President's Commentary: U.S. and Canadian Supreme Courts take different views on labour rights | National Union of Public and General Employees

President's Commentary: U.S. and Canadian Supreme Courts take different views on labour rights

“The U.S. Supreme Court decision is disturbing to both U.S. and Canadian workers. It gives further fodder to those anti-union corporate extremists and right-wing politicians on both sides of the border to continue their ongoing assault on labour rights and the ability of unions to effectively represent working people.”

Ottawa (08 July 2014) – The growing number of us who are worried about rising income inequality had much to celebrate last week: Canada's Supreme Court ruled that Walmart broke the law when it shuttered a store in Quebec simply because workers there joined a union. The ruling shores up our labour rights which are crucial to keeping too much wealth and power from pooling dangerously in the hands of the few.

But in the very same week, a chilling reminder came from south of the border of just how fleeting labour rights can be in a country gripped by rising income inequality. The U.S. Supreme Court, loaded with judges appointed by Reagan and the Bushes, dealt a devastating blow to workers and the unions they form.

First, however, the celebration.

Supreme Court of Canada rules that Walmart violated labour law by closing its Jonquière store after workers voted to join a union

After a 10-year legal battle, Canada's Supreme Court said that a corporation can't simply shut down a store because its workers there form a union. The store in question, a Walmart that opened in 2001 in Jonquière, QC, employed almost 200 workers. In 2004, those workers joined the United Food and Commercial Workers (UFCW Canada), making history as the first Walmart “associates” to overcome the corporation's well-documented anti-union tactics and actually form a collective bargaining unit. The following year, just as the first collective agreement was going to arbitration, Walmart closed the store.

Despite clear evidence that the store was performing well (its employees were even offered pay bonuses), Walmart argued it closed the store not because its employees had joined a union, but for business reasons. It was a galling assertion and, last week, Canada's Supreme Court rejected it outright, affirming the arbitrator's original ruling that no reasonable employer would have closed that store for business reasons.

In its 5-2 decision Canada's Supreme Court ruled Walmart broke Section 59 of the Quebec Labour Code which states an employer can not change its workers’ conditions of employment, without the union’s consent while a first collective agreement is being negotiated. Closing the store and cancelling contracts, the Supreme Court ruled, amounted to an illegal change of working conditions and sent the case back to the arbitrator to award remedy to the 190 workers affected.

Right of association is protected under Quebec labour law to facilitate unionization and ensure parties bargain in good faith

“The true function of section 59 is to foster the exercise of the right of association," wrote Justice Louis LeBel in the ruling. "Its purpose to circumscribing the employer's powers is not merely to strike a balance or maintain the status quo during the negotiation of a collective agreement, but it is more precisely to facilitate certification and ensure that the parties bargain in good faith."

A former management-side labour lawyer, LeBel spent much of his career negotiating hard against unions, but he nevertheless understands the crucial importance of unions to any country. In a 2001 ruling that also bolstered our labour rights, LeBel wrote, “Democracy is not primarily about withdrawal, but fundamentally about participation in the life and management of democratic institutions like unions.”

LeBel will be retiring soon from the Canadian Supreme Court. You can bet the corporations and the wealthy are urging the federal government to replace him with a judge more likely to rule in favour of the privileged few.

Which brings us to the blow delivered to our American brothers and sisters last week by their Supreme Court.

U.S. unions must bargain and represent home care workers but workers not obligated to pay union dues

By a 5-4 vote, the U.S. top justices ruled in Harris v. Quinn that home health care workers in Illinois don’t have to pay dues to a union that must nevertheless bargain and advocate for them.

Illinois is one of 26 states that require public-sector workers — such as government employees, health care employees and teachers — to pay partial dues to unions that negotiate their contracts and represent them in grievances. These dues, often known as “agency fees", are required to be paid, even if the worker objects to the union’s advocacy work.

The other 24 U.S. states have laws known by the misleading “right to work” name that prevents unions from negotiating union security clauses that require all workers who receive the benefits of a collective bargaining agreement to pay union dues to cover the costs of representing them.

Labour laws in all Canadian jurisdictions are similar to Illinois law in that they provide similar protections to unions. Commonly know in Canada as the “Rand Formula,” it requires all workers covered by a collective agreement to pay union dues, even if they choose not to be members of the union. This prevents “free riders”, or workers who would benefit from the activities of the union, but do not want to pay union dues.

U.S. Supreme Court upheld ruling allowing workers union representation without paying for it

The plaintiffs in the U.S. case were hoping the U.S. Supreme Court would overturn its 1977 Abood v. Detroit Board of Education decision which declared that government employees can be required to pay dues to unions for representing them and administering their contracts, even if they refuse to be a member of the union.

The court did not overrule Abood. It held that since the plaintiff, Pamela Harris, and other home care workers were not full-fledged public employees they could not be forced to pay dues to the public employees union they belonged to.

The U.S. Supreme Court did not strike down agency-fee arrangements for all public employees, as the plaintiff had requested. And as unions feared, the decision makes clear that such fees now rest on shaky constitutional ground in the U.S., at least in the public sector, and are vulnerable to broader attack in the future.

We must redouble efforts to fight the assault on union members and labour rights to ensure economic equality for all 

It gives further fodder to those anti-union corporate extremists and right-wing politicians on both sides of the border to continue their ongoing assault on labour rights and the ability of unions to effectively represent working people. Their objective is clear, they want to weaken unions to a point when we can no longer provide a real democratic counterweight to the growing power of corporations and the super wealthy.

If we are ever to have success in closing the growing income inequality gap, we will need to redouble our efforts in fighting back against assault on our labour rights. Why? Because unions matter. They play an integral role in achieving fairness, social justice, and greater economic equality, not just for our members, but for society in general.

In solidarity, 

James Clancy
NUPGE National President


James Clancy is the National President of the National Union of Public and General Employees (NUPGE), one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE