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.

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?

 

 

 

 

 

 

 

 

 

Management Rights, Part Two: Public Sector Collective Agreement, Ontario

Workers in the public sector are used just as much as means for purposes over which they have little or no control (see The Money Circuit of Capital). The left often denies this implicitly by idealizing the public sector over the private sector. Workers in the public sector, however, are employees, and as employees they are economically dependent on an employer and hence are, economically, coerced into doing the bidding of their employer–as the Ontario Coalition Against Poverty (OCAP) recognizes (although it does not, interestingly enough, pursue the issue. See  “Capitalism needs economic coercion for its job market to function” (Ontario Coalition Against Poverty: OCAP)).

A collective agreement is, in general, better than no collective agreement, but it hardly expresses “economic justice” (to use the ideological expression of a union representative here in Toronto). It limits the power of employers, but since employers still have the power to use workers (employees) for ends over which the workers have little say, the collective agreement simultaneously expresses their subordination and subjugation to the power of management, to a particular employer and to the power of the class of employers.

From

COLLECTIVE AGREEMENT
Between
The Toronto District
School Board (TDSB)
And
The Elementary Teachers’
Federation of Ontario (ETFO or ETT)
September 1, 2014 – August 31, 2019

page 37:

L – A.2.2. All matters and rights not prescribed by this Agreement, shall remain within the sole and exclusive right of the Board to manage its affairs.

This short clause in the collective agreement hides the real power of the Board over the employees of the collective agreement. Since economic coercion is the basic premise of having to work for an employer, the economic dependence of teachers on the Board alters their behavior in a number of ways. For example, in many schools, teachers, when the principal enters the staff lounge, change their behavior or their conversations. Why is that?

Although the principal in the above scenario is theoretically an educational leader, s/he represents the economic power of the employer, and that power is intimidating–unless teachers, like other workers, learn to organize and resist that power in their daily working lives.

Even then, organizing at the local level, ultimately, is no match for the economic power of the employers as a class–unless there is a conscious aim to go beyond such an economic power and to control our lives, along with other workers–in a socialist society.

What is the position of teachers’ representatives concerning the right of management to direct the workforce as it sees fit, subject to the limitations of the collective agreement? Is there any discussion over the right of management to do so? Or is there mere paper phrases, like “economic justice,” or “fairness”, or the most popular these days, “social justice”–without any discussion of why teachers have to subordinate their will to their employer and why other workers have to do the same thing?

In a democratic society, should there not be discussion about why management has the power and rights that it does at work, either implicitly or explicitly?

 

 

A Case of Silent Indoctrination, Part One: The Manitoba History Curricula and Its Lack of History of Employers and Employees

I submitted a longer essay to the popular Canadian educational journal Our Schools Our Selves for publication. It was never published.

The idea for the following has a personal basis: when my daughter was studying grade 11 Canadian history in Manitoba (Manitoba is one of 10 provinces in Canada, with three additional territories), I decided to look at the history curriculum in case I could provide some supports for her studies. In the process, it became evident to me that the entire curriculum left a gaping hole that failed to address my experiences in this world. Thus, I have generally worked for an employer in order to obtain money, which in turn enabled me to buy the things that I needed to live. The Manitoba Canadian history curriculum is devoid of any historical explanation of such an experience.

My experience is hardly unique. How many of those who now are reading this have worked for an employer or are now working for an employer? Is it not a little odd that a course on history fails to explain how and why employers—and their counterpart employees (employers cannot exist without economically dependent employees)–arose?

This is my research question.

Manitoba has a curriculum that does not answer the question of why employers and employees exist. Using the term “employ,” there was a reference to the super-exploitation of Chinese workers by employers. On page I-20 concerning possible inequities in employment. There is no reference to having students inquire about the possible inequity of the employer-employees relationship as such, that is to say, whether that relation necessarily involves inequities that cannot be resolved within the terms of that relation. When using the search term “work” some relevant hits for the history of the working class came up, such as the On-to-Ottawa trek (1935) or the Regina riot (1935), the trade union movement or the Workers’ Unity League, but the reason why employers and employees exist is nowhere to be found.

Using the search term “work,” I came upon a reference on pages II—28 and IV-5 to a possible exploration of the significance of the life of a worker in 1918 Winnipeg in terms of a wider concern about workers’ struggles, economic development or post Second World War events and discontents. There is a—very slight—chance that students would be able to explore the issue of why employers and employees exist, but inquiry could just as easily be carried out without determining why and how they exist.

Using the search term “class,” on page I-8 I found a reference to exclusion of citizenship was partially based on class. (On the same page, using the search term “capital,” I found the only reference to capitalism—that the Canadian economy, though a mixed economy, was mainly a capitalist economy.) On page I-9, it is argued that Canadian citizens continue to face fighting inequality based on class. Does this mean that the authors are referring to the capitalist class and the working class and are arguing that Canadian citizens are fighting to eliminate the employer-employees relation? Not at all. On page II-10, it is noted that trade unionists and socialists rejected the single narrative approach to Canadian history, but so far there is a decided singular attitude towards the employer—employees relation—it is presumed rather than being a subject of inquiry for students of Canadian history. On page II-46, there is a reference to socio-economic class, but what that means is never developed. Social democrats frequently use such a term to refer to level of income, and define the “middle class” as the socio-economic class that is above the poverty line (however defined). This way of defining class does not address the power of employees in relation to the situation of employees. Nothing else of relevance was found using this search term. The results of using the various search term show that students would not be capable of answering the question of why employers and employees exist. The document is a document in indoctrination—a document that implicitly has students accept the employer-employee as natural rather than an historical creation (and that, therefore, has an end).

According to the grade 11 Manitoba history curriculum, then, the issue of how and why employers emerged and how and why employees subordinate their will to employers is irrelevant. Is this silence an expression of social justice? On page II-31 33, there is reference to Chinese workers in 1887 and the fact that they were paid a substantially lower wage than other workers.

Again, the issue of why the wage relation exists on a large scale nowhere is to form a focus for inquiry within the curriculum. Wage work is assumed to be ahistorical through such an omission. That means, implicitly, that some people are born to be employees and some are born to be employers; it is not of course stated, but the assumption is there through the omission of any exploration of the wage relation. Or did workers freely become wage workers? Do not wage workers as a class require that another class control access to the means for them to produce their own lives? Did you freely choose to work for a wage or salary? When did you make this choice?

The reformist left share the same assumptions as the designers of this curriculum. On a listserve for the Toronto Labour Committee (to which I belonged), for example,  here in Toronto (the largest city in Canada), the regional coordinator for OPSEU (Ontario Provincial Service Employees Union) and president of GTAC (Greater Toronto Area Council), called for other workers to support striking brewery workers because, according to her, the brewery workers wanted a fair wage and decent work. I responded by agreeing that we should support them. However, when I questioned especially the idea of decent work, , a representative from the Canadian Union of Public Employees (CUPE) Local 3902 eventually called me a condescending prick. A member of the Toronto Labour Committee responded that both the representative of CUPE 3902 and I were right and wrong. It is nice to be able to eat your cake and eat it too. The practical head of the Toronto Labour Committee then intervened, but the issue of decent work never got addressed.

The idea that working for an employer is somehow decent work is indoctrination–and the radical left is afraid to challenge such indoctrination.

The head of the Toronto Labour Committee stated that there should be a “discussion” about what decent work means. I doubt that there ever will be such a discussion that will emerge from the so-called radical left since the so-called radical left in Toronto (and probably elsewhere) is too afraid of upsetting its union contacts. It is too close to reformist unions to see that what is needed is a much more critical stance towards unions than what the Toronto Labour Committee displayed if the indoctrination characteristic in schools, in the economy, by unions (see an example of my critique of a management rights clause in collective agreements in   Management Rights, Part One: Private Sector Collective Agreement, British Columbia , in courts, and in social services (see my critique of the position of the Ontario Coalition Against Poverty:  Basic Income: A Critique of the Ontario Coalition Against Poverty’s Stance )  is to be challenged.

 

 

Management Rights, Part One: Private Sector Collective Agreement, British Columbia

In Ontario, Canada, there will be an election in three days. Ontario is the most populous province in Canada. Currently, the Liberals are in power, but even their leader admits that they will lose the election. The race is now between the Progressive Conservatives (an oxymoron, of course), headed by the populist Doug Ford, and the NDP (supported by many unions), headed by Andrea Horwath.

I will vote for the NDP, but I hardly believe that this party represents my interests. Such a party has no intention of opposing the power of employers as a class.

The fact is the NDP party and unions cannot address issues that I and many others face in our lives–in this case, the power of management to dictate to us at work. They remain silent over such issues, or they paper over such issues by high-sounding rhetoric that hides the reality.

Consider the rhetoric of John Cartwright, president of the Toronto & York Region Labour Council, in his open letter of January 30, 2018, wrote the following: “We need to fight for labour law reform including broader based bargaining so that precarious workers can have a vehicle in which to achieve dignity and economic justice.”

What does Mr. Cartwright mean by economic justice? Collective agreements? Since he does not explain what he means (a characteristic of rhetoric), we will assume that he means collective agreements between employers and unions.

Other social-reformist leftists express a different kind of rhetoric that centers around the non-unionized workforce. For example, the fight for a $15 an hour minimum wage here, along with needed reforms of employment standards, was paired with the concept of “fairness.” David Bush, a contributor to the rankandfile website, explicitly considered such reforms to be fair.

Collective agreements, however, are probably better than the provisions of employment standards for workers in that they limit the power of management even more. Nonetheless, collective agreements are decidedly unfair in that they do not question the power of management to use workers as things for the benefit of the employer.

The NDP, Canadian unions, the social-reformist left in general and even the so-called radical left seem incapable of criticizing the adequacy of such collective agreements.

This blog will at least partly compensate for this silence.

The following management rights clause is more detailed than many. It illustrates the power of employers in relation to employees and how employees are, ultimately, things to be used (in this instance, for obtaining as much money as possible). It also illustrates the lack of democracy in the workplace.

Even if the management rights clause were not detailed, arbitrators have indicated that there is an implied management rights clause in collective agreements. Consequently, workers are expected to follow management’s orders or suffer the consequence of possible discipline and, ultimately, dismissal–economic blackmail.

This is what working for an employer involves–economic blackmail. The implicit situation is: if the worker does not like the working conditions and does not like being treated as a thing–there is the door. The worker is “free” to leave at any time. Of course, workers in general (as a class) lack the conditions for their own economic independence. Consequently, their freedom is an empty freedom. If they try to exert their freedom, how are they to live? If they are parents, how are they to feed, clothe and provide for the children? Such freedom is empty, and yet this empty freedom is nowhere addressed by the social-reformist left. At best, they look towards a renovated welfare state and not to democratic control over the economy.

 

From

COLLECTIVE AGREEMENT
Between
COLD LOGIC CORPORATION
And
UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL NO. 247
Chartered by the United Food and Commercial
Workers International Union, CLC
TERM OF AGREEMENT
October 17, 2010 to January 31, 2021

pages 3-4:

ARTICLE 4 – MANAGEMENTS RIGHTS
4.01 Except as specifically limited by the express provisions of this Agreement, the Company retains exclusive right to exercise all management rights or functions.
These shall include:

a) The right to formulate, enforce, revise and administer rules, policies and procedures covering the operations including but not limited to attendance, discipline and safety.

b) The right to discipline or discharge for just cause.

c) The right to select the products to be handled, choose customers, determine the methods and scheduling of shipping, receiving and warehousing, determine the type of equipment or vehicle used and the sequence of operating processes within the facility, determine the size and character of inventory and to introduce different shipping, receiving and warehousing methods. Without restricting the generality of the foregoing, the Union agrees that the Company has the right to study or introduce new or improved production methods or facilities

d) The right to establish work schedules, to determine the number of employees necessary to operate any department, or classification of the Company, to determine management organization for each department, to hire, layoff, suspend, promote, transfer and demote, to assign work on a temporary and permanent basis, to establish or revise reasonable performance and quality standards.

4.02 It is agreed that listing of the foregoing management rights shall not be deemed to exclude other rights of management not specifically listed.

You will unlikely be able to find anything by the social-reformist left that addresses the issue of why management has such dictatorial power over workers on a daily basis.

Why the silence?

Perhaps, as Jack Nicholson said in the movie A Few Good Men–“You can’t handle the truth!”

The NDP and its social-reformist follower cannot handle the truth. Why other wise the silence?