Critical Education Articles Placed in the Teacher Staff Lounge While I Was a Teacher, Part Thirty-Two: The Attack on Unions by Employers and the Government

This is a continuation of a series of posts on summaries of articles, mainly on education.

Hello everyone,

I sent another article to the ESJ Ning, prefaced by the following:

Leo Panitch and Donald Swartz, in their 1984 article, “Towards Permanent Exceptionalism: Coercion and Consent in Canadian Industrial Relations,” maintained that unions are under systematic attack in Canada.  Though they overestimated the extent to which employers could undermine union existence in Canada, their point that the agreement between employers, unions and government about a harmony of interests between all three—characteristic of the post Second World-war era—has broken down still applies. The collective-bargaining regime is under threat by business and government increasingly hostile to unions. The law, though not hostile to unions in every case, has increasingly been used to eliminate or sharply curtail collective bargaining in order to favour employers at the expense of unionized employees.

Panitch’s and Swartz’s basic argument is that employers and government relied more on employees’ consent via an expansion of the collective-bargaining system (and therefor of unions) rather than on force; the consent of unions was seen as vital for the maintenance of the capitalist economic system, with force lying more in the background. Now, however, employers and governments are increasingly relying on force rather than on consent. The balance between force and consent for employers to achieve their ends is shifting towards force rather than consent.

Free collective bargaining began around 1943, during the Second World War, when the federal government enacted P.C. 1003, which obliged employers to recognize the unions of employees’ choice. Strikes for union recognition (and in opposition to the profiteering of many employers) were hampering the war effort, and some provinces had already enacted legislation to recognize the unions of employees’ choice (before that time, employers could ignore the employees’ wishes).On the political front, the CCF and Communist Parties were gaining ground.

It was assumed by the union movement that trade union rights would continue to expand with the end of the Second World War and that achievement of union rights would be irreversible. That assumption has increasingly been called into question since the 1980s. The Charter of Rights and Freedoms that guarantees individual rights does not guarantee union rights; specifically, it did not guarantee the right to strike. Indeed, within months of the signing of the Charter of Rights and Freedoms, the right to strike was taken away for about 1,000,000 of the 3,500,000 unionized workers through the Public Sector Restraint Compensation Act. The provinces followed suit. As a result, about 1,500,000 unionized workers had their right to strike taken away because of the Charter of Rights and Freedoms—about 40 percent of unionized workers. Although the Supreme Court of Ontario declared legislation that restricted workers’ right to strike to be unconstitutional, the existence of the notwithstanding clause in the Charter of Rights and Freedoms permitted Alberta to threaten to use that clause to restrict the right to strike.

Panitch and Swartz analyze the era of free collective bargaining in order to dispel the myth that unions are getting too powerful in order to justify the suspension of the right to strike. Employers during the epoch of free collective bargaining had many times the organizational and ideological resources available in an economic struggle. They, for example, controlled the media to a much greater extent than did organize workers. Employers had much greater access to the resources and coercive force of the state than did unions. The use of the police, for instance, is generally in favour of employers and the protection of their property; the police do ensure that workers have the right to work.

Even during the golden age of collective bargaining, unions were hardly equal in power to the power of employers. The working class indeed gained some advances (such as policies designed to reduce unemployment and increased welfare legislation), but these advances did not counterbalance the economic and political power of employers.

Furthermore, the era of so-called free collective bargaining saw restrictions on the collective power of workers to engage in strikes. Detailed legislation prevented workers from striking during the terms of a collective agreement, for instance. Since a power often atrophies when not used, the legislation tended to convert the collective power of workers into a passive and inert form, restricted to legal arguments in grievance procedures and arbitrations. Workers counting on support from each other to realize their collective will often was converted into dependence on legalese in order to achieve their aims—thereby gutting their fighting and collective spirit.

Unionization in the private sector did not grow substantially in the post-war era; about one third of employees in the private sector were unionized and remained so for decades. It was only in the 1960s, with the radicalism of public-sector employees (spear-headed by Quebec public-sector employees) that unionism expanded. A second wave of reforms emerged, such as pensions and medicare, in addition to the right of public-sector employees to form unions. However, their bargaining power, especially at the federal level, was even more restricted than in the private sector, with such issues as job classification and technical change being excluded from bargaining. The right to strike was also denied, but the many strikes of postal workers in British Columbia and Quebec forced the federal government to recognize the right to strike for federal employees.

Provincially, public employees also gained the right to bargain collectively, but they too had more restricted bargaining capacities than in the private sector, and they often did not have the right to strike. Of course, they too could not strike during the terms of the collective agreement.

Panitch and Swartz point out how conservative were English trade-union leaders, who did not criticize the restriction on the right to strike during the term of the collective agreement and, indeed, as often acting as agents of employers by actively and intentionally ordering workers who struck illegally to return to work. English union leaders were, generally, in agreement with the lack of right to strike during the term of the collective agreement. Part of the reason for this conservatism is the active participation of such leaders in the purge of communists within the labour movement in the post-war decade. The red-baiting union leaders received support from the CCF (predecessor of the NDP). Business unionism prevailed in English-dominated unions, with little concern for criticizing the roots of capitalist relations and the power of employers in general.

The combination of a passive union membership relying on legal relations rather than on their own collective strength, the purge of radical members from the unions and the collusion of the union leaders with the CCF made a union movement that was ill-prepared to engage in class struggle when employers went on the offensive—as they indeed did in the 1970s and 1980s. Trade-union democracy had already suffered extensively because of the limited capacities for struggle of ordinary workers at work against their employer.

When the world capitalist economic crisis emerged in the 1970s, trade union members were ill-prepared to face the employers’ offensive. Governments responded to the economic crisis by, on the one hand, attempting to co-opt trade union leaders into a voluntary restraint program and, on the other, in instituting more coercive policies against unions and their members. Back-to-work legislation (which, in effect, eliminated collective-bargaining rights for employees) were increasingly employed in the 1970s. The legislation has been enacted more quickly and with less parliamentary debate; unions who defy the legislation have been threatened with increasingly onerous sanctions. The governments, federally and provincially, have selected specific domains where collective-bargaining rights will become forfeit, and they have increased the frequency of such selectivity over the years.

In 1978, when CUPW went on strike and then were ordered back to work through emergency legislation, Jean-Claude Parrot, as union leader, did not sanction what they did, but he did refuse to order them back to work. He was jailed, and the court indicated that he would be released on bail only on the condition that he order the workers back to work—contrary to the free-speech provisions of the Bill of Rights.

Emergency legislation that in effect eliminates collective-bargaining rights is only one prong of a multi-pronged attack on the collective rights of employees. The federal government, with the backing of the Supreme Court, now can legislate any section of public employees as essential services and thereby eliminate their right to strike. The private sector is less prone to such tactics, but the Anti-Inflation Board of the 1970s in effect eliminated collective bargaining over wages for private-sector workers, with the courts upholding the government’s definition of what constituted an emergency.

Ideology has a major role to play in having Canadian workers accept the increased coercion by the government and the elimination of collective bargaining. In the first place, coercion of public sector employees is presented as non-coercive since it is argued that only wide-ranging controls that apply across the board are coercive. Selective elimination is presented as non-coercive. Of course, the elimination of collective bargaining for some can also serve as a reminder to other unionized employees that if they go beyond certain limits, they too will have their collective-bargaining rights eliminated.

In the second place, the back-to-work legislation is presented as temporary or only necessary within well-defined limits. Frequency of occurrence and the practical intimidation that such coercion has on other employees is ignored.

In the third place, rather than the view that social justice for workers was central, the new view is that workers are to rely on or trust employers to realize the workers’ own interests.

Given the current federal Conservative government’s approach to collective bargaining—by legislating back air transport workers, postal workers and railway workers, for example—the stripping of collective bargaining rights continues to be a target by the government.

What has the union movement done? Little has changed since Panitch and Swartz wrote their article. The union leaders continue to believe that legal remedies—rather than the organized strength of workers—form the best method for dealing with problems at the work place or that the current legal remedies suffice. They fail to see that, for instance, the Charter of Rights and Freedoms as enacted has been a weapon for stripping workers of collective-bargaining rights. How many trade-unionists are unaware that the Charter of Rights and Freedoms does not guarantee collective bargaining, for example? How many trade-unionists, on the other hand, refer to the Charter when they talk about human rights in Canada?

Respect for “the law” when the law results in consequences that oppress workers is certainly in the interests of employers. Is it in the interests of employees? Does respect for the law lead to social justice? Or does it often lead to social injustice?