Should Workers Have a "Right to Contest" Their Employer's Decisions?

I’ve been invited to speak at three conferences recently, all dealing with issues related to prospects for labour law reform in Canada.  Private sector union density has been on a downward trajectory for thirty years and is on its way to the 10% threshold (unions already
represent less than 10% of private sector workers in Alberta).  The percentage of workers employed in standard, full-time jobs is declining, and unions have been unable to help these workers under the existing labour law models in Canada.  That is not surprising, because the freedom of association model we use in Canada was designed in the 1940s to facilitate unionization and collective bargaining at large industrial workplaces.  The model will never permit unions to gain a strong foothold in the service sector, or in the markets where employees work at home and work sporadic part-time and temporary hours.
The fall in union density is of great concern not only to unions, but to many scholars and international organizations that note the direct link between collective bargaining coverage and income inequality.  A recent study attributed 15% of the growth in income inequality in Canada during the 1980s and ’90s was due to declining unionization (for a review of these issues and the studies, see this publication)  Growing income inequality and the economic and social problems inequality produce are frequently cited as the justification for new labour laws that will give access to collective bargaining to the 85% of private sector workers who now ‘bargain’ their employment contracts without union representation.
Scholars have been busy exploring the future of collective labour law.  The standard menu of labour law reforms include minor reforms to the existing model that would swing the pendulum a little in favour of union organizers:  greater access to employer property during organizing campaigns, provision of employee lists to make it easier for unions to organize, adopting a card-check model as opposed to mandatory ballots, easier access to first contract arbitration, and so on.  These are tinkering proposals that leave the basic Wagner model of exclusive union representation and majority rules in place.  These reforms, while no doubt helpful to unions, would not fundamentally alter the labour relations landscape in Canada.  If a policy goal were to give more workers a collective voice in the setting of their working conditions, then a more fundamental re-thinking of the legal model is needed.
Some of the more interesting scholarship steps back and explores new ways of thinking about freedom of association.   A recent paper by Oxford’s Alan Bogg and NYU Law’s Cynthia Estlund, two heavy hitters in labour law, examined a proposal I made in a recent piece about Canadian labour law I called “Graduated Freedom of Association:  Worker Voice Beyond the Wagner Act“.   Before turning to their paper, here’s a very quick synopsis of my point.
Graduated Freedom of Association
Although this is rarely noted, the Canadian Wagner-based labour law model of freedom of association protects only one type of collective worker activity:  trade unionism.  All of the rights and protections afforded collective activity in our labour relations laws apply only to “trade union activities“.   Moreover, the key labour rights–the right to engage in collective bargaining under a reciprocal duty of  the employer to bargain in good faith, and the protected right to strike–are only available to workers in Canada if they are represented by a majority union.  Workers who are unable to persuade a majority of their coworkers to support a single union, and workers who would like collective representation in a form other than ‘trade unionism’, such as an employee association, a worker advocacy centre, or industry-wide association, have no legal protections to deal with their employer collectively.  The same basic model exists in Britain–only ‘trade union activities’ are protected by law.  American law, on the other hand, protects any ‘concerted activity’ by workers that address working conditions.
The Supreme Court of Canada has ruled that the Charter guarantees Canadians the right to make collective representations to one’s employer without reprisals and a reciprocal obligation on the employer to engage in meaningful dialogue with the workers’ association.  Yet only a small proportion of Canadian workers in the private sector can actually exercise those rights.  If 10 out 20 employees of a Tim Horton’s restaurant approach their employer as a group and ask to engage in a discussion about working conditions, they can be fired.  Certainly the employer has no legal obligation to meet or speak to them.  Since they are not engaging in ‘trade union activities’, our labour relations laws don’t apply to them.
I argued in my paper that Canadian law should protect two forms of freedom of association that operate as complements of one another. The first is the normal Wagner version involving full collective bargaining rights afforded to a majority trade union.  However, grafted onto this model would be a ‘thinner’ version that permits workers not represented by a majority union to exercise at least those basic fundamental rights that are guaranteed by the Charter:  a right to come together as a group without reprisals from the employer, and through an association (a union, an employee association, a worker advocacy centre, etc) make collective representations to the employer, who must listen to the representations and engage in  a “meaningful dialogue” about them.  An interesting question is whether these rights could be put to any beneficial use.  My paper considered these issues in much greater detail.
The Right to Contest
Professors Bogg and Estlund expand on this idea in their paper called “Freedom of Association and the Right to Contest: Getting Back to Basics.    They begin as I do by noting that US law provides a much broader protection for collective activities of workers than does Canada and Britain, where only ‘trade union activities’ are protected.  Relying then on the work of Princeton’s Philip Pettit, Bogg and Estlund argue that freedom of association should be understood as the “freedom from

domination” in one’s life, including in one’s working life.  That freedom requires that the law protect a “right to contest” decisions, including employer decisions “free from the threat of reprisals”.   They build from this starting point to the claim that the ‘right to contest’ includes also a right to contest “in association with others”.
Bogg and Estlund are making an argument about how to frame the argument for labour law reform.  If the argument is framed simply as a need to increase trade union rights, it will not likely get anywhere politically.  A reframing is needed.  Their proposal is to reframe the argument based on the normative claim that law ought to protect people from domination in important realms of their lives, including work.  If the law permits workers to be fired for raising concerns about working conditions, then it fails on this important measure.
Canadian law permits a nonunion worker to be fired for raising concerns with their employer, so nonunion workers are subject to complete domination by their employers.  The law should therefore be reformed to protect workers from reprisals for expressing concerns about working conditions.  The role of freedom of association should be to protect those rights that individuals enjoy when those rights are exercised collectively.  Therefore, a key objective of labour law should protect the right of workers to come together as a collective

to express concerns about working conditions.  Right now, Canadian law only protects such a right if it is exercised through a “trade union”.
Bogg and Estlund use my Graduated Freedom of Association model as an example to flesh out their ideas, but argue that I should defend the model by drawing on Petitt’s freedom of non-domination to justify it.  One implication of both our approaches is that the law would/should expand beyond a model of freedom of association that is based solely around the idea of protecting majority ‘trade union’ representation at the expense of all other possible forms of employee association.   They argue that freedom of association based on “freedom from domination” by employers “would open the field of employee representation to new forms of association that employees might chose to represent them. That would be a good thing.”   In my model, unions would still play an important role and would remain the primary institution that represents workers.  However, other organizations, like worker centres for example, would have room to move in to advocate on behalf of workers who have been excluded from formal collective bargaining.  And unions too could adopt new models of worker advocacy that do not depend on formal collective bargaining and the duty to bargain.
The question is could unions do this, and would a model of representation that does not include a full-fledged ‘duty to bargain in good faith’ and right to strike have any effectiveness at all in improving working conditions of Canada’s most marginalized workers?
For students interested in these rather dense arguments and articles, please check them out and send along any comments or observations.
Originally Posted November 26, 2014.