A little Orwell with your union dues?

Karen Salick (Canadian Constitution Foundation) Winnipeg Free Press, December 9, 2010: 

Historically, labour unions have done a remarkable job of persuading the general public that unions toil for the benefit of the average worker.  But in a case currently unfolding in Alberta, a group of 29 average workers has rejected that thesis, and the union doesn’t like it.

The heretics are employees of Old Dutch Foods Ltd., a Canadian company that manufactures potato chips.  Unionized in 1971 by the United Food and Commercial Workers Union (UFCWU), the company has steadfastly refused to force its workers to join the union, or to contribute union dues.  In labour law parlance, the company has insisted on remaining an “open shop” and rejecting the so-called “Rand formula”.

The Rand formula requires all employees in a unionized workplace to pay union dues, even if they choose not to join the union.  It’s supposed to prevent workers from “free riding” on the union’s efforts to improve their lot.

Six provinces and the federal government have made the Rand formula mandatory through legislation.  Four provinces, including Alberta, have not.

Last year, the UFCWU took Old Dutch before the Alberta Labour Relations Board (ALRB) seeking a declaration that Alberta’s failure to incorporate the Rand formula into law violates the freedom of association guarantee in subsection 2(d) of the Canadian Charter of Rights and Freedoms.

In a ruling that stands the concept of freedom of association on its head, the ALRB granted the union’s request.

Alberta’s Attorney General is seeking judicial review of that decision.  Meanwhile, the 29 Old Dutch employees recently obtained party status in that proceeding.  The union was infuriated by this decision that will allow the workers to speak for themselves, and is appealing it—thereby corroborating the 29 employees’ concern that the union’s interests are incongruent with their own.  The appeal is scheduled for late January.

But on to the main issue:  freedom of association.  The Supreme Court of Canada has declared in previous cases that freedom of association under the Charter also includes the logical corollary: the freedom not to associate.

Faced with that case law, the ALRB nevertheless contrived to reach the astonishing conclusion that provincial legislatures are constitutionally compelled to force individual workers to either join unions or—tantamount to the same thing—pay union dues just as members do.   How’s that again?  Freedom is compulsion?  Orwell, anyone?

The decision meanders around through concepts of group rights and majoritarianism, eventually declaring that “the choice made by the majority of employees to have a bargaining agent” somehow trumps the choice of individuals not to have one.

But if the Charter guarantee of free association is to mean anything sensible at all, surely first and foremost it must guarantee the rights of individuals not to be compulsorily assimilated into larger groups merely by being outvoted.  After all, if two men corner a woman in a dark alley and force her to have sex with them because they, the majority, have voted in favour of it, that would still be rape, not the exercise of their group right to freedom of association.

The UFCWU argues that the law compels it to provide representation for all employees, even non-union members, so that’s why non-members should be compelled to pay union fees.  But this is merely an example of one bad law begetting another.  Instead of compounding past mistakes and granting the union’s request, the more logical course of action would be to repeal the union’s obligation to provide services for non-members.

Unions also argue that they need the Rand formula for “security” of revenues.  But the corporations with whom they bargain have no such security. They have to compete to win business, by devising attractive combinations of services and prices that will persuade customers to part voluntarily with their money.  Why shouldn’t unions have to do the same?

In 2006, the European Court of Human Rights declared mandatory union membership a violation of the freedom of association guaranteed by the European Convention on Human Rights.  Consequently, 47 European countries no longer have closed shop laws.  Another European court decision essentially prohibited unions from collecting fees from non-members if those fees were going to be used or capable of being used for political purposes.

Watching Canadian unions attempt to buck the European trend to greater employee freedom, one can’t help but conclude that the unions now exist in order to maintain their empires, rather than to serve the interests of the workers they are supposed to represent.

This article was excerpted from The Lawyers Weekly, published by LexisNexis Canada Inc.