Critique of the Grievance and Arbitration Procedure: Letter to the Editor, Inside The Association of Employees Supporting Educational Services (AESES), Vol. 17, No. 4, May 1994

In a previous post, I provided the current management rights clause between AESES and the University of Manitoba  (Management (Employer) Rights, Part Three: Public Sector Collective Agreement, Manitoba). This is a continuation, of sorts.

The title indicates what the content of this post will be about.

In 1994, I worked on a project at Dafoe Library at the University of Manitoba (Canada) for a few months (one of the few positions I had because I was probably blacklisted because of my previous union and radical activity in my workplace in School District No. 57, Prince George, British Columbia). I sent in the following to the union newsletter. Unfortunately, I could not pursue any further the debate since the project had ended–and consequently my union membership.

The following is a verbatim letter to the editor of the AESES newsletter. The next post, probably next week, will be the business agent’s reply to my letter in the same newsletter.

Unions need to instruct members concerning the legal limits of the union’s capabilities, and members need to know what they can legally expect from the union. Unfortunately, from my own observations, many members do not know what the limits of union power are as it presently exists. They do not even have a clear grasp of the grievance and arbitration procedure. The following is thus meant both to inform members of the procedure and to generate some debate over the nature and function of unions.

A grievance is frequently defined as any difference arising from the interpretation, application, administration, or alleged violation of a collective agreement. If a grievance is not resolved in the grievance process, it may end in arbitration (a sort of court which determines whether the grievance is valid). The problem is that most arbitrators in Canada interpret the collective agreement as merely limiting management’s general right to manage work–including the lives of the workers–as it sees fit. With few exceptions, management retains its general right unless specifically restricted in the agreement.

Some union executives may disagree, claiming that the collective agreement expresses the joint and equal will of both parties (management and the union); the collective agreement is a contract like any contract and is binding on the parties. Such a view fails to account for the specific nature of the employment contract. The employment contract entails the control by management of employees’ activities. Indeed, arbitrators differentiate independent contractors from employees primarily (though not exclusively) on the basis of the level of control: an independent contractor is not under the control of an employer, but an employee is. In other words, an employee is a subordinate.

Moreover, if the employment contract were similar to other contracts, both parties would likely claim a breach of the agreement roughly the same number of times. However, the vast majority of grievances are initiated by unions. Why is that? The answer has already been formulated above: management need not initiate grievances because it has the general right to manage work.

However, many issues important to workers which emerge during the term of the collective agreement are not covered by the collective agreement. Given that arbitrators’ authority is restricted to the collective agreement, it is unlikely that workers will win grievances that end in arbitration if no provisions exist in the agreement which restrict management’s general rights To be sure, arbitrators have some leeway in applying arbitral jurisprudence, but they are ultimately restricted by the collective agreement which exists.

The Socialist Project’s Critique of Doug Ford’s Attack on Local Democracy Falls Short

The Socialist Project has rightly condemned Doug Ford (the new Premier of Ontario, Canada) for his unilateral reduction of the number of Toronto city councilors (in the midst of Toronto elections, no less–indeed, an autocratic act) (see Ford’s Attack on Local Democracy in Toronto).

Despite their criticism of Ford’s autocratic manner, they should also look at the so-called left’s own anti-democratic practices.

Being ignorant of who exactly are the members of the Socialist Project, I will limit my commentary to the probable membership of Sam Gindin in that organization.

I belonged to an organization called the Toronto Labour Committee until last November, when I resigned over what I perceived as a lack of discussion over what I considered to be vital issues relevant to regular members of the working class (not union representatives). My view is that the Toronto Labour Committee was too closely tied to the union movement and had compromised itself in several ways democratically. It is probable that the Socialist Project does the same.

I will not go into the details of how it compromised itself (of course, if Sam or other members of the Toronto Labour Committee raise the issue–then, of course, I will then pursue the issue in further detail).

I will simply point out one issue that illustrates the limited nature of the Socialist Project’s call for democracy in the case of Ford, which should also be directed at the so-called left.

From the Socialist Project’s post:

Democracy is not about “economic efficiency.” It is about providing for free and open debate and discussion between competing points of view in order to make decisions.

Is there any evidence that there is such “free and open debate and discussion between competing points of view in order to make decisions” within the Toronto Labour Committee? For example, I tried to raise the issue of health and safety and how systemic such problems were in the context of a capitalist economy (referring to the work by Bob Barnetston The Political Economy of Workplace Injury in Canada, where he pointed out that over 1000 workers died a year on the job and over 630,000 are injured. There was silence.

Subsequently, when a representative of a local labour council called for support of some striking brewery workers here in Toronto, she justified her call for such support on the basis of referring to what the workers supposedly want–good jobs and a fair deal.

I had worked in a brewery for around four years in Calgary, Alberta, Canada. I questioned this reference to a good (or decent) work and a fair contract. I did not try to attack the representative personally. I tried to address the issues.

I also pointed out that the striking workers did deserve our support–that it was a question of solidarity.

Wayne Dealy, who is a representative of a local Toronto union here, then intervened, stating the following:

Is this meant to be a serious intervention or are you taking the piss?

I expressed a point of view that was different–and was roundly insulted on a listserve.

I replied:

It is meant to be a serious intervention. If Wayne Dealy has something against the intervention–apart from emotional venting and insults-he is welcome to debate the issue.

Social democrats, unionists and others who consider themselves to be progressive often refer to good or decent jobs and fair contracts (deals). This is an assumption that is rarely questioned. Indeed, the tone of Wayne’s response is indicative of the lack of real concern over the issue of the power of employers as a class in relation to employees as a class. In other words, Wayne’s response itself shows just how much the issue needs to be debated. That topic will start to be addressed at the next Toronto Labour Committee on March 9, from 7:00-9:00 at 31 Wellesley.

Fred Harris, Ph. D., philosophy of education, former brewery worker

I was too hopeful. No one from the listserve–including Sam Gindin–addressed the real issues of whether there is such a thing as good jobs or a fair contract.

Wayne Dealy replied:

Deepest apologies. Those fourteen words have been buried deep inside
me for years and they could no longer be contained. I regret that you
suffered so for their ill-timed appearance.

Apologies too for not showing more gratitude for the fact that you
deigned to use Tracy’s call for picket-line support to explain to us
in plain language how wage labour is exploitative. Sam, David, Tracy
et al, I hope you all were taking notes. All of us on this list are
obviously and sorely in need of simple explanations of such things;
fortunately Fred is here to fill that void.

On a more personal note, thanks to your second intervention, my
consciousness has been raised even further: I now see the problem all
along was my “lack of real concern over the issue of the power of
employers as a class in relation to employees as a class”.

And the fact that you were able to suss me out from my fourteen
ill-chosen words? Mind. Blown.

Thanks again, truly, for sharing your insights. This group is
extremely fortunate to have a Promethean figure like yourself who so
selflessly kept the ember of class analysis alive so that it could be
shared with all us sinners.

Wayne.

p.s. If I had wanted to insult you I would have called you a
condescending prick

Wayne G. Dealy
Ph.D. Candidate
Department of Political Science

 
University of Toronto

From there the issue got sidetracked, and the issue of whether there can be decent jobs or a fair contract in the context of a class of employers vanished (I take some responsibility–although only some responsibility for this–I got sidetracked rather than focusing on these two issues, which is what I should have done all along).

I doubt that there has been any real

free and open debate and discussion between competing points of view in order to make decisions.

The class issue has been buried by political rhetoric, insults and excuses. Sam Gindin, for example, used the excuse that the reference to “decent work” was a purely “defensive” move. Has there been any “free and open debate and discussion between competing points of view in order to make decisions” about the appropriateness of using such a term as “decent work” or a “fair contract”? I doubt it.

So-called socialists in Toronto (and probably elsewhere) should look internally to see whether they really are practicing “free and open debate and discussion between competing points of view in order to make decisions.” That would indeed be welcome.

As Alan R.H. Baker (Geography and History: Bridging the Divide) wrote, page 213:

I subscribe to consensual historical geography. Of course, any
consensus in history can be sought, and sometimes achieved, only by debate. This
brings me to my third principle of historical geography: debate is central to the
practice of historical geography. Rethinking and revising current, orthodox interpretations should be the norm in historical geography: it should be conventional to be radical. Current ideas and assertions must be, and must expect to be, revised as new evidence comes to light, as new techniques of analysis become available, as new problems deserving attention are identified, and as new ideas and theories are brought into play. Debate, both about substantive issues and about research methodologies, lies at the heart of historical geography as it does also of history (Fig. 6.3). Within historical geography, as within history, there should be an unrelenting criticism of all orthodoxies and conventional wisdoms, as well as an
unremitting awareness of discourses in cognate disciplines.

Do the so-called socialists really engage in debate with a view of achieving some kind of consensus? Will trade-union leaders abandon their views if it is shown that they are mistaken? If they do not, what will socialists do? Or are socialists so afraid of upsetting their trade-union connections (Sam Gindin once indicated that he did not want to become isolated) that they would practically desist from engaging in “free and open debate and discussion between competing points of view in order to make decisions?”

Sam Gindin claimed that we are supposed to be humble. Why? Why should regular workers be humble? They are oppressed and exploited every day. Why should they be humble in the face of union leaders who talk of fair contracts and good jobs? They should be angry at such talk–not humble. They deserve a far better life than what they now experience as things to be used by employers.

A final question: Is there free and open debate and open discussion between competing points of view” among regular workers about management rights, whether unionized or non-unionized? Frankly, I doubt it. If there is evidence to the contrary, I hope others would correct my error.

 

Management (Employer) Rights, Part Three: Public Sector Collective Agreement, Manitoba

I worked on a library project at the Dafoe Library at the University of Manitoba (Canada) around 1993.  The union to which I belonged was AESES (The Association of  Employees Supporting Educational Services). I wrote to the editor of the union newsletter, criticizing the limitations of unions. The business agent of the union responded by assuming that I was criticizing the existence of unions. He defended the union. I wrote  back, indicating the limitations of unions in relation to the power of employers. He then responded by implicitly defending the principles of collective agreements; he also misinterpreted some of my views. In another post, I will include the contents of what I wrote and his response.

The working situation was very hierarchical (top-down). This, undoubtedly for the social-democratic left, is inevitable. Democratic work relations for them, implicitly, are impossible. They refuse to confront the reality of dictatorship  at work and, by ignoring the issue, they consider it inevitable. How else could they talk about good contracts, fair contracts, decent work or economic justice?

I guess workers who find working for an employer–even when there exists a collective agreement–to be oppressive and exploitative should be taken to task and criticized. Indeed, about a year and a half ago I was explicitly called a condescending prick by a representative of a public union in Toronto, Canada.

Of course, this blog site is meant to criticize the views of the social-reformist left in various ways.

From

COLLECTIVE AGREEMENT
BETWEEN:
THE UNIVERSITY OF MANITOBA
– and –
THE ASSOCIATION OF EMPLOYEES
SUPPORTING EDUCATION SERVICES
APRIL 4, 2015 to APRIL 4, 2019

page 10:

ARTICLE 4 EMPLOYER’S RIGHTS
4.1 Nothing in this Collective Agreement is intended nor shall it be construed as
denying or in any manner limiting the right of the Employer to control and
supervise all operations and direct all working forces, including the right to
determine the employee’s ability, skill, competence, and qualifications for the
job, and to hire, discharge, lay-off, suspend, discipline, promote, demote or
transfer an employee, and to control and regulate the use of all equipment and
property and promote efficiency in all operations, provided, however, that in the
exercise of the foregoing Employer’s rights the Employer shall not contravene
the provisions of this Collective Agreement.

4.2 The Parties also agree that the foregoing enumeration of Employer’s rights
shall not be deemed to exclude other functions not specifically set forth,
therefore, the Employer retains all of its other inherent rights.

Unions frequently use the term “fair contracts” in order to “sell” a tentative agreement to their members. They rarely address the legitimacy of the power of employers to direct the lives of its members. In the post following my letter to the editor to the AESES union newsletter,, we will see how one union representative did try to legitimize collective agreements and the power of management.

Do you think that the above employer’s rights clause expresses a democratic way of life at work? Or a dictatorial way of life at work?