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Beyond Unions and Collective Bargaining, by Leo Troy, is reviewed.
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This article provides a brief overview of the development of the Canadian approach to nonunion employee representation. For a century or more, nonunion representation vehicles have been used by workers and employers, without the attention, oversight and statutory regime that characterizes union-management relations. Nonunion representation rarely intersects with the law, and usually does so only when there is a collision between nonunion vehicles and trade unions during union organizing. Otherwise, the law is silent about nonunion representation. In the aftermath of the Supreme Court's contemporary analyses that commenced in 2001 with Dunmore, and moved through B.C. Health, Fraser, MPAO, and Meredith, the status of nonunion representation has not changed; these vehicles remain lawful. But there is considerable uncertainty about future directions. Might nonunion representation vehicles now be protected as collect- ives under the Charter, or will their somewhat sub-rosa nature remain? Should policy-makers and courts respect their maneuverability, or regulate them as inferior to unions? Certainly the Supreme Court has expressed distaste for these vehicles, as in the 2015 MPAO decision, but to what extent will this opprobrium find its way into Canadian law? We are at a crossroads, and if there is a legal challenge involving the status of nonunion collectives, there is no way of pre- dicting the outcome. In this article, the author discusses how an argument might be made that nonunion associations' activities could achieve Charter protection, and raises questions to which there are no clear answers.
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The article reviews the book, "Modern Manors: Welfare Capitalism Since the New Deal," by Sanford M. Jacoby.
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Traditionally, management had the right to hire, fire and schedule hours of work, unless constrained by collective agreements or contracts. When exercising these rights, management has a duty to act in a fair manner. There is concern, however, that some management practices might have a disparate effect on the health and performance of disabled employees. Human rights legislation in Canada prohibits both overt discrimination and unintended systemic discrimination arising from employment practices which may seem neutral in application but which have a disparate effect on a protected group of employees. Four specific points of law illustrate the balancing act involved in adjudicating adverse effect discrimination allegations of disabled employees: 1. actuarial risk versus individual assessment, 2. shifting onus of proof from employer to employee, 3. importation of human rights principles into arbitration, and 4. discipline and discharge of employees. Special attention is placed on diabetic shiftworkers as an example of adverse effect discrimination.
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Virtually absent in the arbitration literature is the voice of the grievor. Post-reinstatement experiences are examined primarily from the perspectives of a group of 7 Alberta grievors. First, a review is presented of the declining frequency of Alberta arbitrations, the extent to which dismissal cases form a proportion of the arbitral caseload, and the relatively low rate of reinstatement. Findings are: 1. Grievors are unaware of the public availability of arbitration awards. 2. Reinstated grievors are critical of the union that successfully defended them. 3. They have a more benign view of management. 4. Very little reinstatement assistance is offered. 5. Grievors' positive attitudes to their worksites are more determinative if successful reinstatement than remorse and acceptance of culpability.
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Contents: Canadian labour and employment relations / Daphne G. Taras and Morley Gunderson -- Understanding the unionization decision / Ann C. Frost and Daphne G. Taras -- Labour history and the development of modern capitalism / Richard Marsden -- Unions : membership, structures, actions and challenges / Gregor Murray -- The management of industrial relations / Mark Thompson -- Managing the high-involvement workplace / Anil Verma and Daphne G. Taras -- Social, political, and economic environments / Frank Reid and Rafael Gomez -- Collective bargaining legislation in Canada / Sara Slinn -- The individual employment contract and employment / Geoffrey England -- Collective bargaining : structure, process, and innovation / Richard Chaykowski -- The collective agreement / Anthony Giles and Akivah Starkman -- Strikes and dispute resolution / Morley Gunderson, Bob Hebdon, and Douglas Hyatt -- The grievance arbitration process and workplace / Kenneth Wm. Thornicroft -- Union impact on compensation, productivity, and management of the organization / Morley Gunderson and Douglas Hyatt -- Public-sector collective bargaining / Mark Thompson and Patrice Jalette -- Union-management relations in Québec / Esther Déom and Jean-Noël Grenier with Marie-Pierre Beaumont -- Trade unions and labour relations regimes: international perspectives in a globalizing world / Carla Lipsig-Mummé. Previous eds. published under title: Union-management relations in Canada; Includes bibliographical references and index.
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The diverse conceptual perspectives and practical experiences with non-union employee representation (NER) in the USA and Canada are reviewed. We first propose a six-dimensional descriptive schema to categorise observed NER practices. Dimensions of diversity include (i) form; (ii) function; (iii) subjects; (iv) representational modes; (v) extent of power; (vi) degree of permanence. We then turn to the NER controversy, which is a tangled skein consisting of many different threads of values and prescriptions. To unbundle the controversy, we develop four ‘faces’ of NER—(i) evolutionary voice; (ii) unity of interest; (iii) union avoidance; and (iv) complementary voice—so that future research can more consciously test the validity of competing perspectives with hard data. Generalising about NER is problematic because of these many dimensions of diversity, and because NER is viewed through different ideological and conceptual lenses. We conclude that NER’s future trajectory is uncertain due to conflicting trends but in the short run is most likely to remain a modest-sized phenomenon.
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