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From the May-June 2007 issue of Union Democracy Review #168

Does Canadian labor need an LMRDA?

by Judith Schneider

In IBEW Local 353 (Toronto, Ontario), members have been enmeshed in a string of disciplinary hearings and appeals arising from their opposition to the local's leadership. The operation of a rank-and-file website, the right to openly protest election misconduct, the display of the IBEW logo, criticism of leadership, the publication of a transcript of their own hearings - all and more have been subject to charges. If they were members of a local in the United States, the Labor-Management Reporting and Disclosure Act would protect their democratic rights. When they learned that the U.S. law did not apply to Canadian locals, some of them proposed that their local lobby for a similar Canadian law.

Response came in a lengthy "discussion paper" with a lofty title --- "Soaring Backwards into the Future" --- which denounced their idea. Its author was anonymous, but it had all the earmarks of an official production. Much of the paper is an irrelevant jumble. But it does merit some consideration:

On Canadian law: The author claims that union members have "access... throughout Canada" to legislative rights protecting them from improper discipline, unfair hearings, restrictions on speech and assembly, election abuses and the like. Providing these protections, it is asserted, are the Canadian Charter of Rights and Freedoms and various provincial codes. But that is simply not the case.

Even IBEW Canadian International Vice President Phil Flemming realizes that the Charter does not apply to union actions which limit "freedom of expression" but "only ... to the Parliament of Canada, the government of Canada, and all the legislatures and provincial, territorial, or other levels of governments of Canada." In that respect it's similar to the U.S. Bill of Rights, which limits government but not unions. Actually there is no Canadian federal or provincial legislative protection for members abused by union undemocratic procedures.

What about provincial labor codes to get relief ? Those don't provide much in the way of safeguards either. In Canada, unlike the U.S., the primary power to regulate labor relations rests with the ten provinces; the federal government is responsible for only certain constitutionally specified industries. While the codes vary somewhat from province to province, legislative intervention into trade union affairs is very limited. Rather, writes Canadian law professor Michael Lynk, in his article Union Democracy and the Law in Canada, "...the Canadian approach to regulating union democracy can be characterized as a form of statutory abstinence, with very little legislative direction on the standard of union conduct in their internal political and administrative affairs." The Ontario Labour Relations Act, brandished in the IBEW discussion paper, says absolutely nothing about the right to vote in elections, freedom of speech in internal union matters, etc. In this it is similar to legislation across Canada. But it is interesting that concern about the especially high-handed actions of U.S. based construction internationals did prompt Ontario to legislatively limit their authority to interfere in the governance of Ontario locals or remove officers without just cause. (Membership access to limited financial information is required.)

So contrary to the assertions in the IBEW paper, legislative rights offer almost no protections to Canadian unionists opposing their leadership. Rather, unlike the U.S., in Canada the rights of union members within their unions are invariably limited to what the union constitutions and bylaws say they are. If you suffer an injustice in your union, you generally have to persuade the labour relations board or the court that there was some kind of a breach of your "contract" with the union, which is not easy to do. And you have to pay the costs of bringing the legal action. There is no Department of Labor to file suit to overturn unfair elections, or to supervise a rerun.

On internal slander and libel charges: The IBEW paper derides the fact that slander and libel charges inside the union are not legal in the U.S. But how and why did this happen?

The LMRDA provides that members have freedom of speech and safeguards from repressive union procedures. (The very same rights that the IBEW paper claims that Canadians already have.) But, in evading the law, undemocratic union officials used charges of "libel", "slander", "false statements" as a pretext for suppressing the legitimate democratic rights of critics. A dissident who criticized those in power would face charges of libel etc., be tried before a rubber stamp trial committee, and disciplined, suspended, fined, often expelled.

And so, to protect the very elements of democracy, the American courts ruled that unions had to be forbidden to try members on slander charges. If union officers, or any other union member, sincerely believed they were slandered, they could sue the accuser in regular court like anyone else, but they could not use the repressive disciplinary power of the union. Actually, this decision by the U.S federal courts has become the main pillar of support for civil liberties in unions. Recent experience in IBEW local 353 shows that Canadians could use the same kind of protection.

On financial reporting requirements: The LMRDA simply requires the filing of financial reports to ensure that members have access to financial information and that union officers be held accountable. (Likewise, financial filings are required in all Canadian jurisdictions.) The U.S. Labor Department, by regulations, prescribes how much information must be provided. Some American unions complain vociferously that under the Bush administration, the Labor Department requires excessive reporting, especially on political activities. But union rank and filers, even those who are skeptical of the department's motives, are pleased to get added information.

No one argues against the principle of making information on union finances available to the dues-paying members. Canada already has certain, although very limited, requirements about the disclosure of financial information. Nothing about the American Labor Department's current emphasis is mandated by the LMRDA and Canadians would evaluate what information should be required. But should it be more than there is now? That's something for Canadian unionists to consider.

* * * *
A discussion of whether Canadian union members need more protection is welcome but should begin with the facts about where things really stand now.

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