Hudak’s 180 & the “Right-to-Work” roller coaster: A Two Part Series on Anti-Labour Legislation & Union Strategy

Part 1: “Right-to-Work” – A Political Backgrounder

By Andrew Stevens and Dave Bush

Introduction

Last week, Ontario Progressive Conservative leader, Tim Hudak, backtracked on his promise to end automatic union dues check-off, commonly referred to as “right-to-work” (RTW) legislation, if his party formed a government in the next provincial election. He made this announcement during a speech to the Toronto Region Board of Trade. Seeing this as a win for unions, Canadian Federation of Independent Business (CFIB) president, Dan Kelly tweeted that the decision marked a “bad day for democracy and human rights”. But Hudak followed with an ominous promise that the “[PC] agenda is a lot bigger, and a lot more ambitious, than [RTW]”.

What does this development mean for unions in Ontario and across Canada? The short answer: nothing. Unions and workers in Ontario know that Hudak, an alumnus of the Harris-era Common Sense Revolution, has already made organized labour and Ontario’s labour laws a whipping post for the next election. Consider that south of the border Wisconsin Governor Scott Walker successfully led a vicious attack on unions in that state without introducing RTW, with the exception of public sector employees who are permitted to opt out of paying union dues. There, public sector unions are required to recertify on an annual basis and, through Act 10 (“Budget Repair Bill”), they have lost the right to bargain for improvements to pensions, health and safety, hours of work, or sick leave. As Steven Greenhouse reports in The New York Times, Walker’s legislation has been nothing less than devastating for unions in that state. Hudak now alludes to something just as frightening for Ontario.

The limits of RTW

For all the rhetoric surrounding right-to-work (RTW) in Canada and the U.S., as a law RTW is incredibly simple and essentially means one thing: the prohibition of the right of employers, workers and their unions to negotiate “closed” or “union shop” clauses, as well as clauses that require employees to pay union dues. Workers and the general public need to be mindful of this fact. Decades of research confirms that RTW legislation does nothing to enhance worker voice or freedoms, but it does rob unions and employers of the right to bargaining certain provisions in a collective agreement.

So where does this term, “right-to-work” originate and why has it gained so much prominence in Canada as of late? But most importantly, what can unions learn from this history and how can they develop strategies to oppose broader anti-union campaigns?

In this two part series, Rankandfile.ca unpacks the origins of RTW and identifies this type of legislation as a label for anti-unionism. In the last two decades, conservative policy makers across Canada have backed away from RTW reforms while simultaneously amplifying their assault on unions. Hudak’s “retreat” is the last of many u-turns on “right-to-work”, but labour needs still to prepare for the looming alternatives.

Early beginnings

The term “right-to-work” has a very assuming origin. Writing in the Dallas Morning News in 1941, associate editor William Ruggles coined the term to protest closed shop provisions negotiated by media unions. Ruggles feared that the influential Newspaper Guild would force him to join the union as a condition of employment. dallasnewsAll workers, he argued, had the right to work regardless of union membership. Ruggles penned his editorial in the context of New Deal reforms under President Roosevelt, particularly the drafting of the National Labor Relations Act. The NLRA, or “Wagner Act”, institutionalized collective bargaining and introduced a modern industrial relations regime in the U.S. just as workers and unions were granted sweeping new rights. At the same time, businesses and state legislators feared what they perceived to be a form of American socialism brought about by the Roosevelt administration and saw the growing labour movement as a threat.

Ruggles’ editorial gained traction in the South and he used his article to motivate for a 22nd Constitutional amendment guaranteeing the right to work with or without union membership. Vance Muse, leader of the Christian American Association, championed “Right-to-Work” as a political slogan and campaigned for RTW legislation throughout the country. Muse, a hired gun for industry who used the language of “freedom” to wage a war against unions and the New Deal, was a long-time lobbyist for oil firms and drew considerable support from rural and small business interests in the South (Dixon 2007). Indeed, RTW campaigns are typically spearheaded by employer and business associations where unions are weak and union density is low.

The amendment never materialized, but in 1944 Arkansas and Florida enacted laws prohibiting agreements between trade unions and employers that made union membership and the payment of union dues compulsory. By 1947, Congress defied a Presidential veto and passed the Labor-Management Relations Act (“Taft-Hartley Act”, Section 14-B), putting an end to closed shops and granting states the right to enact legislation prohibiting collective agreements from including clauses requiring union membership or mandatory dues check-off. This is the blueprint for RTW legislation we see today.

Dues check-off in Canada: A political victory for unions?

Just as RTW legislation was spreading throughout the U.S., an opposite trend was unfolding in Canada. The historic 99 day strike at the Ford Windsor plant in 1945 resulted in the now famous award rendered by Supreme Court Justice, Ivan Rand. “Union security”, he wrote, “is simply security in the maintenance of the strength and integrity of the union”. There was nothing radical about Rand’s decision, as the automatic dues check-off system he mandated at Ford was not unlike the model already negotiated by the UAW at other plants in the U.S. The compromise in his decision was that the union would not be granted a union shop, but the employer was required to automatically remit membership dues to the union, and the purpose for which is what makes Rand’s decision worth citing:

The corollary from it is that labour unions should become strong in order to carry on the functions for which they are intended. This is machinery devised to adjust, toward an increasing harmony, the interests of capital, labour and public in the production of goods and services which our philosophy accepts as a part of the good life; it is to secure industrial civilization within a framework of a labour-employer constitutional law based on a rational economic and social doctrine. Its necessity arises from the actual implication of large scale industry in the life of labour and community and the mass of human relations thus created (Rand’s 1946 arbitration award).

In his award, Rand chastised Ford for treating its workers as a commodity but he also condemned the communist and radical elements of the UAW that played a role in the strike. Unions were obligated, for Rand, to function as a democracy, to hold strike votes, and to abide by the law. This was the framework of “responsible unionism” that struck a compromise between the interests of employers and organized labour. Most importantly, he recognized the social good of unions and saw them as a critical counterweight to the power of employers. By the early 1980s, the so-called “Rand Formula” was entrenched in labour legislation across all Canadian jurisdictions.

The Right organizes around RTW

Organized opposition to dues check-off gained momentum in Canada around the mid 1980s. For instance, the right-wing National Citizens Coalition (NCC) financed the case of an Ontario college instructor who challenged the right of his union to use dues for political activities. Ultimately the Supreme Court ruled in favor of the union in the landmark Lavigne v. OPSEU decision of 1991, upholding the constitutionality of the Rand Formula, dues check-off and union political expenditures.

By the mid-1990s, a more explicit RTW movement gained momentum in Western Canada. In 1995, the Alberta Legislature voted to convene a Joint Review Committee to look at the implications of RTW. Unions, labour relations experts, policy makers, and business groups all provided testimony and written submissions for consideration. The Committee’s final report recommended unanimously against the introduction of RTW in that province for a number of reasons, namely that there was no conclusive evidence that this type of legislation would have any effect on the number of work stoppages or Alberta’s overall economic competitiveness.

In neighbouring Saskatchewan, a Sask Party MLA introduced Bill 218 “An Act respecting the Right to Work (RTW) in the Province of Saskatchewan”  in 1998. Three years later, representatives from the U.S.-based RTW Employee Legal Defense Foundation made an appearance in the province after the SEIU organized workers at a DirecTel call centre in Saskatoon (Haiven 2003). Manitoba Premier Gary Filmon and the province’s labour minister, Vic Toews, introduced Bill 26 in 1996, which originally threatened automatic dues check-off. The Manitoba Federation of Labour attacked the legislation as RTW. In Ontario, RTW gained traction around the same time in right-wing political and media circles as the province’s unions and community organizations launched a series of one-day general strikes in a failed bid to halt Premier Harris’s sweeping legislative assaults on labour, women, the poor and the welfare state.

Finally, in 1999, the anti-union movement picked up steam with the formation of B.C.-based Labour Watch, headed by former Future Shop and Wendy’s manager, John Mortimer. Labour Watch’s board is populated by representatives from notoriously anti-union organizations like Merit Contractors Association, along with a handful of service-sector business associations. Mortimer boasts of his ability to keeping workplaces “union-free” through decertification (Labour Watch & National Right to Work). (Keep in mind that it is illegal / an unfair labour practice for managers to intervene or assist decertification efforts.) Modelled on the National Right-to-Work Committee in the U.S., Labour Watch was created to function as a representative of business interests but disguised as an workers’ rights organization. Fueled by corporate donations, Labour Watch has worked to shape public discourse around unions and organized labour, and has been instrumental in framing the “force union dues” narrative. Through public opinion polls and strategically published Labour Day reports, Labour Watch has provided considerable reference material for policy makers across Canada to use in their campaigns to shift the balance of labour law against unions and workers.

Fraser falls flat: The facts & fiction of RTW

Recently, Canada’s most prominent corporate-funded think tank, the Fraser Institute, published a report describing the positive effects “worker choice laws” would have in B.C. and Ontario. The Institute parrots much of the conclusions and methods deployed by its counterparts in the U.S., even though there is no solid evidence supporting the claim that RTW has any net benefit for an economy. In fact, research from as early as the 1950s shows little correlation between RTW and any economic effect, save for small, short-term variations in stock value. And this was only because of speculation that union density would be affected by the new legislation . A Fortune magazine report published in 1957 even showed that RTW laws had little effect on overall union strength, according to a poll it conducted with employers and union leaders. What we know is that wages and benefits are, on average, 16% lower in RTW states.

we align ourselves with prevailing suspicions that the battle for right-to-work laws is one of symbol rather than substance

Writing in the Journal of Political Economy in 1975, two scholars put it best when they concluded, “we align ourselves with prevailing suspicions that the battle for right-to-work laws is one of symbol rather than substance” (Peterson and Lumsden 1975). One of the most recent and authoritative backgrounders on RTW, published by the Congressional Research Service in the U.S., concludes that “there is no straightforward way to measure how RTW laws affect other outcomes”, such as employment and economic growth. In other words, it’s impossible to identify what differences between RTW and non-RTW states are attributable to respective union security laws, rather than labour force characteristics, industry makeup, tax policies, and other features of a particular jurisdiction. Even the Fraser Institute report agrees that “correlation is not causation” when it comes to drawing conclusions about the effects of RTW legislation on employment. The Institute also cites material as favourable to RTW when the original authors render contradictory findings!

So, when it comes to facts, the RTW proponents in Canada are running on empty. And, as findings since the 1970s have concluded, talk of right-to-work is more about shifting public opinion on unions than anything else. It’s also clear that the RTW movement is spearheaded by the business lobby and their supporters in the legislature. To this point it’s useful to unpacked the policy platform on labour law reform designed by Ontario’s Progressive Conservatives.

In part two of the series, we look at the development of anti-union policy in Ontario and discuss the implications for unions and union strategy.

 

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