Ontario's labour plans and 'right to work' laws: Filled with truth, lies or just bullshit?

| October 22, 2013
Ontario's labour plans and 'right to work' laws: Filled with truth, lies or just bullshit?

Recently, the corporate lobby The Fraser Institute issued a "study" advocating that Canada follow low-wage American states like Mississippi and Alabama in passing a law allowing unionized employees to opt out of paying dues for services and benefits provided by a union. To justify this argument, the Institute made the peculiar claim that changing an obscure law on union dues collection would bring billions of dollars of new investment to Ontario! Wow, that’s one powerful little law!

Of course, that argument is complete "bullshit," in the Frankfurt sense.

Ontario labour laws and anti-union voices

Ontario law has never required employees to pay union dues. The requirement to pay dues is found in collective agreement clauses. It’s an outcome of free collective bargaining. Three laws influence the process by which a worker can be required to pay union dues.

The first (Section 47 of the Labour Relations Act) says that it's up to employees and the union to decide whether a union dues clause should be included in a collective agreement. If the employees want a union dues clause, then the employer can’t fight about it. That law was enacted in the 1980s by the Conservative Party to stop disruptive fights over union dues collection.

The second law (Section 44) requires that a collective agreement be ratified by a majority vote of employees. Therefore, like other provisions of the collective agreement -- wages, seniority, pensions, just cause protection -- a union dues clause exists because a majority of employees voted for it. Some employees might not want the dues clause, just as many employees object to this or that clause.

In a majority rules system, it’s impossible to make everyone happy all of the time. To protect against a tyranny of the majority, a third law (Section 74) imposes a duty on unions to represent all of the employees covered by a collective agreement equally, whether or not the employees are union members or supporters.

This model based on majority rules democracy dates to the 1940s. Employers accepted it because it reduces conflict, creates a barrier to collective bargaining by requiring that unions first obtain majority employee support and limits the number of unions that employers must deal with. Putting important decisions that affect all bargaining unit employees to a majority test also ensures that a minority of union members can’t impose their will on the majority of workers.

For this reason, anti-union voices in Canada are usually the strongest advocates of majority rules and mandatory employee votes in unionized workplaces. They usually argue for more votes, and talk incessantly about the need for more union "democracy." Whenever unions have argued that votes aren’t necessary, the anti-union voices chide, "What could be wrong with a democratic vote of employees?"

But sometimes employees vote for things the anti-union class doesn’t like, such as union dues payment clauses. That’s the trouble with democracy: you can’t ensure people will vote the way you want them to!

When that happens, worker democracy and the majority-rules system suddenly become "oppressive," say to the likes of The Fraser Institute and Conservatives.

It’s difficult to argue that majority-based democracy is a flawed model for making collective decisions, since it is the basis of our democratic system. We‘re all bound by rules we don’t like, enacted by governing political parties we didn’t vote for, occasionally disapprove of how our taxes are being spent --that’s the nature of a democracy.

Therefore, organizations that want to weaken unions turn to "economic" arguments to justify their attacks on democratic choices of workers. They argue that exempting union dues clauses from the normal democratic-based labour law model will create a tsunami of new jobs.

Why? The answer is that it will produce fewer or weaker unions and, inevitably, lower labour costs (wages and benefits), which Economics 101 texts tell us will create more jobs.

Advocates of these laws don’t explain the argument like this, of course.

"We need a law that produces crappy paying jobs" isn’t as catchy a slogan as, "we need a law that gives 'workers choice,'" so they use the latter.  

In the US, they call these laws "right to work" laws.  Martin Luther King famously denounced this as a 'false slogan,' noting that wherever the laws are passed wages are lower and civil rights weaker. The Fraser Institute and Conservatives are taking on Martin Luther King here!

The reason the Fraser Institute issued its "report" now is that Ontario and Federal Conservatives have plans to introduce the laws in Canada, for the first time ever. Tim Hudak blames labour funded anti-Tory ads for his humiliating defeat in the last provincial election.  His attempts to stop these ads through litigation were tossed by the courts, and so now he hopes to reduce union funds through labour law reform.  

The Fraser Institute is paid to lobby against unions and collective bargaining. By citing studies from American corporate lobby think tanks and cherry-picking from academic studies, it provides the "evidence" Conservatives need to sell the fiction that simply changing how unions collect their revenues can fundamentally alter the economic landscape of entire province.

The Bullshit of Labour Policy Debates

Distinguished Yale philosophy professor Harry Frankfurt explained in his classic booklet, On Bullshit, that "bullshit" isn’t the same thing as lying, though they can overlap. Bullshit is a statement passed-off as fact when in reality the speaker is indifferent to the truth.

According to Frankfurt, a bullshitter "does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose." This definition of ‘bullshit’ describes perfectly what the Fraser Institute is up to, along with the Ontario Conservative Party in their paper Paths to Prosperity in which they advocate the same "right to work" laws.

Non-partisan scholars who study union dues laws agree that it’s impossible to measure what effect those laws have on jurisdiction wide economic outcomes. Economies are far too complex to single out a single causal relationship like this, even using sophisticated statistical techniques.

Consider an example: say Oklahoma has three times as many baseball diamonds as Ontario, and that average wages are ten per cent higher in Ontario. Does that mean that having fewer baseball diamonds causes higher wages?  

That sounds silly, but the raw statistics could be used to justify a law to reduce the number of baseball diamonds. This is the sort of voodoo economics and legal reasoning that goes on in labour law debates these days.  

Since the public doesn’t understand methodologies used in economic studies, it’s easy for politicians to say: "studies show that reducing the number of baseball diamonds leads to better jobs."

Or, "studies show that banning union dues clauses creates jobs." That statement is technically true, as long as someone has written such a study. Enter the privately funded Fraser Institutes of the world. Their purpose is to produce those "studies," and without the irritation of having to subject their methodologies and reports to independent academic peer review.

A literature review done recently for the U.S. Senate of the relationship between union dues laws and economic performance concluded that there’s no conclusive evidence that union dues laws influence economic performance of states, and that debates about these laws are about politics and not empirical evidence.

And even if researchers could prove a causal link between the laws and economic outcomes in the U.S. (which they cannot), there’s no reason to believe that the same results would follow in Canada. Our system, history, values, legal structures, and practices are very different.

The real unstated intention of the Conservative’s attack on union dues clauses is to weaken a perceived political foe, trade unions, by making it more difficult for them to collect revenues. The "economic" claim that banning union dues clauses will fundamentally alter Ontario’s economy is just a smokescreen. This is exactly what Frankfurt meant when he spoke of "bullshit" in public policy discourse.

The Ontario Conservative Party’s "Bullshit"

Tim Hudak’s Path to Prosperity paper is full of "bullshit." There are some factual claims in there that may or may not be true, but then the Party makes completely unsubstantiated claims about them that have no basis in reality.

Here’s one example:

Over the last decade, more than five million Americans have moved from states where union financial support is mandatory to states where it is voluntary.

See what they did there? They want the reader to infer that population migration and union dues laws are related!

It may be true that five million Americans moved as they claim. But it’s ludicrous to suggest that, in a country where about 92 per cent of workers are non-union, they did so because of some obscure law regulating union dues applicable to the other eight per cent. To suggest a direct link between these two unrelated events is like making a link between the quantity of baseball diamonds and wage rates. It’s complete "bullshit," in the Frankfurter sense.

Here’s another example:

Numerous economic reports and academic studies confirm that such reforms boost economic performance across every indicator, from job creation to economic growth to standard of living to new business openings to shareholder investment.

Here the Tories suggest that banning union dues contract clauses will miraculously lead to higher wages and more jobs.  That argument runs counter to the usual Tory claim that higher wages lead to fewer jobs.  

Now the Tories are telling us that employers will rush to Ontario and pay higher wages than now, raising the standard of living of Ontarians, if only our laws did not permit union dues clauses to be put to a democratic majority vote of employees. The argument is that workplace democracy in the form of collective agreement ratification votes is crushing Ontario’s economy.

The simple fact that earnings of workers in non "right to work" U.S. states are nearly 17 per cent higher makes you scratch your head at the Conservative claim that their proposed law banning union dues clauses will raise the standard of living in Ontario.  The list of U.S. states with these laws includes many of the poorest, lowest wage, least prosperous states in America. The Tories and the Fraser Institute ignore this key fact because it doesn’t fit with the "bullshit" narrative they are selling the public.

David Doorey is a professor of labour and employment law at York University and Director of Osgoode Hall Law School’s executive LLM program in labour and employment law.  

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