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Is Alberta’s UCP Party Importing American Style Union Dues Laws?

April 23 2019

Is Alberta’s Newly Elected United Conservative Party Looking to the U.S. for Inspiration on Union Dues Law?

Last week the people of Alberta elected the right-wing United Conservative Party (UCP)to a majority government, ending the one term reign of the left of centre New Democratic Party (NDP). The UCP ran on a platform that included repealing efforts to address climate change, promises to bolster the province’s oil-based economy, as well as the usual array of conservative goodies such as corporate tax cuts and, of interest to us, labour law reform aimed at weakening unions.

A Familiar ‘Open for Business’ Agenda

Alberta has long owned the lowest unionization levels of any jurisdiction in Canada, with private sector union density sitting at about 10 percent.  The UCP perceives even this low level of collect

UCP Leader Jason Kenney

UCP Leader Jason Kenney

ive bargaining as problematic. There isn’t much that is novel in the UCP’s Platform in terms of labour law. The usual claims are there about “bringing balance back to labour law”, which is standard fare in Canada. Every labour law reform ever made in Canada was purportedly to restore balance and fairness.  The Platform regurgitates the tired “Open for Business” slogan that conservative parties have used all over the world for many years.  In the mid 1990s, the Mike Harris Conservatives mouthed Open for Business ad nauseum as they gutted labour laws in Ontario.  Today’s Doug Ford Conservatives in Ontario are doing the same.

The Harris Conservatives were the first in Ontario’s history to introduce American style mandatory union certification ballots.  Under this model, even if the union presents membership cards on behalf of 100% of the employees, it must also still win a representation vote conducted by the state after a period of employer campaigning.  For obvious reasons, the “mandatory ballot method” is favoured by employers over the traditional Canadian “card-check method”, which requires an employer to bargain with a union once the union has established by membership evidence that it has the support of some majority of workers. Academic studies have demonstrated that union success rates in certification applications decrease by between 10-19 percent when mandatory ballots replace card-check as the test for assessing employee support for collective bargaining.

The Alberta NDP introduced a card-check certification model in 2017 that granted a union the legal right to represent workers if it presented evidence of support on behalf of 65 percent or more of employees in the bargaining unit.  This change gave Alberta unions a short-lived boost in organizing success. However, the UCP has promised re-introduce mandatory ballots because whatever else being ‘open for business’ means, to a conservative it absolutely includes less collective bargaining and weaker unions.

The UCP Platform targets another NDP rule that prohibited government employers from using replacement workers during a strike or lockout.  It also states that the UCP will “require the Labour Relations Board to provide legal support to all union workers in order to better understand and exercise their rights”.  The precise details of this requirement remain to be seen, but in the 1990s the “Open for Business”  Ontario Conservatives passed a law requiring employers to provide information to unionized employees on how to decertify their union (there was no reciprocal obligation to provide non-union employees information on how to unionize, obviously).

Importing the American Agency Fee Model

However, while most of the ideas in the UCP Platform respecting labour law are rehashed, there is one interesting and novel promise in the document. On page 22, we find this nugget:

  • Protect workers from being forced to fund political parties and causes without explicit opt-in approval.

I am not aware of another example in Canada of a law requiring employee “opt-in” for union dues directed at political activities.  From 1996-2000, the Manitoba Labour Relations Act included a law permitting an employee to opt out of the share of their union dues put towards donations to politicians or political advertising by the union [hat-tip Don Jordan who informed me of this law].  That law required the union to forward the share of union dues to a charity of the employee’s choosing. (See section 15 of this Bill)

For the Canadian reader, a brief background is in order. Following the 1977 decision of the U.S. Supreme Court in a case called Abood v. Detroit Board of Education, the law in the United States was that a worker who was not a member of a union but who was covered by a collective agreement that included a requirement for employees to pay union dues could “opt out” of paying the share of dues going to non-collective bargaining activities, such as politically related speech and activities.  The remaining fee that went to the union for activities relating to collective bargaining is known as an “agency fee”.  All unionized employees were required to pay at least agency fees to the union, except in “right to work” states, where workers could opt out of union dues altogether and free ride on union services.

Last year, the legal landscape shifted dramatically. In Janus v. AFSCMEa deeply divided U.S. Supreme Court, split along partisan lines (4 of 9 judges dissented), ruled that even agency fees violated public sector workers’ freedom of speech since it was not possible to separate political from apolitical union speech.  Janus effectively rendered the entire American public sector “right to work”. It requires that unionized employees opt intopaying any union dues. The Janus reasoning so far applies only to public sector workers, although powerful anti-union forces in the US have now shifted their focus to banning mandatory union dues clauses across the entire American economy.

The UCP Proposal to Introduce “Opt-In” Union Dues

The UCP proposal draws inspiration from these American developments.  Its purpose is to reduce union revenues and political engagement, which is rarely supportive of the conservative political agenda. The UCP has not (yet) proposed a ‘right to work’ model; collective agreements will still be permitted to include mandatory union dues clauses. However, the UCP proposal takes a cautious step in the direction of ‘right to work’. If enacted, it would be the first in Canada to introduce an American style agency fee arrangement whereby employees can choose not to pay a portion of assessed union dues.

Conservative parties in Canada, including the Stephen Harper federal government in their controversial (since repealed) Bill C-377, have in the past required unions to publicly report on the proportion of their revenues spent on collective bargaining and non-collective bargaining related activities. Those of us paying close attention predicted that this was a precursor to a law precisely like the one the UCP is now proposing.  The decision by the UCP to require an “opt in” rather than an “opt out” model is a direct nod to Janusthat is intended to have the greatest negative impact on union resources, since people tend to opt into payments far less than they opt out of existing ones.

The wild card in Canada is of course the Charter of Rights and Freedoms and a Supreme Court that has demonstrated greater respect for collective voice than its American counterpart.  In the landmark 1991 decision Lavigne v. OPSEUthe Court soundly rejected the argument that a worker’s freedom of expression is infringed when a portion of his union dues is put towards activities with which he disagrees. The Court also ruled that a rule that resulted in Lavigne being compelled to contribute money towards causes with which he disagreed did not violate his freedom of association, although the judges took various routes to get to this outcome.  Interestingly, the SCC in Lavigne agreed with the USSC in Janus that it is very difficult to distinguish collective bargaining activities from non-CB activities, but that observation led the SCC to opposite conclusions as the USSC.

The UCP proposed law would be different than the rule the Court considered in Lavigne, which required Lavigne to contribute the full amount of dues to the union that represented him and did not permit him to opt out of a portion of those dues. The UCP law, at least as it is described briefly in the Platform document, would not compel employees to give money to a union against their wishes, but rather would require the employees’ explicit consent before an employer and union could take the employees’ money.   The effect on unions would be identical to what Lavigne wanted and failed to get from the Supreme Court.  But the legal vehicle used by the UCP to achieve this result is different.

Whether the UCP model of “opt in” payment of the share of dues going towards “political parties and causes” will survive a Charter challenge is an interesting question sure to keep the labour law community and the courts engaged for years to come.  I prefer to wait and see the language before pontificating on its constitutionality.  But let the debates begin!

The Ontario Conservatives under Tim Hudak once toyed with the idea of permitting individual unionized workers to opt out of a collective agreement in its entirety, not just the union dues clause.  But no Canadian government yet has pursued the divisive path of permitting employees to free ride on union services by paying no union dues at all. Nor does that appear to be the path chosen by the UCP in its Platform. However, by  introducing a form of opt-in partial union dues, the UCP may be releasing the proverbial canary into the coal mine to test the political and legal environment for a broader subsequent shift towards something more fundamental, perhaps even an American style “right to work” model in some form.

This may be only the beginning.

Socialize

3 Responses to Is Alberta’s UCP Party Importing American Style Union Dues Laws?

  1. Don Jordan Reply

    April 24, 2019 at 8:59 pm

    Manitoba had related legislation passed in 1996 – s.76.1 of their LRA

    • Doorey Reply

      May 20, 2019 at 3:14 pm

      Thanks Don, I was not aware of that. I will have to hunt down the language.

  2. Robert Logue Reply

    May 8, 2019 at 8:43 pm

    Interesting post.

    You or your readers may want to review the Old Dutch Foods decision from the Alberta Board, 2009 CanLII 61316, wherein the Board found that the failure to include a Rand formula in the Alberta Code violated the Charter.

    The decision was overturned on JR on the basis that the Board did not have jurisdiction to make the declaration it did, but the analysis in the original board decision still provides an interesting review of some of the legal issues at play, and how they might unfold if an American-style law was ever passed in Canada.

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