Heeding the Times from Harry Antonides' Desk

This is Democracy?

September 1, 1996 -

In order, then, that the social compact may not be a vain formulary, it tacitly includes this engagement, which can alone give force to the others—that whoever refuses to obey the general will shall be constrained to do so by the whole body; which means nothing else than that he shall be forced to be free; for such is the condition which, uniting every citizen to his native land, guarantees him from all personal dependence.
—Jean-Jacques Rousseau, The Social Contract

Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.
—Canadian Charter of Rights and Freedoms, section 2

 

Thirty years ago, a quiet, plain-spoken factory worker in Orangeville, Ontario, decided that his Christian conviction about human relations and the role of unions did not allow him to join or support the United Steelworkers of America (USWA). But the collective agreement at his workplace contained a union shop clause, meaning that every one had to join the union in order to work.

Dirk Hoogendoorn refused to join. His coworkers hounded him, and at the insistence of the union he was fired. His dismissal was appealed and considered by an arbitrator and various courts. The final outcome was that Hoogendoorn remained fired, because the USWA would not budge and showed no regard for this Canadian citizen's deeply held conviction.


Freedom from religion?

In a 1967 Ontario Court of Appeal decision, the late Mr. Justice Bora Laskin ruled that Hoogendoorn's religious convictions had nothing to do with his constitutional freedom of association:

I find nothing admirable in the applicant's stand. Our society secures to every one the right to adhere to a religion of his choice and to hold to a self-determined political creed. It does not, however, give liberty to insist on religious conviction or political creed or both in contexts which the law does not regard as relevant to their free enjoyment and as a ground for thwarting agreements binding on all irrespective of religious or political persuasion. This is presently the case in labour relations.

 

In other words, according to Mr. Justice Laskin, we have freedom of religion in this country but this does not mean that someone who believes in the biblical teachings, and therefore refuses to join a union that is motivated by a very different worldview, has any right to exercise this freedom. The effect of this court decision is that freedom of religion is arbitrarily limited to areas of life that the government ("the law") decrees.

The opinion is very much in line with contemporary thinking that our basic (constitutional) rights and freedoms are not pre-existent to the state but are creatures of the state—rights do not exist unless they are codified in a written, legal document. Laws and rights are dependent on current fashion and ideologies rather than anchored in a permanent set of principles.

The central question is, by what authority do governments decide that the religion of a person is separate from the affairs of trade union he or she is asked or forced to join? After all, unions deal with relations among people and cannot avoid personal beliefs about such fundamental issues as justice, freedom, and even the meaning of human existence.

Although there is a growing belief that we create our own values, many still insist that we are subject to a higher authority than the "imperial self." Excluding religion from whole areas of life is not freedom of religion. Nor do we have freedom from religion, as some would claim. This court declaration really amounts to the imposition of state-enforced religion—a secular (atheistic) religion.


The power to exclude

Another sample of this restricted and one-sided view of law and freedom is a 1977 British Columbia Labour Relations Board (BCLRB) policy decision that justified the AFL-CIO building trades unions' use of strikes or the threat of strikes to force nonunion workers or members of non AFL-CIO-affiliated unions off job sites. In his book Reconcilable Differences: New Directions in Canadian Labour Law, Paul Weiler, who served as chairman of the BCLRB from 1974 until 1978, elaborated on the reason why members of the independent Christian Labour Association of Canada (CLAC) could justifiably be barred from construction sites:

The fact that CLAC is a trade union within the eyes of the Labour Code, the fact that these tradesmen prefer to join it rather than refuse to join any union at all, gives them no right to penetrate construction projects the majority of whose work force belong to B.C. and Yukon building trade unions—no more right than maintenance employees of a forest product company who choose to join the Pulp, Paper, and Woodworkers of Canada (an independent Canadian trade union) would thereby have the right to go to work in a sawmill without joining the International Woodworkers of America, the incumbent union for the majority of the employees in that sawmill. 

But this is not a simple case of individual workers demanding that they be allowed to go to work on a construction job site or sawmill. It involves the employees of companies who have successfully bid for a particular construction project in a sawmill or other facility. The real issue is whether it is right that companies and workers have access to jobs only through membership in a particular union.

Weiler's viewpoint assumes that freedom of association is not fundamental—prior to the law—and enjoyed by all citizens equally, but is dependent on membership in a particular organization. Behind this position hovers a concept of equality that is not an equality before the law, but a levelling mechanistic equality, in which freedom is erased in favour of uniformity.

This impulse is especially powerful whenever society is viewed as the object of administration and control—tendencies inherent in the bureaucratized state because it values uniformity above all else. Uniformity is efficient, orderly, and saves the powerbrokers the trouble of having to deal with individuality and freedom.

This explains why Weiler paid little or no attention to the law as a standard for upholding justice, but views it simply as an administrative tool for the efficient organization of society. It also explains why, in a discussion about majority rights, he argued that the law has given the group the freedom to do what the majority wants. Certainly, in many situations involving the internal operation of organizations, the majority rule method is quite appropriate. But when the right of the majority is used to exclude minorities—which is happening in industrial relations—majority rule becomes totalitarian. What we encounter here are shades of Rousseau, who wrote that those who disobey the general will shall be forced to be free.

The Court takes sides

One of the most important court cases on the issue of freedom of association was launched by college teacher Merv Lavigne, whose convictions put him at odds with the Ontario Public Service Employees Union. Lavigne objected to being forced to pay dues, which in part were used to support causes such as the New Democratic Party, left-wing movements in other countries, and the pro-abortion lobby. His case was heard in the Supreme Court of Ontario, which ruled (in 1987) that he was justified in being exempted from paying the portion of his compulsory dues that were used for nonlabour relations purposes he objected to.

This decision was consequently overturned by the Ontario Court of Appeal, followed by a decision in 1991 by the Supreme Court of Canada which agreed with the Court of Appeal, ruling that unions are entitled to use their funds to support causes that may be opposed by some dues-paying workers. The reasons given by the Court are significant and deserve close scrutiny. It is telling that three of the seven members of the Court agreed that compulsory payment of dues is an infringement of workers' freedom. Nevertheless, they ruled that it was justified because of the "reasonable limits [on personal freedoms] prescribed by law" in Section 1 of the Charter of Rights and Freedoms.

Madam Justice Bertha Wilson ruled that section 2d of the Charter does not include the freedom not to associate. She wrote that to decide in favour of Lavigne's request, and thus to impose an obligation to refund a portion of dues, would unfairly burden unions. She thought such a burden might weaken unions, and reduce them to the same level of weakness as in the United States.

Ironically, though unions had calculated that the amount to be refunded was quite small, their spokespersons argued that if Lavigne were successful unions would face disastrous consequences. Dennis McDermott, then president of the Canadian Labour Congress (CLC), claimed in a sworn statement to the Supreme Court of Ontario that its decision "will be of fundamental importance to, and will determine the direction of, present and future collective bargaining and other activities carried on from coast to coast in Canada by all trade union organizations affiliated to the CLC." Furthermore, he stated that "the outcome of this proceeding might well imperil the strength, or even the existence, of the CLC."

The majority judgement, written by Mr. Justice Gerald La Forest, raises a number of puzzling questions about the state of freedom in this country. La Forest seemed to come down on the side of freedom of association, even quoting Article 20 of the United Nations' Universal Declaration of Human Rights, which simply and unmistakably states: "No one may be compelled to belong to an association."

But then he agreed that violating Lavigne's freedom of association was "demonstrably justified in a free and democratic society." La Forest wrote that deciding the issue depended on one's political and philosophical predilections, and his own predilections were clearly on the side of compulsory unionism. This was his rationale for "compelling someone like the appellant [Lavigne] to pay dues to the union knowing that those dues could be used to fund activities not immediately relevant, or at all relevant to the representation of his interest at the bargaining table."

La Forest then argued that the first objective of the state is to ensure that unions have the resources and the mandate necessary "to play a role in shaping the political, economic and social context within which particular collective agreements and labour relations disputes will be negotiated or resolved." Whether workers agree or disagree with a union's political or philosophical perspective and objectives does not seem to matter to Mr. Justice La Forest. He wrote:

Compelling contributions by all represented by the union, all who benefit from the union's attempt to push the general political, social and economic environment in a direction favourable to unions and their members, provides the union with the stable financial base needed to underwrite political, economic and social activism. 

In discussing the so-called "opting-out" formula, La Forest argued that this would undermine unionism's financial base because it would reduce the incentive to become a member, which in turn "would undermine the spirit of solidarity which is so important to the emotional and symbolic underpinnings of unionism." La Forest writes that the cause of unionism and of working people generally has been advanced by the NDP, and that therefore

it is inconceivable that support of the NDP could be considered irrelevant to the union's obligation to represent those who pay dues to it. But the important point is that if individuals "can opt" out of supporting the NDP, the unions will simply have much fewer dollars to support it.

This is a court decision, yet it sounds in places more like a promotional brochure for the New Democratic Party. Gone is the Court's role as the guardian of freedom. Instead, it has decided the issue of workers' freedom of association based on its impact on a union's ability to support the NDP and other "progressive" causes. It is this clearly biased perspective of the Court that makes this decision so hard to swallow.

The Supreme Court of Canada has adopted the arguments from the proponents of coercive unionism. But if it is right to coerce support of a particular union and thus political party, why not do the same for other organizations, say the United Church of Canada or the Reform Party? There really is no difference.

The personal is not political

Compulsory unionism is often defended with the argument that paying dues is like paying taxes. But this ignores a most important distinction between the character of government and that of a labour union. The one is an involuntary, public institution, with powers that affect every citizen; the other is a private and voluntary institution, to which people should be free to belong or not to belong.

The essence of a free society is that the public domain of state and government is limited, leaving plenty of space (freedom) in the private domain for people freely to worship, provide for their families, educate their children, work, associate, buy and sell, and do the myriad things that make up their lives. That's why the slogan, "the personal has become the political," expresses a perverse doctrine, which, if fully put into practice, would create a society of enforced sameness, a society where Big Brother (Sister) is supreme.

Those who take the time to read the various court rulings, especially the 1991 Lavigne decision, should have no difficulty in understanding their real significance. It is not about the few dollars taken from a Canadian worker. It's about the failure of the courts to serve as the guardian and shield of our fundamental freedoms, notably the freedom of conscience and religion, the freedom of thought, of belief, of opinion and expression, and of association.

The sad irony in all of this is that the courts have turned freedom on its head. The Charter that was supposed to guarantee us our rights and freedoms is interpreted in a way that does the very opposite. Which proves that words on paper, even beautiful phrases, are meaningless, unless understood in the framework of a transcendent, moral order.

I for one am convinced that most Canadians, if they really understood the essence of these court rulings, would protest against this slide into the engineered society, where the courts tell them what's good for them. Note again the Supreme Court's statement that the union's commitment to the aspirations of the NDP is per definition to the benefit of all workers, therefore justifiying coercive unionism. Where are the watchmen on the walls of this as yet privileged but dangerously enfeebled democracy—now that we really need them?

This article originally appeared in Comment magazine, a journal founded by Harry Antonides. Find all of Harry’s pieces, and thousands more, at http://www.cardus.ca/comment