Written by David Doorey
The headline in today’s New York Times is catchy, but also a little baffling. Google has hundreds of thousands of employees, so how exactly is the decision of a couple of hundred of them the culmination of anything?
Our company’s motto used to be “Don’t be evil.” An organized work force will help us live up to it.Leaders of the Google employees’ new union, New York Times Op-Ed
By paragraph four, we’ve learned that “more than 250 Google engineers and other workers” had joined an affiliate of the Communications Workers of America known as the Alphabet Workers Union, and that Google employs more than 260,000 workers. My back of the envelope calculations suggests that amounts to approximately .001 of Google employees. If that’s the culmination of a movement, there’s a problem.
The story describes the Alphabet Workers Union as a “minority union”. In the Wagner Model of collective bargaining used in the US and Canada, a union can obtain a government issued licence to bargain (a “certification”) if a majority of employees in an acceptable “bargaining unit” want the union to represent them in collective bargaining with their employer.
The “bargaining unit” is usually some sensible grouping of employees of a single employer, often at a single location, although it is possible for a bargaining unit to include multiple locations of the employer. The NYT article doesn’t tell us much about where the 250 union members work.
What is a Minority Union?
A “minority” union is exactly as it sounds: it is a union that represents less than a majority of the employees. In this case, much less. Under the standard labor law model in both Canada and the US, employers are under no legal obligation to recognize or bargain with a minority union. If a union representing less than a majority of employees (even up to 49 percent of the workers) approaches the employer and demands to begin bargaining towards a collective agreement, the employer can tell it to go to hell.
There are other similarities in the legal models of the two ‘Wagner Model’ countries. For example, if the minority union is a real union, then workers who join are protected from reprisals for joining by the labor legislation in both countries. Google can’t fire workers for joining the Alphabet Workers’ Union in either country.
However, if the workers hadn’t joined an actual union and instead had just decided collectively to approach their employer with demands or complaints, without a union’s involvement, different rules would apply in the two countries. In the US, the workers would still be protected against reprisals, because American law protects a right of workers to engage in ‘concerted activities’.
In Canada, on the other hand, it would be very risky for non-union Google employees to act collectively in this way without first taking steps to create or join a union. That’s because Canadian labor law protects a more narrow ‘right to join a trade union’, not the broader American right to act in a concerted fashion. I explain all this in a new paper I have coming out this spring in the University of Toronto Law Journal, in which I also argue that a ‘right to engage in concerted activities’ will cross the border into Canada in the coming years.
The other big difference between the two countries’ legal models is that workers in a minority union in the US have a legal right to strike. That’s because the ‘right to engage in concerted activities’ includes a right to withdraw one’s services to put pressure on the employer. Granted, it is still very risky to exercise this right to strike in the US because employers can ‘permanently replace’ strikers, meaning they can in most case choose to hire replacement workers and keep them on even after the strike ends. The striking workers would have right to return to any vacancy that arises later. However, notwithstanding the risks involved, thousands of nonunion workers in the US have struck in recent years in support of a growing movement across the country to raise basic legal minimums standards at work.
Canadian law to date has never recognized a legal right of employees in a minority union to strike. If a handful of Google workers in a minority union employed in Canada went on strike to protest working conditions, they could all be fired. There may be some exceptions to this though. For example, in the public sector, it is now an open question whether the recently recognized Constitutional right to strike protects a right to strike outside of a majority, certified trade union.
Also, a tribunal in Ontario recently hinted that the Agricultural Employees Protection Act may make dismissal of employees in a minority union for engaging in a strike over working conditions unlawful. The statute doesn’t include an explicit right to strike, but it does impose a limited duty to bargain on agricultural employees to ‘bargain’ with minority unions, a rarity in Canadian labor law, and the questions arises what should happen if the employer refuses to bargain or an impasse is reached and the workers’ walk off the job. In MedReleaf, the tribunal suggested it might have the power to order reinstatement of employees dismissed for striking. That case is working its way up the judicial ladder.
The question remains, what is the point of a minority union? What can it realistically achieve?
Although they will not be able to negotiate a contract, the Alphabet Workers Union can use other tactics to pressure Google into changing its policies, labor experts said. Minority unions often turn to public pressure campaigns and lobby legislative or regulatory bodies to influence employers.New York Times, “Hundreds of Google Employees Unionize, Culminating Years of Activism”
There is good reason to question whether much will come of the Google minority union given its at present minuscule level of support. Collective action at work cannot be disassociated from bargaining power and a union representing .001 of workers has little such power. The effectiveness of collective voice at work will always been a function of power and law can only do so much to alter that reality.
Nearly a decade ago, I published a paper that argued in favour of a legal regime that recognized certain legal rights for minority unions and workers represented by them. I called that model ‘graduated freedom of association’. The basic idea was that we should preserve the Wagner Model of majority collective bargaining because it works well in some sectors, but also graft onto that model a secondary set of legal rights and responsibilities for minority unions, including a duty to bargain over working conditions in ‘members only bargaining’. More recently, the same idea of “graduated rights” appeared as a central element in Harvard Law School’s “Clean Slate for Worker Power” report.
I believed back then, and I still believe, that Canadian collective bargaining rights should not consist entirely of a unitary model in which the only way to obtain collective representation at work is through a majority trade union. Smart unions and other worker associations should be able to harness the support of 40 percent of workers in a workplace or in an industry into something of value in terms of collective representation, backed by some legal protections, as I argued in my older paper.
Time will tell whether the new minority union at Google is the beginning of something important or another interesting but ultimately failed experiment in expanding collective bargaining to the masses.
David Doorey, “What is a Minority Union?” Canadian Law of Work Forum (January 4 2021): http://lawofwork.ca/?p=13196