Fired for Freedom—Enough Already!
Because the principle [of exclusive representation] makes the union chosen by the majority of workers the exclusive agent for all dealings between employers and their employees, a worker must join that particular union to be able to participate in the collective processes of industrial government. ... If the parallel principle were applied to the rule-making processes of our society at large, it would mean all opposition members in Parliament would have to take out membership in the government party if they wished to have any further involvement in the legislative and executive processes of government.
—David Beatty, Putting the Charter to Work, p. 137
In early 1990, Norma Janzen, a special education teacher, was fired from her job in Langley, British Columbia. Why? Was she incompetent or insubordinate? No. She was fired because she refused to go against her deepest conviction that teachers do not have a moral right to strike and abandon their charges in the classroom. And she insisted that teachers be free—not forced—to join a union.
What followed her firing was even more disconcerting. It was a display of raw union power against an individual who simply wanted to follow the dictates of her conscience.
Denial of justice
In 1987, the B.C. School Act was revised, giving teachers the right to strike and the B.C. Teachers' Federation the legal right to include closed-shop provisions in their collective agreements with various public school boards. This confronted all public school teachers in the province with the choice of either joining the union or losing their jobs. Some left. Others tried, unsuccessfully, to obtain religious exemptions.
Ms. Janzen refused to join and was eventually dismissed by the Langley School Board. But she was not one simply to walk away. Appealing to her right of freedom of association guaranteed by the Charter of Rights and Freedoms (Section 2d), she started court action in 1993. Her lawyer agreed to serve free of charge.
Flexing its over two million member muscles, the Canadian Labour Congress (CLC), an organization that had previously intervened in a similar case against Merv Lavigne (an Ontario college teacher), demanded and received intervenor status. In that case, the court awarded costs of $1 million against Mr. Lavigne, which was eventually settled for $350,000.
The possibility of being liable for huge legal costs proved an impossible obstacle for Ms. Janzen. Her lawyer approached the CLC requesting that it not claim costs and vice-a-versa, but the CLC rejected this offer outright. Ms. Janzen appealed to the B.C. Court of Appeal for a ruling that would prevent intervenors from being awarded costs. When that failed, she appealed to the B.C. Court Rules Committee. Again, she was denied.
Forced to abandon her appeal, Ms. Janzen wrote the following letter to, among others, the B.C. Attorney General:
I . . . was forced to instruct my lawyer to withdraw from the case as I could be liable for hundreds of thousands of dollars of "court costs," something which I nor any Canadian citizen could possibly even consider. Consequently, I have never had the opportunity to have my Charter-guaranteed freedoms defended in Court. As a result, the rights and freedoms guaranteed under the Charter are of little real use since no one, except governments, big unions and big business will be able to afford to use it in court.
Many people instinctively feel that something is drastically wrong with this situation. For 24 years, Norma Janzen helped and taught children with special needs. Yet not only was she fired, she was barred—by the same organizations that had her fired—from exercising the right to have her case heard in court. So much for equality before the law and freedom of association guaranteed to all citizens.
Norma Janzen's story shows a glaring contradiction between the existence on paper of the common law and Charter right of freedom of association and its nonexistence in countless unionized workplaces. Most unions have collective agreements that contain some form of compulsion—if you want to work here, you must join, or at least pay dues. The real travesty is that unions have imposed monopoly unionism on unwilling workers with the help of legislation and public policy.
It is amazing that such a brazen denial of a fundamental democratic right has occurred with such little public awareness and protest. Sure, some brave souls have refused to be forced into unions. But it has cost them dearly. Besides these isolated instances of courage, the media has paid scant attention to the issue of freedom of association.
It appears that most journalists do not question the legal right of unions to demand membership or the payment of dues as a condition of employment. Yet, if the same kind of compulsion were applied to any other organization or group, such as a political party or church, we would see rioting in the streets. It is especially ironic considering that so much emphasis is placed nowadays on the right of individuals—on "pro-choice" positions—except when it comes to union membership.
Class conflict roots
Compulsory unionism has its roots in the ideology of class conflict, which views workers and employers as two adversaries competing against each other. Every worker is duty bound to join as a matter of class loyalty, and unions have the moral right to force unwilling workers into their ranks. By any standard, working conditions during the early days of the trade union movement were appalling. The rhetoric of struggle and conflict served to rally workers in their difficult struggle for better treatment and wages.
But things have changed. Today, unions and collective bargaining are firmly established. Many are now realizing, even for purely practical reasons, that adversarial collective bargaining must be replaced by cooperation in the workplace. More important, it is wrong in principle to reduce human relations to a power struggle. Despite this, trade unionism continues to be practised under the assumption that the class conflict view is a necessary expression of the solidarity of all working people over against the power of employers.
Trade union spokespersons defend compulsory unionism as legitimate, even indispensable, not just because it follows the class conflict model. Unions are afraid that, left to make their own choice, people will choose not to join their ranks. Rather than rely on their ability to attract members based on what they have to offer, they want to maintain their organization based on their power to exclude. That's a position of weakness, not strength.
Many unions are stuck in a conservative rut, wanting to do collective bargaining as they have always done—by bluster and force. But especially now in view of the massive changes that are affecting every institution of our society, it's time they became more self critical. What they need is a renewal of leadership and ideas to meet the challenges of today and tomorrow, instead of trying to fight the battles of the past. Even former Ontario Premier Bob Rae would agree with that.
Being critical of heavy-handed, traditional unions is only one side of the collective bargaining street. Employers must own up to their responsibility for developing new and better labour relations. But the only response of some in the business community has been the call for right-to-work legislation, something we're hearing a lot more about these days from people fed up with power-abusing unions.
Garth Turner, financial editor for Baton Broadcasting Inc., gives a blunt definition of what right-to-work means:
Simply put, a right-to-work law spells out that each person owns his or her labor and is free to sell it to anyone else at a price higher or lower than that considered acceptable by anyone else or any group. The result is stark: each worker negotiates his or her wages directly with an employer and cannot be denied access to that employer. So, no closed shops where everyone must join a union to work.
Conversely, right-to-work laws do not deny a worker the right to voluntarily join a union that makes the best deal for its members. Result: people join and form unions that all members feel are working in their best interests. ("Playing Monopoly with Workers' Jobs," Canadian Business, December 1995)
What scares unionists out of their wits is that this kind of right-to-work legislation, with its one-sided emphasis on individual rights, would destroy trade unionism. Collective agreements apply to all workers in a workplace. If they did not, favouritism and competition would soon dominate and inevitably lead to chaos in the workplace.
Right-to-work, as defined here, is not the answer. By shifting power from unions to employers, workers are more vulnerable to exploitation than ever. The history of labour-management relations should prove without any doubt that unions are needed to represent and protect the genuine interest of workers. Unions are not only an appropriate but an essential avenue for workers to have a voice in the workplace.
The decision to join a union can and should be made by the entire workforce, mostly by the imperfect, yet workable, majority-rule principle. When the majority in a company join a union, the collective agreement must apply to everyone in the bargaining unit. You cannot simultaneously have collective bargaining and individual bargaining, no more than something can be both black and white.
The real conundrum is how to preserve the institution of collective bargaining while respecting workers' freedom of association. But the solution does not lie in choosing extremes of collectivism—workers being barred from jobs (the closed shop)—or individualism—the destruction of collective bargaining.
Any solution must begin by acknowledging two realities. First, work is a communal activity that demands a degree of organization and uniformity. Second, freedom of association is a fundamental right that must be respected. How can the two be reconciled? Or is that impossible?
Consider how majority rule and individual freedom exist in the political realm. When one party gains a majority of votes, it forms the government. But no one is forced to join that party. At the same time, members of minority parties are free to pursue their own interests, and even maintain a role in parliament.
Something similar must be done in labour relations. Workers should be offered a choice of unions with different fundamental beliefs and convictions about the meaning of work and the role of collective bargaining. They should be free to join the union that matches their own beliefs. Such a plurality of unions would make it possible for trade unionism and freedom to coexist.
No doubt tolerance, mutual respect, and a willingness to compromise among the various unions would be needed to conclude a collective agreement. In today's poisoned us-against-them atmosphere of labour relations that may sound far-fetched, but it's certainly worth trying.
Implementing a labour relations system that offered workers a choice of unions will require legislative action. And that won't start until the idea of freedom of association gains broad public consensus. Meanwhile, a compromise solution currently being practised by the Christian Labour Association of Canada (CLAC) should be copied by other unions. This 17,OOO-member, independent union recognizes that some people have legitimate objections to a particular union. Provision is made in the collective agreement for conscientious objectors to have their dues diverted to a recognized charitable cause. In this way, both the social irresponsibility of freeloading and violating the conscience of workers are avoided.
What the B.C. Teachers' Federation did to Norma Janzen is unconscionable. But right-to-work, as defined by Garth Turner, is not the answer either. Workers deserve far better. Even if unions often act irresponsibly and arrogantly, destroying the institution of trade unionism and collective bargaining will only make matters worse.
The answer must lie in finding imaginative ways to renew and reform trade unionism so that workers are protected against abusive employers as well as abusive unions. Only then will the freedom and dignity of workers be truly respected.