I recently had the privilege of participating in a two-year long research project organized by Professor Ben Sachs and Sharon Block of Harvard Law School called Clean Slate for Worker Power. The idea behind the study was intriguingly simple: if you could start over, from a clean slate, without worrying about the political reality in the U.S. that labor law reform is virtually impossible, what sort of legal regime would you create to empower workers?
I was the Canadian representative on the International Advisory Committee. My task was to offer insights from Canadian experience, including from actual laws, past and present, policy debates and studies that have explored labour law reform, and academic research. I was at Harvard last month for the release of the final report, called Clean Slate for Worker Power: Building a Just Economy and Democracy. It presents a sweeping package of reforms aimed at empowering workers not only at work, but also in other aspects of participatory democracy. I’ve already published a short post on Harvard’s OnLaborblog called “Clean Slate Through a Canadian Lens” and I’m working on a longer analysis.
Clean Slate Proposals for Graduated Rights
In this entry, I will discuss one of the Clean Slate proposals, which is referred to as “a system of graduated rights in the workplace” (p. 30-36). The idea behind graduated rights is that the law confers a bundle of protections for collective worker voice that gradually thicken—become more substantive—as the level of employee support for collective voice in the workplace increases. The Clean Slate proposal identifies 4 levels, in addition to a new proposal for sectoral bargaining which I will consider in a separate post. Here’s a brief summary of each level (some details left out to save space):
- Step 1: Workplace Monitors and Disciplinary Representation
In every workplace, workers would elect annually one or more representatives (depending on the size of the workplace) who can be employees or outside representatives. Employer interference is prohibited. Monitors are empowered to help enforce statutes and are entitled to paid time off to attend training and have access to company records to inspect compliance. Also, every employee would have a right to choose someone to accompany them to disciplinary meetings.
- Step 2: Works Councils
Whenever 3 or more employees so request, a works council will be created at a workplace and an election will be held to select employee representatives for 2-year terms. The works council will meet and confer with the employer on a variety of matters, including equity issues, work scheduling, job structures, safety, technology, compliance with laws, broader community needs, and “entrepreneurial decisions that impact the workforce”.
- Step 3: Minority (non-exclusive) Bargaining Rights
Whenever a union obtains at least 25% support in a workplace, it can obtain the legal right to bargain on behalf of its members. The usual duty to bargain in good faith would apply. Support would be proven by membership evidence confirmed by a neutral inspector. Collective agreements would apply only to union members, although the employer could incorporate terms into employment contracts of other employees. It would be unlawful for an employer to offer superior terms of employment to non-members with the “intent” of undermining the association. A minority union would have access rights to meet employees, and a right to appoint a member to the works council.
- Step 4: Exclusive Majority Collective Bargaining
Once a union obtains greater than 50% support, it would obtain exclusive bargaining rights for the entire workforce. A majority union would replace any existing minority union and become the exclusive bargaining representative. Works councils would continue to exist, but would not consult management on mandatory subjects of collective bargaining.
Canadian Proposals for Graduated Collective Labour Rights
The idea of graduated collective labour rights is not new. It has been bandied about in various forms for many years on both sides of the border. In the U.S., the focus has been on the idea of minority collective bargaining. The NLRA in the U.S. already includes basic infrastructure to support non-majority collective bargaining. Section 7 of that statute protects a right of employees to act collectively in pursuit of work-related goals, including to strike, even when they are not represented by a certified, majority, exclusive trade union. However, the right to strike is limited insofar as the employer has a right to “permanently replace” lawful strikers in some circumstances, and there is no legally mandated duty on employer to bargain with a non-majority union. Therefore, proposals in the U.S. have usually focused on expanding the duty to bargain to minority unions (e.g. see here) and on beefing up the right to strike.
The idea of graduated collective representation has been considered in several articles by Canadian academics, including myself in a 2013 article entitled “Graduated Freedom of Association: Collective Voice Beyond the Wagner Model”. I argued that Canadian labour law should ensure that all workers have the practical means to exercise at least the minimum bundle of rights guaranteed by the Charter. That basic premise should be non-controversial, but the details of how to realize that goal probably are.
I proposed a model that would protect a right of workers to act in concert (similar to NLRA s. 7), including a right to come together as a collective to raise work related concerns with the employer, which would be legally required to engage in a meaningful dialogue with the employee association within the meaning ascribed to that term by the Supreme Court in Ontario v. Fraser. The model would operate alongside the Wagner Model, so that once a majority union were certified, traditional collective bargaining would begin. The minimum bundle of Charter rights now also includes a right to strike, and I have re-visited what that might mean to my proposal in a more recent article that is currently in peer review.
Professor Bernie Adell proposed a model of graduated representation in 1984that would, like my model, have recognized minority union collective bargaining as a complementto majority, exclusive bargaining. A union demonstrating support less than a majority could be certified and the employer ordered to bargain in good faith in a model of members only bargaining. If several minority unions existed, a council of unions could be established. In Bernie’s model, employees in a certified minority union would have a protected right to strike.
In 1994, Professor Mark Thompson floated the idea of “graduated representation” as an “alternative to the Wagner Model”rather than a complement to it. His model had 3 levels: (1) a right to information about matters that affect employees; (2) a right of consultation with the employer on specified subjects, such as redundancies, safety, and tech change; and (3) in addition to the rights in the first two levels, the employer would require “agreement” from an employee committee on certain key issues such as terminations for cause and major changes to work schedules. The different levels would be triggered by different percentages of employee support, such as 30 percent support for level 1, forty percent for level 2, and majority for level 3. The right to strike is not expressly addressed in Professor Thompson’s piece.
Professor Roy Adams has devoted much of his distinguished academic career arguing for models that would ensure workers have a right to collective bargaining and to strike when no one union is able to obtain majority support.
All of these Canadian proposals recognized that there were risks involved. Adell expressed concerns that minority bargaining could provide employees with both too much power (by permitting whipsawing) and too little power (through fragmentation). I noted that graduated collective rights could be the thin edge of the wedge towards dismantling of majority bargaining and that there were obvious power asymmetries involved. As well, there’s little reason to believe that employers will welcome additional collective bargaining requirements. These are serious concerns that need to be debated carefully.
The main arguments in favour of providing legal support for some form of graduated rights is that the Wagner Model has always and will always leave the majority of workers, including the most disadvantaged workers, without access to collective bargaining. There are other options available to address this challenge, including sectoral bargaining, but Harvard’s Clean Slate project has renewed the idea of graduated collective labour rights. It’s a discussion worth having in Canada as well.
David Doorey, “The Idea of Graduated Collective Labour Rights” Canadian Law of Work Forum (March 3 2020): https://lawofwork.ca/the-idea-of-graduated-collective-labour-rights/
