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"On Unions."

In an address before the Harvard union, in 1925, William Green, president of the American Federation of Labour, said, "The union itself is an elemental response to the human instinct for group action problems."1 With this statement one cannot argue; there are numerous groups in society, ranging from cub packs to political parties, all perfectly legitimate; until, of course, they proceed to "advance" their cause at the expense of others outside of their group.2 It is submitted that the "advances" achieved for the membership of unions are often done at the expense of the non-unionized, those of us outside of these organized groups, the majority of us.

The common wages of labour are determined, like the negotiations to any contract, by two sides. On the one side, a workman; on the other, a person who desires work to be done. Both come together on a voluntarily basis and a price, a wage, is worked out. The interests of these two parties are by no means the same. There is a natural tendency, as Adam Smith was to observe many years ago, for employers and for employees to form up into separate groups. One interested in raising, the other in lowering the wages of labour. Smith was of the view that the person doing the hiring was at an advantage. Smith outlined a situation -- rare today -- where there existed short-sighted employers and downtrodden employees. And, it is on this primitive basis that the justification of unions stands. In the days of Adam Smith there was but a need for "dirt labour." That is not the case these days. Mostly, there exists a need, a demand for skilled and intelligent workers. Both sides in the labour market3 (these days much more highly developed), too, are subject to a highly developed common law in the area of employer/employee relations.

Collective bargaining, in labour relations, is a procedure whereby an employer agrees to discuss working conditions by bargaining with a representative of the effected employees, usually a labour union.4 First developed in Britain in the 19th century, the process is now accepted in most Western industrialized countries as the basic method of settling disputes about wages, hours, job security, and other matters. It is governed by the procedures laid out in the labour law passed by the governing legislature. It is a process which might be assisted by labour mediation, the mediator being a neutral third party who endeavors to bring the two sides together. Arbitration is a last resort, implying the need for a third party to resolve the dispute and impose a decision on both sides. Sometimes called binding arbitration, it may be compelled by the government, as in Canada, Italy, or Britain, or it may be called for by voluntary agreement, as is often the case in the U.S.

Rarely do governments get themselves directly involved where a labour dispute erupts. Both at the provincial level and at the federal level, the legislation sets up a Labour Relations Board, which is meant to be an independent agency of the government. The mandate of these boards determine proper bargaining units, conducts elections for union representation, and takes action aimed at preventing, and where appropriate provide a remedy where an unfair labour practice has been determined to have taken place.

The question comes to be raised -- Who is to take care of the worker? The worker, himself? The government? The union?

Two-thirds of the labour force in Canada is not unionized.5 Thus it is expected that most individual workers are to take care of themselves. And, under the established law: they might well do that quite effectively by turning, not to government, but to the common law. The law has developed such that it looks down very favourably on the employee.6 Given our free market economy (the only one that works) an employee has no right to a job (despite the gibberish to the contrary); he does, however, have a right to fair treatment at the hands of his employer.

Government cannot help, but rather yet aggravates, when there is conflict. Legislation, no matter the form, will not resolve matters; the best it can do is to put the parties off balance for a period of time: they will soon be at one another's throats again, legislation, or no. Generally it is best to leave the parties to sort out their difficulties with one another, always, of course, within legal limits. The common law, as I have already pointed out, will come to the aid of people in most all situations. People, by the common law, no matter the position they hold in society, are obliged under it to treat those they deal with fairly; to wilfully oppress another will lead to criminal (time in jail) and/or civil (read cost them money) consequences. Usually, with these consequences in view, people will shortly get down to the business of settling their differences.7

And, as for unions, my principal topic: if the reason for the existence of unions is to gang up on despicable employers, then maybe unions have a place only where government is not involved in the regulation of that activity, which in our collectivist society would not leave much room for unions. The fact is that the great union leaders of the past, cast a wide role for unions: "... shorter hours, a better system of distributed employment, better homes for the underprivileged, social security for the aged, a fairer distribution of the national income ... the workers ... want a voice in the determination of these objectives of social justice."8 Well there are those that might well want to bless Mr. Lewis, but I would have thought that we all should have a voice in regard to these great political objectives, -- as citizens, not as members of some minor group within society. Lewis continues in his speech saying that while the voice of labour should be insistent upon its rights, it "should not be annoying to the ears of justice nor offensive to the conscience of the American people." Hear! Hear! - We can all go along with that, but what has been the reality.

Because we allow employees to group, to form a combine, something long forbidden by law, and something which employers cannot do; we, the rest of us, are often held hostage to their economic power to tie up sections of the economy.9 The power of unions to combine and strike, which was a power given to them long ago by government fiat, during a different social age, is out of all proportion for the need of it. As a self employed person, I might declare a strike tomorrow and simply starve myself to death, -- why should less than 20% of the working population10 be in such a better position than the rest of us.

What is a union but a combination of persons in furtherance of their own interests. What is it but a political group which the government has looked down on, in favour. What is it but a privileged bunch with a "right" given by the rest of us, to combine and act in concert against the rest of us.



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NOTES:

1 The World's Great Speeches (New York: Book League, 1942).

2 Make no mistake, unions have been given a privileged spot in our society and many of the old fashioned union leaders knew it. That is why (certainly in the U.S.) they so often, have wrapped themselves up in the national flag. There was a time, when they were ever so patriotic: loyal to their country and the country's government.

3 An employer who is in the market for the longer haul is not only interested in getting "good employees" but also he is interested in keeping them -- turnover is expensive.

4 When laws were passed allowing combines, unions, which prior to that time were illegal, as most all combines are, yet, today -- it is easy to see, that unthinking and/or self-serving people, through demagoguery, could whip people up, and, in the process (fighting a mythical force) serve, not the ends they espouse, but rather serve their own goals of achieving power and control.

5 In the U.S., trade-union membership hit its highest peak of 35.5% in 1945; in 1970 it was 23.6% of the total nonagricultural work force. (Current statistics do not readily come to hand, but, I suspect that the rate is now below 20%.)

6 It is an area that I deal with in my professional pages on the law, "Wrongful Dismissal."

7 I do not mean to leave the impression that there is no role for legislation in respect to the work place. Basic standards for health and safety are likely a good thing: provided these standards are enforced; and, the government's record in that regard is a dismal failure, witness the terrible mining disasters that we have had here in Nova Scotia. Minimum wage legislation does not work. It merely sets a low line for employers and has the opposite effect to that intended. Worker's compensation schemes, publicly funded and publicly administered, are also a disaster. It might be better if some of the funds, spent on the bureaucracy, a huge share, was instead spent, in setting and enforcing safety standards in the work place. The principal problem, incidently, to the government run worker's compensation schemes, is that, in order to give the Bureaucracy a safe preserve, the legislation by a specific provision shuts out the common law right that an employee would otherwise have against his negligent employer.

8 From an address given by John L. Lewis, 1937, see Great Speeches, op. cit.

9 The matter, in time, is self correcting. There will be no jobs at all when an employer, or industry goes bankrupt; this economic reality serves as an automatic check to unions in the private sector; this check is not at work in the government sector. Public sector unions, half of the four million union members (in Canada), strike not against a particular sector; but, in fact against the rest of us. The government is not limited by the economic realities of the market; but, only, eventually, by the patience of the taxpayer. Incidently, strikes in the public service are not permitted in the U. S.; and, in the U. K., they have a "wage comparability board."

10 An indeterminable number, but I suspect many, would not be a union member if they had the choice. They are employed by an employer (government is an example) who is legally obliged to deduct at source and remit the money to the union, even though that union, as is usually the case, is involved in political activity of which certain of the members, obligatory members, disapprove. The most powerful vote, that of "walking away" is not something they have. In Canada, we have "The Rand Formula," an approach to fund union activity as was struck by a supreme court judge, after whom the arrangement is named. It means that each employee of an employer who is obliged to deal with a union, is obliged to make a payment to the union, whether the employee elects to be a member or not, of an amount equal to the membership dues, this, as a condition of employment. The amount is collected by payroll deduction and remitted to the union. It's an arrangement that ought to be challenged, once again, this time with constitutional arguments.

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2011

Peter Landry