The note below is an abridged version of a weblog comment posted by Michael P. Fitzgibbon, a management-side Canadian labour lawyer in response to my oped piece in the Toronto Star. Also posted below is my response to Michael's reply.

February 18, 2005

A Reply to Professor Adams

Roy Adams, professor emeritus, DeGroote School of Business, at McMaster University, wrote an opinion piece in the Toronto Star setting out his take on Wal-Mart's alleged labour relations strategy.  The title of the article, Wal-Mart's Anti-Union Strategy , kind of gives it away.

Professor Adams makes some broad statements in this article and I would take issue with a number of them.  Among others that "[O]ur employment relations system is already among the least democratic in the developed world".   

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While I certainly respect, the views expressed by Professor Adams, I cannot accept the assertion that "[o]ur employment relations system is already among the least democratic in the developed world".  Maybe he has some objective support for that.  I am not aware of it.  To my mind, "democracy" entails majoritarism.  The majority wins, and how better to test the wishes of the masses than through a secret ballot vote?  In fact, the mandatory vote is based on the US principles contained in the National Labour Relations Act .

Professor Adams and I would agree that it is a fundamental right under the Labour Relations Act that:

Every person is free to join an employers' organization of the person's own choice and to participate in its lawful activities.

In fact, that's what section 5 of the Act says.

We would also agree, I'm certain, that employees are entitled to exercise that fundamental right free from any intimidation, coercion or undue influence by anyone.  That's exactly what the unfair labour practice provisions in the Labour Relations Act are designed to protect. 

Professor Adams then takes up a different theme:

Employers, in turn, have a responsibility to recognize and deal with those associations with a view toward working out amicably issues in dispute whether or not a majority of employees are members.

States may establish schemes for certifying exclusive agents but where there is no exclusive agent, the employer's duty is to recognize all legitimate employee associations. The proper behaviour for the responsible and ethical employer is to accept and work with employee associations, not to aggressively dissuade employees from exercising their basic human rights.

To be honest, I'm not entirely sure what he's getting at here.  I think what he's saying is that, even where you don't have a trade union (certified by the appropriate labour relations board), that the employer should, nevertheless, accept and work with an informal (or more formal) legitimate employee association as the representative of some group of employees.  Well, in Ontario, there is no such obligation.  Furthermore, how do we test the legitimacy of the association? 

Sometimes employers enter into voluntary recognition agreements with employee associations and are criticized by "real" unions for having entered into such "sweetheart arrangements".   In other words, the unions themselves question or challenge the legitimacy of the arrangement. 

Anyway, the article is an interesting read.  I certainly respect Professor Adams' views, as I understand them.  While I share some of the statements he makes, I certainly find myself opposed to a number of them. 

For example, I, for one,  do not know what Wal-Mart's labour relations strategy is, though, I suspect, that will become clear as the UFCW's inevitable litigation following the Jonquiere, Quebec store closure announcement makes its way through the appropriate judicial channels

Response to Michael Fitzgibbon posted March 3, 2005

Michael

The comments in my oped piece in the Toronto Star were grounded, not in Ontario statutory law, but rather in international human rights law (law that Canada has solemnly promised to abide by) and Canadian Constitutional law. International law regarding freedom of association and the right to organize and bargain collectively, permits states to establish systems such as ours for the certification of exclusive bargaining agents. It clearly specifies, however, that where there is no exclusive agent, the responsibility of employers is to deal with any and all leaders chosen by employees to represent their collective interests. This is a standard that is generally ignored in Canada but international developments such as the International Labour Organization's 1998 Declaration of Fundamental Principles and Rights at Work and the recent report by the UN's High Commissioner for Human Rights on the responsibilities of corporations make it almost inevitable that the standard will soon become more widely known and appreciated in North America.

In addition the Canadian Supreme Court recently issued its decision on Dunmore vs. Ontario. In that decision it established that all Canadian workers have a right to organize in their interests, to choose leaders, to develop a program and to make representations to their employer. The Court also strongly suggested that under such circumstances, employers had a duty to recognize and deal with such associations. The decision, as you no doubt know, dealt with agricultural workers in Ontario and, in response, the Ontario government introduced a statute that indeed did require employers to recognize and respond to representations made by associations of their employees even if those associations did not represent a majority of the relevant employees. I have argued, in an article published in Canadian Labour and Employment Law Journal, that all Canadian workers have the same constitutional rights.

With respect to the undemocratic nature of our employment relations system, as I pointed out in the oped piece, some 70% of Canadian working people are systemically excluded from collective employment decision making. When decisions are being made about their terms and conditions of work they have no representation. It is simply a matter of take what we have decided to give you or go elsewhere. Regulation without representation is a good definition, in my books, of undemocratic. As I noted in my Star article, the situation in Canada is extraordinary in international comparison. Throughout Europe there are representational schemes that cover the vast majority of working people.

In response to Wal-Mart's store closure, I circulated the letter below. It has now been signed by over 200 professors most of them expert in labour and human rights law and practice from institutions such as Harvard, Yale, Stanford, Oxford and Cambridge not to mention nearly all major Canadian universities.

We are very concerned about Wal-Mart's decision to close its store in Jonquiere, Quebec in the wake of its

employees' opting for unionization and collective bargaining. The right to unionize and bargain

collectively is not only a statutory right in Canada, but also a fundamental human right. Wal-Mart has a

well documented policy of discouraging its employees from exercising this fundamental right and in

frustrating its object when employees choose, nevertheless, to exercise it. We believe that respect for

human rights is fundamental to good corporate citizenship. In order to conform to international human rights standards, Wal-Mart must cease its active opposition to unionization and instead recognize and deal fairly with leaders freely chosen by its employees with a view towards working out, in good faith, mutually acceptable solutions to issues raised.

Sincerely,

Roy J. Adams

Professor Emeritus, McMaster University