Management Rights in a Spanish Collective Agreement: An Expression of “Free Collective Bargaining” or the Dicatorship of Employers?

There are undoubtedly variations in the rights of workers from country to country, but the fundamental principle of the power of employers as a class is constant. This power is often implicit but also often is expressed more explicitly–even in collective agreements between employers and unions.

For example, the following is taken from the collective agreement for offices between the General Union of Workers (Unión General de Trabajadores (UGT)), the Workers’ Commissions (Comisiones Obreras (CCOO)), and the Madrid Business Confederation (la Confederación Empresarial de Madrid–CEOE) (CEIM)), dated January 1, 2019-December 31, 2021:

page 6 (my rough translation) (the original in Spanish is included afterwards):

Chapter 2–Organization of Work and Functions

Article 8: General Principles

The practical organization of the work, subject to this collective agreement and the current social legislation in force, is the exclusive capacity of the management of the enterprise.

A further clause also expresses the power of the employer in relation to the employees (page 28):

Chapter 10–Code of Conduct

Article 44: Disciplinary Regime

The capacity to impose discipline corresponds to the management of the enterprise or to persons delegated for that purpose.

Is this an expression of a democratic society? If democracy is a way of life and not just formal voting for political representatives, do such clauses in collective agreements (which are normally superior to non-unionized implicit employment contracts in terms of provisions for workers) express democracy? Or do they express dictatorship–a dictatorial way of life? See, for example, The Money Circuit of Capital or Employers as Dictators, Part One.

Is this a good example of what union reps mean by “free collective bargaining?” “Good contracts?” “Fair contracts?” “Decent work?” What do you think?

Spanish Original

CAPITULO II – ORGANIZACIÓN DEL TRABAJO Y FUNCIONES

Art. 8º.- PRINCIPIOS GENERALES.

1. La organización práctica del trabajo, con sujeción a este Convenio Colectivo y a la
legislación social vigente, es facultad exclusiva de la Dirección de la Empresa.

CAPITULO X – CÓDIGO DE CONDUCTA

Art. 44º.- RÉGIMEN SANCIONADOR.

1. La facultad de imponer las sanciones corresponderá a la dirección de la empresa
o en las personas en quien delegue.

Management Rights Clause in a Collective Agreement in France: Progressive Discipline Is Better Than Arbitrary Discipline–But It Is Still Oppressive

Introduction

Discipline permeates our world–family. school and work. In an earlier post, in the context of schools, I have already explored, briefly, the difference between intrinsic or internal discipline and external discipline (see Critical Education Articles Placed in the Teacher Staff Lounge While I Was a Teacher, Part Ten: Intrinsic or Internal Discipline Versus Extrinsic or External Discipline). I have also, indirectly, explored discipline within the family in the personal context of the physical abuse of my daughter, Francesca, by her mother and the official response of a government body of the capitalist state (see, for example, A Personal Example of the Oppressive Nature of Public Welfare Services).

In this post, I look at, briefly, discipline at work in the context of working for an employer. It also begins to widen references to collective agreement outside Canada in order to show that collective agreements in other countries do not somehow magically transform the employer-employee relation into “decent work” or “a decent job.”

Progressive Discipline in a French Collective Agreement

It was difficult to find a collective agreement from France that explicitly expressed the managerial power of the employer over employees. The following clause in a collective agreement, however, does express one aspect of that power–the power to discipline if employees do not follow the rules set out by management. The collective agreement is between Employers of Social and Family Cohesion (Employeurs du Lien Social et Familial (ELISFA)) and several unions (for example, National Federation of Health and Social Services (NFHSS) of the French Democratic Federation of Labour (FDFL)) (Fédération Nationale des services de santé et des services sociaux (FSSS), de la Confederation francaise democratique du travail (CFDT).

The clause outlines what has come to be known as “progressive discipline,” or discipline that begins with the least amount of discipline and, progressively, becoming more severe.

The following is a rough translation of the clause (the original French is provided at the end of this post). From page 24:

Article 5

General conditions of discipline

5.1 In accordance with law 16, the disciplinary measures applicable to the personnel of the enterprises or services are exercised under the following forms, which constitute the scale of sanctions [disciplines]:

–Observation (Remark)
–Warning
–Suspension with or without salary (in the last case [without pay] for a maximum of three days
–Dismissal

Progressive discipline is certainly better than the arbitrary discipline that non-unionized employers have, but it is still discipline from an authority that originates from an economic structure characterized by, on the one hand, an impersonal and oppressive system that involves the use of workers as means to ends that they do not define and, on the other, by a class of employers (and their managerial representatives) that try to ensure that those impersonal and oppressive structures function independently of the will of the majority of workers (see The Money Circuit of Capital). As such, however “progressive” progressive discipline, it is still oppressive and hardly justifiable–unless using workers as means for purposes which they do not define is itself justifiable.

Article 5

Conditions générales de discipline

5.1
Conformément à la loi16 , les mesures disciplinaires applicables aux personnels des entreprises ou services s’exercent sous les formes suivantes, qui constituent l’échelle des sanctions :
– l’observation ;
– l’avertissement ;
– la mise à pied avec ou sans salaire (dans ce dernier cas pour un maximum de trois jours) ;
– le licenciement.

Conclusion

What do social democrats or social reformers have to say about such clauses in collective agreements? Here in Toronto there is no or little open discussion about such clauses or the power of managers, a minority, to dictate to workers, the majority. Do union members agree with the view that progressive discipline is indeed progressive? That it is fair? That such progressive discipline contributes to the transformation of the employer-employee relation into a relation among equals?

Such is the nature of social “democracy.”

Frankly, I doubt that social democrats and social reformers really want to discuss these issues. Nor do union officials. They hide behind such euphemistic phrases as “decent work,” “decent jobs,” “fair collective bargaining,” “fair wages,” and the like in order to prevent discussion of issues relevant to the interests of workers as a class.

Progressive discipline is better than the arbitrary discipline characteristic of non-unionized settings–but it is still oppressive and external discipline. To achieve internal or intrinsic discipline at work, it would be necessary to abolish the class power of employers.

Management Rights, Part Nine: Is A Collective Agreement that Involves Management Rights and the Exploitation and Oppression of Workers a Fair Contract?

In the previous post, I calculated the rate of exploitation of workers who work for Rogers Communication (see The Rate of Exploitation of the Workers of Rogers Communications Inc., One of the Largest Private Employers in Toronto). Below you will find the management rights clause of a collective agreement between Rogers Communications and Metro Cable TV Maintenance and Service Employees Association.

In a previous post, I also posted several quotes by the largest union in Canada, the Canadian Union of Public Employees (CUPE) that assert, without proof, that the collective agreements of CUPE locals are fair contracts (see Fair Contracts (or Fair Collective Agreements): The Ideological Rhetoric of Canadian Unions, Part One).

I will continue to provide occasional posts with management rights clauses from collective agreements from different provinces to show that the management rights clause is something that unionized workers face throughout Canada–and which deserve to be often discussed among union members to see whether such clauses express in any way a democratic way of living or a dictatorial way of living (for the dictatorship of employers, see for example, Employers as Dictators, Part One).

However, I will also include collective agreements that relate to my other posts on the rate of exploitation of workers who work for a particular employer. I will, in future, post both the management rights clause (if there is an explicit one since arbitrators recognize management rights even if there is no such clause in the collective agreement) from the collective agreement and simultaneously my calculation of the rate of exploitation of the particular employer in another post (when possible).

A question for those who consider collective agreements to be fair and to provide conditions for decent work to be performed: Does the following management rights clause express the freedom of the unionized workers or their lack of freedom to determine their own lives at work? If it expresses a lack of freedom, how is the collective agreement fair? How is the work performed an expression of decent work (another cliche expression used by union reps)?

I have found it interesting that, despite my posts that refer to the management rights clauses of collective agreements and my criticisms of such clauses, there have been no explicit criticisms of such posts by defenders of union reps. I suspect that unions reps, like their social-democratic counterparts, simply want to avoid the issue since it is an Achilles heel for their claim to produce “fair contracts”

From page 9:

COLLECTIVE AGREEMENT BETWEEN
ROGERS COMMUNICATIONS PARTNERSHIP
AND
METRO CABLE TV MAINTENANCE AND SERVICE EMPLOYEES ASSOCIATION
SEPTEMBER 1, 2014 TO AUGUST 31, 2019

Section 3 – Management Rights

3.01 The Association acknowledges that the Company retains the right to manage its operations in all respects in accordance with its commitments and its obligations and responsibilities, to direct the working force and to hire, promote, transfer, demote or lay off employees and to suspend, discharge or otherwise discipline employees for just cause, the right to decide on the number of employees needed by the employer at any time in accordance with the provisions of Company and Association seniority, the right to use modem methods, technology and equipment, and jurisdiction over all operations, buildings and equipment are solely and exclusively the responsibility of the employer; provided that any exercise of these rights by the Company which conflict with any provisions of this agreement shall be subject to the grievance procedure set out in Section 11. The employer also has the right to make, alter and enforce rules and regulations to be observed by the employees provided such rules and regulations are not inconsistent with the terms of this agreement.

3.02 The Company and Association agree that no employee shall in any manner be discriminated against or coerced, restrained or influenced on account of membership or non-membership in any labour organization or by reason of activity or lack of activity in any labour organization.

3.03 Supervisory/Managerial personnel will not perform bargaining unit work unless an explanation acceptable to both parties is provided for the performance of such work.

Implied Management Rights in a Collective Agreement in Mexico: Workers’ Obligations and Prohibitions

When looking at collective agreements in Mexico, I was unable to find a readily available management rights clause. Perhaps there are some, and if anyone has information concerning them, please make a comment so that I can incorporate them into this blog.

However, perhaps Mexican management rights are expressed in a different way. The obligations and prohibitions of employees, of course, is the other side of the coin of management rights.

I did find that Mexican collective agreements do contain provisions that specify the obligations and prohibitions of workers. For example, in the collective agreement in force from 2016 until 2018 between El Instituto Nacional Para la Educacion de Adultos (ENPA) (National Institute for Adult Education) and the Sindicato Nacional de Trabajadores de la Educacion para Adultos (SNTEA) (National Union of Adult Education Workers), pages 50-57, indicates various obligations (clause 87) and prohibitions (clause 88).

Below is a rough translation of some provisions from Clause 87, page 50. Since I am not a translator, the translation is approximate:

The following are obligations of the workers, in addition to those imposed by law:

II. Attend conscientiously to the carrying out of their work;
III. Carry out the functions appropriate to their job with intensity and care, abiding by the directives of their bosses, laws and rules;
IV. Obey the orders and instructions that they receive from their superiors in matters relevant to the carrying out of their service;
V. Fulfill orders that are dictated in order to confirm one’s attendance;
VI. Contribute with total efficiency within their powers and functions to the realization of the programs of the Institute and keep in all their acts total dedication and loyalty to the Institute;

Do these provisions express a “fair contract?” Or does it express a situation of hierarchy, where workers, because they lack control over the conditions of their work and employers control those means, are expected to follow the orders of their “superiors” unless they are willing to face punishment in one form or another?

Do these provisions express the freedom of workers? Or do they express their lack of freedom?

From Clause 88, pages 54, 56

It is forbidden for workers:

VIII. To foment by whatever means disobedience to their superiors;
XXXIII. To realize acts that relax the discipline that must rule in the workplace.

The same questions could be asked about these provisions.

The left here in Toronto (and in Canada in general), however, are incapable of answering such questions. They do not ask such questions. There is no discussion of such questions. Such is the lack of democracy in Canada these days.

Should we not be discussing such issues? If so, why are we not? What can be done to stimulate discussion of these and related issues?

What do you think?

Son obligaciones de los trabajadores, ademas de los que imponen las leyes, las siguientes:

II.

Management Rights, Part Eight: Private Sector Collective Agreement, Quebec

Here is another clause from a collective agreement concerning management rights, this time from the private sector–and in a province in Canada where French is predominant officially. Undoubtedly for the social-democratic left, it expresses a situation where there is decent work–a cliché among the left, who refuse to investigate its meaning in a democratic fashion.

It should be pointed out that the power of employers (via the power of managers) is independent of language–their power is expressed in many languages, just as their use of workers for their own ends is expressed in many languages. Differences in languages (and differences in nations), therefore, should not be something for workers which divides them since they face the same enemy in various languages and across many borders–the class of employers as dictators.

Should we not be discussing this issue thoroughly? Why are we not doing so? Why is there hostility to such discussion?

From

COLLECTIVE AGREEMENT
2013 – 2017
FOR THE RESIDENTIAL SECTOR
OF THE CONSTRUCTION INDUSTRY
Between the APCHQ and
the Centrale des syndicats démocratiques
(CSD-Construction), the Confédération des syndicats nationaux (CSN-Construction),
the Conseil provincial du Québec
des métiers de la construction (International),
the Fédération des travailleurs
et travailleuses du Québec
(FTQ-Construction)
and the Syndicat Québécois
de la construction (SQC)

page 7:

2.03 Management Right The signatory representative associations recognize an employer’s right to exercise its supervisory, administration and management duties in a manner that is compatible with the provisions of this collective agreement.

Management Rights, Part Seven: Public Sector Collective Agreement, Quebec

It is fascinating how the social-democratic or reformist left, with their talk of “good contracts,” “decent work,” a “fair deal,” and “economic justice” and so forth do not feel that they have the need to justify themselves. They assume what they must prove to workers–that a collective agreement expresses “good contracts,” and so forth.

Do you think that collective agreements as a whole, which concentrates decision-making power in a minority called management, express good contracts? Fairness? Decent work? A fair deal? Economic justice?

What do you think of the following?

From

Agreement concluded
between
the Management Negotiating Committee for English-language School Boards (CPNCA)
and
the Centrale des syndicats du Québec on behalf of the professionals’ unions represented by its bargaining agent, the Fédération des professionnelles et professionnels de l’éducation du Québec (CSQ)
2015-2020,

page 12:

ARTICLE 2-2.00 RECOGNITION
2-2.01
The union recognizes the board’s right to direct, administer and manage, subject to the provisions of this agreement.

Of course, it may be the best contract under the power relations that currently exist–but that is not the same thing as claiming that it is a “good contract.” Ideologues for unions may counter that it is implied that the power relations are unfair. But if so, why is it that the union bureaucracy does not bring it out explicitly? Are they afraid that some workers might start organizing to overthrow (abolish) those conditions?

Where and where is there discussion and debate over such issues? Certainly not in Toronto, Ontario, Canada. Trying to bring such issues out into the open results in insults (I was called a condescending prick by one union representative; a Facebook friend called me “delusional” when I tried to link the issue of the power of employers to the issue of the state of Ohio prohibiting girls who were raped from having abortions).

Should we not be discussing the issue of why management rights exist? Should we not be discussing what the implications of such rights have on our working and daily lives? Should we not be discussing what we should be do about the problem of a minority dictating to a majority?

Management Rights, Part Six: Public Sector Collective Agreement, British Columbia

I thought it appropriate to include a collective agreement of the place where I used to work. I worked as a bilingual library technician at the District Resource Centre of School District No 57, Prince George, British Columbia for about two and a half years. I was also the union steward at the board office and participated as a member of the bargaining committee in collective bargaining.

Unlike the social-democratic left, I hardly found my working experience there to be “decent” (as in “decent work,” a phrase used by the social-democratic left often enough, without explaining what they mean by it). Being riveted in front of a computer screen day after day became boring and oppressive. In the old collective agreement (in the early 1990s), it was the Operating Engineers Union, Local 858, that represented the workers. In that collective agreement, those who worked in front of a computer screen could do alternative work for ten minutes per hour. I began to exercise that right and did some clerical work (affixing labels to items, for example). Needless to say, this created an implicit friction between my immediate supervisor, Carrie Yuen-Lo, and me since it interfered with management’s decision-making power to determine what I and my fellow workers were to do.

Interestingly enough, other workers who worked in front of computer screens did not use this right to escape from being in front of the computer screen for hours on end without a break. Perhaps they enjoyed their work so much that they felt no need to take a break. Or perhaps they felt intimidated and feared making waves. I will let the reader decide which was the more probable reason.

Should workers comply with collective agreements out of necessity (because their enemy has more power than they do–for now), or should they comply with them because it is the “decent” or right thing to do? Union reps have few if any answers to this question. Why is that?

From

AGREEMENT
BETWEEN
THE BOARD OF SCHOOL TRUSTEES OF
SCHOOL DISTRICT NO. 57 (PRINCE GEORGE}
AND
CANADIAN UNION OF PUBLIC EMPLOYEES
LOCAL 4991
JULY 1,2014 TO JUNE 30,2019

page 5:

ARTICLE 4 • MANAGEMENT RIGHTS
4.01 The Union recognizes the right and responsibility of the Board to manage and
operate the school district, and agrees that the employment, assignment, direction
and determination of employment status of the work force Is vested exclusively in the Board, except as otherwise specifically provided in this agreement Of applicable legislation.

4.02 It is mutually agreed that no third party Shall have the right to amend, modify or expand the provisions of the collective agreement and any Issue arising during the term of the agreement on which the Board has not specifically agreed to some limitation on the exercise of its authority will be conclusively determined by the judgement of the Board until otherwise established through subsequent collective bargaining.

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

There are some among the left who idealize the public sector. They fail to address how the public sector magically treats workers in the public sector, who are employees, as human beings rather than as things. They have no solution to the problem of the employer-employee relation in general except–nationalization. Such nationalization hardly implies democratization and humanization of the workplace, and yet the left continue to idealize the public sector.

From page 1, Collective Agreement:

THIS AGREEMENT made this 16th day of September, 2016
BETWEEN:
UNIVERSITY OF WINDSOR, hereinafter called the ‘Employer
OF THE FIRST PART
and
UNIFOR LOCAL 2458 –
(FULL TIME OFFICE & CLERICAL UNIT) hereinafter call the “
Union”
OF THE SECOND PART:

ARTICLE 2 -MANAGEMENT RIGHTS

2:01 The Union acknowledges that all managerial rights of the Employer hitherto exercised by the Employer shall be reserved to it, except to the extent herein limited; and without limiting the generality of the foregoing, the Union acknowledges that it is the right of the Employer to:

(a) Manage, conduct and operate the University of Windsor;

(b) Maintain order, discipline and efficiency;

(c) Establish and enforce rules and regulations consistent with the provisions of this Agreement, governing the conduct of the employees;

(d) Hire, classify, direct, transfer, lay off, promote, demote, suspend, discipline or discharge employees for just cause provided that a claim of direction, transfer, promotion, demotion, lay off, suspension, discipline or discharge without just cause may be the subject of a grievance under the orderly procedure as outlined in this Agreement.

2:02 The Employer agrees that such rights shall be exercised in a fair manner consistent with the terms and provisions of this Agreement.

2:03 The Employer will inform the Union and the Chairperson, in writing, with at least one (1) month notice, prior to any changes concerning rules and regulations as referred to in 2:01 (c) above.

Should the radical left not develop a more critical approach to the public sector? Should it not also develop a more thoroughgoing critical analysis of this sector (as Marx did for the private sector)? What of public financing? What is the left’s analysis of such financing? In relation to the employer-employee relation and the power structure at work in the public sector?

Should the left engage in self-criticism–including its own theoretical, empirical and practical limitations?

Confessions of a Union Representative Concerning the Real Power of Employers

In the context of the process of passing legislation related to the Westray mining disaster (ultimately diluted to satisfy the interests of employers), a union representative explicitly expressed the reality that workers face when they work for employers. The problem with this explicit admission of the power of employers is that it does not play any real role in the education of the working class. Compare what is said below with union rhetoric about “decent jobs” or a “fair wage.” From Steven Bittle, Still Dying for a Living: Shaping Corporate Criminal Liability After the Westray Mine Disaster, doctoral dissertation, page 202:

Another union representative expressed concern [with the proposed government legislation] that unions can be held responsible for workplace accidents, noting that unions and employees have little decision-making control with the organization:

“…basically we wanted the legislation to go after corporate bosses, basically, because
they’re the ones that make the decisions. At the end of the day any decision that’s
made on anything to do with the business comes about as a result of management’s
decision. It doesn’t come about because of a union decision. We wish, but it doesn’t.
They have the ultimate authority to manage, and that authority is only restricted by
terms of a collective agreement, and in very few cases, maybe in terms of regulations or legislation. So we were hoping that it would focus more on criminal liability for those that have the power to make decisions. But in reality what it does is that it will hold anybody accountable if the investigation shows there was any part played in any particular incident by anybody from the janitor right up to the CEO. Now some people will argue, why not? Well normally, in my experience in almost forty years, is that any decision made by the janitor is usually something that is usually handed down from above, right. And there are very few cases where you could actually cite where somebody at that level had any type of malicious intent to do anything to cause harm “(Union representative, Interview 12).

One of the distinguishing features of human beings is our capacity to choose–our capacity to be free, to make decisions. The union representative openly admits that in the context of businesses, it is management that mainly decides and that all that a collective agreement does is restrict the authority of management to decide. Regulation and legislation, in a few cases, also limit that authority. Other than that, management has dictatorial powers at work. In other words, workers are treated as things at work–as objects to be used; they are thing-like objects, without the power to participate equally in decisions that affect their lives.

And the social-reformist left repeatedly refer to “decent jobs” and “fairness.” Even the so-called radical left (see the previous post, Social-Reformist Leftist Activists Share Assumptions with the Right) engage in such rhetoric. How being treated as things can be magically converted into decent jobs and fair wages is beyond me. The religious nature of this rhetoric (most frequently expressed by trade unionists) is obvious by the lack of any critical discussion concerning whether it reflects the experience of the millions (and indeed billions) of workers worldwide.

What do you think of the above honest statement of the reality or situation of even the more privileged section of the working class (for, generally, unionized workers are more privileged) when compared to the rhetoric of “decent work” and “fair wages” or “fairness” as expressed by the social-reformist left (and even the radical left)?

Should we not start discussing these issues openly and honestly? Are we? If we are not, why are we not doing so?

Management Rights, Part Four: Private Sector Collective Agreement, Ontario

The social-democratic left typically is incapable of dealing with the issue of the power of management. There is little or no discussion over such issues despite the existence of the power of the class of employers at various levels of society: economic, political, social and cultural. This silence expresses both the power of the class of employers and the poverty of the social-democratic left.

Indeed, the social-reformist left often uses such phrases as a “decent job,” or “decent work”–as if for most people in a capitalist society there is such a thing. Alternatively, the standard used by the left to judge what constitutes decent work and a decent job assumes the legitimacy of the power of employers.

Such a standard is assumed and not justified, of course, by the social-reformist left. Indeed, I even heard one so-called radical leftist in Toronto claim that the phrase “decent work” expressed a defensive maneuver on the part of the left. Such a view is convenient for those who fear alienating unions.

However, is it in the interests of workers to hide the reality of work that is undignified and involves their treatment as things in one way or another?

In the following clause, should not the members of the union have discussed the clause thoroughly? What is the likelihood that they have? My wager is that they have not done so. If not, should not the union be criticized? Should not the radical left who fail to criticize such unions also be criticized?

From

COLLECTIVE AGREEMENT
between
AIR CANADA
And those employees
In the service of
AIR CANADA
As represented by
UNIFOR
LOCAL 2002
Contract No. 31
As modified by the Memorandums of Agreement
dated June 13th 2015
Effective: March 1st 2015, to February 28th 2020

pages 2-3:

ARTICLE 3 RESERVATIONS OF MANAGEMENT
3.01 Subject to the provisions of this Collective Agreement, the control and direction of the working forces including the right to hire, suspend or discharge for cause, dispense with, to advance or set back in
3
classification, to reassign, to transfer or lay off because of lack of work or for other legitimate reasons, is vested solely in the Company.
3.02 These enumerations shall not be deemed to exclude other prerogatives not enumerated, and any of the rights, powers or authority of the Company are retained by the Company except those which are subject to the provisions of this Collective Agreement.