The Acquisition and Termination of Bargaining Rights

Chapter : The Acquisition and Termination of
Bargaining Rights
Before the advent of modern collective bargaining legislation, workers and trade unions had to
rely on economic sanctions to induce employers to engage in collective bargaining. Some of
the most bitter strikes in North American labour history were fought more for trade union rec-
ognition than over demands for improvements in terms and conditions of employment. In fact,
labour relations legislation was mainly introduced to remedy the problem of union recognition.
As has been noted in earlier chapters, the current North American system of labour law,
often known as the Wagner Act model, was created in the s in the United States and
was adopted across Canada in the aftermath of World War II. In every Canadian jurisdiction,
there is a statutory procedure known as certication, which allows a union, upon proving
that it has majority support among a unit of employees, to become the exclusive bargaining
agent for those employees and to compel their employer to bargain with it on their behalf.
These principles of majority rule and exclusivity of bargaining rights are central to the
Wagner Act model. They are closely related; exclusivity is justied by the fact that the union
has demonstrated that it has the support of a majority of the employees, as well as by the
assumption that it is generally to the advantage of all parties to have one clearly identied
interlocutor on the employee side.
An alternative but less common route allows a union to be “voluntarily recognized” by
the employer as the exclusive bargaining agent for its employees. In either case, the union
is prohibited from exercising economic sanctions in its eorts to acquire bargaining rights.
And in either case, it becomes the bargaining agent for all of the employees in the unit,
including the minority who did not support certication.
The Wagner Act model was designed to reect the economic and industrial relations real-
ities of what is sometimes called its golden age — from the s to the s. It was created
with large and stable manufacturers in mind, such as Ford and General Motors, and on the
assumption that once workers were unionized, they would be able to bargain on a more or
less equal footing with their powerful employers. As the following extract explains, some
aspects of the Wagner Act model are unique to North America.
Roy Adams, “Union Certication as an Instrument of Labor Policy: A Comparative Perspective”
in Sheldon Friedman et al, eds, Restoring the Promise of American Labor Law (Ithaca: ILR Press,
Cornell University, )  at –
In comparative perspective, the North American practice of union certication is very
unusual. Generally, other countries do not divide the labor force into tiny bargaining units
and do not require representatives of employee interests to win the support of the majority
of employees in each microunit to acquire government support for recognition. . . .
When the World War I period dawned, a broad consensus had emerged that all
employees should be able to participate in the making of the decisions under which they
labored. There was, however, no consensus on how that principle should be put into
practice. The dominant position among employers was that there should be mechanisms
composed entirely of representatives chosen by and from enterprise employees rather
than from national unions. The justication was that ‘outside unions’ had no interest in
the welfare of the enterprise and thus were likely to have a disruptive eect on productiv-
ity and competitiveness. The solution oered by this group to the participation impera-
tive was the establishment voluntarily by companies of employee representation plans.
The compromise position worked out by the NWLB [National Wartime Labor Board]
for the contrary stances of labor and management was acceptable to the American Fed-
eration of Labor. The AFL felt condent that under a ‘true open shop’ system in which
employees were free to join or not join but in which employers did not discriminate
against those who became active in a union, the free and independent labor organiza-
tions would be able to convince the enfranchised employees to vote for union activists
and, by demonstrating their ability, attract most employees to their ranks. Employers
were not so condent of maintaining control of employment relations under such a
system and thus shortly made new demands. At its conference in October , the
National Industrial Conference Board (NICB) stated that its members would tolerate
what they called ‘cooperative representation’ (rather than collective bargaining) only if
the majority of employees entitled to vote requested such a system by voting in favor
of it in an election held on company premises. . . . In the s, when the rst National
Labor Board was established under the National Industrial Recovery Act, it drew upon
this experience to hold elections when the majority status of a bargaining agent was in
doubt. . . . Later, the majority principle was embedded in the Wagner Act. . . .
For the unions, certication results in compulsory collective bargaining, backed by a
government agency with powers to compel an intransigent employer to enter into nego-
tiations with a view toward signing a written collective agreement. Since achieving recog-
nition for the purposes of collective bargaining is extremely dicult even with the aid of
a government agency with substantial enforcement powers, without the aid of such an
agency it would no doubt be much more dicult. Since certication leads to legal orders
requiring reluctant employers to enter into negotiations, it is generally looked on as a
pro-union policy invention. As noted above, however, it was rst called for by employer
spokespeople and for good reason. From the point of view of the nonunion employer
seeking to maintain the status quo, certication has some outstanding positive traits.
First of all, American policy as it has evolved to the present permits the employer to
contest employee representation campaigns. . . .
A second major positive aspect of certication from the position of the nonunion
employer is that it has entirely dissipated the pressure that existed during the rst
four decades of the twentieth century for the general enfranchisement of the indus-
trial citizenry. As it has evolved in the United States, certication legitimizes industrial
autocracy. Because employees have a means to establish collective bargaining through
The Wagner Act Mode l and the Principle of Exclusivity | :
an electoral process, noncertied employers are considered entirely justied in refus-
ing to recognize and deal with independent unions representing a minority of their
employees. . . .
Not only are employers permitted to attempt to maintain unilateral control over the
establishment of terms and conditions of employment, they are also forbidden from
establishing employee representation plans voluntarily. Their alternative to collective
bargaining with independent unions as a means of establishing industrial democracy
has been outlawed. The unions successfully argued in the s that such plans gen-
erally did not provide for genuine employee representation but instead were used by
employers to avoid dealing with organizations freely chosen by the employees them-
selves. To remove that blockage on the road to real joint regulation of the conditions
of work, the Wagner Act outlawed company unions. . . . Because of this development,
employers have been eectively relieved of the duty resting upon them earlier in the
century to address the democratic void in industry positively.
The result of this evolution is that, in the United States today, only a small and dimin-
ishing part of the labor force has in place institutions that allow employees to inuence
the conditions under which they work. Four out of ve American employees have their
conditions of employment established within a system of industrial autocracy.
[Copyright ©  by Cornell University. Used by permission of the publisher, Cornell
University Press.]
* * * * *
In recent decades, the feasibility of the Wagner Act model for acquiring bargaining rights has
been called into question due to various characteristics of the modern economy, such as
increased globalization of the economy, and widespread organizational “ssuring.” As one
reads this chapter’s discussion of how the Canadian variant of the Wagner Act model works
and how it might be changed, bear in mind the following two excerpts in order to consider
how globalization and organizational ssuring have each aected the distribution of power
among rms, workers, unions, and governments, particularly insofar as these phenomena
have occurred while a Canadian version of the Wagner Act model has been in eect.
Harry Arthurs, “Reinventing Labor Law for the Global Economy” () Berkeley Journal of
Employment & Labor Law  at –
[G]lobalization has changed the eect of the law by placing groups of workers in dier-
ent jurisdictions in competition with each other. Employers now have a choice and
are perceived to have a choice between producing in their own countries using local
workers and local suppliers, shifting production o-shore to foreign workers and sub-
sidiaries, or out-sourcing production altogether to foreign suppliers and subcontractors.
Indeed, thanks to technology, service functions such as data entry and call centers are
even more easily moved oshore than production functions. Thus workers across the
globe are eectively forced to compete for jobs: they must underbid their rivals in other
countries by promising not only to be more productive, but to work harder and more
cheaply and to be less assertive about their rights.

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