticism in apparent concern for the rights of the individual:

That’s why we are proposing to give workers an expanded choice when it comes to becoming and remaining a union member, or not – and to ensure a worker’s individual choice to pay union dues, or not. It will make unions more responsive to unionized employees, and to the needs of employers.

The Supreme Court has already ruled that the dues check-off is a constitutionally valid system that does not prejudice workers’ rights. It is therefore clear that far from swooping in to defend the rights of workers, the Conservatives are merely trying to break the backs of unions by bleeding them of their financial security. It’s an employer-centric criticism of unions, advancing a right-to-work philosophy and hiding behind individual freedom to destroy union security. The problems that would flow from right-to-work laws are myriad and were succinctly summed up by one of the most famous opponents of such laws over 50 years ago. In 1961, Martin Luther King Jr. said:

In our glorious fight for civil rights, we must guard against being fooled by false slogans, such as ‘right to work.’ It is a law to rob us of our civil rights and job rights. Its purpose is to destroy labor unions and the freedom of collective bargaining by which unions have improved wages and working conditions of everyone…Wherever these laws have been passed, wages are lower, job opportunities are fewer and there are no civil rights. We do not intend to let them do this to us. We demand this fraud be stopped. Our weapon is our vote.[6]

The Conservatives’ policy paper presents a choice. On the one hand, there is the Rand Formula, which has been right for Canada and has been providing a relatively calm labour relations system since 1945-46 or, on the other end of the spectrum, right-to-work laws which lead to depressed wages and poorer working conditions and have always been the wrong route for working men and women. On second thought, perhaps it was overly generous to call this a “choice”.

[1] Ford Motor Co v United Automobile, Aircraft and Agricultural Implement Workers of America (UAW/CIO) (1946) CLLR 18,001.
[2] Ford Motor Co v United Automobile, Aircraft and Agricultural Implement Workers of America (UAW/CIO) (1946) CLLR 18,001.
[3] Lavigne v Ontario Public Sector Employees Union, [1991] 2 SCR 211.
[4] Debra Parkes, “The Rand Formula Revisited: Union Security in the Charter Era,” (2010) 34 Man LJ 1, 223 at 229.
[5] Supra 4 at 233.
[6] Martin Luther King, speaking about right-to-work laws in 1961

Monday, 4 March 2013

Trust cannot be Restored Overnight

If the Ontario Liberals had hoped that a change in figurehead would completely ameliorate the tensions and apprehensiveness they created with the teachers’ unions, those hopes have now been dashed. While the Ontario Secondary School Teachers’ Federation (OSSTF) chose to resume overseeing extracurricular activities on the basis of renewed discussions with Kathleen Wynne’s Liberals, and among assurances that the government will protect collective bargaining rights and return to fair negotiations, the Elementary Teacher’s Federation of Ontario (ETFO) has adopted a different approach. The ETFO has advised its members to continue to boycott extra-curricular activities.

Is the ETFO being unreasonable in failing to follow the lead set by the high school teachers? Hardly. The ETFO is merely allowing history to be its guide. After Bill 115, this Liberal government has a very poor track record when it comes to respecting the rights of Ontario’s teachers. The ETFO is simply refusing to make any concessions until it sees concrete promises from Kathleen Wynne to respect their rights.

Education Minister Liz Sandals is said to be disappointed with the decision of the ETFO to continue their refusal to participate in extracurricular activities. If this disappointment was not so absurd it would be almost touchingly innocent. To expect a union which has only recently had its constitutional rights trampled by this government to now wholeheartedly accept that the government intends to negotiate in good faith represents a view of the situation that is completely divorced from reality. Kathleen Wynne has said she will not reopen the contracts that were imposed on teachers through the now repealed Putting Students First Act, 2012, but she will consider cost-neutral trade-offs such as professional development days that are currently unpaid. Discussion of these trade-offs is presently ongoing[1].

Various school Boards have balked at the decision of the ETFO and are seriously considering taking legal action against the union. Trillium Lakelands and the Upper Canada district school boards have already instigated legal action, bringing their case to the Ontario Labour Relations Board (OLRB) seeking a finding that the actions of the ETFO constitute an “illegal strike.” A decision from the OLRB is expected in the near future. Depending on the content of that decision, the other boards may not pursue legal action.

It is entirely reasonable for the ETFO to look to the pattern of disrespect they have received from this government and opt not to engage in extra-curricular activities. The ETFO has chosen to wait for concrete promises from this government. It’s a prudent course of action. If the government is not pleased with the decision of the elementary teachers of this province, they have only their own policies and actions to blame. As David Clegg, president of the local ETFO chapter of the York Region said: “Hollow platitudes are no substitute for real action.”[2]  It should not be necessary for the teachers to redress the damage that has been done to the public school system in this past year. The government created this problem. The only way for them to fix it is through meaningful action, respectful negotiations and firm recognition of the teachers’ constitutional rights. If the government follows this line, everyone involved, and indeed the entire province, will be better off.