Comments from John Urkevich, AESES-UM Business Agent, to my 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

As I wrote in my last post (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), I would provide the business agent’s reply to my letter to the editor in the same volume of the union newsletter. Here it is verbatim:

Mr. Harris’ comments are noteworthy in several respects albeit difficult to understand. I believe that Mr. Harris is attempting to convey the message that a collective agreement only goes so far in reducing management’s unbridled right to manage its affairs and its working force and therefore a union, any union, is only as effective as the collective agreement it has to work with on behalf of its membership.

I would agree, as would most, that collective agreements only limit management’s right to manage and that which is not specifically abridged by a collective agreement remains within the employer’s purview. This right, however, is tempered by legislation which dictates that the exercising of management rights must be reasonable, fair, non-arbitrary, non-discriminatory and in good faith. Although arbitrators do not generally accept the argument that because there is a collective agreement, management is restricted to dealing only with those functions as specified in the agreement unless there is union agreement, neither do arbitrators accept the argument that management has an unfettered right to act completely as it wishes, in particular when it comes to severing or detrimentally affecting an employee benefit.

Mr. Harris reiterates the definition of a grievance which is found in our collective agreement but in so doing leaves the impression that such a definition is restrictive. I would suggest that this defines a grievance in its broadest sense.

Arbitration is the final step in the grievance procedure and therefore is part and parcel of the procedure and not an entity of its own. The arbitration of a grievance occurs only if the parties cannot come to a mutually acceptable resolution of the issue either during the process or before a grievance is ever filed. Many of the issue that arise during the life of a collective agreement are resolved without either the necessity of a grievance of arbitration. Depending on the state of the employer/employee relationship, common sense and fairness can prevail without a confrontation.

The reason that management does not file grievances is because the employer/employee relationship is such that the employer acts and the employee reacts. The union’s right to be proactive is curbed by the law which prohibits employees from withholding their services during the term of a collective agreement and specified that all agreements must contain a method of resolving disputes which arise during the term without a work stoppage (grievance procedure). Whenever management takes an action the employee must continue as normal whether or not the employer is correct (there are some exceptions). This is aptly coined as the “work now–grieve later” principle. If this were not the case then I suspect that management grievances would be a fact of life.

I do not agree, as Mr. Harris suggests, that because management’s right is merely restricted by a collective agreement that employees should not voice their concerns or their problems, unless it is certainty that a grievance is winnable. Union members should always check with their union representative any questionable act of management. After all the employer only has control over the how, what, and when, it does not have the right to treat employees in an unjust or undignified manner. Employees are not channel.

I have provided Mr. Urkevich’s response in full without my intervention so that the reader could see the whole response before I begin to analyze the response (an opportunity which I did not have since, as I said, I was no longer a member of the union).

….Mr. Harris is attempting to convey the message that a collective agreement only goes so far in reducing management’s unbridled right to manage its affairs and its working force and therefore a union, any union, is only as effective as the collective agreement it has to work with on behalf of its membership.

I fail to see how anyone could infer from what I wrote that that is the message that I wanted to convey. Unions need to teach their members the limitations of the legal rights of union members as contained in collective agreements–and those legal rights are very limited. That is what I wanted to convey.

Union representatives, in order to “sell” a contract, often exaggerate the fairness of a collective agreement and thereby do their members a disservice because they then teach them the opposite; they imply that, by being “fair,” collective agreements are not very limited instruments for protecting their collective interests. See, for example, reference to a “fair contract” by the Canadian Union of Public Employees (CUPE) Local 3902 of the University of Toronto (CUPE 3902, University of Toronto Education Workers).

I would agree, as would most, that collective agreements only limit management’s right to manage and that which is not specifically abridged by a collective agreement remains within the employer’s purview. This right, however, is tempered by legislation which dictates that the exercising of management rights must be reasonable, fair, non-arbitrary, non-discriminatory and in good faith.

Mr. Urkevich, like many union representatives, begs the question. Why does he assume what he needs to prove, namely, that the employer/employee relation can be “reasonable, fair?” In the money circuit of capital, for example, it has been shown that employees are mere means for the benefit of employers (see The Money Circuit of Capital). Indeed, as I wrote in that section:

Immanuel Kant, a German philosopher, argued that, in order to act ethically, it is necessary to treat people never as means only but as ends in themselves: “For, all rational beings stand under the law that each of them is to treat himself and all others never merely as means but always at the same time as ends in themselves” (Groundwork of the Metaphysics of Morals. New York: Cambridge University Press, page 41). Human beings need to be treated as ends and not as means. To treat human beings as ends in themselves, it is necessary to have those who engage in realizing the ends also engaged in participating in the formulation of the ends.

If human beings, as employees, are treated as means to others’ ends, then how is such a situation “fair and reasonable”? For the employer, by definition, it is fair and reasonable. Is it for the workers though? Does not Mr. Urkevitch take the point of view of the employer as his standard? Should we? Why?

Is not Mr. Urkevich’s reference to “legistlation which dictates that the exercising of management rights must be reasonable, fair, non-arbitrary, non-discriminatory and in good faith” meant to justify Mr. Urkevitch’s own role as union business agent since, otherwise, Mr. Urkevich would be justifying unreasonable actions, unfair actions, and so forth.

Although arbitrators do not generally accept the argument that because there is a collective agreement, management is restricted to dealing only with those functions as specified in the agreement unless there is union agreement, neither do arbitrators accept the argument that management has an unfettered right to act completely as it wishes, in particular when it comes to severing or detrimentally affecting an employee benefit.

Of course arbitrators would not permit employers to let managers do what they will with employee benefits or, for that matter, employees in general. The treatment has to be consistent with the line of business. However, this leaves management with a very wide latitude of power to determine what can and cannot be done at work.

Whenever management takes an action the employee must continue as normal whether or not the employer is correct (there are some exceptions). This is aptly coined as the “work now–grieve later” principle. If this were not the case then I suspect that management grievances would be a fact of life.

Mr. Urkevitch, like many union representatives, assume without further ado that the employer/employee relation is inherently reasonable. I categorically deny that, and for reason already provided in reference to Kant and the money circuit of capital.

Management has a monopoly of decision-making power except as restricted by the collective agreement (and limited legislation); why employers have such a monopoly of decision-making power Mr. Urkevitch does not even question–undoubtedly like many other trade-union representatives and social-reformists.

Mr. Urkevitch merely repeats what needs to be explained: “Whenever management takes an action the employee must continue as normal…” Why must the employee do so? Because of economic coercion, perhaps? (See “Capitalism needs economic coercion for its job market to function” (Ontario Coalition Against Poverty: OCAP)). It is the economic power of employers compared to employees that shapes legislation in favour of employers?

Mr. Urkevitch, undoubtedly like many union representatives, with a manipulative “if” (“If this were not the case”–but it is not the case–and that makes all the difference in the world for the daily lives of unionized workers–seeks to minimize the importance of the fact that it is mainly unions that file grievances and not management–because management has the power to make the major decisions that effect the lives of millions of workers.

I do not agree, as Mr. Harris suggests, that because management’s right is merely restricted by a collective agreement that employees should not voice their concerns or their problems, unless it is certainty that a grievance is winnable.

This reasoning is pure fantasy. Employees should voice their concern in various ways–even if the grievance is not winnable. Where did I imply that only if the grievance is winnable should workers voice their concern?

After all the employer only has control over the how, what, and when, it does not have the right to treat employees in an unjust or undignified manner. Employees are not chattel.

This last sentence likely sums up the attitude of many union representatives. No, employees are not chattel, that is to say, they are not slaves, owned 24 hours a day. They are not required to work for a particular employer. No one forces them to work for a particular employer.

However, just as with the manipulative use of the word “if” above, Mr. Urkevitch uses the word “only” in order to minimize the importance of how much power management has over the lives of even unionized workers: “the employer only [my emphasis] has control over the how, what, and when….”

Mr. Urkevitch evidently does not think that “control over the how, what, and when” is “unjust or undignified.”

I do. (See above, referring to Kant and the money circuit of capital). Employers, by controlling “the how, what, and when”–control the lives of workers, which is undignified and unjust.

Union representatives, like Mr. Urkevitch, however, obviously believe that it is just. They believe in the justice of the collective agreement, where “the employer only has control over the how, what, and when.”

Union representatives imply, often enough, that there is somehow something fair about collective agreements. No one seems to challenge them to explain what they mean by fair collective agreements.

For instance, here is an example from a relatively recent union representative in Ontario:

Toronto (24 May 2018)…

Warren (Smokey) Thomas, President of the Ontario Public Service Employees Union (OPSEU/NUPGE) said he is hopeful the employer is ready to step up and do what is right for 20,000 of its workers who have suffered for decades under appalling working conditions.

“We’ve heard countless horror stories from our new members about poor pay and job security, no vacation time, they don’t even get sick days,” said Thomas.
“The fact our members overwhelmingly voted to join OPSEU/NUPGE in the largest organizing drive in Canadian history sends a strong message that times are changing. I hope this employer will work with us and make sure our members get a fair contract,” he said.

Of course, unions generally do improve wages and working conditions, but such improvements do not give them the right to declare that any collective agreement is somehow fair. They abuse their position by doing so, and by abusing their position, they open themselves up to legitimate criticism.

Unfortunately, few among the so-called left engage in such criticism. Rather, at best they follow along behind the unions, seeking “openings” here and there to open up discussion rather than openly criticizing all talk of fair contracts or collective agreements. They do a disservice to the regular worker but certainly aid both union representatives–and the class of employers.

One final point: although any particular employee is not obliged to work for any particular employer, what of the class of emloyees in relation to the class of employers? Can the class of employees simply not work for an employer, freely and realistically? If not, what does that make them?

So many questions, but so few answers–by union representatives and, undoubtedly, by many social reformists.

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?

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 followers cannot handle the truth. Why otherwise the silence?