Some Implications of a Canadian "Right to Work" Law

Regular readers will be aware that the Ontario Conservative Party and maybe the Federal Conservative Party too are contemplating bringing to Canada a controversial labor law used in 24 American states, mostly in the low-wage Deep South.  I’ve written about these laws before. Americans call these laws ‘right to work’ laws.  Their purpose  is to make it more difficult for unions to collect revenues, and thereby to weaken the labour movement. Essentially, the laws say that unions and employers can’t agree to a collective agreement clause that requires employees to pay union dues.
Ontario law at present leaves the issue of how unions dues are collected, and who pays, to a

majority vote of the bargaining unit employees.  If the employees vote for a dues clause to be included in the collective agreement, then it goes in, and it can require everyone to pay equal dues.  The Ontario Tories have threatened to ban dues clauses in collective agreements.  However, the details of what such a law would like in the Canadian context is uncertain.
The American Model of Mixed Jurisdictions
In the United States, jurisdiction over labor relations is shared between the Federal government and the States.  The Federal National Labor Relations Act gives a union representing a majority of workers the exclusive representation rights for all workers in the bargaining unit.  The employees and the union can chose to bargain a union dues clause that requires everyone covered by the collective agreement to pay an equal share of union dues.  In exchange, the law requires unions to represent all workers in the unit equally, in bargaining and servicing, including processing of grievances and in expensive litigation.
However, American States have the right to enact their own laws that can prohibit mandatory union dues clauses. “Right to work” states have done that.  But since the duty of fair representation imposed on unions under Federal law still applies, you have the odd (and highly unfair and controversial) result that unions in ‘right to work states’ have a legal obligation to represent nonmembers who do not pay any dues, to the same level as dues paying members. Thus, as a result of the historical interplay between Federal and State laws, in ‘right to work’ states, unions are ordered by law to provide free professional services to nonmembers!  It was on this basis that an Indiana ‘right to work’ law was recently struck down as a violation of the State Constitution, which protects organizations from being forced to provide services for no remuneration.
The Canadian Model Is Different
An Ontario government wouldn’t be burdened by a Federal duty of fair representation law.  Therefore, the only sensible and fair approach to a law banning union dues clauses in Ontario law would also include an exception to a union’s duty of fair representation to employees who opt not to be members and not to pay union dues.   That’s not to suggest this is how the Tories will see it. They may indeed see no problem with forcing their enemy (unions) to provide legal (and other) services for free to nonmembers. I just can’t think of  a theory of justice or fairness that could defend that approach.  Can you?

Can you think of another example of a Canadian government ordering a private organization to provide free professional services?  
Do you think a law ordering a union to provide free professional services to non-members could withstand a Charter ‘freedom of association’ complaint?

The Charter argument is an interesting one.  But there’s an even more fundamental question.  If we assume that the Ontario Conservative Party wouldn’t go so far as to order unions to provide free services to nonmembers, then we are heading into unchartered territory, towards members-only representation and the end of the exclusive representation model of labour relations that has ruled in Canada since the 1940s.
One option for a new model is that unions would only be required to represent workers who pay dues.  So, for example, in a unit of 100 employees, say 20 opt to stop paying dues.  A law could say that the union has no duty to represent those 20 employees.  If fired, the union would have no legal obligation to represent the worker in an arbitration hearing challenging the dismissal.  Maybe the worker has the legal right to hire his own lawyer or represent himself in litigation, but the union couldn’t be forced to spend tens of thousands of dollars of its dues paying base on an arbitration for someone who opted not to pay the legal insurance premiums (dues) that fund that representation.  This is a fair outcome.  If I don’t buy house insurance and my home burns down, I shouldn’t expect the state to order the insurer to pay my expenses. I opted out of paying premiums. That’s the risk I took.
It makes perfect sense that a worker who opts out of paying union premiums forfeits all of the benefits those premiums cover.  But employers would have good reason to worry about that system.  Employers usually like that unions act as gatekeeper for grievances, weeding out the stupid ones before they reach costly litigation.  Unions too might have concerns about a system that allows individual workers to arbitrate any issue they like, because a risk of bad precedents arises.
Questions Arising from a Move Away from a Majoritism Model
A system that requires unions to fairly represent only workers who pay for their services seems sensible, but it opens up all sorts of legal and practical issues.

Would the present law prohibiting employers from bargaining and entering into side agreements with bargaining unit employees continue to apply to workers who are not union members, and who don’t pay dues?

Could a union bargain preferred benefits or higher wages only for dues paying workers?  

Alternatively, could employers try to bargain a collective agreement clause that would pay non-dues paying workers more than dues paying workers?

Or maybe we should just jettison the majority, exclusive union representation model altogether, and introduce a new system of members-only, minority union collective bargaining.  Workers can join a union if they like, or not, and the employer deals with any union that represents its workers, whether or not the union represents a majority.  A collective agreement would only apply to union members, and  employers would be required to bargain with whatever union, or unions, their employees join, regardless of whether any union represents a majority.  Non union workers could bargain their own deals with the employer. This is a model used in various forms in other countries.
In that model, could employers just give all nonunion members a huge raise, to punish union members and discourage union membership?  Maybe that is where the Tories eventually want to go.  Or, would existing unfair labor practice laws, which prohibit employers from awarding benefits for the purpose of punishing union supporters or to discourage workers from joining unions still govern?
Two Possible New Models of Collective Representation for Canada and the USA
Professors Fisk (UC Irvine) and Sachs (Harvard) have proposed a model for the US that drops the duty of fair representation obligation for workers who don’t pay union dues, opening up a ‘members only’ bargaining regime for the US.  Here’s their recent paper entitled Restoring Equity to Right to Work (especially Part II).  Employers would have a duty to bargain with unions who represent only their own members, or with an exclusive union if it represents a majority of workers in a unit, as per the existing model.  Whether preferential treatment given to union members or non-union members is unlawful would depend on whether the objective was to “encourage or discourage union membership”.  If so, existing unfair labor practice laws would render that action unlawful.
Interestingly, I made essentially the same argument in the Canadian context in a recent Queens Law Journal paper called “Graduated Freedom of Association“.  I argue that Canadian law should recognize both a members only ‘light version’ of freedom of association when no one union represents a majority, while maintaining the existing system of exclusive union representation when a majority of workers want to be represented by a single union.  I argue that my model of Graduated Freedom of Association is most consistent with the vision of labour relations crafted by the Supreme Court of Canada in recent Charter decisions.
Questions for Discussion
Do you think the Conservatives intend to force unions to provide free professional services to workers who opt not to pay union premiums/dues?
If so, do you a law that forces a private association to provide costly professional services to individuals for free violates any section of the Charter?
If not, how would you draft a law that permits a union to provide services and benefits only to workers who pay for those services?  Can such a system operate within our existing majority rules and exclusive union representation system?