New Orleans In the early years of this century in Canada public employees and their unions faced almost exactly the same kind of hard conservative, neoliberal provincial attack on collective bargaining that we are seeing in the Republican assault in the Wisconsin, Ohio, and Indiana. Conservative governments had gained the whip hand in provincial parliaments like that of British Columbia where the labor-backed, progressive New Democratic Party (NDP) was still a huge factor and often contended for power in the west, and saw their opportunity clearly. In language and arguments that mirror today, the conservatives eviscerated a number of collective bargaining entitlements in order to weaken public unions in the name of fiscal restraint and budget cutbacks.
After a fierce but losing campaign, in a “hail, Mary” pass the 60,000 member British Columbia Government Employees Union (BCGEU) which represented most provincial employees filed suit contending that the province did not have the right to undermine the basic representational and bargaining rights of unions for two reasons. First, because the Canadian Charter of Rights and Freedoms guaranteed in section 2(d) that Canadians had the freedom association. The BCGEU argued that there was no way to separate the right to associate from the principle and practice of collective bargaining. Secondly, they argued that under International Labor Organizations (ILO) conventions to withdraw collective bargaining rights was a fundamental breach of human rights.
Not surprisingly the local and provincial courts quickly dismissed the legal challenge, so the BCGEU appealed to the Supreme Court of Canada. To the shock of legal observers and the conservative right in Canada, in 2007 the Court in an unprecedented decision in Health Services and Support—Facilities Subsector Bargaining Association v. British Columbia held with BCGEU that collective bargaining was in fact inextricably bound with the fundamental freedom expressed in the right of citizens to speak and to associate. The decision did not guarantee unions the right to strike and in fact was not about unions or union rights whatsoever, but by essentially guaranteeing the equivalence of constitutional protection for the right to for public employees to bargain and organize put a huge finger in the dike of the anti-union attacks in Canada.
Ok, the United States is not Canada, I get that, but the ability for American unions to make the response to these viperous, partisan attacks about a protection of basic American freedoms for citizens is categorically the right way to go. In the private sector it always surprises organizers to read the opening language in the National Labor Relations Act sixty years ago and its full throated endorsement of collective bargaining as the public policy of the United States, but that same notion is what propelled the decision in BC Health Services and might be what could save the day for public workers in the US today.
One of the many contradictions in Wisconsin Governor Scott Walker’s anti-public worker assault is his interest in restricting mandatory collective bargaining to only wages while eliminating a workers’ collective voice on all of the other critical terms and conditions of employment. Walker wants to bait a trap for unions so that every dispute is “greedy” unions and “selfish” state workers against penny pinching Republic Governors and legislators. Maybe tactically, in reframing to win, unions ought to offer to give away the right to bargain on wages in order to protect the right to bargain on everything else.
This is war, so the battleground to some degree has already been chosen, but as different as the Canadian experience is, there are lessons that their unions can teach about how they wrested victory from the efforts to survive. United States unions need to burn some midnight oil and learn these lessons from the great north, and do so quickly!