The Individual Employee Under Collective Bargaining

Chapter 10: The Individual Employee under
Canadian labour relations law is wholly predicated on the twin concepts of majoritarianism
and exclusivity. Once a trade union proves that it enjoys majority support in a bargaining
unit, it becomes the exclusive bargaining agent for that unit, and no one else is allowed to
bargain on behalf of any of the employees in the unit. As we will see below, the same princi-
ple of exclusivity governs the carrying of grievances to arbitration. We will also see how the
law explicitly allows the negotiation and enforcement of union security provisions, including
those that require union membership as a condition of employment. All of these features
are based on the premise that trade unions need eective bargaining authority and a sub-
stantial degree of internal solidarity.
In principle, the individual employee’s freedom of choice is given legal expression only
through her vote for or against an applicant union. Once that vote and those of the other
members of the bargaining unit have determined that there will be a bargaining agent, indi-
vidual freedom is suspended for a substantial period. Majoritarianism, in other words, leads
to exclusivity. In incurring the obligation to bargain collectively, the employer acquires the
corresponding right to be confronted by only one adversary one that can speak for every
employee in the unit. Ever since they were rst established under the American National
Labor Relations Act,  USC §§ - () [Wagner Act], the twin pillars of majoritarianism
and exclusivity have been attacked by employers and by others who are opposed in princi-
ple to collective bargaining or who are concerned about what they perceive to be excessive
union power. Many of these attacks have been framed as defences of individual workers’
rights the “right to work,” for example. In reality, however, their main object has often
been to weaken the representation rights of unions and to dilute their strength.
In more recent years, some supporters of collective bargaining and trade unions have
increasingly been calling into question the principles of majoritarianism and exclusivity. (See,
for example, Roy J Adams, “A Pernicious Euphoria:  Years of Wagnerism in Canada” ()
Canadian Labour & Employment Law Journal .) These principles, the argument runs,
preclude the emergence (and the recognition by employers) of minority unions that seek to
organize only certain categories of employees in a particular workplace, or those that (for
one reason or another) are only able to obtain minority support — thereby making it impos-
sible for a group of workers to have a collective voice if they do not want majority representa-
tion or cannot persuade most of their co-workers to opt for it. This situation is claimed to
constitute a violation of employee freedom of association, contrary to section (d) of the
Canadian Charter of Rights and Freedoms — a claim which has been given fresh vigour by the
Introduction | :
Supreme Court of Canada’s reference to international labour law in Saskatchewan Federation
of Labour v Saskatchewan,  SCC , excerpted at length in Chapter . On this matter, Roy
Adams has argued the following in “Fraser v. Ontario and International Human Rights: A
Comment” ()  Canadian Labour & Employment Law Journal  at –:
One of the most basic ILO principles on freedom of association is that all workers have a
right to organize and to bargain collectively with their employers through agents of their
own choice. Although majoritarian exclusivity denies a representative of their own choos-
ing to those workers in a designated bargaining unit who are opposed to the certied agent,
the ILO committees have nevertheless approved the system as a reasonable limit on the
right to organize and bargain collectively. However, the ILO’s position is that if workers
decide to organize outside of the bounds of statutory majoritarian exclusivity, their organ-
izations still ought to be recognized for bargaining purposes. In its  Digest of Deci-
sions, the [ILO] Committee on Freedom of Association had this to say: “Where, under a
system for nominating an exclusive bargaining agent, there is no union representing the
required percentage to be so designated, collective bargaining rights should be granted to
all the unions in this unit, at least on behalf of their own members.” On this reasoning,
employees who want to be represented by minority unions have an international human
right to bargain collectively, in Canada and elsewhere. In B.C. Health Services the Supreme
Court said that Canadian workers should enjoy “at least the same level of protection” as
that provided by “international conventions to which Canada is a party.
[Reproduced with permission by Lancaster House.]
More recently, David Doorey has argued that the Wagner Act model in Canada needs to be
supplemented by a graduated freedom of association that would oer a “thin” model of free-
dom of association to the minority of employees in a workplace who wish to have union rep-
resentation where they work, but who cannot obtain the requisite majority employee support
for the “thicker” Wagner model. Employees under this “thin” proposal would enable workers
to have some access to union representation for example, on issues such as individual
grievances, collective representations to an employer on job conditions, and requests for wage
and benet improvements — without the right to engage in mandatory collective bargaining or
collective agreement administration. Professor Doorey writes in “Graduated Freedom of Asso-
ciation: Worker Voice Beyond the Wagner Model” () : Queen’s Law Journal  at :
The main purpose of the GFA [Graduated Freedom of Association] model is to give work-
ers a more realistic chance to exercise at least the minimum freedoms that the Supreme
Court has said are constitutionally guaranteed. As a concrete example, this model would
have at least protected the employees who joined our fair workers’ association from
employer reprisals, and would have allowed us an audience with the employer. We can-
not know whether that opening could have led to some measurable benets with some
creative advocacy. What is clear, however, is that protecting vulnerable workers in the
future will require both creative advocacy and new forms of collective organization.
If majoritarianism and exclusivity are too rmly entrenched in our industrial relations sys-
tem to be struck down by the courts or dismantled by legislatures, the issue then becomes
the extent to which legitimate concern for individual and minority rights can be addressed
within the existing structures. There may be no real evidence of widespread abuse of such
rights, however, abuses clearly do occur at times. There is increasing acceptance of the view
that more eective protection of minority and individual rights is implicit in the ideals of a
democratic society, and also of the view that such protection is necessary to the eective func-
tioning of the collective bargaining system and to its attractiveness to unorganized workers.
It is very much open to debate whether protection of minority rights can best be achieved by
reinvigorating grassroots democracy within unions, facilitating judicial intervention at the suit
of aggrieved individuals, introducing closer administrative scrutiny of internal union aairs, or
encouraging unions themselves to adopt new constitutional and institutional arrangements.
Before turning to that debate, we will consider some of the most common areas in which
individual and collective interests collide under a regime of collective bargaining: the dis-
placement of the regime of individual contracts when a union acquires bargaining rights, the
union’s authority in negotiating a collective agreement, and the union’s authority in process-
ing grievances under that agreement.
10:210 Bargaining with other Unions or with Individual Employees
Once a union has acquired majority support and has been certied or recognized as a bar-
gaining agent, the employer is precluded from bargaining with any other union or any other
person or organization on behalf of any employees in the bargaining unit, unless and until
the union’s bargaining rights are terminated pursuant to statute. This was conrmed many
years ago in International Brotherhood of Boilermakers v Sheafer-Townsend Ltd (),  CLLC
para, (OLRB).
Another long-established but perhaps less obvious rule is that an employer may not bar-
gain directly with individual employees where there is a statutory bargaining agent. The North
American locus classicus on this point is the United States Supreme Court decision in JI Case
Co v National Labor Relations Board,  US  (). In that judgment, however, the court
left open the possibility that an employer and an employee might make a binding contractual
arrangement related to the employment relationship if the arrangement “is not inconsistent
with a collective agreement or does not amount to or result from or is not part of an unfair
labor practice.” The leading Canadian case on this question is Syndicat catholique des employés
de magasins de Québec Inc v Compagnie Paquet Ltée, [] SCR , where JudsonJ said:
There is no room left for private negotiation between employer and employee. Certainly
to the extent of the matters covered by the collective agreement, freedom of contract
between master and individual servant is abrogated. The collective agreement t ells the
employer on what terms he must in future conduct his master and servant relations . . .
The terms of employment are dened for all employees, and whether or not they are
members of the union, they are identical for all.
This blanket prohibition of bargaining between employers and individual employees on any
matter dealt with in the collective agreement is virtually unknown outside of the United

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