© 2005  Karen Selick
Visions of Unions Dance in My Head
An edited version of this article first appeared in the April 2005 issue of Canadian Lawyer.
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Visions of Unions Dance in My Head

 Wal-Mart’s decision to close its unionized store in Jonquiere, Quebec brought howls of anguish from the union, the United Food and Commercial Workers (UFCW). Although Wal-Mart said the store would close because it was unprofitable, the union read more into it, alleging: “Wal-Mart made a business decision that the cost of disposing of 200 men and women in Jonquiere was a good long term investment in creating fear in the rest of their employees across Canada and the United States.

"Wal-Mart,” the union continued, “never had any intention of reaching a collective agreement.  Wal-Mart made its decision to close the store months before we sat down at the table with them.  They made the decision the day the labour board certified the union. Everything since then has been a charade.”

I think the union may well be correct about Wal-Mart’s reasoning and the timing of its decision.  The part I don’t understand is UFCW’s insinuation that Wal-Mart’s conduct is evil. Wal-Mart doesn’t owe jobs to those 200 people in Jonquiere, any more than the people of Jonquiere owe it to Wal-Mart to work for them or shop at their store.

In my view what’s evil is that Wal-Mart had no practical alternative under today’s labour legislation but to engage in this kind of charade.  I think Wal-Mart should have been free to announce, on the day it first got wind that the union was trying to organize its employees, that it would never agree to bargain with a union and that it would close any store where employees voted one in.

But somewhere along the way, a public perception has developed that unions are the underdogs, protecting the little guy against employers with vast exploitative power.  Actually, that’s backwards. The entity that has the real power--the legal use of weapons, the legal ability to imprison people, the legal power to seize property and to force everyone to do as it says--is the government. And when it comes to labour law, the government is every union’s henchman, standing menacingly in the wings waiting to bludgeon employers into submission with coercive laws, regulations and policies.

For instance, governments compel employers to bargain with a union once it has been “certified”, instead of simply ignoring it.  Employers are forbidden to bargain directly with those employees who voted against the union, or with some other union that the employer finds more palatable.  In many jurisdictions, governments impose closed shop laws, preventing employers from hiring non-union employees.  In some jurisdictions, governments prevent the hiring of replacement workers during strikes.  Governments prevent employers from rewarding deserving employees with wage raises during the certification or contract negotiation processes.  Governments in Canada compel employers to deduct union dues from the wages of non-union employees.  And if an employer is found guilty of an “unfair labour practice”, governments can impose a union on the business, even if employees vote against it. 

This is what happened to Wal-Mart in 1997 when the United Steelworkers was attempting to unionize its Windsor, Ontario store.  Asked by employees whether it would close the store if unionized, store officials refused to answer.  The union persuaded the Labor Relations Board that Wal-Mart’s silence was equivalent to a threat.  The Board therefore certified the union despite employees having voted 151-43 against.  In the bizarre, coercive world of labour law, even silence can be held against you.

What would happen if there were no such laws handing unions these massive powers?  Under today’s warfare paradigm, where unions approach employers as enemies to be perpetually fought,  the unions would be severely, perhaps fatally, weakened.  Without government-enforced coercion behind them, the only thing unions have to offer to employers is something negative—the threat that their members will withdraw their services en masse (i.e. strike or quit). 

In the absence of labour legislation, employers would be inconvenienced by a mass walkout, but few would be mortally wounded.  They’d simply hire new non-union work crews and carry on.  In jobs requiring a lot of training, or some other extraordinary characteristic (for instance, spatial skills and decisiveness for air traffic controllers or good balance for high steel workers), the cost of finding and training suitable replacement workers might exceed the cost of giving the union the concessions it was seeking.  In those few cases, unions might survive.  However, it takes no special talent and very little training to be a Wal-Mart cashier or a burger flipper.  Such employees could be easily replaced, making their unions toothless tigers. 

Unions might then have to start thinking about ways to offer employers something positive, instead of something negative—something to make dealing with the union a win-win, rather than a win-lose, experience.  Unions might actually have to compete with each other to offer the best work crews.  They’d tell employers:  Deal exclusively with us and we’ll supply you with a pre-screened work force that’s better educated, more reliable, more honest, more punctual and more productive than our competitors’ crew.  In effect, unions would become sort of wholesale employment agencies, offering groups of employees for hire rather than individuals.  

What a delightful vision—workers and employers working together to make bigger pies instead of perpetually warring over how to slice the present pie, with large portions being gobbled up by the unions.  It should be enough to make lawmakers reconsider their existing, lop-sided, counter-productive labour laws. 


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May 23, 2005