The power of the strike

Governments and employers are terrified of workers collective action. That is why so many governments seek to limit the ability of workers to strike.  Such is the case in Alberta, where the government is seeking to limit the ability of public sector workers to strike.

Yet, the strike itself is a powerful weapon for workers.  Illegal strikes are even more powerful, as they often take on a life of their own.  While wildcat (illegal) strikes are rare these days, the spontaneity of such actions speaks to the power of class solidarity amongst workers.  Walmart workers are certainly taking this approach in the United States.  So are dock workers in Halifax.  While the origins of the Halifax wildcat are depressing, the workers themselves are taking power back by challenging the bullying of management.  Chinese workers are taking similar actions, challenging the powers government and employers.  Good for them.

Privacy and the Right to Strike in Canada

The neoliberal assault on labour has now entered its fourth decade.  While Canada's labour union density continues to hover around thirty percent, that number hides declining density rates in the private sector.  Equally concerning for the labour movement has been the long assault on the post-war labour freedoms to organize, bargain, and strike.  As Leo Panitch and Donald Swartz have shown in their book, governments routinely seek to limit labour's core freedoms, especially the right to strike.  When Stephen Harper's government claimed that the fragility of the Canadian economy was justification to take away the right of thousands of federal workers to strike, it became clear that strikes themselves were in danger of being legislated away.

One of labour's responses has been to challenge legislative assaults in court.  To date, those results have been mixed.  Almost universally, the courts have shown little interest in expanding labour’s freedom through the Charter.   However, when unions have used the Charter to defend postwar gains such as union security or the right to expression on the picket line, there has been some success.

That formula was on full display when the Supreme Court of Canada (SCC) released its decision in Alberta v. UFCW on November 15, 2013.  Dubbed the “Palace Casino” dispute, the case addressed state imposed limits on the picket line with regards to personal privacy.  In a unanimous ruling, the court struck down Alberta’s Personal Information Protection Act (PIPA) on the grounds that its use in a labour dispute violated the union’s constitutional rights of free expression.

Privacy and the Capitalist State

In the age of smartphones and social media, the question of personal privacy has become a central topic of debate in liberal capitalist democracies.  In response, some governments have passed legislation designed to protect an individual’s personal information.  Alberta’s legislation was modeled after the federal government’s Personal Information Protection and Electronic Documents Act (2000).  As detailed in court, the legislation is part of an “international movement towards giving individuals better control over their personal information” (para 13). Both the federal and provincial legislation is designed to limit how private sector organizations will use personal information for commercial gain.   

The goal to limit how private organizations collect and use personal information is certainly laudable: everyone should have control over how their private information is used private businesses for profitable gain.  The irony is that while some governments have passed legislation in the name of privacy, many of those same governments are enhancing their surveillance capabilities to spy on their own citizens.  One has to look no further than the super data collection centres in Ottawa and the United States or by companies such as Bell, RBC,  or Google, Apple, and Microsoft to recognize that current legislation is certainly not capable of protecting individual privacy.  Given these limitations, it is likely that personal privacy will be one of the central civil rights battles in this century.

The question of personal privacy on a picket line was at the centre of the debate in Alberta v. UFCW.  The very fact that this dispute arose at all speaks to the contradictory nature of personal privacy laws.  Ostensibly the law is to protect government and private companies from using personal information without individual consent.  In this case, anti-union individuals argued that a union using images from a picket line violated their privacy rights. As in most strikes, unions and employers routinely photograph and capture video images of events on a picket line.  Unions use those images for a variety of purposes, one of which is to publicly shame replacement workers or other individuals who cross a picket line. In order to maintain solidarity and morale on a picket line such acts are of vital importance, especially for a strike that last several months.  

Privacy on the Picket Line?

During the course of a yearlong strike at an Edmonton casino, the UFCW captured numerous images of replacement workers, managers, and others who crossed the picket line.  The union used those images on various websites and in union pamphlets.  The individuals complained that the union’s actions violated PIPA.  Alberta’s privacy commissioner agreed with the complainants and ordered the images and personal information destroyed.  The UFCW appealed to the courts, stating that the decision violated its freedom of expression rights guaranteed in the Charter of Rights and Freedoms.

The SCC unanimously agreed that PIPA could not be used to limit the expression of the union.  In coming to this conclusion, the SCC relied on Pepsi (2002) and Kmart (1999) to conclude that the right to strike is inextricably linked to free expression. Indeed, the court ruled that the unions routinely used images taken from the picket line to dissuade the public from crossing the line, to build public support for their cause, to gather evidence for future litigation, to build the morale of strikers, and to shame possible replacement workers (para 6).    

Moreover, the union captured these images in a public place and during public demonstrations.  When an individual leaves the privacy of their own residence, surely there is some expectation that they are forgoing some expectations of privacy?  This led the court to conclude:

Those crossing the picket line would reasonably expect that their image could be caught and disseminated by others such as journalists, for example.  Moreover, the personal information collected, used and disclosed by the Union was limited to images of individuals crossing a picket line and did not include intimate biographical details.  No intimate details of the lifestyle or personal choices of the individuals were revealed (para 26).

Having come to this conclusion, the SCC argued that the sweeping nature of PIPA was disproportionate to the goals of protecting individual privacy and could therefore not be saved by s. 1 of the Charter.  In other words, the legislation’s goals of protecting personal privacy did not outweigh the workers’ right to free expression on a picket line. 

The court’s unanimity on these questions was somewhat surprising.  While Justice Abella and Cromwell had both sided with labour in the past, Justice Rothstein had argued quite strongly against further enhancing union Charter gains in the 2011 Fraser decision.  Then again, since Pepsi and Kmart were established precedent, perhaps Rothstein's rationale makes sense.  Nevertheless, it was the unanimity I believe, that led long time union lawyer and advocate of labour union rights Paul Cavalluzzo to declare that the court’s decision “recognized that the right to strike is a fundamental right under the Charter.”  

Cavalluzzo’s argument may be stretching reality a little farther than the court was willing to go.  The court has not overturned the 1987 labour trilogy which stated that there was no constitutional right to strike. 

Yet, Cavalluzzo clearly has his eyes on the forthcoming case examining Saskatchewan’s essential service legislation. In that case, the Saskatchewan Federation of Labour has challenged the Saskatchewan’s Party’s essential service legislation which takes away the right of thousands of public sector workers to strike.   Having agreed to hear that case, it is certainly plausible that the court is now willing to reexamine the 1987 labour trilogy.  And one could take some solace in the courts wording that the “use of picket lines is an invaluable tool in the economic arsenal of workers in the collective bargaining process.” (para 35).  

Inherent limits, but a victory nonetheless

There are of course inherent limits to the court’s decision.  The ruling is premised on the notion that the union was on legal strike.  If a union were to step outside of the law and strike illegally, there is no indication that Charter rights would apply.  This suggests that Canada's specific regime of industrial legality-often dubbed Wagnerism-is closely tied to any potential Charter right to strike.

The Wagner model sets specific rules surrounding the right to organize, bargain, and strike. In particular, it protects the sanctity of a contract, allows workers to grieve management decisions, and allows workers’ third party representation if disciplined. In exchange, workers concede the right to strike except in specific circumstances as the end of a contract.  If workers sought to move beyond Wagnerism (by expanding the right to strike for instance) there is little chance that the Charter would assist in significantly challenge the existing economic paradigm.

Indeed, there is some irony about the court's continued reliance on "legal" strikes as a protected form of expression.  Throughout its jurisprudence on this issue, the court routinely defends the right to picket when those actions are legal.  Yet, in almost all of its jurisprudence on labour rights, the court continuously states that it does not favour any particular form of labour relations regime.  On the strike jurisprudence, that is not true.  In all the cases before it, the SCC only defends legal strikes.  And legal strikes in Canada can only be understood as an extension of Wagnerism.  On this question, the court has backed itself into a corner.  It can only defend the right to strike by protecting Canada’s specific Wagner model, something that it refused to do in the 2011 Fraser decision.    

Of course, these were not the questions the court was asked. Given the narrow confines of the dispute, this is clearly a victory for the union.  In an age when neoliberal models of individualism dominate public discourse, there is little question that collective organizations such as labour unions will be vulnerable to legislation like PIPA.  This case shows that anti-union crusaders will use multiple means to weaken the collective capacity of workers to resist employers.  The fact that the SCC has read some collective dimensions into its freedom of expression jurisprudence is an important.  Although it is unlikely that the Charter will offer substantial gains for workers, it remains an important defensive tool to preserve the existing paradigm.  On that note, Alberta v. UFCW is a victory. The larger questions about how the working class can move beyond Wagnerism or neoliberalism, however, will unlikely be answered in court.  Rather, those political questions will likely be addressed on a picket line. Whether the SCC would agree that those types of expression were legal or constitutional is an entirely different question.   Given past decisions, workers would be wise to approach the SCC with caution.  

Social Justice and Right to Work

The debate continues about workers rights and the so-called right to work. Yesterday, it was revealed that Ontario's Progressive Conservative leader Tim Hudak planned to campaign on an aggressive anti-union platform in the next election.  His plan, according to various news sources, is to undermine unions through a right-to-work plan.

Right to work laws allow individuals to opt-out of paying union dues upon being hired by an employer. Supporters argue that right to work laws allow individuals to determine where their money is spent.  If an individual doesn't like that a union donates to anti-nuclear campaigns, for instance, they can opt-out of union dues (incidentally, this was the very issue in Lavigne v. OPSEU where the Supreme Court of Canada upheld mandatory dues requirements as consistent with the Charter of Rights).  

The problem with this argument is that it takes the "collective" out of collective bargaining.  There is no possible way that a worker can negotiate with an employer on an equal footing.  Even the most skilled workers lose their capacities to negotiate with an employer over time as skill sets are constantly changing.  The changing nature of labour skill is not a naturally occurring phenomena.  Rather, changing skill sets are imposed in the labour process by employers seeking to appropriate relative surplus value (or the value created by new technologies). The result has been a continuous process of skilling (through public institutions like Universities) and as Harry Braverman showed decades ago, de-skilling through standardization and mechanization of the labour process.  In this process, workers are at the mercy of employers unless they can resist unilateral change to their workplace. That resistance occurs collectively.

The only way that the power imbalance can be addressed is through collective representation.  Perhaps one of the most essential components of collective representation and collective bargaining is to take wages out of competition so that employers cannot force workers to compete through lower wages. Right to work laws seek to weaken collective representation which weakens the ability of working people to maintain more of the surplus from their labour.  In other words, as the American Federation of Labor shows, right to work will lower wages and living standards for all. That being the case, right to work laws can never be defended as just.  These laws are simply a way to weaken workers' rights in the workplace.        

Thinking about democracy

Yesterday, I published a small opinion piece in the Saskatoon Star Phoenix about the state of Canada's democracy.  No matter how you measure it, official democracy in Canada is increasingly limited.  The list is long: increasing concentration of power in the Prime Minister's office, the increasing irrelevance of Parliament, muzzling of MPs, ignoring of election laws, shorter campaign periods, falling voter turnout, politicians refusing to take responsibility for their actions, etc. etc. etc.   What is more, institutions such as labour unions - institutions that are far more democratic than Parliament - are increasingly attacked by governments in the name of economic efficiency.

Alan Sears and James Cairns have challenged the limitations of official democracy in Canada.  In their book on the Democratic Imagination, they explore the concept of democracy from below.    According to their book, the authors argue that democracy from below is "about the masses of people engaging in genuine self-rule in all aspects of their life."

According to the authors, democracy from below allows us to examine how we can introduce democratic decision-making into otherwise authoritarian relationships.  For instance, the work relationship is not a democratic space.  To the contrary, workers submit to the absolute authority of employers. Democracy from below challenges this relationship and asks how we can democratize work.  The book is required reading for those interested in democracy and democratic reform.

Are Human Rights the Rights of Social Justice?

We've been having an ongoing debate in class about the transformative potential of human rights.  On one level, documents like the Universal Declaration of Human Rights and the Canadian Charter of Rights and Freedoms represent some universal values that almost anyone can endorse.  The Charter's protection of equality, fundamental freedoms, and life liberty and security of persons is certainly worth defending. The growth in human rights struggles is arguably grown out of three parallel movements: the civil rights revolutions that grew out of the 18th century revolutions (freedom of speech, religion etc), political rights revolutions that grew out of the 19th and early 20th century democratic revolutions, and the social rights demands that arose after World War II and arguably ended in the 1970s.

C.B. Macpherson argues in his powerful essay "The Problems of Human Rights in the Late Twentieth Century" that human rights, while certainly an object of transformation when tied to political struggle, are also limited by two opposing forces: the right to property and the primacy of individual rights. For Macpherson, human rights struggles are limited in liberal societies because they remove the individual from larger collective societies.  As liberal societies also value property over all other rights, there is a permanent struggle between civil, political and social rights and the economic structures that sustain the current economic system.  Given these tensions, Macpherson asks, can human rights be transformative?      

Miscarriage of Justice

There has been some debate about the legitimacy of Canada's system of "security certificates."  Under the security certificate program, the federal government can detain individuals without any formal charges.  In a current secret case before the Supreme Court of Canada, one man was detained for over three and a half years without formal charges.  There are many problems with this program, but the fact that the Supreme Court legitimizes the government's actions by holding this hearing in secret seems to be a serious miscarriage of justice. Is there any justification for a "security certificate" program?  

Supreme Court of Canada

Yesterday, the Prime Minister made his newest appointment to the Supreme Court of Canada.  By all accounts, the appointment of Marc Nadon is controversial. By not addressing the gender balance, Mr. Harper has signalled that he will not seek to make Canadian institutions more equitable by adequately reflecting the makeup of the population. The problem, of course, goes deeper than just the makeup of the judiciary.  By not appointing a more balanced court, it is impossible to imagine how structural inequality can be addressed through Canadian political institutions.  Moreover, as the Global and Mail suggested today, this appointment signals an ideological shift to the right. That observation seems to derive (according to the National Post) from Nadaon's dissent in the Omar Khadr repatriation case.  Is it legitimate for a government to appoint supreme court justices for ideological reasons?  What would a just appointment look like?

Work, Justice, and Time

There has been a lot of public discussion lately about work time in the public and private sectors. Today, the Conference Board of Canada released a report saying that sick time, mostly in the public sector, is a problem to the cost of $16.6 Billion per year.  The Canadian Tax Payers Federation has recently critiqued the sick days taken by public workers in Quebec and in Ottawa.  What is behind this assessment? On one level, there is a blatant ideological attack on unionized public sector workers suggesting that they are entitled and thus not hard workers.   But on another level is the assumption that the only value workers provide in the economy is when they labour in paid employment.  In essence, paid work time is the only value we place on these workers.

Yet, Jeff Noonan argues in his masterful new book, Materialist Ethics and Life Value, that the free realization of human life capacity is grounded in taking back control of workers' time.  In other words, in order to fulfill our capacities as human beings we need time to rest, time be healthy, and time to be free from exploitative and stressful relationships.  Here Noonan argues,

"Since human freedom is a form of activity, and all activity takes place in time, the full experience of time as free depends not only on the quantity of time available for our own appropriation but on how we experience the time in which we act. The full experience of time as free is not given in the experience of not having to do one thing rather than another but of being able to do in the present what we decide is most live-valuable, unconstrained by temporal pressures generated by the ruling value system over our activity (80)."

Noonan's point is not to ignore the importance of work to reproduce socially necessary goods or services (we all have to eat) but rather that we can only fulfill our full potential as human beings by creating socially necessary (and valuable) time.  Such an analysis is different than the assumptions made by the Conference Board and the CTF which simply reinforces the dominant value-system by quantifying workers based on money-value and the time they spend at work.  Having time to be healthy is essential to living full lives. The struggle for more free time seems like an essential struggle for a just and good society.            

Education and Justice

Education holds a special place in liberal democracies.  For liberal societies, education is promoted as a means to level the social playing field, allowing anyone to access the basic skills to compete in the economy.  While many of these assumptions are problematic (the ability to do well in school, for instance, depends on a host of social indicators), it is equally true that societies that educate their people are generally more equitable. Yet, in the current era, universities and schools are increasingly being placed under market-led restructuring.  Will these initiatives lead to greater access and more effective education or will it be a radical departure from Canada's traditional university model? What do these changes mean for a just and good society?

Justice, Truth, and Reconcilation

Yesterday, the social justice and the common good class heard eye opening stories about poverty and injustice in Saskatchewan.  As our discussion progressed, there was discussion of the horrifying legacy of the residential school system.  We all agreed that more education is needed in order for Aboriginal survivors to find peace and for non-Aboriginal Canadians to confront this horrid colonial legacy. The Truth and Reconciliation Commission is certainly a good place to being addressing this history.  How can the commission create the conditions for a just settlement?  What more can (and should) be done for a more just future?

Charter of Quebec Values Part II

Not much to add from the previous post, but a fascinating debate in the Globe and Mail today about the Charter. A 9 person legal panel says 9-0 that the Quebec Charter violates the Canadian Charter.  Read through the arguments here.  There is also an excellent critique by Darryl Leroux on English Canada's reaction to the Quebec Charter of Values here, arguing that it is embedded within deeper conceptions of empire, colonialism, race and racism in North America.

Charter of Quebec Values

The debate on the Charter of Quebec Values is raging across the country.  The Quebec government's decision to ban the wearing of religious symbols in public institutions certainly raises important questions about social justice in the current ear.  On the one hand, there is a consistent and likely correct argument that the Values Charter violates individual rights to religion in the Charter of Rights and Freedoms.  This raises the question as to why the Quebec government would introduce such legislation.

Yet, on the other hand, is it legitimate (or just) for a community to legislate religious neutrality, as the Quebec government claims? What does justice demand in this situation?  Is the Values Charter an attack on the individual rights of religious minorities or a community attempting to legislate religious state neutrality?

Social Justice and Remembrance

September 11 is the anniversary of two horrendous events: The fascist coup in Chile (1973) and the murder of 3000 people in New York (2001).  Both are tragic events characterized by mass brutality and death. The coup in Chile killed thousands and overthrew Chile's first socialist government.  Salvador Allende remains a fascinating political figure who died fighting for the principles he endorsed.  He certainly had a vision of a just society that was different then the free-market discourse in North America.  You can read more about Allende here. It is important to remember the victims of Chile's coup, especially given the role that the American government played in that coup.  You can read about it here.

It is equally important to remember the victims of political violence that occurred in New York City in 2001. I remember reading Michael Moore's luminous daily journal as he travelled across the United States in the days following Sept.11. It remains a touching account of how ordinary Americans coped with the violence of those attacks.  It is worth reading.  Justice requires that we remember the victims of all senseless killings, while striving for a world where political violence becomes a thing of the past.    

Noonan and the public good

We are using one of Jeff Noonan's excellent books on the critique of materialist ethics.  Essential to Noonan's critique is the concept of "life value" as opposed to individualized "money value."  In this article, Noonan lays out a defence of public institutions (and the workers who run them) as contributing to collective "life-capacity development."  Noonan's position is that the preservation of public institutions is essential for defending justice and the good.  Do you agree with Noonan?  Is it essential for a just society that public workers fight to preserve the dignity of public institutions like at the University of Windsor?

Justice and War

It is impossible to discuss questions of justice today without mentioning the civil war in Syria. The current debates surrounding Western intervention in Syria sound eerily like the debates for war in Iraq and Afghanistan a decade ago and those conflicts are still ongoing.  It would seem that few people equate war with peace. Given the overwhelming opposition to war, can there ever be such a thing as a "just"war?

SJCG started today!

Social Justice and the Common Good started today.  It looks like it will be a dynamic and exciting class.  We began with a simple question with complex answers: What makes a "just" and "good" society?  We'll be coming back to this question throughout the term.  In the meantime, Janine Brodie offers an interesting analysis in Reforming Social Justice in Neoliberal Times.

Labour Day

For those about to celebrate the long weekend known as Labour Day, it is worthwhile examining the origins of this uniquely North American holiday.  Labour Day is indeed a celebration of working men and women in Canada and the United States.  But, the origins are more complicated than simple celebration.  Labour Day was the creation of federal statute, and following the American lead, it was set for the first weekend in September.  In the rest of the world, however, Labour Day is May 1st.  So why the discrepancy?  One of the reasons Canadian Conservatives (and Liberals) supported the American legislation (and not the international one) was because May day is associated with socialist, anarcho syndicalist, and even communist workers' movements.  For Canadian officials, Labour Day was a way to respond to worker militancy but also to undercut some of the more politically radical members of the working class.   For those interested in learning more, check out Craig Heron and Stephen Penfold's excellent book: The Workers' Festival: A History of Labour Day in Canada  

Classes begin on September 5th.

Classes begin on Thursday, September 5th.  This blog will add to the classroom discussion on Critical Perspectives on Social Justice and the Common after the 5th.  Stay posted!

Social Justice Books

Jeff Shantz and José Brendan Macdonald, Beyond Capitalism

Social Justice Books

James Cairns and Alan Sears, The Democratic Imagination

Social Justice Books

Jeff Noonan, Materialist Ethics and Life Value

Social Justice Books

Books we'll be using for INTS 400: Rise and Fall of Economic Justice

Social Justice and the Common Good

I'll be using this blog as part of our INTS 400: Social Justice and the Common Good.  Follow along.  It should be a heck of a ride.