What is the purpose of the laws that regulate the relationship between businesses and workers and in whose interests were these laws enacted to serve? If these questions don’t appear all that interesting give me a few more sentences of your attention to pitch why you should care about the answers.
We currently live in an economic system where the vast majority of people have two options, they either starve in the street or attempt to sell their potential to work on the market. The latter means entering into an employment contract with a private business or a public employer (school board, hospital, crown corp etc). In return for a wage, these contracts impose a legal obligation to “obey the proper orders of the master” and gives employers the right to sell the product their workers produce for more money than they paid the workers to produce it.
In other words most people are given a choice between starvation on one hand – domination and exploitation on the other.
Today we refer to the laws that regulate the economic and contractual relationship between individual workers and owners employment law. However Canadian courts will occasionally refer to this area of law by its older, more descriptive title: The law of master and servant. This description paints a more accurate picture of the legally enshrined power relationship between the people who own and control workplaces and the people who have no realistic choice but to work in them. One class of person gives the orders and the other obeys and serves.
If that arrangement doesn’t sound particularly fair to you (it certainly doesn’t for me) then we need to seriously consider how to go about creating an alternative system. This is where the question of labour law comes in.
Strategically what is the best route forward to build a real alternative to the subjugation of servants to masters? Organize within the rules our existing labor relations regime to build union density? Organize electorally to reform those rules? Organize to strategically break them?
At this moment in history the left (broadly speaking) does not have the resources to pursue all of these strategies effectively at once. So in which basket should we place our proverbial eggs?
To have any hope of answering this question we need to understand how our existing labour relations regime functions; the balance of social forces that lead to its creation; and whose interests the regime primarily serves to protect.
The devil’s bargain: muzzling direct action for union security
In the 1940s Canada made significant changes to its master and servant labour relations regime. Faced with mounting labour militancy in the form of union organizing and strike action during wartime the Canadian state imported key elements of the US labour relations model created by the National Labor Relations Act (the Wanger Act) in 1935.
Specifically, it expanded pre-existing master and servant laws to regulate not only the contractual relationship between individual workers and businesses, but also the collective rights of workers to form unions and bargain agreements with their employers. As noted by the Supreme Court of Canada in 1957: “The collective agreement tells the employer on what terms he must in the future conduct his master and servant relations.”
Key features of the Wagner Model revolve around the principles of majoritarianism and exclusivity. If a union can prove that a majority of workers employed by a business want to join the union it can apply for a government certificate granting the union the exclusive right to represent all the employees of that business in negotiations with the employer.
In other words, workers gained access to the coercive powers of the state to force employers to recognize their unions and bargain only with them.
The import of the Wagner Model was certainly an improvement over treating unions as a criminal conspiracy which is historically how the Canadian state “regulated” union activity. After the importation of the Wagner Act model Canadian unionization rates more than doubled from approximately 16 % of the workforce in the early 1940s to 34% by the mid 1950s.
But why did the Canadian State enact these laws in the first place?
As Donald Wells persuasively argues in his article: Origins of Canada’s Wagner Model of Industrial Relations the import of the Wagner Model into Canada was not some magnamious act of provincial and federal legislatures but a patchwork concession to a militant labour movement that was disrupting production during wartime.
Power concedes nothing without a demand
As Wells notes the state’s goal in importing the Wagner Model was first and foremost industrial peace. The Canadian war effort and the businesses profiting from it required consistent production uninterrupted by labor disruptions. Between 1941-1943 a massive strike wave rolled through the Canadian economy with a third of unionized labor going on strike in 1943. Direct action in the form of work slow downs or wildcat strikes were the primary tool workers used to settle workplace disputes and to force employers to meet their demands.
While the strike wave was cresting the Cooperative Commonwealth Federation (CCF), with the support of the Canadian Congress of Labour, was the most popular party in Canada according to polling. In some provinces, such as Ontario, the CCF was just four seats shy of the reigning Convservative government.
With entire industries grinding to a halt through mass industrial action and a workers’ party threatening to win legislative power both the Liberals and the Conservatives promised some form of collective bargaining legislation in order to secure industrial peace and keep the CCF from forming government.
In 1944 the federal government enacted Order-in-Council PC 1003 which created a number of labour regulations that survive in some form across all Canadian provinces to this day:
- Mandatory arbitration during collective agreements with compulsory conciliation before legal strikes;
- The right to organize;
- Automatic certification if a union gained the majority in government supervised vote;
- the right to bargain collectively, and
- protection from certain unfair labour practices.
These rights were wrung from the clenched fist of the owning class and their electoral parties through a combination of rank-and-file militancy and electoral pressure from a workers’ party.
However, far from being a mere concession to workers the Wager Model also secured a crucial win for business owners: the imposition of mandatory arbitration of workplace disputes defused a politics of class mobilization on the shop floor by ensuring that workplace conflicts were no longer resolved by rank and file workers refusing to work until their demands were met. Instead these disputes were now to be resolved through formalized grievance procedures and adjudication by neutral arbitrators.
From class struggle to class snuggle
Far from undermining the master-servant relationship, the Wagner Model actually reinforced it in important ways. By imposing mandatory arbitration of workplace disputes the Canadian state ensured that the most important aspects of production would remain exclusively under employer control and would no longer be disrupted by their workers.
The underlying logic of the master and servant law remained the same: when unionized workers are given orders that are in breach of their collective agreements they are required to obey now and grieve later. As one arbitrator explained:
“an industrial plant is not a debating society. Its object is production. When a controversy arises, production cannot wait for exhaustion of the grievance procedure. While that procedure is being pursued, production must go on. And some one must have the authority to direct the manner in which it is to go on until the controversy is settled. That authority is vested in supervision.”
Further mechanisms to impose discipline on unruly workers were created by the arbitration decision of Justice Rand in 1946 which required Ford to deduct dues from all employees of their unionized workplace regardless of their membership in the Union. The Rand decision was seen as a major win by labour leaders because it created a base of financial independence and freed the union from having to continuously organize new members and collect dues.
However, as Justice Rand himself recognized, the union’s financial independence from its membership was traded for financial dependence on management. The union was now incentivized to keep all employees from disrupting production upon the threat of management withholding dues. Labour leaders at the time considered the increased union security well worth the cost.
Most important of all workers’ capacity to strike was severely restricted under this new regime. Workers were (and still to this day are) only permitted to legally strike once every few years when their contracts expire, negotiations break down and a government official is unable to mediate a settlement. Striking during the life of a collective agreement is strictly prohibited and severely enforced by provincial labour boards.
So in whose interests was this labour regime intended to serve? Wells makes a persuasive case that, from the point of view of the Canadian State, it was business owners that wanted industrial peace and that is exactly what the Wagner Model secured for them. Recent history has only driven this point home. After reaching a high of approximately 37% in 1975 union density in Canada steadily declined to around 31% today. This decline was mainly due to a plummet in the private sector density to a low of approximately 15%.
So if the trade off for accepting restrictions on rank and file direct action in the private sector was to attain a legally protected base of union security upon which to organize the broader economy then labour leaders in the 1940s appear to have signed a devil’s bargain. According to Wells the Wagner Model acted as a kind of trojan horse that enticed the labour movement to open the gates to bureaucratic top down resolutions of workplace conflicts that ultimately undercut the rank and file militancy which was the true source of the labor movement’s power. By accepting the restrictions placed on rank and file direct action, labour leaders lost the only tool in their arsenal capable of responding to the structural changes to the economy that were to come in the form of off-shoring and the neoliberal turn in the 1980s.
The future of the Wagner Model
It is important to keep in mind that while the labour leaders had very real incentives to accept the framework imposed by the Wagner Model the move away from rank and file unionism was pre-determined by a choice.
People create their own history but not in conditions of their own choosing. Labour leaders chose to accept the trade-offs imposed by the Wagner Model as they appeared to be worth the cost given the material circumstances at that particular moment of history. The class compromise at the heart of the Wagner Model depends on a certain level of buy in from employers to maintain high levels domestic investment in production and to refrain from conducting scorched earth campaigns in response to unions organizing in their workplaces
In the face of the profitability crisis in the 1970s owners backed out of the deal and started to replace large scale domestic unionized production with international supply chains. While nothing in the Wagner Model prohibits owners from packing up an unionized shop and moving elsewhere in search of cheaper labour and greater profits (with the possible exception of closing shop during bargaining when a statutory freeze is in place), it does legally prohibit workers from using the only tool in their belts that could have brought employers back to the table: coordinated mass strike actions conducted during the life of collective agreements.
Despite these glaring flaws elements of the Wanger Model are worth salvaging.
Having recourse to some form of legally binding automatic certification and protection from unfair labour practices remain imperfect but useful tools for union organizing that workers can use to discipline obsentient employers resisting unionization. These are real wins secured in the 1940s and they should continue to be relied upon and expanded to other areas of struggle such as tenant unions.
However labour movement activists should re-evaluate the compromise at the heart of the Wagner model: the restriction on rank and file direct action. We all deserve to participate meaningfully in decisions that greatly impact our lives and to withdraw that participation without risking destitution or punishment. It is a travesty of justice for the state to continue to use its coercive powers to punish working people for relying on the only tools they have to effectively resist the domination and exploitation of their employers. In Ontario you can be fined up to $2,000 a day for simply advocating for an illegal strike if the labour board finds that as “probable and reasonable consequence” of your actions someone might actually walk off the job.
The compromise at the core of the Wagner Model has turned rotten. Only an organized and militant rank and file can defend the best of the Wagner Model rights, while building the power to overcome its limitations. The right to strike and organize is not a right given to us in law, it is a right that rank and file workers exercise every time they go on a picket line, whether it is recognized by the law or not.
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