Union and Disunion--solidarity forever?

• Author: Bowal, Peter
• Position: Employment Law

Introduction

The power of a labour union essentially resides in the threat and realization of collective action against an employer. As the saying goes, which could have had unions in mind, 'we hang together or we hang alone.' Strike-breakers crossing picket lines during a strike impede the union's ability to bargain effectively with the employer. Accordingly, unions need to enforce solidarity among their membership in order to be effective.

Dissident employees might not be sympathetic to the unions to which they belong, or to the decisions of their union leaders and peers. When they are faced with having to choose between indefinite subsistence strike pay and remaining on the job for full pay and benefits, some workers will inevitably be inclined to continue to work. This means defying the union, crossing the picket line--the symbolic Rubicon--and breaking solidarity with their co-workers. Dissidents are ignobly labeled 'scabs' and they are routinely threatened, humiliated and unforgiven for their betrayal of the collective cause.

Picket lines need to be powered with strikers. If a sufficient number of employees cross the picket line, the strike itself may be prolonged or fail. Strike-breakers not only interfere with strikes, but their defiance embarrasses unions and their obedient members.

It is not enough for unions to merely hope that this collective action will materialize during strikes, those rare instances in which it is required. Unions seek to engineer en masse obedience by inserting in their rules union solidarity clauses backed up by occasionally harsh penalties for non-compliance.

Workers who cross picket lines hurt their striking colleagues' cause by sending the message to the employer that they find the pay, benefits and working conditions acceptable. Penalty clauses may deter members from breaking strike out of fear of the financial consequences. The revenue they generate can provide modest restitution to the union and its members who may have suffered from the counter-productive behaviour of the strike-breakers.

Are these penalties legally enforceable?

Birch and Luberti

Two Canada Revenue Agency workers, union members Birch and Luberti, crossed the picket line during a legal strike in 2004. The union's constitution prescribed two responses to members who do this:

* a one-year suspension of membership for each day the member crossed the picket line (affiliation discipline), and

* a "fine" equal to the member's gross pay for...