Shall Wagnerism have no Dominion?

Labour (Committee on Canadian Labour History)

In June 2007 the Supreme Court of Canada held that the right to collective bargaining is a constitutionally protected under the Charter of Rights and Freedoms' guarantee of freedom of association. In so doing, they overruled a twenty-year old line of precedent that had rejected that very proposition. The court rested its current position of four grounds, one of which was that Canadian labour history supports the view that collective bargaining had become recognized as a fundamental right prior to the Charter. This article critically reviews the court's labour history and argues that it erroneously asserts that workers enjoyed a right to bargain that entailed a correlative duty on employers to negotiate in good faith prior to the passage of modern collective bargaining legislation during and in the aftermath of World War II. As well, it criticizes the court's method of selectively extracting passages from the work of labour historians while ignoring the critical insights ...

Law and History Review, 1994

Until recently, North American labor law historiography has been dominated by the view that the legal regime regulating trade unions and collective bargaining has passed through three stages of development: repression, toleration, and promotion. This evolutionary narrative served the function of justifying current collective bargaining schemes by showing them to be the progressive realization of political and industrial pluralism. Confidence in the narrative, however, is eroding. In part, this is fuelled by the crisis of the current collective bargaining regime. It no longer appears to be able to deliver the goods. Not coincidentally, critical scholars have also chosen this moment to scrutinize the Whiggish history produced by writers committed to the Wagner Act model and have found it wanting.

Windsor Yearbook of Access to Justice

In Health Services and Support – Facilities Subsector BargainingAssociation v. British Columbia, [2007] 2 S.C.R.391, the Supreme Court of Canada overturned precedent andconcluded “that the grounds advanced in the earlier decisions forthe exclusion of collective bargaining from the Charter’s protectionof freedom of association do not withstand principled scrutinyand should be rejected” (at para. 22). The author exploresthe Supreme Court of Canada’s change of heart and what thischange implies, not only for constitutional doctrine, but also forwhat the Court understands about the governance of the post-Fordist world of work. She situates the Court’s reasoning in afew key cases dealing with labour’s distinctive rights – to bargaincollectively and to strike – in the social context that both shapesthe legal discourse about labour rights and influences organizedlabour’s power. She considers the paradox of the Supreme Court’sembrace of Fordist labour rights in a post-Fordist economy, andsug...

Labour / Le Travail, 1996

A study of labour history through the prism of the law yields important insights on two of the debates raging within the discipline. The first is on the role of institutions and, in particular, the question of their autonomy and the extent to which the well-being of the labour movement is tied to a supportive state. The second is on the role of discourse and, in particular, legal discourse in setting up categories which delimit the realm of legitimate claims, organize those claims in particular ways, and privilege some claims over others.

Current Legal Problems, 2015

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Hofstra Labor and Employment Law Journal, 2005

All I am trying to do, and I think, you believe me when I say that, is to make the worker a free man to join any organization that he wishes to join and, at the same time, to have genuine collective bargaining. Statement made by Senator Robert Wagner to John Collins, a gasoline station attendant, April 1934' 1. NATIONAL LABOR RELATIONS BOARD, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT 1935, at 505 (1985) [hereinafter NLRA LEG. HIST.]. Collins worked for Sobol Bros., Inc., in New York City, which had an internal representation plan for its employees. Collins and several others testified favorably about the plan at the hearings on the Labor Disputes Bill, which Senator Wagner introduced on Mar. 1, 1934. Reprinted id. at 1-14. Collins had been elected as one of the representatives, and he told the committee that Sobol employees voted by a ratio of more than 10 to I to support the representation scheme. After questioning Collins, Wagner reassured him, "I agree with you absolutely that if this is the kind of an organization that the employees want, that is what I am for 100 percent." Id. Wagner then added the caveat that free choice also entailed "genuine collective bargaining." The incompatibility of workers' preferences for a company union and the institutional demands of a collective bargaining system explain why right to work legislation is an anomaly in labor law. 2. Richard B.

papers.ssrn.com

This paper looks at the "deep roots" of striking as a social practice in Canada, by providing an analytic framework for approaching the history of the right to strike, and then sketching the contours of that history. Focusing on the three key worker freedoms -to associate, to bargain collectively, and to strike -the authors trace the jural relations between workers, employers and the state through four successive regimes of industrial legality in Canada: master and servant; liberal voluntarism; industrial voluntarism; and industrial pluralism, the latter marked by the adoption of the Wagner Act model. On the basis of their review of those regimes, the authors argue that long before the modern scheme, workers enjoyed a virtually unlimited freedom to strike for collective bargaining purposes. Although governmentimposed restrictions on the freedom have increased significantly, especially under industrial pluralism, legislatures have typically provided workers with compensating trade-offs, including rights enforceable against their employers. However, in contrast to the historical pattern, publicsector workers have with growing frequency been subjected to "exceptionalism," i.e. the suspension or limitation of freedoms without a grant of compensatory rights. In the authors' view, it is the imposition of such measures that will likely provide the context for consideration of whether the Canadian Charter of Rights and Freedoms protects the right to strike.

(2017) 78 S.C.L.R. (2d) 379

How have the Supreme Court of Canada’s views on the relationship between the general law and collective labour relations regimes developed since its inception? That is the question that this article seeks to answer.

For the first twenty-five years after the Canadian Charter of Rights and Freedoms was enacted, it appeared that it would have little impact on Canadian labour laws. The Supreme Court of Canada took the view that the guarantee of freedom of association in the Charter did not include a right to strike and did not provide protection for collective bargaining. Common law rules regulating picketing did not come within the scope of the Charter’s rules on freedom of expression. Academic commentators were divided on whether this was a good or a bad thing, some espousing the hope that the Charter could be applied in pursuit of greater justice in the workplace while others were thankful that the courts were not interfering with legislative formulation of collective bargaining law and policy. Slowly, however, the courts have come to a different view of the Charter, finding that its values serve to provide protection for picketing, and in a sweeping revision of former jurisprudence in 2007 holding that the guarantee of freedom of association does provide protection for collective bargaining. This article describes the changing judicial views of the Charter through three distinct periods, each roughly a decade long: the formative period, the period of consolidation, and the period of re-assessment. It also traces some of the academic reaction to these developments. It concludes by an assessment of how trade unions are attempting to harness the changing view of the Charter to pursue a variety of challenges to the existing legislated collective bargaining schemes in Canada. In doing so, the paper uses the metaphor of the Charter as a cathedral, with the judges and academic commentators as artists painting a variety of views of the Cathedral. It is only through assessing the multiplicity of views that one can hope to achieve even a partial understanding of the Charter’s role in Canadian labour law. Pendant les vingt-cinq premières années qui ont suivi l’adoption de la Charte canadienne des droits et libertés, il a semblé qu’elle n’aurait que peu d’incidences sur les lois canadiennes sur le travail. La Cour suprême du Canada estimait que la garantie de liberté d’association prévue dans la Charte ne couvrait pas le droit de faire la grève et n’offrait pas de protection pour la négociation collective. Les règles de common law en matière de piquetage n’étaient pas visées par les dispositions de la Charte sur la liberté d’expression. Les observateurs du milieu universitaire étaient partagés sur la question de savoir s’il s’agissait d’une bonne ou d’une mauvaise chose; certains exprimaient l’espoir que la Charte puisse être appliquée dans la poursuite d’une meilleure justice en milieu de travail, d’autres étaient simplement reconnaissants que les tribunaux ne s’immiscent pas dans la formulation par le pouvoir législatif des lois et des politiques en matière de négociation collective. Les tribunaux en sont toutefois lentement venus à adopter une opinion différente de la Charte et ont conclu que ses valeurs servent à offrir une protection pour le piquetage, et en 2007, s’écartant remarquablement de la jurisprudence existante, ils ont conclu que la garantie de liberté d’association confère une protection pour la négociation collective.Cet article décrit l’évolution de la jurisprudence en ce qui a trait à la Charte pendant trois périodes, chacune étant à peu près d’une décennie : la période formative, la période de consolidation et la période de réévaluation. Il y est aussi question de la réaction de certains auteurs et observateurs à ces développements. L’article conclut sur une évaluation de la façon dont les syndicats tentent de profiter du changement de point de vue sur la Charte pour poursuivre diverses contestations des régimes de négociation collective qui existent actuellement au Canada. Ce faisant, l’article considère métaphoriquement la Charte comme une cathédrale, les juges et les observateurs du milieu universitaire étant des artistes qui en peignent chacun une vue différente. Ce n’est qu’en procédant à un examen de la multiplicité de vues que l’on peut espérer comprendre, ne fût-ce que partiellement, le rôle de la Charte en droit canadien du travail.

SAGE Open, 2016

In a series of recent cases involving the right to bargain collectively, the Supreme Court of Canada asserted that Wagner Act model, or a model of unionism which is both exclusive and majoritarian, need not be the only model available to workers in Canada (as is currently the case). Although the possible move away from Wagner Act unionism toward some form of minority unionism has received some support, this article argues that there are far too many dangers associated with minority unionism, namely, that it will be a corollary for right-to-work laws, will cause infighting between unions, and will divide and fragment workers’ sense of solidarity, and that the supposed benefits that may be attained through constitutionally protected minority unionism can, and should, be attained without it.