"Fairness and Balance?": The Politics of 's Labour Relations Regime, 1949-1963

Charles W. Smith

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1*1 Canada "Fairness and Balance?": The 's Labour Relations Regime, 1949-1963

By Charles Smith

a dissertation submitted to the Faculty of Graduate Studies of York University in partial fulfillment of the requirements for the degree of

DOCTOR OF PHILOSOPHY

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Abstract

This thesis explores the creation and administration of the Ontario Labour Relations Act (OLRA) and the Ontario Labour Relations Board (OLRB) between 1949 and 1963. In so doing, it examines the role played by business and organized labour in shaping labour relations in post-war Ontario. The thesis challenges conventional arguments put forward by industrial pluralists that the acceptance of collective bargaining by post-war governments equitably balanced the relationship between unions and business. In making this case, the thesis argues that the OLRA was structured by business and the close relationship it maintained with the Progressive Conservative governments of George Drew, and . In this regard, the entrenchment of collective bargaining in Ontario was closely aligned with the class interests of Ontario businesses. The close relationship that business maintained with the provincial government also worked to limit the discretionary power of the OLRB. Although the OLRB was originally intended to ensure impartiality and fairness in regulating freedoms, its discretionary power was eroded by business pressure. In order to challenge the OLRB, business was able to appeal to the courts in order to challenge the expertise and jurisdiction of the Board. These challenges led to an increasing judicialization of the Board and limited its ability to extend trade union freedoms. Ultimately, these pressures suggested that the politics of class and class struggle shaped the structure of post-war legislation in Ontario. V

Dedication

This thesis is dedicated to my parents, Arlene and Wilfred Smith. As with most families, I suspect that mothers and fathers bring different perspectives to the issues that shape the thinking of their kids. In my family, my mother has been a passionate and courageous defender of social justice for as long as I can remember. In the same way, my father has imprinted an unwavering belief in the democratic capacity of working people and their unions to change the world. Together, they have shaped the ideas and arguments presented here. vi

Acknowledgments

Woody Allen once commented that "life is full of misery, loneliness, and suffering-and it's all over much too soon." While Woody was pondering the unanswerable meaning of life, I often felt that he could have been talking about the experience of a graduate student. Undeniably, the act of research, writing, editing and finishing a PhD thesis is a work of individual endurance that takes its toll on even the most dedicated of scholars. Notwithstanding the challenges, the things that stay with you, even after they are over, are the people that planted the ideas, motivated you to go the archive one more time or simply listened to your endless thoughts on this or that piece of legislation. In this light, I was fortunate to be surrounded by so many intelligent and dedicated people while completing this thesis. I would like to take this opportunity to thank them all in turn.

At York University, I owe an intellectual debt of gratitude to my thesis advisors Lome Sossin, Bob Macdermid and Leo Panitch. All three of these scholars brought considerable talent and experience to this project and made it a far better piece of work than it could have been otherwise. I would like to thank the thesis' principle advisor, Lome Sossin for his years of considerable guidance and advice. Lome kindly and graciously took the early ideas presented here and helped construct them into a workable thesis. Bob Macdermid provided unique insight into the politics of Ontario and was invaluable in guiding the thesis through its final stages. As one of the world's leading scholars on Marxism and the left, Leo Panitch gave an incredible amount of time and insight, providing invaluable organizational and editorial advice, as well as contributing his considerable expertise on the Canadian state, political economy and trade unions. Few people are fortunate to work with such dedicated and accomplished academics.

I am privileged to have completed this thesis amongst so many passionate and talented intellectuals at York University. Many of the people I have met through the Political Science Department, and SPT have set the standard for academic achievement and progressive scholarship. I am also fortunate to have learned so much from progressive individuals in southern Ontario and in British Columbia. I am thankful for the advice, mentorship and friendship that came from the most passionate political theorists I have ever known, Geoff Kennedy and Angela Joya. I was lucky to call Gil Gaspar, one of the smartest men I have known, a friend, as well as and the most talented and courageous politician in Ontario, Cheri DiNovo. I am equally thankful for the advice and friendship of Larry Savage, Julian Ammirante, Dann Hoxsey, Jason Ellis, Fred Ho, Greg Albo, Bryan Palmer, Bryan Evans, Peter Graffe, Doug Jamieson, Tracey Summerville, Curtis Maloley, Sam Gindin, Ian Greene, Tom Wilson, the late Richard Slye, Travis Fast, Stephanie Ross, Derek Hrynyshyn, Chanchal Bhattacharya, Leah Bradshaw, Paul Hamilton, Matt Hennigar, Roddy Loeppky, Tyler Attwood, Jonathan Carson, Russell Janzen and Ian "raging" Hesketh. I was also privileged to work with two up-and-coming young scholars at Brock University, Tim Fowler and Brad Walchuk. vii

I am grateful to the administrative expertise of Marlene Quesenberry and Jlenya Sarra as well as the staff at Brock University, the , Mississauga and the . I would also like to thank the Department of Political Science at York University and the Ontario Graduate Scholarship for ongoing financial support.

It is important to single out some close friends who spent an unusual amount of time and effort helping to bring this project to the finish line. Geoff Read painstakingly went over almost every sentence in this thesis and provided invaluable editorial advice. Geoff s good humour and stern belief in comradery amongst young academics has been truly inspiring.

My friend Dan Crow helped guide my intellectual development from the picketline, through our core courses and was my long-time roommate. While we spent hundreds of hours debating (often over several pints!), it was rare that we ever found substantial disagreement.

I have also been privileged to call Dennis Pilon and Dave McGrane friends. I challenge anyone who has ever met Dennis to walk away from that first encounter without thinking that they have just met someone extraordinary. His brilliance and unending belief in the working class is awe-inspiring. Dennis is a true academic in every sense of the word. I can make similar observations about Dave McGrane. Dave and I met in 1999 when we were starting our MAs at York University. Besides a mutual interest in the left, Dave and I were both western, small-town outcasts stuck in the middle of downtown Toronto. Dave tackled these challenges with his usual good nature and sense of humour and helped ease my transition to the "big city."

Outside of the university, I owe several debts of gratitude to friends and family who helped me balance the solitary time of research and writing with sports, culture and plain old-fashion fun. I would like to thank my friends, old and new, who have helped me through this journey. This list includes Anthony Price, Trish Biondo, Deneka and Bud MacDonald, Allen Selley, Carly Jones, Susan Rogers, Jesse Philippe, Brennan Louw, Martha and Margot Haldenby, Bruce "Eugene Ripper" Charlap, Jamie Fernyhough, Chris Willerton, Wayne Carr, Andy Stephenson, Kent Bussey, Omar Rampaul, Bruce McNaughton, Paul Lospinuso, Kevin Fahey, Scott Wilson, Jeff McAleer, and David Kidd at CUPE Local 79.

As with any journey, family often remains steadfast supporters of your choices and I am thankful for their love and guidance. I would like to thank Bob and Daria Resnick, Evan, Barb, and Lorelei Resnick, Djayne, Irca and Stella Babiak and, my late grandfather Ron Norman and my grandmother Doreen Norman. In the west, I would like to thank Sonia, Victoria, Eric and Nicole Nordal, Greg and Lynn Norman, and Jack, Carol, Patrick, Andrew and Aimee Collins. My parents, Wilf and Arlene Smith have been ongoing supporters of this project, to which I owe them much. Thanks also to the two kindest and charitable men I have ever known, my brothers Matthew Smith and Lars Nordal. viii

Finally, I owe an eternal debt of gratitude to my wife Allison. I met Allison two weeks after I moved to Toronto. Whether it was fate or destiny, it was the most important event in my life. Allison has seen me through the entire process of research, writing, editing and now completion. This thesis is a testament to her wisdom, patience, love and support. I love her with my whole heart. ix

Table of Contents Abstract iv Dedication v Acknowledgments vi Table of Contents ix List of Abbreviations xii List of Tables xii

Chapter 1 Introduction 1

I. Introduction II. Exploring Industrial Relations in Ontario III. The Theoretical Approach a. The Role of Balance IV. Empirical Sources V. Chapter Outline

Chapter 2 Rethinking Wagnerism in Canada: Theorizing Fairness and Balance in Labour Relations 35

I. Introduction II. Industrial Pluralism and its Influence in Canada III. The Debate Over Industrial Pluralism a. Liberal and Institutional Interpretations b. The Primacy of Administrative Boards? c. Critical Legal Scholarship IV. Re-examining Industrial Pluralism in Ontario V. Conclusion

Chapter 3 A New Ontario? The Politics of the Provincial Labour Relations Regime, 1943-1950 91

I. Introduction II. Early Labour Legislation: Mitch Hepburn and the Ontario Liberals III. Labour Legislation under the Tories: From George Drew to Leslie Frost IV. The Consolidation of a Provincial Labour Code: Leslie Frost and the 1950 OLRA V. Conclusion X

Chapter 4 Legalization and the Limits of Reform: The Politics of Labour Relations in Ontario, 1950-1957 146

I. Introduction II. Early Employer Challenges a. The Experience b. The Ontario Experience III. Legalization and Union Security IV. Legalization and the Continued Challenges in the 1950s V. Conclusion

Chapter 5 Weakening the OLRA?: The Select Committee on Labour Relations and the Politics of Labour Reform, 1957-1960 216

I. Introduction II. The Select Committee on Labour Relations III. Trade Unions before the Select Committee IV. Employers before the Select Committee V. Final Recommendations of the Select Committee VI. Conclusion

Chapter 6 Changing the Guard: The 1960s and the Weakening of the Post-War Labour Regime 285

I. Introduction II. Challenges to the Post-War Framework III. Legacy of the Select Committee: The 1960 OLRA IV. Summer of Discontent: The Toronto Construction and Royal York Hotel Strikes V. Changing of the Guard?: John Robarts and the Renewed Assault on the OLRA VI. Conclusion: Ontario Law, Politics and Industrial Relations in the 1960s

Chapter 7 Conclusion: Rethinking Fairness and Balance in the OLRA 373

I. Introduction II. Mapping the Post-War Period in Ontario III. The Height of Post-War Trade Unionism? 1960s and 1970s IV. Two Steps Forward and Multiple Steps Back: 1980s and 1990s V. Conclusion: Shifting the Terrain? McGuinty and Beyond

Appendix I Chronology of Labour Legislation in Ontario, 1935-2007 403

Appendix II1950 & 1960 OLRA 411

Appendix III Chronology of the Royal York Strike 418 xi

Appendix IV Ontario Ministers of Labour and OLRB Chairs 420 Bibliography 422 xii

List of Abbreviations

AFL American Federation of Labour CACC Canadian Automobile Chamber of Commerce CCC Canadian Chamber of Commerce CCF Cooperative Commonwealth Federation CCL Canadian Congress of Labour CIO Congress of Industrial Organizing CLC CNR Canadian National Railway CMA Canadian Manufacturers Association CPC Communist Party of Canada CSR CUPE Canadian Union of Public Employees ESA Employment Standards Act HCEU Hotel and Club Employees Union EDIA Industrial Disputes Investigation Act, 1907 INCO International Nickel Company IUMMSW International Union of Mine-Mill and Smelter Workers IRDIA Industrial Relations Disputes Investigation Act, 1948 IWA International Woodworkers of America KWS Keynesian Welfare State LPP Labour Progressive Party MP Member of (Federal) Parliament MPP Member of Provincial Parliament NDP NLRB National Labour Relations Board (USA) NUPE National Union of Public Employees PC 1003 Privy Council Order 1003, 1944 OCC Ontario Chamber of Commerce OFL Ontario Federation of Labour OFPE Ontario Federation of Public Employees OLRA Ontario Labour Relations Act OLRB Ontario Labour Relations Board OMA Ontario Mining Association sec TLC Trades and Labour Congress TBT Toronto Board of Trade UAW UEW United Electrical Workers UMW United Mine Workers USWA of America xiii

List of Tables and Figures

Table 3.1 Strikes and Lockouts in Ontario by Fiscal Years, 1938-1950 Table 3.2 Unemployment in Ontario and Canada, 1946-1950 Table 3.3 Total Union Membership and Union Density in Ontario, 1941- 1950 Table 4.1: Unemployment in Ontario and Canada, 1950-1961 Table 4.2 Total Union Memberships and Union Density in Ontario, 1951- 1961 Table 4.3: Strikes and Lockouts in Ontario by Fiscal Years, 1951-1961 Figure 4.1: The Toronto Daily Star Comments on the Gale Decision: "The Basic Issue" Figure 4.2: The Globe & Mail Comments on the Gale Decision: "It's a One- Way Street for Some People." Table 4.4: Activity of the Ontario Labour Relations Board, 1949-1961 Table 4.5: OLRB Certification of Bargaining Agent, 1950-1961 Table 4.6: Applications for Consent to Prosecute and their Disposition, September 1, 1950-March 31, 1957 Table 4.7: Applications for Declaration that Strike and Lockout Unlawful, September 1,1950- March 31, 1957 Figure 6.1: The Star's View of the Negotiation Table 6.1: Unemployment in Ontario and Canada, 1962-1971 Table 6.2: Total Union Membership and Union Density in Ontario, 1962- 1971 Table 6.3: Strikes and Lockouts in Ontario by Fiscal Years, 1961-1971 Table 7.1: Total Union Membership and Union Density in Ontario, 1976- 2005 -1-

Chapter 1

Introduction: The Politics of Ontario's Labour Relations Regime

"Since 1990, our labour have swung unfairly in favour of either employees or employers. We have restored the traditional balance so all Ontarians can have equal confidence in our laws. This will contribute to the harmony and stability in the workplace that are vital for a prosperous, productive economy." -Chris Bentley, Ontario Minister of Labour, 20051

Introduction

This thesis will examine the creation of the Ontario Labour Relations Act (OLRA) and its

administration by the Ontario Labour Relations Board (OLRB) from the end of World

War II until the early 1960s. The thesis will also consider how institutions broadly

associated with the "post-war compromise" sought to regulate the relationship between

workers, capital and the state. In so doing, it will move beyond merely descriptive

accounts of Ontario's post-war regime of industrial legality and examine the political,

economic and legal pressures surrounding the creation and administration of labour

relations in the province. This investigation will ask if the post-war compromise mediated

and lessened the actual class divisions within the workplace as contemporary industrial

relations scholars suggest. At the centre of this analysis is the manner by which the

parties themselves used institutions such as the OLRB to alter their own position within the workplace.

Contemporary debates concerning the OLRA and the OLRB centre on the

concepts of "fairness" and "balance" in post-war . In 2005, for instance, the

1 "Ontario's Workplaces Return to Balanced Labour Relations," Canada NewsWire, 13 June 2005. -2-

Ontario Liberal government under the leadership of Dalton McGuinty passed Bill 144, the Labour Relations Statute Law Amendment Act. Included in the Liberal government's package of reforms were changes to the OLRB and a return to card-based certification for

Ontario's construction workers.2 In passing these reforms to the OLRA, the Liberal government assured both business3 and organized labour4 that they had restored the traditional goals of fairness and balance in the province's labour relations system. In making this commitment, the Liberals positioned their reforms as a departure from the so-called radical changes made to the OLRA by the New Democratic Party (NDP) in

1993 and the Progressive Conservatives in 1995.5 Similar charges of radicalism were also echoed by industrial relations scholars who denounced the NDP and the Progressive

Conservatives for destroying historical notions of balance that were attached to the

OLRA since its creation in 1943.6 Even a former vice-chair of the OLRB criticized the

2 The 2005 changes to the OLRA included the elimination of provisions requiring employers to post de­ certification information in unionized workplaces and the elimination of provisions that required union leaders to disclose the name, salary and benefits of all directors, officers and employees earning $100,000 or more a year. The OLRB was also given greater power to grant union certification when employers and unions violated the law. It also made changes to the bargaining structures in the construction industry and to the Ambulance Services Collective Bargaining Act which gave the minister greater power to appoint arbitrators during labour disputes. 3 Throughout this thesis, "business" and "employers" will be used interchangeably, as businesses used their role as employers to justify their arguments opposing the extension of collective bargaining in the province. 4 Throughout this thesis, "organized labour" will refer to the role of trade unions in Ontario. To be sure, the working class is divided between organized and non-organized workers. In Ontario, trade unions generally reflected the political views of workers ranging from conservative unions to those organized by the Communist left. 5 Felice Martinello, "Mr Harris, Mr. Rae and Union Activity in Ontario," Canadian Public Policy 26 (2000), 17-32. 6 Virginia Gait and Richard Mackie, "Business shudders at NDP's proposals: 'Unionization' of Ontario feared," Globe and Mail, 8 November 1991. Commentators on the NDP reforms denounced the package because it was seen as being excessively pro-labour. In 1995, many of these same commentators denounced the Conservative reforms because it was seen as favouring employers. In particular, the Conservative reforms erased all the NDP amendments and severely tightened restrictions on union activity. See James Rusk, "Instability predicted for firms in Ontario," Globe and Mail, 6 October 1995; James Rusk, "Tories start labour-law overhaul: Ontario's new Bill 7 will turn back clock, repeal most NDP changes," Globe and -3-

NDP and Conservatives' 'one-sided' reforms for overly "politicizing" Ontario's long- established labour relations framework.7

This thesis will explore and comment on the claim that fairness and balance was attained in Ontario in the sixty years since the passage of the OLRA in 1943. In addition to an examination of the Liberal government of that first passed the

OLRA, the thesis will analyze the post-war Progressive Conservative governments of

George Drew, Leslie Frost and John Robarts.9 As I elaborate, there are good reasons to be sceptical about the claim that the OLRA and the OLRB were developed based on

Mail, 5 October 1995. Rusk quotes noted labour law experts John Crispo, Harry Arthurs, and Morley Gunderson who argued that the reforms from both governments altered the traditional notion of balance in Ontario labour law. 7 Kevin M. Burkett, "The Politicization of the Ontario Labour Relations Framework in the 1990s," Canadian Labour and Employment Law Journal 6 (1998), 168. Commenting on these reforms in 1998, Burkett suggested that, "...one could have expected that Ontario Labour Law reform would seek...an open and deliberative process that would draw upon the best that labour, management, and academia had to offer. Instead, we received something quite different; one-sided labour law reform produced without meaningful consultation that has since spawned a second round of one-sided labour law reform, also produced without meaningful consultation, which has left a legacy of division, one- upmanship and uncertainty. Ontario deserves better." In condemning the process of the NDP, Burkett praises the methodology of the federal Sim's report which explored the Canada Labour Code in 1995. The mandate of the Sim's committee was to examine federal labour laws to balance the interests of employers, employees and the broader public. This included seeing employers and trade unions as serving "a vital role in our society and in our economy. Indeed, the balance of tensions between their interests is what drives settlements and creates enduring collective solutions." Canada, Human Resource Development Canada, Task Force to Review Part 1 of the Canada Labour Code, Seeking a Balance, (Public Works and Government Services Canada, 1995), Chapter 4. 8 Judith McCormack, "Comment on "The Politicization of the Ontario Labour Relations Framework in the 1990s,"" Canadian Labour and Employment Law Journal 7 (1999), 331-34. Former chair of the OLRB Judith McCormack contests Burkett's narrow view of politics and labour law reform, arguing that he ignores the power imbalance between business and labour. 9 Joseph Rose, "Ontario: The Conservative Hegemony," in Mark Thompson, Joseph B. Rose and Anthony E. Smith, eds., Beyond the National Divide (Montreal & Kingston: McGill-Queen's University Press, 2003), 24-6. Rose describes the situation prior to 1990 as one of slow gradualism, suggesting that the governments of Drew, Frost, Robarts and Davis approached labour law reform with caution. Rose suggests that this was the beginning of a new Conservative philosophy embracing "paternalism and pragmatism." -4-

principles of fairness and balance between trade unions, employers and government. It will be shown that there is a much stronger basis for the claim that the OLRA and the

OLRB were used to restrain labour activism and legalize workplace strife that otherwise would have threatened industrial peace. This thesis revisits the creation of the OLRA and its administration by the OLRB and makes three arguments.

First, I argue that Ontario business had much more influence over the shape and form of the OLRA than has been previously assumed. This influence weakened the extension of collective bargaining in Ontario and allowed employers to limit unionization across the province.

Second, I argue that business influence over the government in its design of the

OLRA worked to limit the discretionary power of the OLRB. In its early stage, the

OLRB was a concession to organized labour because the Board was intended to ensure impartiality and fairness in regulating trade union freedoms. Designed to replicate the

Wagner Board in the United States, the OLRB was a tripartite, non-judicial structure given the authority to broadly certify and protect collective bargaining in the province.

The tripartite nature of the Board allowed worker representatives and state officials to certify unions independently of judicial review and government interference. Many workers interpreted the new Board as contributing to the extension of industrial

10 See Mark Thomas, "Regulating Flexibility: The Ontario Employment Standards Act and the Politics of Production," Ph.D. thesis, York University, 2003. In Ontario, labour standards regulation was "recognized by the provincial government as playing a role in addressing the poverty that may result from low wages, long hours, and 'unfair competition.'" For workers unable to attain unionization, the Employment Standards Act constructed the minimum standards for wages, health and work hours in the province. Yet, Thomas has shown that the Employment Standards Act was also designed to encourage and promote "flexibility" within Ontario's labour market and thus preserve a long-standing inequality between non­ union and union workers and between workers and business. -5-

democracy in the province because it weakened the ability of employers to withstand union organizing, bargaining and strikes.

Notwithstanding these early promises, in a series of conflicts in 1940s and 1950s, business was able to convince government to bring workers' rights and Board procedure increasingly under the purview of conservative judges. With few exceptions, judges were considered conservative because they were typically drawn from the ranks of business- oriented lawyers whose sympathies were less likely to lie with workers. Additionally, judges were also hostile to the OLRB's discretionary power, which was seen to interfere with the traditional jurisdiction of courts. As a result, judges often sided with employer arguments concerning individual rights over the broader goals of expanding workers' democratic freedoms. These pressures led to an increasing legalization of Board procedure, which gave employers more ready access to courts and created more procedural steps that tended to favour the position of business. While employers did not necessarily win every case (nor did labour lose every dispute) the structure of decision­ making in post-war labour law tended over the long run to strengthen the position of business.

Finally, my third argument is that reforms to the OLRA in the 1960s reflected the efforts of business to further legalize and judicialize labour relations. In turn, these reforms further undermined the claim that the provincial government predicated its reforms to labour law around theories of balance. Rather, by 1961 it was clear that business demands for structural limitations on the right of labour unions to bargain, -6-

organize and strike had weakened the democratic potential of labour relations in the

province.

Exploring Industrial Relations in Ontario, 1949-1961

As a point of departure, the thesis examines industrial relations in the province of

Ontario." In post-war Ontario—the most prosperous and industrialized province in

Canada—labour regulation was divided into three areas: The Ontario Labour Relations

Act regulated trade union certification, the Rights of Labour Act protected the legal status

of labour organizations, while the Hours of Work and Vacations with Pay Act was a

1")

continuation of regulating minimum standards in non-unionized sectors. At its core, the

regulation of workers collective action in Ontario sought to govern industrial disputes by

incorporating peaceful, institutional relations between workers representatives in trade

unions and business.

Why is 1949 to 1961 crucial within the context of post-war labour relations? By

1948, labour unrest began to decline after the passage of the 1948 Industrial Relations

Dispute Investigation Act (IRDIA). Numerous scholars have interpreted the relative

decline in strike activity as leading to a tacit compromise between labour and capital,

11 Task Force to Review Part 1 of the Canada Labour Code, Seeking a Balance, Chapter 2. In Canada, the division of federal powers has left the regulation of industrial relations to provincial governments, although a small percentage of the Canadian labour force is regulated by federal legislation. Part I of the Canadian Labour Code, established in 1973, applies to federal works, undertakings or businesses coming under federal jurisdiction. These areas include broadcasting, chartered banks, postal workers, airports and transportation, shipping and navigation, railways, telecommunications and industries declared for the general advantage of Canada such as grain handling and uranium mining. In 1996, approximately 680,000 employees (about 6 per cent of workers in Canada) were regulated by federal legislation. 12 Thomas, "Regulating Flexibility," 191-8. In 1968, the Hours of Work and Vacations with Pay Act was renamed the Employment Standards Act. -7-

which was crystallized in the legislative creation of provincial labour legislation in the same year. In Ontario, however, the institutionalization of contemporary labour relations occurred during the tenure of Premier George Drew, Leslie Frost and John Robarts.

During those early years, both unions and employers throughout the province contested the institutional structures of the OLRA and the OLRB. During this period of crystallization, modern labour law took shape. In the course of their time in office, Drew,

Frost and Robarts placed a unique stamp on the provincial state's regulation of collective bargaining, union organizing and the right to strike. In order to understand how these institutions were shaped by labour, employers and the state, the years 1949 to 1961 take on crucial importance.

During this period, the thesis focuses on the political and economic history of the

OLRA and its application by the OLRB. This examination is important for several reasons. First, from the outset, the OLRA and the OLRB were given a mandate to encourage collective bargaining as a means to further industrial peace. Emerging from the labour struggles associated with wartime production, post-war labour legislation was designed to extend union recognition, compulsory bargaining and the legal right to strike.

This apparent compromise featured restrictions on the power of employers to dictate the employment relationship without consultation with workers and their representatives.13 Labour was also awarded institutional security, which came in the form of legally binding collective agreements and, in many cases, the automatic dues check-

13 George Adams, Canadian Labour Law (Aurora: Canadian Law Book, 1985), 16. -8-

off. In return, labour conceded many of its freedoms to strike by agreeing not to walk off the job except after the conclusion of a collective agreement.15 So persuasive did this idea of compromise become, that when Ontario Minister of Labour, Charles 'Tod' Daley introduced the government's amendments to the OLRA in the spring of 1960, he insisted that the legislation was not "a means whereby either labour or industry may have an undue advantage over the other, but shall encourage realistic and proper bargaining. Let us not forget that the old days and the old methods of doing business are gone forever."16

Notwithstanding Daley's public optimism, the political conflicts surrounding the

OLRA and the OLRB between 1949 and 1961 demonstrates that there is little evidence that provincial labour legislation replaced "the old days and the old methods of doing business." Under the Conservative governments of George Drew, Leslie Frost and John

Robarts, numerous restrictions on the rights to organize and strike were grafted onto the minimum standards outlined in the OLRA. The central question guiding this research, then, is why did a government that was publicly committed to collective bargaining actively seek to curtail the benefits of that process? Further, how did legislation that proclaimed to be neutral nonetheless systemically privilege employers over the rights of employees? My examination of the unpublished documents from government officials, businesses and trade unions reveals that the fifteen to twenty year period following the

14 The pillar of this new "security" was the Rand formula. The Rand formula was based on the perception of balance between strong (primarily industrial) unions and employers. The first part of the Rand formula purported to grant security to the union by providing for the deduction of union dues by the employer. In return, employers were given some security against, spontaneous, wildcat strikes. See discussion on page 47-50 below. 15 The right to strike was further limited by subjecting it to mandatory delays, including conciliation and arbitration. ^Legislative Assembly of Ontario, Proceedings of the 26th Parliament, 2ndSession, 3 March 1960, 937. -9-

conclusion of World War II was far from the "Golden Age" of labour-management relations that many have assumed. Rather, I conclude that a collaborative relationship between the provincial government and regional employers continued throughout the post-war period. These political relationships thwarted the extension of union rights in the province.

In making these assertions, I am interested in explaining the process of institutional crystallization that occurred within the labour relations field in the period immediately following the war, roughly from 1949 to 1961. These years are significant because the Progressive Conservative governments of George Drew, Leslie Frost and

John Robarts laid the institutional framework for modern day industrial relations in the province of Ontario. In popular mythologies of those years, numerous scholars (as well as government itself) used the language of balance to suggest that the neutral hand of the state achieved a great compromise between business and organized labour. In order to challenge this assumption, it is necessary to understand how the politics of class and class struggle shaped the institutions throughout this crucial period of configuration.

A critical examination of this period is important for several reasons. First, a study of the OLRA and the OLRB in their formative period is significant to understanding the institutions regulating trade union freedoms in Ontario. This is so because while there have been many studies concerning the history of the federal government's adoption of collective bargaining during World War II, few studies have examined the political or economic history of provincial legislation in the same period.

There have been, however, some notable exceptions in Ontario. In the late 1970s, -10-

Fredrick David Millar broke new ground with his critical examination of the Hepburn and Drew governments' establishment of the Ontario Labour Court and its replacement

1 7 by the OLRB. In many ways, my research begins where Millar left-off, bringing the political economy analysis of the OLRA and the OLRB up to the late 1960s. As Millar showed in his study, the OLRA inscribes unique importance in the OLRB to administer labour relations in the province. The OLRB's role is essential to regulating all aspects of the unionized employment relationship, ranging from the rules of certification, conciliation, bargaining and the termination of collective agreements. Despite the importance of the OLRB, little work has looked at the role it played in constructing the post-war regime of industrial legality in the two decades following the end of the war.

Second, an examination of the OLRB in its formative period reveals a much more complex relationship between different levels of the state, including institutional tensions between the executive, the Board and the courts. I argue that it is necessary to re-examine the series of conflicts that occurred within the period of institutional crystallization in the early 1950s. Although the Board had varied leadership and membership during this period (and the role of appointments to the Board on the dynamics I wish to examine may well merit a separate study), I am interested in this thesis less in the internal workings of the Board and more in the relationship between the Board, the state and class forces during specific moments of crisis. Concentrating on the Board in these early crises brings to light the way in which business was able to limit the democratic potentials of the

OLRB. These limitations were most prevalent in the way that business was able to

17 F. David Millar, "Shapes of Power: The O.L.R.B.: 1944 to 1950," Ph.D. thesis, York University, 1980. -11 -

challenge many of the Board's powers in court. By taking the position that Board powers

needed to be subjected to judicial review, business was taking pre-emptive steps to limit

the extension of unions in Ontario.

Third, most studies of the post-war collective bargaining regime have

concentrated on the period up to and including the years surrounding the War.18 The

studies that have examined the post-war period have portrayed it as riddled with internal

tensions. Many of these studies have devoted little attention to an examination of

provincial dynamics. Most industrial relations scholarship has accepted the premise of a

post-war "Golden Age" of collective bargaining (or Wagnerism)1 in Canada. To the

extent that Wagnerism came under stress, it was seen as the product of the economic

crisis of the 1970s.20 This premise, however, merits revisiting. Based on my analysis,

class forces continued to shape labour relations after the war. To that end, to the extent that there were class realignments after the war, these did not render the state more open

and inclusive to the expansion of workers' rights. In looking critically at the politics

surrounding post-war labour relations in Ontario, the goals of fairness and balance can be placed within the political, economic and social circumstances of the era. Such an

Judy Fudge and Eric Tucker, Labour Before the Law: The Regulation of Workers' Collective Action in Canada, 1900-1945 (Toronto: Oxford University Press, 2001); Bryan Palmer, Working Class Experience: Rethinking the History of Canadian Labour, 1800-1991 2nd Ed. (Toronto: McClelland & Stewart, 1992); Leo Panitch and Donald Swartz, From Consent to Coercion: The Assault on Trade Union Freedoms 3rd Ed. (Toronto: Garamond, 2003); Laurel Sefton MacDowell, "The Formation of the Canadian Industrial Relations System during World War II," in Laurel Sefton MacDowell and Ian Radforth eds., Canadian Working Class History: Selected Readings 3rd Ed. (Toronto: Canadian Scholars' Press, 2006), 281. 19 Bob Russell, "Labour's Magna Carta! Wagnerism in Canada at Fifty," in Cy Gonick, Paul Phillips, Jesse Vorst eds., Labour Gains, Labour Pains: 50 Years of PC 1003 (Halifax: Fernwood, 1995), 177-192. 20 After the 1970s, critical researchers have argued that the post-war regime was replaced by an open assault on trade union freedoms. This open coercion was important to understanding the transition to neo- liberalism in the 1980s and its consolidation in the 1990s. -12-

analysis brings to the surface not only the benefits, but also the severe limitations of labour's post-war compromise.

Fourth, the scholarship on the politics of labour relations in the post-war period has tended to overlook the political, economic and social divisions between government, labour and business. Traditional scholarship has predominantly maintained that Ontario's relative strength in the North American economy was premised on Progressive

Conservative governments that embraced state interventionism with relative ease. This account assumes that government officials, large manufacturing and finance capital and conservative union leaders, accepted the basic structures of modern industrial relations.

On this basis, commentators concluded that the post-war bargaining regime in Ontario

"naturally" evolved to recognize the rights to collectively bargain and to strike.

Meanwhile, on this view, the Ontario Conservative Party, while never an ally to organized labour, was neither ideologically opposed to the goals of the labour movement nor did they see collective bargaining as contrary to the goals of private sector growth.

The provincial government's policies in the 1950s and 1960s have been described as guiding through a pragmatic formula in which the party was "dragged along by the needs and demands of its people." This populist interpretation of the Conservative governments suggests that Ontario's post-war labour regime evolved as the neutral

21 Graham White, "Change in the Provincial State 1952-2002," Paper Prepared for the Role of Government Panel October 2002. http://www.law-lib.utoronto.ca/investing/reports/rp8.pdfCAccessed May 1st, 2006). 22 D.R. Richmond, The Economic Transformation of Ontario (Toronto: Ontario Economic Council, 1974), 12. Richmond suggests that the labour legislation coming from the Drew, Frost and Robarts governments was "progressive in intent and reflected a recognition of the role of organized labour in an industrial society." 23 Jonathan Manthorpe, The Power & The Tories: Ontario Politics 1943 to the Present (Toronto: MacMillian, 1974), 8. -13-

mediator between three equally competing groups: management, unions and state officials.

An examination of the actual positions outlined by political officials, business actors and trade union leaders, however, reveals a more contextual and multifaceted picture of the post-war period. Given the complexity of the politics surrounding this period, it is important to examine how the participants themselves interpreted the new regime of industrial legality. Perhaps just as importantly, it is important to understand how the Progressive Conservative governments of the post-war period balanced its traditional conservative values with the new regime of industrial legality. While some research has begun to challenge the traditional interpretation that the governments of

Drew, Frost, and Robarts were simple pragmatists,24 the class antagonisms surrounding the OLRA and the limitations of the OLRB has been largely under-scrutinized.

Fifth, studying the formative years of the OLRB is important because future union organizing projects will have to address what, if any, democratic potential the post-war legal institutions offer for the future of trade unionism in the province. As trade unions today are increasingly on the defensive, one of the ongoing debates within union renewal strategies is how to organize into non-union sectors. Research across North America suggests that if trade unions are to respond to contemporary challenges, they will have to be reinvented to encompass new strategies of social movement unionism (SMU).25

Robert Macdermid and Greg Albo, "Divided Province, Growing Protests: Ontario Moves Right," in Keith Brownsey and Michael Howlett eds., The Provincial State in Canada: Politics in the Provinces and Territories (Toronto: Broadview, 2001), 163-72. 25 On this question, see Rick Fantasia and Kim Voss, Hard Work: Remaking the American Labour Movement (Berkley: University of California Press, 2004), 127-8. According to Fantasia and Voss, Social -14-

Notwithstanding the importance of building SMU, trade union organizers will continue to rely on government and the institutions of post-war industrial relations in order to grow the movement. While neo-liberalism continues to force trade unions to adopt to new organizing strategies, there can be little doubt that questions of workplace democracy and the expansion of unions into new sectors will depend on how the OLRA and the OLRB work to regulate unionization across the province. What is more, given the newfound enthusiasm that Canadian labour has for judicial activism to further trade union rights, it is essential to examine the prospects and limitations that government initiatives have had for trade unions. Quite simply, in exploring the democratic potential and political limitations in the so-called "Golden Age" of trade union freedoms, it becomes easier to

Movement Unionism, "rather than trying to organize the unorganized with campaigns directed from the top that "sell" unions as a kind of representation service that will benefit those who purchase it, social movement unionists have focused on social solidarity, so that workers will have the means for collectively solving the problems they face at work and in society." At the heart of the campaigns are strategies to tackle large global corporations rooted in issues of social justice. They also must be willing to "look beyond traditional and routinized form of labor recognition ...the formal NLRB election" (emphasis added). In Canada, the debate has surrounded questions of value-added unionism (what some have termed business unionism) and social movement unionism. The former is defined in terms of creating value added partnerships with businesses for mutual business/worker gains. The latter emphasizes building class solidarity and worker activism, which encompasses broader questions of political and social change. See Pradeep Kumar and Christopher Schenk, "Union Renewal and Organizational Change: A Review of the Literature," in Pradeep Kumar and Christopher Schenk eds., Paths to Union Renewal: Canadian Experiences (Toronto: Broadview, 2006), 32. With the strong presence of public sector unions such as the Canadian Union of Public Employees (CUPE), Stephanie Ross has argued that the Canadian labour movement is more open towards social movement unionism than in the United States. See Stephanie Ross, "The Making of CUPE: Structure, Democracy and Class Formation," Ph.D. thesis, York University, 2005, 9-10. 26 Martinello, "Mr. Harris, Mr. Rae," 30. 27 On the new world of trade union organizing, see Charlotte Yates, "Expanding Labour's Horizons: Union Organizing and Strategic Change in Canada," Just Labour 1(2002), 31-40. On the role of the Labour Board, see Felice F. Martinello and Charlotte Yates, "Union and Employer Tactics in Ontario Organising Campaigns," in David Lewin and Bruce E. Kaufman eds., Advances in Industrial and Labor Relations (Amsterdam: Elsevier, 2004), 157-90. -15-

envision how state agencies can work (or hinder) the political interests of working people in the future.

I will address these central questions in this thesis. Below, I discuss the conceptual framework that animates my study.

The Theoretical Approach

In 1994, Eric Tucker observed that the conventional historiography of labour law reform in Canada and its provinces has gone through three broad stages of development:

"repression" (1860s-1900s), "toleration" (1907-1940), and "promotion" (1945-1990s).28

In making this observation, Tucker suggests that the era of "promotion" is the one that has found to be most wanting, and thus needs further examination and study. Why has this stage been neglected? After 1945, the federal and provincial states' public response to trade unionism underwent a dramatic about-face. For the first time, the federal and provincial states accepted, albeit after exhausting all alternatives, certain trade union freedoms. The turn away from the era of open "repression" and "toleration" was now replaced with legal rules and regulations derived from the state sanctioned laws and boards, which had an aura of legitimacy for mainstream scholars of the 1950s and

1960s. When critical researchers began to examine the limitations of these post-war

28 Eric Tucker, "The Faces of Coercion: The Legal Regulation of Labor Conflict in Ontario, 1880-1889," Law and History Review 12 (1994), 277. 29 This sense of legitimacy was interpreted by both liberal scholars such as H.D. Woods and social democratic scholars such as H.D. Logan. According to some interpretations of this work, the sense of legitimacy that this scholarship provided was very much grounded in the Cold War realities of the period, which saw Liberal and Social Democratic activists attempting to wrestle control of the trade unions away from Communist sympathizers. On this question, See Bryan D. Palmer, "Listening to History Rather than Historians: Reflections on Working Class History," Studies in Political Economy 20 (1986), 50-2. -16-

institutions in the 1970s and 1980s they suggested that the acceptance of collective

bargaining was predicated on numerous contradictions, the most important being the

replacement of worker militancy with judicial forms of legitimacy.30 Despite these

criticisms, however, almost all commentators suggested that the "Golden Age" of labour relations—prefaced with goals of "promotion" of trade union freedoms—represented a

historical anomaly situated between open state repression of the 1930s and the neo-

liberalism of the 1980s and 1990s.

In my view, a political economy analysis is central to understanding more fully the dynamics of the "promotion" stage in Ontario. In concentrating on this period in

Ontario, it is important to question how the post-war provincial state was itself influenced by the class antagonisms of the post-war political economy. As such, I have adopted an analytic framework inspired by the neo-Marxist political economy tradition, concentrating specifically on how issues of class and class power shaped the structure and administration of the OLRA and the OLRB. According to Leo Panitch, an analysis of this nature must concentrate on several themes.31 First, it must view power as conceptualized by people's relationship to property and production. Second, class is defined by the social relationships that people enter (or are born) into vis-a-vis their relationship to the forces of production within society. As these relationships are inherently political and unequal, they represent the basis of conflict within any economic

30Leo Panitch and Donald Swartz, From Consent to Coercion; Stephen McBride, Not Working: State, Unemployment, and Neo-Conservatism in Canada (Toronto: University of Toronto Press, 1992), 194-8; Craig Heron, The Canadian Labour Movement: A Short History 2nd Ed. (Toronto: Lorimer, 1996), 75-84. 31 Leo V. Panitch, "Elites, Classes and Power in Canada," in Michael S. Whittington and Glen Williams, eds., Canadian Politics in the 1990s (Toronto: Nelson, 1995), 160-9. -17-

system. Third, it must view social relations as historical and dynamic rather than static and fixed. Finally, it must examine the complex ways in which the state's relative autonomy from direct class coercion is reconstituted as an entity whose primary function is to maintain the necessary social conditions of economic dominance. In mapping the linkages between the state and class inequality, a class analysis does not endeavour to subscribe monolithic power to any specific fraction of a ruling class.33 Rather a class analysis seeks to examine how the interposition of class power repositions the role of the state within any given conjuncture. 4

An analysis of this nature seeks to expand on what Goran Therborn has termed the "problematic of class capacity."35 In Therborn's work, such an examination begins with the assertion that classes derive their power from certain political and economic positions within a given "regime of accumulation." For business classes, power is derived from the capacity of capital to expand the market. Working class power, by contrast, derives from its capacity to act collectively. Within any given conjuncture, the capacity of any class fraction will be defined by their relationship to the productive forces

Wallace Clement and John Myles, Relations of Ruling: Class and Gender in Postindustrial Societies (Montreal & Kingston: McGill-Queen's University Press, 1994), 4-5. In order to assess the "balance of class power" between competing groups of people, a class analysis needs to examine the cultural, ideological, gendered and racialized relations between various class forces. Certainly we can not discuss class power within any society without also examining the way in which power is defined by gender or race. Simply because of the sheer size of a project that would encompass the role of race and gender within the broader class dynamics of post-war Ontario, however, those questions will not be at the centre of this research project. 33 As an example of such an analysis, see John Porter's classic elite analysis in, The Vertical Mosaic: An Analysis of Social Class and Power in Canada (Toronto: University of Toronto Press, 1965). 34 Leo Panitch, "The Role and Nature of the Canadian State," in L. Panitch, ed., The Canadian State: Political Economy and Political Power (Toronto: University of Toronto Press, 1977), 5. 35 Goran Therborn, "Why Some Classes are More Successful than Others," New Left Review 138 (1983), 39. -18-

of accumulation and the ability to influence state policy to benefit (or restrict) the capacity of other classes to act.36 Within these different forms of accumulation, there will be several constraints on working class activity, which include the major source of wealth making; the kind of labour-force recruited and employed; and the relations of the labour process.37 In its totality, this implies that classes are not monolithic but are themselves divided and fragmented.

In post-war Ontario, industrial workers and workers in the natural resource sectors made up the majority of the organized working class in the province. Within the dominant regime of capitalist accumulation—frequently defined as Fordism—the labour process was stabilized through simplified and massed produced production. For theorists of Fordism, the post-war regime of accumulation in North America and Western

Europe occurred through a tacit class compromise between capitalist states, organized labour in the heavy manufacturing industries and large manufacturing and natural resource capital. In terms of class power, then, the collective capacity of the working

Ibid. Therborn argues that class analysis is "an open ended process with no fixed destination. Classes must be seen, not as veritable geological formation once they have acquired their original shape, but as a phenomenon in a process of formation, reproduction, reformation and deformation." 37 Ibid., 42. 38 Gregory Albo, "The New Realism and Canadian Workers," in Alain Gagnon and James P. Bickerton eds., Canadian Politics: An Introduction to the Discipline (Toronto: Broadview Press, 1990), 475-6. This labour process was regulated by "Taylorism" which was a "scientific" regulation of the workplace designed to de-skill workers into simplified assembly-line production. 39 Leo Panitch, Working Class Politics in Crisis: Essays on Labour and the State (: Verso, 1986), 161-2. In Canada (and the provinces), it has been argued that the Fordist regime of accumulation was much weaker than corporatist structures in Western Europe. Daniel Drache and Harry Glasbeek, for instance, have suggested that this weakness grew out of Canada's continued reliance on the export of raw natural resources to drive long-term growth. See Daniel Drache and Harry Glasbeek, The Changing Workplace: Reshaping Canada's Industrial Relations System (Toronto: Lorimer, 1992), 17. See also, see Jane Jenson, "'Different' but not 'exceptional' Canada's Permeable Fordism," Canadian Review of and 26 (1989), 78-9. As this strategy relied on the search for secondary markets to export raw -19-

class was very much structured by these workers and their organized representatives. In examining this organizational structure, Paul Craven suggests that a class analysis of labour relations within

...any conjuncture...would want to consider at least the relative strength of class organizations; their leaders' philosophical orientation to the state, to liberal capitalism, and to one another; the extent to which these leaders can command at least the tacit support of their members; their historical experience the presence or absence of other deeply embedded divisions in society; various demographic and economic considerations; the quality and pace of change in various institutional areas; and so on....41

In this way, the structure of the working classes in relation to the strength of the business classes can be mapped through their interaction with the provincial state.

Neo-Marxist state theory also provides useful guidance for this study. In the post­ war period, the provincial state's role in regulating economic forces was concentrated primarily on what Ralph Miliband called the "routinization of conflict."42 Under these conditions, the state entered industrial conflict between the classes under the guise of neutrality and independence seeking to find settlement predicated on fairness and balance between the two contending parties. The state's intervention, however, was always based

materials and the importing of new technologies from the manufacturing powerhouses in the United States and Western Europe, Canadian domestic manufacturing remained weak and regionally fragmented. The spatial configuration of these new economic regimes centred on Ontario and while provincial governments in the Atlantic region remained trapped in chronic problems of regional poverty. 40 The question of class and the role that class conflict takes in guiding historical analysis has long been a contentious one. To be sure, we cannot envision the conflict between "the working class" and "the employer class" as the simple driving force of history. Within any given class dynamic, we must distinguish between the organized working classes, unorganized workers, farmers, and those with no relationship to production. We must also examine employer classes in relationship to their sectors, the size of the businesses and changing nature of production. 41 Paul Craven, An Impartial Umpire: Industrial Relations and the Canadian State, 1900-1911 (Toronto: University of Toronto Press, 1980), 358. 42 Ralph Miliband, The State in Capitalist Society: The Analysis of the Western System of Power (London: Quartet, 1969), 74-5. -20-

on its capacity to bring its coercive power to bear on any industrial dispute. In almost all cases, this added significant weight to the employers' bargaining position. Moreover, this form of intervention highlighted divisions between those unions that accepted the post-war regime of industrial legality and those that sought to expand or replace it with freedoms that were more inclusive. In Ontario, the state's discourse on labour relations emphasized that the purpose and policy of labour legislation should be to keep the powers of labour and management in reasonable balance.43 I argue that, "balanced labour relations policy," as demanded by business and enforced by state officials, resulted in real limitations on the rights of workers to organize and to strike. Within this light, it is important to examine critically the way in which the conception of "balanced labour law and policy" reshaped the relationship between workers and employers.

a. The Role of Balance

What does "balance" mean in the context of the state's labour policy? The questions surrounding balance and labour relations are complex and multifaceted. On one level, the language of balance can be understood as simple rhetoric used by pragmatic politicians to elaborate a centrist position between the left and right of the political spectrum. Yet, as I seek to demonstrate, state recourse to the language of balance was rooted in a liberal conception of industrial relations that was predicated on specific understandings of unions and business within a capitalist society. In Ontario, balanced

3 Archives of Ontario (hereinafter AO), Proceedings of the Select Committee on Labour Relations (hereinafter PSCLR), RG 49-138, Box C 92, Submission of the Ontario Division of the Canadian Manufacture's Association to the Select Committee on Labour Relations, 29 October 1957, 4. -21 -

labour law followed specific patterns that divorced the collective strength of workers (as

much as institutionally possible) from direct interference within the new field of

collective bargaining and union organizing. Under these conditions, legislation was

balanced when it constrained the rights of workers to organize and strike, except under

very specific circumstances. Balance, in other words, tended in structural ways to benefit

business and disadvantage labour, although this is not to suggest that in every instance the OLRA or the OLRB favoured business interests over labour interests.

After 1945, the provincial state did accept certain rights to organize, strike and

bargain which seemed to reflect a genuine transition in the thinking of Progressive

Conservative and Liberal politicians. The open acceptance of labour rights by all levels of the state led many industrial pluralists to conclude that the state's role in administering

labour relations was actually to govern the "balance of power" between relatively autonomous and equal groups of workers and business. Popular conceptions of post-war legislation, such as those constructed by Woods and Ostry, argued that the provincial state predicated its labour legislation on "a policy of balance of power designed to protect the 'legitimate' interests of workers, employers and the public."44 Pluralists thus concluded that the post-war OLRA and its administration by the OLRB ushered in a new era of industrial democracy in the province.

In this thesis, I question the industrial pluralist's interpretation of state neutrality.

For instance, how can the discourse of "balance" explain the continued social (and political) inequalities within post-war capitalist society notwithstanding the expansion of

44 H.D. Woods and Sylvia Ostry, Labour Policy in Canada (Toronto: MacMillian, 1973), 32. -22-

industrial democracy? How can the large discrepancy between unionized and non- unionized workers throughout the post-war period be reconciled with the discourse of

"balance"? In order to answer these questions, it is necessary to examine the claim of a neutral state against the backdrop of the structures of capitalist industrial relations.

I attempt to situate an understanding of "balance" within the neo-Marxist understanding of the relative autonomy of the state. Although a contested concept,45 the relative autonomy of the state suggests the state may act against the short-term interests of those who control capital but that the state is ultimately tied to promoting the long- term conditions for capital accumulation. On this view, the state is not an instrument of one dominant class or autonomous power, but, as Leo Panitch has argued, is best understood as a field of class struggle itself.46

In viewing the state as relatively autonomous from the direct class power, and yet also shaped by it, we can then begin to formulate an understanding of what "balance" means within the context of post-war industrial relations. In order to maintain the conditions for long-term accumulation, it was necessary for the Ontario state to accept certain labour rights to collectively bargain and to strike (as the alternative of labour unrest would have eroded the long-term interests of capital). Yet, those labour freedoms did not, and indeed could not, undermine the structural relations between workers and businesses within a capitalist society. If worker militancy threatened these conditions, the

Gregory Albo and Jane Jenson, "A Contested Concept: The Relative Autonomy of the State," in Wallace Clement and Glen Williams eds., The New Canadian Political Economy (Kingston & Montreal: McGill- Queen's University Press, 1989), 181. 46 Panitch, "Elites, Classes, and Power in Canada," 166. -23-

state's neutrality would inevitably limit the ability of workers to exert collective action.

Under these conditions, balanced labour relations implied that workers rights had to be

recognized in order to be regulated and constrained. Contrary to most liberal scholarship

then, post-war collective bargaining laws were anything but "balanced" or "fair." In other words, when the historical record is examined more closely, the traditional assumptions regarding "balance of power" are untenable.

My approach has also been influenced by the "revisionist" labour on the creation and administration of industrial legality within liberal capitalist states.47 In challenging, the traditional "evolutionary"48 nature of legal reasoning, revisionist legal historians have outlined the contradictions associated with the collective bargaining framework constructed during World War II. This requires, as H.C. Pentland warns, reaching beneath the "letter of the law" and examine how its "interpretation and enforcement by public authorities and judicial actors shapes the system of industrial relations."49 Building on Pentland's observation, the thesis links the OLRA, the OLRB and the courts to the dynamics of class power in society. Such an analysis takes as its starting point that,

Judy Fudge, "Voluntarism and Compulsion: The Canadian Federal Government's Intervention in Collective Bargaining From 1900 to 1946," Ph.D. thesis, University of Oxford, 1987, 3. 48 Eric Tucker and Judy Fudge, "Forging Responsible Unions: Metal Workers and the Rise of the Labour Injunction in Canada," Labour/Le Travail 37 (Spring 1996), 83. Eric Tucker and Judy Fudge describe these accounts as "whiggish" interpretations of labour law reform. By this, they imply that liberal scholars have tended to view changes in labour law as evolutionary and a story of progress. As they remind us, this debate was structured very much between those sympathetic to the "old" labour historians, who emphasized that the collective bargaining regime emerging from the post-war compromise was a progressive outcome of past struggles. 49 H.C. Pentland, "The Canadian Industrial Relations System: Some Formative Factors," Labour/Le Travailleur 4 (1979), 9. -24-

... class power is not independent of institutions, but neither are institutions independent of class power. Workers and employers struggle to shape the institutional and legal environment in which their relations will be conducted. Once established, this environment has, to varying degrees, a life of its own that mediates the effect of future shifts in the balance of economic and political power between labour and capital.50

In so doing, the thesis brings the narrative surrounding the post-war regime of industrial

legality forward into the 1950s and 1960s.

This type of critical legal analysis seeks to examine the distinction between law and politics or, to be more precise, to explain the alleged contrast between the ideological character of political disputes and the claims to neutrality of legal interpretation. Such an approach, as Karl Klare has explained, seeks to "reconstruct the ideological content and political and institutional implications of collective bargaining law" by examining it in its

social and historical setting.51 This type of legal examination seeks to reach beneath the web of legalistic jargon and examine how social relations intersect with the law.

Ultimately, I conclude that law and judicial decision-making are not separable from the political and economic class struggles over social reform. Allan Hutchinson and Patrick

Monahan described law in this sense as:

...politics dressed in different garb; it neither operates in a historical vacuum nor does it exist independently of ideological struggles in society. Legal doctrine not only does not, but also cannot, generate determinant results in concrete cases. Law is not so much a rational enterprise as a vast exercise in rationalization. Legal doctrine can be manipulated to justify an almost infinite spectrum of possible outcomes.52

Tucker and Fudge, "Forging Responsible Unions," 82-3. 51 Karl Klare, "Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law," Industrial Relations Law Journal A (1981), 451. 52 Allan C. Hutchinson and Patrick J. Monahan, "Law, Politics and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought," Stanford Law Review 36 (1984), 206. -25-

Through the incorporation of a class analysis into studying labour law reform, the legal arguments associated with "fair and balanced" law are presented as an ideological construct. As an ideology, the law within liberal capitalist democracies functions to make unequal relations appear as if they were relations between equals.

In many cases, the post-war regime of industrial legality produced significant results for workers and their trade unions. In other cases, the particular form of class antagonism enshrined in the law worked to divide workers and benefited the established order. In mapping these relations, the post-war OLRA and OLRB cannot be seen as simply the creation of powerful elites, but are rather the product of antagonistic social and political forces. These concepts help us explain how the post-war model of labour relations worked to establish a powerful mode of legal consciousness that inadvertently reinforced the tensions associated with modern industrial society and laid the institutional foundation for the political and legal realignments in the 1980s and 1990s.

Empirical Sources

The primary research for this study consisted of examining a wide variety of governmental and public sources, including records from the Archives of Ontario, the

National Archives of Canada, court cases, OLRB decisions, government publications and quantitative economic data. Non-governmental sources included newspapers, union publications and historical interviews. The records used roughly follow the chronological period of the thesis, ranging from the mid 1940s through to the late 1960s. -26-

The Ontario Archival records consulted were primarily the Premiers' Files and the Ontario Ministry of Labour records (RG) and at the National Archives, the records consulted were the Jacob Finkelman papers (NAC FP MG 31).53 These files included a series of letters, correspondence, meeting minutes, and historical interviews. All of the archival records used included correspondence, letters, reports, annual submissions and detailed testimony of government officials, political personal, labour organizations and employer lobby groups. Among the most prominent employer groups were the Ontario division of the Canadian Manufacturers Association, the Toronto Board of Trade and the

Ontario division of the Canadian Chamber of Commerce. Numerous files from individual unions were also consulted, which included an examination of union central publications and historical interviews. These publications included the Canadian Congress of Labour's

(CCL), and the Trades and Labour Congress's (TLC) provincial newspapers before 1956.

After the TLC/CCL merger in 1956, the Ontario Federation of Labour's newspaper, The

Ontario Labour Review was used. All of these papers were kept on file by the Ontario

Federation of Labour. I also relied on the Canadian Labour Congress's national publication, Canadian Labour for relevant national events. Individual records examined included the Ontario Federation of Labour annual meetings, and internal communications of the United Steelworkers, International Union of Mine-Mill and Smelter Workers, the

These files included: Premier Frost's General Correspondence Files (RG 3-23 and 24); Premier J.P. Robarts General Correspondence Files (RG 3-26); The Ministry of Labour Correspondence Files (RG 7-1); Minister of Labour Legislature of Ontario Files (RG 7-3); Correspondence of the Deputy Minister of Labour (RG 7-12); Legislation and Regulation Files (RG 7-14); General Correspondence of the Chairman of the OLRB (RG 7-54); Research Studies-Policy and Legislation (RG 7-130); Proceedings of Select Committee on Labour Relations (RG 49-138) Proceedings of the Royal Commission on Labour Disputes (RG 18-152); and Ontario Historical Studies Series Political Interviews (RG 47-27). -27-

Hotel and Club Employees Union (HCEU) and their correspondence with various

construction unions during the 1961 strikes.

I supplemented government archival sources with further public records published

by the OLRB and the various courts throughout Canada, including the Supreme Court

Report (SCR); the Dominion Law Reports (DLR); Canadian Labour Law Cases (CLLC)

and the Canadian Labour Law Reporter (CLLR). Other government publications relied

on included the federal Department of Labour's Labour Gazette and the federal

government's Canada Year Book. Ontario economic data was obtained from secondary

sources and from the Ontario Economic Council. A great deal of historical material used

for this thesis was also garnered from the Toronto Daily Star, , and to

a lesser degree the Toronto Telegram and other regional newspapers. The yearly

publication of the Canadian Annual Review also proved helpful, especially for the

sections on the 1960s and the 1970s.

The historical narrative derived from these primary materials constructed a picture

of post-war Ontario that was steeped in struggle over the shape of the OLRA and the

OLRB. In particular, business groups in the province engaged in a prolonged campaign to limit the extension of the OLRA and sought to restrict the discretionary power of the

OLRB. As business interpreted the Board as contributing to the extension of unionization

in Ontario, these groups sought to bring the Board under the purview of judicial review.

Contrary to popular interpretation regarding the post-war Conservative governments, business found a great deal of support from the provincial government. Despite union arguments to extend industrial democracy in the province, the OLRB was consistently -28-

limited in its ability to certify trade unions or to extend collective bargaining in the

province. As these primary sources demonstrate, these events were shaped by the close

relationship that business maintained with provincial government officials throughout the

period.

Chapter Outline

My thesis is divided into seven chapters. The thesis begins in the next chapter with an

exploration of the theoretical debates surrounding the concepts of fairness and balance

amongst liberal institutional scholars in Canadian labour relations. The chapter reviews

the debates surrounding the role of the state in organizing, structuring and administering

post-war labour relations. I suggest that many of these studies have overemphasized the

way in which post-war labour relations balanced the relationships between business,

labour and the state. In making this critique, I suggest that the OLRA and the OLRB—

while potentially far-reaching in nature—were never permitted to fulfill the standards set

by the principle actors in the 1940s and early 1950s.

In the second half of the chapter, I examine the critical revisionist historiography

of labour law reform. I suggest that the institutions associated with the post-war regime

of industrial legality were riddled with political tension between business, labour and

government. Ultimately, I argue that these struggles resulted in the construction of new hegemony for business within Canadian society. In taking this position, I build on Karl

Klare's innovative study of the American Wagner Act. Using Klare's model of class power and judicial hostility to labour law reform, I maintain that a more thorough examination of the class antagonisms of the period reveals that organized business was -29-

fearful of the democratic potential of post-war collective bargaining. In particular, business was concerned that the OLRA and its administration by the OLRB were designed to expand the rights of workers and further entrench unions in the political life of the province. In this light, evidence of business hostility to the Wagner structures in

Ontario contributed to placing labour immediately on the defensive. Moreover, pressure from business influenced the form of state intervention in industrial disputes and showed that it was prepared to use conservative judges to undermine the new institutions associated with collective bargaining. This chapter will demonstrate that the establishment of the OLRA and the OLRB should be examined in the context of the limitations on the progressive potential of these institutions imposed by cautious politicians, business and conservative judges.

In Chapter 3, I examine the historical forces associated with the creation of

Ontario's collective bargaining Act between 1943 and 1950. After a brief examination of the political economy associated with pre-war industrial relations, I then analyse the debates surrounding labour regulation during World War II. As will be shown, these struggles culminated in the federal passage of Privy Council Order 1003 (PC 1003) which was codified in the 1948 federal Industrial Relations Disputes Investigation Act

(IRDIA). In Ontario, similar class forces placed pressure on the provincial government to implement reformed labour law. Notwithstanding the record levels of strikes and the rise of the social democratic left, the reactionary politics of the Hepburn government and the Progressive Conservative government of George Drew delayed the implementation of -30-

a new OLRA, which was not passed until 1948. Given these stalling tactics, the actual passage of a "made in Ontario" Act was left to Drew's successor, Leslie Frost. In 1950,

Frost passed the first "made in Ontario" Act. Despite Frost's conciliatory tone, this chapter makes evident that the 1950 OLRA was designed as much to appease employers' demands over legal rights and protection of company unions as to extend rights of collective bargaining to unions. Throughout the 1940s, employers remained steadfast in their opposition to any legislation that was seen to promote unionization or set minimum standards for collective bargaining. These concessions ultimately weakened the 1950

OLRA and left trade unions at a significant disadvantage vis-a-vis employers.

I elaborate on these arguments in Chapter 4 through an examination of the politics surrounding labour relations in the first years following the passage of the 1950 OLRA.

In those years (1950-1957), the provincial government retreated from many of its early commitments to protect union organizing, collective bargaining and the right to strike.

These changes occurred because of intensive struggles over the omissions in the Act and its administration by the OLRB. Throughout the chapter, the interrelationship between the government, the OLRB and the courts is considered. This review explores the complex web of legal rules and procedures that guided the structure of labour relations in the province. In examining the institutional tension between the government, the OLRB and the courts, it is clear that judges saw themselves as the defenders of employer rights against the newfound powers of the Board. In Ontario, the courts took the position that the OLRB was an institution for labour and therefore considered it necessary to protect

54 The government did, however, replace the labour court with the Ontario Labour Relations Board in 1944. -31-

the rights of property against aggressive and unruly labour officials. The general perception that judges interpreted their role in the new regime of industrial relations as protectors of employer rights was confirmed by the demands of employers to appeal

OLRB decisions. Notwithstanding the fact that appeals were denied by the privative clause in the OLRA, employers undertook a litigation strategy in order to limit the discretionary power of the OLRB. Employers also sought to have the OLRB conform to judicial rules of evidence that made it increasingly difficult to certify new unions. This history suggests that employers were able to use the courts to narrow the extension of the

OLRA and the OLRB, and thus limit the expansion of trade unions in the province.

Struggles over the administration of the Act were only one issue surrounding labour strife in the 1950s. In many disputes, trade unions struggled to expand on the freedoms that had been omitted from the 1950 OLRA. Many of these conflicts were waged over union security, which were frequent in the mining sector in .

As the classes realigned in the post-war period, however, these strikes did not result in sustained political opposition to the government. Rather, many of these strikes were reflective of a changing pattern of labour conflict between Communist and non-

Communist unions. These disputes were increasingly defined by conflicts over legal rights and the political responsibility of labour in the new policy environment. The inability of labour unions to use these strikes to build broader political opposition to the government was countered by a powerful business lobby that argued that labour unions openly ignored the law when it suited its purpose. Sheltered behind the arguments surrounding the Cold War, business continued to call for limits on trade union freedoms, -32-

especially the right to organize and strike. As this chapter demonstrates, at the centre of these struggles was how employers and unions used the law to gain strategic advantages within their industries. These tensions surrounding the OLRA pressured the government to review the Act through a Select Committee of the Legislature in 1957 and 1958.

In chapter 5, I examine the politics surrounding the Select Committee. I discuss how and why the Select Committee's recommendations—after two years of travelling hearings—resulted in calls for retrenchment of labour rights in the province. Influenced by business support for Taft-Hartley reforms in the United States, the final report endorsed extending the rights of employers to speak out against unionization drives and proposed to alter the rules of certification, bargaining and the rights to strike. The report also endorsed business concerns regarding the pro-labour stance of the Board. In particular, Conservatives and Liberals on the Committee were convinced that the Act had to limit trade union freedoms in order to bring balance back into the province's regime of industrial legality. The success of this lobbying saw the Committee adopt most of the recommendations of the Canadian Manufacturers' Association, including the limitation of strikes, reshaping collective bargaining, while also making it more difficult to obtain certification by proposing a mandatory vote in all certification questions. As will be demonstrated, the report represented a catalyst for organized business groups to rewrite the post-war labour laws concerning collective bargaining and the rights to strike in the province. Faced with this level of hostility, labour was obliged to defend the 1950 Act despite the fact that it had previously depicted it as weak and ineffective in protecting workers' interests. -33-

In chapter 6,1 analyze the changes made to the Act in 1960. Largely the result of the Select Committee report, the new OLRA implemented many of the Committee's recommendations. Nevertheless, the government steered clear of the most contentious recommendations designed to limit labour's ability to organize and bargain. In the name of balance, however, many of the reforms were designed to make it easier for employers to stall organizing drives and expand the ability to challenge unions in court. The limitations of these reforms were highlighted in a series of strikes immediately following the passage of the Act. In 1960 and 1961, the province underwent two important and extended strikes: one in Toronto's construction sector and the other in the service sector at the Royal York hotel. In examining these two strikes, I show how government responses to the disputes reflected the ineffectiveness of the existing legislation to balance the rights of labour with those of employers. During the construction dispute, for instance, workers defied the OLRA's restrictions on the right to strike and met fierce resistance from local police. Yet, the solidarity of these workers combined with their relative importance to the post-war economy witnessed them win significant concessions from the province. By contrast, the Royal York strikers followed the Act's regulations concerning the right to strike and were defeated by a hostile employer while the government largely looked the other way. In doing so, the limits of the Ontario government's post-war labour law were plain for all to see.

In response to these strikes, employers sought to limit the ability of unions to organize and to strike. In particular, employers challenged the Board and its ability to certify trade unions in the province. In this campaign, businesses challenged the -34-

neutrality of the "chairman group," suggesting that the Board itself was increasingly siding with unions to thwart the ability of employers to manage their workplaces. In challenging the independence of the Board, employers continued to lobby for greater judicial interference in labour relations, seeking to extend the reach of courts and judges into the workplace. As will be shown, these campaigns reshaped the OLRB and moved it closer to the courts in regulating workplace disputes.

Finally, in chapter 7,1 examine the implications of these labour disputes between the mid-1960s through to the reforms in 2005. Through this examination, I suggest that the labour struggles in the formative years of the OLRA and the OLRB shapes the philosophical understanding of fairness and balance today. The conclusion suggests that the OLRA and the OLRB were never predicated on concepts of fairness or balance.

Rather, by the early 1950s, business opposition to the OLRA and the OLRB narrowed questions of bargaining and broader union organizing. Business opposition to the Act was able to construct a dialogue of fairness and balance which effectively restricted the power of unions to organize and strike. Under this strategy, legislation was crafted in a manner that defined employers and trade unions as equals. As this philosophical notion guided reform throughout the post-war period, any change that sought to expand labour freedoms was immediately denounced as altering the notion of balance in the Act. I conclude by discussing how these basic claims to balance continue to define labour law reform today. -35-

Chapter 2

Rethinking Wagnerism in Canada: Theorizing Fairness and Balance in Labour Relations

Introduction

At the centre of the wartime compromise between business and labour was the federal government's passage of the Wagner principles in Privy Council Order 1003 (PC 1003) in 1944.1 Justice Ivan Rand, serving as an arbitrator, established the second pillar of this compromise when he ended the 1945 Ford strike by partially agreeing to the union's demand for institutional security. As part of the agreement, the union submitted to a no- strike pledge during the life of a collective agreement.2 For the first time, government recognized organized labour's demands for legal protection of collective bargaining, the right to strike, union organizing, mandatory recognition and union security. In order to sustain these freedoms, organized labour was expected to respect the employer's right to manage the workplace free from industrial conflict during the life of a negotiated agreement. These provisions were designed to ensure a measure of stability in the workplace. According to several historians, sympathetic state officials, lawyers, and

1 Peter S. Mclnnis, Harnessing Labour Confrontation: Shaping the Postwar Settlement in Canada, 1943- 1950 (Toronto: University of Toronto Press, 2002), 2-3; Bob Russell, "Labour's Magna Carta,!" 178. Russell suggests that PC 1003 borrowed from the American National Labour Relations Act (Wagner Act) the procedures for union recognition, certification and unfair labour practices. 2Canada Department of Labour, "Award on Issue of Union Security in Ford Dispute," The Labour Gazette, (January 1946), 123-31. Rand's decision laid the foundation for union security agreements throughout the post-war period. See, Canada Department of Labour, "Union Security Clauses in Collective Agreements," The Labour Gazette (August 1954), 1140-41. 3A.W.R. Carrothers, E.E. Palmer, and W.B. Rayner, Collective Bargaining Law in Canada, 2nd Ed. (Toronto: Butterworths, 1986), 63-4. These authors suggest that the new rules consisted of the following: special protection of workers' freedom of association rights; the right and obligation to bargain; prohibition -36-

militant union leaders brokered this compromise by compelling employers to accept unionization.4 Labour relations tribunals sustained this framework. Most commentators have suggested that government regulation constructed a new framework of industrial legality predicated on fairness and balance,5 which respected both workers and management rights within a liberal pluralist framework.6

Building on the work of critical legal theorist Karl Klare, this chapter will challenge this interpretation of this so-called post-war compromise between organized labour and business in Ontario. Rather than interpreting changes after the war as reflecting a balance, I argue that provincial labour relations continued to be influenced by

of incompatible behaviour; the enforceability of the collective agreement; and the protection of the public interest. 4 H.D. Logan, State Intervention and Assistance in Collective Bargaining: The Canadian Experience, 1943- 1954 (Toronto: University of Toronto Press, 1956); Laurel Sefton MacDowell, "The Formation of the Canadian Industrial Relations System during World War II," Labour/Le Travailleur, 3 (1978), 175-196; Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen (Toronto: University of Toronto Press, 2001), 294-98; Taylor Hollander, "Making Reform Happen: The Passage of Canada's Collective- Bargaining Policy, 1943-1944," Journal of Policy History, 13 (Fall 2001), 300-1. 5 Woods and Ostry, Labour Policy in Canada, 32. 6 Christopher Tomlins, "The New Deal, Collective Bargaining, and the Triumph of Industrial Pluralism," Industrial and Labor Relations Review 39 (1985), 19. Tomlins has defined Industrial Pluralism as: A systemic approach to labor relations, informed by liberal political and social theory, whose point of departure is the belief that industrial conflict in democratic capitalist societies is best dealt with through routinized procedures negotiation and compromise leading to agreements formalized in contracts [I]t conceives of management and labor as self-governing equals who, through collective bargaining, jointly determine the terms; and...[ultimately] labor relations law is nothing more than the facilitation of this process. According to Harry Arthurs, negotiation and compromise are at the centre of this theory. The reasons why compromise is essential, however, vary. This places a great deal of importance on state protection for collective bargaining because it, ...replicates the process by which conflict is and should always be resolved in a (liberal) democracy; it projects democratic values into the workplace; it preserves the autonomy of social forces as against the pervasive influence of the state; it is faithful to—but makes more acceptable by its mobilization of countervailing power—the conventional marketplace techniques of economic ordering in a capitalist economy; it ensures the participation, and thereby the moral commitment, of those most directly concerned with outcomes; it represents a significant advance over abusive and oppressive unilateral employer control. Harry Arthurs, "Understanding Labour Law: The Debate over "Industrial Pluralism,"" Current Legal Problems 38 (\9S5), 84. -37-

multiple class pressures, including antagonism from organized business, state officials, administrative boards and the courts, which systemically favoured the interests of organized business. Indeed, organized business continued to use its power and influence with provincial officials to limit the extension of labour freedoms by subjecting them to further legal and judicial pressure. This resistance limited trade union freedoms in the province.

This chapter begins with an examination of the construction of Wagnerism at the federal and provincial levels, with specific concentration on Ontario. This includes an examination of the debates surrounding post-war industrial relations in Canada and

Ontario prior to, during and after World War II. In particular, I will examine the influence of organized business and labour in constructing the three institutional pillars of the post-war regime of industrial legality: protective legislation for collective bargaining and mandatory union recognition; a Labour Board free from judicial interference; and union security provisions through the Rand formula.

As I have indicated above, scholars in the liberal and legal institutional traditions accept that post-war labour law was constructed on particular notions of fairness and balance between labour, business and the state. They maintain, approvingly, that the post-war changes worked to tame the class tensions associated with previous periods of capitalist labour relations and to promote industrial peace.

7 These institutions laid the groundwork for the Ontario government's creation of the Ontario Labour Relations Act (OLRA) and the Ontario Labour Relations Board (OLRB). -38-

In the second and third sections, I argue that class struggles continued to shape industrial relations in the post-war period. Accordingly, I conduct a critical examination of the politics surrounding the creation and administration of Labour Relations Acts,

Labour Relations Boards, and business attempts to limit these institutions through increased judicialization. This analysis reveals the central role of class antagonism within post-war Wagnerism in Canada and Ontario.

Industrial Pluralism and its Influence in Canada

Prior to World War II, the most readily available model for the promotion of trade union freedoms was the American National Labour Relations Act (Wagner Act) passed in 1935.

The Wagner Act grew out of Franklin Delano Roosevelt's New Deal, which sought to lift the United States out of the Great Depression by, among other things, facilitating the redistribution of wealth through the encouragement of collective bargaining. The

American government adopted this position because of growing labour strife in several industries, as American capitalism seemed under direct threat due to collapsing industry and skyrocketing unemployment.8 The Wagner Act sought to address this crisis by removing labour regulation from the jurisdiction of individual states while also limiting the judiciary from imposing the common law doctrine of employment contract, which limited the ability of workers to engage in meaningful collective bargaining.

The Wagner Act created a permanent set of institutions that placed restrictions on the rights of employers unilaterally to dictate the terms of employment. It gave workers a

8 Irving Bernstein, The Turbulent Years: The History of the American Worker, 1933-1941 (Boston: Houghton Mifflin, 1970), 217-23. -39-

much-needed voice in the governance of the workplace and protected unions in order to facilitate the resolution of grievances.9 It also guaranteed workers the right to select their own union through a majority vote. The right to strike, to participate in secondary boycotts and to picket were also outlined. Equally important, the new labour framework enumerated a list of "unfair labor practices" which eliminated the employers' ability to resist unionization through company-dominated unions, blacklisting union activists, or intimidating and firing union organizers. The Act also banned such subversive tactics as employing industrial spies or hiring strikebreakers. In order to protect these new regulations, the Wagner Act created the National Labor Relations Board (NLRB), which was an independent federal body with the authority to adjudicate disputes arising from the Act. By any account, the changes associated with the Wagner Act were the most far- reaching component of Roosevelt's New Deal, as they gave workers a significant means to address their concerns, including falling wages during the depression.

The principles of the Wagner Act, as summarized by Karl Klare, were designed to promote six, potentially sweeping objectives.10 First, the Wagner model sought to preserve industrial peace by encouraging collective bargaining and thus subdue strikes.

Second, it attempted to entrench collective bargaining because legislators believed that the Act would subvert overt class conflict between employers and employees. Third, it promoted "the actual liberty of contract" by counterbalancing the bargaining power of employers. Fourth, the Wagner Act protected freedom of association rights for individual

9 Nelson Lichtenstein, State of the Union: A Century of American Labor (Princeton: Princeton University Press, 2002), 35-9. 10 Karl Klare, "Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941," Minnesota Law Review 62 (1978), 281-4. -40-

workers by promoting free choice in the selection of trade unions and limiting the power of employers to resist certification drives. Fifth, in order to avoid future economic depression, the Act sought to regulate the redistribution of income by increasing the earnings and purchasing power of workers. Finally, the Act entrenched a system of industrial democracy by promoting a collective sense of citizenship among workers.

Although illusive and open to interpretation, these goals were a radical step away from the period of laissez-faire market principles that preceded it. Klare argues these changes represented a significant challenge to American business classes and to the political status quo.11

The passage of the Wagner Act in the United States put forward a distinct model of state regulation of trade union certification. As the leadership of the Canadian

Congress of Labour (CCL) had ties to the American Congress of Industrial Organizing

(CIO) and the Trade and Labour Congress (TLC) was affiliated with the American

Federation of Labour (AFL), the Wagner Act had a great deal of influence on Canadian unionists. For these labour leaders, Wagner's ability to promote collective bargaining and to protect bona fide trade unionism provided a democratic model for the recognition of workers' rights. It also provided a legislative framework that curtailed the power of employers to eliminate unions.

11 Klare's interpretation of the radical nature of the Wagner Act has been contested by American critical legal theorists. See Katherine Stone, "The Post-War Paradigm in American Labor Law," Yale Law Journal 90 (1981), 1511-15; Staughton Lynd, "Government without Rights: The Labor law Vision of Archibald Cox," Industrial Relations Law Journal 4 (1981), 483-95; Nelson Lichtenstein, "Ambitious Legacy: The Union Security Problem During World War Two," Labor History 18 (1977), 214-238. For a Canadian review of these debates, see David Matheson, "The Canadian Working Class and Industrial Legality, 1939- 1949," M.A. thesis, Queen's University, 1989, 110-12. -41 -

Despite the passage of the Wagner Act in 1935, legislators continued to resist legislation supporting collective bargaining and mandatory union recognition in Canada.

According to labour historian Paul Craven, federal and provincial governments resisted collective bargaining laws because of the class antagonism prevalent in the country's industrial takeoff in the 19th and early 20th centuries.12 In that early period, federal and provincial legislation concerning labour relations provided only the minimum standards necessary for economic growth and labour peace. During the country's industrial development, the state cleared the way for businesses to facilitate the introduction of scientific management in the industrial workplace.14 Under these conditions, state legislation limited the ability of workers to use their collective power to resist the rapid changes within the workplace. The state was also determined to prevent strikes, particularly in crown corporations and key private sector industries.

Craven, An Impartial Umpire, 112-13. 13 Eric Tucker, "Making the Workplace 'Safe' in Capitalism: The Enforcement of Factory Legislation in Nineteenth Century Ontario," Labour/Le Travail 21 (1988), 48-9. Tucker argues that governments were only concerned with legislating 'minimum' standards in the workplace, which extended to health and safety legislation. In the nineteenth century, health and safety requirements were regulated by market forces in which all workplace disputes were pushed to the courts. Throughout the 1870s and 1880s, the courts maintained that workers voluntarily assumed the risks that were present in the workplace. Under these conditions, the "market would aggregate these individual decisions and economically efficient levels of health and safety would be produced." 14 On the question of scientific management, see Harry Braverman, Labor and Monopoly Capital: The Degradation of Work in the Twentieth Century (New York: Monthly Review Press, 1974), 86-7. The management revolution was meant to break the control of the older craft unions in the industrial workplace. Scientific management was primarily designed to deskill the industrial workplace in order to maximize labour efficiency. Braverman defines scientific management as "an attempt to apply the methods of science to the increasingly complex problems of the control of labor in rapidly growing capitalistic enterprises....it starts, despite occasional protestations to the contrary, not from the human point of view but from the capitalist point of view, from the point of view of the management of a refractory work force in a setting of antagonistic social relations." -42-

The state's obsession with containing overt class conflict was the defining characteristic of early labour legislation.15 At the turn of the twentieth century, the

Canadian federal government took the lead in promoting this mode.16 In 1900, the federal government passed the Conciliation Act and in 1903, the Railway Labour Disputes Act.

These were later amalgamated in the 1907 Industrial Disputes Investigation Act (IDIA).

Under the auspices of William Lyon Mackenzie King,18 the IDIA replicated earlier legislation that sought to promote cooperation between responsible unions (non-militant) and employers in the mining, transportation, communications and public utility sectors.

Once conciliation was requested, the government appointed a three-person conciliation board that adjudicated the merits of these disputes. A new provision, unique to the IDIA, also subjected unions and employers to a 30-day "cooling off period while a conciliation board investigated the conflict. During this 30-day period, the union was not able to strike until after the conciliation board issued a non-binding report. According to officials, the

15 The provinces were the first governments to address these realities, as Ontario introduced workplace regulations in 1873 dealing with industrial conflict not involving wages. The province also passed the Ontario Railway and Municipal Board Act in 1906, which sought to bring labour peace to Ontario's railways and largely replicated the federal government's experiment with conciliation and mediation. 16 Under the British North America Act, 1867, labour relations are a provincial responsibility. During times of war, however, the provinces conceded authority to the federal government. 17 Fudge and Tucker, Labour Before the Law, 54. The IDIA was passed in response to two strikes. In Lethbridge , a nine month strike in the coal fields limited the supply of coal to nearby prairie residents. The government claimed that the strike threatened public safety because of the potential of a heating crisis in the upcoming winter months. The second strike took place in Buckingham, Ontario, where a clash between striking workers and armed company guards left several workers dead. The violence in both strikes was the catalyst for the creation of the IDIA. 18 King was the chief conciliator in the Lethbridge dispute and the main architect of the 1907 Act. King was also Canada's first deputy minister of Labour and later minister of Labour (under Laurier) and then Canada's longest serving Prime Minister. 19 The Board was tripartite with representatives from labour, business and the state. -43-

"cooling off period allowed the public to intervene and recommend a "workable"

solution.20

Early labour historians argued that the IDIA sought to impose legal restrictions on

trade unions while doing little to challenge employer control over the workplace. The

IDIA was particularly hostile to unions' demands for free collective bargaining because it

left recognition entirely in the hands of employers. The Act was silent on a list of

99 traditional employer actions meant to win a strike, including stockpiling, union blacklisting, and the formation of company unions and the use of "yellow-dog

contracts."23 Employers were also free to hire private strikebreakers and discharge union organizers or union sympathizers.24 Furthermore, the IDIA did not limit employers from

seeking court-imposed injunctions to end strikes. For disputes that were not covered by the IDIA, many governments looked the other way when companies employed professional strikebreakers to end strikes.26 In this way, the IDIA laid the foundation for a

20 "Bill For the Settlement of Labor Disputes," The Globe, 15 February 1907. 21 Charles Lipton, The Trade Union Movement of Canada, 1827-1959 (Montreal: Social Publications Ltd., 1966), 114-5. 22 Stockpiling often occurred in the final weeks of a contract. In these cases, employers intensified production and stored these commodities in locations away from the workplace. If a strike occurred, employers could continue to sell their products. 23 Yellow-dog contracts were those signed by company unions requiring, as a condition of employment, that employees not join a bona fide trade union. 24 Desmond Morton, Working People: An Illustrated History of the Canadian Labour Movement 4 Ed. (Montreal & Kingston: McGill-Queen's University Press, 1998), 89. 25 Bryan Palmer, Working Class Experience, 207. Palmer argues that the IDIA imposed industrial peace while ignoring the demands of trade unions to limit the power of business. In those instances when unions stepped outside of the IDIA and challenged state power, government showed that it was willing to respond with police and military force. Despite these limitations, the IDIA had the support of the more conservative wing of the TLC until 1912, when even it conceded that the Act had not furthered the cause of collective bargaining. 26 Fudge and Tucker, Labour Before the Law, 52. -44-

liberal regime of industrial regulation that imposed constraints on workers' rights of association in return for legislative protection.27

The merging of the IDIA with a Wagner-type collective bargaining framework arose out of the country's participation in World War II. Despite having the constitutional authority for labour relations, the majority of provincial governments conceded to federal regulation over wartime production. Initially, Liberal Prime-Minister Mackenzie-King planned to control wartime labour relations through two measures.29 First, the government sought to restrain labour costs through the extension of the IDIA to all industries deemed essential to the war. Using these regulations, the federal government imposed a wage ceiling, job freezes, and appropriated the right to transfer any labour to essential industries.30 Second, in order to curb outright dissent and labour unrest, the government imposed the War Measures Act limiting the civil liberties of Canadian

Eric Tucker, "Industry and Humanity Revisited: Everything Old is New Again," McGill Law Journal 36 (1991), 1483-93; Bob Russell, Back to Work? Labour, State, and Industrial Relations in Canada (Toronto: Nelson, 1990), 105. Russell argues that liberal philosophy became the defining characteristic of Canada's industrial relations framework. He further suggests that the IDIA curtailed some of the most dramatic industrial strikes in federally regulated industries, while limiting the ability of workers to engage in collective action against employers. 28 On the role of federalism in the construction of the post-war industrial framework see F.R. Scott, "Federal Jurisdiction Over Labour Relations-A New Look," McGill Law Journal 6 (1960), 162. See also Bora Laskin, Canadian Constitutional Law (Toronto: Carswell, 1986), 523-48; Bora Laskin, "Collective Bargaining in Ontario: A New Legislative Approach," Canadian Bar Review 21 (1943), 691. See also, Stuart Jamieson, Industrial Relations in Canada, 8. By the 1970s, over 90 per cent of the labour force was divided among the ten provinces. The fragmentation of labour relations into ten jurisdictions has led Carolyn Tuohy to conclude that organized labour was too weak to challenge national state power, nor was labour able to alter the balance between the old-line political parties and big business. See Carolyn Tuohy, Policy and Politics in Canada: Institutionalized Ambivalence (Philadelphia: Temple University Press, 1992), 166. 29 After a short period as industrial relations advisor to the Rockefeller empire in the United States, Mackenzie-King was installed as leader of the federal Liberal party in 1919. 30 Stuart Jamieson, Industrial Relations in Canada, 2nd Ed. (Toronto: MacMillian, 1973), 122-3. -45-

workers and eliminating subversive labour agitators (notably used against Communist trade unionists).

The government's decision to control labour unrest through the War Measures

Act and the IDIA led to a series of conflicts with the burgeoning industrial trade unions.

For those unionists, controls on labour mobility, wages and benefits without corresponding restraints on profits demonstrated that the time had come for collective bargaining and mandatory union recognition. Faced with intense employer opposition, however, the King government only introduced incremental changes to the IDIA. These piecemeal reforms allowed for certain forms of union recognition and a strengthened wage conciliation procedure through the National War Labour Relations Board

(NWLRB). These reforms changed the way the government intervened in wage disputes

(PC 2685) and introduced mandatory strike votes before a strike could take place (PC

7307). The government also continued to utilize the IDIA's mandatory conciliation procedure as a way to delay strikes.31 According to Stuart Jamieson, these changes only aggravated the unions because the regulations "put additional curbs and delays on unions' freedom of action without giving them effective protection from employers."

31 Jeremy Webber, "The Malaise of Compulsory Conciliation: Strike Prevention in Canada during World War II," in Bryan D. Palmer ed., The Character of Class Struggle: Essays in Canadian Working Class History (Toronto: McClelland & Stewart, 1986), 142. PC 7307 contained a provision allowing the minister of labour to determine who was eligible to participate in a strike vote. At times, the minister included foremen and clerical staff who, under the American Wagner model, were not considered part of bargaining units. This decision made it more difficult for unions to legally strike. PC 7307 also required that a strike be approved by a majority of all those entitled to vote rather than a simple majority of those participating in the election. Although PC 7307 was erased from the statute books after the implementation of PC 1003, these voting procedures formed an important component of Ontario's post-war labour code. 32 Jamieson, Industrial Relations in Canada, 122. -46-

The federal government's opposition to collective bargaining did not stop industrial unions from launching aggressive organizing campaigns. Workers proved eager to sign union cards despite the continued anti-union tactics used by employers. The willingness of workers to protect their livelihoods and their unions is demonstrated in the high level of strike activity during the war. Strikes in the mines, steel, auto, coal, aircraft and lumber sectors directly challenged wartime wage controls and pushed for Wagner- inspired collective bargaining reforms.34 This unrest was intensified by the refusal of most employers to recognize trade unions in their workplaces. These recognition strikes were so intense that by the summer of 1943, one out of every three Canadian workers was engaged in some form of .35 Faced with this opposition, the members of

King's own NWLRB were advising the government to adopt collective bargaining legislation.

The King government also felt increasing pressure from the rising popularity of the CCF. In September 1943, a Gallup poll showed the federal CCF ahead of the Liberals and the Progressive Conservatives. This, and other factors, culminated in the passage

Panitch and Swartz, From Consent to Coercion, 12. Between 1940 and 1944 Canadian trade union membership doubled, reaching 724,000 members (or 25 per cent of the non-agricultural workforce). 34 Stuart Jamieson, Times of Trouble: Labour Unrest and Industrial Conflict in Canada, 1900-66 (Ottawa: Task Force on Labour Relations, 1968), 282-87; Fudge and Tucker, Labour Before the Law, 265-66. 35 Stuart Jamieson, Times of Trouble, 280-1. According to Jamieson, strike activity reached an historic high in 1943. In that year, the number of strikes in Canada was 402 as compared to 298 in 1919 and 285 in 1920. 36 J.C. Cameron and F.J.L. Young, The Status of Trade Unions in Canada (Kingston: Centre of Industrial Relations, Queen's University, 1960), 65. According to Cameron and Young, labour was united in support of the NWLRB's endorsement of collective bargaining. Employers, however, were not of the same opinion. In the construction industry, employers claimed to have a steady collective bargaining system, while mining companies and industrial employers were opposed to any Wagner-inspired reform. Instead, these employers sought greater protection for their company unions. 37 Gerald Caplan, The Dilemma of Canadian Socialism: The CCF in Ontario (Toronto: McClelland and Stewart, 1973), 110-11. The September poll put national support for the CCF at 29 per cent. In contrast, -47-

of federal Wartime Labour Relations Order Privy Council 1003 (PC 1003) on 17

February 1944. Like the Wagner Act, PC 1003 had as its object "the maintenance of industrial peace and the promotion of collective bargaining satisfactory both to employers and to employees."38 This exercise in balancing was advanced by creating a permanent administrative structure (which would become the Canada Labour Relations Board) to rule on the certification of unions. In addition, employers were required to recognize unions and bargain in good faith once certification had been granted. Like the Wagner

Act, PC 1003 made it illegal for employers to discriminate against employees for participating in trade union activity while also limiting the ability of employers to create company unions (or employee associations). Most importantly, PC 1003 outlined rules for meaningful collective bargaining, constructed a workplace grievance procedure and removed some of the restrictions on the right to strike.

Notwithstanding these reforms, the PC 1003 differed in several ways from the

American Wagner Act. Harold Logan observed in 1954 that PC 1003 attempted to balance the newly won rights of employees by stressing that "every employer should have the rights to be a member of an employers' organization and to participate in the lawful activities thereof."40 By including employers in this category, PC 1003 did not prevent employers from thwarting bona fide union drives through the creation of

the Liberals and the Tories were tied with 28 per cent support. In industrial Ontario, the CCF registered 32 per cent of the vote, trailing the Tories at 40 per cent but well ahead of the Liberals with 26 per cent support. 38 Logan, State Intervention, 26-7. 39 This led to the replacement of the Ontario Labour Court with the Ontario Labour Relations Board (OLRB). The OLRB was modelled after the Federal NWLRB and the American NLRB. See Chapter 3 for this evolution. 40 Quoted in Logan, State Intervention, 28. -48-

company unions. It also allowed employers to create employee associations created and

endorsed by the company. In Logan's analysis, these concessions to business were

constructed to balance the rights of labour with the traditional rights of business.

PC 1003 also differed from the Wagner model by making strikes illegal during negotiations and the duration of collective agreements. It also preserved the IDIA's mandatory conciliation provisions that continued to restrict unions' ability to strike. PC

1003 was predicated on balancing employers' rights to form company unions with curtailing their ability to discriminate against employees who supported collective bargaining. In short, federal legislation refused to acknowledge the natural power imbalance that existed between business and unions in individual workplaces, and instead extended association rights to both parties.

Unlike the Wagner provisions in the United States, the PC 1003 changes also limited the discretion of labour boards to rule in unfair labour practices. Logan suggested that limitations were imposed by the federal government because it was premised on limiting the abilities of trade unions to strike. According to David Millar, despite having several progressive alternatives—including the original Wagner provisions, the

Saskatchewan CCF's new labour laws, and draft codes from J.L. Cohen of the

NWLRB—the King government chose to balance employer and union rights, while maintaining the IDIA's conciliation procedures in order to delay strikes.41

41 Millar, "Shapes of Power," 174. -49-

The PC 1003 compromise was later codified in federal law with the passage of the

Industrial Relations Dispute Investigation Act (IRDIA) in 1948.42 For workers who had suffered through the years when the IDIA had legitimized open repression, blacklisting, company unionism, and limited health and safety regulations, the significance of the freedoms outlined in the IRDIA cannot be underestimated. For the first time, the federal government recognized that labour legislation had to constrain the rights of employers to dictate the conditions of employment. Under the IRDIA, management had to respect the ability of workers to form a union and to collectively bargain once certain conditions had been met.43 Supporters of the legislation believed that it heralded a new era of "industrial democracy" in which Fordist mass production methods worked to mediate the class tensions inherent in capitalist production.44 All that remained was the legal and administrative machinery necessary to put these freedoms into effect.

Questions over who would control production were at the centre of the post-war legal framework.45 In part, these questions were answered by judicial intervention in a strike at the Windsor Ford plant in 1945. This strike was significant because it tested the government's commitment to collective bargaining against Ford Motor Company's desire to crush the militancy of the United Auto Workers (UAW). The strike began in response to Ford Motor Company's decision to lay-off 14,000 workers because of a slow-down in wartime production. The UAW walked off the job on 12 September 1945

42 The IRDIA model was extended to all ten provincial jurisdictions by 1950. 43 H.D. Woods, "Canadian Collective Bargaining and Dispute Settlement Policy: An Appraisal." The Canadian Journal of and Political Science 21 (1955), 447-65. Wood's characterizes PC 1003 as the equivalent of labour's Magna Carta. 44 Carrothers, Palmer, and Rayner, Collective Bargaining Law, 57. 45 Mclnnis, Harnessing Labour Confrontation, 60-85. -50-

and remained on the picketline until 20 December of that year. As fears of a post-war recession gripped Canadian workers, the union packaged its demand as a fight for job security, union security and a living wage.

The company's steadfast refusal to give in to the union's demands (despite modest recommendations from conciliation boards) set the stage for the bitter strike.

Given that the UAW was responding to what was feared to be the first in a massive wave of post-war layoffs, the strike had the potential to escalate into a national confrontation between Canadian labour and business.47 While the strike enjoyed wide community support, the federal and provincial governments were under immense pressure from the company's Canadian director Wallace Campbell to end it through force. Relying on the growing Cold War fears of Communist infiltration of unions, Campbell convinced

Ontario Premier George Drew to request federal troop support to end the strike. Drew decided to take the bold step of asking for military intervention because he feared that the union's militant tactics—including shutting down the city of Windsor with a vehicle blockade—could escalate into a countrywide conflict. Fearing the escalation of hostilities

(and potential gains to the CCF), the federal Liberal government refused to use the military and declined to impose a settlement as it did not want to set a precedent for public intervention in private industry.

46 Millar, "Shapes of Power," 249. 47 Fudge and Tucker, Labour Before the Law, 283-5; David Moulton, "Ford Strike 1945," in Irving Abella ed., On Strike: Six Key Labour Struggles in Canada, 1919-1949 (Toronto: Lorimer, 1974), 136-7. According to Moulton, infighting between the central labour councils, the Steelworkers and the UAW over the timing of the strike weakened support for a national general strike. -51-

The federal government's reluctance to impose a settlement prolonged the strike.

Needless to say, the decision not to use the military won the support of national UAW

President and Pat Conroy, president of the CCL. In order to ensure the federal government's neutrality, Conroy limited the CCL's support for the strike to financial donations rather than sympathy pickets or national strike escalation. Liberal

MP than (who represented Essex East, encompassing parts of Windsor) convinced the union and the company to agree to binding arbitration, conducted by

Supreme Court Justice Ivan Rand.48 Rand's subsequent decision had a lasting influence on Canadian industrial relations. Rand clarified what he saw as a precondition for labour regulation in a society that balances private enterprise with the principle of "social justice in the area of industrial mass production."49

Rand premised his ruling on the notion that "capital must in the long run be looked upon as occupying a dominant position." 50 He added, "it is in some respects at greater risk than labour; but as industry becomes established, these risks change inversely." In analyzing these risks, Rand acknowledged that the power of organized labour had grown exponentially in the past century. In order to protect the interests of both parties, labour had to be accepted as a legitimate partner in the managing of industry. Under these new conditions labour must have,

...enlightened leadership at the top and democratic control at the bottom, similarly as to capital. The absolutist notion of property like national sovereignty

48 Fudge and Tucker, Labour Before the Law, 284. The Liberals knew that Rand had well known sympathies to civil rights and thus estimated that he would be an acceptable arbitrator for the union. 49 Canada Department of Labour, "Award on Issue of Union Security in Ford Dispute," The Labour Gazette (January 1946), 124. -52-

must be modified and the social involvement of industry must be the setting in which reconciliation with the interests of labour and public takes place.

Having abandoned purely laissez-faire theories of labour relations, Rand agreed to a form of union security. In his judgment, union security had to be balanced against the rights of the individual "not" to join a union. Rand thus attempted to eliminate the problem of

"free-riders" by ruling that all workers benefited from collective bargaining and suggested that every member share in the cost of maintaining the local union; these members, however, were not required to join the union.52 Rand's decision solved two problems for union leadership. First, union leaders no longer had to rely on voluntary agreements with individual workers to maintain the financial health of the union.

Second, secure levels of funds could be allocated to strengthening the unions' ability to professionally bargain or to top up strike funds. Both of these changes allowed unions to preserve their places in the workplace.

In order to sustain union security, unions were also required to concede some of its freedoms to strike. Most significantly, workers were unable to legally strike during the life of existing agreements. If workers did strike illegally, employers were able to appeal to the OLRB or to the courts to seek a remedy. Often, the declaration of an illegal strike led to crippling fines imposed on the union and in rare instances jail time for union

51 Ibid., 125. 52 Stephen Cako, "Labour Struggle for Union Security: The Ford of Canada Strike," M.A. thesis, University of Guelph, 1971, 137-40. Rand's recommendation for union security was in the form of the irrevocable check-off rather than the Union's demand for the closed-shop. Cako suggests that Rand's endorsement of the irrevocable check-off was partially supported by Drew and the Canadian Manufacturers Association, who had taken up the cause of individual workers by suggesting that "no man should be deprived of the right to seek work free from personal association with an organized group." -53-

leaders. In this new environment of legalized collective bargaining, it was in the best interest of union leaders to constrain militant outbursts by rank-and-file members.

The "Rand formula" allowed trade unions to stabilize their position in industry. In exchange, unions were required to take responsibility for maintaining steady and uninterrupted flows of production.53 By the early 1950s, the most frequent form of union security was called the "voluntary irrevocable" check-off. Under this type agreement, an individual worker requested to join the union and the employer automatically deducted dues from his or her pay throughout the term of the contract.54 Throughout the country, union security clauses became the norm in the manufacturing and construction industries because many of those unions had fought militantly for such provisions. The implementation of union security clauses became a key component of the post-war industrial legal regime. After Rand's decision, labour relations functioned within an institutional framework guaranteeing union recognition and collective bargaining and

Canada Department of Labour, "Union Security Clauses in Collective Agreements," The Labour Gazette (September 1954), 1140-41. After the Rand decision, union security clauses grew to include six components which came in six forms: 1) The Closed Shop: an agreement where all employees in the bargaining unit are required to become members of the union as a condition of employment; 2) The Union Shop: an agreement that requires all employees to become members of the union but gives no direction to the employer on who to hire; 3) Modified Union Shop: exempts workers from compulsory membership who are not members at the time the agreement comes into force, but requires that all those new employees to join the union; 4) Maintenance of Membership: workers are under no obligation to join the union, but those who do must, as a condition of employment, maintain their membership throughout the life of a contract; 5) Optional Clause: requires employees who are not members of a union either to join or pay dues; 6) Preferential Hiring: The employer gives preference to members of the contracting union when hiring employees. Depending on the form of contract, a security clause was revocable, but this rarely occurred during the life of an agreement. For those unions able to win a security clause in collective agreements, the most common were the voluntary revocable plan (where the individual worker requests the check-off) or a compulsory plan (where participation was mandatory). 54 Canada Department of Labour, "Security Provisions in Collective Agreements, Manufacturing Industry" The Labour Gazette (October 1951), 1360. Most of these plans were categorized as a part of the Rand formula. -54-

legalized union security agreements. All of these provisions were protected through a

Wagner-inspired Board that had the administrative discretion to protect labour rights.

The Debate over Industrial Pluralism

a. Liberal and Institutional Interpretations

Within this institutional and legal context, several definitions of labour's post-war compromise have been put forward by researchers in law, politics and industrial relations.

A central component of this research examines how industrial relations law administers the rules and regulations in the workplace.55 Building on the post-war commitment to

"free" collective bargaining and union security, many industrial relations scholars argue that the basic rules of fairness and balance allowed labour unions to "grow and evolve" in the post-war period. Evidence of growth, however, does not necessarily reflect the fact that balance was achieved. To be sure, there was a great deal of union growth after the war. By 1948, the non-agricultural unionization rate reached 30 per cent of the national labour force, reaching 22 per cent in Ontario.56 Assisted by post-war labour laws endorsing collective bargaining, trade unions in manufacturing and construction won the

Rand formula in nine out of every ten collective agreements by 1951.57 For many researchers, the success of unions and employers in adapting to post-war conditions

55 H.C. Pentland, "The Canadian Industrial Relations System," 9. Pentland maintained that: "An important component of an industrial relations system is the relevant legal system—the laws and the way the courts apply them...As well as the laws it is governed by customs, and the attitudes and habitual behaviour of various categories of workers, of employers or managers, and of those who administer government policy." 56 Panitch and Swartz, From Consent to Coercion, Table IV, Total Union Membership in Canada and the United States, 245. 57 On union density, see Canada Department of Labour, Labour Organization in Canada (Ottawa: Department of Labour, 1975), 28. The growth of "Rand Formula density" grew to 90 per cent in Canadian manufacturing industry employing over 500 people. Canada Department of Labour, "Security Provisions in Collective Agreements, Manufacturing Industry," The Labour Gazette (October 1951), 1359-61. -55-

constructed an institutional reality where workers and employers peacefully bargained

CO over "how power is to be exercised and by whom."

In addressing questions of power within liberal democracy, researchers in this tradition suggest that labour and business are equal, relatively autonomous groups struggling for power and resources.59 Industrial pluralists insist that the post-war regime of industrial legality successfully balances the relationship between labour and management within a new economic framework. This balancing exercise is performed during bargaining. In their view, union goals are simply to extend their power while restraining the power of management. Similarly, management seeks to maintain its control over the workplace while limiting union power. As this struggle unfolds, H.D.

Woods, for example, suggests that the "public interest" is protected by the watchful eye of the state. When tension between employers and employees begins to threaten this, the state must intervene. In this way, he contends, ... [l]esgislative bodies...may protect management's rights by opposing the growth or curbing the power of unions. They may do the opposite and give aid to the unions by curbing the power of employers. They may, and in Canada usually do, adopt compromise positions, supporting the growth of unions and collective bargaining, but placing restraint on the unions by prohibitions and limitations on certain union actions. They may also accept some of the social problems as general, and legislate directly.60

In this view, there is no natural connection between the state and employers. Rather, the state is interpreted as purely neutral in adjudicating the tense relationship between unions

Woods and Ostry, Labour Policy in Canada, 3. 59 Harry Arthurs, "Understanding Labour Law," 83-4. In summarizing this debate, Arthurs contends that, "labour and management, as autonomous interest groups, can and should jointly fix the rules of employment upon terms which represent an acceptable compromise between their competing interests." 60 Woods and Ostry, Labour Policy in Canada, 15. -56-

and employers. Meanwhile, unions and employers are interpreted as two powerful interest groups seeking concessions from each other.

In examining these circumstances, researchers in this tradition suggest that post­ war regulators concentrated on regulating the behaviour of workers and management to protect the public interest against unnecessary strikes. Common thought suggested that,

"social order and well-being must advance through the imposition by law of enlightened ideas upon the warring groups, creating effective restraints upon their modes of actions."61 In this way, the need to curb so-called excessive demands from labour is framed through questions of institutional capacity: How do federal and provincial lawmakers balance the interests of unions and employers during collective bargaining disputes? How does the administration of labour relations balance the rights of unions and business while protecting the public interest? If these institutions prove unable to protect the public interest, what is the role (if any) of the courts in interpreting industrial relations law?

In order to answer these questions, liberal pluralists concentrate on the institutions of federal and provincial industrial relations. In most cases, these studies examine the way in which government officials balanced the goals of collective bargaining against the interests of employers and the general public. Almost exclusively, the concentration on sympathetic government officials suggests that the creation and administration of post­ war labour legislation is grounded in rational policy analysis. In Taylor Hollander's

61 Ivan Rand, "The Law and Industrial Relations," Industrial Relations/Relations Industrielles 17 (1962), 391-5. -57-

examination of PC 1003, for instance, he suggests that class conflict did not provide the impetus for the state's acceptance of post-war collective bargaining.62 Rather, he insists that a group of reformers in the ministry of labour and, most importantly, in the NWLRB convinced the King cabinet to adopt an inclusive collective bargaining policy. In

Hollander's view, organized labour and the CCF were too weak to force the King government to adopt Wagner-inspired reforms. For him, the federal Liberals introduced

PC 1003 because of the extraordinary work of the NWLRB and its members Justice C.P.

McTague (chair),63 senator and corporate lawyer, J.J. Bench (employer representative), and labour lawyer J.L. Cohen (employee representative). As these members were trained in legal procedure and aimed to protect the independence of the Board from cabinet interference, they quickly sought to move in a different direction than King's IDIA. All three, to varying degrees, supported an inclusive collective bargaining policy that moved beyond the IDIA and pushed the federal government in new directions.65

Certainly, institutions such as the NWLRB played an important role in shaping post-war industrial relations. To be sure, some of the members of the NWLRB accepted

62 Hollander, "Making Reform Happen," 300-1. 63 McTague was a former Supreme Court Justice. He resigned from the Board in late 1944 and became National Chair of the Progressive Conservative Party, see J.L. Granatstein, The Politics of Survival: The Conservative Party of Canada, 1939-1945 (Toronto: University of Toronto Press, 1967), 177. 64 MacDowell, Renegade Lawyer, 123-6. According to MacDowell, Bench was thought to be an "enlightened employer representative," because he believed that collective bargaining introduced stability in the workplace. Bench also thought that reform laws protecting freedom of association rights for workers would also strengthen company unions. Despite being appointed by the federal Liberals, the fact that no French were on the Board irked MPs from Quebec. While there was brief talk of expanding the size of the board (which Cohen opposed because he believed that the tripartite nature of the board protected its independence) pressure was on the government to appoint a Quebecer. As a result, Senator J.J. Bench was replaced by Montreal labour lawyer Leo Lalande, a lawyer with the Wartime Prices and Trade Board and colleague of McTague's. 65 Hollander, "Making Reform Happen," 311. -58-

trade union rights to a greater degree than the members of King's cabinet. Yet, the passage of PC 1003 was not primarily due to sympathetic state officials. Indeed, the institutional powers of the NWLRB were not such that it could change the position of a prime minister that had resisted bona fide collective bargaining since 1907. Studies that rely entirely on analyses of elites to examine the origins of post-war industrial relations, underestimates the role that workers and trade unions played in shaping the law. Equally, business too influenced these reforms. Certainly, the class antagonism between business and labour suggests that the state's embrace of industrial pluralism was not neutral. On the one hand, the passage of PC 1003 should be understood as balancing the government's previous hostility to collective bargaining against the demands imposed by trade unions and the left. On the other, the demands of business had to be considered.

Some researchers have built on elite and institution centred approaches to post­ war labour law to suggest that conflict over the nature of the system has subsided. Some even argue that labour law in the post-war period "evolved" and "matured" to the point that balance was achieved between labour and employers. This was the position adopted by the Task Force on Canadian Industrial Relations in 1968. Chaired by H.D. Woods, the Task Force's final report to the prime minister argued that post-war labour law was grounded in Canada's commitment to liberal democracy and social justice.66 As the post-war mixed economy acknowledged a prominent role for unions and private enterprise, Woods concluded that Canadian collective bargaining laws were premised on

Task Force on Canadian Industrial Relations, The Report of the Task Force on Labour Relations (The Woods Committee) (Ottawa: Privy Council Office, 1968), 13. -59-

principles of fairness and balance. While these researchers acknowledge that conflict between employers and unions may occur, it also accepts that the history of collective bargaining since the passage of PC 1003 is one of a "clear progression of amendments that have created an increasingly favourable legal environment for trade unions and collective bargaining." 7

b. The Primacy of Administrative Boards?

The observations that labour relations have been a "clear progression of amendments" benefiting trade unions, is partially explained by the importance these researchers ascribe to labour boards. Within this field, studies emphasize the role of federal and provincial law in extending new rights to labour while preserving industrial peace. For legal scholars, the tense relationship between administrative boards and the courts in adjudicating collective action over traditional rights of contract is decisive. Researchers in this tradition often question how governments establish "positive" rights for workers while overriding common law doctrines of contract, which previously dictated that trade unions were illegal because of their restrictions on trade. As labour law seeks to balance relations between unions and business, one of the questions posed was how labour boards preserved the participatory and thus self-governing nature of post-war collective bargaining policy.69

Donald Carter, "Collective Bargaining Legislation," in Morley Gunderson and Allen Ponak eds., Union- Management Relations in Canada, 3rd Ed. (Don Mills: Addison-Wesley, 1995), 56. 68 Paul C. Weiler, "The 'Slippery Slope' of Judicial Intervention: The Supreme Court and Canadian Labour Relations, 1950-1970," Osgoode Hall Law Journal 9 (197T), 2-3. 69 Paul C. Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (Toronto: Carswell, 1980), 32-3. -60-

Boards were especially important for legal scholars because they purportedly represent a third party institution, neither political nor judicial, that negotiates the contentious environment of management-employee relations. Many researchers in this tradition—most of whom were labour board adjudicators and arbitrators—argue that administrative tribunals represent a neutral and independent ground upon which unions, business and legal experts arrive at a negotiated compromise. Labour boards accomplish this goal in many ways:

First, the presence of a person drawn from the ranks of a party of interest is a source of assurance to that party that his case will be understood and carefully reviewed. Second, that assurance usually makes the tribunal and its decisions more acceptable to labour and management. Third, legislation creating labour boards and determining their jurisdiction gives the boards wide powers of discretion, particularly in the area of certification and determining the appropriated bargaining unit and also, in some instance, in matters of enforcement. A representative type of tribunal offers a basis for assurance that discretion will be exercised on a basis of industrial relations experience. Fourth, power of discretion involves a measure of compromise. Where the claim of a party of interest is to be settled, not on the basis of a legally enforceable right but on the basis of what the tribunal considers to be a fair reconciliation of conflicting interests and claims, it is some comfort to the claimant to know that a friendly point of view may be found on the board...

To varying degrees, both trade unions and employers benefit from this system because it removes most labour relations struggles from the picket line. In so doing, a great deal of legal scholarship accepts that the institutions associated with PC 1003 deepens and expands notions of democracy, fairness and balance into the private sector economy.

The value of labour boards to create the conditions necessary for fairness and balance in the post-war economy is highly influential. In his classic study of the Ontario

Task Force on Canadian Industrial Relations, Report of the Task Force on Labour Relations, 207. -61-

Labour Relations Board in 1961, for instance, Adam Bromke argued that the

Conservative governments of George Drew and Leslie Frost adopted a slow, evolutionary approach to collective bargaining and union organizing. In examining the history of the

OLRA and the OLRB from the mid 1940s through to the statutory amendments in 1960,

Bromke maintains that the policies of these governments were designed to,

...represent a mixture of ideas inherent in both the concept of a positive state and the tradition of laissez faire. On the one hand, the responsibility of the state to deal with social problems at large is accepted. On the other hand, government interference in the field of industrial relations is not aimed at replacing free interaction of social forces, but rather at removing obstacles which hinder their spontaneous operation...[in this way] the function of the state is not to promote 71

collective agreements, but collective bargaining.

As this policy developed, Bromke argues that the Drew and Frost governments designed the OLRA and the OLRB to assist workers and their trade unions to "restore what was 79 considered to be an impaired social balance." Under these conditions, governments embraced industrial pluralism in order to nurture and promote equilibrium between the two parties in industry.73

This argument was predominant in early labour law research. In his landmark article in 1967, for instance, Harry Arthurs put forward the argument that post-war labour law radically extended democratic rules to the workplace.74 These democratic rules

71 Adam Bromke, The Labour Relations Board in Ontario: A Study of the Administrative Tribunal (Montreal: Industrial Relations Centre, McGill University, 1961), 13. 72 Ibid., 14. 73 Woods and Ostry, Labour Policy in Canada, 110-4. Woods and Ostry suggest that Boards were designed to accomplish this goal by concentrating on five administrative functions: 1) Functions related to representational and collective bargaining rights; 2) Functions concerned with actual bargaining and negotiation; 3) Functions involving specific clauses in agreements; 4) Functions concerned with union government; 5) Functions involving labour relations and the courts. 74 Harry Arthurs, "Developing Industrial Citizenship: A Challenge for Canada's Second Century," The Canadian Bar Review, 45 (1967), 788-9. -62-

constructed a new citizenship in which the rights of unionized employees supposedly

equalled and surpassed rights of national citizenship.75 Arthurs argues that the concept of

industrial citizenship grew out of PC 1003's embrace of collective bargaining, which

swept away notions of individual employment contract (and the remaining vestiges of the

Master-Servant laws). In their place, post-war labour law constructed new rules and

regulations that bestowed industrial citizens with positive rights and responsibilities.

These included the right to due process, protection from the arbitrary powers of

employers, and the right to bargain over wages and working conditions. Arthurs insists that these changes did not solely benefit any one party, but rather imposed restrictions on the actions of both workers and employers. So important had due process and industrial fairness become in reality, that in Arthurs' view,

...today labour relations boards, with express legislative authority, do force employers to continue to employ persons who have been wrongfully discharged. More startling yet, employers have been required to hire employees to whom they have wrongfully denied employment. This rejection of traditional remedial techniques in employment has not been solely legislative nor has it operated solely for the benefit of workers. In at least two provinces (BC and Manitoba) courts have issued injunctions which require employees to return to work, on the theory that they were thereby enforcing a "negative covenant" against strikes...Undoubtedly, this procedural revolution reflects new substantive, legal values: what are being protected are not contractual rights but public policies.76

For Arthurs, this transfer in legislative authority represented a reversal of the common law conception of employment. For the first time, employers did not arbitrarily control the workplace. As the law evolved, Arthurs concluded at the end of the 1960s that it was

This argument is expanded in Harry Arthurs, "Understanding Labour Law: The Debate over "Industrial Pluralism,"" Current Legal Problems, 38 (1985), 84. See also Weiler, Reconcilable Differences, 6-7. 76 Arthurs, "Developing Industrial Citizenship," 788-9. -63-

now possible to interpret the laws and regulations surrounding industrial citizenship as a separate "state within a state."

Arthurs' theory of industrial citizenship rests on the assumption that industrial legality protects workers and unions from coercive government or employer action and economic insecurity. He also surmises that the post-war law protected individual employees against unilateral and discriminatory action by unions and employers. Boards were better placed to deal with these problems because they were more inclusive and participatory than the courts that preceded them. After the conclusion of the War,

Arthurs suggests that the federal and provincial governments moved progressively to curtail the most flagrant actions of employers. Industrial citizenship was predicated on the notion that employees could seek redress from the state rather than through job action when dealing with powerful employers.77 According to Arthurs, PC 1003 was the positive outcome of government commitments to "high and steady rates of employment" combined with protecting and codifying human rights. Under these conditions, the law embraced the notion that human labour was no longer considered a simple commodity.

By adopting industrial pluralism, governments accepted that freedom of association and freedom of expression rights for workers altered the conditions of capitalist exploitation, "humanizing" the private sector economy. At the centre of the theory of industrial citizenship was the primacy of collective bargaining. In Arthurs' theory, the democratic capacity of collective bargaining "substitutes legal right for

77 Colin Crouch, "The Globalized Economy: An End to the Age of Industrial Citizenship?" in T. Wilthagen, ed. Advanced Theory in Labor Law and Industrial Relations in a Global Context (Amsterdam: North Holland, 1998), 150-2. -64-

industrial might in order for workers to insist that their employers recognize and bargain with their unions and abide by their collective agreements...[which] marked a rupture from the individualism of the common law and the absolutism of property rights." For researchers in this tradition, then, the institutional structures associated with industrial pluralism successfully curtailed the arbitrary powers of employers.79

Assuming that the institutional changes after the war were as sweeping as these researchers suggest, an important question to ask at this point is to what degree institutional reforms alone can alter the relationship between workers and business within a capitalist economy? Clearly, the creation of institutions such as labour boards showed that governments were willing to break from past practices in regulating the relations between workers and business. Was it possible for state regulation to mediate the relationship between the parties with rules of fairness and balance, as these researchers assume? Are state institutions such as labour boards neutral in the struggle between workers and business? Supporters of industrial pluralism maintain that state regulation evolved to a point where the power of unions became equal to that of employers. They argue that this balance evolved over years of judicial and labour board decision-making and that any radical changes would have upset the delicate balanced achieved.

Judy Fudge has recently critiqued this concept of industrial citizenship in the contemporary context. See Judy Fudge, "After Industrial Citizenship: Market Citizenship or Citizenship at Work?" Relations Industrielles/ Industrial Relations 60 (2005), 637-8. 79 Ibid., 639. Fudge has further argued that the concept of industrial citizenship ignored the regional, sectoral and gendered notions of the Canadian economy. She also suggests that industrial citizenship did not address the class dynamics of an economic structure built on a system of private property that is protected by the juridical structures of the common law. -65-

It is this conceptualization of fairness and balance that has led researchers such as

John Logan to argue that restrictions on the right to strike combined with legal impediments to certification continues to insulate labour unions from anti-union employers.80 According to Logan, the restrictions on trade union activity within industrial pluralism safeguards collective bargaining because "they have also restricted employers' recruitment of striker replacements and severely limited management involvement in the certification process."81 Logan concludes that Canadian labour continues to be protected from aggressive anti-union campaigns that became common in the United States after the passage of Taft Hartley in 1947. By protecting Canadian workers from the "market- driven anti-unionism" that became common in the 1970s and 1980s, Logan further suggests that industrial pluralism insulated workers from excessive economic change, which persists in the ear of neo-liberalism.

Notwithstanding the positive embrace of post-war collective bargaining laws, it is worth noting that Logan's analysis glosses over several instances where government legislation ignored the anti-union tactics of employers. In Ontario, for instance, legislation to ban strikebreakers was not introduced until well into the 1980s and the rights of employers to speak out against union organizing drives were greatly expanded in the 1960 OLRA. Until that point, strikebreaking and similar anti-union tactics were

John Logan "How "Anti-Union" Laws Saved Canadian Labour: Certification and Striker Replacements in Post-War Industrial Relations," Relations Industrielles/Industrial Relations 57 (2002), 131. 81 Ibid. 82 Ibid., 131-2. Logan argues that state protection restricted employers' right to speak out against unions during certification drives and in most jurisdictions legislation also imposed strict certification procedures for unions to follow in order to win certification elections. -66-

common and contributed to the labour unrest in the 1950s, 1960s and the 1970s.

Ultimately, Logan observes that Canadian workers have not been subjected to draconian

legislation such as the US Taft Hartley Act because Canadian legislation was not as radical as the Wagner Act. By extension, federal and provincial legislation was successful because it proscribed the freedoms of unions and management equally.

In contrast, some supporters of industrial pluralism continue to allow that government legislation has not been strong enough to curb the powers of employers. In particular, these scholars argued that the legislative reforms of the 1950s constructed unfair obstacles to collective bargaining and union organizing.84 These researchers contend that the PC 1003 compromise was based on a model of industrial relations premised on labour and management acting as adversaries at the bargaining table.

According to Roy Adams, for instance, the institutionalization of collective bargaining normalized an unnecessarily hostile relationship between unions and employers. Adams suggests that the system "implicitly permits and legitimizes employer opposition to the

Of establishment of collective bargaining or any other form of employee representation."

For Adams, the institutional antagonism associated with traditional forms of industrial pluralism prevents the state, business and labour from embracing progressive

Marc Zwelling, The Strike Breakers: The Report of the Strike-Breaking Committee of the Ontario Federation of Labour (Toronto: Ontario Federation of Labour, 1972); Doug Hamilton, "Strike Breaking Causes Threat," Ontario Labour Review (OFL-CLC), July-August 1957, 1. Hamilton (OFL Secretary- Treasurer) argued that the typical strike breaking criteria in the 1950s included threats, intimidation and legal action, including the use of the ex-parte injunctions to end legal strikes. By the 1960s, strike breaking became more sophisticated, adopting new forms of surveillance technology alongside the traditional use of intimidation and violence. 84 Roy J. Adams, "A Pernicious Euphoria: 50 Years of Wagnerism in Canada." Canadian Labour and Employment Law Journal 3 (1995), 321-55. 85 Ibid., 330. -67-

corporatist strategies today. Taken to their fullest potential, Adams insists that corporatist

reforms could eliminate the dichotomy between local certification, replacing it with the rights of individuals or groups of employees to negotiate independently of their union.

His other proposals advocate for work councils, worker representation on corporate boards, sectoral bargaining, guaranteed annual incomes, the liberalization of labour boards and the creation of national corporatist boards with representatives from management, unions and the government.86 In a similar vein, John Godard insists that industrial pluralism's narrow focus on collective bargaining and workplace certification prevents the expansion of workplace rights to most sectors of the economy. In order to address this problem, Godard proposes that the democratic potential of industrial pluralism be fully realized. He also suggests a series of policy changes aimed at reorganizing collective bargaining across different sectors. This reorganization would cross national borders and penetrate different social organizations in order to ensure that

on internationally recognized human rights are properly respected.

While there is disagreement among contemporary supporters of industrial pluralism, most researchers in this tradition agree that institutions such as state labour boards with will continue to play an important role in regulating the relationship between trade unions, business and the state. The key assumption that fairness and balance

86 Ibid., 346-54. 87 John Godard, "Labour Unions, Workplace Rights and Canadian Public Policy," Canadian Public Policy 29 (2003), 461-63; John O'Grady, "Beyond the Wagner Act, What Then?" in Daniel Drache, ed., Getting on Track: Social Democratic Strategies for Ontario (Montreal & Kingston: McGill-Queen's University Press, 1992), 162-67; Roy Adams, Labour Left Out: Canada's Failure to Protect and Promote Collective Bargaining as a Human Right (Ottawa: Canadian Centre for Policy Alternatives, 2006). 88 Harry Arthurs, "Labour Law Without the State," University of Toronto Law Journal 46 (1996), 42. -68-

underlies industrial pluralism is seldom questioned. Changes are often gauged by how

far they deviate away from the basic assumptions underlying the foundations of industrial

pluralism. In many cases, changes in the law are themselves seen as explaining

everything from the frequency of strike activity to changes in union density.

Researchers in this tradition focus overwhelmingly on lobbying government and the

resulting alterations to the basic institutions of industrial pluralism in order to explain the power dynamic between workers and employers. In almost all cases, questions of power

between unions and employers are seldom examined as resting on an unequal system that

is divided by class inequality and reinforced by capitalist states.

c. Critical Legal Scholarship

The pluralist approach has been challenged by critical legal scholars. Indeed, the rise of

critical legal studies and the extension of neo-Marxist political economy in the early

1970s marked a significant turning point for the study of industrial relations in North

America. Most of these researchers take as their starting point the notion that the power imbalance between capital and labour cannot be erased by legal regulation. Rather, they argue that the post-war regime of industrial pluralism was shaped by context of the class

Sara Slinn, "The Effect of Compulsory Certification Votes on Certification Applications in Ontario: An Empirical Analysis," Canadian Labour and Employment Law Journal 10 (2003), 367-97; F. Martinello, "Correlates of Certification Application Success in British Columbia, Saskatchewan, and Manitoba," Industrial Relations/ Relations Industrielles 51 (1996), 544-562; F. Martinello, "Mr. Harris, Mr. Rae," 17- 33; John Godard, "Do Labour Laws Matter? The Density Decline and Convergence Thesis Revisited," Industrial Relations 42 (2003), 482. These studies argue that there are several factors to consider in explaining the diverging density numbers between Canada and the United States, but that the primary differences for similar liberal economies results from institutional differences. Sara Slinn, for instance, argues that labour relations altered the balance between business and unions in Ontario when the province underwent reforms between the NDP government in 1993 and the Conservative one in 1995. Felice Martinello provides painstaking quantitative models to show that changes in government often lead to changes in labour law. -69-

divisions inevitably associated with an economic system based on private property. In this tradition, the understandings of power within the workplace are, as Wood asserted,

"presented in their political aspect, that aspect in which they are actually contested, as relations of domination, as rights of property, as the power to organize and govern production and appropriation."90 These scholars argue that state regulation in the capitalist workplace reproduces the power imbalance between workers and capital. The structure of industry and the way workers are organized are seen to be "closely connected with the pattern of class division in society."91 In the workplace, neo-Marxists believe that employees are structurally disadvantaged in their relations to employers because of the legal protection of property and the dominant position this gives to capital. The depiction of capitalist relations as freely chosen contractual arrangements is criticized for ignoring the powerlessness of individuals who have little to sell beyond their labour power.

Building on a theoretical critique of state regulation in liberal societies, researchers in this school maintain that the legal structures governing collective bargaining will, in the last instance, mask the power imbalances associated with capitalist production. Contrary to many of the institutional studies on industrial policy, this approach sees the changing nature of state regulation as linked to class struggle. The foundation of this approach builds on Karl Marx's brief examination of class conflict in

Ellen Meiksins Wood, Democracy Against Capitalism: Renewing Historical Materialism (Cambridge: Cambridge University Press, 1995), 25. 91 Richard Hyman, Industrial Relations: A Marxist Introduction (London: Macmillian, 1975), 21. 92 On the role of the law in this process see Morton J. Horwitz, "The Historical Foundations of Modern Contract Law," Harvard Law Review 87 (1974), 917-956. -70-

relation to capitalist states. In his examination of the formation of the Factory Acts in nineteenth century Britain, Marx observed that legislative reforms creating the 10-hour workday were the result of working class challenges to the exploitation of early capitalist production. When legislation was passed to address the length of the working day, Marx argues that it only responded to the blatant exploitation of human labour in the name of

no preserving the liberty of capital to enter into contracts with "free" wage labourers.

However, state legislation never entirely removed the power imbalance between the two.

In building on Marx's observations, critical scholars have examined patterns of class struggle in order to understand concrete outcomes associated with changing forms of capital accumulation. In the post-war era, this research linked the unequal and uneven division of labour to the legal regulation of collective bargaining, trade union certification, and the regulation of strike activity. Such an approach entails examining the class struggles over political and economic power "as relational concepts involving the necessity of tension, conflict and struggle between social classes."94 By concentrating on class division in this way, it is then argued that state reforms surrounding collective bargaining and the right to strike actually limited the capacity of workers to challenge

Karl Marx, Capital: A Critical Analysis of Capitalist Production, Volume I (New York: International Publishers, 1967), 264-86. On commenting on the public reaction to the British Factory legislation of 1850, Marx observed, "[t]he displeasure with which capital received this new extravagance speaks through every line of the Act. It limits the working-day for children from 8 to 13, and for women to 16 hours, between 6:00am and 10:00pm, without any legal pause for meal-times. It allows males over 13 to be worked at will day and night. It is a Parliamentary abortion. However, the principle had triumphed with its victory in those great branches of industry which form the most characteristic creation of the modern mode of production. Their wonderful development from 1853 to 1860, hand-in-hand with physical and moral regeneration of the factory workers, struck the most purblind. The masters from whom the legal limitation and regulation had been wrung step by step after a civil war of half a century, themselves referred ostentatiously to the contrast with the branches of exploitation still free." (my emphasis) 94 Leo Panitch, "Elites, Classes, and Power in Canada," 159. -71-

capitalist exploitation. In other words, there is clear evidence that the laws embracing industrial pluralism minimized class conflict through an intensive regulation. As will be shown in this study, this analysis is crucial to understanding the OLRA and the OLRB in the post-war period.

Under these conditions, neo-Marxists looked critically at the manner by which state institutions—federal and provincial governments, courts, administrative boards, the bureaucracy, the police and the military—legitimized the accumulation strategies associated with post-war capitalism.95 The specific form which capital accumulation took, neo-Marxists argue, was influenced by the way in which dominant classes were embodied within the "complex system of representation inside the state."96 While the state maintained a degree of autonomy from these class interests, the unequal structure of representation in the state placed a priority on maintaining policies that sustained the health and stability of the dominant regime of accumulation.97 What, many argue, ultimately unifies the unequal structure of representation is the manner by which state regulation masks the power imbalances within the economy by appealing to the public interest. In insisting upon the classless nature of "national" economies, "national" identities and "national" politics, governments position themselves as neutral umpires in

Miliband, The State in Capitalist Society. In his classic work on the state, Miliband argued that state institutions are not simply limited to legislature or executive power. This point has been elaborated by Leo Panitch, "The role and nature of the Canadian State," 6-8. 96 Rianne Mahon, "Canadian public policy: the unequal structure of representation," in Leo Panitch ed., The Canadian State: Political Economy and Political Power (Toronto: University of Toronto Press, 1977), 165. 97 Nicos Poulantzas, Classes in Contemporary Capitalism (London: Verso, 1975). Aaron McCrorie has utilized this model in his examination of PC 1003. See Aaron McCrorie, "PC 1003: Labour, Capital and the State," in Cy Gonick, Paul Phillips, and Jesse Vorst eds., Labour Gains, Labour Pains: 50 Years of PC 1003 (Halifax: Fernwood, 1995), 18-9. -72-

the regulation of conflict. Richard Hyman identifies the liberal protection of labour relations in the post-war period as re-positioning the state to act in the national interest by being structurally blind to class power. By protecting these unequal structures, state regulation of labour relations placed "real and ideological constraints on the working class."99

Unlike in previous modes of industrial regulation, the state's hostility towards workers' collective actions in the post-war period was not explicit. Rather, as will assist in guiding my argument, the regulation of labour after World War II became less openly hostile. In the post-war period, states in Western Europe and North America legitimized the activities of trade unions by incorporating them into a legal regime that altered the coercive nature of industrial regulation. Meanwhile, trade unions took increasing responsibility to preserve steady and uninterrupted flows of production. In Canada, this occurred through the construction of new collective bargaining regimes and the establishment of public welfare, which included protection from unemployment and workplace injury. As Rand identified in his settlement of the Ford dispute, as long as workers complied with legal restrictions on the right to strike, the state remained relatively uninvolved in the relations between trade unions and employers. If workers challenged these rules through illegal strikes, however, the state would and end the

Richard Hyman, "Pluralism, Procedural Consensus, and Collective Bargaining," British Journal of Industrial Relations 16 (1978), 20-1. See also Mahon, "Canadian public policy," 172. 99 Harry Glasbeek, "Law: Real and Ideological Constraints on the Working Class," in D. Gibson and J.K. Baldwin, eds., Law in a Cynical Society? (Calgary: Carswell, 1985), 282. -73-

dispute through force. By, at least initially, camouflaging this support for employers,

critical theorists argue that the new legal structures,

...fashioned a new hegemony for capital in Canadian society. Through formal mechanisms for negotiation and redistribution, consent came to play a visibly dominant role in inter-class relations, while coercion, still crucially present, was in the background. Coercion in capital-labour relations became less ad hoc and arbitrary: as the state's rationalization and institutionalization of workers' freedom of association became more formal, so did coercion. What before had taken the appearance of the charge of the Mounties now increasingly took the form of the rule of law by which unions policed themselves in most instances.101

In order to retain the legitimacy that unions enjoyed under the new system of industrial pluralism, organized labour had to perform a critical, albeit, contradictory role: overt dissent had to be suppressed by trade union leaders themselves.

Critical research on industrial pluralism has expanded on the contradictions associated with legal regulation in capitalist societies. Judy Fudge and Harry Glasbeek, for instance, argue that post-war industrial pluralism was never designed to ensure that workers received better agreements nor was it meant to constrain the prerogatives of management to control the workplace. Moreover, the structure of the post-war economy was regionally fragmented and characterized by uneven patterns of economic

Leo Panitch and Donald Swartz, From Consent to Coercion, 13. In citing Harold Laski, Panitch and Swartz identify the true power that capital has over labour: the right to call on the state to assist in the protection of private property. Ultimately, if property is threatened the state will send in police, the militia, and even the military to end strikes. As Laski suggests, "we would be overwhelmed if a great trade union in an industrial dispute, asked for, much less received, the aid of police, or the militia or the federal troops to safeguard it in a claim to the right to work which it argued was as real as the physical right to visible and corporal property, like a factory." 101 Ibid., 14-5. 102Judy Fudge and Harry Glasbeek, "The Legacy of PC 1003," Canadian Labour and Employment Law Journal, 3 (Fall 1995), 359. -74-

activity that weakened the power of the national labour movement.' This regime of capitalist accumulation—frequently defined as Fordism—stabilized the labour process through a Taylorist routinization of industrial work alongside the rise of simplified assembly line production. In Ontario, the Fordist nature of heavy manufacturing and resource production was dependent on a nationally protected market in which high wages fuelled the consumer boom of the 1940s and 1950s.104 Under Fordist regulation, trade unions gave up the struggle for control over the workplace in exchange for substantial wage gains at the bargaining table.

The so-called Fordist compromise was constructed around high levels of employment and state sponsored social security that prioritized the needs of male breadwinners. Women, however, were characterized as dependents, and thus relegated to the secondary, largely non-unionized labour market.105 Critical researchers suggest that the divisions of region and gender were exacerbated by Canada's specific model of industrial pluralism, which replaced class antagonism with a juridical model of collective

H.C. Pentland, "A Study of the Changing Social, Economic and Political Background of the Canadian System of Industrial Relations," Report on the Task Force on Labour Relations (The Woods Commission) No. 7 (Ottawa 1968), 322-32. 104Daniel Drache and Harry Glasbeek, The Changing Workplace: Reshaping Canada's Industrial Relations System (Toronto 1992)17-9; Greg Albo, "The "New Realism" and Canadian Workers," in Alain-G. Gagnon and James P. Bickerton, eds., Canadian Politics (Peterborough: Broadview, 1990), 476-9; Jane Jenson, ""Different" but not "Exceptional": Canada's Permeable Fordism," Canadian Review of Sociology and Anthropology, 26 (1989), 69-94. 105Ann Porter, "Women and Income Security in the Post-War Period: The Case of Unemployment Insurance, 1945-1962," Labour/Le Travail, 31 (1993), 111-44; Ann Forrest, "Securing the Male Breadwinner: A Feminist Interpretation of PC 1003," in Cy Gonick, Paul Phillips, and Jesse Vorst eds., Labour Gains, Labour Pains: 50 Years of PC 1003 (Halifax 1995), 139-62; Judy Fudge and Eric Tucker, "Pluralism or Fragmentation?: The Twentieth-Century Employment Law Regime in Canada," Labour/Le Travail, 46 (2000), 279-83; Mark Thomas, "Setting the Minimum: Ontario's Employment Standards in the Postwar Years, 1944-1968," Labour/Le Travail, 54 (2004), 62-72. -75-

bargaining.106 In order to defend their position, the leadership within the trade unions also engaged in a purge of the Communist left.107 The regime of industrial pluralism thus weakened unions as organizations of mobilization and protest because it encouraged the leadership to police its own members in order to demonstrate that they were responsible

1 OR industrial citizens.

This analysis of post-war industrial pluralism is persuasive. Legal regulation indeed restricted trade unions from expanding in the post-war economy. In binding trade union rights to maintaining a level of "responsibility," the new regime limited the extension of trade unions in new sectors. This meant that trade unions had to acknowledge the primacy of private property and free enterprise while also accepting that strikes could not occur during the life of a collective agreement. Collective agreements also had to be enforced by trade union leaders who policed even the weakest provisions in those agreements. In short, post-war industrial pluralism thrust forms of "business unionism" upon many trade unions, as they became organizations whose sole focus was to get better agreements rather than to challenge the injustice and class inequality associated with capitalism.109 In consenting to these regulations, critical scholars have convincingly argued that trade unions lost a central component of their potential strength:

Fudge and Tucker, Labour Before the Law, 263-301; Palmer, Working Class Experience, 278-84; Craig Heron, The Canadian Labour Movement: A Short History 2nd Ed. (Toronto: Lorimer, 1996),75-84; Mclnnis, Harnessing Labour Confrontation; Jeremy Webber, "The Malaise of Compulsory Conciliation: Strike Prevention in Canada During World War II," Labour/Le Travail, 15 (1985), 57-88. 10 Irving Abella, Nationalism, Communism and Canadian Labour: The CIO, the Communist Party and the Canadian Congress of Labour, 1935-1956 (Toronto: University of Toronto Press, 1973); Reg Whitaker and Gary Marcuse, Cold War Canada: The Making of a National Insecurity State, 1945-1957 (Toronto: University of Toronto Press, 1994), 313-63. 108Panitch and Swartz, From Consent to Coercion,\4-5; Fudge and Tucker, Labour Before the Law, 291- 302. 109Fudge and Tucker, Labour Before the Law, 305-6. -76-

their ability to forge political resistance to capitalist exploitation by collective action, most notably through strikes.

In order to deal with any conflict that might arise from this system of industrial pluralism, the state developed a complex institutional framework comprised of labour boards, courts, conciliation boards, grievance arbitration, and complex systems of laws and regulations whose primary goal was to limit industrial conflict through various mechanisms of dispute resolution. The limitations of these new institutions were most noticeable when class antagonism broke out into open conflict. When workers went on strike, they now did so in a legal context that set conditions on how unions could

'legitimately' strike. Henceforth, picketlines were defined by their 'legality,' which inevitably inhibited local militancy and the use of more radical tactics.110 This regulation of workers' collective action shifted workplace conflict from the picket lines to labour boards and the courts.111 In Ontario, the manner by which the legalization of workplace conflict occurred was one of the defining labour questions in the 1950s. This was most noticeable in the struggle over the content of the OLRA and the structure of the OLRB.

Rather than concentrating on the extension of union democracy and actively building collective organizations to resist capitalist exploitation, union organizing in the post-war era was limited to a mechanical, legal framework. Researchers have suggested that unions' acceptance of this framework contributed to the bureaucratization of trade unions, distancing the leadership from the rank-and-file workers in the union. Awards

110 Ibid., 10-5. 1'' Rosemary Warskett, "Bank Worker Unionization and the Law," Studies in Political Economy 25 (1998), 47-8; Rosemary Warskett, "Trade Unions and the Canadian State: A Case Study of Bank Worker Unionization, 1976-1979," MA thesis, , 1981. -77-

such as the Rand formula required trade union leadership to be disciplined and structured in order to police collective bargaining agreements. This led to a hierarchal and bureaucratic trade unionism. Highly trained staff and legal representatives prevailed over

in the more militant and "class-oriented" unionism of the 1930s and the 1940s.

According to Stephanie Ross, the post-war model of collective bargaining had

"ideological effects" on trade union leadership because they were increasingly removed from the more radical demands of the membership.

Throughout the post-war period, this divide contributed to changing how unions functioned. In his comparison of UAW Local 200 in Windsor and UAW local 707 at the

Ford plant in Oakville, for instance, Don Wells shows that the UAW was only able to win an agreement with Ford in Windsor because of a core group of militants employed at the company in the 1930s and 1940s. In 1941, the workers of Local 200 won a recognition strike despite the draconian actions of the company. After the union's acceptance of the

Wagner principles in PC 1003 in 1944 and the winning of the Rand formula in 1945,

Wells argues that the culture of the UAW began to change. Increasingly, power was concentrated at the national and international levels of the union, while the union turned to legalized mechanisms to secure new Locals throughout the province. Contrary to the grassroots organizing campaign by activists in Local 200, Local 707 in Oakville was organized in 1954 using the 1950 OLRA.114 In this instance, the UAW used professional staff representatives from the national union in order to organize the new Local.

112 Don Wells, "The Impact of the Postwar Compromise on Canadian Unionism: The Formation of an Auto Worker Local in the 1950s," Labour/Le Travail 36 (1995), 150. 113 Ross, "The Making of CUPE," 72-3. 114 Wells, "Post-War Compromise," 158-9. -78-

Meanwhile, crucial bargaining (and later strike) decisions were made by union leadership rather than rank-and-file activists.11

By the middle of the 1950s, Canadian industrial relations were fully integrated, and in most cases, dependent upon bureaucratic unionism. Union behaviour changed accordingly. Collective solidarity waned in the absence of the strikes that accompanied previous recognition battles.116 Workplace discipline also tightened with the development of a formalized and complex grievance system, which gave employers demarcated lines of legal control in the workplace. As contracts became more technical and complex, workers were increasingly distanced from their own unions. Only rarely did these new legal rules circumscribe the power that employers had over employees. Whereas past disciplinary action had sometimes led to wildcat strikes in order to proclaim a common cause with fellow workers, the new regime of industrial legality,

...incarcerated [workers] in notions of what the shopfloor was and was not. In the past, workplaces had often been the site of heated debate and discussion about the direction of class action. Not so in the legalistically governed workplaces.. .where IIS the shopfloor was the site of uninterrupted production, not a debating society.

115 Don Wells, "Origins of Canada's Wagner Model of Industrial Relations: The United Auto Workers in Canada and the Suppression of "Rank and File" Unionism, 1936-1953," Canadian Journal of Sociology 20 (1995), 196. 116 Drache and Glasbeek, The Changing Workplace, 102-4, 137-41. 117 Matheson, "The Canadian Working Class and Industrial Legality," chap. 3. Matheson argues that union contracts in this period went through three generational stages. First generation contracts (in the 1930s) were relatively simple. As the state became more accepting of collective bargaining during the war, second generation contracts (1940-1945) began to contain provisions surrounding seniority and grievance procedures. After the passage of the 1948 IRDIA, third generation contracts (late 1940s early 1950s), became highly complex and legalized, and included rules surrounding recognition, management rights, union security, seniority provisions, grievance procedures and arbitration. 118 Palmer, Working Class Experience, 284. -79-

Under these provisions, union leaders and legal experts became integrated within management structures and were responsible for enforcing the provisions of collective agreements.119

As the trend towards union bureaucratization occurred alongside (or because of) the implementation of OLRA and the OLRB, it is important to ask if these institutions resulted in the weakening of working class militancy in Ontario. To be sure, the Wagner principles adopted by federal and provincial governments represented a significant step forward for workers who had suffered from authoritarian employers and coercive government policy prior to the war. While some studies have challenged this point, it is difficult to ignore the fact that the passage of PC 1003 represented a significant legal and political victory for workers. That being the case, it is important to examine how the victories achieved at the end of the war were co-opted by conservative legal forces which ended up undermining the organizational strength of the working class.

Unfortunately, much of the work on these changes by critical legal and neo-

Marxist scholars rarely suggests that the struggles in the 1950s and 1960s represented anything more than a consolidation of the legal regime by workers and their trade unions.

There is a sense that the limitations of industrial pluralism were inevitable given the self- imposed restrictions by business and the state. In other words, it is largely accepted by

119 Wells, "Origins of Canada's Wagner Model of Industrial Relations," 219; Palmer, Working Class Experience, 284-5. Palmer concludes, "...as much as was gained by the arrival of industrial legality, then, [as] was something lost. A part of that loss was the restructuring of industrial unionism away from its mobilizing movement oriented character of the early 1940s and into its legalistic, business form of the post­ war period." 120 McCrorie, "PC 1003," 17. Peter J. Warrian makes this point in his thesis, "Labour is not a Commodity": A Study of the Rights of Labour in the Canadian Postwar Economy, 1944-48," Ph.D. thesis, University of Waterloo, 1986, 114-23. -80-

critical scholars that the limitations associated with industrial legality were inevitable rather than being the product of class struggle during the period. Many scholars also assume that workers themselves did not resist the juridical trends associated with post­ war industrial relations. Was this the case? Were the new institutional structures created after the war unable, by its nature, to expand on worker freedoms and to challenge the power of business?

Re-examining Industrial Pluralism in Ontario

In attempting to answer these questions, the analysis presented here provides a synthesis of the research of critical theorists by examining the forces that gave substance to the legal provisions associated with post-war regulation. In his landmark study of the judiciary's role in shaping industrial relations in the United States, Karl Klare has argued that the original intent of the Wagner Act was radical and far-reaching. Indeed, he suggests that Wagner's embrace of industrial democracy had the potential to alter the capitalist workplace. In its early form, businesses were fearful that the six principles of the Wagner Act "accorded a governmental blessing to powerful workers' organizations that were to acquire equal bargaining power with corporations, accomplish a redistribution of income and subject the workplace to a regime of participatory democracy."121 By injecting aspects of democracy into the workplace, Klare suggests that the Act's plain language was open to an anti-capitalist interpretation. In gauging business response to the Wagner Act, Klare makes it clear that American companies

121 Klare, "Judicial Derealization," 285-7. -81-

feared that state intervention would erode capitalist control and restrict rights of private property. Many businessmen also felt that the promotion of any form of unionism openly promoted labour radicalism and furthered working-class unrest.12 Thus, says Klare, the passage of the Act did not inevitably lead to the conformist period in the 1950s. Rather, he suggests that there was no agreed upon set of principles for interpreting Wagnerism.

Ultimately, the democratic possibilities of this legislation were open to interpretation and this ambiguity opened the door to social change.

Faced with these radical overtones, American capital's response was to fight

Wagnerism through hostile and illegal means. Business also relied on judges to challenge the constitutionality of the Wagner Act. As judges were trained in classical notions of contract law, employers felt they had an advantage in challenging the Act in the courts. Union leaders, meanwhile, chose to meet employers in court in order to challenge the legitimacy of the Act. These strategies, Klare argues, played into the hands of employers and allowed the courts to weaken the Wagner Act. The Supreme Court's subsequent decisions on the NLRB's discretionary power showed the extent to which the courts were willing to use common law understanding of the rights of contract to limit the radical potential of the Wagner Act.124

122 Ibid., 288. 123 Ibid., 297. 124 Ibid., 298-310. The case law is complex, but Klare begins by re-examining the American Supreme Court's decision in NLRB v. Jones & Laughlin Steel Corp 301 U.S. 1 (1937). Klare contends that the central issue in this case was "to resolve whether the wage-bargain would remain...within the contractualist, private ordering framework." As Klare argues, the court relied on businesses interpretation of the Wagner Act to argue that collective bargaining did not undermine the centrality of private contracts and the supremacy of private property. -82-

As Klare outlines, the Supreme Court concluded that the Wagner Act was never

concerned with the actual outcome of collective bargaining as this implied that the Act

favoured notions of social justice and wealth redistribution. Rather, the Act was only

designed in this view, to bring the parties to the bargaining table. While the unions

won significant victories in these court struggles—defeating company unions and placing

limits on employers' unfair labour practices—the Supreme Court also reaffirmed the

primacy of the rights contract and property ownership. The law thus worked to limit the

potentially radical nature of Wagner, but only in instances where worker unrest

challenged the status quo. As the Supreme Court was overtly hostile to these forms of

protest, judicial reasoning interpreted the Wagner Act in a very conservative way in such

instances. In other words, the judicial deradicalization of the Wagner Act was the product

of sustained class struggle and not preordained by the state's intervention in the economy.

In mapping the judicial deradicalization of the Wagner Act, Klare's analysis highlights the way in which business was able to use the state to defeat pro-labour

legislation. Although the state maintained a relative autonomy from direct class pressure, the courts became a site of struggle that obscured the original intentions of the Wagner

Act. In essence, businesses were able to argue before the court that the Wagner Act had

obscured the balance between labour and capital within American society.

In these cases, the law and state regulation were themselves relational concepts both shaped by class antagonism. Under these conditions, the law was, as Palmer has

stated, "both imposed and internalized; it [was] a wall of silence and an articulation of

Ibid., 302. -83-

political economy's material and hierarchical ordering of society around its concepts or property and propriety, and expression of cultures that have, from antiquity to the present

day, valued rank whatever the evolving rhetoric of equality."12 In this way, the

"cobweb-like confinements" of the law, acted as a barrier to furthering the interests of workers within capitalism. Nevertheless, in specific instances, the law can be expanded,

stretched and broken by challenging the "boundaries of constraint" within capitalist

society.127 In this sense, the relations that make up "the state" and "the law" are not historically static. More exactly, at specific moments, the structures of the state can be challenged through the institutions that have been created to regulate the market. In order to understand the space that opens for marginalized classes, it is necessary to understand how social forces challenge the established order while at the same time seeking to benefit from existing, albeit limited, laws. In Canada, this occurred immediately following the conclusion of the War, when the federal and provincial states grappled with the creation of a new collective bargaining framework.

In embracing this approach to exploring post-war industrialism, the interaction between unions, employers and the state throughout the 1950s and early 1960s, I hope to provide a better framework for understanding the dynamics of this period. To be sure, labour leaders were influenced by the Cold War chill on union activity that saw them expel some of the most dedicated activists for their Communist sympathies. Legalized reforms also led to bureaucratic changes that insulated union leaders from the militancy

126 Bryan Palmer, "What's Law Got to Do with It? Historical Considerations On Class Struggle, Boundaries of Constraint, and Capitalist Authority," Osgoode Hall Law Journal 41 (2003), 466. 127 Ibid., 474-5. -84-

of the rank-and-file. In recognizing this transformation, however, it is also important to

emphasize that many union leaders and rank-and-file union members resisted, often

militantly, the legalization of post-war labour relations. As Shirley Tillotson has argued

in her analysis of trade union activism in the 1950s and early 1960s, many workers were

waging an active struggle against the legalistic and conservative forces that were hostile

to trade unions. Tillotson suggests that trade unions in this period were,

... architects of an activism designed to suit the institutional conditions of the new industrial legality in the Cold War era. Labour bureaucrats they indisputably were, but the new regime of industrial relations prompted them, not simply to suppress activism, but to re-examine and to attempt to democratize the basis of their institutional power. This democratization project, admittedly, was limited by its intolerance of the communist political minority. But activism could be and was promoted in ways that accommodated the large range of political opinion on the socialist left and liberal centre of Canadian life in the 1950s.128

In this way, trade unions as diverse as those in the mining industry, the auto industry, and

in the public sector openly challenged the limits of industrial pluralism. Others, which included sections of Mine-Mill, the USWA, the UAW and smaller service unions, resisted legalization pressures imposed by employers and the courts. Many of these same unions sought to increase the democratic potential of post-war institutions, including labour boards.

While the face of labour struggle was changing in the immediate post-war period, it was still defined by employers who were anxious to limit the extension of collective bargaining. Thus, while federal and provincial legislation were less encompassing than the US Wagner legislation, it did open space for workers to challenge traditional

128 Shirley Tillotson, '"When our Membership Awakens': Welfare Work and Canadian Union Activism, 1950-1965," Labour/Le Travail 40 (1997), 139-40. -85-

employer powers. Like with the Wagner legislation, businesses were concerned that post­

war labour codes would further the rights of workers and undermine the privileged

position of business within the economy. In order to resist the growth of trade unions, employers argued strongly to return labour relations back to the provinces, the police and the courts. This argument reflected the "provincial rights" movements among

Conservative politicians (led by Ontario), who became increasingly aggressive after the release of wartime controls by the federal government.

Labour, meanwhile, favoured a national labour code, which leaders thought would consolidate the gains made from PC 1003 while constructing the institutional conditions for extending union freedoms to other sectors in the economy.130 As this failed to materialize, labour was reduced to fighting for the gains of PC 1003 in each province.

Labour was suspicious of provincial control over labour relations because provincial governments were far more susceptible to intimidation from "small-time employers who had a disproportionate influence in the provincial economies in which they were located."131 In reality, provincialization meant that the benefits associated with PC 1003 were increasingly difficult to improve upon.132

The influence that employers maintained with provincial governments is essential to understanding post-war labour relations in Canada. The popular interpretation of the

129 Millar, "Shapes of Power," 318. See also, K.J. Rea, The Prosperous Years: The Economic , 1939-1975 (Toronto: University of Toronto Press, 1985), 21. 130 Daniel Coates, "Organized Labour and Politics in Canada: The Development of a National Labour Code," Ph.D. thesis, Cornell University, 1973. 131 Harry Glasbeek, "Labour Relations Policy and Law as Mechanisms of Adjustment," Osgoode Hall Law Journal 25 (1987), 201. 132 H.C. Pentland, "A Study of the Changing Social, Economic, and Political Background of the Canadian System of Industrial Relations,"331. -86-

period from the end of World War II to the early 1960s claims that it was a quiet, conservative period, highlighted by a consolidation of Fordist accumulation, the Cold-

War and a less militant working class. For both institutional and critical scholars, the

stability that emerged from these changes was predicated on the consolidation of industrial legality. In Conservative Ontario, while strikes did occur (albeit with less frequency than in the 1940s) they have been interpreted as securing the PC 1003 compromise.133

While the strike waves in the 1960s destroyed the notion that unions were defeated by the post-war compromise, business still used its influence with provincial governments to limit the extension of unionization. How, then, should we interpret the argument that the post-war period in Ontario was characterized by a political compromise between unions, business and the state in which unions embraced post-war legal protection and abandoned trade union militancy? Was this process inevitable? Or, as

Klare's model would suggest, was this a product of the political, social and class tensions after the war?

The answer to this question, as will be demonstrated throughout the remainder of this thesis, suggests that trade union struggles during the war opened a window to expand industrial democracy and union growth in the province. As will be shown, this potential worried all major employers in Ontario. Throughout the post-war era, businesses insisted that labour legislation unjustly contributed to the abnormal growth of trade unions. As such, businesses organized into various sectoral groups whose raison d'etre was to

Jamieson, Times ofTrouble, 351. -87-

substantially reduce protective legislation and to make trade unions more responsible

industrial partners. An important component of this strategy was to demonstrate to provincial governments that legislation in question destroyed "balance" between

employers and workers within the post-war economy. In a brief before the Select

Committee on the Ontario Legislature in 1957, the Toronto Board of Trade summarized this notion by suggesting that,

...[fjhe organizational and financial strength of unions, which more often than not vastly exceeds the resources of the many relatively small employers with whom they are regularly bargaining, together with their power to bring about a cessation of work, is such that they no longer need catering to upon a basis which is so exclusively privileged in law. Unions should now progressively assume responsibilities commensurate with bodies of their size, power and influence.

The Board of Trade's denunciation of the power of trade unions in post-war Ontario was repeated by every major employer in Ontario's industrial, resource, service, and public sectors. The Board of Trade's position was that unions be made responsible in court.

They also positioned themselves as the defenders of individual workers, arguing for greater protection of individuals "forced" into unionization. Without a hint of irony, employers also lobbied to limit the democratic potential of the OLRB by restricting its discretionary power to certify unions; sought alter the adjudication procedures before the

OLRB; and worked to win right to appeal OLRB decisions.

These strategies stemmed from employers' belief that post-war industrial pluralism promoted unionization which they feared altered the dynamics of Ontario's private enterprise economy. Accordingly, employers often defied the law in hostile and

134 AO, PSCLR, RG 49-138, Box C 91, Brief of the Toronto Board of Trade, 15 September 1957, 6-7. -88-

often violent ways. They also continued to pressure the provincial government to change

the manner in which all institutions associated with labour law operated. This included

engaging the courts to intervene in industrial disputes in order to undermine the

independence of the OLRB.

To varying degrees, labour unions in the province (and throughout the country),

viewed these efforts as attempts to curtail the democratic potentials of post-war labour

legislation. They thus challenged employers' efforts and sought to extend the

Conservative government's post-war labour legislation. Nevertheless, the movement was

far from united. In many cases, unions openly embraced the law as a way to solidify their

position in the workplace. This was most notable in the mid 1950s when the USWA

launched a series of strikes over the Rand Formula in the mines. This was an important

strategy designed to defeat their rivals in Mine Mill. Most unions also saw legalized

security as a necessary step to build a larger movement. This position, however, was never outlined fully and was compromised by the continuing rift between communist and non-communist unions. Within this context, fights were waged over the interpretation, benefits and extension of trade union freedoms. As this struggle continued into the 1950s and early 1960s, the split between the unions became less apparent as the communists and non-communists took increasingly similar positions on reforms to the OLRA. The defining feature of this period in fact, was that labour and capital fought bitterly over the structure of post-war labour law. As will be shown, nothing that came of these struggles was inevitable. -89-

Conclusion

Liberal and institutional research on the post-war period contributes to our understanding of the role of legal institutions in regulating the functioning of collective bargaining throughout the post-war era. Few such studies, however, situate the role of compromise and balance within the political context in which industrial pluralism was created and administered. What is more, few question the role of the participants in the creation and consolidation of these institutions as they changed throughout the post-war era. In

Ontario, for instance, most scholars assume that the so-called golden age of Conservative governments from 1943 to 1985 were more or less non-partisan in the construction and administration of collective bargaining legislation. They also assume that business in the province was willing to adapt, albeit begrudgingly, to post-war governments' embrace of industrial pluralism. In this tradition, scholars examine labour law independently of the social and economic forces that shaped labour relations patterns typical of the post-war consensus.

Rather than rely on these interpretations of law within liberal democracies, neo-

Marxist state theory helps to explain the tensions associated with the regulation of labour within capitalist societies. In challenging the role of states to balance the relationships between workers and employers, research in this tradition assists in building a critique of state action in the post-war period. Notwithstanding these critiques, work in this tradition assumes that the post-war regulation of collective bargaining in Ontario more or less created a new hegemony for business to regulate the workplace. In this regard, post-war -90-

institutions such as the OLRA and the OLRB are assumed to have consolidated this new hegemony.

In fact, there is evidence to suggest that industrial pluralism was shaped by overt class conflict in post-war Ontario. Businesses aggressively pursued their class interest over the configuration of the collective bargaining regime. They also attempted to constrain the expansion of the OLRA and the OLRB by arguing these institutions tipped the balance in favour of labour unions. In taking these positions, businesses resisted the full extension of collective bargaining, establishing sectoral groups to redefine post-war labour law. Business also pushed for increased legalization of OLRB powers. In this conflict, business attempted to form alliances with state officials, the media and the courts in order to curb workers' collective action. Labour, meanwhile, promoted its agenda by resisting the legalization of administrative bodies and by advocating a more humane form of post-war capitalism.

Governments, for their part, sought to limit industrial tension by constructing a vast array of legal machinery in order to limit strikes. In some cases, the institutions designed to limit recognition strikes, which included the OLRB, were interpreted by workers and unions as encouraging industrial democracy. Labour took this position because they believed that these institutions could constrain the power of business and expand trade union power. As will be demonstrated, however, the discretionary power of the OLRB—that could have expanded trade union freedoms—was constrained by governments and courts through sustained business pressure. What emerged were significant limitations on the militancy of workers and their unions. -91-

Chapter 3

A New Ontario? The Politics of the Provincial Labour Relations Regime, 1943-1950

Introduction

In this chapter, I explore the historical context which gave rise to the Ontario Labour

Relations Act (OLRA) and the Ontario Labour Relations Board (OLRB) during (and immediately following) World War II. My purpose in doing so is to trace the structural forces that shaped labour relations in Ontario during its formative period, beginning in

1943 and ending with the passage of the "made in Ontario" Act in 1950. At the centre of this analysis is a critical examination of three provincial governments' attempts to lay the foundation for industrial peace in this period. I intend to demonstrate that the discourse of fair and balanced labour law put forward by the provincial Liberal and Conservative governments' did not, in fact, match the actual role played by the state. Rather, I argue that these governments were far less inclined to labour's demand for inclusive collective bargaining than the demand for legal restrictions on trade union rights put forward by organized business.

In order to understand the forces at work in Ontario during this period, it is necessary to understand the economic and social context of this era. As was true in most other jurisdictions in Canada, the speed of industrial change in Ontario during World War

II altered the Liberal government's position on trade unionism. Faced with the conditions of full employment and the subsequent expansion of industrial unions, the Liberals could no longer ignore the power of trade unions. In addition to a series of strikes, the -92-

provincial Liberals also had to contend with the rising popularity of the social democratic

CCF, which was closely aligned with the industrial union movement.

The rise of the electoral left and the threat of slowing war production pressured

the Liberals to embrace a form of collective bargaining. This was codified in the passage

of the 1943 OLRA. The Act required broader based bargaining and appeared to

strengthen the unions' position. In order to appease employers, however, the Liberal

OLRA also protected company unions by administering the process through conservative judges on a provincial Labour Court. After the defeat of the provincial Liberals in 1943, the newly minted "Progressive" Conservative Party promised to expand the Liberal

OLRA by replicating Wagner reforms in Ontario. Despite making this pledge in 1943, however, the provincial government did not pass its Wagner-inspired legislation until

1950. What accounts for this long delay?

There is a great deal of evidence to suggest that the Liberal and Conservative governments only embraced collective bargaining when there was significant electoral pressure from the left. Another important reason for delay occurred because of resistance from employers. Although some employers agreed to participate in the collective bargaining regime after 1943, most continued to demand greater protection for company unions. Employers were also adamant that legislation not promote unionization or set minimum standards for collective bargaining. Pointing to the common law definitions of contract, employers further insisted that trade unions be incorporated so that they could -93-

be sued in court. Faced with pressure from the left and the demands of employers, the

Conservatives took the lesser step of reproducing the federal code in 1948. The

government adopted this position for two reasons. First, it gave employers a great deal of

freedom to challenge union activity through the courts and continued to protect company

unions. Second, it reduced support for the CCF by appealing to moderate working-class

voters. In so doing, the new Act tied provincial acceptance of collective bargaining to

strict legal sanctions on trade union activity, especially the right to strike.

This chapter is divided into four sections. The first section examines the early

struggles for trade union freedoms during the final years of Mitch Hepburn's

government. As will be shown, the provincial Liberal party entered a period of prolonged

decline, in part, because it could not reconcile the demands of its constituencies on the

left and the right. Given this split, the OLRA ended up alienating both Liberals' private

sector allies and most of the organized working class. The second section then examines

events following the election of George Drew and the Conservative party in the spring of

1943. In winning the 1943 election, the party met the challenge of the CCF with a platform that balanced elements of state planning with the promotion of private

enterprise. Despite making these promises, once in power when employer opposition to unionization intensified, the Tories resisted a new Act until all alternatives were

exhausted. As is demonstrated in the third section, the government was able to appease

its private sector allies by taking the unusual step of abandoning its previous stances on

1 Under the Rights of Labour Act, 1943 trade unions were deemed voluntary organizations. Unlike a corporation, voluntary organizations cannot be sued in a court of law. This was essential to making trade unions viable organizations for workers, as employers often attempted to defeat union drives or strikes by suing these organizations in courts. -94-

provincial autonomy by adopting the federal code in 1948. This had the effect of passing

the concern over labour regulation to the federal government while ignoring most the

demands being made by the provincial labour movement.

The fourth section then examines the politics that led to the creation of the 1950

OLRA. Introduced by newly crowned leader Leslie Frost, the new Act represented a dramatic step for a government that had resisted bona fide Wagner reforms for seven years. The new Act did seek, undeniably, to address some of the demands from the unions, which included the expansion of OLRB discretionary power to eliminate company unions. In order to consolidate employer support, however, the government also left thousands of workers outside of the purview of the Act and left the Board vulnerable to appeals to the courts. This deliberately tepid embrace of Wagnerism left the door open for future challenges to the structure of the Board, and cemented a culture of legalism in post-war industrial relations. Ultimately, employer resistance to collective bargaining was reinforced by the government's weak labour legislation. As will be demonstrated, these limitations occurred because employers were able to use their cozy relationship with the government to impose structural constraints on the extension of unionization and workplace democracy in the province.

Early Labour Legislation: Mitch Hepburn and the Ontario Liberals

Prior to World War II, federal and provincial governments resisted the pressure for trade union recognition and collective bargaining laws. After the labour revolt in 1919, working-class opposition was stifled by employers' refusals to recognize trade unions. In

Ontario, as elsewhere, the position of employers was actively supported by the state. The -95-

state's opposition to unionization limited the ability of working-class parties to challenge

government power.2 Although the economic crisis in the 1930s resulted in a wave of resistance from working-class militants, unions continued to be subdued by the

combination of provincial opposition and employer intransigence.

Additionally, competition between traditional craft unions (TLC-AFL) and the more radical tactics of the Congress for Industrial Workers (CIO-CCL) also divided workers. In this period, the CIO-CCL employed unconventional strike tactics as a way to organize unskilled workers. While the CIO met with some success, its strategies also contributed to the development of an even closer alliance between business and the provincial government of Mitchell Hepburn. Despite presiding over economic depression in the 1930s, the provincial Liberal government of Mitchell Hepburn took only piecemeal steps to advance the rights of working people in the province. Hepburn was notoriously hostile to the rise of CIO industrial unionism, which he publicly decried as harbouring

Communist agitators during the 1934 and 1937 election campaigns. The Liberals were so

2 James Naylor, The New Democracy: Challenging the Social Order in Industrial Ontario, 1914-1925 (Toronto: University of Toronto Press, 1991), 215-44. There was some success in aligning socialist and working class interests with the agrarian United Farmers of Ontario. The UFO formed government in 1919 but the coalition crumbled after four years in power. 3 Neil McKenty, Mitch Hepburn (Toronto: McClelland & Stewart, 1967), 102-4. In 1935, the provincial Liberals passed the Industrial Standards Act. The Act was an early attempt to protect unorganized workers from enduring sweatshop conditions. The legislation provided that where workers and employers agreed upon certain minimum standards (in any industry) these conditions would be imposed on the rest of the industries in the province. While applauded by some union leaders, the Act did not support (or encourage) genuine collective bargaining and did not encourage employers to recognize employee requests. In 1937, the Liberals also passed Ontario's first minimum wage for men. Based on these reforms, McKenty argues that the Liberals were not inherently anti-labour. -96-

determined to keep the CIO out of Ontario that the government used special police

constables to stop spontaneous or sit-down strikes.

Hepburn's hostility to industrial unionism stemmed from his government's close

connection to industrialists and financiers on , and to mining interests in

particular.5 Hepburn's close connections to these elements of capital (including the

premier's personal investments) were particularly important because the value of gold

had risen sharply against the general fall of international currencies in the 1930s. The rising price of gold also proved to be an economic boon for the Liberal party, Bay Street

financiers, and mining conglomerates. It was these very public connections that drove

Hepburn to oppose the expansion of the CIO in Ontario during the 1930s.

Notwithstanding Hepburn's deference towards leading capitalists in the province, the politics of the war caused him to rethink his position. He was determined to limit labour strife in order to push his federal counterparts into a "total war" effort, which

4 Irving Abella, " 1937," in Irving Abella ed., On Strike: Six Key Labour Struggles in Canada, 1919-1949 (Toronto: Lorimer, 1974), 120-1. During the 1937 Oshawa strike, Hepburn mobilized a special branch of the Ontario Provincial Police and a private militia (Hepburn's Hussars) in order to stop the local workers from organizing the plant. He also fired Attorney General and Labour Minister who were sympathetic to the strike. These steps were taken in consultation with company officials who were determined to defeat the CIO. In the bizarre series of negotiations that followed, Hepburn and the company finally agreed to a contract with the union (by proxy of UAW legal representative J.L. Cohen) so long as the CIO name was nowhere in the final contract. 5 Reginald Whitaker, The Government Party: Organizing and Financing the , 1930-1958 (Toronto: University of Toronto Press, 1977), 311-17; Abella, "Oshawa 1937," 98. Hepburn was closely tied to Algoma Steel owner Sir James Dun, Wood Gundy's James Gundy, Mclntyre-Porcupine Mine owner J.P. Bickell, Wall Street mining stock promoters Ben "SeU'em" Smith, and the Globe and Mail's owner George C. McCullagh. 6 Whitaker sees this as reflective of a larger shift in the Canadian economy, arguing that the depression thwarted the long-held dream of the National Policy to create a common Canadian market. He argues that the economic collapse of the 1930s moved the Canadian economy towards a regional decentralization based on new forms of economic activity. By sheer luck, the provincial Liberal Party was the primary beneficiary of this shift. Whitaker, The Government Party, 312. 7 McKenty, Mitch Hepburn, 92-3. -97-

included implementing conscription. Needing labour peace, Hepburn became desperate to appear conciliatory towards organized labour during the strike waves in 1942 and

1943. This led him to commission drafts of a new labour code from labour lawyer J.L.

Cohen.8 As Cohen had well known sympathies to the Communist and CIO-CCL unions, employers heavily resisted his involvement. Hepburn's about face on protective labour legislation placed him at odds with the vast majority of Ontario businesses.9 Hepburn's position within the Liberal party was also crumbling because of a bitter rivalry between himself and Prime Minister King. In light of these difficulties, Hepburn took the unusual step of resigning as premier before the 1943 election. After Hepburn's resignation, the passage of Ontario's collective bargaining policy was left to his more conservative successor, Gordon Conant.10

In order to ease resistance from employers, Conant and Labour Minister Peter

Heenan11 decided to examine potential reforms through a Select Committee of the

Ontario Legislature. Based on the mixed messages coming from the Liberals, the

Conservatives' new leader George Drew refused to participate. Rather, he criticized the

Laurel Sefton MacDowell, Renegade Lawyer, 110-2. While Cohen's involvement in the drafting of a new bill was controversial, his actual submissions to the government were not radical. MacDowell suggests that none of Cohen's drafts recommended the adoption of a Wagner-inspired board (although he personally favoured this model). 9 "Hold Up of Bargaining Bill Said 'Admission of Defeat,'" Toronto Daily Star, 18 February 1943. 10 National Archives of Canada (hereafter NAC), Jacob Finkelman Papers (hereafter FP), MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, November 1971, 6-7. According to OLRB chair Jacob Finkelman, Conant was "not liberal in outlook," but pressure from the war, the CCF, and from organized labour created a situation where he was pressured into acting. 11 Millar, "Shapes of Power," 68. Heenan had political experience in the labour portfolio, having been elected as a labour candidate in 1919. He was also a former miner, railwayman, lands and forests minister, and federal labour minister in the King government in the 1920s. 12 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, November 1971, 6-7. The Committee was initially supposed to be composed of eight Liberals and three -98-

government for reversing its stance on the lawless actions of CCL labour leaders and for consulting with J.L. Cohen.13 Meanwhile, the CCL unions and the CCF submitted briefs to the Committee outlining proposals for a Wagner-inspired board and broader-based bargaining. Most of these proposals were abandoned by the Liberals because they were universally opposed by employers. When the Committee released its report, it formed the basis for the new Collective Bargaining Act passed on 14 April 1943.H Largely because of support from Heenan, the new Act addressed some of the unions' demands for mandatory recognition and collective bargaining in the province. Unlike the Wagner Act, however, the Liberal legislation also transferred the adjudication of the Act to a Labour

Court.15 The new branch of the Supreme Court of Ontario was created because most

Liberals were convinced by business and company lawyers16 that judges could better balance the requests of the unions with employer demands for limitations on the right to strike and the preservation of company unions. In coming to this conclusion, the Liberals

Conservatives, but the Conservatives boycotted the committee. Of the eleven Liberals selected, only two were from industrial ridings. 13 John A. Willis, The Ontario Labour Court, 1943-1944 (Kingston: Industrial Relations Centre, Queen's University, 1979), 22 (note 4). In his speeches in the Legislature, Drew took the unusual step of building on labour's opposition to the court. While the Conservatives' about face on a Wagner board was probably linked to partisan opposition to the government, future premier Leslie Frost did support a motion in the legislature calling for such reforms. 14 MacDowell, Renegade Lawyer, 118. MacDowell demonstrates that the draft legislation was opposed by every major employer in Ontario. Almost universally, Ontario businesses favoured maintaining the status quo, although they did suggest that unions be incorporated so that they could be sued. 15 Bora Laskin, "Collective Bargaining in Ontario: A New Legislative Approach," Canadian Bar Review 21 (1943), 684-5; John A. Willis, The Ontario Labour Court, 22-4, 73-6. 16 Millar, "Shapes of Power," 85-6. Millar argues that the anti-union forces were aligned into three broad categories. The first group was the most reactionary and committed to the status quo. It used slogans such as "open shop," "right-to-work" and "right-not-to join a union." The second group was more open to union rights, so long as they were limited. It spoke of "independent unionism," "committees of our own employees," or "voluntary recognition." Finally, the third group was "the self-proclaimed experts of the 'hired guns," who consisted of lobbyists, lawyers or management who saw a great deal of opportunity in a new industrial relations regime. -99-

conceded that legislation could mitigate industrial conflict while protecting the rights of employers.17

The government believed that the Court could regulate industrial disputes by balancing traditional rights of property with new rights to organize and bargain.

Contrary to this view, Bora Laskin insisted that the judicialization of collective bargaining would make unionization difficult to obtain.19 By subjecting labour questions to judicial proceedings, questions surrounding certification were decided by summary trial and cross-examination rules. While the legislation discouraged these rigorous procedures, they were still permitted in the event of extreme "injustice." As the definition of extreme "injustice" was left to the discretion of the judges, Laskin concluded that the

"judicial art" made the court unable to deal with the complexities of collective bargaining and unionization. The government sought to address this critique by vetting certification applications through a non-judicial registrar of the Court. The Liberals surmised that the registrar would be acceptable to the unions because the office was intended to act as a counterbalance to judicial dominance over the certification process.20 In order to reach out to the unions, the Liberals sought-out well-known University of Toronto labour law

MacDowell, Renegade Lawyer, 113-4. Heenan came to the conclusion that a "collective bargaining act that settled disputes quickly...could prevent strikes." Heenan's position preempted what the Conservative government realized two years later, that collective bargaining worked to promote long-term stability and profitability. 18 Willis, The Ontario Labour Court, 17-20. According to Willis, the idea of a labour court came from the Committee's interest in the Australian system which mandated binding arbitration and was administered by the court. The Ontario model, he argues, sought to blend the Australian Labour Court with the Wagner principles in the United States. Willis neglects to mention, however, that the Labour Court was endorsed by employers and company lawyers. 19 Laskin, "Collective Bargaining in Ontario," 691-2. 20 Millar, "Shapes of Power," 91-2. Millar argues that businesses (especially in the Auto Sector) and their lawyers won a "virtual coup" by removing J.L. Cohen's name from the list of potential candidates to be court registrar. -100-

professor, Jacob Finkelman to act as the Court registrar. Yet, as the Court maintained ultimate jurisdiction over the administration of the Act, union leaders feared that the new legislation would be "nothing more than a picnic for the lawyers."22

Many histories of this legal balancing act argue that the Labour Court represented an evolutionary step in the Province's formal acceptance of collective bargaining later in the decade. John Willis, for example, argues that bona fide collective bargaining and the creation of the OLRB in 1944 was only acceptable to employers because the Court successfully certified labour unions while virtually eliminating recognition strikes in the province.23 Based on this evidence, he further suggests that the Labour Court demonstrated that collective bargaining and unionization need not be antagonistic to the long-term stability of private enterprise. Willis thus concludes that the Court eased business resistance to legislated collective bargaining.24

More critical histories, however, have been less forthcoming in their praise for the

Ontario Labour Court. They argue that the Court was an impediment to Wagner-inspired

21 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, November 1971, 8. According to Finkelman, the Liberals initially approached J.B. Aylesworth, a lawyer with Ford Motor Company. This decision was protested by Heenan and they compromised by asking Finkelman. Despite limiting Aylesworth's role on the court, he continued to help shape government policy as he drafted several proposals of the Ontario labour code. Finkelman argues that Aylesworth's backroom lobbying was instrumental in Conant's acceptance of the bill. 22 Fudge and Tucker, Labour Before the Law, 272. Like most labour leaders, the CCL's Pat Conroy and Aaron Mosher were overly suspicious of the Labour Court. 23 Willis, The Ontario Labour Court, 74-5. 24 Similar evolutionary views have been advanced by labour lawyers who argued that the Labour Court was a "normalizing step" for Ontario employers. See Bora Laskin "The Ontario Labour Relations Amendment Act, 1960," University of Toronto Law Journal 14 (1961), 116; H.A. Logan, State Intervention in Collective Bargaining, 24; MacDowell, Renegade Lawyer, 114. Jacob Finkelman in the Ontario Ministry of Labour, Twenty-Sixth Report of the Ontario Department of Labour, 1945 (Toronto: Queen's Printer for Ontario, 1945), 29. Finkelman argues that it is "not too much to say that, but for the Labour Court, collective bargaining may have been less readily accepted by industry as a normal feature of industrial relations in Ontario." MacDowell also suggests that Cohen's role before the Select Committee laid the foundation for PC 1003 and the establishment of post-war industrial pluralism. - 101 -

collective bargaining because of its inability to curb employer resistance to unionization.

In examining the record, David Millar makes the case that the Court can only be judged

by how it dealt with three main objectives raised by the unions: banning company

unionism, dealing with automatic certification and establishing procedures for evidence

in such cases.25 In all of these areas he concludes that the Court constructed a procedural

labyrinth with excessive legal rules and penalties which made the certification of bona fide trade unions difficult. As a result, over half of all Court certifications and remedial

votes in its first year of operation favoured company unions. In unfair labour practices

cases, the Court continued to waffle between Wagner type remedies for certification and

the protection of company unions. In instances where employers attempted to break

organizing drives by signing "sweetheart deals" with company unions (or more

conservative ones) the Court chose to remedy the situation by conducting a vote between

the competing trade unions and offered the choice of "no union at all."27 Under the

Wagner Act, the NLRB abandoned these practices because it led to run-off voting and

delays, which often led to the defeat of union drives. In these instances, the Court's adherence to the legitimacy of company unions frustrated meaningful collective bargaining in the province.

The Labour Court's later record alleviated some of the blunt criticism coming from the trade unions.28 In particular, the Court adopted creative remedies in dealing with unfair labour practices around certification issues. In these decisions, the Court

25 Millar, "Shapes of Power," 118. 26 Fudge and Tucker, Labour Before the Law, 272. 27 Millar, "Shapes of Power," 118-9. 28 Millar, "Shapes of Power," 130. -102-

moved closer to the Wagner-inspired voting reforms that had been proposed by union lawyers. This was particularly noticeable in the adoption of a remedy entitled the "25% +

X" threshold. Using this model, the Court reasoned that in instances where multiple unions were competing for the certification of a plant and both applications had 25 per cent of the vote then evidence of employer interference determined that decision in favour of the union with the highest plurality.29 Equally important, the Court determined majority representation in union elections as defined by a majority of those voting rather than a majority of those eligible to vote.30 The Court also took the rather novel step of outlining procedures for fair representation after certification had been obtained. In these areas, Court jurisprudence advanced the notion that individual rights could be reconciled with union certification.

Nevertheless, the judicial experiment delayed collective bargaining in Ontario. In reality, the Court represented the Liberals' attempt to placate employers hostile to protective collective bargaining legislation by applying apparently objective legislation to union certification. The Court cared little about the origins of these unions and did not draw distinctions between genuine and employer unions. The Court thus legitimized employer attempts to break organizing drives and thwarted bona fide trade unionism.

Rather than being a stepping-stone to the eventual establishment of Wagner type reforms, then, the Labour Court applied the "judicial art" to labour relations which stalled reform.

In many ways, the experience of the Labour Court laid the foundation for a structural

29Millar, "Shapes of Power," 131; Willis, Ontario Labour Court, 38. 30 This same policy was not adopted by the provincial government until 1981. 31 H.A. Logan, State Intervention in Collective Bargaining, 24-5. -103-

rivalry between the Court's restrictive legalism and the more flexible approach of later

administrative boards. The precedent was set: companies and their lawyers used the courts to limit collective bargaining and defeat union organizing through an "alliance

• 19 between business and conservative legal purists."

Notwithstanding the about-face on collective bargaining, the lead-up to the 1943

Ontario provincial election exposed glaring inter-party splits between the left and the right of the Liberal party. In 1942, while still premier, Hepburn's dislike of federal

Liberal leader Mackenzie King led him in to a multi-partisan coalition for "Total War" that included provincial Conservative leader George Drew and federal Conservative leader . The coalition for "Total War" also consisted of leading members of the business community who backed the coalition's call for the immediate implementation of conscription and increasing war production in order to support Great

Britain. This issue reached its nexus in a federal by-election in the Ontario riding of

York-South in early 1942. During the by-election, Hepburn actively campaigned for

Meighen and urged Liberals across the province to support the federal leader. As the federal Liberals had chosen to not run a candidate in the by-election, several progressive

Liberals broke with Hepburn and supported CCF challenger Joseph Noseworthy. Among these supporters were members of the federal parliament and Hepburn's former attorney general Arthur Roebuck, , Montreal MP Brooke Claxton (who donated

32 Millar, "Shapes of Power," 115-6. 33 J.L. Granatstein, The Politics of Survival, 104-5. Among the most prominent supporters of the 'Total War' effort were J.Y. Murdoch of Noranda Mines, C.L. Burton of the Robert Simpson Company, F.K. Morrow, a leading Toronto financer and, in the background George C. McCullagh of the Globe and Mail. This level of corporate support led Meighen to receive the support of the Liberal Association. See Caplan, Dilemma of Canadian Socialism, 93. - 104-

$1000 to the CCF campaign) and Senator Norman Lambert. The rift within the Liberal party grew larger when several cabinet ministers threatened to resign over Hepburn's support for Meighen and what appeared to be an open alliance with the federal and provincial Tories.35 When many provincial Liberals shifted their allegiance to the CCF, the rift in the party blew wide open. In the midst of this turmoil, the CCF surprised all observers and defeated the former Conservative prime minister by almost 4,500 votes.

Paradoxically, Hepburn was also openly allied with the leadership in the

Communist party. During a rally at Maple Leaf Gardens in 1942, Hepburn was spotted on stage with the leaders of the Communist party who were committed to Hepburn's stance for "Total War."37 An important part of the Communists' commitment to go "all out for the war against fascism" was the party's suspension of its push for socialism and a no strike pledge during the war.38 Given the fact that the federal Liberals had incarcerated several of the leading Communist members of the party at the beginning of the war, this seemed an implausible alliance. Yet, the "Liberal-Labour" coalition (as it was dubbed by the Communists) stretched across both federal and provincial parties and reached its zenith between 1942 and 1945.

The reasons for this coalition are complex. For the Communists, support for

Total War was an order from the leadership in Moscow. The Communists also

34 McKenty, Mitch Hepburn, 238-9. 35 Ibid. The rift grew larger throughout the campaign when federal member from Leeds, George Fulford (once a close friend of Hepburn's) criticized Hepburn's support for Meighen. Later, Minister of Mines Robert Laurier submitted his resignation (which was later withdrawn). Nixon also submitted his resignation, but it was ignored by the Premier. 36 Caplan, Dilemma of Canadian Socialism, 93-4. 37 McKenty, Mitch Hepburn, 248; Millar, "Shapes of Power," 71-3. 38 Norman Penner, Canadian Communism: The Stalin Years and Beyond (Toronto: Methuen, 1988), 182-6. - 105 -

anticipated that an alliance with the Liberals legitimized their movement because it showed that they were willing to sacrifice their ideology for the greater good. In addition, the partnership contributed to the ongoing campaigns to bleed working-class support from the CCF and assert control over the labour movement across the country.

Many Liberals in the provincial party also embraced the alliance out of a similar desire to defeat the CCF. Having elected the moderate Harry Nixon to replace the intransigent

Hepburn, the party anticipated that a friendly relationship with the federal Liberals, temporary peace with the Communists and the passage of the OLRA would secure at least short-term support from important elements of both labour and business.

The Liberals embrace of coalitions on the right and the left, however, was paralleled by an important shift within the Ontario Conservative party. During the years in opposition, the Tories took great pains to re-brand themselves. A significant component of this transformation occurred in 1942 in a meeting organized by party elites in Port Hope, Ontario. The Port Hope organizers hoped to reposition the party's traditional laissez-faire economic policies with elements of "economic and social security from cradle to grave."40 Given that the meeting was also intended to provide the

Penner, Canadian Communism, 206; Ivan Avakumovic, The Communist Party in Canada: A History (Toronto: McClelland & Stewart, 1975), 162-3; John Boyko, Into the Hurricane: Attacking Socialism and the CCF (: J. Gordon Shillingford, 2006), 130-8. This position was especially tangible in the TLC, where Liberals and Communists had a realistic chance of outnumbering the CCF. 40Keith Brownsey, "Opposition Blues: Leadership, Policy, and Organization in the Ontario Conservative Party, 1934-1943," Ontario History, 88 (1996), 285-9. These early promises included support for the unemployed, public pensions, mothers' allowances and national medical insurance. -106-

Conservative answer to the rising popularity of the CCF, one of its imperatives was the adoption of a new labour relations programme.41

The new labour policy, put forward by the Special Committee of the Conservative

Business Men's Association of Toronto, suggested that a future Conservative government commit itself to "granting full approval to the system of trade unionism and encouragement for their extension ... the instrument which should be accorded the right of bargaining .... shall be freely chosen by the employees."42 The Committee also endorsed workers' rights of association by restricting employers from interfering in the formation of trade unions or dominating labour organizations. The Committee, however, was careful not to propose an outright ban on company unions.43 Nonetheless, scholars have largely accepted this policy as transforming the Conservative party in Ontario.44

The Port Hope Conference ended with a recommendation that the party adopt the name of their "Progressive" colleagues. When this was approved by the provincial wing of the party, the "new" Conservative party entered the 1943 election with a new platform and a fiery leader in George Drew. Using the policy proposals drawn from Port Hope,

41"New Deal is Evolved by Tories," Globe and Mail, 8 September 1942 and "Conservatives' New Creed Asks Collective Bargaining," Toronto Daily Star, 8 September 1942. On the politics surrounding the conference, see Brownsey, "Opposition Blues," 285; J.L. Granatstein, The Politics of Survival, 133-4. 42AO, RG 3-23, Office of the Premier, Frost General Correspondence (hereafter OPFGC), Box 88, Frederick G. Gardiner, Memorandum with Respect to the Labour Relations Policy of the Conservative Party, 7 September 1942, 10. The Party argued that bona fide trade unions should be encouraged; jurisdictional disputes regulated through the OLRB; and that union organizing be based on a majority of the votes cast in an election. The committee was chaired by future Toronto Metro chair, Fred "Big Daddy" Gardiner. On his involvement see, Timothy J. Colton, Big Daddy: Frederick G. Gardiner and the Building of Metropolitan Toronto (Toronto 1980), 33. 43Millar argues that the acceptance of company unionism was "part of the hidden agenda at Port Hope." See Millar, "Shapes of Power," 99 (note 33). 44 See the general histories of Ontario from Joseph Shull, Ontario Since 1867 (Toronto: McClelland & Stewart, 1978), 314-5; Randall White, Ontario 1610-1985: A Political and Economic History (Toronto: Dundurn, 1985), 265-7; Rand Dyck, Provincial Politics in Canada 2nd Ed. (Toronto: Prentice-Hall, 1991), 311-3. -107-

the Progressive Conservatives' election platform was an ambitious twenty-two point program promising sweeping social reform and a new role for the state in the economy.

Among other things, the platform reflected a growing acceptance by capitalist parties that state planning could be wedded with free enterprise. In making this compromise, the twenty-two point plan promised municipal tax reform, changes to public education, public medical insurance, public dental care, increases to mothers' allowances, increases to old age pensions and the introduction of planning in the agricultural and resource sectors. The twenty-two point plan also promised to implement the "fairest and most advanced laws governing labour relations in the country."46

Rather than concentrate on the governing Liberals, the Progressive Conservatives fought the 1943 provincial election against the increasingly popular CCF. In 1943, the

CCF benefited from full employment and the rapid growth of the trade union movement.

The full employment provisions helped create a constituency for industrial unions, which became more militant and organized during the war.47 These changing economic and political conditions had a strong influence on the 1943 provincial election. In the election,

Nixon's Liberals lost 50 seats to the Tories and the surging CCF. The Progressive

On the 22-point plan, see Keith Brownsey, "Opposition Blues," 291-2. See also Keith Brownsey and Michael Howlett, "Ontario: Class Structures and Political Alliances in an Industrialized Society," in Keith Brownsey and Michael Howlett eds., The Provincial State: Politics in Canada's Provinces and Territories (Toronto: Copp Clark Pitman, 1992), 153. 46 Manthorpe, The Power and the Tories, 32. 47 John Wilson and David Hoffman, "Ontario: A Three Party System in Transition," in Martin Robin ed., Canadian Provincial Politics: The Party Systems of the Ten Provinces (Scarborough: Prentice-Hall, 1972), 215; Caplan, Dilemma of Canadian Socialism, 88. Caplan, Dilemma of Canadian Socialism, 97, 110. - 108 -

Conservative Party formed a by capturing 38 out of 90 seats. The

CCF captured 34 seats and 32 per cent of the vote.49

The 1943 election is important for several reasons. First, it represented a breakthrough for the CCF in Ontario. Having won 34 seats, the party had a legitimate opportunity to push for progressive reforms, including a reformed labour code. Based on the success of the CCF, after 1943, Ontario elections were defined by competition between three parties with the class politics playing a prominent albeit uneven role throughout the next four decades.50 Second, the election represented a return of the

Conservatives under a so-called "progressive" banner. From this point forward, the party had to address many of the proposals in the twenty-two point programme while also keeping a close eye on the CCF. In this sense, the Tories could not ignore the CCF or the trade unions, but were also committed to the fundamentals of free enterprise. Third, having re-branded themselves as "progressive" Conservatives, the party had to address the strength of labour (and its social democratic allies) while also appeasing its traditional allies in the private sector. Given the strength of the CCF and the trade unions in 1943, for instance, it was impossible for any government to roll-back its basic commitment to collective bargaining. In order to address the concerns of the trade unions and the left,

49 "Won't Enter Coalition with either Old Party, says Jolliffe of CCF," Toronto Daily Star, 5 August 1943. Nineteen trade unionists were elected in the 1943 election, all for the CCF. Several of these trade unionists were labour leaders, including Charles Millard from the Steelworkers and Bob Carlin from the Mine-Mill & Smelter Workers. Also elected was Angus Macphail a prominent farmer, CCFer, women's rights activist, and first female Member of federal Parliament. Given their shaky alliance with the Liberals and the continued strength within a small number of ridings in the city of Toronto, the Communist Labour Progressive Party (LPP) won two seats. The two members were A.A. McLeod and J.B. Salsberg. 50 John Wilson, "Politics and Social Class: The Case of Waterloo South," Canadian Journal of Political Science 1 (1968), 288-309; Wilson and Hoffman, "Ontario," 215. As these changes seemed to realign party competition in Ontario, researchers have concluded that it was the most important election in the province's history. -109-

the Tories used the rhetoric of fair and balanced labour legislation in order to reach a

broad coalition of left-Liberals and Conservative voters. Notwithstanding the rhetoric,

however, the actions of the Tories on the labour portfolio over the next seven years

suggest that the Conservatives' labour legislation did not reflect the principles of balance.

Rather, the Conservatives' stalling tactics on the OLRA suggest that they only extended

labour freedoms when absolutely necessary to maintain the confidence of its private

sector allies.

Labour Legislation under the Tories: From George Drew to Leslie Frost

Once in office, Drew governed as if he had a majority government. Given the cuts made

during the Hepburn years, the changes made by the Drew government have been

interpreted as launching a new, more activist form of government in the province.51

Certainly, the degree to which planning was introduced in Ontario's economy did

represent a historic shift in the governing of the province. In the years 1944 and 1945,

Drew created the Ministry of Planning and Development which was mandated to promote

and maintain high levels of post-war employment. Amongst its many duties, the

department was designed to regulate all aspects of the economy, from municipal

competition for new manufacturing plants to water and forest use. Part of this new

51 See note 41. See also, Manthorpe, Power and the Tories, 32. Manthorpe describes Drew as brassily arrogant. He explains that Drew was unlikely to attempt a coalition with the CCF or the Liberals, and felt that the popularity of the twenty-two point program would pressure the opposition parties to support the government. 52Shull, Ontario, 315. -110-

strategy was also to bring several thousand workers from Britain to post-war Ontario.

When it became clear that war-torn Britain was not able to fill the labour needs of the province, the provincial government looked to mainland Europe. According to John C.

Bagnel, the province passed the Racial Discrimination Act in 1944 in order to attract workers from non-British countries.54 Bagnel insists, however, that the provincial government's Racial Discrimination Act was weak and ineffective, primarily because it did not eliminate private sector discrimination in the hiring (or firing) of racialized workers.

The government's commitment to planning and post-war development was designed to help existing industries expand their base and attract new private investment to Ontario.55 Their dependence on private sector investment saw the Tories maintain traditional fiscal prudence in order to address provincial debt and infrastructure improvements.56 The government also committed to use its remaining resources to

Being a staunch supporter of British imperialism, Drew hoped that the British connection would assist in attracting thousands of new workers. In attempting to build this connection, Drew was able to attract 10,000 skilled British immigrants to Ontario. He heralded this as a crowning achievement in Britain/Canada relations. 54 John C. Bagnel, "The Ontario Conservatives and the Development of Anti-Discrimination Policy, 1944- 1962," Ph.D. thesis, Queen's University, 1984, 33-4. According to Bagnel, the human rights policies of the Conservative governments were predicated on the needs of private capital for human labour. Given its narrow economic focus, the legislation only dealt with public discrimination. Other, more blatant forms of discrimination such as those concerning employment, property transactions, public accommodation and commercial advertising were not included. In addition, LPP MPP (and prominent Jewish activist) Joseph Salsberg highlighted several municipal and county by-laws that legalized discrimination. Bagnel argues, moreover, that the government only put forward amendments to human rights legislation after they were deemed necessary by business. 55 Richmond, Economic Transformation, 12. 56 This stood in contrast to the adoption of Keynesianism that was influencing politicians and bureaucrats in Ottawa. -Ill-

finance public services, including education and agricultural reform. The change in agricultural policy was notable, introducing aspects of public planning in the passage of an Act Respecting Agricultural Committees in 1944. This mandated that farming be organized under a system of committees which were given the authority to plan production and thus regulate output. There were also changes in education including the creation of the Ontario Teachers Federation (although not a bona fide trade union) and amendments made to the municipal tax structure which assisted in modernizing rural schools.

In spite of the heralded adoption of planning, several of the most prominent (and expensive) initiatives of the twenty-two point plan remained unrealized. Some of these pledges were either abandoned (dental care) or implemented in a piecemeal fashion that was dragged on for decades (healthcare). Drew's limited activism can be explained by examining the government's stance on provincial autonomy and the commitments that the Tories made to Ontario business. The latter was decisive in determining Drew's opposition to inclusive collective bargaining legislation that many unionists believed extended from the PC 1003 regulations passed in Ottawa. Near the end of the war, Drew adopted the position of regional employers who believed that the provinces and the courts should regulate labour relations. The alliance with employers helps explain Drew's stance on "provincial rights" at two federal-provincial conferences on post-war reconstruction in

Richmond, Economic Transformation, 23-8. Richmond suggests that the fiscal priority of the government was the reduction of the level of debt and was reflected in the desire to achieve a favourable international credit rating. Citing the budget address of Treasurer Leslie Frost in 1947, the government highlighted its record on eliminating net debt ($2,025,716); the addition in investments to the Provincial highway system ($2,980,804); and the widening of public services ($231,045,373). -112-

1945. At these conferences, Drew actively opposed federal government plans for new tax agreements to fund a post-war welfare state.59 Some researchers have interpreted

Drew's position (in alliance with Quebec premier Maurice Duplessis) as a principled stand because he believed that local authorities were better suited to deal with the implementation and administration of public welfare.60 There is little evidence to support the claim that Drew's actions were motivated by questions of public welfare. Rather,

Drew and Duplessis' stand on "provincial rights" were determined by increased pressure from the private sector to limit the inclusiveness of social welfare provisions. This opposition came most prominently from insurance companies and doctors opposed to nationalized medicine.61

Drew adopted these same provincial-rights arguments to oppose a national labour code. As the federal government showed little interest in maintaining its wartime control over national labour relations, the responsibility was slowly returned to the provinces

K.J. Rea, The Prosperous Years, 21. 59At the Dominion-Provincial conference on reconstruction, the federal government presented two policy documents: the White Paper on Employment and Income (The Marsh Report) and the Green book proposals outlining the federal government's post-war economic priorities. These two reports favoured "high and steady levels of employment and income through a concentration on aggregate demand management." See Robert M. Campbell, Grand Illusions: The Politics of the Keynesian Experience in Canada, 1945-1975 (Toronto: Broadview, 1987), 38; Robert Bothwell, Ian Drummond and John English, Canada Since 1945: Power, Politics and Provincialism 2nd ed. (Toronto: University of Toronto Press, 1989) 77-84; Janine Brodie, The Political Economy of Canadian Regionalism (Toronto: HBJ, 1990), 149- 50. Janine Brodie suggests that these proposals would become Canada's second national policy. See also, David A. Wolfe, "The Rise and Demise of the Keynesian Era in Canada: Economic Policy, 1930-1982," in Michael S. Cross and Gregory S. Kealey, eds., Modern Canada, 1930-1980s (Toronto: McClelland & Stewart, 1984), 53-4. 60 A.K. McDougall & M.W. Westmacott, "Ontario in Confederation," in Donald C. MacDonald ed., The Government and Politics of Ontario (Toronto: MacMillian, 1975), 199-200; P.E. Bryden, "The Ontario- Quebec Axis: Postwar Strategies in Intergovernmental Negotiations," in Edgar-Andre Montigny and Lori Chambers eds., Ontario since Confederation: A Reader (Toronto: University of Toronto Press, 2000), 383- 90. 61 Millar, "Shapes of Power," 218. The opposition of the Insurance Companies to state welfare (and the CCF's arguments for nationalization) has been chronicled in Boyko, Into the Hurricane, 28-36. -113-

between 1945 and 1948.62 The leadership in the CCL and the TLC interpreted these

changes as a return to a fragmented, regionally based labour relations policy that overly

benefited smaller employers and divided workers by region, language and economic

sector.63 These concerns had merit. Historically, the regionalization of the economy has

witnessed close alliances with regional employers and provincial governments. As a result, labour policies tended to favour employers as regionally based industries were far more wedded to "old style capitalist competitive modes of production" and had never

accepted the role of trade unions in their workplaces.64 In Ontario, these attitudes were prevalent in the mines, secondary manufacturing and in the service sectors where unions were virtually non-existent.

There is evidence that the provincial Conservatives believed that a provincial labour code needed to protect the interests of small employers. According to then newly appointed Labour Minister, Charles 'Tod' Daley, it was small, regionally based employers that guided Tory philosophy in drafting any labour reforms throughout this period:

...we just went conscientiously about the job of trying to improve and make things fairer and maintain industry so that it wasn't being put out of business. A

F.R. Scott, "Federal Jurisdiction Over Labour Relations," 159-60. According to Scott, the only concession at the 1946 Conference was provided in S. 62-3 of the 1948 IRDIA which allowed for joint administration of federal and provincial laws where there was cross-over in legislation. These provisions were far weaker than revised 1925 IDIA which had been amended after the Snider decision. Scott concludes by suggesting that "one cannot escape the conclusion that the small concern for uniformity and the provincial jurisdiction reflected the prevailing employers' viewpoint." 63 Canada Department of Labour, "Legislative proposals of labour organizations," The Labour Gazette (April 1950), 460-79. 64 Harry J. Glasbeek, "Labour Relations Policy and Law as Mechanisms of Adjustment," Osgoode Hall Law Journal 25 (1987), 201; Fudge and Tucker, Labour Before the Law, 290-7; Millar, "Shapes of Power," 374. Millar argues that the provincialization of labour relations "was an invitation to recommence the war on competing standards," because provincial legislatures were virtually dominated by private interests. -114-

lot of the demands [of the unions] would have shoveled out a lot of small industries, as I recall at that time. I couldn't name them, but there were things to be done that could be done without harming them by satisfying labour [but] not to the extent that they wanted to be satisfied.6

Drew's demand for provincial autonomy over labour relations obstructed the national government's commitment to Wagner reforms. Employers were also demanding that control over labour disputes be given to judges, either through the labour court or returned to the provincial court system. These events led H.C. Pentland to conclude that the demand for provincial autonomy represented a subtler version of the Taft-Hartley reforms in the United States.66 As was true of the debates surrounding Taft-Hartley, the alliance of provincial governments with regional employers was not designed to destroy trade unions or to end government's pledge to protect "free" collective bargaining. While some employers may have aspired to eliminate PC 1003, trade unions were too strong for this to be a realistic objective. Rather, the Tories' goal—as was reflected in their Port

Hope commitments—was to balance certain forms of collective bargaining with the promotion and expansion of free enterprise.

65 AO, Ontario Historical Studies Series Political Interviews (hereafter OHSSPI), RG 47-27-1-29, Container Q-118, Interview with Mr. Charles "Tod" Daley, Ontario Minister of Labour, 1943-1961, 23 August 1974., 35. Although a small business owner, Daley seems to have won the Labour portfolio because he was the only member of the cabinet who had once held a union card. 66 H.C. Pentland, "A Study of the Changing Social, Economic and Political Background of the Canadian System of Industrial Relations," 332. On Taft-Hartley, see Harry A. Mills and Emily Clark Brown, From the Wagner Act to Taft-Hartley: A Study of National Labor Policy and Labor Relations (Chicago: The University of Chicago Press, 1950). The Labour Management Relations Act (Taft-Hartley) was passed in 1947. The Act made certain forms of union security clauses illegal. It outlawed union shop agreements while making other security agreements subject to a mandatory vote. The Act also made secondary boycotts and sympathy strikes illegal and required trade union leaders to declare that they were not members of the Communist Party. Taft-Hartley also left the administration of union security agreements to individual states. Many of these states then implemented right-to-work laws giving individual employees the right to opt out of a union upon employment. -115-

Notwithstanding Drew's hostility towards a national labour code, both levels of government faced union pressure to sustain high levels of employment while incorporating Wagner reforms. Through the minority parliament, the provincial trade- union movement was also able to push for the final abolition of the Labour Court.

Responding to these demands, Daley passed the Labour Relations Board Act, 1944 replacing the Ontario Labour Court with a Wagner-inspired Labour Relations Board.

The new Board's power extended to most portions of industry as well as certain federal wartime industries not covered by federal orders in council. Under federal wartime regulation, however, collective agreements and OLRB decisions were still accountable to federal PC 1003 regulations. These rules allowed employers to appeal OLRB decisions to the federal Wartime Labour Relations Board, which slowed decision-making at the

OLRB.68 That King's government retained ultimate control over the administration of labour for wartime industries made the decision to replace the Labour Court far more acceptable to the more reactionary members of Drew's cabinet.69

In spite of federal oversight, the OLRB took exceptional steps to address the shortcomings in the federal Act while moving Ontario closer to the remedial powers of the Wagner model. In David Millar's history of the OLRB, he credits the success of the

Board in this early period to the leadership of its chair, Jacob Finkelman. Millar contends

Jacob Finkelman, "Labour Relations Board," in Ontario Ministry of Labour, Twenty-Sixth Report of the Ontario Department of Labour (Toronto: Queen's Printer for Ontario, 1946), 25. 68 Logan, State Intervention, 42. Finkelman later noted that appeals to the NWLRB were initially slow in banning company unionism because PC 1003 had made the regulation apply equally to "employee associations." 69 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, November 1971,4. -116-

that Finkelman was able to push the limits of OLRB discretionary power and overcome the pro-business biases of the Labour Court.70 As chair, Finkelman established new policies on unfair practice procedures, worked to break company unions, enhanced good faith bargaining procedures, limited the power of conciliation, and "replaced time- consuming legalism with speed and informality."71 Finkelman also used his discretionary power surrounding certification to keep the judiciary out of union affairs. In so doing, he attempted to insolate the Board from employers who were eager to limit the discretionary power of the OLRB through judicial appeals. That being said, Finkelman was cautious of stretching OLRB discretion, especially on questions of unfair labour practices and the duty to bargain. Accordingly, some unions interpreted Finkelman's actions as overly cautions.72 Millar contends, however, that Finkelman did not want to push administrative discretion too far and risk alienating the government. Under Finkelman, the OLRB's policies worked within the boundaries imposed by both levels of government in order to promote unionization and encourage employers to negotiate workable collective agreements.

70 Millar, "Shapes of Power," 174-6. 71 Wayne Roberts, Don't Call Me Servant: Government Work and Unions in Ontario, 1911-1984 (Toronto: OPSEU, 1994), 66-7. Finkelman was one of the few supporters of collective bargaining who worked closely with the Conservative government. He is therefore credited as being one of the chief architects of the Conservative government's labour relations policies between 1943 and 1966. 72 NAC, FP, MG 31, E-27, Vol.8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, December 1971, 1-2. Finkelman claimed that he was "not a believer in wide discretion being given to a Board. I have watched administrative agencies in action and have distrusted them, although I resented the interference of the Courts." Finkelman took this position because he faced a great deal of criticism from union officials, especially those in the CCL. He admitted that he was cautious on using Board discretion because he feared the Board would fall victim to judicial oversight. 73 Millar, "Shapes of Power," 175. -117-

In spite of Finkelman's insistence on containing the Board's discretion, it did not go unchallenged. Almost immediately following the passage of the 1944 Act, the power of the Board was contested by numerous institutional rivals. Judges, often assisted by the arguments of company lawyers, guarded their jurisdiction over civil and property rights jealously and were wary of administrative tribunals encroaching on their jurisdiction. The

OLRB was also challenged by bureaucrats in the ministry of labour, who defended their jurisdiction over conciliation and arbitration. Added to these rivalries was the suspicion of many members of the Drew government who remained hostile to state sponsored collective bargaining policy. Hostility from the Conservative caucus was obvious in the government's approach to union militancy during strikes, such as when the government sought military intervention in the Ford strike of 1945.74

Indisputably, the decision to create a Wagner-inspired board was reflective of the party's attitude in the 1940s.75 Growing from the Port Hope conference, the party warmed to the position that a legalized collective bargaining regime—under proper conditions and regulations—could protect the interests of free enterprise.76 Millar suggests that the Drew government's strategy to maintain this balance was premised on providing,

74 David Moulton, "Ford Strike 1945," 136. 75 AO, OHSSPI, RG 47-27-1-29, Container Q-118, Interview with Mr. Charles "Tod" Daley, Ontario Minister of Labour, 1943-1961, 23 August 1974, 35-7. Daley conceded that the strength of the CCF in the 1943 election placed pressure on the government to adopt Wagner type proposals. 76 Joseph Rose, "Ontario: The Conservative Hegemony," 24; AO, OPFGC, RG 3-23, Box 88, Frederick G. Gardiner, Memorandum with Respect to the Labour Relations Policy of the Conservative Party, April 1942. 10. Fredrick Gardiner's memorandum in 1943 suggested as much when he recommended the encouragement of collective bargaining in order to stabilize Ontario's economy. -118-

... lip-service to the legal status of unions achieved under the OLRB, and to other labour law reforms and social security (much as certain Cabinet members might have wished to return to laissez-faire) while minimizing further gains. In the threat of socialism (even though the CCF was already declining) Drew found an effective tactic for consolidating Liberal, middle class and business support. Polarization of the vote would help the Tories become a party of the centre, and 77 played a decided role in limiting further reform....

The limits of reform were apparent in the numerous exemptions and loopholes that beset employment regulations in the province.78 In the Hours of Work and Vacations with Pay

Act passed in 1944, for instance, Daley's legislation imposed a one-week paid vacation per year while working towards maintaining fair and equitable employment policies in the province. Yet, the legislation also allowed employers to exceed the maximum amount of hours if speed up was required in the case of accidents, urgent repairs or emergency work. Meanwhile provincial Industry and Labour Boards were able to authorize longer hours without overtime pay in cases where the employer and employee

7Q were in verbal agreement. The legislation also exempted vital war industries from the

Act. The employment standards legislation thus contained the same contradictions that plagued the Labour Act: it bolstered employer control in the workplace while advancing workers' rights by only the narrowest of margins.

Notwithstanding these concerns, the government's actions on the twenty-two point programme remained popular. In order to capitalize on this support, Drew engineered his own defeat in the House in the spring of 1945 and called an election. The

77 Millar, "Shapes of Power," 224. 78 Thomas, "Regulating Flexibility," 166-7. 79 There was a great deal of similarity between these reforms and the changes made to the Employment Standards Act by the government of in 2000. See discussion in chapter 7. -119-

1945 provincial campaign coincided with the federal election that had also been called in the spring of 1945. In these two elections, the future direction of the post-war economy was front and centre. In Ontario, the battle lines were drawn between the CCF's arguments for socialism and a Tory campaign that made vague references to the twenty- two point plan in conjunction with a defence of free enterprise. Many of these themes also characterized the federal campaign, although Ontario proved to be the testing ground.

One of the Tories' campaign strategies was simply to demonize the CCF. This plan saw the government align with allies in the private sector to bombard the public with messages that a CCF government would "impose a dictatorship on the citizens of

Ontario."80 Another, more coercive part of the campaign, included the use of a special branch of the Ontario Provincial Police (OPP) that had been created in early 1943 to spy on the CCF. According to Gerald Caplan, the task of the special branch was to link as

Q 1 many non-Conservatives as possible with the Communist Party. In David Lewis' account of the now infamous "Gestapo Affair," he argued that Drew's plan was to implicate "the CCF...as communists and fascists almost in the same sentence." When

CCF leader E.B. Jolliffe made the "Gestapo Affair" public during the campaign, however, there was a public backlash against him and collective sense that an Ontario premier would not use such tactics. What is more, Drew's response to the claims was a

80 Gerald Caplan, "The Ontario "Gestapo" Affair, 1943-1945," Canadian Journal of Economics and Political Science 30 (1964), 343; Caplan, The Dilemma of Canadian Socialism, 88-90; 117-133. Caplan argues that Drew's campaign was characterized by vicious anti-socialist propaganda, all of which were funded by the private sector. 81 Caplan, "The "Gestapo" Affair," 344. 82 David Lewis, The Good Fight: Political Memoirs, 1909-1958 (Toronto: Macmillan, 1981), 283. -120-

political masterstroke, as he denied the affair and deflected embarrassing questions to an investigation by a Royal Commission (which reported well after the election). Drew's steps to deflect the "Gestapo" allegations proved effective and the Tories won their majority.

Ironically, the backlash against the CCF also benefited the Liberal-Labour alliance. The Liberals, led once again by Hepburn, had extended their alliance with the

Communists by working cooperatively in the legislature with LPP members A.A.

MacLeod and Joseph Salsberg. In the labour movement, the Liberal-Labour coalition was effective in unions where the CCF was weak (the TLC) and in those unions where

Communists held positions of leadership (the UAW and UEW). In the TLC, the Liberal-

Labour coalition was sustained by Gomperist notions of non-partisan electoral support which endorsed "friendly cooperation" with any party supporting a better deal for labour.

In 1945, this loose alliance was cemented as TLC political action committees supported

King's Liberal government in Ottawa and Hepburn's Liberals in Queen's Park.

Although not successful in rebuilding the provincial Liberal party, the Liberal-

Labour coalition was effective in defeating the CCF in heavily industrialized ridings. In the three ridings of Windsor, for instance, UAW support assisted in electing several CCF

MPPs in the 1943 election. In 1945, however, several Liberal-Labour candidates, including UAW president George Burt and LPPer Alex Parent ran against CCF

The Commission found evidence of communication between the secret police organization and bureaucratic officials close to the government. Despite this evidence, the Commission found no direct linkage between Drew and the police organization. 84 McKenty, Mitch Hepburn, 271. Horowitz, Canadian Labour in Politics, 104-5; Caplan, The Dilemma of Canadian Socialism, 156-7. -121-

incumbents. In these contests, the Liberal-Labour coalition proved decisive, as the CCF lost all three seats, two to the Conservatives and one to Parent.87 According to Caplan, the LPP ran an additional 37 candidates in the election, 27 of whom ran in ridings won by the CCF in 1943.88

It is clear that divisions on the left benefited the Tories. After the election, Drew emerged with a solid majority of seats and a firm grip on the provincial state, winning 66 of 90 seats with 44 per cent of the popular vote. Faced with public apathy from the

Gestapo allegation, the CCF fell from a high of 34 seats in 1943 to a mere eight in 1945 with 22.4 per cent of the popular vote. Added to this defeat was the personal defeat of

E.B. Jolliffe in his riding of York-South. Despite bringing back Hepburn to lead their coalition, the Liberals (and the Liberal-Labour candidates) were only able to muster 14 seats, on 30 per cent of the popular vote.

The 1948 OLRA

The strength of Drew's 1945 majority stalled labour reforms. Despite having several options available, when the government finally acted, the new labour code simply stated that it was of "the same form and to the same effect as that... Act which may be passed

Arthur Reaume, the former mayor of Windsor and Conservative candidate in 1943, also ran under the Liberal-Labour banner. Although he lost, he returned to the legislature in the 1951 as a Liberal MPP. 87 Horowitz, Canadian Labour in Politics, 112-3; Caplan, The Dilemma of Canadian Socialism, 157. Two other Liberal-Labour MPPs were successful in the election, James Newman from the northern riding of Rainy River and Joseph Meinzinger from Waterloo North. 88 Caplan, The Dilemma of Canadian Socialism, 158. 89 The federal Liberals won the election, winning 118 seats out of 245 with 40 per cent of the vote. In Ontario, however, the Tories won 48 seats on 42 per cent of the vote, while the Liberals would trail with 34 seats and 40 per cent of the popular vote. The CCF trailed far behind, winning 14.3 per cent of the vote and zero seats. - 122 -

by the Parliament of Canada at the session currently in progress...." In other words, the

1948 OLRA reproduced the federal Liberals' IRDIA. On the surface, Drew's decision to replicate the federal legislation was contrary to his opposition to the federal welfare state as it violated provincial rights. Why then, did the Drew government adopt the federal legislation in 1948?

According to official accounts, Ontario adopted the IRDIA in the name of uniformity.91 Historians have suggested that the provincial government adopted federal legislation because Drew continued to harbour suspicions about collective bargaining legislation. These reservations were fuelled by the refusal of many Ontario employers to recognize trade unions as legitimate bargaining agents in the workplace.92 Between 1942 and 1948, employers fought lengthy campaigns to defeat demands for mandatory union recognition and collective bargaining legislation. When strike activity and the rise of the political left made the passage of protective legislation more likely, employers shifted their position and appealed for defined employer freedoms in a new Act. Employers lobbied for enhanced speech provisions, mandatory delays on the ability to strike, the elimination of union security agreements, and the protection of company unions.

Quoted in Logan, State Intervention, 54. See also, NAC, FP, MG 31, E27, vol. 7, File, Labour Relations Act, Drafts of Act 1946-1947. Finkelman prepared several draft codes recommending an outright ban on company unions and extending the protection of unionization to marginalized workers. The politics surrounding Finkelman's draft codes and delaying tactics of the Drew government are outlined in Millar, "Shapes of Power," 321-6. ''Canada Department of Labour, "Ontario Labour Legislation, 1948," The Labour Gazette, (August 1948), 888-94. 92Millar, "Shapes of Power," 327-36. 93Fudge and Tucker, Labour Before the Law, 294-5. -123-

Employers also insisted that trade unions be incorporated so that they could be held responsible in a court of law.

According to Millar, OLRB chair Jacob Finkelman drafted several labour codes designed to speed certification by expanding the administrative discretion of the OLRB.

In order to coordinate these proposals with the government's stance on provincial rights,

Finkelman suggested "a made in Ontario" Act which would apply the Wagner model directly to Ontario. Finkelman's drafts also envisioned the OLRB having greater power to certify and define bargaining units and extended powers to decertify company unions, while standardizing procedures for certification votes. He also proposed to give the

OLRB more power over conciliation and to impose compulsory arbitration if employers refused to bargain with a bona fide union. Other proposals included streamlining the distinctions between CIO-CCL, AFL-TLC and bona fide independent unions while eliminating company unions.

In attempting to allay the government's continued suspicion over state promotion of unionization, Finkelman did not plan to expand significantly on the federal PC 1003 provisions as the CCF legislation had done in Saskatchewan (or as was proposed by

Ontario Federation of Labour (CCL). For example, none of Finkelman's drafts proposed to expand collective bargaining to agricultural, horticultural or domestic workers.

Finkelman also sought to offset the power given to the unions in the Act by giving the

OLRB greater ability to discipline unions. Finkelman proposed expanding the OLRB's power to terminate collective agreements in the event of unions' fraud or failure to

Millar, "Shapes of Power," 320-6. -124-

negotiate in good faith. He also called for reforms making it difficult for businesses to sign sweetheart deals with company (or more conservative) unions. 5 In addition,

Finkelman recommended expanding the OLRB's power to grant compulsory arbitration during a collective bargaining dispute and to prosecute illegal strikes with full mandamus authority.96

The Drew government rejected all of Finkelman's proposals. Instead, it chose to keep a watchful eye on OLRB discretionary power and adopted the far weaker legislation then being introduced by the federal Liberals in Ottawa. The Tories made this decision because they were influenced by employers. Employer lobby groups, led by the CMA, pointed to the Taft-Hartley Act, which had banned union security provisions and made it easier for companies to discriminate against unions in the United States.97 In light of the high level of strike activity, employers argued for the need to make union leaders

"responsible" industrial citizens. However, the militancy of the trade unions throughout

1945-1948, suggested that government could not safely adopt all of the recommendations of the CMA (Table 3.1).

This proposal was designed to address the problem of a company choosing to sign a deal with a conservative union over more radical (usually CCL) ones. 96 Richard J. Charney and Thomas E.F. Brady, Judicial Review in Labour Law (Aurora: Canada Law Book, 2006), 3.1-3.6. Mandamus powers are part of the Prerogative Writs. Mandamus refers to the ability of a legal institution to order social actors to perform a certain action. Along with mandamus powers, the Prerogative Writs are made up of certiorari (a writ from a higher court requesting a transcript of the proceedings of a case for review), prohibition (a writ issued by a higher court commanding a lower court to cease from proceeding in a matter not in its jurisdiction), and quo warranto (a writ brought before a proper tribunal to inquire by what warrant a person or a corporation acts, or exercises certain powers). 97 AO, RG 3-23, OPFGC, Box 19, Canadian Manufactures' Association, Letter to Charles Daley, 27 March 1949. - 125 -

Table 3.1 Strikes and Lockouts in Ontario by Fiscal Years, 1938-1950 Year Number of Number of Days Lost Disputes Workers 1938 127 22,749 294,906 1939 54 5,795 86,997 1940 36 6,075 50,468 1941 55 9,188 36,318 1942 109 28,690 298,393 1943 98 32,582 171,178 1944 90 31,497 134,840 1945 67 32,999 263,621 1946 69 42,705 1,108,417 1947 66 38,591 1,883,482 1948 100 14,893 192,957 1949 59 12,570 262,891 1950 65 30,881 387,219

Faced with the demands of business and the high level of strike activity, the Drew government made the unusual decision to leave the heavy lifting on the labour code to

Ottawa. With the benefit of hindsight, Drew's decision was made because it did not replicate many of the progressive reforms proposed by Finkelman or the unions. In other words, the federal code was far more conservative than the reforms being advocated in

Ontario by leading officials. According to Finkelman,

By 1948 great progress had been made in drafting the bill, but the cabinet concluded at that stage that it would be unwise for Ontario to introduce its own legislation, because some of the top labour leaders had supported federal legislation when it was introduced and the feeling was that anything Ontario produced would be criticized....therefore, in 1948 the OLRA was passed empowering the Lieutenant Governor to pass regulations which would be identical with the federal regulations."

(1) Ontario Department of Labour, 39' Report of the Ontario Department of Labour, 1958. 99 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, November 1971, 5. -126-

When the federal code was adopted in 1948, the Tories hoped that federal provisions on

conciliation and final contract offers would mollify employers while still maintaining union support for the codification of collective bargaining. There were other benefits to accepting the IRDIA. The Act made important steps towards banning company unions by providing clear guidelines for the certification of bona fide trade unions. On the other hand, the IRDIA also accepted the CMA's demand for longer conciliation periods, preserved a ban on strikes during collective agreements, and created a vast legal grievance procedure to settle workplace disputes. The Act also separated the administrative functions of the Canada Labour Relations Board (giving it discretion to deal with certification) from enforcement (leaving this with the Minister and the courts).100

The leadership in the Canadian Congress of Labour (CCL) and the Trades and

Labour Congress (TLC) did not welcome the Ontario government's adoption of the federal code. Rather, the unions were convinced that the OLRA was not strong enough to resist stubborn employers from thwarting organizing and bargaining in new sectors.

President of the Ontario Provincial Federation of Labour (TLC) A.F. McArthur (a loyal

Conservative),101 maintained "...the situation in the province, with its diversified industries, is bound to create friction rather than harmony. This code has been brought into being in the shadow of the Taft-Harley Act."102 In a similar vein, CCL unions noted

Fudge and Tucker, Labour before the Law, 295; Donald Wells, "Origins of Canada's Wagner Model," 217. 101 Horowitz, Canadian Labour in Politics, 164-5. 102"Daley listens to unions in revising labor code," Globe and Mail, 10 February 1949. -127-

that the 1948 OLRA was influenced by Taft-Hartley, complaining that the decertification procedures and employer speech provisions encouraged union busting.

The Ontario government's decision to reproduce federal law nonetheless left a great deal of ambiguity over how the regulations would be administered. Ontario unionists were particularly concerned over the independence of the OLRB. This anxiety arose due to the role of the judiciary in presiding over OLRB discretionary power. As

OLRB members were chosen because of their expertise in labour relations, trade unionists were concerned that reforms allowed employers to circumvent the Board and use the courts to defeat union drives.

The government's ambiguity on this question caused a falling out between Drew and Finkelman, which saw the latter resign in early 1948.104 Against the recommendation of the unions, the government appointed a sitting Judge and former business professional, Ian Macdonell to chair the Board. Given Macdonell's background, the appointment seemed destined to be short-lived. In Macdonell's first and only year as chair, certifications dropped and the number of cases dismissed rose substantially.105

Amongst personal and union upheaval, Macdonell left the Board in 1948. When the government appointed vice-chair Pat M. Draper to be chair in 1948, many of the most blatant forms of anti-union behaviour from the Macdonell Board ceased. In the Draper

"Call Ontario labour law 'vicious union-buster,'" Toronto Daily Star, 7 February 1949. 104 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, December 1971, 1-2; Roberts, Don't Call Me Servant, 66. Finkelman explained that he was "concerned about independence." 105 Logan, State Intervention, 58-60. - 128 -

years, union organizing expanded dramatically.106 The new legislation combined with the ability of unions to secure substantial wage increases caused the Board's workload more than triple by the early 1950s.

Yet, the end of wartime regulation also witnessed new waves of employer opposition to unionization, labour unrest and employee disagreement over the political direction of the unions themselves. These new battlegrounds took two forms: first, workers began to challenge their own unions, as old inter-union rivalries and jurisdictional infighting became more intense.108 Second, and perhaps far more threatening to unionization in Ontario, were the increasingly sophisticated employer strategies to limit the expansion of unionization across the province.

Employer opposition to unionization took numerous forms. One strategy was to challenge the discretionary powers of the OLRB through judicial review. In Draper's time at the Board, (he was chair until 1952) employers were increasingly adopting legal strategies to reduce the ability of the Board to certify unions while also challenging the structure of bargaining units and demanding further limits on the right to strike. Although the government claimed to be neutral in this struggle, employers were aided by Daley's conviction that the ministry of labour should limit strikes at all costs. This philosophy was highlighted by Daley's styled mediation during labour disputes, commonly referred

106 Logan, State Intervention, 58-68. Between 1946-47 and 1950-51 the Board was processing close to 600 certification applications per year. In the years before the passage of permanent legislation, the numbers were closer to 300. 107 Millar, "Shapes of Power," 335. 108 In 1948, the Board received 641 applications for certification, 112 of which were contests between one or more unions or employees' organizations. Of those 112, 63 were direct contests between CCL/CIO and TLC/AFL unions. Ontario Department of Labour, Twenty-ninth Report of the Ontario Department of Labour (Toronto: Queen's Printer for Ontario, 1949), 30-1; Millar, "Shapes of Power," 335-7. - 129-

to as the so-called Daley formula.109 As part of the formula, the Minister brought the sides together and encouraged them to "keep talking" in order to avoid having the bargaining teams go back to the union halls for fear of "altering] the discussions." By excluding rank-and-file members from the collective bargaining process, the Daley formula isolated bargaining teams and pressured them to temper their demands. During bargaining, Daley acknowledged that his approach was to call out union representatives because "some of this is ridiculous. It's not a matter for you...you wouldn't strike on it."

He added, "why let us be bothered with a lot of this trash that you have in here. Get these all off the table, and then we'll get down to basics." In short, Daley's style of intervention was intended to create the conditions for "workable" agreements rather than giving workers the ability to use their collective strength to confront the employer's position during bargaining.111 Under the Daley formula, democratic and accountable trade unionism was secondary to the elimination of strikes.

Given this position, employers were able to use their close relationship with provincial officials to paint union strike activity as out of step with the government.

Additionally, employers insisted that any reforms to provincial legislation reduce the

1W AO, OHSSPI, RG-47-27-1-29, Interview with Mr. Charles "Tod" Daley, 118. Curiously, Daley's description of the "Daley formula" did not include limiting the bargaining position of employers. By his own admission, his only goal in intervening in collective bargaining disputes was to eliminate strikes. 110AO, OHSSPI, RG-47-27-1-29, Interview with Mr. Charles "Tod" Daley, 117-18; AO, Ontario Minister of Labour Correspondence, (hereafter OMLC), RG 7 3-0-1 Box 1, Radio Broadcast from Honourable Charles Daley Minister of Labour, 14 February 1950. Daley made clear that his role as Minister and the purpose of the provincial Department of Labour was, "...to prevent strikes and the like, and when they do occur, to get them settled as quickly as possible." '" "Daley compensation bill falls short—opposition," Toronto Daily Star, 13 February 1951. Similar forms of "balance" permeated Daley's approach to other areas of labour regulation. When introducing legislation to deal with workers' compensation, for instance, Daley maintained that employers' views had to be considered in the creation of workplace regulation because they "put up the money, thus they should have a say in how it functions." - 130 -

power of trade unions to strike and organize. Employers also claimed that the OLRB was an institution "for labour" and thus insisted that any changes to the Act make the Board more accountable to the courts. Meanwhile, the unions continued to lobby for a more progressive provincial code that was more closely aligned with the Wagner provisions.

As the province moved to address these concerns by introducing an independent OLRA in 1950, Daley chose to pursue fairness and balance by meeting many of the employers' demands.

The Consolidation of a Provincial Labour Code: Leslie Frost and the 1950 OLRA

While the Tories continued to drag their feet on the establishment of a provincial labour code, the fears of widespread post-war unemployment slowly evaporated (Table 3.2).

Table 3.2 Unemployment in Ontario and Canada, 1946-19501 Year Ontario Canada 1946 2.8 5.5 1947 1.8 2.2 1948 1.7 2.3 1949 2.3 2.8 1950 2.4 3.6

The changes in the economy led to a buoyancy of federal industries being offloaded to private sector. In the immediate post-war period, employers met with a great deal of success because they were able to respond to the pent up demand of consumers released from wartime rationing. Initially, the expansion of the economy was driven by

F.H. Leacy, Historical Statistics of Canada, 2" Ed., (Ottawa: Statistics Canada, 1983), Unemployment rates, by region, annual averages, 1946 to 1975, Series D491-497. 113 Robert M. Campbell, Grand Illusions: The Politics of the Keynesian Experience in Canada, 1945-1975 (Peterborough: Broadview Press, 1987), 69-71; Rea, Prosperous Years, 198-202. The federal government - 131 -

massive private expansion, totalling almost $12 billion in new investment, $4 billion of which was subsidized by the federal and provincial governments.114 This expansion led to an increase in the general level of consumption (aided by easier access to credit) which peaked at 65.5 per cent of Gross National Product in 1947.'15 The transition to a peacetime economy predicated on high levels of employment and wartime collective bargaining legislation contributed to an increase in unionization throughout Ontario

(Table 3.3).

initiated several new industries in Ontario during the war, including synthetic rubber, optical glass, electrical goods, and specialized metals. The government's role in creating these industries ranged from subsidies to offset the construction of plants and equipment or expanding (or modifying) existing plants and equipment. The government also created numerous Crown corporations and applied new technologies to the production of materials necessary for the war effort, which included massive expenditures for munitions. According to most researchers, many of these industries survived after the war because of pent- up consumer demand, but largely as private interests. 114 Campbell, Grand Illusions, 70. 115 Ibid., 78-9. Campbell suggests that consumer demand weakened after 1947, but accelerated as government put more money into welfare transfers in the 1950s. - 132 -

Table 3.3 Total Union Membership116 and Union Density117 in Ontario, 1941-1949

Year Total Membership Percentage of Paid Workers 1941 132,556 13.0 1942 180,380 16.9 1943 211,970 18.0 1944 210,952 18.0 1945 204,399 18.0 1946 236,729 19.0 1947 286,981 22.2 1948 301,507 22.8 1949 315,195 22.9

Shortly after the passage of the 1948 OLRA, Drew called an election in order to profit from Ontario's prosperity. While the election was not fought over the issue of labour relations (the question of liquor regulation was central to the campaign) internal changes within the CCL reunited several of the disgruntled members from the UAW, and the union central emerged with a zealous determination to purge the unions of

Communists and to rebuild the CCF in the province. Part of this transition saw the UAW leadership endorse the CCF as the official arm of labour.118 This support saw the party

(1) Canada Department of Labour, Union Growth in Canada, 1921-1967 "Table IIA Union Membership By Region, 1921-1967." (2) J.K. Eaton, Canada Department of Labour, Union Growth in the Sixties, "Table IVA Membership of Unions and Employees' Associations, by Region, 1957-1970."(3) Ontario Ministry of Treasury, Economics and Intergovernmental Affairs, Ontario Statistics, 1975. 117 (l)Canada Department of Labour, Union Growth in Canada, 1921-1967 "Table VII A, Union Membership as Percentages of Paid Workers, By Region, 1941-1967." (2) J.K. Eaton, Canada Department of Labour, Union Growth in the Sixties, "Table IVC Percentage of Paid Workers by Region, 1957- 1970."(3) Ontario Ministry of Treasury, Economics and Intergovernmental Affairs, Ontario Statistics, 1975, Table, 10.6 Non-Agricultural Labour Force & Table 10.27, Union Membership, Canada and Ontario, 1961-1972. (4) Mary Lou Coates, David Arrowsmith and Melanie Courchene, The Current Industrial Relations Scene in Canada, 1989: The Labour Movement and Trade Unionism Reference Tables, "Table 15 Union Membership by Province in Canada, 1966-1986." (a) Data for all years up to and including 1949 are as of December 31. In 1950, the reference data was moved ahead by one day to Jan. 1, 1951. Thus, while no figures are shown for 1950, the annual series is in effect, continued without interruption. 118 Horowitz, Canadian Labour in Politics, 118. -133-

recapture the official opposition from the Liberals while defeating Drew in his own riding. The Tories were returned with a reduced majority, winning 53 seats with 41 per cent of the popular vote. Meanwhile the CCF formed the official opposition with 21 seats and 27 percent of the vote. Although the Liberals (and the last remnants of the

Liberal-Labour coalition) won more votes than the CCF (30 per cent), they won just 14 seats.

Following his personal defeat, Drew resigned from the premier's office to become leader of the federal Conservative Party. The replacement of Drew with provincial treasurer and Lindsay lawyer Leslie Frost was primarily an attempt to broaden the populist appeal of the party. Frost's message was that he could manage the economy from a rural business perspective while uniting the party's rural base with expanding urban constituencies.119 In public, Frost adopted a conciliatory attitude towards labour and the political left, even being cordial with the few Communist members of provincial

Parliament in the 1950s.120 This populism was used to frame Frost as "Old Man Ontario," a designation that was intended to reach out to multiple regions and classes, uniting Tory tradition with the changes in the post-war economy.

"9Graham White, "Social Change and Political Stability in Ontario: Electoral Forces 1867-1977," Ph.D. thesis, McMaster University, 1979, 111. See also Keith Brownsey, "Tory Life: The Life Cycle of the Progressive Conservative Party of Ontario, 1935-1980," Ph.D. thesis, Trent University, 1994, 161-3. See also, Manthorpe, The Power and The Tories, 42-3. The popular perception of Frost in these years (and today) was that he would govern from the barbershop chair in Lindsay, Ontario. This populist appeal reinforced Frost's often-public message that he would run government like a business, "the people's business!" 120Jack Cahill, "25 years of Tory rule—and how it all began," Toronto Daily Star, 14 February 1968. In private, Frost (and the party machine led by A.D. Mackenzie) presided over malicious campaigns to defeat the Communist candidates in downtown Toronto in 1951 and 1955. In these campaigns, the Tories relied heavily on Cold War rhetoric. See Peter Oliver, Unlikely Tory: The Life and Politics of (Toronto 1985), Chapter 4: "Removing the Red Blot." - 134 -

Under Frost's leadership, the Conservatives' strategy for post-war growth was predicated on infrastructure expansion and private sector development with little regard

for the growing labour movement. In tying his administration to this strategy, Frost's

government depended on private sector investment to fuel the post-war economy. For the provincial Conservatives the primary goal of the government was "to clear the way for the private sector."121 During Frost's administration, the provincial government undertook hundreds of large capital projects, including the building of highways and schools, hospitals, sewage and water facilities. In many ways, the priority placed upon these programs spoke to the government's assumption that its geographic location, its abundance of raw materials, its manufacturing base and its growing labour force gave

Ontario a competitive advantage over other Canadian jurisdictions. Ultimately, Frost's fiscal strategy stressed, "sound financial polices which included balanced budgets and low taxation."122 Like Drew before him, Frost's model combined traditional Conservative fiscal orthodoxy with a moderate form of intervention that sought to create the conditions necessary for private sector growth.

This pragmatic approach informed the government's attitude towards labour relations. During his leadership campaign, Frost encountered criticism from rival Kelso

121 Keith Brownsey and Michael Howlett, "Class Structure and Political Alliances in an Industrialized Society," in K. Brownsey and M. Howlett, eds., The Provincial State: Politics in Canada's Provinces and Territories (Toronto: Copp Clark Pitman, 1992), 158. 122 Richmond, The Economic Transformation of Ontario, 13. 123 Graham White, "Change in the Provincial State 1952-2002," Paper Prepared for the Role of Government Panel October 2002. http://www.law-lib.utoronto.ca/investing/reports/rp8.pdf (Accessed May 1st, 2006), 13-4. -135-

Roberts over the government's decision to forgo a "made in Ontario" labour code. In response to these concerns, Frost and Daley introduced Bill 82 The Ontario Labour

Relations Act in early 1950 (Appendix II). In accordance with Frost's conciliatory manner, the new legislation outlined a "hands off policy which reflected the

Conservatives' intention to promote peaceful negotiations between unions and employers. Speaking in the House, Daley articulated this vision:

The Labour Relations Act is not a substitute for collective bargaining, which we, as a government, firmly believe in. The Act provides for collective bargaining when employers and employees are unable to reach an agreement, and I think we have a good cohesive Act—an Act that fits together will from the beginning to end, from the beginning of meetings for certification, right down through all the stages of negotiation and conciliation, and in certain cases, arbitration and settlement. It does not take away from organized labour the right to use their economic strength. It does make the rules which, if followed by employer and employee ... while not entirely removing the necessity for a strike or lock-out, should minimize the possibility of these things being necessary....I believe that legislation should be the minimum rather than the maximum, for in the final analysis and negotiation and discussion between the parties, you will find that is the only way to settle disputes.

In line with traditional Party policy, however, the Conservatives were also quick to reassert their commitment to free enterprise by increasing the regulation of trade union activity within the scope of the Act. During second reading, Daley maintained that the goals of union freedoms and free enterprise were not mutually exclusive. Ultimately, the

OLRA could stabilize and expand private enterprise:

On the debate over a provincial code, see Brownsey, "Tory Life," 162-3. Roberts was proposing to reach out to various segments of organized labour, especially in the construction trades. 125Ontario House of Commons Debates, Proceedings of the 2nd Session of the 23rd Legislature, 8 March 1950, B9-B11. -136-

When I think of the progress of development in this country in my lifetime, and the culture of the people, and the good industry, you find that this Province, and this country of ours is one of the great unions of the world under free enterprise....Because under this system, this country has a greater opportunity for the people to progress than any other similar area in the world....[but] As men, employee and employer, they must work together in mutual understanding and goodwill, and it is necessary that there must be regulation and laws...there must be some rules of the game, and this Labour legislation is just that: the rules of the

Daley, in effect, insisted that the Act was merely designed to outline the so-called rules of the game from which private enterprise and trade unions mutually benefited.

Notwithstanding this argument, the rules of the game ascribed in the OLRA came with significant restrictions for Ontario workers. The new OLRA continued to restrict collective bargaining for thousands of non-manufacturing workers, many of whom were women, including domestics, public sector workers, teachers, and administrative staff. In addition, security guards, engineers, police, fire fighters, agricultural, and horticultural workers were also excluded from the Act.127 Municipal councils were also given the right to "opt out" of the Act, giving city governments the ability to eliminate collective

1 TO bargaining and curtail the right to strike. Further restrictions on the right to strike were constructed by enforcing strict rules surrounding grievance procedures, greater regulation

Ontario House of Commons Debates, Proceedings of the 2nd Session of the 23rd Legislature, Queen's Printer for Ontario, 8 March 1950, B-8. 127NAC, FP, MG 31, E-27, vol.1, Folder, Labour Relations Act Collective Bargaining, 1949, Jacob Finkelman Memo to Charles Daley, 31 October 1949. Finkelman recommended expanding the number of workers covered by the Act to include public sector workers and teachers in 1949. Millar speculates that Daley's decision to leave agricultural and horticultural workers outside of the Act reflected the fact that his home riding encompassed Niagara which was dominated by the fruit growing industry. See Millar, "Shapes of Power," 405, note 51. 128AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Provincial Joint Council #22 of Building Service Employees' International Union, 2 October 1957, 1067-9. Daley admitted in 1957 that leaving municipal workers outside of the Act was not his first choice. Despite his disapproval, he testified that his concerns were overruled by cabinet. -137-

of union bargaining committees, and extending mandatory conciliation provisions. The new conciliation rules stated that unions were unable to strike legally until seven days after a board issued a non-binding report. There was also a new section outlining that all collective agreements contain a clause stating that strikes may not occur during the life of a collective agreement.129 In order to deter the threat of illegal strikes further, the legislation gave the Department of Labour the discretion to determine whether participation in an illegal strike prevented employees from returning to their jobs. In essence, the delaying tactics and restrictive rules surrounding the right to strike extended the Daley formula into the OLRA.

The new legislation also altered the rules surrounding certification and gave the

OLRB explicit guidance on how to authorize decertification votes for existing unions.

During certification drives, a union had to demonstrate that it was supported by 55 per cent of the employees in the appropriate bargaining unit. By contrast, an employer or a group of anti-union employees could obtain decertification in the final two months of a contract with a 50 per cent vote. Most observers interpreted the higher number to obtain certification as a concession to employers who had argued that a bare majority of membership cards did not reflect the true wishes of employees. Under the new certification process, a mandatory vote was required when membership cards fell between 45 and 55 per cent. The legislation further required that that a union had to receive the majority of all eligible voters rather than a majority of all those participating

129NAC, FP, MG 31, E-27, Vol.1, Folder, Labour Relations Act Collective Bargaining, 1950. According to Finkelman, this followed from the Act itself. Nonetheless, employers insisted that a "no strike" clause be included in the Act in order to make it clear that wild-cat strikes were illegal. 130Wilfred List, "Bill Eases Certification, Hits at Illegal Strikes," Globe and Mail, 1 March 1950. -138-

in the election. Throughout his tenure as Labour Minister, Daley defended these voting rules because he felt that a trade union must be supported by the vast majority of the membership in order to succeed in bargaining or to wage a successful strike. As the

Daley formula was predicated on limiting strike activity by isolating the rank-and-file from the leadership, however, it seems unlikely that this reasoning reflected a genuine concern for the internal democracy of trade unions.

The exclusion of union security exacerbated the restrictions on certification.

Officially, the Labour Minister claimed that the government opposed union security in

ITT t legislation because it was deemed a matter for negotiations. He neglected to mention that this argument was identical to that of the CMA who stated in private communication that "the question whether or not there should be a check-off of union dues is a proper question for free collective bargaining, and laying it down by statute that the employer must institute a check-off would ... deprive employers of their rights."134 Frost elaborated further, stating that "it seems to me, [it would] involve legislating in other matters

l31Adam Bromke, The Labour Relations Board in Ontario, 27-8. Bromke showed that these rules were not as restrictive as it seemed because OLRB policy was not to count non-voters against the union. The unions insisted, however, that the legislation demanded that unions receive more than 50 per cent of those voting because non-voters counted against the union. The OFL also claimed that the voting rules gave employers additional time to mount anti-union campaigns. Canada Department of Labour, "Ontario Federation of Labour," The Labour Gazette, (March 1952), 265; "Frost Cabinet Refuses to Accept Voluntary Revocable Check-Off," Toronto Daily Star, 6 April 1950. 132AO, OMLC, RG 7-1-0-437, Box 9, Comments on the Recommendations of the Select Committee: Minister of Labour, January 1960. 133AO, OHSSPI, RG-47-27-1-29, Interview with Mr. Charles "Tod" Daley, 117-18. Daley conceded that this exclusion was also personal. Ultimately, he claimed that he "didn't believe in it. I thought a man had a right to belong to a union or not to belong. That's pretty much gone overboard because the unions have so much control that they can demand these things. Why should the employer have to do the paper work and office work for the union? That was their job." 134AO, OPFGC, RG 3-24, Box 19, Canadian Manufacturers' Association, Letter to Charles Daley, 25 March 1950. -139 -

reserved for collective bargaining such as statutory holidays, pensions, wages, all of which would bear no relationship to unorganized labour [or] to the widely different types of agreements which are already negotiated or ... in effect in the majority of industry."

As the government did not want to set mandatory conditions in collective agreements, the legislation made union security legal (thereby not replicating Taft-Hartley) but security was only likely when unions were strong enough to secure such agreements. These restrictions implied that the minimum standards in the OLRA were only likely to benefit existing trade unions.

The "hands off approach to collective bargaining mimicked employer interpretations of state sponsored labour legislation.136 One reason that employers took this position was to defend the "individual rights" of workers. On this question, employers argued that the purpose of the Act should be to protect the individual's right of association by making collective bargaining difficult to obtain. This included subjecting certification to a series of hurdles designed to ensure that a majority of all employees supported the union. In taking this position, employers were adamant that the OLRA not promote trade unionism, encourage employees to join trade unions or set minimum

l35AO, OPFGC, RG 3-24, Box 19, Remarks of L.M. Frost on the Ontario Labour Relations Act in the Legislative Assembly, 3 April 1950, 4; AO, OPFGC, RG 3-24, Box 19, Toronto Board of Trade, Letter to Leslie Frost, 27 March 1950. In a letter to Frost, the Toronto Board of Trade emphasized that union security would result in the "material strengthening of the position of collective bargaining agents which even the more responsible elements of labour are seeking to drive out of existence." 136AO, PSCLR, RG 49-138, Box C 91, Submission of the Ontario Division of the CMA to the Select Committee on Labour Relations of the Ontario Legislature 29 October 1957, 4.; Wilfred List, "Union Leaders Fear Growing Regulation," Globe and Mail, 21 December 1959. -140-

standards for collective agreements. This drove employer opposition to union security provisions in the Act. In a not so subtle reference to the Communist influence in the trade unions, for instance, the Toronto Board of Trade argued that "if check-off provisions were included in the Act it would be a material strengthening of Collective

Bargaining agents which even the most responsible elements of labour are seeking to drive out of existence."138 In justifying their opposition to the check-off, the Toronto

Board of Trade claimed that in no other jurisdiction with similar levels of industrialization had a government committed itself to state protected union security provisions.

For the unions, the OLRA was notable for what it did not include, as union briefs to the government decried the exclusion of union security provisions and called for the elimination of several offensive provisions of the Act. This concern arose over the

Tories' decision to ignore the requests of the central labour bodies, especially those in the

CCL. The CCL unions were convinced that employer pressure had directly influenced the government to limit the extension of the 1950 Act. In particular, the CCL singled out

AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Manufacturers' Association (Ontario Division), 29 & 30 October 1957, 2123-4. The CMA argued that there was nothing in the Act "which states either expressly or implicitly that is public policy that Collective Bargaining is the perfect method of conducting employee-employer relationships. There is no preamble to the Act, but throughout the Act the whole purpose of the Act is designed to make Collective Bargaining possible, mandatory, as a matter of fact, if the majority of employees want it." 138 AO, OPFGC, RG 3-24, Box 19; Toronto Board of Trade, Letter to Leslie Frost, March 1950. 139 Wilfred List, "Report on Labor: See CCF Ammunition in Labor Bill," Globe and Mail, 7 April 1950. According List by the 1950s, the Tories had largely written off the CCL because of its alliance with the CCF. -141-

the gold mine owners who had waged an aggressive campaign against union security

clauses in the OLRA.140

In taking this position, labour unions did not—contrary to the popular perception

of the conservative labour climate of the early 1950s—quietly accept Ontario's model of

post-war industrial legality. By the time the government introduced the 1950 OLRA, a

struggle over the form of collective bargaining was taking shape. Strike patterns in

Ontario, in fact, rose with the national average. Many of these strikes were fought over union financial and legal security. By the early 1950s, labour unrest was concentrated primarily in Ontario's manufacturing sector, and included major disputes in the Steel and

Auto industries. A significant number of strikes also occurred in Ontario's Lumber and

Mining sectors and extended into the Steel, Construction and Nickel industries involving over 37,577 workers. In total, these strikes accounted for nearly 2,000,000 worker days lost to strikes in 1947 and 1948.141 This strike wave resulted in 66 strikes with over

1,883,482 days lost to strikes in 1947. In 1948, the number of strikes increased, but the number of workers involved fell to 192,957 days lost to strikes (See Table 3.1). While the post-war strike wave marked a high for Ontario workers in the number of actual days

AO, OPFGC, RG 3-24, Box 19, Joseph Mackenzie OFL President, Letter to the Members of the Ontario Legislature 20 March 1950; Ontario Federation of Labour (CCL), "The New Labour Bill," CCL Bulletin, April 1950. The OFL insisted that the mine owners were never going to accept trade unions. In a letter to Charles Daley, the OFL identified seven mines, including the Mclntyre group, who refused to endorse the check-off despite the recommendation of conciliation boards. 141 Ontario Department of Labour, "Strikes and Lockouts in Ontario by Fiscal Years, 1921-1951," in Thirty-Second Report of the Ontario Department of Labour, (Toronto: Queen's Printer for Ontario, 1952), 94; Jamieson, Times of Trouble, 372-73. - 142 -

lost to strikes, Ontario workers continued to strike with relative consistency in the 1950s as the number of actual strikes never dropped below 75. 4

In many ways, these struggles set the stage for labour conflict in the 1950s.

Unions continued to fight for a greater share of the post-war profits, while trying to carve out a space for greater control in the workplace. While there was a conservative trend within some of the trade unions to embrace post-war labour law as a solution to workplace conflict, this attitude was not universal. Rather, the "thunder from the left" in the 1950s challenging Frost's government, was supplied by large and often militant strikes, many of which were over the issue of union security.143 There was also opposition to employer attacks upon OLRB discretionary power. In many cases, these struggles reflected labour's inability to foster sustained economic and political pressure on the Conservative government. As the politics of collective bargaining showed, however, they were also over longstanding grievances over the form and content over the

OLRA. The limitations to the Act resulted in limiting unionization and broader based bargaining in the province.

Jamieson, Times of Trouble, 355. The wave of post-war strikes culminated in the federal railway strike of 1950, which saw 125,000 non-operating employees walk off the job. The Railway workers were demanding a five-hour workday, a forty-hour work-week and wage increases. Fresh off the introduction of the IRDIA, the federal Liberal government responded by declaring a "national emergency" and passed back-to-work legislation to end the strike. 143 Roger Graham, Old Man Ontario: Leslie M. Frost (Toronto: University of Toronto Press, 1990), 267- 68; Jamieson, Times of Trouble, 351-55. Jamieson maintains that the political conservatism of the trade unions in this decade reflected the growing maturity of trade unionism and noted that the strikes in the 1950s were significant for their inability to sustain social protest. Jamieson further argues that trade union struggles over income security, union security and seniority reflected a conservative notion of trade unionism as opposed to the wage battles of the 1930s and 1940s. - 143 -

Conclusion

By 1950, Ontario had undergone a significant shift in terms of its political and economic future. In seven years, the Hepburn, Drew and Frost governments had introduced three

Labour Relations Acts, all of which attempted to integrate fairness while seeking to balance state planning with the expansion of private enterprise. This philosophy saw both Liberal and Tory governments drag their feet on labour law reforms. In 1943, the

Liberal government adopted a limited OLRA which was administered by a newly minted

Ontario Labour Court staffed by the Supreme Court of Ontario.

The judiciary, however, quickly set legal precedents that mitigated trade union demands for provincial Wagnerism. Although empowered to expand collective bargaining, the Labour Court met with universal disapproval from the labour movement because of its sympathy for company unions. Within this environment, the Liberal government was defeated in the 1943 provincial election and the new Tory government brought the OLRA under the purview of the OLRB in 1944.

Much of this restructuring was placed on the agenda because of the high level of strike activity and the growing popularity of the CCF. In this period, the provincial

Conservatives abandoned their previous hostility to government planning and endorsed moderate forms of government intervention and social welfare legislation in order to broaden their appeal and to compete with the CCF. The shift culminated in the dramatic events of the 1943 and 1945 elections which witnessed the provincial Tories win impressive election victories. These two elections set the stage for the pattern of post- -144-

war Ontario politics, which included titanic battles over the adoption and administration of labour relations in the province.

While the traditional parties were seeking to address the popularity of the CCF and the militancy of the trade unions, employers continued to use their considerable economic clout to defeat Wagner-inspired labour legislation. Pointing to the Taft-Hartley reforms in the United States, employers sought to limit the extension of any new legislation by subjecting trade union activity to increased legal restrictions. As these critiques became increasingly more sophisticated, employers were also able to contest the structure of collective bargaining itself. By 1948, it became clear that employer opposition to inclusive labour legislation was the primary factor in delaying the provincial adoption of an independent OLRA. After a series of militant strikes compelled the federal and provincial governments to adopt more inclusive collective bargaining legislation, the new OLRA fell considerably short of expectations. In Ontario, the new legislation only went as far as the federal government's IRDIA that did not contain union security clauses nor significantly expand on the right to strike.

Discontent with the 1948 OLRA from employers and unions pressured the Frost governments to implement a made in Ontario Labour Relations Act in 1950. The 1950

OLRA sought to incorporate some of the union demands on certification, collective bargaining and the OLRB while continuing to line the Act with punitive measures designed to limit strike activity. Part of this strategy was reflected in the inclusion of the

"Daley formula," which incorporated a series of delaying tactics to limit the extension of collective bargaining and the right to strike. In other areas, the Tories bowed to employer -145-

pressures and left thousands of workers outside of the Act. In order to sustain the appearance of balance, the legislation expanded the discretion of the OLRB to regulate unionization in the province. In its early stages, both business and labour challenged the boundaries of administrative discretion. Although celebrated by the government as the extension of industrial fairness in Ontario, the legal rights outlined in the Act were undermined by the provincial government's close association with the arguments of private business. This association undermined the democratic potential of trade unions and made unionization in new sectors more difficult. - 146 -

Chapter 4

Legalization and the Limits of Reform: The Politics of Labour Relations in Ontario, 1950-1957

Introduction

In part, the 1950 Ontario Labour Relations Act (OLRA) was the product of the struggle by working men and women to protect the freedoms of bona fide trade unions to organize, bargain and strike. On the other hand, the OLRA was also the product of employers and political leaders seeking to constrain unionization in the province. Under these conditions, the new Act created an environment in which Wagner inspired procedures replaced the half-measures in the formation and functioning of trade unions in

Ontario. The extent to which legal provisions assisted workers in challenging employers, however, continued to be an open question. Most Ontario trade unions, for instance, were steadfast in their belief that labour relations should remain free from the jurisdiction of courts and, thus that OLRB decisions be insulated from the perceived biases of the judiciary.1 In other words, the unions believed that the OLRB should be a place "where

'AO, OPFGC, RG 3-24, Box 19, The Labour Code: Legislative Proposals of the O.F.L., C.C.L as submitted to The Prime Minister and Members of the Government of Ontario, 9 March 1950; Fudge and Tucker, Labour Before the Law, 272. Prior to the 1950 OLRA there had been pressure from employers to increase the role of judges in the regulation of unions. The unions saw the tripartite structure of the Board as a way to limit the ability of judges and the common law to interfering in the right to organize, bargain and strike. The inability of employers to appeal Board decisions was codified in the OLRA's privative clause (S. 68). The privative clause stated that "no decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgement, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings." Both the CCL and TLC unions also argued that judges were ill suited to act as arbitrators on conciliation boards because they were prone to side with employers during bargaining conflicts. - 147-

trade unionists could come down and present their case in a rather informal manner, and

it had no courtroom atmosphere, or courtroom procedures."2

The hesitation of most unions to subject themselves to the judiciary did not preclude them from pushing for greater legal freedoms in the Act. More specifically,

Ontario unions fought militantly for legal amendments to protect union security. The

CCL unions argued, for example, that legal protection of union security was an important tool to protect trade unions from anti-union employers. They also relied on legal security to secure a footing in sectors prone to jurisdictional disputes, such as in construction and mining. In the 1950s, this included the Steelworkers union (CCL CLC after 1956) which

sought union security clauses in order to expel the last vestiges of the Communist- dominated unions in Ontario's mines, the International Union of Mine-Mill and Smelter

Workers. While this struggle unfolded, union leadership in the Steelworkers clung to union security as a way to challenge employers by strengthening their position at the bargaining table. Given the close connections that mine owners maintained with the provincial government, however, employers were able to defeat a series of strikes over union security by the Steelworkers. As had been true in the past, government policy in this area was dictated by the demands of employers.

These struggles represented a fundamental conflict over the structure of government regulation between trade unions, employers and the state. Employer demands to restrict the legal freedoms in the OLRA and to limit the discretionary power of the

2AO, PSCLR, RG 49-138, Box C 92, Testimony of the Ontario Federation of Labour, 8 May 1958,4087. 3 The struggle between Steel and Mine-Mill would continue throughout the 1950s and concluded in 1961 when Steel successfully raided Local 598 in Sudbury. - 148 -

OLRB certainly calls into question the narrative that post-war labour relations were

predicated on notions of balance or compromise. In the 1950s, employers and unions

battled over whether the OLRA and the OLRB would be subjected to judicial influence, which included making the proceedings more court-like and allowing appeals to higher

courts.4 Eventually, I suggest that employer pressure bore fruit, and the government chose to give the courts greater authority to interpret jurisdiction and the discretionary powers of the OLRB. In the end, the decision of the Frost government to let the courts decide on these questions made the Act further vulnerable to judicial scrutiny and therefore to manipulation from company lawyers and conservative judges. I will demonstrate that employers were able to use the courts to impede certification procedures that had been specifically designed to free the process from judicial rules of evidence. In particular, they were also able to build on the OLRB's consent-to-prosecute and illegal strike powers in order to limit rank-and-file participation in the collective bargaining process. This history shows that employers were able to use the courts to chip away at the

OLRA and the OLRB, giving them a significant legal "trump" card over the expansion of trade union rights and power in the province.

This analysis is divided into three sections. In the first section, employer challenges to board discretionary power is analysed. This analysis begins with early employer challenges to Board discretionary power in the province of Saskatchewan, which adopted a full Wagner Board in 1944. This examination explores the way

4 Brownsey, Tory Life, 191. Demands for judicial oversight became an issue in the 1951 provincial election campaign. During the campaign, Frost stated that the OLRA and the OLRB had to be subject to judicial oversight because it might create "a less rancorous industrial climate." - 149-

employers used the courts to limit the discretion of the Saskatchewan Labour Relations

Board (SLRB) in that province. The Saskatchewan example is important because the

CCF's labour legislation was interpreted by employers as excessively pro-labour. In order to defeat the CCF's reforms, employers turned to the courts and were largely successful in limiting the power of the SLRB. In these cases, recourse to judicial review was openly pro-business.

Similar circumstances occurred in a prolonged union certification dispute at the

Globe and Mail's circulation department in Ontario. As this dispute occurred immediately after the passage of the 1950 OLRA, it established an important precedent and helped determine how the new certification procedures shaped post-war organizing in the province. In other words, this crisis occurred at the moment of institutional crystallization and thus had lasting institutional significance on labour relations in the province. Relying on support from organized businesses and using its close connections to the provincial government, the Globe and Mail rallied support for increased judicial oversight in order to protect its legal rights of property and contract. In doing so, employers were successful in undermining the OLRA's privative clause forbidding the right of appeal Board decisions to court. These changes limited the Board's discretionary power and made it easier for employers to delay certification drives in the province.

The second section considers the influence of the law and the continuing resistance of employers to unionization. Through an examination of numerous strikes in the mining industry, I demonstrate that employers were able to use their close relationship with the government in order to defeat the issue of union security. -150-

Throughout these disputes, the United Steelworkers of America (USWA) were determined to demonstrate that affiliates of the CCL were good "corporate citizens, non- communist and responsible members of the community."5 In order to promote

"responsible" unionism, the USWA sought legislative changes in order to address employer hostility in the mines and to defeat the Communist-leaning Mine-Mill and

Smelter Workers. Yet, by seeking to defeat their fellow union members through greater legal interference, the Steelworkers' campaign set a precedent that employers followed in calling for similar intervention from the Frost government.

Section three explores the continued pressures surrounding legalization at the

OLRB. Despite the success that unions were having before the Board, there was still a great deal of pressure from employers to limit strike activity and enforce responsible unionism. Employers were using the Board's consent-to-prosecute powers in order to delay collective bargaining and to limit rank-and-file militancy over control in the workplace. The ability of employers to use these tools cemented the Board's quasi- judicial functions at the expense of the organizing powers supposedly protected by the

OLRA. The result was a far more judicialized labour relations environment that solidified employers' legal rights and limited unionization in the province. Ironically, unions looked to the law for redress in this struggle. In doing so, unions revealed that within the industrial relations framework established by the OLRA, the playing field remained tilted to employers' advantage.

5 AO, OPFGC, RG 3-24, Box 19, Porcupine Mine Workers Union Local 100 (CCL), Letter to Leslie Frost, 14 March 1950. -151 -

Early Employer Challenges

By early 1950, the Ontario provincial economy was benefiting from high levels of growth in the manufacturing sector, averaging close to 5 percent in real Gross Provincial Product

(GPP) throughout this period.6 This level of productivity contributed to a growth in employment, as unemployment averaged just 3.4 per cent throughout the decade, although there was a spike during the recession, which lasted from 1958 until 1961.

While the number of workers directly employed in manufacturing sectors remained relatively static, jobs were expanding in the service industries, growing from 25 per cent of total jobs in 1940 to over 56 per cent by the end of the 1960s. The growth in this

o sector contributed to the slow expansion in the number of women in the labour market.

The post-war model of economic growth contributed to a significant transformation in the province. The agrarian model of economic development—so dominant in the period prior to the Second World War—evaporated as cities in the south, particularly Toronto,

Hamilton, London and Ottawa all became major financial and manufacturing centres.

Ultimately, these economic changes refashioned Ontario as a major manufacturing and financial hub within Canada and North America.

This transformation certainly benefited workers as the general increase in employment brought higher wages and considerable increases in the standards of living

(Table 4.1).

6 Macdermid and Albo, "Divided Province," 166; Rea, The Prosperous Years, 196. In 1949, Ontario's manufacturing sector boasted 12, 951 establishments and employed 557, 000 people. By 1961, the manufacturing sector had actually declined to 12, 419 establishments employing 639, 000 members. 7 Figures compiled from D.K. Foot, Provincial Public Finance in Ontario (Toronto: University of Toronto Press, 1977), 6-7; Ontario Statistics, 1975. 8 Richmond, The Economic Transformation of Ontario, 15. -152-

Table 4.1 Unemployment in Ontario and Canada, 1950-19619 Year Ontario Canada 1951 1.7 2.4 1952 2.2 2.9 1953 2.1 3.0 1954 3.8 4.6 1955 3.2 4.4 1956 2.4 3.4 1957 3.4 4.6 1958 5.4 7.0 1959 4.5 6.0 1960 5.4 7.0 1961 5.5 7.1

The employment figures highlighted in table 4.1 contributed to the expansion of

Ontario's trade union movement. Although thousands of workers were left out of the

OLRA, in areas where unions could organize, they did so with increasing frequency. By

1957, unions could boast that they represented 32 per cent of the labour force (Table 4.2).

9 F.H. Leacy, Historical Statistics of Canada, 2nd Ed., (Ottawa: Statistics Canada, 1983), Unemployment rates, by region, annual averages, 1946 to 1975, Series D491-497. -153-

Table 4.2 Total Union Membership and 10 Union Density11 in Ontario, 1951-1961

Year Total Membership Percentage of Paid Workers 1951 349,900 23.7 1952 364,150 24.1 1953 406,481 27.6 1954 415,250 27.6 1955 443,500 29.1 1956 510,189 31.5 1957 559,272 32.5 1958 552,675 32.2 1958 555,200 31.0 1960 556,200 29.7 1961 550,000 29.5

A great deal of this expansion occurred in the manufacturing and resource sectors, where large international unions competed for worker loyalties. Workers were also represented

1 9 in construction, transportation, public utilities, and in shipping and trade. After the recession in 1958-1961, unionization showed considerable resiliency as almost 30 per cent of the total non-agricultural workforce remained union members. Indeed, despite the

Canada Department of Labour, Union Growth in Canada, 1921-1967 "Table IIA Union Membership By Region, 1921-1967."; J.K. Eaton, Canada Department of Labour, Union Growth in the Sixties, "Table IVA Membership of Unions and Employees' Associations, by Region, 1957-1970."; Ontario Ministry of Treasury, Economics and Intergovernmental Affairs, Ontario Statistics, 1975. 11 Canada Department of Labour, Union Growth in Canada, 1921-1967 "Table VII A, Union Membership as Percentages of Paid Workers, By Region, 1941-1967."; J.K. Eaton, Canada Department of Labour, Union Growth in the Sixties, "Table IVC Percentage of Paid Workers by Region, 1957-1970."; Ontario Ministry of Treasury, Economics and Intergovernmental Affairs, Ontario Statistics, 1975, Table, 10.6 Non- Agricultural Labour Force & Table 10.27, Union Membership, Canada and Ontario, 1961-1972.; Mary Lou Coates, David Arrowsmith and Melanie Courchene, The Current Industrial Relations Scene in Canada, 1989: The Labour Movement and Trade Unionism Reference Tables, "Table 15 Union Membership by Province in Canada, 1966-1986." (a) Data for al years up to and including 1949 are as of December 31. In 1950, the reference data was moved ahead by one day to Jan. 1, 1951. Thus, while no figures are shown for 1950, the annual series continued without interruption, (b) These numbers have been adjusted, (c) These numbers have been adjusted. 12 Ontario Department of Labour, 39'h Report of the Ontario Department of Labour, 1958. -154-

changing labour market in the 1960s and 1970s, the rate of unionization was remarkably

1 T consistent, hovering around 30 per cent throughout the post-war period.

The growth in the Ontario economy allowed many unions to bargain higher living standards for workers. In addition to higher wages, unions were also able to negotiate decreases in working hours and shorter workweeks. Although making gains at the bargaining table, unions in Ontario continued to strike in relatively high numbers, reaching almost 2,000,000 person days lost to strike activity in 1956 and again in 1958

(Table 4.3). Table 4.3 Strikes and Lockouts in Ontario by Fiscal Years, 1951-196114 Year Number of Disputes Number of Workers Days Lost 1951 98 83,861 447,647 1952 115 57,129 527,435 1953 95 26,336 350,380 1954 85 27,051 680,601 1955 75 26,576 952,964 1956 87 37,218 1,949,672 1957 133 40,951 334,362 1958(a) 132 58,467 1,918,030 1959 104 25,540 267,730 1960 156 24,085 337,370 1961 166 39,817 644,770 (a) Adjusted

Although these strikes challenged employers at the bargaining table, it also placed the issue of labour law reform squarely back on the agenda after several years of dormancy.

13 The strength of unionization pushed up personal income in Ontario, as it grew from 5.199 billion in 1949 to 12 billion in 1961. In the same period, real wages rose from under $1800 to $2200 per capita. 14 Ontario Department of Labour, 39,h Report of the Ontario Department of Labour, 1958; Ontario Ministry of Treasury, Economics and Intergovernmental Affairs, Ontario Statistics, 1975, Table 10.28 Strikes and Lockouts, Ontario, 1958-1971. - 155-

The growing level of unionization and the high levels of strike activity

contributed to employer opposition to the Act. In letters to the provincial government,

employers in all industries called for greater legal restrictions on the unions' right to

organize and to strike. In these communications, employers urged the government to restore balance to the Act by making unions more accountable to the law. An important way to accomplish this goal was to make the OLRB directly answerable to the courts. As the privative clause limited direct appeals to the courts, employer groups requested that the premier remove this restrictive section of the OLRA. Particularly, employers suggested that courts limit the Board's jurisdiction to rule on questions of certification, bargaining and the right to strike. Using the arguments of individual rights, employers maintained that it was unthinkable that government deny them "the right to protect against excess of jurisdiction and possible misconduct. All decisions from administrative tribunals on points of law should be given the inherent right of appeal."15 This line of reasoning suggested that employers continued to resist Board power because they interpreted its mandate to regulate labour relations as equivalent to the promotion of unionization in the province.

Concerns over the discretionary power of Labour Relations Boards occurred because employers were convinced that Boards were biased in favour of unionization.16

15 AO, OPFGC, RG 3-24, Box 19; Toronto Board of Trade, Letter to Leslie Frost, 27 March 1950. 16 Gene Anne Smith, "Judicial Review of Saskatchewan Labour Relations Board Proceedings," Saskatchewan Law Review 39 (1975-1975), 3. According to Smith, every application for judicial review of SLRB decisions prior to 1956 contained a clause stating: "That the Labour Relations Board in purporting to exercise its jurisdiction was unfair and biased and did not in good faith exercise or attempt to exercise in a bona fide manner the jurisdiction conferred upon it by the Trade Union Act." -156-

Accusations of bias, however, were unfounded and rarely substantiated. Rather, accusations of bias were used by employers because of genuine fears that any body mandated to regulate collective bargaining inevitably eroded employer control in the workplace. According to this logic, the Labour Relations Board itself led to the natural extension of unions. In order to defeat the mandate of Boards, employers turned to the courts to withstand excessive discretionary power. These disputes began in

Saskatchewan, when the CCF government passed the most extensive Wagner reforms in the country. a. The Saskatchewan Experience

In Saskatchewan, the CCF formed the government in 1944 and subsequently altered the

Saskatchewan Trade Union Act (STUA). The STUA gave workers broad legal protection to form unions. Borrowing most of its principles directly from the NLRA in the United

States, the STUA was designed to achieve and promote collective bargaining in all sectors. The CCF's labour legislation was the most far-reaching legislation in Canada because it sought to limit the ability of employers to resist unionization. The Act attempted to do this by strengthening the powers of Saskatchewan Labour Relations

Board (SLRB) and to insulate the Board from judicial oversight. The latter was deemed essential to keep collective bargaining policy open and accessible to Saskatchewan trade

17 George Cadbury, "Planning in Saskatchewan," in Laurier LaPierre, Jack McLeod, Charles Taylor, and Walter Young eds., Essays on the Left: Essays in Honour of T.C. Douglas (Toronto & Montreal: McClelland & Stewart, 1971), 51-2. Saskatchewan was the first North American jurisdiction to extend collective bargaining rights to its public sector workers. -157-

unions. Despite these restrictions, employers in Saskatchewan were eager to limit the

discretionary power in court. Interestingly, the Saskatchewan courts proved eager to hear

these cases, laying the groundwork for employers across the country to challenge post­

war labour laws.

The Act imposed mandatory union security provisions (ranging from the closed

shop to the Rand formula) and directed the SLRB to impose a collective agreement during first contract negotiations if one had not been reached within the first year of bargaining.19 The STUA also, for the first time, listed employers discriminating against employees who had supported an organization drive as an unfair practice. This made it more difficult for employers to intimidate their workers during unionization campaigns.

Similarly, the Act made spying or blacklisting pro-union employees illegal, and employers were forbidden to threaten to close a plant during a certification drive. In order to obtain certification, unions were required to demonstrate through certification cards that it had obtained 25 per cent support in the bargaining unit before holding a certification vote. Additionally, the Board's remedial powers allowed it to certify a union if it determined through card-checks that the majority of employees supported a union.

The Act also did not require collective agreements to contain a no-strike pledge during the life of a collective agreement, however unions were forbidden to strike while an application was pending before the SLRB.20

Adams, Canadian Labour Law, 83. 19 Adams, Canadian Labour Law, 83-5. 20 Unions were also not able to coerce employees into joining (or not joining) labour organizations. - 158 -

These administrative flexibilities distinguished the SLRB from other

administrative bodies in Canada. Unlike in Ontario, the government gave the SLRB the

power to prosecute unfair labour practices committed by employers. The government

also gave the SLRB the freedom to determine appropriate bargaining units, often resulting in the Board seeking the advice of unions (as opposed to just employers) on the size and shape of appropriate bargaining units. In reviewing certifications, the Board was able to terminate the union at the request of employees, but this only occurred after one year. Even then, the Board reviewed the circumstances under which a union attained a first collective agreement. If the SLRB determined that the union had taken "reasonable" steps to enter into a first agreement, then the Board denied de-certification requests. In these cases, the legislation assumed that the breakdown of negotiations in first contract disputes was precipitated by employer hostility and thus the Board was able to counter employer attempts to stall meaningful collective bargaining.

The SLRA also outlined strict procedures surrounding the question of unfair labour practices. For instance, the SLRA treated an employer bargaining with a trade union that had not been certified by the Board as an unfair labour practice. This provision virtually outlawed company unions in the province. What is more, the Board's mandamus powers gave it the ability to order offending parties to refrain from violating the Act. The Board's mandamus powers were broad enough that it was able to remedy any violation through the reinstatement of employees or awarding damages. In addition

21 Adams, Canadian Labour Law, 85. In extraordinary circumstances, the Board also had the discretion to order both remedies. -159 -

to these functions, the government empowered the SLRB to eliminate the delays

associated with conciliation and mandatory arbitration procedures enacted by Mackenzie

King. Rather than imposing a mechanical grievance procedure, the STUA allowed employees to apply to the Board for a remedy if the employer refused to enforce the provisions in the agreement.

The SLRB's mandate was immediately challenged by Saskatchewan employers.

At the centre of these challenges were judicial challenges to the Board's discretion to determine the definition of "employees" for the purposes of collective bargaining and a constitutional challenge to the Board itself. In these conflicts, employers argued that the Board's discretionary powers eroded the rights of individuals because of its biases in favour of organized labour. Given this structural bias, employers reasoned that denial of the right of appeal was a violation of individual rights. In Bruton v. Regina City

Policemen's Assn., Local No. 155, the Court agreed. In this case, the Court ruled that the SLRB performed a quasi-judicial function and was thus subject to judicial review by way of certiorari. The case itself arose out of a complaint by the chief of police (Bruton) who sought to overturn a Board order determining that his refusal to negotiate with a police union constituted an unfair labour practice. In sidestepping the STUA's privative

W.B. Cunningham, "Labour Relations Boards and the Courts," The Canadian Journal of Economics and Political Science 30 (1964), 499-500. 23 Bruton v. Regina City Policemen's Association, Local No. 155, [1945] 3 D.L.R. 437. The Court found that the Board was performing quasi-judicial functions (as opposed to administrative ones). The Court therefore determined that the Board was bound to follow the rules applied in common law courts. -160-

clause forbidding certiorari review, the Court overturned the SLRB's ruling because it

reasoned that the Board did not have jurisdiction in this area. 4

In relying on a narrow interpretation of jurisdiction, the Court maintained that the

chief of police was "neither an employer nor an employer's agent within the meaning of

the Trade Union Act and that it was essential to the jurisdiction of the Board that he be

either one or the other."25 The Court came to this conclusion despite the evidence that

Bruton had the authority to discipline and fire workers, and that he had acted as a

bargaining agent for the city. The Court also refused to defer to the Board's expertise on

determining the nature of "employees" and "employers" which was emphasized by the

legislature in the creation of the STUA.26 Despite the legislative attempt to limit judicial

involvement, the Court's interpretation narrowed the Board's ability to rule on unfair

labour practices. In short, the dismissal of the Board's expertise by way of certiorari

extended the ability of employers to limit Board discretionary powers through judicial review.

The second challenge to the Saskatchewan Board came from a small industrial employer in the centre of Saskatoon's small manufacturing district. Early in 1947, the

USWA launched an organizing drive at the John East Iron Works Ltd.. In an attempt to

The Court took the position that it was impossible for a legislative statute to abolish the writ of certiorari on grounds of jurisdiction. It reasoned that an inferior tribunal "has not brought itself within the terms of the statute taking away certiorari; even express words do not take away the supervising powers of a superior Court when there is want of jurisdiction in the inferior court." See R. v. Collier [1917] 35 D.L.R. 25 As it had ruled that the decision was outside of the Board's jurisdiction, the Court refused to answer the constitutional question raised by Bruton's lawyers. 26 Bruton v. Regina City Policemen's Association, Local No. 155, para. 35. On the question of the Board's expertise, see Richard J. Charney and Thomas E.F. Brady, Judicial Review in Labour Law, 3-4. -161-

break the organizing campaign, the company fired six lead organizers. At the hearing before the SLRB on 8 July 1947, the Board ruled that the actions of the company were in violation of the STUA and required the employer to reinstate the fired workers.28 As part of the decision, the Board ordered John East Iron Works to pay $1004 in back wages.

When the company failed to oblige, a lathe was seized on a Board order and sold at auction to compensate the workers.29 Rather than pay the back wages or reinstate the union organizers, lawyers from the company filed a notice of motion in the Court of

Appeal for Saskatchewan seeking to overturn the SLRB's decision because the Board was ultra vires (outside the constitutional jurisdiction) of the Legislature of

Saskatchewan.30

Before the Saskatchewan Court of Appeal, the company argued that the SLRB constituted a superior court because the privative clause denied the right of appeal.

Given this fact, company lawyers successfully argued that the Board performed judicial functions and was thus unconstitutional under S. 96 of the British North America Act. On this basis, the Court of Appeal reversed the decision of the Board. As the Board punished employers for unfair labour practices through the writ of mandamus, the Court reasoned that it was performing judicial functions. As the judicial function had to be protected by

Millar, Shapes of Power, 373. Millar notes that the general manager of the John East Iron was the chair of the Prairie CMA. Under the auspices of that organization, John East Iron's challenge was an attempt by organized business in Saskatchewan to use the courts in order to challenge the entire structure of post-war collective bargaining in the province. 28 One case was withdrawn before the Board made its ruling. 29 "Rules Out of Order That Directed Firm to Reinstate Men," Globe and Mail, 16 December 1947. 30 Saskatchewan (Labour Relations Board) v. John East Iron Works Ltd. 1948] J.C.J. No. 5 [1949] A.C. 134 p [1948] 2 W.W.R. 1055 [1948] 4 D.L.R. 673. -162-

T 1 the right of appeal, the court took the position that employers were unfairly treated.

The Court also accused the SLRB of bias, stating that it was "in league with the unions and that it was up to the Courts to ensure that employers got a fair shake before the

Board."32 This decision was later adopted by the Canadian Supreme Court on 15

December 1947.

On appeal, the Judicial Committee of the Privy Council (JCPC) in Britain overturned the Saskatchewan Court and ruled that the STUA and the SLRB were constitutional. The JCPC reasoned that the Board did not perform judicial functions but rather was created to administer government policy. In other words, the Board's primary purpose "is the means by which labour practices regarded as unfair are frustrated and the policy of collective bargaining as a road to industrial peace is secured."33 While the JCPC admitted that the Board did perform "quasi" judicial functions, it suggested that the

Board's tripartite nature (not staffed from the Bar of Saskatchewan) made it institutionally distinct from the courts. It concluded that the jurisdiction exercised by the

31 The Saskatchewan court's hostility to the Board was surprisingly open. In reviewing the Board's decision to certify a union at Simpson's department store, Justice J.A. Gordon said that he was shocked how "heavily loaded [the Act] is in favour of labour...[No] wonder capital does not rush into this province." Quoted in Roger Carter, "The Privative Clause in Canadian Administrative Law, 1944-1985: A Doctrinal Examination," Canadian Bar Review 64 (1986), 242. 32 Smith, "Judicial Review," 4. In Re Sisters of Charity, Providence Hospital and Labour Relations Board et. al. [1951] D.L.R. 735., the Court stated that the Board was performing its function in a manner that favoured labour at the expense of the people of Saskatchewan. It also argued that the Board was "not only intended to expeditiously determine legal disputes but, by full inquiry into the facts, for the discovery of which extensive powers have been conferred upon the Board, it should bring them to an amicable settlement." In this case, three women organizers from the Textile Workers Union (CCL) were dismissed from their jobs at a private charitable hospital because of alleged union activity. In the course of its investigation, the Board ruled that this was a violation of the Act and ordered the women reinstated. The hospital appealed the decision to the court on the grounds that the Board lacked jurisdiction and held an improper hearing into the affairs at the hospital. The hospital also alleged that the conduct of the Board demonstrated bias in favour of the Union. The court concluded that the Board had acted improperly and overturned the order. 33 Saskatchewan (Labour Relations Board) v. John East Iron Works Ltd., para. 27. -163-

Board was not such that it constituted a court within S. 96 of the BNA Act and thus reversed the decisions of the lower courts. Perhaps in answer to employer demands to overturn the limitations of the privative clauses, however, the JCPC also assured dissenters that,

... [The Board's] immunity from certiorari or other proceedings [should not] be pressed too far. It does not fall to their Lordships upon the present appeal to determine the scope of that provision but it seems clear that it would not avail the tribunal if it purported to exercise a jurisdiction wider than that specifically entrusted to it by the Act.34

With that broad stroke, the Court ruled that the SLRB—while constitutional—-was still subjected to close judicial scrutiny regarding its legislative functions.35

In all of these disputes, employers were able to defeat trade unions by challenging the STUA, the SLRB and individuals unions in court. By the early 1950s, it was clear to employers that judges were generally using their legal powers to give employers recourse to what was seen as pro-labour legislation. In these cases, judges interpreted their role as placing a check on significant SLRB discretionary power. The conservative leanings of

34 Ibid.,para. 30. 35 B.L. Strayer, "The Concept of "Jurisdiction in Review of Labour Relations Board Decisions," Saskatchewan Law Review 28 (1963), 162. The ambiguity of "jurisdiction" concerning labour board's decisions has been riddled with inconsistencies. Writing in support of judicial review on grounds of jurisdiction, B.L. Strayer suggested that it must cover (1) the amenability to the power of the tribunal of the person or thing against whom or which the tribunal is asked to make an order; and (2) the power of the tribunal to give the remedy requested with respect to this type of subject matter." Yet, he is then forced to concede that "all other matters, such as the status of the plaintiff of applicant or claimant, the propriety of the form in which the claim is brought, or the substantive merits of the claim, should be regarded as forming part of the issue which has been committed to the tribunal to decided." Laskin would later admit that the concept of "jurisdiction" became "the convenient umbrella under which the provincial courts have chosen to justify their continual assertions of a reviewing power." See Bora Laskin, "Certiorari to Labour Boards: The Apparent Futility of Privative Clauses," Canadian Bar Review 30 (1952), 990. - 164 -

the judiciary limited the power of the Board, and by extension, limited trade union rights in the province. b. The Ontario Experience

The jurisdictional question concerning the capacity of labour boards to rule on unfair labour practices was also arising in other provinces. In British Columbia, New

Brunswick, Quebec and in Prince Edward Island, provincial courts were asked by employers to limit Board discretionary powers. In these cases, employer challenges were being waged on issues of bias, procedure and on questions of natural justice.

Although most legal commentators have ignored the fact that all of these cases arose from employers, it is clear that employers recognized that the courts were an important tool to subvert labour relations boards.

Employer hostility to administrative discretionary power was especially rancorous in the formative period of the OLRB in Ontario. In a series of judicial appeals, employers challenged the OLRB's capacity to issue certification orders. In the early

1950s, these questions were centred on common law definitions of natural justice.

Within common law courts, rules of natural justice were designed to ensure procedural

British Columbia (Labour Relations Board) v. Canada Safeway Ltd. [1953] 3 D.L.R. 641. In Canada Safeway, the Court ruled that the Board's decision that clerical employees were not employed in a confidential manner was upheld. As the employer had challenged the Board's jurisdiction in this case, the Court did not address the privative clause. A similar decision was reached by the Supreme Court in British Columbia Hotel Employees Union Local 260 v. British Columbia Hotels Association [1955] 2 D.L.R. 1. Here the Court also agreed with the administration of BC's conciliation legislation. In this case, the Court agreed with the decision of the Board and thus found that it had jurisdiction to rule on an agreement that favoured the union. 37 R. v New Brunswick (Labour Relations Board) [1952] 2 D.L.R. 621. 38 Jim Patrick Ltd. v. United Stone & Allied Products Workers of America, Local No. 189 [1959] 21 D.L.R. 189. 39 Miron et Freres Ltee. v. Quebec (Labour Relations Board) [1956] Que. S.C. 389. -165-

faimess in adjudicating disputes. How these rules applied to administrative boards was, however, open to interpretation. For instance, under rules of natural justice, any participant in a case has the right to examine the evidence presented. In labour relations, however, Boards' denied the right of employers to examine certification cards or question signatories for fear of backlash. Under these circumstances, is it possible for the Board to follow the rules of natural justice? Given the ambiguity on this question, it did not take long for company lawyers to challenge the Board's certification procedure. This question came to the forefront in early 1950 in a certification battle between newspaper baron

George C. McCullagh and the American Newspaper Guild Local 87, (TNG) at the

Toronto Globe and Mail.

At the heart of this struggle was the Globe and Mail's confrontational chief operating officer McCullagh, who owned and operated the paper between 1936 and 1952.

The circumstances in which he came to own the newspaper are important. At age 31, he bought stock in the Wright-Hargreaves gold mine in Kirkland Lake, owned principally by

William H. Wright. At McCullagh's insistence, Wright bought the Toronto Globe and the Mail and Empire and merged them to create the Toronto Globe and Mail in 1936.

McCullagh convinced Wright to purchase the newspapers because he felt it was in the nation's best interest to make "the mining industries better known."41 McCullagh's

As the JCPC had confirmed in John East Iron Workers that Boards were performing quasi-judicial functions, it was almost inevitable that a company lawyer would challenge Board procedure through a defence of common law traditions of natural justice See also, Alliance des Professeurs Catholiques de Montreal v. Quebec (Labour Relations Board), [1953] 4 D.L.R. 161 41 Laurel Sefton MacDowell, 'Remember Kirkland Lake' The Gold Miners' Strike of 1941-42 (Toronto: University of Toronto Press, 1983), 40-1; Brian J. Young, "C. George McCullagh and the Leadership League," Canadian Historical Review 47 (1966), 202-4. -166-

interest in the newspaper business was fiercely political. In the 1930s, he used it to

support provincial Liberal leader Mitchell Hepburn's crusade against the CIO unions.

McCullagh interpreted the movement for industrial unionism as a Communist threat to

law and order and thus used the Globe and Mail to lobby for restrictive legislation against

the CIO.42 According to Laurel Sefton MacDowell, McCullagh's support was tied to the mining industry, and played an important role in the defeat of the Mine Mill and Smelter

Workers at Kirkland Lake in 1941 and 1942.43

When Hepburn reversed his hostility to unionism in the early 1940s, McCullagh

altered his allegiance and threw his paper's support behind his old friend at the Ontario

Securities Commission, future Conservative leader George Drew. After the 1937 Oshawa

strike, both men believed that the provincial Conservative and Liberal parties should form a "united front" against the menaces of CIO-CCL unionism, the CCF, and communism.44 In 1939, McCullagh advocated for a new form of politics to unite the pro- business factions within the Liberal and Conservative parties. He sought to do away with the lethargic, corrupt political factions that he interpreted as destroying Canada's national fabric.45 In order to save Canada from these radical factions, McCullagh proposed the formation of a "Leadership League" in order to do away with provincial governments and form a national, non-partisan movement consisting of business leaders and political elites. McCullagh anticipated that the "Leadership League" would end the infighting

42 Robert Fulford, "The dazzling life and sudden death of a press baron," Globe and Mail, 15 April 1998. 43 Sefton MacDowell, 'Remember Kirkland Lake,' 40-50. 44 Roger Graham, Old Man Ontario, 120-5. 45 Young, "C. George McCullagh and the Leadership League," 205-12. According to Young, McCullagh's belief in the Leadership League was fuelled by his desire to address the unemployment issues in the 1930s in order to defeat Communist radicalism. -167-

between pro-business Liberals and Conservatives, solve the economic problems of the

1930s and undermine the corrupt Liberal government of Mackenzie King.

McCullagh believed that the "Leadership League" would form its base in Ontario.

He began by insisting that Hepburn dismiss cabinet ministers sympathetic to labour

(including Labour Minister ) while uniting the Liberal party with pro- business Conservatives such as Drew. Although this proposal had some purchase with

Hepburn, (Hepburn, for example, offered to dissolve the Liberal government and give the premiership to Conservative leader Earl Rowe in a new union government) it was rebuffed by Rowe because of his loyalties to the Conservative party. While Drew briefly left the Conservative party over the issue, he did not end his relationship with

McCullagh.47 Although the dream of a pro-business "Leadership League" did not come to fruition, McCullagh's close ties with Drew led him to throw the Globe and Mail behind the Progressive Conservatives in the 1943 election. This support positioned the

Globe and Mail solidly behind the Ontario Conservative Party. In the events leading up to the confrontation with the Toronto Newspaper Guild, Local 87 the relationship between McCullough and the ruling party in Queen's Park cannot be underestimated.

When questions arose over the certification of Local 87, Frost confessed to Jacob

Finkelman that the government had to tread carefully on the issue because "he needed the support of the Globe and Mail in the election."

If anything, the proposal for a union government strengthened the relationship between Drew and McCullagh. When McCullagh committed suicide in 1952, Drew married his widow. 48 NAC, FP, MG 31, E-27, Vol.8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, May 1971,9-11. -168-

The dispute began in June 1950, when the Guild applied to the OLRB for certification at the Globe and Mail's circulation department {Globe Printing). The union was active in Ontario since the late nineteenth century, but gained a footing in 1936 when a charter was issued by the International Union in Toronto. By 1937, the Toronto local was active in the campaign for a Canadian Wagner Act.49 The Guild's first collective agreement was signed with the Toronto Daily Star, though this was only accomplished against the opposition of the Star's management.50 Further drives were waged at the

Globe and Mail, The Toronto Telegram, Canada Press, the Canadian Broadcasting

Company (CBC) and various other news outlets during the 1940s and early 1950s.51 The union was an AFL-TLC affiliate, but its local leadership had known sympathies to the

Communist party.52 Certainly, the radical nature of the union's leadership put it at odds with the Globe and Mail's management.

Thomas Fisher Rare Book Archive, University of Toronto (hereafter TFRB A), Toronto Newspaper Guild Alphabetical Files (hereafter TNPAF), Box 9, File History Guild, Summary History of American Newspaper Guild Activities in Canada, 13 July 1956. 50 In February of 1941, the Star management gave 50 raises to its workers and implemented a five-day workweek with the company union. The Star also fired several leading Guild organizers. According to the Guild, the drive at the Star was also weakened by the leadership in the CCL who were advocating labour peace during the early stages of the war. The drive was broken in March of that year. After a change in Star management and a new labour code, the Guild launched a new drive in 1948. After six months, the Guild was certified through card check certification in November. 51 TFRBA, TNPAF, Box 9, File History Guild, Summary History of American Newspaper Guild Activities in Canada, 13 July 1956. By 1956, the Guild represented over 25,000 newspaperwomen and men in 100 cities. The union had contracts covering 177 daily and Sunday newspapers for general circulation, 11 wire services and 45 news, editorial, business, circulation, maintenance, promotion, and advertising departments. The International Union was not a radical union and was vocal in its stance that "no Guildsman was guilty of violating free speech as no Guildsman in the United States has been so much as accused of giving his copy a pro-labour slant because of membership in the union." 52 Irving Abella, Nationalism, Communism and Canadian Labour: The CIO, the Communist Party and the Canadian Congress of Labour, 1935-1956 (Toronto: University of Toronto Press, 1973), 174. 53 Millar, Shapes of Power, 385. - 169-

At the certification hearings in July 1950, the union presented 58 out of 95 cards, which it claimed qualified it to be the bargaining agent for Globe employees. Globe

Printing contested the accuracy of the cards and demanded the right to cross-examine the signatories. The Globe's lawyers reasoned that the right to cross-examine witnesses (as in court) was a necessary component of any hearing process, which included questions of certification. The Globe also demanded the right to examine the certification cards in order to compare the names with a petition showing that 20 workers had withdrawn their support for the union. In order to determine the true wishers of the employees the company requested the Board order a vote by secret ballot.

On 20 July 1950, the Board ruled that employer petitions in certification hearings did not represent the true wishes of employees. The OLRB maintained that petitions were unreliable as they were used to intimidate workers into opposing the union. The Board also ruled that there was no "natural" right to cross-examination during certification hearings. The Board reasoned that certification cards were confidential and that disclosure of this information gave employers the ability to single out and blacklist union supporters. Using this rationale, the Board refused to remedy the situation through a vote

(as was within its remedial powers) because it would delay the process and increase the likelihood of employer discrimination. After coming to this conclusion, the Board certified the union at Globe Printing. -170-

The Globe did not accept the legitimacy of the Board to rule in this matter and refused to accept the decision.54 The company appealed the decision under the common law writ of certiorari because it claimed that the Board had acted outside its jurisdiction and violated the company's right of natural justice.55 In a public letter to the OLRB— reprinted in the Globe and Mail on 9 August 1950—the company maintained that it opposed the Board's decision to certify the Guild because it did not represent the true wishes of its employees.56 Pointing to its own petition, the Globe insisted that 20 workers had withdrawn their support from the union. As the origin of the petition was challenged by the union, the company argued that the only way to determine the true wishes of the workers was to cross-examine witnesses before the Board. Cross- examination would allow the company to "obtain information from its employees for the purpose of establishing by affidavit evidence or otherwise that several [employees] resigned from membership in the Guild." Finally, the Globe declared that the OLRB was structurally biased in favour of organized labour and thus incapable of rendering an impartial verdict.

54 "Jolliffe Claims Publisher Guilty of Union Busting," Globe and Mail, 7 April 1950. CCF Leader E.B. Jolliffe argued that McCullagh's refusal to accept the legitimacy of the Board's decision demonstrated that his approach to unions was "beneath contempt." 55 Jan K. Wanczycki, Judicial Review of Decisions of Labour Relations Boards (Ottawa: Canada Department of Labour, 1969), 27.Traditionally, the principle of natural justice requires that a judicial body: 1) to hear the parties involved {audi alteram partem); 2) give the parties a chance to present their points of view and to answer charges, and; 3) act in good faith and without bias or fraud. 56 "Globe Asks Rehearing, Holds Minority in Guild," Globe and Mail, 9 August 1950. -171-

In seeking redress in the court, the Globe made a conscious decision to test the privative clause.57 The Globe's position was that the right of appeal was a necessary right in a liberal democracy. Using forceful rhetoric, they told the public,

.. .that the issue at stake was the right of an independent agency of the government to act in a manner injurious to the civil liberties of Canadian citizens without their having redress or even the power to protest and put themselves on record. That such things might happen in a democratic society is a serious matter.58

The Globe emphasized that post-war labour regulation did not override the individual rights of corporations.59 This argument was drawn from the British common law tradition that granted individual rights to corporations in order to limit the liability of investors.

To be sure, the defence of common law rights made for good public relations, as the paper never lost an opportunity to defend its "fight for democracy and natural justice." Beyond the rhetoric, the Globe was also able to create an alliance with organized business throughout Ontario, specifically the Toronto Board of Trade, the

Ontario CMA and the local Chambers of Commerce. Motivated by the Taft Hartley reforms in the United States, these groups were engaged in a campaign to eliminate the

Re Toronto Newspaper Guild, Local 87, American Newspaper Guild and Globe Printing Company [1951] O.R. 435, [1951] 3 D.L.R. 162; [1952] O.R. 345 (C.A.), [1952] 2 D.L.R. 302; [1953] 2 S.C.R. 18, [1953] 3 D.L.R. 561. 58 Editorial, "A Basic Right Restored," Globe and Mail, 18 June 1953. 59 Harry Glasbeek, Wealth By Stealth: Corporate Crime, Corporate Law, and the Perversion of Democracy (Toronto: Between the Lines Press, 2002), 9. Harry Glasbeek has observed that the law does not address the collective power of corporations as businesses who may employ hundreds of workers. Rather, the law treats "corporations as if they were real people. This gives corporations unexpected, indeed extraordinary, attributes." 60 Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (Toronto: Penguin, 2004), 5-9. - 172 -

OLRA's privative clause and establish the right to appeal Board decisions. Following the Globe, organized business was adamant that limits on the right to appeal "purports to preclude intervention of the courts in the case of excess of jurisdiction or misconduct by members of the Board."62 This argument suggests that organized business was concerned that the Board's discretionary powers undermined its ability to defeat union certification drives.

After a year of delay, on 1 June 1951, Justice George A. Gale of the Ontario

Superior Court reversed the decision of the OLRB. In his view, the Board's refusal to allow Globe lawyers to cross-examine witnesses or to scrutinize the certification cards was "tantamount to a denial of basic justice." As Gale considered the Board to be a quasi-judicial body, he reasoned that hearings had to be conducted in a fair and impartial manner. In coming to this conclusion, Gale referenced the Magna Carta claiming that the

Crown could "not deny or defer to any man either justice or right." Gale added that the common law dictates that "any act of a tribunal which disallows to any person who comes before it his privilege of justice is ultra vires of that tribunal."64 Gale added that if the principles of natural justice had been followed in this case, it was likely that,

...the Company might have been able to defeat the application had it been allowed to see the bundle of membership cards or other documents handed to the

61 Harry A. Millis and Emily Clark Brown, From the Wagner Act to Taft-Hartley, 403. According to Millis and Brown, Taft-Hartley was designed to alter the Board so it resembled, "a court, more even that the other regulatory agencies, with more of its rules and procedures specified, and some of its former practices banned. Thus, the NLRB was made the sole exception to the general rule established for federal agencies by the Administrative Procedure Act." 62 AO, OPFGC, RG 3-24, Box 19, Canadian Manufacturer's Association, Letter to Leslie Frost, 15 August 1950. 63 Re Toronto Newspaper Guild, Local 87, American Newspaper Guild and Globe Printing Company [1951] O.R. 435. - 173 -

Board by counsel for the Union. There is in evidence before me a statement to the effect that the Board has consistently ruled that employers are not entitled to examine membership cards filed by Unions upon applications for certification. Whatever might be said in favour of the Board's policy in that respect—if resort is to be had to the ruling, then full and fair opportunity ought always to be conferred upon the parties to the application other than the Union to challenge by cross- examination or otherwise the Union's assertion that it has as members in good standing a majority of the employees affected, for that is the most vital issue to be determined by the Board before it can certify the Union.

Gale, in effect, insinuated that the OLRB was biased in favour of trade unions. In order to address this problem, he reasoned that the rules of natural justice dictated that employers and trade unions be treated as equal individuals before the Board.

Before overruling the Board, Gale was obliged to defend his dismissal of the

OLRA's privative clause. In doing so, he relied on a very broad interpretation of legislative "jurisdiction" which reinterpreted the rules by which a court overturned the decisions of a lesser tribunal. He reasoned that no government institution had the jurisdiction to override natural justice nor could it deny the right of individuals to seek relief in the courts. In his concluding remarks, Gale went so far as to lament the fact that the privative clause existed in the first place. He stated:

It seems unfortunate that [the privative clause] was included in the Act, for the reason that it almost imputes doubt as to the Board's capacity to do what is right. Surely those who are entrusted with the powers produced by the Act are deserving of a greater measure of confidence. Moreover, I would think that the members of the Board would be the first to acknowledge that if a person would otherwise be entitled to one of the extraordinary remedies formerly granted by the prerogative writs, he should not be deprived of that redress merely because of the existence of the prohibitive section of the Act.66

1U1U. Ibid. -174-

Gale's rationale for dismissing the privative clause seems to reflect a general contempt for the OLRB's certification procedure and reflects in an institutional jealousy which was reciprocated by judges throughout the country. By setting aside the privative clause in this manner, Gale opened the door to a long struggle between employers and unions over the OLRB's ability to certify unions against the objections of employers. The decision also legitimized future attempts by employers to use the courts to break unionization drives when the OLRB exercised its discretionary powers.

Justice Gale's decision to overturn the certification of the Toronto Newspaper

Guild galvanized the Ontario labour movement. At the Ontario Federation of Labour

(OFL-CCL), the decision drew condemnation from President and UAW head George

Burt and his formal rival in the USWA and CCF MPP Charles Millard. Rank-and-file activists echoed this disapproval and filled local meeting halls in order to voice their displeasure.67 At the Ontario Provincial Federation of Labour (OPFL-TLC) President

A.F. MacArthur also spoke out against the decision. The OPFL-TLC interpreted the ruling as a direct assault on the right to collective bargaining in the province of Ontario.

In order to defend the institutional integrity of the Board, the OPFL passed a unanimous resolution calling on the province to defend its own legislation and appeal the decision.69

67 AO, OPFGC, RG 3-24, Box 19, OFL Confidential Letter to Leslie Frost, 27 July 1951. The OFL-CCL condemned Gale's ruling because it allowed the spirit and intent of the OLRA to be nullified "by parties who care nothing for the rights of the majority, although those rights are the very basis of our society...Immediate settlement of this issue is a matter of great importance to labour. Every anti-union employer in the Province is now circumventing the LRB procedure and encouraging withdrawals of membership from applicant unions." 68 Roger Graham, Old Man Ontario, 271. The President of the Toronto and District Labour Council, William Jenosves (and future Vice President of the CLC) was considered a Conservative in labour circles. 69 Pat McNenly, "200,000 Labor Men Warn Frost They'll Ignore Province Law," Toronto Daily Star, 16 July 1951. The TLC threatened that the boycott would destabilize the industrial relations system in Ontario. -175-

If the government refused to defend the OLRB, the OPFL vowed, "to operate outside of the legislation and utilize illegal strikes to gain concessions from employers."

Meanwhile, in a rare moment of unity, CCF leader E.B. Jolliffe, Liberal leader Walter

Thomson, and Labour Progressive Party critic (and former labour organizer) Joseph

Salsberg called on Attorney General to appeal the decision. The opposition parties interpreted the Gale decision as naively "remote from the realities of the employer-employee relationship and equally remote from the intentions of the legislatures."70

The opposition to Gale's decision rested on the notion that the OLRA and the

OLRB were being undermined by judges hostile to trade unions. Voicing his indignation over Gale's ruling, OLRB member Russell Harvey claimed that bona fide collective bargaining could only be successful if government institutions were capable of addressing the economic power of employers. In order to do this, the Board had to be able to expedite normal judicial procedures so that unions were capable of maintaining support in the workplace. Such activity also countered employer attempts to undermine unionization drives by intimidation or threats. For this to be successful, Harvey believed that the Board had to guard against,

.. .being drawn under the law. We will come under the law but never to the extent where we have our rights...diminished. The appeal to the court is troublesome. What happened was that the right to prohibit [from appealing] was itself appealed....Mr. Justice Gale's decision, if allowed to stand, opens the door for employers to destroy unions because we find in the courts it takes as much as two

"Should Appeal Gale ruling against labour board—Thomson," Toronto Daily Star, 5 June 1951. -176-

years before the final outcome, and in that time the union, faced with the mysterious and expensive court proceedings, disintegrates.7

One way that Board members challenged traditional employer powers was to use their discretion to reinterpret common law rights. For instance, Board members argued that the need for secrecy in the submission of union cards overrode the right of employers to examine the evidence, and was furthermore essential to preserving the legitimacy of the

OLRB.72 This flexibility, Harvey believed, was crucial to the cause of unionization and collective bargaining in the province.

Gale's decision challenged this interpretation. He suggested that the Board must accept the right of employers to challenge certification requirements in court. In many ways—as the Toronto Daily Star's cartoonist noted in figure 4.1—Gale's decision muzzled the will of the legislature that had given the OLRB powers to certify trade unions in the province.73

71 "Take Plea to Cabinet: Unions to Defy Labor Act Unless Court Appeals Barred, Legal Delay Under Fire at Conference," Globe and Mail, 15 July 1951. 72 Ibid. Harvey stated that members of the Board "have respect for essential justice... but [labour law] is a different idea of law, therefore requiring a different concept of essential justice... Mr. Justice Gale applied the age-old concept of law to the Board. But they are not the concepts that have been recognized by the Ontario legislation to be the concepts of labor law...In the field of labour law all the Board can do is receive applications, examine evidence, and certify. All the union got from the Board is the right to negotiate. Why should all the profound weight of a court procedure be imposed on a practical problem of that type?" 73 Laskin, "Certiorari to Labour Boards," 991-1000. Laskin concluded that "...we must hold the government and the legislature to the objective manifestation of their policies. If we are to have judicial review, let it be as an open avowal of its desirability. By circumventing the privative clause, courts needlessly and gratuitously involve themselves in issues of policy...[the] evasion of privative clauses throws specious interpretation and unsupported assumptions is a trespass on the policy functions of another agency..." -177-

Figure 4.1: The Toronto Daily Star "The Basic Issue"

THE BASIC ISSUE

When Gale overturned the certification of the Newspaper Guild, the raison d'etre of the

OLRA and the discretionary power of the OLRB were left open to interpretation.

Faced with an ambiguous future, the TLC and CCL orchestrated a letter-writing campaign to defend the OLRA that culminated in a protest at Queen's Park. Meanwhile, employers and conservative legal purists defended Gale's interpretation of natural justice.75 As this was the first major challenge to the 1950 OLRA, the government's response to the decision was crucial. If the government sided with Gale, an important component of the post-war collective bargaining framework was in jeopardy. Moreover, if Gale's decision went unchallenged the government knew that the unions might support their demands through strikes.

Editorial, "The Basic Issue," Toronto Daily Star, 11 June 1951. 75 "Decision Raps Board Methods," Toronto Daily Star, 2 June 1951. Former member of the Wartime Labour Relations Board and Liberal member of federal parliament Charles .P. McTague spoke favourably of Gale's decision, describing it as a legitimate review of Board activity. - 178 -

Frost met with a delegation from the OFL-CCL in order to address labour's concerns. When the labour representatives demanded that the Board be protected from further judicial intervention, he berated the OFL for constructing a list of demands when they "were of a different political stripe than himself."76 In refusing the OFL's proposals to protect the Board, Frost gambled that the unions were not willing to risk losing their freedoms by instigating a series of wildcat strikes. He then repudiated his own privative clause and claimed that it was "unthinkable that the decision of a Board, holding arbitrary

77 powers, should be un-reviewable if it had departed from the fundamentals of justice."

Later, in a province-wide address Frost clarified the government's position stating that Justice Gale's decision admirably balanced the powers of the legislature with the principle of natural justice.78 He also declared that it was essential to protect the rights of individuals from the arbitrary power of government agencies. Frost assured the public that he, ...of course, recognized some very real and practical difficulties in the situation. While above everything else not wanting in all our Boards or Commissions to deny natural justice or a fair hearing one could not think that this need be the case in following out the general law stated in the Gale judgment. If care is always taken to give a fair trial and a fair hearing of issues before our Boards then, of course, there is no possibility of this. If it appears in the future that our desire to protect individuals and to give full justice is being used for the purpose of abuse and delay then the Legislature in its wisdom will have to intervene, but in intervening we should always be careful to retain as our primary objective the fundamentals upon which our democratic way of life has been founded.7

"Unthinkable: No Board Rulings Beyond Review, Frost Tells Labor," Globe and Mail, 28 July 1951. "Ibid. 78 Graham, Old Man Ontario, 270-1. Graham notes that Frost chose to make a public address because he was concerned that Daley or Porter—both of whom were sympathetic to the position of labour— "might make a more controversial utterance than was desirable." 79 AO, OPFGC, RG 3-24, Box 19, Statement of Hon. Leslie Frost, Q.C., On the Gale Judgment, 18 June 1951. - 179 -

In stressing his admiration for Gale's defence of individual rights, Frost effectively

adopted the position of the Globe and Mail^ Given the endorsement of the premier, the

paper applauded the victory, stressing that democratic rights had been restored in Ontario.

The Globe also chastised the OPFL-TLC's resolution calling on trade unionists to strike

illegally. As the TLC and CCL had both been advocating for the adoption of a provincial

human rights bill, the Globe accused the labour movement of hypocrisy, as in figure

4.2.81

Figure 4.2: The Globe & Mail "It's a One-Way Street for Some People."82

80 NAC, FP, MG 31, E-27, Vol.8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, May 1971,9-11. 81 Labour's demands were modelled on the United Nations Universal Declaration of Human Rights and the International Labour Organization's passage of the Freedom of Association and Protection of the Right to Organise Convention, 1948 International Labour Organization, Resolution C87 Convention concerning Freedom of Association and Protection of the Right to Organise, Thirty-First Session of the ILO, San Francisco 17 June, 1948. 82 Editorial, "It's a One-Way Street for Some People," Globe and Mail, 21 June 1951. -180-

Frost's endorsement of the Gale decision raised concerns for OLRB chair P.M

Draper. In a memo to Frost, Draper reminded the premier that the OLRA was designed to

"remove the question of union recognition from the arena of industrial conflict by providing for the certification of a trade union which enjoys the support of a majority of employees in a group designated by the Board."83 Given the threat of further employer litigation, Draper acknowledged that the Board now had to make additional efforts to build the "confidence of management," and stressed that "the importance of this confidence cannot be overemphasized."84 Draper also insisted that the Board had done an excellent job at limiting recognition strikes in the province. He concluded by underscoring his concern that labour peace was in jeopardy if courts continued to intervene in the affairs of the OLRB.

Notwithstanding Draper's concerns, the provincial government did not intervene directly in the appeals to the Gale decision. Although there were rumours that the

Attorney General's office wanted to test the privative clause, the provincial cabinet

Of decided to say nothing in defence of the Board. Given this neutrality, the Newspaper

Guild and the OLRB were the only groups defending the OLRA in court. In taking an advisory role, Jacob Finkelman warned OLRB lawyer E.H. Silk and TNG lawyer J.H.

Osier not to rest their case squarely on the privative clause because he felt that the courts

83 AO, OPFGC, RG 3-24, Box 19, P.M. Draper, Memorandum to the Honourable Leslie Frost, Prime Minister of Ontario, 3 July 1951., 1-3. 84 Ibid. 85 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, 19 May 1972, 9-10. - 181 -

would be hostile to this argument. He also felt that the Board should present an

affidavit explaining OLRB procedure and let Globe Printing defend the use of petitions

in a certification hearing. Under pressure from the Attorney General's office, however,

Board counsel chose to centre their arguments on the strength of the privative clause.

87

On appeal, the Supreme Court of Canada (SCC) upheld Gale's decision. The

court ruled that the Board's decision to ignore the evidence put forward by Globe

Printing violated the principles of natural justice. The SCC reasoned that the Board

should have investigated the Globe''s petition and remedied the situation by ordering a

certification vote. As the Board had dismissed the claims of the employer and ruled

against its petition, the court concluded that it had operated outside of its jurisdiction and

thus the certification could not stand. Surprisingly, the court did not directly address the

privative clause and refused to outline the circumstances in which courts might intervene

in this area in the future.

Before the issue was dismissed, Justice Ivan Rand (along with Justice Cartwright)

wrote a dissenting opinion that deferred to Board jurisdiction. In Rand's view, the

legislature intended the Board to be able to certify unions in a broad and informal

manner. Rand also defended the OLRA's privative clause and suggested that the Board had fulfilled its statutory duty by holding a certification hearing.

86NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Oral History Project, 27 August 1972,8-10. "Toronto Newspaper Guild v. Globe Printing Co. [1953] 2 S.C.R. 561. 88 In the Act, the statute provided that "subject to the approval of the Lieutenant Governor in Council, the Board may make rules governing its procedure which are not inconsistent with the regulations...." Under rule 12 of the provincial regulations, the Board was required to, "after the expiration of the time for receiving the report or for filing reply, intervention or statement of objections, as the case may be, the - 182-

The real controversy lies in the determination of the boundaries of that contemplated scope; and when, as today, administrative bodies are regulating civil relations which formerly were not within the cognizance of law at all, by what rule or standard are we to test the jurisdictional validity of their decisions? Certainly where the Board is at liberty to inform itself of matters of fact by any means, as it is here, and where it can act if "satisfied" of certain things and where its findings are declared to be final and judicial review excluded, I doubt that the test can be anything less than this: is the action or decision within any rational compass that can be attributed to the statutory language? It is significant here that neither the statute nor the regulations make any reference to a hearing; that step, as has been seen, arises only by way of implication from procedural rules.

Rand's analysis acknowledged the Board's expertise in the area of trade union certification.90 Given its expertise, he believed that the Board was within its jurisdiction to determine the procedure surrounding trade union certification. Finally, Rand sought to preclude further judicial review in this area by suggesting that Parliament answer all questions pertaining to Board discretionary power.91

In spite of Rand's deference to the legislature, employer success in court further legitimized the use of judicial review to end labour disputes. Just as Gale was reaching his decision, for instance, new employer litigation concentrated on the OLRB's capacity to eliminate company unions. John Hollinger from Hollinger Bus Lines Ltd, for example, sought redress in the courts over an OLRB ruling that had overturned an agreement with

Registrar shall serve a notice of hearing in Form 17 upon each of the parties to the proceeding, not less than seven clear days from the date fixed in the notice." These were the only references in the statute, the regulations or the rules, Rand concluded, that made the requirement of a hearing mandatory. 89 Toronto Newspaper Guild v. Globe Printing Co. [1953] 2 S.C.R. 561. 90 Paul C. Weiler, "The 'Slippery Slope' of Judicial Intervention," 12-3. Weiler suggests that Rand's deference to Board arose because he had a "rather strong attitude in favour of the trade union movement." 91 Ibid. 92 Re The Ontario Labour Relations Board, Bradley et al. and Canadian General Electric Co. Ltd. [1957], O.R. 316-36. Future employer appeals challenged the Board's ability to determine who represented employees under the Act. The Ontario government amended the Act after this appeal giving the Board specific power to define whether an employee exercised managerial functions or was employed in a confidential capacity. See Bromke, The Labour Relations Board in Ontario, 47. -183-

a company union.93 At the original hearing, the Board found that the Amalgamated

Association of Street Electric Railway and Motorcoach Employees (OPFL-TLC) had reached the required certification levels under the OLRA. Given the Globe's success in court, Hollinger immediately sought an injunction challenging the Board's jurisdiction to decide questions of law and contract.94 In other words, Hollinger not only sought to restrain the Board from certifying the Railway union but also to prevent it from issuing any certification order against a company union. 5

At the hearing in the Ontario High Court on 27 June 1951, Justice Spence upheld the certification ruling, stating that the Board did have jurisdiction to certify the union at

Hollinger. He stressed that Hollinger's appeal was designed to delay due process and

"deleteriously affect the efficient management of labour relations in the Province."96

Spence also chastised the company for challenging the legitimacy of the Board through the issuance of an injunction. On this point, Spence maintained that Hollinger's actions constituted an "abuse of the process of the Court which the Court should prevent [and] is

07 akin to real injustice to the other litigant." In coming to this conclusion, Spence

93 In seeking relief in the courts, Hollinger obtained the services of well-known company lawyer and representative for the T. Eaton Company, Cliff Adams. Adams was chair of the Central Ontario Industrialists Relations Institute and a former secretary of the Ontario War Labour Board. 94 Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board [1951] 4 D.L.R. 47. 95 "Abuse Court Process By Labor Litigation Board Counsel Holds," Toronto Daily Star, 6 June 1951. According to Eric Silk, counsel for the OLRB, Hollinger's actions were nothing more than an "attempt to stifle the functioning of the board." 9 Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board [1951] 4 D.L.R. 47. 97 Ibid. - 184 -

suggested that Hollinger's actions demonstrated contempt for the OLRA. On these

no grounds, he refused to answer the question and rejected the injunction request.

Notwithstanding his public rebuke of Hollinger's actions, Spence upheld the consistency of Justice Gale's decision by inferring that the company would have been successful if it had requested a writ of certiorari or prohibition. Had it taken this approach, the question before the Court would have been a different one. Under those circumstances, the question would have been: did the Board exceed its jurisdiction? If the answer was yes, Spence reasoned, that the "question would afford complete relief to the respondent."99 By stressing this point, Spence indicated that the courts were willing to answer questions pertaining to administrative jurisdiction.

These two appeals were worrisome for trade unionists in Ontario. In commenting on employers' success in court, CCL Board member Dave Archer speculated that it would not be long before, "Ford and follow down the same line... [and] take its matter before the judiciary."100 Archer's comments reflected the unease amongst unionists that litigation benefited large employers and delayed the ability to organize in new sectors. The OFL (CCL) believed that when organizing drives were litigated in court "the real loser in this process is the union [because] it has been rendered almost dormant by the delay."101 Echoing these concerns, the Labour Relations committee at the

OFL warned that Hollinger 's challenge inspired the creation of "an alarming number of

98 Hollinger appealed the ruling and lost in the Ontario Court of Appeal. The Supreme Court of Canada refused to hear the case. 99 Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board [1951] 4 D.L.R. 47. 100 "Who Rules, Government or Judiciary? Member of Labor Board Asks," Toronto Daily Star, 8 June 1951. 101 Ontario Federation of Labour, "The Courts and Labour Relations," Bulletin 4 (March 1952), 1. -185-

employer dominated company unions and that this trend seems to be very much on the increase."102 The committee also expressed reservations about the influence of judicial review on the OLRB itself. As the OFL had always perceived the OLRB to be an institution of "human relations" it worried that further judicial intervention increased the likelihood of the Board becoming a court of legalized labour relations.

The OFL's concerns had merit. The decisions in the Globe and Hollinger cases resulted in a slow (but consistent) judicialization of the Board throughout the 1950s.

According to personnel at the Board, the government's refusal to defend the legislation in the Globe and Hollinger cases signalled that the Ministry of Labour lacked faith in its ability to adjudicate labour disputes. Given the lack of confidence and the Tories' decision to side with business in these disputes, Draper resigned as chair in 1952.

Daley, either unable to recognize or ambivalent to the discontent simmering below the surface, replaced Draper with Norris Davis, an employer representative on the Board.

Davis was an industrial relations manager at Campbell Soup Co. and had been a leading member of the Canadian Manufacturers' Association. Amidst a flurry of dissent, Norris was soon replaced by Jacob Finkelman, whom Frost literally begged to come back to the

Board in the autumn of 1953.104

Canada Department of Labour, "Eight Annual Convention of the Ontario Provincial Federation of Labour," The Labour Gazette, (1957), 406-07. 103 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, 19 May 1972, 7-8. 104 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, 19 May 1972, 7-8. According to Finkelman, the Globe case "worried him" and was a primary reason why he delayed his return to the Board after the resignation of Draper. According to Ontario Public Service Employee's Union (OPSEU) researcher Wayne Roberts, Finkelman was an ideal choice for OLRB chair because he understood how to work within a system dominated by Tory cabinet ministers, many of whom were hostile to unions and collective bargaining. See Roberts, Don't Call Me Servant, 67. -186-

According to Finkelman, the Globe and Hollinger decisions made judicial review on questions of natural justice "a practical certainty,"105 prompting him to reform Board procedures and safeguard its independence.106 These changes reflected three principles of natural justice: (i.) the opportunity to be heard in a fair and impartial hearing; (ii.) full disclosure to the parties of the facts and considerations upon which the Board bases its decisions; and (iii) the absence of bias.107 Under this rubric, the Board instituted new regulations surrounding pre-vote hearings, altered the voting procedure and rewrote rules surrounding inter-union conflict and raiding.108 The Board also introduced a policy requiring full disclosure of information pertaining to membership in a union. Finkelman defended this position, stating that "where there is an allegation of forgery or fraud, the

Board must look into the matter with the utmost diligence and it must make full inquiry into the matter even at the cost of revealing the union affiliation of employees."109 In the creation of new bargaining units, the policy on full disclosure gave added deference to employer submissions on job classifications and workplace organization. These changes limited the ability of trade unions to influence the size and structure of these units. In its entirety, the reforms implemented by Finkelman probably explain why there was a decline in overall appeals to the Ontario courts after 1953.

Charney and Brady, Judicial Review in Labour Law, 4-6. 106 Millar, "Shapes of Power," 383-6; Laskin, "Certiorari to Labour Boards," 986; "Take Plea to Cabinet: Unions to Defy Labor Act Unless Court Appeals Barred, Legal Delay Under Fire at Conference," Globe and Mail, 15 July 1951. Finkelman admitted that the politics surrounding the Globe case reflected one of the few instances in which the government attempted to intervene directly in Board procedure. 107 Jacob Finkelman, The Ontario Labour Relations Board and Natural Justice (Kingston: Industrial Relations Centre Queen's University, 1965), 2. 108 AO, PSCLR, RG 49-138, Box C 89, Testimony of Jacob Finkelman, 24 and 25 June 1957, 140. According to Finkelman, the OLRB took no notice of the union going into a plant except where an application was made under S. 6 which protected the independence of craft unions. 109 Finkelman, The Ontario Labour Relations Board and Natural Justice, 24-5. - 187-

By adopting new rules on disclosure, the Board changed how it interacted with unions and employers. Regardless of economic inequality, the rules of natural justice required that the OLRB recognize trade unions and employers as legal equals. In accepting these standards, Finkelman altered Board procedures to resemble, as closely as possible, a court of law.111 Before the Board ruled on applications dealing with certification, termination of bargaining rights or declarations of unlawful strikes and lockouts, it had to conduct a fair and impartial hearing. On the surface, the legalization of Board procedure sought to balance the legal rights of employers against the arbitrary powers of a government agency. Upon closer examination, however, these legal changes enhanced the powers of employers to delay unionization and to sustain control in the workplace. In response, some unions sought legal means to challenge employer controls and to solidify their positions in industries that continued to resist unionization. These challenges addressed questions of union security and were prominent in Ontario's mining industry from 1950 to 1955.

110 Adams, Canadian Labour Law, 225. Finkelman's position corresponds with George Adam's view that the comprehensive jurisdiction "permits a labour relations board to be seen in the labour relations community as a protector of the respective interests of both unions and management and, thereby, contributes to the moral authority of the tribunal and the acceptability of its legal policies." 111 Bromke, Labour Relations Board in Ontario, 74-5. Bromke observed that changes to Board procedure in this period had to "give full opportunity to the parties to any proceedings to present their evidence and make their submissions." - 188 -

Legalization and Union Security

Many unions believed that security provisions provided a legal means to counter the hostility to union certification from anti-union employers. Unions argued that security clauses allowed them to establish the financial stability necessary to bargain and strike successfully. Security clauses also reduced the probability that employers, once they had recognized a union, would then seek to undermine it surreptitiously after signing the first contract. Once union security was established, rank-and-file members understood that the union was a permanent fixture in the workplace. As unions were required to represent all workers in a bargaining unit and thus all workers benefited from collective bargaining, organized labour felt that every member should share in the cost of maintaining the local union. Most importantly, legalized security enabled the union to sit on an equal footing at the bargaining table. During the 1945 Ford strike, the UAW made the case that union security eliminated free riders within the union and strengthened its ability to bargain with the auto companies.112

By the early 1950s, union leaders were building on the UAW's argument, insisting that union security strengthened the democratic structure of trade unions. They were adamant that union security improved membership ties to the leadership and facilitated attracting new members to meetings and events. The argument surrounding

112 Sam Gindin, The Canadian Autoworkers: The Birth and Transformation of a Union (Toronto: Lorimer, 1995), 104. The UAW also conceded that union security assisted in eliminating militant outbursts by members. According to Gindin, this concession allowed Rand to premise his decision on the same principles as the American state's offer of union security during the war, which included a no-strike pledge. It went even further, however, by imposing greater responsibilities on the UAW leadership to oppose wildcat strikes and do all it could to end them. -189-

democratization was especially important for the CCL because it was seeking to eliminate Communist leaning unions."3 In one prominent example, the USWA (CCL) launched a series of raids against the Mine-Mill and Smelter Workers in northern

Ontario.114 By 1950, Steel had raided all eleven of the Timmins area mines and had launched additional raids on Mine-Mill locals in Kirkland Lake, Port Colborne and at

Inco's operation in Sudbury.115 Despite early successes, however, Steel's position in the industry was still tenuous following the failure of the raids in Sudbury and Port Colborne.

These setbacks reinforced Steel's desire to solidify its base in the industry. In order to accomplish this goal, the USWA pushed for union security amendments in the OLRA.

Interestingly, as the raids proved more successful, Mine-Mill also began to speak favourably of legally entrenched union security provisions. They took this position because they saw it as an effective tool to assist in their struggle against Steel.

113 AO, PSCLR, RG 49-138, Box C92, Submission of the USWA to the Select Committee on Labour Relations, 26 November 1957, 33; Wilfred List, "Political Influence Lags as Union Men Prosper," Globe and Mail, 7 November 1952. In their submission to the Select Committee, the Steelworkers referenced a study conducted in the United States that sought to determine the variables necessary for successful collective bargaining. The report suggested that successful collective bargaining centred around the existence of a strong (organizationally and financially) and democratic union. 114 Abella, Nationalism, Communism, and Canadian Labour, 109. For a short history of the OFL's role in this campaign, see OFL researcher Morden Lazarus, Years of Hard Labour (Toronto: OFL, 1974), 64. On the TLC purges see Whitaker and Marcuse, Cold War Canada, 313-63. 115 AO, Mike Solski Fonds (hereafter MSF), F-1280, Box 1, MU 8241, B253481, File 6, CCL Expulsion of Mine Mill CCL Trial Committee, Expulsion of Mine-Mill from the CCL, 11 January 1949; John Lang, "A Lion in a Den of Daniels: A History of the International Union of Mine, Mill, and Smelter Workers in Sudbury, Ontario, 1942-1962," M.A. thesis, University of Guelph, 1970, 147; Abella, Nationalism, Communism, and Canadian Labour, 103-8. In 1949, the CCL ordered Mine-Mill and the USWA out of Timmins while the CCL undertook the organizing of the Timmins-Porcupine gold mines. Mine-Mill refused to vacate. Millard suggested that Steel would vacate but later refused. By the end of 1949, the CCL expelled Mine Mill from the Congress for Communist activity and awarded the USWA exclusive control over mining workers in northern Ontario. -190-

Furthermore, as Steel's raids weakened the union, Mine Mill saw legalized security provisions as a means to ensure success at the bargaining table.

Employers' interpretation of union security clauses varied, but most argued that they were contrary to an individual's right to work. As the OLRA made it difficult for individuals to decertify unions, employers insisted that union security "is mainly security against the wishes of their own members."117 In referencing individual rights, the CMA made a distinction between leadership demands on the one hand and membership desires on the other. While the check-off might provide financial security for the leadership, the

CMA argued, it did not offer material gain for individual workers. Having given leaders the strength to oppose the membership, union security encouraged immoral behaviour

118 and increased the likelihood of illegal strikes. Based on these conclusions, some employers requested that the provincial government implement right-to-work laws in order to protect the democratic rights of individual workers.

116 AO, PSCLR, RG 49-138, Box C 90, Testimony of the International Union of Mine, Mill and Smelter Workers, 3 October, 1957, 1149. 117 AO, PSCLR, RG 49-138 Box C92, Testimony of the Canadian Manufacturers' Association (Ontario Division), 29 & 30 October 1957, 2142. CMA president H.J. Clawson argued that the complex dues deduction provisions posed problems for public policy and administration. He also stated that the voluntary no-strike pledge did not give enough legal protection to employers. In order to compensate for this problem, he advocated for the judicial enforcement of all contracts and that unions be made liable in a court of law. This, he maintained, would protect "employer security." Harold J. Clawson, "The Rand Formula: Subsidiary and Quasi-Legal Aspects," Canadian Bar Review 24 (1946), 879-80. 118 AO, PSCLR, RG 49-138, Box C 91, Brief of the Toronto Board of Trade, 15 September 1957, 21. The Toronto Board of Trade suggested, "the practical effect of a legally compulsory check-off is to violate individual rights-personal liberty." For an analysis of this argument, see E.E. Palmer, "Union Security and the Individual Worker," University of Toronto Law Journal 15 (1964), 338. - 191 -

Not all employers adopted this position. In the auto sector, employers reluctantly conceded the check-off after the 1945 Ford strike.119 While these employers were not necessarily champions of union security, many had come to accept that it brought a measure of stability to a unionized environment.120 In 1949, D.B. Grieg, President of

Ford Motor Company, Canada admitted that the formula created a cordial atmosphere at the bargaining table.

It has helped indirectly in that Rand's proposals and reasoning have shown the parties the need for co-operation between them if there is going to be any rest from industrial strife. It has helped directly in that the provisions in the formula have corrected many of the former major faults and score points in the company- union agreement, as far as labour was concerned, without having made the company give up any right on which the latter has felt strongly. Thus, there is now less ill-will toward the company on the part of labour, and more respect for labour's rights by the company.

By making this agreement, the large auto companies acknowledged cooperation with the

199 unions, facilitated by union security, were beneficial to both employers and unions.

An important part of this argument was strictly economic. Between 1945 and

1958, Ontario's manufacturing sector underwent a significant boom, led by the auto industry.123 Ontario's auto sector expanded rapidly throughout the decade, as consumer demand for cars skyrocketed in the post-war years. The federal government's release of

119 Desmond Morton, Working People, 186. Morton suggests that manufacturing employer's embrace of the Rand Formula was "notably restrained." Before the strike, company lawyer J.B. Aylesworth argued that Ford would not concede to demands for union security because it limited the company's ability to withstand demands at the bargaining table. When the Company and the union had agreed on binding arbitration by Justice Rand, Ford took the same position as the Ontario CMA, suggesting that closed shop provisions would violate the rights of individual employees to work in the plant. The company opposed the closed shop, it told Rand, because it gave the union undisputed control over all aspects of employment in the plant. 120 Jeremy Taylor, "The Rand Formula," Quarterly Review of Commerce 14 (1949), 144. 121 Quoted in Taylor, "Rand Formula," 156. 122 Don Wells, "The Impact of the Postwar Compromise on Canadian Unionism, 149, 155-63. 123 Rea, The Prosperous Years, 202-7. - 192-

wartime controls and the massive sell-off of wartime plants led to increases in private investment and helped fuel post-war consumerism.124 Buoyed by surging economic expansion, the UAW was able to gain a footing in American and Canadian plants. In the

United States, the agreements that emerged out of the labour strife in the 1940s was dubbed the "treaty of Detroit" between General Motors and the UAW, in which the union achieved wage gains tied directly to productivity but capitulated on management's demands to control all aspects of production.125 These compromise agreements were followed in southern Ontario plants, as wage gains in the late 1940s were tied to the union's concession to limit industrial strife in the industry.

The compromise to restrict militant action by its members in return for wage gains and union security led to a growing bureaucracy within the UAW. These changes distanced the leadership from rank-and-file activists, as leaders were required to bargain in a highly structured, legalized environment requiring significant levels of expertise. In order to win gains at the bargaining table, leadership also had to control wildcat strikes.

This goal was accomplished through a series of decisions made by union leaders to

1 ")f\ restrain the autonomy of union locals by centralizing bargaining and strike decisions.

Although these choices buttressed the union's ability to win concessions at the bargaining table, workers were limited in their abilities to resist major investment decisions by

Chris Roberts, "Harnessing Competition? The UAW and Competitiveness in the Canadian Auto Industry, 1945-1990, Ph.D. thesis, York University, 2002, 268-9. Between 1945 and 1949, capital spending by leading auto companies and public sector investments reached close to $12 billion. 125 Albo, "The New Realism and Canadian Workers" 478. 126 Wells, "Post-War Compromise," 158-9. - 193 -

employers. In short, the union security clauses changed how the big-three auto companies operated, but they did not necessarily erode their dominant position.

Nonetheless, union security agreements did not always protect employers from militant activists who resisted the bureaucratization of the union and the restrictions on the right to strike.128 In 1950 and 1951, rank-and-file members of the UAW launched thirty-four wildcat strikes in response to arbitrary layoffs.12 In 1954 and 1955, the UAW waged strikes involving 21,565 workers at Ford (109 day strike), Massey Harris (80 days), General Motors (148 days) and de Havilland Aircraft (155 days) over wages, benefits, holidays and grievance procedures. These strikes set the pattern for future negotiations, as the companies took a hard line on wages and pensions and continued to utilize the conciliation procedure to delay strike action. The union's success in these strikes pushed employers to look beyond negotiations with the UAW. Rather, the companies resorted to further limit the rights to strike in the Act The UAW responded by building the union and pushing to have the Act amended to address existing limits on the right to bargain and to strike.

The auto companies approach to union security was not universally adopted by other employers. The mining companies, for instance, refused to accept union security

Roberts, "Harnessing Competition?," 275. At Ford, management exerted a great deal of control over the grievance process, the steward systems which allowed it to determine many of the outcomes of arbitration. 128 Roberts, "Harnessing Competition?," 273-4. 129 Gindin, The , 131. 130 See Charlotte Yates, From Plant to Politics: The Autoworkers Union in Postwar Canada (Philadelphia: Temple University Press, 1993), 87-8. Given the UAW's hostility to the conciliation procedure, it is ironic that the 109-day strike—that the union claimed as an historic victory—was brought to an end through the direct involvement chief conciliation officer Louis Fine who was able to get the company to agree to modest wage and pension increases. -194-

clauses. This was partly because of the questionable economic viability of the mines.

Mine owners also identified with a particular historical image of rugged frontier

1-51 individualism that translated into an unusual level of contempt for trade unions.

Throughout the twentieth century, these characteristics drove mine owners to develop close connections with provincial government officials. In the 1920s and 1930s, friendly relations with the Ferguson and Hepburn governments influenced government policy in the mines. In collaboration with the mine owners, the provincial government limited the extension of financial securities regulation, gave public subsidies for mining exploration and defended mining interests from federal regulators. The mine owners were able to use their influence to keep provincial resource taxes exceedingly low and encourage provincial opposition to industrial unions.132 As many of the leading mining capitalists controlled large international corporations, this level of influence also brought provincial government officials into close connection with American capital.

Despite the growth of the manufacturing sector and the reduction of mining interests after the war, mining capital maintained a cosy relationship with the Drew and

Frost governments. In part, this association continued to drive mining development in ITT northern Ontario, even as it declined in significance overall. In the post-war period, production of uranium, nickel, copper and zinc also took on added importance as the

131 H.V. Nelles, The Politics of Development: Forests, Mines & Hydro-Electric Power in Ontario, 1849- 1941 (Toronto: Macmillan, 1974), 436. 132 Ibid., 431, 435-443. Nelles reports that a government study in 1930 found that in areas where there was a comparable level of mining development, Ontario mining taxes were amongst the lowest in the world. The report stated, for instance, that companies in South Africa paid taxes amounting to 35 per cent of total profit. In South Africa, a single ounce of gold saw the government collect $2.15 in tax while a single ounce of gold in Ontario saw both levels of government collect $0,526 of tax. 133 Rea, The Prosperous Years, 162-3. - 195 -

American military sought out resources for its new weaponry, including its expanding nuclear arsenal.134 Given the importance of these minerals, the towns of Timmins,

Sudbury, Cobalt and Kirkland Lake became synonymous with the companies of Inco,

Hallnor, Falconbridge, Hollinger and Mclntyre Porcupine. The high level of government support for the industry helped keep mining profits relatively healthy throughout the post-war period, despite frequent fluctuations in demand and competition from newly industrialized countries.135 In the long term, however, government assistance could not mask mining's relative decline. By 1958, mineral exports were flagging due to the highly volatile nature of demand on the international market. From the early-1950s to the mid 1960s, the mining industry failed to keep pace with the growth in the provincial economy, falling from 6 per cent of Gross Provincial Product in 1950 to a just over 3 per cent by the end of the 1960s.136

These conditions contributed to the volatility of the relationship between miners and mining corporations. There was a long history of violent labour struggle in the mines as the unions waged militant strikes in the 1930s and 1940s to obtain collective bargaining rights.137 Although companies were required to recognize mining unions after the passage of the 1943 OLRA, the conclusion of the war witnessed employers once

134 Ibid., 169-77. 135 William A. Buik, "Noranda Mines Ltd.: A Study in Business and Economic History," M.A. thesis, University of Toronto, 1958, 160-63; AO, OPFGC, RG 3-24, Box 19, McLeod, Young, Wier & Company, Letter to Leslie Frost, 6 November 1953. In 1953, McLeod, Young, Wier & Co. (a mining finance firm) wrote to Frost complaining that the profit made by the eleven gold mines created the impression that the companies should use this money for wage increases. To do this, however, the mine owners would have to disregard the thousands of shareholders that invested in the industry at a time of considerable risk. l36Buik, "Noranda Mines Ltd.," 183; Rea, The Prosperous Years, 162-3. l37Laurel Sefton MacDowell, 'Remember Kirkland Lake'; Mike Solski and John Smaller, The History of the International Union of Mine, Mill and Smelter Workers in Canada Since 1895 (Ottawa 1984). -196-

again seeking to depose unions from the mines. An important part of this strategy was to resist the inclusion of union security in the 1950 OLRA and to undermine the material strength of the mining unions. Like the CMA, the mine owners opposed union security because they believed it was a "scheme" devised by union leadership to coerce money from individual employees.138 This was problematic, the companies insisted, since the union leadership was tied to left-wing political parties promising, "to nationalize the mining industry as well as others."139 During the drafting of the 1950 OLRA, mining owners warned the government that any provision strengthening the material base of labour would funnel money to the CCF and the LPP. They insisted that,

...the mines have had particularly vicious unions to deal with and some of the present officers are quite red. The so-called "voluntary" check-off places a company in a position of starting the entrenchment of officers in the saddle, whether good or bad.140

In taking this position, the mining companies stated that their opposition to union security was not simply a principled stand against reckless union leaders, but also a defense of free enterprise itself.

In the 1950s, Jules Timmins of Hollinger Mines, Balmer Neilley of Mclntyre, and

J.Y. Murdoch of Noranda and the Porcupine Mines led the opposition to trade unions in

Noranda Mines Ltd., "The Strike at Noranda," Globe and Mail, 15 March 1954. The companies added "...the check-off gives union leaders unwarranted power over the members. Without the check-off a union member may effectively show his dissatisfaction with the conduct of the union by withholding financial support. Where the check-off prevails, this is not so...Union security, in union vocabulary includes the check-off and means, finally, an arrangement whereby employees are compelled to pay dues to the union in order to hold their jobs. This is against the interest of the employer and holds no benefit for the employee. It secures money and power for the union leaders at the expense of the freedom of employees." 139 Ibid. 140 AO, OPFGC, RG 3-24, Office Box 19, C.D.H MacAlpine, (President of Ventures Ltd. (Mining Consortium)) Letter to Leslie Frost 23 March 1950. C.D.H MacAlpine was a Toronto mining financier and president of Ventures Ltd., which was holding company for every major mining company in Ontario. -197-

the mines.141 In 1951, Jules Timmins' Hollinger and Broulan Reef gold, mines fought a

bitter seven-week strike in the city that bore the company president's name over Steel's

demands for the check-off.142 In the 1951 strike, the miners enjoyed a great deal of

community support, ranging from church donations to local restaurateurs who organized

a soup kitchen to feed miners and their families. Encouraged by such support,

Steelworker President C.H. Millard threatened to extend the strike to other companies if

Hollinger did not grant the check-off.143 In order to limit the extent of the strike,

company officials wrote to Frost seeking government support. Frost responded by

insisting that Daley "use his personal connections with the mine owners to end the

dispute."144 Once the government intervened, the company agreed to a settlement of a 13

cents/hour wage increase but only after Daley was able to get the union to drop the

check-off.145 The settlement demonstrated that Hollinger and the Broulan Reef mines were willing to grant one-time wage increases in order to avoid conceding long-term

security of trade unions in their mines.

The unsettled issues in the Hollinger and Broulan Reef strikes contributed to provoking a series of violent strikes in the summer of 1953. Having abandoned

141 The Porcupine area gold mines were connected to Murdoch's Noranda group. Murdoch was the President of Pamour, Hallnor, and Aunor gold mines in the Timmins area, as well as President of Norbeau Mines in Quebec; Waite Amulet Mines, Goldale Mines; Amulet Dufault Mines Ltd; and Vice President and Director of Pacific Gold Mines Ltd; Wright Hargreaves Mines Ltd and Hollinger Consolidated Gold Mines; the Mining Corporation of Canada; Iron Ore Company; Cariboo Quartz Mining Company Ltd; and Labrador Mining and Exploration Company. 142 Roger Graham, Old Man Ontario, 272-73. 143 Ibid., 273. 144 AO, OPFGC, RG 3-23, Box 87, Leslie Frost, Personal and Confidential Letter to Charles Daley, 7 August 1951. The unions were fully aware of the connection between the government and the mines. The unions had hoped to expose this connection when Pat Conroy (Treasurer of the CCL) asked Frost to act as a mediator between the parties. Frost did not take the bait. 145 Ontario conciliation officer, Louis Fine, assisted Daley in the negotiations. - 198-

conciliation, workers at Broulan Reef mining consortium walked off the job illegally in early July. The strike quickly spread to Murdoch's operations in Hallnor, Porcupine and

Preston East Dome mines. Similar to the 1951 Hollinger strike, the union's chief concerns were wages, hours of work and a union security clause.14 Unlike 1951, employers dug in their heels and brought in replacement workers to end the strike. In a memorandum to cabinet, the mining companies explained that their decision to hire replacement workers was prompted by the illegal actions of the unions.

We were forced to hire [replacement workers] by the unlawful acts of outsiders recruited by the union. The stoppage was illegal under the Labour Relations Act. It is not a strike by Broulan Reef employees but a move by the union to prevent by force and threats of force the Company's employees from coming to work, most of whom are willing to do so.147

The mine operators went on to blame the work stoppages on the USWA, accusing

Millard and organizer James "Shaky" Robertson of encouraging violence on the picket line.148 The companies claimed that these men had "beguiled workers from other mines to serve their own purposes in order to force unreasonable and impractical demands on the company."149 The memo concluded stating that it would not yield to the illegal demands of the union because they would have to close a number of operations and lay off several hundred workers.

146 Roger Graham, Old Man Ontario, 275. 147 AO, OPFGC, RG 3-24, Box 19, Canadian Metal Mining Association, Unlawful Actions by the Unions vs. The Future For Gold Mining in Ontario, 13 August 1953. 148 Palmer, Working Class Experience, 291. Millard and Robertson were known for their role in raiding Mine-Mill. Notwithstanding their role in the purging of Communist leaning unions, their legitimacy was still challenged by the company and the provincial government. 149 Ibid. - 199 -

The strike was supported by 4,800 miners in Timmins and stretched to another

1,600 workers in the base metal mines in Noranda, Quebec.150 The union's demand for wage increases and union security sought parity with other union contracts in northern

Ontario, especially those signed by Mine-Mill.151 Under Steel, the base wage at

Murdoch's Noranda group mines was $1.05/hour for a 48-hour workweek. This compared with a $1.61/hour and a 46-hour workweek that Mine-Mill had secured at

Inco 's Sudbury operation. In addition to wages, the Steelworkers were adamant that a new agreement include a union security clause. The union argued that granting the check­ off to the USWA was reasonable because it was a responsible, non-communist union. It maintained that Mine-Mill Local 598 at Inco had been able to win a union security agreement in its 1948 agreement and that this had strengthened support for Communists in Ontario.152 Having successfully raided Mine-Mill locals in Timmins in a prolonged and bitter campaign, Steel needed security provisions to protect its place in the industry.

Given this tenuous position, the companies refused to concede the point.

Canada Department of Labour, "11 Annual Convention of the Ontario Federation of Labour (CCL)," The Labour Gazette (March 1954), 405. One of Steel's arguments surrounding its attempts to raid Mine- Mill was that workers would enjoy the support of the hundreds of unions affiliated to the CCL. According to Eamon Park, Legislative Director of the US WA (and former CCF MPP) the strike had support from the entire CCL, as Steel was able to raise $327,749 in national strike support. 151 Archives of the Ontario Federation of Labour, United Steelworkers of America, The Men 5,000 Feet Below (USWA National Office, 1953). The union claimed that these workers "were engaged in a dirty and highly hazardous occupation [and] the men work underground long hours and receive less pay than workers in most other industries." 152 United Steelworkers of America, The Men 5,000 Feet Below, 7; Canada Department of Labour, ll'h Annual Convention, 405-6; Lang, "A Lion in the Den of Denials," 143. The Steelworkers' did not concede that Mine-Mill had achieved union security because of its long-term commitment to the membership. In the immediate post-war years, it was not a priority for Mine-Mill to have the OLRA include union security because of the solidarity and militancy of its membership. In 1950, Steel been thwarted by that same solidarity when it attempted to raid Local 598 in Sudbury. -200-

The stalemate over the check-off prolonged the strike. By late summer, the

situation was at a boiling point as strikebreakers and local police antagonized striking workers. The companies refused to deal with the union claiming that the strike was illegal. As a way to defeat the union, the mine owners called for police presence to protect replacement workers. Frost biographer Roger Graham describes the unravelling situation:

A group of about thirty picketers entered the Broulan property, while their colleagues barred the way to three OPP inspectors. As the officers engaged in extended conversation with the picketers...while the police watched, a number of picketers got into cars and sped off towards the mine. For half an hour a pitched battle raged in and around the mine building between the invading picketers and the 'scabs' inside, the gladiators wielding baseball bats, mining steels, picks and boards with protruding nails....

When rumours leaked that management had issued shotguns and ammunition to security guards with instructions to "shoot to maim," the striking workers responded by barring the entrance to the property.'54

The violence pressured the government to intervene.155 Meanwhile, the companies sought to use their close connections with the provincial government "to respectfully request you to give instructions to the Provincial Police for some forms of

3 Roger Graham, Old Man Ontario, 275-6. 154 Pat McNenly, "Disarm Guards at Broulan on Crown's Order," The Toronto Daily Star, 29 July 1953. 155 There was added pressure to settle the strike as it was erupting right in the middle of the federal election campaign in which federal Conservative leader George Drew was attempting to unseat the federal Liberals. The Premier also understood that the entire situation put the Conservative Party in an awkward position as relied on northern ridings for electoral support. Party strategists knew that if the strike were allowed to fester, the area would be vulnerable to the CCF or the Liberals. -201-

constabulary to provide the necessary protection to continue business." While the media blamed the union for the escalating violence, the government knew that openly declaring war on the USWA would inflame the wider labour movement situation in the province.157 The premier's immediate response was a province-wide address deploring violence in industrial disputes. Frost emphasized that violence on the picketline was contrary to the rule of law and pickets were subject to punitive measures under the OLRA and if need be, under s. 501 of the criminal code.158 The premier emphasized law and order because he had quietly asked the attorney general to conduct an investigation and lay any charges after the conclusion of the strike. Despite acknowledging the union's role in escalating violence, Frost stopped short of meeting employer demands to send in police reinforcements to end the strike. Behind the scenes, he dispatched Daley to negotiate an immediate end to the strike, while trying to ensure that union security clauses were off the table in order to placate the employers, and convince them to negotiate.159

Responding to Frost's plea, the union was willing to negotiate on several areas but remained steadfast on the check-off. In a meeting with Daley, Millard agreed to withdraw pickets from mine entrances if the company refrained from using replacement workers in

156 AO, OPFGC, RG 3-24, Box 19, Geo T. Pepall (Vice President Samuel, Son & Co. Iron-Steel-Metals), Letter to Leslie Frost, 21 July 1953. PepalPs business was directly tied to production in the mines. 157 Editorial, "The Labour Unions and the Law," The Globe and Mail, 24 October 1953; Graham, Old Man Ontario, 274-5. Graham more or less accepts this analysis and sees Frost as a moderate voice in the dispute. In the same month, the province faced a violent truckers strike led by the Teamsters. 158 AO, OPFGC, RG 3-24, Box 19, Leslie Frost, Statement Concerning Law Observance, July 1953; AO, OPFGC, RG 3-24, Box 19, Department of the Attorney-General, Memorandum Re: Broulan Reef and Porcupine Mine Workers Union, 23 July 1953; "Frost 'Explains' Picketing Ban to Union Men," The Toronto Daily Star, 28 July 1953. In these communications, it became clear that the government laid the blame for the violence squarely on the union. 159 Roger Graham, Old Man Ontario, 276. -202-

the mine. If the owners met this demand, Millard insisted that negotiations on wages and the check-off would follow. The mine operators refused.160 After these early meetings, the bargaining positions hardened and the strike extended to Noranda, Hollinger and the

Mclntyre mines by late September. The situation grew more volatile when the courts intervened and granted an injunction restraining the right to picket. Several miners responded to the injunction order by remaining on the picketline while others attempted to burn down a company house protecting strikebreakers.161

Having been summoned to Queen's Park by Daley for further negotiations in late

September, the mine owners remained adamant that while wages were negotiable the check-off was not open for discussion. When questioned about his opposition given that he had granted the check-off to United Electrical Workers in 1948, Murdoch responded that it had been a mistake that he was not going to repeat.163 Throughout the negotiations, Murdoch used his relationship with Frost to push for right-to-work legislation.164 Given his attempts to secure a legislative means to defeat the unions, it seems clear that Murdoch's refusal to grant the check-off represented a much larger

"Miners Accept Owners Refuse Daley Proposal," Toronto Daily Star, 31 July 1953. 161 "Broulan Mine 'Work Seekers' Block Entrance," Globe and Mail, 25 August 1953. 162 AO, OPFGC, RG 3-24, Box 19, C.H. Millard, Letter to Charles Daley 30 September 1953. Millard continually maintained that the union's intransigence was due to Murdoch's hostile bargaining position. Nevertheless, throughout negotiations Daley maintained that Hollinger workers' decision to bypass formal conciliation procedures was to cause of the unusual level of hostility in the strike. 163 "Frost Plans Conference with Ottawa," Globe and Mail, 30 September 1953; Graham, Old Man Ontario, 285. Murdoch insisted that he would "not grant the check-off of union dues as longs as he lives." Both Balmer Neilley and Jules Timmins agreed. 164 AO, OPFGC, RG 3-24, Box 19, J. Y. Murdoch, Letter to Leslie Frost 3 September 1953; "Management Dictates Frost's Labour Policy Union Leaders Claim," Toronto Daily Star, 9 February 1954. The unions later claimed that that the mine owners boasted at the bargaining table that they dictated provincial policy in the sector. -203-

agenda to rid his mining operations of unions, especially the larger and well-financed

USWA.

Despite his friendship with Murdoch, Frost was not keen on putting a gun to the head of the union and the leadership of the provincial CCL. The Steelworkers had threatened to extend the strike to all steel factories in the province, and Frost feared calling their bluff. The cabinet was also concerned that granting concessions to the union would further provoke the mining companies.165 Rather than face a complete revolt by the mining interests, Frost wrote a letter to Daley claiming that it was essential for the

Minister to get the union to drop the demand for the check-off.

I have been reading some of the propaganda of the Union in Timmins and quite obviously check-off is only part of the issue... .It would seem to me that the mines would best represent their men by recognizing that they have these difficulties in an industry which obviously does not care to co-operate. I think perhaps we might be able to make an arrangement that would give the men a few signs of betterment and could be accepted as an interim arrangement, but not the check-

Having dismissed the USWA's "union propaganda," on the importance of union security,

Frost directed the ministry of labour to pressure union officials to drop the check-off and end the strike.167

163 Roger Graham, Old Man Ontario, 284. 166 AO, OPFGC, RG 3-24, Box 87, Leslie Frost, Personal and Confidential Letter to Charles Daley, 19 October 1953. 167 Roger Graham, Old Man Ontario, 285-86; Wilfred List, "End Hollinger Strike, Terms Displease Union," 23 December 1953. The union was under pressure from its International representatives in the United States to end the strike. In the meeting in early December, the Steelworkers were represented by Millard and David J. McDonald, President of the USWA in the United States. Graham concludes, probably correctly, that the presence of McDonald (and his personal emissary Arthur Goldenberg) suggested that the International was losing faith in the strike. -204-

With pressure bearing down from all sides for the USWA to make concessions,

the government decided to bring Murdoch and Millard back to Queen's Park for

discussions. In a series of meetings, Frost took direct control of negotiations in an effort

to forge a settlement, but the union and the company were reluctant to move from their

positions.168 While negotiations continued, Hollinger revealed that it was willing to

make some concessions over monetary issues but would not drop the demand for the

check-off.169 In the end, the government was able to get Millard to agree to a 5 cent an

hour increase on an 18-month contract—6 months longer than the term proposed under the government's plan rejected by Hollinger a week earlier. The Hollinger settlement set the pattern for Mclntyre and Noranda agreements early in 1954. Having been compelled to abandon the check-off, Millard stated that he was reluctant to accept the deal but he was "faced with the alternative of great suffering for the union members." Although

Millard's stance on the check-off may have softened before the final settlement, the loss of the International's support represented the nail in the proverbial coffin.171 For the workers on the line, the five-cent increase was a pyrrhic victory after a seven-month strike whose primary goals—wages, safety, and union security—remained unattained.

168 Wilfred List, Frost Takes Command of Gold Strike Talks in Bid for Settlement," Globe and Mail 3 December, 1953. Millard wrote to Frost claiming that Jules Timmins was not taking the government's attempts to negotiate a settlement seriously as the Timmins negotiators (and Timmins) himself were frequently absent from the discussions. 169 Pat McNenly, "Unionist says Frost 'More Reactionary' than Drew, Hepburn," Toronto Daily Star, 10 November 1953. Frost's inability to broker this issue or to change the legislation outraged the larger labour centrals. In an open letter to the premier, the OFL took Frost to task over his lack of action in the mining strikes, claiming that he was in league with the mining companies and thus more reactionary than Drew or Hepburn. 170 Wilfred List, "End Hollinger Strike, Terms Displease Union," Globe and Mail, 23 December 1953. 171 "Not Wed to Check-off Millard Says, Call 2 Talks in Mine Strike," Toronto Daily Star, 30 September 1953. -205-

Legalization and the Continued Challenges in the 1950s

The failures of the government to address union concerns over the OLRA laid the foundation for many of the labour disputes in the early part of the 1950s. At the centre of these clashes were questions over how the legal provisions in the OLRA regulated the relationship between trade unions and employers. In the mines, the largest union in the

CCL fought a series of militant strikes demanding union security agreements in order to entrench their position in the mines. These strikes also became a rallying point for the

OFL and other unions seeking greater protection to organize, bargain and strike. On the other hand, businesses remained hostile towards changes to the OLRA, and in many instances, sought to erode many of the provisions in the 1950 legislation. Central to this opposition was an enmity towards union security, as employers felt that it contributed to the growth of unions throughout the province. One avenue that employers pursued was to seek further redress to OLRB discretionary power by subjecting proceedings to the rules of natural justice. Similarly, employers were also committed to transferring the resolution of labour disputes back to the courtroom. These demands influenced changes to the

OLRB throughout the remainder of the decade.

Despite the changes to the OLRB after the Gale dispute, labour unions continued to use the Board to organize in steadily increasing numbers. This success suggests that the most important function of the OLRA and the OLRB was the certification of new union locals. The OLRB's other important activities included addressing questions of -206-

conciliation, the termination of bargaining agents, administering consent-to-prosecute applications172 and the regulation of unlawful strikes (Table 4.4).

Table 4,4: Activity of the Ontario Labour Relations Board 1949-1961173

Total Certification Conciliation Termination Consent- Unlawful Other Undisposed Apps. To- Strike Prosecute 1950 477 458 228 14 (NA) (NA) (NA) (NA) 1951 1015 685 297 17 8 2 6 204 1952 1516 797 650 28 26 7 8 155 1953 1753 672 978 54 29 10 7 156 1954 2002 630 1211 53 84 14 9 160 1955 2012 706 1165 43 61 32 5 195 1956 2461 967 1346 58 54 23 13 188 1957 2828 1227 1269 42 177 36 77 345 1958 2999 1094 1627 84 142 29 23 254 1959 2720 944 1522 118 75 35 26 252 1960 2399 884 1232 107 111 36 29 223 1961 2278 866 1090 78 111 34 99 254

In terms of the OLRB's annual caseload, the certification of new unions climbed steadily, reaching record highs in 1957 and 1958. The growing number of certification applications also led to an increase in "undisposed" (unresolved) applications at the end

AO, PSCLR, RG 49-138, Box C 93, Department of Labour, Economics and Research Branch, Analysis of Application for Consent to Prosecute Under LRA Legislation in Ontario, 12 May 1958. In Ontario, persons who took part in unfair labour practices were subject to prosecution in the courts, upon consent from the OLRB. The 1950 OLRA (S. 65) stated that "no prosecution for an offence under the Act shall be instituted except with the consent in writing of the Board. This section was amended in 1957 to make unnecessary the obtaining of the Board's consent in case of a refusal or failure to comply with an order of the minister of labour. 173 Derived from Ontario Department of Labour, Reports of the Department of Labour, 1949-1962. These early reports chronicled a small portion of Board activity for the fiscal year ending 31 March. -207-

of each fiscal year, suggesting that the OLRB was having difficulty dealing with the

increased volume.

In terms of applications filed before the Board, unions from the CCL and the TLC

(the CLC after 1956) represented the largest percentage of certification activity. While

unions not affiliated to the largest labour centrals were also applying for Board certification, these represented a small percentage of total applications for certification

(Table 4.5).I74 For certifications granted, unions did well before the Board, winning close to 78 per cent of all certification applications. Given that a vote was not mandatory, voting based applications represented a small percentage of Board activity. Although the

Board data makes it difficult to determine the success rate of certification votes, in 1958 researchers at the department of labour noted certification votes increased the likelihood of unions losing certification drives.175

174 AO, PSCLR, RG 49-138, Box C 93, Department of Labour, Economics and Research Branch, Labour Union Membership in Ontario, 1957 survey of labour organization in Canada, 12 May 1958. According to data presented to Select Committee, labour union membership in Ontario was dominated by unions affiliated to the CLC, accounting for 408,000 members. The two largest non-CLC unions were Mine-Mill and the United Electrical Workers which had a total of 43,000 members. The International Union of Operating Engineers had 6,400 members while the National Council of Canadian Labourers had 3,700. In 1957 there were 3,000 unaffiliated locals in Ontario. 175 AO, PSCLR, RG 49-138, Box C 93, Department of Labour, Economics and Research Branch, Analysis of Representation Votes Conducted by the OLRB 1 April 1955 - 31 March 1957, 12 May 1958. -208-

Table 4.5: OLRB Certification of Bargaining Agent, 1950-1961

Apps Granted Fail With­ % Rep. C T C O Left­ drawn Union Vote L L C T over Success C C L H E R 1950* 458 315 116 29 88% 83 190 219 41 69 1951 685 358 102 53 79% 77 356 277 48 172 1952 797 458 168 61 73% 157 289 264 72 110 1953 672 398 124 68 80% 198 301 205 56 112 1954 630 371 134 22 73% 145 328 153 37 102 1955 706 386 144 24 73% 109 386 178 40 152 1956 967 631 178 46 78% 165 593 213 45 112 1957 1227 818 183 56 82% 150 996 119 170 1958 1094 706 190 56 78% 158 847 77 142 1959 944 598 152 74 80% 182 661 141 120 1960 884 496 169 73 75% 168 605 159 146 1961 866 512 145 74 76% 188 506 214 135 *These are the operations under the 1950 Act. (April 1st - August 3 Ist 1950

In other areas, employers used consent-to-prosecute applications aggressively in order to limit workers' gains at the bargaining table. Generally, consent-to-prosecute applications were used to threaten judicial intervention when collective bargaining broke down. Between 1953 and 1954 there was a 98 per cent increase in the use of consent-to- prosecute applications.177 In 1956 and 1957, applications of this nature rose by another 85 per cent. Bromke notes that consent-to-prosecute applications were stressful for members of the Board because they were often highly irregular.178 Trade unions used these applications infrequently, although when they were used it was to enforce an existing

Ontario Department of Labour, Report of the Department of Labour, 1949-1962. 177 Consent-to-prosecute applications allowed unions and employers to ask the OLRB to rule in specific areas. In particular, unions and employers had to ask the OLRB to rule on an issue outstanding. For the most part, consent-to-prosecute applications were designed to rule in unfair labour practice questions. 178 Bromke, The Labour Relations Board in Ontario, 61. -209-

collective agreement. By contrast, employers were using consent-to-prosecute

applications during the collective bargaining process or during crucial moments of the

grievance procedure. The consistency of employers using consent-to-prosecute

applications led some unions to conclude that such applications represented a tool to undermine collective bargaining.179 Interestingly, however, most of these applications were rescinded before the Board made a decision. Although the reasoning for withdrawing these cases differed, the frequency of employers filing these applications suggested that it was a tactic to delay meaningful collective bargaining, to discourage militancy during sensitive periods of negotiation, and to end wildcat strikes (Table

4.6). 18° According to Finkelman, employers used this strategy because "it gave them their day in court [and] it worked well." He came to this conclusion for two reasons:

1. A general feeling in Ontario that the law had to be obeyed 2 A feeling that the Board was just a Board. Therefore there was a desire to abide by the law.181

179 AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1714-6. See also discussion below, 235-6. 180 AO, Premier J.P. Robarts General Correspondence (hereafter PRGC), RG 3-26, Box 179, V.W. Scully, President, the Steel Company of Canada, Memo to John Robarts, December 1962, 12. Employers complained in 1962 that they were hesitant to follow through with consent-to-prosecute applications because they "involved a long delay between the date of the hearing and the date of the decision which only results in a very real prejudice to the applicant and which seems to indicate a desire to impede justice." They also suggested that the chair did not look favourably on consent-to-prosecute applications because he generally provided "more favourable decisions for labour." As such, employers demonstrated a preference to seek relief through the courts, seeking ex parte injunctions to end or limit strikes. 181 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, 12 June, 1972, 4-6. In using cynical and gendered language, Finkelman chronicled the typical process by which a consent-to-prosecute application was used to limit spontaneous strikes: "[If] a union official got caught in a wildcat strike he couldn't control, I would get a call from the union's counsel. It was usually a Friday. He would say "so-and-so is going to file an application for a strike declaration. Would you get it in the mail today? If you get some of the people served on Saturday, we'll have the strike settled over the weekend." An application for a strike declaration and leave to prosecute were usually made at the same time. The mail would arrive with a big red seal. The wives would see this and be frightened. The strike would be settled. The better employers were rather reluctant, and would wait all week trying to settle...." -210-

By giving employers their day in court, Finkelman believed that consent-to-prosecute applications put the necessary pressure on union leadership to limit rebellious outbursts by rank-and-file workers. He concluded that the Board's power in this area gave "the

1 89 union an opportunity to deal with a wildcat, and helped control [its] membership."

Table 4.6: Applications for Consent-to-Prosecute and their Disposition, September 1,1950-March 31,1957183

Applicant Totals Withdrawn Before Withdrawn After Granted Dismissed Hearing Hearing 1950-1952 Employer 1 0 0 0 1 Trade Union 20 8 3 6 3 1952-1953 Employer 1 1 0 0 0 Trade Union 29 8 9 7 5 1953-1954 Employer 57 44 0 3 10 Trade Union 24 11 2 9 2 1954-1955 Employer 34 17 0 7 10 Trade Union 17 5 4 3 5 1955-1956 Employer 21 21 0 0 0 Trade Union 20 3 17 2 0 1956-1957 Employer 138 58 77 0 3 Trade Union 12 2 4 2 4 Sub-Totals Employer 252 141 77 10 24 Trade Union 132 37 39 29 27 Totals 384 178 116 39 51

182 NAC, FP, MG 31, E-27, Vol. 8, Folder Oral History Project, 1971-72, Jacob Finkelman Interview, 12 June, 1972, 5. The OLRA stated that strike was only legal when it was authorized by the union. Finkelman found, however, that it was difficult to prove that union leadership were involved in wild-cat strikes and this weakened the Board's consent-to-prosecute powers. In 1954, the legislation was changed so that the Board could issue an order to end wild-cat strikes. 183 AO, PSCLR, RG 49-138, Box C 93, Department of Labour, Economics and Research Branch, Applications for Consent-to-Prosecute and their Disposition, September 1, 1950-March 31, 1957, 12 May 1958. -211-

Further evidence that employers were using the Board's quasi-judicial powers to limit rank-and-file militancy occurred over the question of illegal strikes and lockouts.

The discrepancy between the frequencies of employers' demands to limit illegal strikes and the unions' attempts to limit illegal lockouts is significant. Between 1950 and 1957 employers filed 104 applications to have strikes declared illegal while unions filed only

12 applications seeking to suppress illegal lockouts (Table 4.7).

Table 4.7: Applications for Declaration that Strike and Lockout Unlawful, September 1,1950- March 31,1957184

Applicant Totals Withdrawn Before Withdrawn After Granted Dismissed Hearing Hearing 1950-1952 Employer 5 3 1 1 0 Trade Union 2 0 0 1 1 1952-1953 Employer 7 3 1 1 2 Trade Union 2 1 0 0 1 1953-1954 Employer 14 2 2 6 4 Trade Union 1 0 0 0 1 1954-1955 Employer 28 0 5 3 20 Trade Union 2 0 1 0 1 1955-1956 Employer 19 5 11 1 2 Trade Union 3 1 0 0 2 1956-1957 Employer 31 11 12 6 2 Trade Union 2 0 1 1 0 Sub-Totals Employer 104 24 32 18 30 Trade Union 12 2 2 2 6 Totals 116 26 34 20 36

184 AO, PSCLR, RG 49-138, Box C 93, Department of Labour, Economics and Research Branch, Applications for Declaration that Strike and Lockout Unlawful, September 1, 1950- March 31, 1957, 12 May 1958. -212-

When the Board declared an illegal strike, the actions of the union were immediately

interpreted as illegitimate.185 Regardless of the merits of a dispute or the justification for the strike, rank-and-file members were powerless to resist employers by walking off the job. In order to further limit the possibility of wild-cat action, union leaders were pressured to police their own members so as to avoid board rebuke. In general, these forces reflected the changing nature of labour relations in Ontario. While employers had previously utilized court injunctions and raw force to undermine unions' bargaining power, by 1957, they were utilizing the OLRB to do so. Throughout the decade, employers were determined to expand the punitive powers of the OLRB while bringing trade union activity increasingly under legal restrictions.

Conclusion

Throughout the 1950s, questions of law and the regulation of trade unions were at the centre of a series of prolonged disputes. In the early part of the decade, conflict erupted over the OLRB's discretionary powers. Despite the fact that the OLRB's decisions were insulated from judicial interference by a privative clause, employers took the position that the right of appeal to a court was an inherent right in liberal democracies, especially to preserve values of fairness and natural justice. Additionally, employers insisted that the

OLRB, in interpreting the OLRA, was biased against businesses because it favoured the expansion of trade unionism in the province. Employers thus pressed for tighter restrictions on trade union activity as they reasoned that provincial trade unions now had

185 To be sure, in the two instances where the OLRB ruled a strike as lawful, it added legitimacy to the unions' cause. - 213 -

to "accept adult responsibilities" 186 and follow the letter of the law. For employers, accepting "adult responsibilities" included limiting wildcat strikes and holding unions accountable in a court of law. Further reforms sought to restrict union security agreements and limit the discretionary power of the OLRB to certify trade unions in the province.

In order to enforce responsibility, employers waged a fight to restrict the powers of the OLRB by challenging its decisions in court. In so doing, employers were able to use their close relationships with leading members of the provincial government in order to challenge the Board's jurisdiction and discretionary powers. As this struggle progressed, the government's alliance with business became more obvious as the attorney general and the minister of labour refused to defend the OLRA in public or in court. This alliance weakened the OLRB's ability to certify trade unions as judges were able to expand mandamus and certiorari powers over Board activity. In response, unions throughout Ontario launched a campaign to defend the Board and limit, to the extent possible, the increased legalization of labour relations in the province. This meant defending the Board from judicial oversight and protecting the discretionary powers of

Board members. The polarization of union support for the Board and employer demands to move disputes back to the courts suggests that OLRB discretionary power was viewed by business as contributing to unionization in Ontario. In order to defeat unions,

AO, MLLR, RG 7-14-0-111, Box 3, Canadian Manufacturer's Association, Private and Confidential Letter to J.P. Metzler, Deputy Minister of Labour, 29 October 1953. 187 Bromke, Labour Relations Board in Ontario, 44. -214-

employers believed that Board discretionary power had to be subjected to judicial oversight.

While trade unions stood united in opposing the increased legalization of labour relations in the province, many also turned to the law in order to gain short-term victories against hostile employers and, in the case of Ontario mines, against other trade unions.

This trend was reflective of the shift within trade unionism from confrontation and militancy to structured negotiations and bureaucratization. In these disputes, the USWA fought a series of strikes to win union security agreements in order to defend their position in the mines. Throughout, the USWA appealed for government to protect its rights by inserting union security in the Act. The strength of mine owners and their close relationship with the Frost government precluded legislative reform of this type. Rather, when government intervened in these disputes, it used is weight to reinforce the position of the mine owners. Under these conditions, the USWA lost the strikes; it nonetheless continued to push for legalized protection in order to defend its definition of "responsible unionism." As became clear throughout the decade, this embrace strategy weakened trade unions as it forced them to accept the framework of legal responsibility demanded by employers. Unions were accordingly required to prevent their members from challenging employers through illegal strikes. By the middle of the decade, the OLRB was administering the OLRA in a manner consistent with this legalist mindset.

The tension over the role of law in the regulation of labour relations was an important question in the 1950s. Given the success of employers in limiting the ability of trade unions to bargain, strike and defend themselves in various industries, trade unions -215-

found that legal protection of their rights varied greatly between sectors where unions had made gains in the past (manufacturing) and those where unions were unable to breakthrough (service industry) or denied altogether (public sector, agriculture).

Officially, the first eight years of Frost's labour legislation was a designed to provide the minimum standards in which trade unions and employers could collectively bargain. In practice, however, this chapter has demonstrated that the minimal standards attached to the provincial government's labour relations policy was heavily influenced by employers who often sought provincial assistance in their bargaining disputes while demanding further legislative restrictions on the rights of unions to bargain, organize, and strike. In doing so, employers sought to limit the discretionary power of the OLRB, control the procedural powers of the Board to certify new unions and lobby for changes to the

OLRA. By 1957, emboldened employers sought to rewrite these rules using their considerable influence with the government to push for right-to-work laws in Ontario. -216-

Chapter 5

Weakening the OLRA?: The Select Committee on Labour Relations and the Politics of Labour Law Reform, 1957-1960

Introduction

Employer resistance to unionization combined with the consistent level of strike activity

challenged the province's post-war industrial relations framework throughout the latter half of the 1950s. In order to address this pressure, in the spring of 1957 the provincial

government launched the first formal investigation of the post-war labour relations

framework, creating the Select Committee on Labour Relations. As was traditionally the

case with Select Committee's in Ontario, the majority of the Committee was composed of

MPPs from the governing Conservatives, but also included two Liberals and one member of the CCF. Within these three years, the questions over the structure of the OLRA and its administration by the OLRB were at the centre of the government's legislative agenda.

As will be demonstrated in this chapter, the politics surrounding these questions were dictated by the close relationship that business continued to maintain with the provincial government.

During the hearings, unions and employers attempted to address the underlying tension surrounding industrial relations in the province. Employers in all sectors were condemning the Act on the basis that it violated individual rights by extending too much power to union leaders. On these grounds, employers opposed the extension of freedoms in the OLRA and pushed for restrictive legislation modeled on the Taft-Hartley reforms -217-

in the United States. Borrowing from Taft-Hartley, employers demanded the restriction of union security agreements, right-to-work legislation, the extension of employer speech rights, limits on picketing, and the incorporation of trade unions in order to be sued in court.' Employers also sought to limit the discretionary power of the OLRB because it was interpreted as promoting unionization. In order to address this level of bias, employers argued for the right to appeal OLRB decisions to the courts.

In some ways, trade unions were in a difficult position because they opposed increasing the legal regulations governing interactions between employers and employees. On the other hand, CLC and non-CLC unions saw added benefits in amending the Act to increase the legal rights of trade unions to withstand aggressive employer assaults or to defend themselves in jurisdictional disputes. The consensus on these two questions saw both union centrals agree on question of legal security, as they lobbied to have this amendment incorporated into the Act. Notwithstanding the decades of hostility between them surrounding the Communist question, both the CLC and

Communist-led unions embraced particular forms of legality in order to solidify themselves in different sectors, and paradoxically to protect themselves from disputes with each other.

While the Select Committee's report stopped short of recommending a replication of Taft-Hartley, the Committee did look favourably on employer arguments to restrict the

'AO, PSCLR, RG 49-138, Box C 90, Submission of the Toronto Board of Trade to the Select Committee on Labour Relations, 31 January 1958, 6-7; AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Hotel Association, Proceedings of the Select Committee on Labor Relations, 2 October 1957, 1020-1. The Hotel Association argued that the right of appeal is equivalent to the "fundamental rights of every man and woman in this great country of Canada. [We] think it is everybody's right to appeal the decision of the Board because they can err, they can make mistakes." - 218 -

rights of trade unions to organize, bargain, and strike. At the heart of these proposals was a consensus by Conservative politicians and employers to rewrite the 1950 OLRA to limit trade union power. Although uneven, the proposals were constructed to appease management concerns over the growth of trade unions in the post-war period. This was done by recommending further barriers to certification rules and altering the relationship between trade unions and the OLRB. These recommendations included extending the

Board's ability to decertify unions and allowing further judicial appeals to OLRB decisions.

In order to elaborate on this point further, this chapter is divided into four sections. In the first section, the decision to create the Select Committee of Labour

Relations will be examined. The second section will explore trade union testimony before the Committee. I will discuss how the unions came to a surprising consensus on amendments to the OLRA. The unions also agreed that judges were openly pro-business and thus could not be a progressive step in the administration of labour relations. The third section of the chapter examines employer testimony before the Committee.

Employers were united in their efforts to impose judicial standards onto the Board's procedural powers. They were also intent on narrowing the rights associated with collective bargaining, calling for further legal restrictions on the right to organize and to strike. Finally, the fourth section examines the final recommendations of the Select

Committee. In its report, the Committee embraced many of the arguments from employers. By embracing the most egregious employer arguments—including the right to appeal OLRB decisions and the expansion of employer speech provisions—the -219-

Committee confirmed that trade unions had grown too powerful and needed to be limited by expanding the legal rights of individuals and employers.

The Select Committee on Labour Relations

The continued dispute between unions and employers over the OLRA continued throughout 1955 and 1956. For labour, one way to accomplish substantive changes to

Act was to challenge the government by supporting the Ontario CCF.2 As the Tories had been in power since 1943, there was optimism among many political insiders that the government was unable to address the leading issues of the period, including tension over the labour portfolio, municipal reform, medical insurance and a series of corruption scandals in cabinet.3 Although Frost had won a massive electoral victory in 1951, the tensions surrounding the slow pace of reform suggested that the Frost government was tiring.4 In 1955, there were early indications that the Tories were vulnerable, as a Gallup poll indicated that the government only enjoyed the support of 29 per cent of Ontario voters.5 By contrast, the Liberals were running at 25 per cent while the CCF trailed, with

12 per cent support. Throughout the 1955 campaign, the most important issue for the

2 Throughout the decade, both the CCL and the TLC had moved closer to the CCF. On CCL support, see Lazarus, Years of Hard Labour, 72-3. In 1954, the provincial TLC endorsed the CCF at their annual meeting. See Pat McNenly, "Labor Department is 'Run' by Company Lawyers Union Delegates Say," Toronto Daily Star, 3 May 1954; Gad Horowitz, Canadian Labour in Politics, 182-5. According to Horowitz, this represented a gradual shift among the leadership in the TLC to align themselves with the CCL and the CCF and contributed to the merger in 1956. 3 Graham, Old Man Ontario, 288-91; Donald C. MacDonald, The Happy Warrior: Political Memoirs (Toronto: Dundurn, 1998), 58-60. There were two scandals in 1954 and 1955 that centred on illegal campaign donations. In the "Highway's Scandal," undisclosed amounts of money were funnelled from highway contractors to key members of Frost's cabinet, including the Highways Minister. In another scandal, Tory MPP James Dempsey received a contribution of $8,500 from a local timber operator in exchange for local contracts. 4 In 1951, the Conservatives won 79 of 90 seats (on 48.5 per cent of the vote). 5 Graham, Old Man Ontario, 298. -220-

opposition parties appeared to be "good government" and the slow pace of reform to health and municipal governing structures.

Meanwhile, the Tories relied on the popularity of Frost, styling their campaign on the effective leadership of "Old Man Ontario." Building on Frost's popularity and its well-organized party machine, the Tories put forward a relatively ambiguous fourteen- point plan that read like a list of accomplishments rather than future policy commitments.6 In the fourteen-point plan, the Tories took credit for various infrastructure projects, including the development of the St. Lawrence Seaway, Niagara redevelopment, expansion of the province's roads and highways, the development of atomic energy and the creation of public welfare programs. The Conservatives also promised additional money for education and health and relied on vague promises to continue to grow the economy. This cautious program paled beside Drew's famous twenty-two point plan.

Despite these limitations, on the 9 June 1955 voters overwhelmingly endorsed

Frost and the Tories, awarding it 84 of 98 seats on 48.5 per cent of the vote.7 Graham argues that the Tories were successful in the election because of the weaknesses of the opposition parties, especially the Liberals who had an ineffectual leader and no coherent policy platform. The Tories also benefited from the popularity of Frost, who resonated with the image of conservative, protestant, rural and small town Ontario, although they

6 "14 Point Platform Presented by Frost," Globe and Mail, 2 May 1955. 7 This victory was only second to 's landslide victory in 1929. In that election, Ferguson won 90 of 112 seats and 58.8 per cent of the popular vote. 8 Graham, Old Man Ontario, 303; Manthorpe, The Power and the Tories, 52; Dan Azoulay, "The CCF and Post-Second World War Politics in Ontario," in Edgar-Andre Montigny and Lori Chambers, Ontario Since Confederation: A Reader (Toronto: University of Toronto Press, 2000), 366-70. -221 -

did win plurality victories in Toronto and London as well.9 Perhaps most importantly,

Frost benefited from the general upward trend in economic growth since he had became

premier in 1949. According to most election studies on this period, it was the general rise

in prosperity, especially among the working classes, that limited voting along purely

social class lines.10 While this trend changed with the rise in working class unrest in the

1960s, the decline in voting along class lines certainly solidified Frost's grip on the provincial state in the 1950s.

In light of the Conservatives' dominance, the parties most closely aligned with organized labour and the working class—the CCF and the LPP—fared poorly. For the

CCF, this defeat was especially devastating, as they entered the campaign with new leader Donald Macdonald and a list of candidates that included many veteran members of the 1940s.11 In an attempt to reach out to middle class voters, the party had also jettisoned its most radical socialist policies, including the nationalization of leading industries in the province. The new moderation program reflected larger changes occurring within the national party, that saw the passing of the Winnipeg declaration in

1956, a faint echo of the party's founding and radical Regina Manifesto.12 These

9 Dennis H. Wrong, "Ontario Provincial Elections, 1934-55: A Preliminary Survey of Voting," Canadian Journal of Economics and Political Science 23 (1957), 397-99; Graham, Old Man Ontario, 303-4. Graham was sympathetic to the observation of Globe and Mail journalist William Kinmond, who reported that Ontario voters were suffering from "handsittingonitis." 10 Wilson and Hoffman, "Ontario: A Three Party System in Transition," 216-7. 11 This included prominent labour leaders, Emon Park and Charles Millard alongside newcomers such a Kenneth Bryden. 12 Walter D. Young, The Anatomy of a Party: The National CCF, 1932-61 (Toronto: University of Toronto Press, 1969), 128-30. The Winnipeg declaration was a new proposal put forward by party leadership "to provide the party with a central body of doctrine that had none of the revolutionary overtones of the Regina Manifesto and which would, they earnestly hoped, be more acceptable to the public..." The new proposals adopted the language of a "mixed-economy," and included promises to build on the welfare state, to -222-

moderation programs culminated in the replacement of the CCF with the New

Democratic Party (NDP) in 1961.13 Under the leadership of Macdonald, the CCF's twelve-point platform contained vague references to "jobs for all," expansion of public housing, hospital insurance, the protection of home owners against excessive mortgage increases, grants for education (up to 50 per cent of the total costs) and farm security.14

The party also promised a consumer protection bill, provincial human rights legislation and an ambiguous promise to run an honest government. Even with this more moderate social democratic program, 15the CCF was not able to garner much support, winning three seats and 16.8 per cent of the popular vote.16

address growing inequality and to lead on moral questions in international affairs. What this change reflected, Young concludes, was a desire for the CCF's leadership to win elections in the face of increasing hostility surrounding the Cold War and the acceptance of the welfare state by Liberals and the Progressive Conservatives. While the majority of the party's membership may have been "committed socialists," the Winnipeg declaration was a departure from the socialist provisions of the earlier CCF. On the tension surrounding public ownership and CCF members in this period, see Ivan Avakumovic, Socialism in Canada: A Study of the CCF-NDP in Federal and Provincial Politics (Toronto: McClelland & Stewart, 1978), 138-41. 13 Horowitz, Canadian Labour in Politics, 202-10; Leo Zakuta, A Protest Movement Becalmed: A Study of Change in the CCF (Toronto: University of Toronto Press, 1964), 90-6; Young, Anatomy of a Party, 129- 37. In essence, the new party movement was driven by leadership in the party and within the labour movement to strengthen the "labour base of the party with a broader appeal to "liberally minded," middle class voters." 14 "Public Auto Insurance One of 12 CCF Planks," Globe and Mail, 3 May 1955; "High Insurance Cost Would Vanish Under CCF Plan-Macdonald," Toronto Daily Star, 5 May 1955. 15 Leo Zakuta, A Protest Movement Becalmed, 85-137; Young, Anatomy of a Party, 129-37. Zakuta and Young suggest that the CCF's decline in this period was represented by a general shift in the leadership. By the 1950s, the Liberals and the Tories had largely accepted the much of the ideological distinctiveness of the party's leadership. The consequences of this "cooptation" precipitated a general decline in organization and contributed to a bleeding away of party activists. Much of these internal changes were reflective of a general ideological shift amongst the middle class, who were gravitating back to the Liberals. All of these changes limited the appeal of the CCF in the 1950s. By contrast, Dan Azoulay has argued that the CCF's decline in the 1950s was largely predicated on external factors such as long-term economic growth and the general stability of Canada's economy after World War II. He also attributes the Cold War as playing a significant factor in limiting the CCF's appeal. In Ontario, the CCF also had to contend with the personal popularity of Frost and the acceptance of Keynesian state intervention by the Progressive Conservative and Liberals. He further suggests that the party's survival in this period was only possible because of the work of dedicated party activists. See Dan -223-

Despite left wing parties being stung at the polls, the provincial labour movement did not stop seeking new labour relations legislation. After the merger of the two largest labour federations in 1956, the newly formed Ontario Federation of Labour (CLC) launched a series of provincial hearings designed to bring to the surface inherent problems in the workings and administration of the OLRA. Chief on their list was the easing of the certification process, new OLRB procedures to address the Gale ruling, changes to conciliation rules, the removal of the ban on mid-term strikes and legalized security provisions.17 The removal of conciliation was priority for the UAW who expressed concern over the use of judges on conciliation boards. The UAW argued that judicial interference in conciliation weakened worker freedom of association rights because it significantly delayed meaningful collective bargaining.18 Coupled with the increased use of the injunction to end strikes, organized labour insisted that the government's rhetoric concerning neutrality and stability did not match their record.

During industrial disputes, the government only intervened when the unions threatened to

Azoulay, ""A Desperate Holding Action": The Survival of the Ontario CCF/NDP, 1948-1964," Ontario History 85 (1993), 17-42. 16 The campaign was also devastating for the Labour Progressive Party. See Peter Oliver, Unlikely Tory, Chapter 4: "Removing the Red Blot." In the provincial election, the lone Labour-Progressive member (Joseph Salsberg) was defeated in a bitter anti-Communist campaign by future Conservative cabinet minister Allan Grossman in the Toronto riding of St. Andrew. The Cold War influence on the 1955 campaign cannot be underestimated. According to Oliver, the constituency campaign was riddled with a flurry of personal and political charges that were grounded in anti-communism. Throughout the campaign, the Liberals, Tories and CCF had all used, to varying degrees, Cold War rhetoric in order to defeat the LPP. While never a strong electoral presence in the province, Salsberg and the LPP had provided a consistent opposition to the Frost government, which led several historians to conclude that they had been the real opposition from 1951 to 1955. See, Joseph Schull, Ontario Since 1867 (Toronto: McClelland & Stewart, 1978) 334; Bagnel, "The Ontario Conservatives and the Development of Anti-Discrimination Policy, 1944- 1962," 26-7, 34-40. Salsberg was also a leading advocate for more inclusive human rights legislation. 17 Canada Department of Labour, "Ontario Labour Relations Act Criticized," The Labour Gazette (August 1956), 972-99. 18 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 2720-24. -224-

go on strike. Employers, meanwhile, insisted that trade unions continued to violate the law and called for restrictions on the right to strike.

Largely in response to the concerns of both business and labour, Frost announced in the 1957 Speech from the Throne that the government would thoroughly review the

OLRA in the forthcoming months.19 As had occurred in 1943, the government created an all party Select Committee of the Legislature to examine and recommend changes to the

Act.20 The Committee was composed of eight members of the Conservative caucus, two

Liberals and one member of the CCF. Alongside the Chair and Minister of Mines, James

A Maloney, the seven additional Conservative members brought with them a wealth of experience as employers in the private sector. Ellis Morningstar, MPP from Welland, was a well-known local manufacturer as was G.E. Jackson from London South. Members also included future Minister of Labour, and future Minister of Economics and Development, Robert Macaulay. The other Conservative members (,

Wilfred Spooner21, and R.M. Myers) were all lawyers and well known Frost loyalists.

The opposition members were Liberal Arthur Reaume22 Albert Wren (Liberal-Labour

19 Bruce Levett, "Ontario Wrestles With Labor Laws," Windsor Star, 3 January 1958. According to Committee Secretary Harold Perkins, the formation of the Committee was "likely prompted by the action of the OFL," in their traveling hearings a year earlier. 20 Bora Laskin, "Collective Bargaining in Ontario," 684. A Select Committee provided the catalyst for the introduction of the first collective bargaining Act in 1943. CCF MPP Ken Bryden (1959-1967) was more cynical and argued that Frost appointed the Select Committee "as a way keeping his own members out of his hair." AO, OHSSPI, RG 47-27-1-16, Container Q-118, Interview with Ken Bryden CCF/NDP MPP, August 1972, 12-5. 21 Wilfred Spooner was Minister of Mines from July 1957- December 1958. He was then appointed Minister of Lands and Forests from July 1958-November 1961. 22 Abella, Nationalism, Communism and Canadian Labour, 144-5. Albert Wren and had long histories in the "Liberal-Labour" camp. Wren was the longest serving Liberal-Labour MPP, sitting in the legislature from 1951 until his premature death in 1961. Reaume had been mayor of Windsor during the Ford strike in 1945 and until that point a member of the Conservative Party. He broke with the party over -225-

Member of Parliament and public servant) and CCF leader, Donald MacDonald

(journalist).23

The Select Committee process is important for several reasons. Perhaps most significantly, it was the first major review of the post-war labour relations framework since 1943. Accordingly, it represented an important investigation into how business and labour interpreted the post-war model of collective bargaining in Ontario. During the hearings, labour and business outlined several positions over the effectiveness of the

OLRA and the OLRB in governing industrial relations in the province. The Committee's structure also gives a rare glimpse into how the three political parties in the Ontario legislature approached post-war industrial relations. The inclusion of MacDonald, for example, provided a voice for the CLC unions as they were aligned with the CCF. In addition, the selection of Wren and Reaume together with Robert Macaulay24 gave unions some hope that the hearings could promote progressive change. Employers, meanwhile, decried that the hearings were being held in public, as they were concerned

Drew's actions during the strike and ran as a member of the Liberal-Labour coalition in the 1948 provincial election. In 1951, Reaume was elected as a Liberal, representing the riding in Windsor. 23 While there were relatively few trade unionists in Queen's Park in 1957, Frost did not ask Conservative member William Warrender (and future Minister of Labour) to serve on the Committee as he was the only member of the government caucus who had been an active member of a trade union. Warrender was the member from Hamilton Centre, a former lawyer and also former Vice Mayor of Hamilton. Prior to becoming an MPP, Warrender was a member of Local 47 of the Brotherhood of Railroad Signalman of America. He paid his dues up to 1959, when he was made an honorary member. See "Departmental Offices Switched Among Ministries," Globe and Mail, 9 November 1961. CCF member for Wentworth East- Reginald, Victor Gisborn, was also passed over for service on the Select Committee despite having been the Secretary of Local 1005, of the United Steelworkers and an executive member of Hamilton Labour Council. , Canadian Parliamentary Guide, (Ottawa: Mortimer, 1955-1959). 24Canada Department of Labour, "Ontario Labour Relations Act Criticized," The Labour Gazette, (August 1956), 975. During the traveling hearings, Macaulay stated that there were omissions in the Act. For instance, he supported labour's criticisms of conciliation delay and stated that he was opposed to the use of ex parte injunctions during labour disputes. -226-

that public pressure would lead to sympathy for the unions. In lieu of these concerns, employers stressed that Ontario's trade unions were irresponsible and even reckless industrial citizens. Despite the optimism of unions and the trepidation of employers, both groups were given ample opportunity to have their voices heard. The Committee received hundreds of submissions from several dozen individual lawyers, citizens, church organizations, political parties and well-known industrial relations specialists and heard testimony numbering over 5000 pages from labour and management personal.

The diversity of opinion gave labour and management a public opportunity to outline their opposition to the provincial government's post-war labour policy. Early in its mandate, however, the Committee's scope was narrowed by chair, James A. Maloney.

During the early stages of questioning, government officials appeared before the committee in order to provide analysis of the workings of the Act. When MacDonald questioned OLRJ3 chair Jacob Finkelman over the limitations in the Act, Maloney ruled out of order any questions dealing with matters of policy because it was inappropriate to place these officials "continually on the spot." MacDonald responded by comparing

Maloney to a "little dictator" for his decision to narrow the mandate of the committee before it began hearings. Under these already restricted circumstances, the trade unions approached the committee seeking substantial changes in the laws regulating their activities in the province.

25AO, Ministry of Labour Legislation and Regulation Files (hereafter MLLRF), RG 7-14-0-108, Box 3, Canadian Manufacturers Association Letter to Leslie Frost 19 March 1957; AO, MLLRF, RG-7-14-0-107, Box 3, Canada Vitrified Products Ltd., Letter to the Select Committee, 7 November 1957. The CMA suggested that any proposal to reform the Act should be made by experts and not by a public body. 26 '"Little Dictator at Work,' CCF Head Says of Tory," Toronto Daily Star, 26 September 1957. -227-

Trade Unions before the Select Committee

The first official union testimony came from the Ontario Federation of Labour on 1

October 1957.27 The OFL's testimony largely reintroduced the issues put forward by the traveling hearings in 1956. Interestingly, the OFL's presence also brought to the surface lingering doubts about the political responsibility of organized labour in the province.

Liberal member Albert Wren—who had demonstrated political sympathy to trade unions and been part of the Liberal-Labour coalition in the 1940s—began the questioning by exploring the OFL's membership base. In an eerie similarity to the McCarthy hearings in the United States, Wren and Liberal-Labour member, Albert Reaume (along with several

Conservative members) immediately probed the OFL's relationship to the Communist

•jo membership in the Mine Mill and Smelter Workers and the United Electrical Workers.

In response, Secretary Treasurer Douglas Hamilton and David Archer29 went out of their way to stress that the "legitimate" house of labour did not include organizations that were communist dominated.

The OFL's testimony was divided into two parts and continued on 8 May 1958. The National Council of Canadian Labour and the Christian Labour Association of Canada did testify a week earlier but neither organization could be described as a bona fide trade union because both demonstrated a cosy relationship with employers and refused to engage in strikes. In the case of the National Council of Canadian Labour, they were the only labour organization to call for an end to the colonial nature of American dominated International unionism. 28 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Federation of Labour, 1 October 1957, 843. 29 Archer was OFL President from 1956-1972. He was also a labour side appointment to the OLRB during this period. 30 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Federation of Labour, 1 October 1957, 850. Paradoxically, Archer relied on the anti-communist and quasi-fascist evidence from the McCarthy hearings in the United States to justify the CLC's expulsion of Mine-Mill and the UEW from the "legitimate" house of labour. -228-

The OFL did not shy away from these questions, as it was eager to demonstrate that the Ontario labour movement was responsible and non-communist. The OFL stressed that one of its sole purposes was to encourage affiliates to obey the law and highlighted its record in pressuring affiliates to avoid illegal strikes.31 Archer and

Hamilton also stressed that they personally spoke out against affiliates who violated ethical guidelines of the trade union movement. They also sought to speak out against jurisdictional disputes, as they were seeking to stop the raiding of non-communist affiliates.32 While the OFL admitted that the constitution limited its ability to interfere in the internal affairs of affiliates, Hamilton and Archer stressed that their preference was always to find a democratic manner to discipline affiliate unions who disobey the law.

Ultimately, concluded Secretary-Treasurer Hamilton, this process was hindered and time- consuming because "democracy moves exceedingly slow."

Elsewhere, the OFL continued to advocate for the legislative protection of the

Rand formula but protested its ban on mid-term strikes.34 They were also opposed to the voting procedures used to determine certification under the Act.35 The union was also

31 Nonetheless, OFL leadership admitted that there was little recourse if individual affiliates violated the OLRA or were guilty of raiding. 32 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Federation of Labour, 1 October 1957, 858-68. 33 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Federation of Labour, 1 October 1957, 867. 34 "Judges Favor Management Union Charges," Toronto Daily Star 15 May 1958. This call came loudly from the construction union's who saw the denial of the mid-term right to strike as creating more workplace conflict and that "[e]mployers can, and do use the act simply to delay collective bargaining." The particularities of the construction industry are an entire different field within Ontario's labour relations field. Thus, while construction industries will be mentioned, there is simply no room here to present a detailed analysis of this industry. 35 Section 7 (3) of the 1950 Act read: "If on the taking of a representation vote more than fifty per centum of the ballots of all those eligible to vote are cast in favour of the trade union, and in other cases if the -229-

critical of the province's haphazard enforcement of the law when addressing illegal

employer behaviour. In addressing these limits, the OFL insisted that employers were

increasingly guilty of ignoring the OLRA, the Unemployment Insurance Act and the

Holidays with Pay Act. More often than not, they argued, ".. .employers in the province knowingly break the OLRA and nothing is done about it. We suggest to your Committee that if Commissions are going to be set up to review misdemeanours of organized labour, then the same should hold true for management."36 Given the lacklustre enforcement of employer abuses, the OFL argued that employers were seemingly free to engage in illegal activity, including adovcating violence on the picketline with strikebreakers.37 Beyond these blatant violations of the Act, there were also dozens of minor ways in which employers violated the law. In those situations where a union had not yet acquired certification rights, for instance, workers continued to be harassed, disciplined or fired for engaging in union activity. Nevertheless, in most cases the government placed prima facie blame on the trade unions for violations of the Act.

The OFL also stressed that employers were using sophisticated forms of legal tactics to break certification drives. Since 1951, the union reported that there was a sharp

Board is satisfied that more than fifty-five per centum of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit." (my emphasis) Such weighty expectations, the union stressed, put the certification procedure out of reach for many and did not live up to the basic standards of Ontario's own democratic procedure. 36 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Federation of Labour, 8 May 1958, 4100- 1. 37 Ontario Federation of Labour, "2nd OFL Brief to Select Committee: Counter-Attack," Ontario Labour Review (May 1958), 1-3. The OFL outlined one popular union-busting tactic: One Nathan Shefferman (a professional strikebreaker) had been hired by many Canadian firms to break strikes. One of Mr. Shefferman's favourite tactics was to stage an act of violence that would then be blamed on the union. In other instances, police were used to provoke peaceful strikers into violence. -230-

increase in employee petitions to counter union certification applications at the OLRB.

According to OFL officials, company lawyers were often the source of so-called voluntary employee petitions. After the Gale decision, the Board was required to take these petitions seriously and thus carried influence with Board personnel. Additionally, many individuals who had "voluntarily" signed a petition often appeared before the

Board with representation from well-known company lawyers.38 The problem was that post-Gale OLRB rules of procedure prohibited union representatives from exploring the origins of these signatures because they were unable to investigate how anti-union petitioners and their legal representatives were being financially compensated. In light of the judicial interference of the Gale decision, the OFL claimed that Board members went out of their way to accommodate dissenting opinion in certification hearings.

AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Federation of Labour, 1 October 1957, 898-9; AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1581. The UAW also called for "restrictions against petitioners, against management who was responsible for taking up these petitions and influencing the workers. Those are the kind of restrictions we say are in the Act which deny the real feeling of the workers. The only redress we have in a case of that kind is to prove to the Board that we should be granted certification without that vote. That is really not satisfactory way of doing business." 39 AO, PSCLR, RG 49-138, Box C 90, Testimony of the United Steel Workers of America (USWA), 26 November 1957, 2394-5; AO, PSCLR, RG 49-138, Box C 90, Submission of the United Steel Workers of America (USWA) to the Select Committee on Labour Relations, 26 November 1957, 5. The Steelworkers objected to the fact that Board rules stated that a union had no status before the Board on an application when it could not demonstrate 45 per cent support. In contrast, Board rules allowed individuals or groups opposing a union to utilize various tools—including petitions, testimony, or personal objections—to counter a union at any stage of the certification hearing. In these matters, the union stated that Board rules needed to be amended so that everyone appearing before it demonstrated a level of support. The union brief clarified this point: "...it is appreciated that it is difficult to establish exactly equal terms upon which the unionist and the anti-unionist can come before the Board, and it is likely that the preferred position of the anti- unionist will be maintained, though there is little injustice or in logic to justify such a condition. We do think, however, that the thoroughly disproportionate positions of such contending parties before the Board could be lessened by the very simple proposition that no one comes before the Board unless they can demonstrate that they represent the 45% minimum of the employees which the Board requires the union to establish before it can proceed with its case." -231 -

In one example, the union pointed to the admission by a company lawyer from

Elwood Robinson Co. (Toronto) that he had been hired to draw up petitions for OLRB de-certification hearings.40 Given this evidence, the OFL concluded that "[i]t is apparent to any thinking person that these interventions—innocently publicized as the revolt of principles by workers against union domination—are openly subsidized by management."41 By giving these petitions standing during certification (and decertification) hearings, the union claimed that OLRB procedures often ignored the traditional power imbalance between employers and workers. The OFL concluded by suggesting that employer demands to further judicialize Board proceedings represented a thinly veiled attempt to carry on the "vicious and ruthless war to destroy unions."42

Conservative members took exception to the argument that the OLRB was overly judicialized or that it was a haven for high priced company lawyers. Rather, they accused the unions of a double standard. On the one hand, the unions complained that they were at a disadvantage by company responses to an organizing drive. On the other hand, the

Tories claimed that the unions used professional organizers and labour lawyers to organize new workplaces. In making this comparison, the Tories conceded that questions pertaining to unionization were increasingly reliant on legal professionals to regulate employer-union activity. With the greater use of lawyers, employers were expecting the

OLRB to behave like a court while the unions felt this put them at a disadvantage because they viewed the law (and judges) as favouring employers. Conservative members of the

40 "Boss 'Vicious, Ruthless' In Union War, OFL says," Toronto Daily Star, 9 May 1958. 41 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Federation of Labour, 1 October 1957, 899. 42 "Boss 'Vicious, Ruthless' In Union War, OFL says," Toronto Daily Star, 9 May 1958. -232-

committee, meanwhile, maintained that further legalization allowed for a degree of procedural fairness and natural justice for individuals.

In response to the Conservatives observations regarding the role of law in labour relations, the United Autoworkers (UAW), the United Steelworkers (USWA), the United

Mine Workers (UMW), the Ontario Federation of Public Employees (OFPE) and the

National Union of Public Employees (NUPE) all stressed, to varying degrees that unions had accepted the responsibilities imposed upon them in the post-1950 period.

Nonetheless, they also insisted that this did not imply that the law had altered the balance of power between employers and unions. By stressing this point, the unions relied on evidence of certification irregularities, legalization of the Board and the anti-union attitudes of several provincial employers.

In order to address questions pertaining to the balance of power between unions and employers, the USWA maintained that its resources could not compare to the financial weight of Steel employers.43 The UAW took a far more direct tone, stating that the OLRA openly favoured management. The union conceded that:

Admittedly, we are stronger than we were twenty years ago, particularly in the industrial union field, but our advancement cannot compare with management, and not only when we have not—I [Burt] would put it this way—we have not reached a point where we have any kind of equality that would allow us to bargain properly. The very sections of the OLRA themselves indicate the power of management and the influence that management has over government

43 AO, PSCLR, RG 49-138, Box C 90, Testimony of the United Steel Workers of America (USWA), 26 November 1957, 2366. According to Eamon Park, "the total annual income for the 360 locals...is less than two per cent of the annual income of just one company with which we deal with, the Steel Company of Canada. So, when some try to suggest that by counting millions we are somehow equated in economic structure with our employers, it is not so." -233-

thinking... It should be remembered that regardless of that, management still has their prerogative to make decisions. We are not proposing changing that...

In many ways, the CLC unions were not proposing a radical departure from the existing

OLRA. While all CLC unions acknowledged that there had been changes in the post-war era, there was consensus that management was the greatest impediment to advancing the cause of unionization in the province. By addressing the power of management, most of the testimonies sought to improve the law in order to "civilize" hostile employers and to protect existing unions.45

The inadequacy of the law to address the power of management played an important role in the unions' assessment of OLRB certification procedure. The USWA and the UAW argued that existing certification procedures discriminated against broad- based unionization in Ontario. The two unions also suggested that the Act gave management additional freedoms to defeat certification drives through intimidation, coercion and unnecessary delay. For example, UAW president George Burt identified several areas where employers were able to avoid substantive issues in bargaining by relying on conservative judicial decisions on conciliation boards. Burt also argued that

Board certification procedures discriminated against unions because it required the submission of signed union cards as well as receipts for a one-dollar application fee to demonstrate the validity of worker support. The union claimed that company lawyers

44 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1578-9. George Burt, (Canadian director of the UAW) reply to John Yaremko. 45 "Wants MPP's to 'Civilize' Mine Owners," Toronto Daily Star, 27 November 1957. For the Steelworkers, this position grew out of their struggles for recognition and check-off rights in the northern gold mines. -234-

had convinced the Board that a one-dollar initiation fees prevented individuals from casually supporting unionization. In this instance, business-inspired rules imposed a

"double majority" on the unions before they were able to receive Board certification.

Unions were further disadvantaged by the refusal of the OLRB to accept circumstantial evidence as confirmation that employers were discriminating against pro-union workers.47 Given the multiple hurdles to obtain certification, the UAW concluded that

Board procedures inadvertently gave employers needed time to oppose and defeat union organizing campaigns.

Question pertaining to certification were of particular interest to Conservative member R.M. Myers. Throughout the hearings, Myers continuously stressed that the unions were increasingly powerful players in Ontario. He also assumed that union leaders routinely violated the law when it suited their interests. At the centre of this argument was the belief that union organizing tactics habitually violated individual rights by bullying workers into supporting a union. This conclusion was drawn from evidence presented by management, which claimed that unions often used the threat of violence to force workers into signing union cards. Meyers also uncritically accepted management observations that unions produced phoney cards in certification hearings.48 As a critic of these tactics and a supporter of management rights, Myers positioned himself as the

46 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1585-9. 47 "UAW Criticizes OLRB on Evidence Method," Globe and Mail, 16 October 1957. 48 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1593. See Jackson and Myers' questions to Burt. -235-

defender of individual workers by suggesting that all applications for certification be required to undergo a mandatory vote.49

Myers buttressed his support for mandatory voting procedures in language of industrial democracy and individual freedom.50 Based on these characteristics, Myers was convinced early in the hearings that mandatory votes better stabilized the relationship between employers and unions. Notwithstanding his support for union democracy, he also insisted that the level of illegal strikes in Ontario demonstrated that trade unions were not accepting post-war legal responsibility.51 This opinion was shared by most of the Conservative members of the Committee who believed that organizers used intimidation and violence in order to convince individual workers to support unionization. There was little opposition to these questions from the rest of the

Committee, with CCF leader Donald MacDonald offering the only voice of support for the government's existing legislation! Myers' endorsement of mandatory certification votes implied that there was considerable support on the Committee to re-write the certification rules in the Act.

The UAW responded to these accusations by stressing the inherent power imbalance between workers and employers. It was impossible, they argued, for a secret

49 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1592-3. 50 Frank Drea, "MPP Seeks Curb on Union Power to Have Own Members Fired," Toronto Telegram, 6 February 1958. While Myers claimed that he was opposed to right-to-work laws because they were blatant forms of 'union busting', he did insist that "individual union members need security that they will not lose their jobs in a plant with a union shop contract, because of an arbitrary decision by union officials." 51 AO, PSCLR, RG 49-138, Box C 93, Department of Labour, Economics and Research Branch, Analysis of Application for Consent to Prosecute Under LRA Legislation in Ontario, 12 May 1958. These conclusions seemed to go against evidence presented to the Committee that the numbers of illegal strikes were not exceedingly high. Between 1950 and 1957, for instance, employers filed 252 "consent to prosecute" applications but withdrew 218 of these. Of the remaining cases, only ten were granted. -236-

vote to eliminate the power that employers maintained over employees. As the UAW

asserted,

First of all, every worker when he is being approached to sign a union application card knows he is doing so against the wishes of his employer in almost every instance. So we have the social implication first of all of the worker with some fear and some reservation, in signing a union card in the first place. He knows the foreman generally, or the superintendent or the owner of the establishment he is working for, [and] ... makes it clear and unmistakable that he is opposed to any union organization by one means or another. I am surprised that members of this Committee—it may be only in a question, but certainly the implication is there- are concerned with trying to prove that actually in fact the union cards presented to the Board are not valid. They are concerned about freedom, and trying to get the will and expression of the employees, and when you consider the social atmosphere in which the workers have signed their union cards, is it not sufficient that these people come forward with an application card that is signed and generally witnessed by the person who signed it?52

On this basis, the union called on the Conservatives and Liberals to rethink their support

for mandatory certification votes. Ultimately, Burt insisted that the social realities of the workplace made these democratic principles illusionary and undermined workers right to a bona fide trade union.53

In order to address some of the power imbalances in the workplace, the UAW and the USWA argued for the closing of loopholes in the Act that allowed companies to continue to oppose unionization. One of the lingering problems, for instance, was the continuation of company-dominated unions. Under the current certification rules, the

52 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1593. See R. Siren (UAW) response to Myers. 53 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1751. Burt suggested that the UAW was not "opposed to a democratic vote. We say, in the present situation, when we are required to get a guy to pay a dollar and sign a card and if we have more than 55 per cent it should be proof in any democratic situation. I think it would even be proof in some of the Iron Curtain countries." -237-

onus for demonstrating that a union was company dominated fell to workers. So cumbersome had OLRB procedure become, that it was nearly impossible to ask in an

OLRB hearing how a company union was being financed, or who was paying its legal bills. Experience had taught the UAW that these two questions were the most important indicator in exposing company-dominated unions.54 On these questions, Board procedure was so rigid that the rules surrounding standing, cross-examination and burden of proof were subjected to strict judicial procedure similar to those in court. As George Burt lamented,

I do not know what kind of proof is needed. I seems to me that circumstantial evidence is accepted anywhere except by the Board and I think, the Board ought to make rulings on circumstantial evidence of that kind, but the Board will not even allow us to cross-examine these people as to the funds, as to who is paying the lawyers unless we make charges, the we must produce witnesses to substantiate our charges and then, when the company union people give evidence in rebuttal, then we can cross-examine...55

The UAW felt that the onus to determine whether the employer was in violation of the

Act unjustly fell to unions. As s. 9 of the OLRA prohibited the Board from certifying any trade union "if the employer has participated in its formation or administration, or has contributed financially, or gives any support to it," then the Board should do everything in its power eliminate company dominated unions. This included allowing questions in certification hearings to determine who was paying lawyer fees, travel expenses and compensating for lost work time. The UAW believed that changes of this

5 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1688-9. 55 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1689. -238-

nature would provide an effective counterweight to high-priced company lawyers who continued to chip away at the freedoms of unions to organize before the Board. On this point, Select Committee council George T. Walsh responded to the UAW's hostility by suggesting that the union was only engaging in a "tirade against the board.5

Walsh's observation, however, was premature. Despite commenting on the judicialization of Board procedure, both unions continued to defend the OLRB. In fact,

Burt made it clear that the Board was the most qualified institution to deal with questions pertaining to unionization, which explained his suggestion to expand OLRB powers on certification, strikes and collective bargaining disputes. The UAW also sought to rewrite the conciliation process by transferring those powers to the Board. At the centre of this argument was the assumption that the Board protected workers rights to form unions against the pro-management leanings of the courts. The UAW and the USWA thus proposed to strengthen the OLRB's procedural powers so that it was a deterrent to judges intervening in the process.57 Other CLC unions, including those in the public sector and in the construction trades, also defended the OLRB. Amongst all unions, there was universal agreement that the OLRB was a more consistent and democratic mediator of union affairs than the courts.58 In taking this position, organized labour continued to

56 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1690. 57 AO, PSCLR, RG 49-138, Box C 90, Testimony of the United Steel Workers of America (USWA), 26 November 1957,2751-2. 58 AO, PSCLR, RG 49-138, Box C 90, Testimony of the National Union of Public Employees (Ontario Federation of Public Employees), 4 December 1957, 2782-3. As one example, the National Union of Public Employees (NUPE) argued that workers should be given the discretion to determine essential services during a strike. As a compromise, they proposed transferring the power to determine essential services to OLRB. -239-

cling to the promises of post-war industrial relations, which suggested that the Board had

the ability to extend industrial democracy in the province. The only way this could occur,

the unions suggested, was to give the OLRB discretionary power to challenge employer power.

The unions' opposition to judicial involvement in labour relations centred on management's ability to break strikes with court-imposed injunctions. The Steelworkers argued for the elimination of injunctions, maintaining that courts routinely discriminated against trade unions. They also sought to limit the power of management to break strikes throughout the "hiring of outside strike-breakers [because it] is the theft of a man's job.

It should be outlawed as other forms of theft are outlawed."59 This suggestion was particularly offensive to the Conservative members of the Committee who were hostile to the idea that the legislature "take sides" in a labour dispute by restricting the right employers to operate their business during a strike. In response to the accusations made by the Steelworkers, the chair had circled a large penciled note in the union's brief, asserting "WHAT ABOUT ILLEGAL STRIKES?"60 This blatant level of hostility emerged out of questions regarding violence on the picketline. What was particularly distasteful to the Conservative and Liberal members of the Committee was their perception that the trade unions were often guilty of violating the law and engaging in violence on the picket line.

AO, RG 49-138 Box C 92, United Steelworkers of America, Picketing, Strikes, Injunctions: Supplemental Brief to the Select Committee on Labor Relations, 26 November 1957. -240-

Placed on the defensive, the majority of CLC unions, including the UAW and the

US WA, focused their criticism on the inability of the OLRA to protect the right to strike.

In these cases, there was much concern over the right to picket. Both unions agued that when strikes were supported by the membership and run effectively, it was rare for the situation to deteriorate into a violent clash on the picketline. The exception occurred when employers ignored the picket line and hired strikebreakers. When this took place, employers were dependent on police protection to escort strikebreakers into the plant that often led to confrontations with picketers. Although this violence originated with the hiring of strikebreakers, employers continued to hide behind traditional rights of property to claim that they had the legal right to run their business during a labour dispute. For the unions, however, this argument represented a blatant contradiction in existing law.

Under the OLRA, the freedom to run a business was given a higher priority then liberty of workers to defend their jobs. Burt concluded that in these instances the law "was simply designed to protect the power of management."61

Ontario's public sector unions also identified several limitations in existing labour law. Unlike industrial workers, most public sector workers were engaged in a struggle for wide-scale legitimacy and the open right to bargain and strike. The public sector unions were particularly troubled by section 78 of the OLRA that allowed municipal employers to "opt out" of the Act and thus eliminate the collective bargaining rights of municipal workers. Government defended the "opt out" clause on the grounds that it did

61 AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1639. -241 -

not wish to impose its will on democratically elected municipal councils. Pressed further, the Conservative members of the Committee admitted that the government's real concern

ft") was the possibility of "essential services" falling victim to strikes.

The unions countered this argument by pointing to situations where strikes had occurred in so-called essential services. In those areas—-such as the 1956 municipal strike in Kitchener-Waterloo—the local unions made it a public priority to maintain water, hydro and other vital services.63 Relying on this evidence, NUPE maintained that the debate concerning "essential services" was not simply over the health of the public but rather a more nefarious attempt by government to limit unionization in the public service. As NUPE President W.M. Buss reasoned: I think in the past wherever a strike has occurred that the municipal employees have gone along with the idea of carrying on essential services, but what we find at the present time is that there are elected representatives to the municipal government who are employers of labour themselves and do not subscribe to the i • 64

trade union movement.

To counter this problem, the unions insisted that workers had demonstrated in the past that they were professionals who understood the importance of public service. They thus maintained that the unions themselves be given the freedom to allot the necessary personal to carry out essential services. The Conservative and Liberal members of the

Committee rejected this idea outright, stating that the protection of the public was the

62 AO, PSCLR, RG 49-138, Box C 90, Testimony of the National Union of Public Employees (Ontario Federation of Public Employees), 2777-82. These members pointed out that the loss of water, garbage or hydro services would be devastating to the public and were thus sceptical of eliminating S. 78. 63 AO, PSCLR, RG 49-138, Box C 90, Testimony of the National Union of Public Employees (Ontario Federation of Public Employees), 4 December 1957, 2782-83. 64 AO, PSCLR, RG 49-138, Box C 90, Testimony of the National Union of Public Employees (Ontario Federation of Public Employees), 4 December 1957, 2777. -242-

government's priority. In this situation, the Committee challenged the ability of public sector unions to express their autonomy under the Act.

The limitations in the law to protect the right to strike were also a priority for non-

CLC unions. Faced with the anti-Communist tirades of the Committee, these unionists understood that the shape, structure and role of the law were of utmost importance. The two largest non-CLC unions in Ontario were the International Union of Mine Mill and

Smelter Workers (Mine-Mill) and the United Electrical Workers (UEW). Throughout the

1940s and 1950s, these unions underwent a tumultuous period within the Canadian house of labour as they were subjected to Cold War attacks by trade union leaders in the CCL and TLC.65 This history was not lost on all members of the Committee. They went so far as to question Mine-Mill's 1893 constitution that prefaced the goals of the trade union with the primacy of class struggle. Profiling the changing nature of in the country, leader of the CCF Donald MacDonald asked rhetorically if such political manifestos had "not been outmoded?"66

This level of browbeating had taken its toll on the strength of Mine-Mill, as it had been subjected to series of raids from the USWA in the late 1940s and 1950s. Despite these changes, Mine-Mill still held considerable influence in the province, controlling

Local 598 in Sudbury, the country's largest single local union. The UEW faced similar hostility, as their leadership were leaders in the Communist party and thus strong left-

The long history of Mine Mill's struggle to retain its legitimacy within the Canadian House of Labour has been well chronicled in Abella, Nationalism, Communism, and Canadian Labour, 86-110. 66 AO, PSCLR, RG 49-138, Box C 90, Testimony of the International Union of Mine, Mill and Smelter Workers, 3 October 1957, 1172. The irony of the CCF leader belittling the idea of class struggle could not have been lost on the Liberal and Conservative members of the Committee. -243-

wing critics of the CLC unions. Given these characteristics, it is surprising how similar the UEW and Mine-Mill's testimony was to the CLC's embrace of the law to regulate collective bargaining, strikes and the overall relationship between unions and employers.

Mine-Mill's Canadian president Nels Thibault, Vice President William Kennedy and President of Local 598, Mike Solski appeared before the Committee in October 1957.

They centred their criticism on the limitations of certification requirements, contracting out of services and the constant attempts by employers to bring right-to-work laws to

Ontario. Agreeing with its long-time rival the USWA, Mine-Mill advocated for stronger language around union security provisions and called for the removal of legislative restrictions on the closed shop. They also pressed for union successor rights and insisted that unions be given the ability to apply for contract extension. Like all unions, Mine-

Mill's officers also pointed to an intensification of employer opposition to the check-off and union certification drives throughout the 1950s. In some instances, they reported that companies were simply tweaking their legal structure in order to break existing unions and to stop new ones. As one example, the union identified,

...the Labird's Lumber Company in Sudbury [who] changed their name and split into three different parts and we had to make [separate] applications, three new applications, or two new applications, covering the two new sections. Within a couple of days they had advertisements in the paper notifying the general public that it was the same company, the same management, operating at the same old stand .... in our humble opinion it was complete subterfuge, there was no new management, it was still the same but they got around this-I don't accuse the Board of doing anything wrong, but certainly the Act does not provide that there is any difficulty if there is some slight change like that.67

67 AO, PSCLR, RG 49-138, Box C 90, Testimony of the International Union of Mine, Mill and Smelter Workers, 3 October 1957, 1109-12. -244-

Mine-Mill maintained that these types of tactics were only the tip of the iceberg. In their submission to the Committee, the union chronicled four instances where Local 598 had applied for certification and companies changed their legal structure in order to avoid unionization.68

For Mine-Mill, these problems were reflected in the OLRA's restrictions on organizing and its inability to curb anti-union campaigns launched by employers. These criticisms centred on areas where the Act encouraged employers to delay and stall collective bargaining:

Unions today that are strong enough to fight that action get better agreements and get them faster, but where the employers are dealing with small, weak, little unions and where the job is a temporary one, they take full advantage. In such an instance, these employers howl that they know they have to bargain in good faith or else the worker will apply for exemption from the Act. Most workers are pretty sensible about their rights and should be entrusted to make proper decisions...69

At the Inco and Falconbridge mines in Sudbury, for instance, employers avoided extending collective bargaining provisions by contracting out new work to secondary employers. Leslie Rowntree confirmed this trend when he observed that "in today's business field in the mining situation, you have a development trend whereby a mining company, instead of building its own mill, contracts the whole subject matter to another firm through an independent contract."70 In order to address the phenomenon of

AO, PSCLR, RG 49-138, Box C 92, Submission of the International Union of Mine, Mill and Smelter Workers, 3 October 1957, 4-10. 69 AO, PSCLR, RG 49-138, Box C 90, Testimony of the International Union of Mine, Mill and Smelter Workers, 3 October 1957, 1137. 70AO, PSCLR, RG 49-138, Box C 90, Testimony of the International Union of Mine, Mill and Smelter Workers, 3 October 1957,1140-1. -245-

"contracting out" union jobs, Mine-Mill suggested that union successor rights be included in the Act. In instances where successor rights were unable to stop contracting out,

Mine-Mill suggested extending OLRB power to remedy these union avoidance tactics as unfair labour practices.

For non-CLC unions, the question of OLRB discretionary powers played a central theme before the Select Committee. Similar to their counterparts in the CLC, Mine-Mill and the UEW took the position that the multiple hurdles to obtain certification were unjust.71 Mine-Mill was also critical of the employers seeking legal remedies to counter illegal strikes. In this area, they argued that the Board took an unusually narrow interpretation of the "legal" right to strike. For example, in several cases the OLRB ruled that the withdrawing of labour through work-to-rule campaigns constituted an illegal strike.72 Based on these rulings, Mine-Mill insisted that the Board's decision-making procedures were influenced by creeping judicialization. Under these circumstances, employers were able to demonstrate before the Board that any instance where the labour process was altered by a collective decision was equivalent to an illegal strike. As the

Board was relying on these narrow interpretations of contract, unions were increasingly unable to resist the arbitrary power of employers.

71 AO, PSCLR, RG 49-138, Box C 90, Testimony of the International Union of Mine, Mill and Smelter Workers, 3 October 1957, 1104-6. 72 AO, PSCLR, RG 49-138, Box C 90, Testimony of the International Union of Mine, Mill and Smelter Workers, 3 October 1957, 1169-72. In a 1956 ruling in Harding Carpets Ltd. and The Canadian Textile Workers, Local # 501, the Board ruled that a decision by the Canadian Textile Workers to collectively refuse to work overtime constituted an illegal strike. According the union, this was one of the most "preposterous" decisions ever handed down by the Board. In this instance, Mine-Mill argued that the Board was taking on judicial characteristics by following the "letter of the law without regard to the social realities in the workplace." -246-

The testimony of the 25,000 member UEW, and its formidable president C.S.

Jackson, took a similar position on the OLRA. At the heart of the 1950 legislative framework, Jackson argued, was a structural imperative that encouraged employers to oppose unionization. The UEW brief pointed out that "practically no employer will negotiate a CBA unless and until it has received certification. The exceptions to this are almost exclusively confined to company unions."73 Although unionization rates had slowly grown throughout the decade, Jackson's argument suggested that the OLRA supported and openly encouraged employers to oppose union organizing campaigns.

The reference to the coercive role of employers in resisting unions in "all instances" was important because John Yaremko had hinted a week earlier that employer speech provisions needed to be expanded in the Act.74 In response, the UEW insisted that broadening employer speech rights encouraged open union busting. Indeed, it was early resistance to unionization that led to the establishment of S. 3 of the Act which enhanced the individual right "to join a union of his choice and to participate it is lawful activities." Given that the Act leaned to the protection of individual workers, the UEW argued that any attempt to balance this right with greater protection for employer speech would undermine the spirit of the Act. Using the language of balanced labour law, the

UEW claimed that individual employees did not enter into the employment contract as equals. Ultimately, "the employee and the employer are not equals; the employer holds

AO, PSCLR, RG 49-138, Box C 92, Submission of the UEW to the Select Committee on Labour Relations, 16 October 1957, 16-7. 74 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Automobile Chamber of Commerce, 10 October 1957, 1435-6, 1461-2. -247-

many things over the head, as possibilities...and the employee understands that better than you do or better than I do, in handling the question of firing or losing his job."

As the Act guaranteed employer resistance to unionization, the union claimed that any attempt to legislate a policy based on balance was impossible. In these situations, a company could rely on numerous coercive tactics that could not be countered by union organizers. For instance, companies such as the Canadian Gypsum Company in Guelph,

Supreme Power Supplies Ltd. in Mimico and the Joyce and Smith Company in Hamilton had all attempted to influence a certification vote by promising new jobs, paying overtime to attend anti-union meetings or firing union supporters in order to avoid a successful certification. Additionally, the Canadian General Electric Company in

Toronto and the Canadian Westinghouse Company in Brantford had transferred entire departments, sections of plants or moved a plant to a new city in order to avoid unionization. In other cases, companies had constructed a new plant to avoid the UEW.

Jackson noted that over half of all UEW certification drives since 1950 resulted in employers calling informal, paid information meetings to warn employees about the

• 77 • consequences of joining a union. Increasingly, the union argued, legal counsel was scripting these meetings. According to Jackson, these same companies,

75 AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1723. See R. Russel (VP) UEW response to J. Yaremko. 76 "Ask Automatic Certification if Intimidated," Globe and Mail, 12 October, 1957. 77AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1691-2. The UEW stated: "In the matter of a relatively current case the Canadian Gypsum Company in Guelph; they frequently held meetings, what we call captive meetings that is, they were paid even beyond their working time. Their normal working time was 4 o'clock and in that case they went on for fifteen or twenty minutes. This came out in evidence, and the workers received even more than their normal pay. They were there for three-quarters of an hour or an hour getting overtime-not at time and a half but at their regular rate. In this particular instance a vote was conducted and -248-

...have held meetings with those employees designed to discourage the employees from taking up membership in the union. The types of meetings they hold-in some cases, in GE, they have what they call information clinics, which is supposed to be part of their Labour Relations policy between the company and the employees with regard to what is transpiring on the production front. In the course of the information clinics frequently they find the opportunity to impart their position with regard to the union and to deliberately and quite openly at times frown on their workers taking part in any union activities and specifically put on the record the company's attitude towards this, that or the other union. I say we can quite safely make the statement that it is commonplace in organizing any parts of those two groups in particular. I think if we were to scrutinize the record of the last five years in particular of applications made by these unions-I would think we would find better that 50% of the cases where the employer has in one form or another called a meeting designed solely for the purpose of discouraging the employees from joining the union that they are obviously choosing at the time. I think the record would bear that out.78

Under these circumstances, attempts to loosen employer speech rights undermined the attempt of bona fide unions to organize while opening the door for company-dominated organizations. In these instances, the union argued that all questions pertaining to employer speech be mediated through the Board. If there were instances where

despite the company having captive meetings of the type they refer to here, the union won the vote by the required amount. The company was able to go before the Board and say-I mention this case because it shows a counter-balance with the union-that there should be a second vote." 78 AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1694. 79 AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1745-6. For instance, in cases where multiple trade unions were competing for a single plant, the UEW suggested that the Labour Board be empowered to offset the influence of employers in these matters: "We make the point that the employer should not interfere in the organization of the union. Now you come to the question of the thin edge of the wedge as to whether a fact is a fact, and we certainly do not wish to be unreasonable on these matters, but we believe if a union were making some claim that was a distortion of fact, the company would have to have the same rights as you are suggesting we should have to come before the Board rather than have them enter into the picture and attempt by so-called answering of statements of facts, and thereby getting involved in the rights of the workers to join a union. They could make their charges before the Board, and we would be perfectly satisfied... [Ultimately] I object to any action by the employer which constitutes interference in the rights of the unions." -249-

employers had illegally avoided unionization, the OLRA should allow for automatic certification of the union.

The UEW also concentrated on the inequity of the certification process. The union argued that employers were increasingly using legal tactics to defeat union certification drives and limit the right to strike. The union claimed that these types of influences were making a mockery of the unfair labour practices in the OLRA. The union also insisted that the Board's consent-to-prosecute orders were increasingly ineffective because they often sided with employers. The union stated that they rarely used the consent-to-prosecute powers because employers used these provisions in order to resist strikes by subjecting them to endless legal wrangling or appealing for court- imposed injunctions. These stories reflected similar experiences from all Ontario unions, suggesting that the OLRA and the OLRB were incapable of addressing employer power.

Despite the similarities in CLC and non-CLC union testimonies in these areas, there were subtle differences. In particular, the UEW centred on the inability of government legislation to address the significant power imbalances between workers and employers in a capitalist workplace. In response to the use of loaded terminology, several

8U AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1714-6. In one instance, the union was able to organize a small plant containing forty workers in Hamilton over a two-day period. On Monday, the company discharged 27 out of 40 people. The union applied for permission to have the Board declaration of illegal lockout and the company applied for a declaration of an illegal strike. Jackson described the situation: "On 11 October 1956, the Board declared it an improper lockout, whereupon we made an application on 7 November for permission to prosecute the company and on 29 November the Board gave us permission to prosecute the company. That was in 1956. By the time the union testified before the Select Committee in 1957, the prosecution was still delayed in the courts and there had been no decision in the case." The union concluded that this delay occurred because the company's lawyer was "well known to act for both company unions and companies. That is not the end of the case. That is the end of that side of it." -250-

members of the Committee responded by questioning Mine-Mill and the UEW's connection to the Communist party. As these affiliations ran contrary to all political parties on the Committee and with the CLC, the Select Committee demonstrated a marked hostility to the two unions. Yet, while the Communist affiliation may have weakened the legitimacy of Mine-Mill and the UEW testimony, there is little doubt that the two unions presented a forceful critique of the status quo. In this manner, Mine-Mill and the UEW provided a substantive argument on the concrete struggles that unions faced under the 1950 OLRA.

Q 1

This ideological critique was notable in the testimony of C.S Jackson. In his response to Myers' consistent demands for a mandatory free vote to alleviate workers from the tyranny of aggressive employers and union organizers, Jackson stated bluntly that, ...the situation is heavily weighed against the employee ... because of the fact that the employer holds over every employee the full authority of his livelihood. The Wagner Act, which was brought in the US in 1943 (sic.) included in its preamble the statement that the Act was designed to bring about an equilibrium in the bargaining position of the employees and the employer. I think it is only in that light that one can justify the labour legislation of this kind, that it must give recognition to the evident fact that an employee, or a group of employees, as such, or all of the employees, if you will, are in an unequal bargaining position because of the power of the employer over time ... [The employer] has the power of intimidation.82

Building on these observations, Jackson dismissed Myers' naivete over the democratic arguments of a free vote because it ignored the realties of power in the workplace.

81 Doug Smith, Cold Warrior: C.S. Jackson and the United Electrical Workers (St. John's: Canadian Committee on Labour History, 1997), 152, 204-225. 82 AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1705-6. -251 -

Jackson maintained that ideas of industrial democracy did not exist in the realm of theory but rather were about power and control in each plant. At the heart of this observation was the belief that labour legislation was only effective when it recognized the inequity between labour and business in a capitalist society. Relying on arguments of balance,

Jackson argued that the only way for legislation to recognize this power imbalance was to extend collective freedoms to organize and to strike. This implied that any amendment to the OLRA had to recognize that unions were "dealing with the problem, the struggle, if you will, for the employee's mind at that time ... [and] ultimately, it is a question of the mind of the worker and who is the master of it."

In stressing the role of power and struggle within the capitalist workplace, Mine-

Mill and the UEW stressed the role of class and class power within the post-war labour relations framework. These observations were essential to challenging employer claims that the extension of collective union rights violated the rights of individuals. Indeed,

Jackson's testimony suggested that the long-standing employer concerns regarding the erosion of individual rights were a clear attempt to undermine the freedoms won by unions in the post-war period.

83 AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1706. Jackson emphasized that employer power to resist unionization reflected "the power of intimidation. You say in a secret vote. Let us follow that through. We have an instance in the case of the Atlas Steel Co. in 1943, at the time of the Labour Court. The Atlas Steel Co. at that time in attempting to prevent the workers from expressing their true wishers in a government- conducted vote lined up its foreman and its plant guards armed with side-arms along the street between the plant and the court house where the vote was to be taken. That is open intimidation of the employees." 84 AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1711. -252-

These arguments distinguished Mine-Mill and the UEW from the CLC unions.

Despite these distinctions, however, not a single union questioned the discretionary power of Board or asked for the right to appeal Board decisions. While the unions raised real concerns about the judicialization of Board procedure, they all suggested that the Board was an important institution to address the power of employers to resist unionization. Where criticism did arise, it was generally over the Board's inability to counter employer power because of fear of judicial intervention. For CLC and non-CLC unions, these arguments concentrated on the ability of employers to claw-back freedoms to collective bargaining, organize and strike. One of the most consistent arguments centred on questions of efficiency and timeliness before the Board. As OLRB discretion had been eroded through employer challenges to the courts, the unions stressed that the rights of certification and to strike had to be safeguarded further from the "courtroom atmosphere, in which lawyers were turning the Board from an adjudicator of human

Of. relations into a semi-judicial courtroom."

Notwithstanding labour's agreement on the OLRB, the testimony of Mine-Mill and the UEW was overshadowed by the Communist question. During the hearings, for instance, Robert Macaulay stated repeatedly that these unions experienced hostility from employers because of their Communist affiliation. He also insisted that CLC unions had

85 "Board Favours Big unions, Small Independents Say," Globe and Mail, 11 October 1957. In one instance, Ernest Smith of the Canadian Independent Labor Associations and Unions charged that the Board favoured "big international unions in its rulings." The Independent Labor Association claimed that working people who were not members of the large CLC unions were not represented on the Board and thus "the oath of office notwithstanding, those appearing before the Board with principles contrary to the employee representatives find themselves in hostile company." 86 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Federation of Labour, 1 October 1957, 4087. -253-

not experienced the same level of hostility from employers and were able to win certification through voluntary recognition agreements.87 While ignoring the arguments of employer hostility from the UAW, the USWA and even the OFL (whom the

Committee chastised on the Communist question), these questions were clearly designed to dismiss outright the legitimate concerns of the UEW and Mine-Mill. Even the

Chairman felt it necessary to leave his neutrality aside by stating to Ross Russell, UEW

Vice President and Secretary Organizer that employers had a right to oppose them because "your organization is Communist dominated." Russell responded by stating that the union was only dominated by its members.89 In spite of Russell's defence of union democracy, the Committee's accusations suggested that Mine-Mill and the UEW only experienced hostile employers because of its Communist affiliation.

Yet, Communist organizations were not illegal in Ontario. Why, then, did the

Committee defend illegal actions from employers simply because they actively opposed

Mine-Mill and the UEW?90 Without a doubt, the Conservatives were responding to the fading hysteria of the Cold War by attempting to paint all unions with a communist brush. More substantively, however, it is likely that Conservative, Liberal and CCF members of the Committee were making a public distinction between legitimate and

87 AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1749. 88 AO, PSCLR, RG 49-138, Box C 92, Testimony of the UEW (United Electrical, Radio and Machine Workers of America), 16 October 1957, 1725. 89 "Union Admits It's Haunted by 'Red Tag,'" Toronto Telegram, 17 October 1957. According to the Toronto Telegram, Russell "hesitated" before answering this question. The paper interpreted this hesitation has evidence that the Communist accusations had acted as an impediment to the union's organizing drives in the 1950s. During these questions, the Liberals sided with the Conservatives and MacDonald remained silent. 90 The Committee also had made these same accusations to the officers in the OFL. -254-

illegitimate unionism. In their minds, if any union used their economic or political power to defy the OLRA, they should expect employer hostility. Expressing how it viewed balance within labour relations, the Committee reasoned that no union (be it Communist or not) should expect legal protection to tip the balance of power between unions and employers.

Although the leadership in the UEW and Mine-Mill were members of the

Communist party, their arguments concerning the OLRA and the OLRB were not radically different from the CLC. Paradoxically, the Labour Progressive Party summarized the similarities in the position of the unions. The party argued that any reforms to post-war labour legislation would stand or fall on three principles: the right of workers to organize in unions of their choice, the right to bargain collectively and the unfettered right to strike.91 In their view, the OLRA did not live up to these standards.

The LPP stressed that the OLRA suffered from complicated voting procedures, discouraged certification in new sectors, and made bargaining and strikes difficult because of numerous legal restrictions. The LPP reasoned that these limitations existed because the law did not adequately address employer power to resist unionization. In order to address these concerns, the LPP recommended amending the Act to extend organizing rights, make collective bargaining more accessible to rank-and-file members while extending the right to strike. One way to accomplish these goals was to allow midterm strikes and eliminate court-imposed injunctions, as they were employer tools

91 AO, PSCLR, RG 49-138, Box C 92, Submission of the Labour Progressive Party to the Select Committee on Labour Relations, 6 May 1958, 1-2. -255-

designed to suppress legitimate worker dissent. The LPP felt these changes were important because employers were calling for reforms which "parallels a similar trend in the USA, [and] seems to be largely US inspired."92 These concerns arose because employers continued to appeal for right-to-work legislation while also insisting that unions be made legal entities so that they could be prosecuted in a court of law.

The legal experts before the Committee echoed many of the concerns surrounding right-to-work legislation and the judicialization of labour relations. In many ways, these testimonies favoured the position of the unions over the power of the OLRB. Indeed, these legal experts argued that Board powers needed to be expanded in order to maintain peaceful labour relations. In Bora Laskin and Harold Logan's intervention before the

Committee, they stressed that the OLRB's enforcement machinery needed to be strengthened in order to address all forms of workplace disputes. In particular, they concentrated on Board power to deal with unfair labour practices, remedial powers to deal with employers refusing to bargain, and further regulation of illegal strikes.93 These conclusions followed from Laskin's submission to the Select Committee that examined the statutory powers of the Wagner Act in the United States. In his report, Laskin concluded that the Wagner Act was designed to expand the rights of trade unions to

AO, PSCLR, RG 49-138, Box C 92, Submission of the Labour Progressive Party to the Select Committee on Labour Relations, 1-2. 93 AO, PSCLR, RG 49-138, Box C 91, Testimony of Bora Laskin, 15 May 1958, 4235-6. -256-

organize, bargain and strike. In order to accomplish this, the Wagner Act placed a great deal of authority in the NLRB to enforce its own decisions.

To be sure, Laskin conceded that the 1947 Taft-Hartley reforms weakened the

Board's powers vis-a-vis courts and employers.95 Yet, the original powers in the Wagner

Act made the NLRB more effective in dealing with certification issues than its Ontario counterpart. Perhaps the most important difference was that the NLRB based its certification applications on questions of representation rather than membership. This important difference allowed the NLRB to certify unions with as little as thirty per cent support in a new bargaining unit. Under Taft-Hartley, however, a vote was mandatory in every instance. After his testimony, it was clear that Laskin was a supporter of replicating more closely the Wagner provisions in Ontario. Particularly, he supported expanding the

OLRB discretionary power to certify unions and to deal with illegal strikes. In his brief before the Select Committee, Laskin also supported the position of the unions with regard to expanding OLRB discretionary power in order to protect union rights. By taking this stand, Laskin's report was openly critical of the Taft-Hartley reforms in the United

States, especially the provisions making it easier to appeal NLRB decisions to the courts.

This position was especially important for Ontario unions, as employers were increasingly arguing that Taft-Hartley provided an effective model for reform in Ontario.

Bora Laskin, "A Comparative Analysis of the Ontario Labour Relations Act and the United States National Labor Relations Act As Amended and Supplemented by the Labor-Management Relations Act," Submission to the Ontario Select Committee, 5 May 1958., 4-7. 95 Bora Laskin, "A Comparative Analysis of the Ontario Labour Relations Act and the United States National Labor Relations Act As Amended and Supplemented by the Labor-Management Relations Act," Submission to the Ontario Select Committee, 5 May 1958, 7. -257-

Employers before the Select Committee

Despite arguments to the contrary, employers did not see their actions in the past decade as anti-union. Rather, employers were universal in arguing that the 1950 OLRA had altered the balance of power in favour of organized labour. This was problematic, they stressed, because most elements of organized labour were committed to the CCF or to the

Communist party. Relying on this "balance of power" argument, business sought legal restrictions and further recourse to the courts in order to invalidate the 1950 OLRA. In order to accomplish this goal, business maintained that Ontario's post-war labour relations framework failed to protect an individual's right-to-work. Employers also maintained that trade unions were ignoring the law by continuing to strike illegally. In response to this, employers were nearly unanimous in calling for increased management rights in the OLRA itself. This included strengthening speech rights during certification drives, implementing some form of right-to-work laws, and the right to appeal OLRB decisions. At the centre of business critiques of the OLRB was the argument that it was structurally biased in favour of the unions.

One of the most important demands put forward by business was to increase the regulation on trade union activity. This was the central theme of the Ontario Division of the Canadian Manufactures' Association (CMA) submission to the Select Committee.

Formed in 1919, the Ontario division of the CMA had grown to represent over three thousand business owners. As the voice of Ontario's manufacturers, the CMA's position was cloaked in the reality that manufacturing was at the centre of Ontario's economy.

Given that the Ontario government was dependent upon steady flows of production, the -258-

CMA positioned itself as the defenders of the provincial economy. Suggesting that excessive strike activity threatened the prosperity in the province, the CMA maintained that the OLRA "was designed to help and protect trade unions in the days when they were small and relatively weak. Whatever basis of fact there may have been for the old- time picture of the trade union as a wholly idealistic organization of downtrodden workers....[it] has little relation to the situation today.... today there is much more need to think in terms of protecting the interests of the public, the employers and the individual employee."96 Using this rhetoric, the CMA argued that post-war legislation assumed that unions were "small and weak" and therefore needed the benefit of state protection against

"oppressive" employers.97 In stressing how they viewed "balanced" labour legislation, employers argued in 1957, "trade unions have acquired such status and such power that there is today a marked imbalance of power between management and labour." As a result of this new power imbalance, the Association argued that the law needed to be reformed in order to protect the interests of individual employees, employers and the general public.

For the CMA, the problem with unrestrained union power was that it created a legal monopoly in the workplace. After certification, the union's legal "monopoly" accelerated wage increases to the point that exceeded the productive capacity of business

6 AO, PSCLR, RG 49-138, Box C 90, Submission of the Ontario Division of The Canadian Manufacturers' Association, 29 October 1957, 4. 97 AO, PSCLR, RG 49-138, Box C 92, Submission of the Ontario Division of the Canadian Manufacture's Association to the Select Committee on Labour Relations, 29 October 1957, 3-8. 98 AO, PSCLR, RG 49-138, Box C 92, Submission of the Ontario Division of the Canadian Manufacture's Association to the Select Committee on Labour Relations, 29 October 1957, 5-6. -259-

to compete. As unencumbered collective bargaining was hostile to modern business practices, the Association argued that such "monopolies" had to be discouraged and

stopped. As the CMA brief outlined:

We submit that the changed circumstances require a re-orientation in the approach to the law on labour relations. New legislation is needed now not merely in the best interests of the public and of employers but also of employees—union members and non-members—and indeed, in the long term best interests of trade unions themselves...trade unions must be required to accept equal legal responsibilities with employers and other groups in our society. They should be required to obey the laws of the land, especially in view of the substantial grants of exclusive power implicit in the certification process.10

An important way to check union power was to enforce the mandatory no-strike pledge in the Act.101 The propensity of unions to strike illegally, they insisted, demonstrated a lack of "legal and moral responsibility" which ought to be punished with fines, imprisonment and decertification. This strict law and order argument suggested that any mechanism designed to strengthen union activity legitimized irresponsible and illegal union behaviour.

Using arguments surrounding "legal and moral responsibility," the CMA argued against the check-off, which they maintained, "is mainly security against the wishes of

"Claims Union Monopolies Replace Industrial Type," Toronto Daily Star, 31 October 1957. A day after the CMA testimony, George Rooney, president of American Motors, used almost identical language to call for an end to "labour monopolies." He added that "today's "wage fixing union monopolies have replaced the old industrial monopolies that were initially curbed by anti-trust laws." 100 AO, PSCLR, RG 49-138, Box C 92, Submission of the Ontario Division of the Canadian Manufacture's Association to the Select Committee on Labour Relations, 29 October 1957, 5. 101 The 1950 ORA outlined specific circumstances under which strikes could occur. One of the most important rules was that a strike or lockout was illegal during the life of a collective agreement. Even then, unions and employers were required to undergo mandatory conciliation before launching a legal strike or lockout. 102 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Manufacturers' Association (Ontario Division), 29 & 30 October 1957, 2174, 2192-6. -260-

their own individual members." As union security also strengthened a union's ability to funnel money to socialist and communist political movements, the CMA argued that legal provisions that,

....go under the somewhat misleading label of "union security" are another example of the coercive aspect of unionism. The evils of compulsory check-off and compulsory membership have been brought into sharper focus recently by the revelations before the US Senate Committee indicating some questionable dispositions of union funds by trade union leaders...the problem could become especially acute where unions specifically support a particular political party— which would obliviously be a questionable disposition of funds obtained by compulsory methods.104

By stressing the "coercive aspect of unionism," the CMA insisted that their organization defended the rights of individual employees. One way to protect these individuals was to pass legislation reflecting all individuals "right to work."105

The CMA's argument for further protection of individual rights was prefaced on the grounds that some form of right-to-work laws were necessary in Ontario, although they did not to call for an outright Ontario version of Taft-Hartley. As the Taft-Hartley reforms had met with condemnation from most political parties and even some employers, the CMA knew that it would be difficult to convince the provincial government to adopt outright such a controversial reform. Employers themselves were

AO, PSCLR, RG 49-138, Box C 92, Submission of the Ontario Division of the Canadian Manufacture's Association to the Select Committee on Labour Relations, 29 October 1957, 12-4; AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Manufacturers' Association (Ontario Division), 29 & 30 October, 2142. See H.J. Clawson's response to a question from John Yaremko. 104 AO, PSCLR, RG 49-138, Box C 92, Submission of the Ontario Division of the Canadian Manufacture's Association to the Select Committee on Labour Relations, 29 October 1957, 12-4. 105 H.D. Woods, "Labour Relations Law and Policy in Ontario," Canadian Public Administration 2 (1958), 1-2. Woods attempted to counter this claim by arguing that the OLRA and the OLRB were perfectly capable of balancing the traditional rights of business with the freedom of association rights for unions and individual workers. He therefore cautioned the Select Committee about adopting the position of employers. This reflected Wood's general concerns about radical change to the basic framework of collective bargaining in Ontario. -261 -

also divided. Throughout the decade, several employers (and the mining companies in particular) had written a series of letters suggesting that the Ontario government seriously examine the 1947 Taft Hartley reforms. In these letters, employers insisted that the closed shop be made illegal and demanded that international unions engaged in an illegal strike be decertified.106 By 1957 all major employer groups, including the CMA, the

Ontario Chamber of Commerce (OCC) and the Toronto Board of Trade (TBOT) were convinced that some form of "right-to-work" legislation was necessary to eliminate illegal strikes. None of these groups, however, could agree on an active proposal to implement such reforms.

As a simple solution, the CMA advocated legislation designed to ease restrictions on employer speech during a certification drive. A reform of this nature would allow employers greater legal freedom to communicate with employees during a unionization drive. A more complex solution was the proposal that individuals should have the right

"not to join a union." Accord to H.J. Clawson, chair of the Ontario CMA's industrial relations committee, no strike should have "the right to keep someone else out, who

1 07 wants to work. That person would have a natural right to work." The CMA's concern over union security and right-to-work restrictions centred on the close ties that CLC and non-CLC unions had to political parties. .

106 AO, OPFGC, RG 3-23, Box 87. The Premier's files were full of such letters. 107 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Manufacturers' Association (Ontario Division), 29 & 30 October 1957, 2202-3. Clawson knew that this reform weakened the union because "a strike is a war between a company and a union. I don't think it is strike-breaking for a company to attempt to operate its plant if there are some of the employees willing to work. I don't think that is strike breaking. The unions say that is strike-breaking." -262-

Now, conceivably, if the majority of the employees, of the members of that union, might be opposed to that particular party or they may be split three or four ways, then you have the rather anomalous situation of Joe Smith who does not want to be a member of the union, mainly because he does not like their politics, but against his will he has to pay X a month dues and these funds are used by the 1 OS union to support candidates to which he is opposed.

Following this logic, any form of legislation that further strengthened a union's tie to a political party was a violation of civil liberties.109 The CMA was responding to the merger of the CCL and the TLC unions that had committed itself to working more closely with the CCF. This had the potential to challenge the strength of Ontario manufacturers and their ties to the Ontario Conservative party.

In stressing the coercive aspect of unionism, the CMA argued that Ontario's labour legislation make secondary boycotts illegal. Additionally, they called for increased government regulation over inter-union disputes and demanded that unions be incorporated so that they could be sued in a court of law.110 The CMA also favoured the use of judges in conciliation proceedings, questioned the practice of allowing laypersons to sit on the OLRB, and demanded the right to appeal OLRB decisions.111 Questions

108 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Manufacturers' Association (Ontario Division), 29 & 30 October 1957, 2297. 109 AO, PSCLR, RG 49-138, Box C 90, Testimony of a Group of Ontario Daily Newspapers, 30 January 1958, 3541. The newspapers took a hard line on this position. They suggested that while they "have no objection to the organization of reporters and editorial staff for monetary purposes, we object to any association with a union which leads to certain ideological viewpoints or association with a particular party....we feel that reporters and editors are in a position when reporting a particular event, that they should report it without colour, without bias..." 110 This argument gained a footing in British Columbia. In 1959, the Bennett government amended the BCLRA giving both parties in a labour dispute the ability to sue for damages. The unions were also prohibited from circulating literature recommending a secondary boycott during a strike. 111 AO, PSCLR, RG 49-138, Box C 92, Submission from a Group of Ontario Daily Newspapers to the Select Committee on Labor Relations, 1 November 1957, 2-3. This position was supported and encouraged by every major daily newspaper, suggesting that "the right of appeal from the decisions of the Board would -263-

concerning the increased judicialization of the labour relations process led the CMA to call for the use of police to break illegal strikes while demanding further protection for replacement workers. Finally, the CMA suggested that the current number of workers excluded from the OLRA be maintained. They were particularly critical of any reform allowing professionals, managers or secretarial staff to unionize. These workers, the

CMA stressed, were often employed in a confidential capacity and would violate the confidentiality of management during collective bargaining or in the course of a strike.

The CMA's position on the judicialization of labour relations was most evident in its criticisms of the OLRB. Relying on the argument that trade unions were no longer weaker than employers, the CMA suggested that the OLRB discriminated against employers because it favoured trade unions. They therefore interpreted any recommendation designed to strengthen the Board as assisting the extension of unionization in the province. As a partial solution, the CMA proposed that any reform designed to enforce the regulations in the Act to be given to the courts. In particular, they were concerned that OLRB discretionary power might bypass the Act by certifying workers employed in a confidential capacity. In these cases, the CMA admitted that they were directly trying,

...to restrict the discretion of the Board...the way this is, we think if the Board does not take into account these difficulties [workers employed in a confidential capacity] then there should be recourse to the courts; in other words a right of

be an added guarantee to protect the rights of individuals appearing before the Board and to the welfare of the Province as a whole." -264-

appeal. [We] think the more difficult the problem, the more essential there should be a right of review by other tribunals. ..u

Despite the court victories earlier in the decade, the CMA still reasoned that the OLRB had too much discretionary authority to certify unions. As they interpreted the Board's mandate to promote unionization throughout the province, the only way to restore balance to the Act was to have disputes over certification, bargaining and illegal strikes

in returned to "the courts, and never [again] left in the hands of an administrative body."

Most of the concerns highlighted by the CMA were also echoed by other businesses. The Ontario Chamber of Commerce, however, was more vocal on the demand that trade unions be incorporated. As the OCC represented small and medium community businesses, this was not surprising. If trade unions were incorporated, small businesses would have a significant weapon to challenge larger unions. The goals of incorporation were simple. Once a complaint was made of unlawful behaviour on a picketline, a trade union would be liable for any damages sustained during the strike. By imposing this form of legal responsibility, employers knew that union leaders would be less likely to defend their picketline through coercive or violent behaviour. This would make it easier for employers to keep their businesses running during a strike and give them the freedom to hire replacement workers. The OCC also reasoned that incorporating trade unions limited the likelihood of secondary boycotts and secondary picketing. While the Chamber preferred to return all issues pertaining to certification, bargaining and

112 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Manufacturers' Association (Ontario Division), 29 & 30 October 1957, 2311 -2. 113 AO, MLLOF,RG-7-3-0-12, Box 1, Canadian Manufacture's Association (Ontario Division), Rejoinder: Circular No. 6-59, 13 February 1959, 1. -265-

strikes to the courts, they did argue that it was possible for the Board to deal with

secondary boycotts through its consent-to-prosecute powers. In spite of this, they still

reasoned that aggrieved employers should have the right to appeal all Board decisions in

court.

The selective strengthening of Board powers to deal with illegal union activity was also echoed by other employer organizations. Members of the Canadian Automobile

Chamber of Commerce (CACC), for instance, presented a sophisticated and tactful critique of the OLRA and the OLRB.114 In these areas, the CACC concentrated on three specific powers: 1) the powers of certification; 2) the handling of strike votes; and, 3) the rules surrounding the formation of bargaining units in all sectors (what was termed the

"Community of Interest"). Sheltered behind these critiques was a consistent theme designed to subject unions to punitive pressures during strikes. The lawyers for the

CACC presented a strong case for the deregulation of trade union rights by concentrating on the erosion of individual voting rights. The CACC called for mandatory strike votes among the "community of interest" before the commencement of a legal strike.

Shrewdly, the CACC proposed the deregulation of trade union rights while at the same time stating that "they would be the last people to interfere with the internal management of a union" or undermine the legitimacy of collective bargaining.116 In

114 The Auto Chamber of Commerce represented the largest auto manufacturers in Ontario and included Ford, General Motors, Chrysler, American Motors, International Harvester, Studebaker-Packard. These companies had manufacturing and assembly plants in six centres in Ontario, including Chatam, Hamilton, Oakville, Oshawa, Toronto and Windsor. 115 Bruce Levett, "Jurisdiction Tough Labor Code Problem," Windsor Star, 4 January 1958. 116 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Automobile Chamber of Commerce, 10 October 1957, 1482. -266-

relying on themes already addressed by the CMA, the auto manufacturers emphasized the power imbalances between employers and unions since the end of the war. As the OLRA was created in the interests of promoting unionization, they suggested it was now time to

117 address the serious shift in power that had occurred during the 1950s. One way to address the power of trade unions was to increase the role of the courts in dealing with industrial disputes. Along with all other employers, the CACC called for the right to appeal all Board decisions in court. In this regard, they suggested that the bans on appealing labour relations problems to the courts, ... shocks the legal conscience...that a collective agreement is the one type of agreement over which the courts cannot make the violator behave. That is the theory and the principle and the basis of the Act. You find it expressed, for instance, in the provision that the Arbitration Act shall not apply to what we know IIS agreements are. It has that effect.

The CACC ended its testimony by echoing the demand that unions be incorporated so that they could be sued in a court of law.119 The auto manufacturers reasoned that increased judicialization could substantially reduce the ability of organized labour to threaten the shutdown of plants through illegal strikes.

117 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Automobile Chamber of Commerce, 10 October 1957, 1438. The CACC argued that "this whole area relates back...the effect of the legislation [which] is to give organized labour too much bargaining power as against the bargaining power of an employer." 118 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Automobile Chamber of Commerce, 10 October 1957,1514. 119 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Automobile Chamber of Commerce, 10 October 1957, 1614-5. The Committee often brought in so-called experts during hearings to clarify technical terms. During the CACC's hearing, Harold Logan was the expert witness for the Committee. According to Logan, the idea of union incorporation had been "around for decades," and was put before the federal House of Commons Committee on Labour Relations in 1943 and in 1944. -267-

Unlike the manufacturing associations, most financial and service employers were represented by the Toronto Board of Trade.120 Although representing these different sectors, the TBOT's testimony highlighted several of the same themes introduced by the

CMA, the OCC and CACC. For instance, the TBOT stressed that the OLRA enshrined

"great privileges upon trade unions and their representatives [but] had failed to make provisions for responsibilities commensurate with such privileges."121 The TBOT also echoed the CMA on picketing and individual rights, suggesting that the "monopolistic" tendencies of the International unions were creating an undue "hardship on small and medium sized employers and a hardship on individual employees."1 Under these circumstances, employers had to rely on the benevolence of International unions during a strike. As a solution, the TBOT was far more open than the CMA or the OCC to loosening employer speech provisions in the Act. A reform of this nature would "leave no doubt that, as in common law, employers are free to make fair comment on an equal basis with unions so that employees may have a full an understanding of all pertinent issues surrounding the question of certification." It also went further than other employer groups by suggesting that mass picketing be made illegal under the Act.124

According to the TBOT's internal memo, the group represented more than 6,000 businesses in Ontario. 121 AO, PSCLR, RG 49-138, Box C 91, Submission of The Toronto Board of Trade to the Select Committee on Labour Relations, 15 September 1957, 2-3. 122 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Toronto Board of Trade, Proceedings of the Select Committee on Labor Relations 31 January 1958, 3678. 123 AO, PSCLR, RG 49-138, Box C 91, Submission of The Toronto Board of Trade to the Select Committee on Labour Relations, 15 September 1957, 2. 124 AO, PSCLR, RG 49-138, Box C 91, Submission of The Toronto Board of Trade to the Select Committee on Labour Relations, 15 September 1957, 2 The only concession that the TBOT was willing to make on this proposal was that smaller "2-3 person information pickets might be acceptable." -268-

The TBOT also made several recommendations surrounding a reorganization of

the OLRB. This included proposals to amend the legislative restrictions on appealing

Board decisions. The TBOT was equally concerned about restricting the ability of the

Board to broadly certify unions, suggesting that it only certify employee representatives

after a mandatory secret ballot. It also proposed that some of the powers regarding

conciliation be transferred to the courts or the Minister of Labour because the OLRB had

not rendered adequate or consistent decisions on limiting conciliation deadlocks. Where

the TBOT was more sympathetic to OLRB powers, however, was in the Board's ability to terminate certification applications. The TBOT reasoned that the Board be allowed to

conduct speedier termination votes if numbers warranted. In other words, the TBOT

suggested that Board powers favoured unionization at the expense of small and medium businesses. In order to bring these rules back into balance, employers called for a weakening of the OLRB's powers to extend unionization rights by appealing to the courts and the Minister of Labour. Employers also insisted that the Board's powers be extended to decertify unions when workers or companies demanded it.

With few exceptions, Ontario's employers were united behind the recommendations of the CMA, OCC, OACC and the TBOT although each industry had different priorities for legislative reform. Given the strike activity in the mines, the

Ontario Mining Association (OMA) was strictly opposed to union security because it violated the rights of individual miners. While far more conciliatory in their approach,

125 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Toronto Board of Trade, Proceedings of the Select Committee on Labor Relations 31 January 1958, 3673. Stated the TBOT: "We are suggesting restoration of a greater equilibrium of all the rights of all those affected: trade unions and employers alike; to be brought back into greater balance than seems to exist under the present legislation." -269-

the International Nickel Company (Inco) was sympathetic with the demand for right- to- work laws in Ontario. They insisted that no form of security preclude an individual "by intimidation or coercion to ... from accepting work, or to cease work."126 Inco and the

OMA also opposed the discretionary power of the OLRB arguing for further judicial involvement in the administration of labour relations throughout the province.

The mining companies favoured judicial involvement in industrial disputes because it was felt that the industry was unfairly subjected to illegal strikes. As an example, the OMA highlighted the 1953 and 1954 strikes in the Porcupine, Hallnor,

Macintyre, Timmins, Noranda and Broulan Reef mines as evidence that unions were irresponsible and reckless industrial citizens who regularly provoked violence on the picket line. As unions were responsible for industrial violence, the Mining Association suggested that illegal behaviour during a strike should result in automatic decertification.128 During illegal strikes, they also argued that trade unions be held

1 90 responsible for any damages suffered by employers. In addition to advocating tighter legal restrictions in the Act, the mining companies were far more open than the CMA in their support of the Taft-Hartley reforms, suggesting that the only way to protect

AO, PSCLR, RG 49-138, Box C 92, Submission of the International Nickel Company of Canada to the Select Committee on Labor Relations, 22 January 1958, 21. 127AO, PSCLR, RG 49-138, Box C 92, Submission of the International Nickel Company of Canada to the Select Committee on Labor Relations, 22 January 1958, 6. Inco suggested that the OLRA should protect "the rights of employees and employers to enjoy the same freedom of speech and expression of opinion in matters concerning their labour relations as in other matters and in order to enforce such provisions, the OLRA allow for he right of both employees and employers to have recourse to an impartial judicial body to enforce their respective rights." 128 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Mining Association, 9 October 1957, 1400-04. 129 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Hotel Association, 2 October 1957, 1019. A similar suggestion was made by the Ontario Hotel Association. -270-

management rights was through the implementation of right-to-work legislation. Based on this demand, CCF leader Donald MacDonald concluded that "these gentlemen are anxious to get rid of the unions."131

The OMA was also concerned about the discretionary power of the Board. They complained of delay and inconsistencies before the OLRB, suggesting that it did have the independence and objectivity to certify unions. By highlighting questions of objectivity, the OMA remained convinced that the Board existed to promote "unionization" rather than being a genuine "labour relations board." As was the case of all employer groups, the OMA reasoned that only way to address this imbalance was to restore the right to appeal Board decisions in the Ontario superior courts. This position was reinforced by their opposition to the OLRA's protection of certification, which they insisted was an erosion of individual rights. In order to safeguard the rights of employers, Inco proposed to abandon the OLRB and resurrect the Ontario Labour Court. They argued that a new

Labour Court would solve the current backlog of certification and consent to prosecute applications before the Board.133 The company also suggested that a return to the Labour

AO, PSCLR, RG 49-138, Box C 91, Submission of the Legislative Priorities of the Ontario Mining Association, Brief to the Select Committee on Industrial Relations, 9 October 1957, 4. Inco argued that "it must be remembered that it is the right of employees to be represented by a union and not the right of a union to represent employees. It is necessary, therefore, to distinguish clearly between the interests of employees as such and the interests of the union which represents them in order to access properly the rights which should be accorded to each...the interests of unions in these activities and the attainment of these objectives should not be considered as calling for special rights in the field of labour relations." 131 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Mining Association, 9 October 1957, 1426. 132 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Mining Association, 9 October 1957, 1357-8. The OMA suggested that "most decisions of the Board are not subject to review in the courts. ...If the Board is to remain essentially as it is now then we feel that there should be some changes made to maker their decisions generally more acceptable." 133 AO, PSCLR, RG 49-138, Box C 90, Testimony of the International Nickel Company of Canada, 2954. -271 -

Court would send a signal to employers that the province was determined to restore legal fairness to the administration of labour relations. This idea was also addressed by

Ontario's daily newspapers, emphasizing that the Board did not take seriously the concepts of legal fairness in the administration of the Act. Similar to the position of the

OMA and Inco, the newspapers called for greater flexibility to appeal Board decisions, which they suggested was a fundamental right in a democracy.'

The hostility of employers to the OLRB's discretionary power was almost universal. The near uniformity of business groups before the Select Committee gives a rare glimpse of how organized business interpreted the post-war OLRA. Without exception, almost every major employer in Ontario interpreted the 1950 Act as conceding too much to organized labour. They thus called for legal restrictions to "even the playing field." The resource companies, the Chamber of Commerce and the smaller business organizations were united in outright hostility to the provincial labour movement.

Meanwhile, the testimony of the large manufacturers suggested that at best, large businesses only begrudgingly accepted the post-1950 OLRA. Even the auto companies, who many suggested were more accepting of trade unions, called for a dramatic reduction of trade union rights through a tactful critique of the certification procedure. They also proposed to limit the extension of new bargaining units by appealing to a more rigid interpretation of "community of interest" within each plant. To varying degrees, organized business agreed that trade union rights had to be scaled back in order to

AO, PSCLR, RG 49-138, Box C 92, Submission from a Group of Ontario Daily Newspapers to the Select Committee on Labor Relations, 1 November 1957, 1-2. -272-

achieve more democratic and balanced labour laws. While there was little agreement as

to shape of such regulation, the message from business was that more regulation was

needed while insisting that they were openly supportive of the collective bargaining

process.

To be sure, employers continued to rely on old-age tactics to eliminate unions and

certification drives from their workplaces. Business opposition to the OLRfi's

certification powers suggested that employers in all sectors preferred to limit the ability

of workers to form unions altogether. Yet, the nature of business opposition to post-war

labour law suggested that many employers had accepted, albeit begrudgingly, certain types of unionization. In particular, businesses had learned to tolerate unionization that conformed to specific rules and regulations which clearly allowed employers to run their businesses free from midterm (wild-cat) strikes. In employers' minds, however, the

OLRA and the OLRB were not providing the necessary protection to keep workplaces free from wild-cat strikes and thus proposed further legal restrictions to address this problem.

In order to counter this shortfall, employers argued that unions had to be subjected to greater "democratic" pressures. The particular form of industrial democracy advocated by employers was articulated by Myers. By the end of the hearings, Myers had adopted the argument put forward by Canadian Bar Association (CBA) which opposed labour board powers without redress to judicial oversight because it represented a threat

Frank Drea, "MPP Seeks Curb On Union Power to Have Own Members Fired," Toronto Telegram, 6 February 1958. -273-

to liberal democracy.136 Throughout the decade, the CBA's position because increasingly conservative as they passed resolutions calling for limitations on the right to strike, essential service legislation, rights to appeal labour board decisions, the incorporation of trade unions as legal entities and, in 1957, supported the passage of "right-to-work"

1 nn legislation.

By the end of the hearings, the majority of the Committee had adopted the position of employers and the CBA which criticized trade unions for violating of individual rights. These same members insisted that certification itself was grounded in a collective notion of rights which gave union leaders gave too much power over individual workers. In order to restore democracy and protect individual rights, the majority of the

Committee implied in their statements during the hearings that union certification applications needed to be subjected to a mandatory vote. They also insisted that employer rights were unfairly restricted by the OLRA and the OLRB. Under this logic, unions were the only institutions capable of violating individual rights.13 As a way to restore this violation, the Committee was hinting that the OLRA needed to better protect the right of all employees to work.

AO, MLLR, RG 7-14-0-111, Box 3, Canadian Bar Association (Industrial Relations Section, Ontario Branch) Letter to Charles Daley, 26 January 1954. In a letter to Daley, the CBA outlined several perceived problems with the OLRA, which included the erosion of "due process" during Board hearings. The OFL argued that the CBA was one of the leading crusaders for restrictive labour legislation, which included having union strike funds subjected to judicial oversight in the event of an illegal strike. Near the end of the 1950s, the CBA also began a lobby campaign to introduce right-to-work legislation in various provinces. "Lawyers Convention: Back Anti-Union Legislation," Ontario Labour Review (OFL-CLC) October 1959. 137 Canadian Bar Association, Thirty-Ninth Annual Report, 1957 (Ottawa: National Printers Ltd., 1957), 103. In 1957, the CBA passed a motion recommending "to the Federal Minister of Labour and to the Provincial Ministers of Labour that legislation be introduced to protect the jobs of individual employees under such circumstances where unions are protected by a provision of union security." 138 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Canadian Automobile Chamber of Commerce, 10 October 1957, 1482. -274-

Final Recommendations of the Select Committee

After a year of hearings, the Committee reported to the legislature on 10 July 1958. The

Committee's recommendations—while openly supportive of collective bargaining— recommended a complete overhaul of the 1950 OLRA. The changes covered all areas of the OLRA and addressed issues pertaining to certification, bargaining and the right to strike. Although supportive of employers, the Conservative dominated Committee did make some concessions to unions, which included the check-off. This form of balance, however, was very much predicated on expanding employer powers in the Act. Perhaps not surprisingly, the final recommendations of the Committee fell across party lines, although there was a surprising amount of agreement on many controversial issues. For the most part, Conservative members were unanimous in the Committee's final recommendations with a great deal of agreement from Liberal member, Albert Reaume.

CCF leader Donald MacDonald provided the most frequent criticism of business groups, while disagreeing with the most reactionary anti-labour notions of the Committee's 51 recommendations.139 In many ways, the political divisions and the Conservatives' distorted attempts at balance probably explain the varied and often contradictory recommendations of the Committee.

Chief among the Select Committee's recommendations was the proposal to adopt the check-off providing that 60 per cent of union members voted in its favour. This recommendation was far from unanimous. Conservative members G.E. Jackson, Ellis

139 Select Committee on Labour Relations of the Ontario Legislature (hereafter SCLROL), Report of the Select Committee on Labour Relations of the Ontario Legislature (Toronto: Queen's Printer for Ontario, 1958). -275-

Morningstar and Leslie Rowntree all dissented because they felt that union security was a

matter for collective bargaining and not for legislation.140 The Committee also endorsed

further regulation of trade unions by proposing to alter their ability to win certification. In

bowing to the arguments put forward by employers, the Committee called for a mandatory certification vote if at least 35 per cent but not more than 75 per cent of

employees in the bargaining unit signed union cards.141 The Committee also suggested that certification be attained after winning 50 per cent of the votes, if 66 2/3 per cent of eligible voters cast ballots.142

Despite limiting the ability of unions to certify, the Committee did recommend

strengthening the Board's ability to address successor rights for unions. As Finkelman testified during the hearings, there was prima facie evidence to suggest that companies often went out of their way to change its legal "entity [encouraging] a loss of bargaining rights." 143 In order to address this concern, the Committee suggested that the OLRB be empowered to investigate these tactics. The Committee proposed that, in the most egregious circumstances, the Board be given the authority to transfer bargaining rights to a new employer. Under these conditions, where "the plant, property, equipment, products and working force remain virtually unaltered as a result of the sale or other transfer-in- law of the business of the employer, and no essential attribute of the employment

SCLROL, Report of the Select Committee, 30. 141 SCLROL, Report of the Select Committee, 34. MacDonald was the lone dissenter on this recommendation, as he felt that the 75 per cent number was too high. 142 MacDonald dissented on this recommendation as well, suggesting that the principle of the amendment should be 51 per cent of those eligible to vote. 143 AO, PSCLR, RG 49-138, Box C 90, Testimony of the International Union of Mine, Mill and Smelter Workers, 3 October 1957, 1111. -276-

relationship has been changed as a result of the sale." The adoption of this proposal

was in no way novel. Similar provisions existed in the four western provinces in the

early part of the 1950s.145 Although this limited form of successor rights gave workers

some relief in the event of a sale, it also sought to preserve the stability of a business

while in the transition phase of a sale.

Notwithstanding its concession on successor rights, the Committee also sided

with the CMA in proposing that employer rights were disproportionately restricted by the

1950 Act. In order to correct this problem, the Committee proposed that employers be

"free to express their views on an equal basis with trade unions provided they do not use

coercion, intimidation, threats or promises or undue influence."146 The Committee also

suggested that no individual be denied employment because of refusal to join a trade

union.147 In order to protect the "public interest" during labour disputes, the Committee

advocated for a ban on secondary boycotts, the legal incorporation of trade unions, and

the creation of an Industrial Inquiry Commission to determine the legitimacy of strikes.148

SCLROL, Report of the Select Committee, 41-2. 145 Bromke, The Labour Relations Board in Ontario, 62. 146 SCLROL, Report of the Select Committee, 38. MacDonald, Macaulay and Wren all dissented on this recommendation. 147 SCLROL, Report of the Select Committee, 42. 148 SCLROL, Report of the Select Committee, AA. Recommendation 51 stated: "In matters affecting the public interest, the Lieutenant-Governor in Council may either upon application or of his own initiative...make or cause to be made any inquires the Lieutenant-Governor in Council thinks fit regarding industrial matters, and do such things as may seem calculated to maintain or secure industrial peace and to promote conditions favourable to settlement of disputes ... where in any industry a dispute or difference between employers and employees exists or is apprehended, and where the matter involves the public interest, the Lieutenant-Governor in Council may refer the matters involved to a Commission, to be designated as an Industrial Inquiry Commission, for investigation ... and shall furnish the Commission with a statement concerning which such inquiry is to be made, and in the case of any inquiry involving any particular persons or parties, shall advise such persons or parties of such appointment." This proposal received unanimous support. -277-

As the "public interest" was left vague and open to interpretation, this proposal sought to

place further limitations on the right of workers to legally strike.

In terms of direct changes to the OLRB, the Committee's recommendations

sought to review the supervision of collective bargaining, enforcement of Board

decisions, and the regulation of internal union affairs. The proposals concerning the

OLRB dismissed most of the arguments put forward by trades unions and sympathetic

labour lawyers and adopted the proposals of management. Perhaps the most obvious

management inspired recommendation was the Committee's conclusion to do away with

the privative clause (s. 69) and allow appeals on OLRB decisions.149 Although

MacDonald and Macaulay dissented on this recommendation, the Committee's decision

to allow appeals was a condemnation of the Board and its discretionary powers. As such

practice had long existed in the United States, the Committee felt that management's plea

to protect individual rights would offset the collective power that a union obtained once it

was certified by the OLRB.150 According to long-time Globe and Mail labour reporter

Wilfred List, this recommendation was "the most contentious of the report" while Adam

Bromke concluded this was an open attempt to pacify management."151

SCLROL, Report of the Select Committee, 37. Recommendation 27: "The Committee recommends to the Legislature that there be a right of appeal in all cases after first obtaining leave from the Chief Justice of Ontario. If the appeal involves a question of law only, it shall be by way of a stated case. If the appeal involves an issue of fact only, or mixed law and fact, then the appeal may be heard either by trial de novo or by reviewing the transcript only." 150 "Proposals Too Vast, Could Mean Changing Whole of Labor Act," Toronto Daily Star, 3 February 1959. The consensus by the Conservative Committee members spoke to the basic contradictions in the report. The report's introduction stressed the need for "less reliance on government" in collective bargaining. Yet the vast majority of Committee members stressed that there is a need for government intervention in "disputes involving the public interest." 131 Wilfred List, "Act Would Keep Right of Appeal," Globe and Mail, 3 February 1959; Bromke, The Labour Relations Board in Ontario, 64. Bromke suggests that support for the Board fell overwhelmingly -278-

In order to address concerns over Board regulation of collective bargaining the

Committee recommended it be given power to enforce "good faith" bargaining. This proposal sought to amend the Board's ability to rule in unfair practice cases by encouraging management to negotiate responsibly at the bargaining table. This offer was mitigated, however, by suggesting that the Board also be given the power to de-certify a union that was guilty of violations of bad faith bargaining.153

In terms of enforcement, the Committee also recommended that the Board be given the powers to enforce cease-and-desist orders, especially when addressing illegal strikes. In this area, the Committee proposed that Board orders be filed with the Supreme

Court of Ontario giving them the virtual authority of a judicial order.15 On the surface, this recommendation greatly enhanced the power of the Board to issue orders surrounding the rights of bargaining and picketing. This was something that the unions had been pushing for since the establishment of the Board in 1944. Yet, when examining the Select Committee's recommendations as a whole, it is clear that every suggestion on

OLRB was balanced by extending employer rights in the Act. In essence, any proposal that attempted to address the arguments put forward by labour (union security) was immediately offset with an equal (or greater) proposal to give employers greater freedom

across partisan lines with the unions overwhelmingly supportive of expanding the Board's discretionary power while employers supported the increased role for the courts. 152 SCLROL, Report of the Select Committee, 29. Recommendation 5: the Committee recommends that the Labour Relations Board be empowered to order that a party which does not bargain in good faith shall do so within a time limit (say 14 days), and failing to do so, the LRB should have the further power to decertify a Trade Union, and/or to penalize the Union further by a monetary fine, and in the case of an employer, to penalize the employer by the imposition of an accumulative fine of so much per day. I53SCLR0L, Report of the Select Committee, 29; Bromke, The Labour Relations Board in Ontario, 63. The Committee also recommended that any dismissal or complaint of discrimination (s. 57-8) be transferred from the Minister of Labour to the OLRB. 154 SCLROL, Report of the Select Committee, 36-7. -279-

to resist unionization in the workplace (mandatory votes; the judicialization of Board

procedure). In addition, when examining the labour friendly proposals alongside the

decision to subject all Board decisions judicial appeal, the Committee's proposals

become relatively toothless.155 Even Bromke's sympathetic history of the Select

Committee concluded that, "enabling the Courts to review the merits of all the Board's

decisions and order—thus also those concerned with enforcement—the formal authority

would remain precisely where it had previously been."156

This notion of fairness and balance defined the Select Committee's

recommendations. In this regard, the Committee saw little irony in their decision to

expand OLRB powers to monitor the financial, pensions and welfare funds of unions.157

Additionally, the Board would be given power to regulate inter-union jurisdictional

disputes, which included regulating the ability of a union central placing a local union

under trusteeship. If a trusteeship were extended beyond one year, the union would

have to apply to the Board for permission. The Committee further suggested that in any

instance where "union membership was terminated for reasons other than the refusal to pay union dues, and a person loses employment as a consequence, that person shall have

Such a position was lost on the Globe and Mail who continued to push for court interference in Ontario industrial relations. On the day the legislature released the report to the public, the paper's headline read: "Urge Wide Power for Labor Board To Crack Down on Employer, Union," Globe and Mail 3 February 1959. 156 Bromke, The Labour Relations Board in Ontario, 64. 157 SCLROL, Report of the Select Committee,3$. 158 SCLROL, Report of the Select Committee, 42. Recommendation 46: "The Committee is of the opinion that trusteeship should not be continued in excess of 12 months, without consent of the Labour Relations Board. The Committee therefore recommends that notice of any Union or Local thereof being placed under trusteeship, together with the terms of such trusteeship, shall be filed with the Labour Relations Board." -280-

the right to appeal to the Labour Relations Board," in order to seek a remedy.15 In other

words, in circumstances where a worker's ability to work was dependent on his or her

membership in a union, the union would not be able to discipline a member without

recourse to the Board. Although MacDonald and Reaume dissented on this

recommendation,160 Bromke concluded that this recommendation was "the most serious

attempt at extending the Board's supervision over the internal affairs of the unions." 61

The Committee's recommendations in these areas further extended the ability of employers to resist unionization drives either directly (by speaking out against plant certification) or indirectly (through a prolonged legal battle at the Board or in court).

Based on the recommendations as a whole, the Committee's report was met with a great deal of enthusiasm by the CMA and other business groups. Faced with employer calls to implement the report, the labour movement claimed that the Committee was an attempt by Conservative backbenchers and employers to undermine the freedoms that unions had won since the end of the war. Having made these conclusions, trade unions distanced themselves from the report in its entirety. As rumours circulated that the report would form the basis for future reforms to the OLRA,163 unions took the unusual

SCLROL, Report of the Select Committee, 42. Recommendation 47 Union Shop. 160 Both MacDonald and Reaume based their dissent on deference to the internal tribunals created by most trade union constitutions in order to address internal disputes. 161 Bromke, The Labour Relations Board in Ontario, 66. 162 Frost's correspondence files were full of letters from employers in all sectors calling for the implementation of the Select Committee in its entirety. 163 "Stelco Stand Stubborn Like Dulles—MacDonald," Toronto Daily Star 4 October 1958. Rumours were circulating that new labour legislation would limit the ability of unions to strike if it imposed too high a cost on the public. -281-

step of defending existing legislation. Ontario's provincial labour movement claimed that if the recommendations of the Select Committee were implemented it would reproduce the Taft-Hartley reforms in Ontario. This fear was so intense that by the end of 1959, veteran labour leaders acknowledged that the Select Committee report represented "the greatest danger [labour] has faced in 35 years."165

Conclusion

The 1957 Select Committee investigation into the Ontario Labour Relations Act was a unique experience in the history of the province. Besides being the first major investigation on the workings of the post-war industrial framework, it also lasted a year and a half and heard testimony from hundreds of employers, unions, lawyers, laypersons.

Given the importance of the investigation, trade unions approached the Committee with cautious optimism that it could address serious shortfalls in the 1950 OLRA. Labour argued before the Committee that future reforms address the holes in the certification process while extending the freedoms to bargain and to strike.1 Paradoxically, they also saw legalized security as an important tool to defend themselves against raids from each other. These unions also agreed on questions concerning the OLRB, interpreting it as an

l64AO, OPFGC, RG 3-23, Box 88, United Brotherhood of Carpenters and Joiners of America, Letter to Leslie Frost Re: Report of the Select Committee on Labour Relations, 1960 January 20. The Council stated, "when the many anti-labour recommendations contained in the Report are pitted against the paltry one or two recommendations which may be beneficial to us; we would be willing to forego these, rather than be plagued by the vicious anti-labour legislation invoked by this report." 165"Cites Pending Ontario Legislation: Peril at New High, Labor Told," Globe and Mail, 26 November 1959. Wilfred List "Union Leaders Fear Growing Regulation," Globe and Mail, 21 December 1959. 166 "Union Charges Provincial Act Creates Strikes," Globe and Mail, 15 May 1958. Some unions went so far as to propose that the OLRA gave employers added incentive to oppose unions which led to increases in strikes. -282-

important institution to protect unions. Where the unions were critical of the Board, it was generally over the creeping judicialization of Board procedure. Ultimately, all unions endorsed and defended the role of the Board, while universally condemning the increasing judicialization of the Board since the Gale decision in 1951.

Employers, meanwhile, approached the Select Committee with a clear agenda to weaken existing union rights. In order to accomplish this goal, employers positioned themselves as defenders of individual rights. They argued that trade unions had become increasingly powerful throughout the decade and were surpassing the powers of management. In many ways, employers' attitude throughout the Select Committee hearings coincided with Klare's argument that courts are a natural ally of capital.

Employers' position that trade unions surpassed the power of business was premised on the fact that post-war institutions, including the OLRA and its administration by the

OLRB, undermined basic rights of property. This being the case, employers claimed that they were capable of eroding the rights of every individual to work, especially in those instances when unions were able to win union security clauses in collective bargaining.

An important way to address this power imbalance was to loosen restrictions on employer's right to speak out during certification drives. They also advocated for the right to sue unions who engaged in illegal strikes and demanded restrictions on OLRB discretionary power. Another important way to protect individual workers was to advocate for the adoption of right-to-work laws that were pioneered in the Taft Hartley

Act, 1947. Alongside the introduction of right-to-work laws, employers also called for -283-

greater judicial intervention in labour disputes. On these questions, employers called for the right to appeal OLRB decisions and to have judges make final decisions on certification, collective bargaining and all issues pertaining to strikes.

With few exceptions, the final recommendations of the Select Committee endorsed the position of management, embracing the notion that unions had surpassed the power of management. By taking this position, they called for easing the restrictions on employer actions during certification drives, including expanding employer speech provisions in the Act. They also agreed with employer arguments surrounding individual rights, recommending increased voting procedures to deal with certification and union security. Despite arguments to the contrary, the Committee's recommendation to further

"democratize" the industrial relations process also gave employers the necessary tools to oppose unionization in their plants. The Committee also agreed with employers that the law had to be amended to give judges greater oversight of the OLRB. Under the rubric of individual rights, the Committee endorsed the increased judicialization of labour relations by suggesting that the law had to restore balance in the province's industrial relations.

Albeit premising its recommendations in terms of questions of balance, the Committee report sought to restore many of the freedoms business enjoyed prior to the 1950 OLRA, especially the right to return labour relations to court. This notion of balance had the effect of undermining those recommendations favouring unions. Ultimately, the Select

Committee's report overwhelming accepted that post-war law overwhelming favoured trade unions. Armed with the Select Committee's report, employers prepared for a new

167 Bruce Levett, "Jurisdiction Tough Labor Code Problem," Windsor Star, 4 January 1958. -284-

battle to have it adopted in the OLRA. This occurred in Frost's third and final term as

Ontario premier in 1960. -285-

Chapter 6

Changing the Guard: The 1960s and the Weakening of the Post-war Labour Regime

Introduction

By the end of the 1950s, Ontario's labour relations framework was criticized by both unions and employers. For the Progressive Conservative government, the Select

Committee's final report represented a clear condemnation of its Labour Relations Act.

In criticizing the 1950 OLRA, members of the Committee (many of whom were leading members of John Robarts' cabinet in the 1960s) insisted that unions had surpassed the power of employers. This implied that the industrial relations framework be narrowed so that certification, collective bargaining, and the rights to strike were offset by extending employer rights to oppose unionization. The tension surrounding the extension of employer rights in the Act continued under Frost's final term in office and under his successor, John P. Robarts.

Given the Select Committee's sympathy for business, many of the reforms in

1960 were predicated on the limiting industrial strikes by bringing labour activities increasingly under the purview of judges. This included a greater utilization of courts in regulating collective bargaining, conciliation and limiting the size and scope of strikes.

For the most part, trade unions condemned the increased role of the courts within industrial relations, seeing judicialization as a conservative reform used by employers to -286-

defeat legitimate trade union activity.1 A great deal of this hostility arose out of employer

demands to expand its ability to break legal strikes in defence of individual rights of

employees, and by extension, individual employers. Paradoxically, most of these same trade unions also demanded increased legal protection in order to defend themselves

against employer use of strikebreakers.2 Many unions were also calling for increased

legal security in order to protect themselves against jurisdictional raids. In this chapter, I will argue that the Conservative government instituted a number of reforms in the 1960s, which had the effect of expanding employers' ability to resist trade unions, all in the name of balance. These reforms were especially effective in limiting the rights of trade unions to legally strike. As in the 1950s, judicial intervention also worked to enhance the position of employers.

In order to elaborate on this argument, this chapter will be divided into three sections. In the first section, I will examine the pressures on the provincial government to reform the OLRA. By 1960, these pressures were coming from restrictive legislation in other jurisdictions, most notably in British Columbia and Newfoundland. This section will also examine the campaign by employers in Ontario to have the Select Committee report adopted in its entirety. In deciding which recommendations of the Select

Committee to implement, I will show how the Government used the discourse of balance to favour reforms that enhanced the position of employers. As will be demonstrated, the

1960 reforms constructed substantial barriers to union expansion across the province. In

1 Joan Sangster, ""We No Longer Respect the Law": The Tilco Strike, Labour Injunctions, and the State," Labour/Le Travail 53 (2004), 49-50. 2 "Ontario Labour Laws: Want Many Changes Made in Labour Act," Ontario Labour Review, September- October, 1958., 5 -287-

the second section, in order to illustrate my argument, I explore two significant strikes in

Toronto's booming service sectors in the early 1960s: the Toronto construction strike and

a yearlong strike at the Royal York Hotel. In the construction strike, workers were most

successful when they broke the ban on illegal strikes and challenged the government

directly. Faced with direct challenges from these workers, the government caved to the

unions' demands. In contrast, when workers at the Royal York Hotel deliberately rejected illegal tactics in favour of the legal in the OLRA, they were defeated by an

overly hostile employer who was able to use the courts to limit the right of striking workers to maintain their jobs during a legal strike. The dynamics evident in these two

strikes placed important limitations on the expansion of unionization in the 1960s, despite the seemingly positive embrace of union rights to organize and to strike.

Finally, the third section examines attempts by employers to influence the new

Conservative premier to further constrain the OLRB by enlarging the scope for judicial oversight. Employers argued that the Board was not capable of reconciling the principles of stability within the OLRA with the overall goal of democratic participation in the selection of unions.3 In this campaign, employers insisted that Board members were openly biased in favour of unionization. Employers' efforts took the form of challenging the long-standing presence of OLRB chair, Jacob Finkelman. In this campaign,

Finkelman was criticized for using his extensive experience to intimidate vice-chairs and

3 AO, PSCLR, RG 49-138, Box C 89, Testimony of Jacob Finkelman, 25 June 1957, 276-7. Finkelman suggested that the principle rested on the notion that "you have a reconciliation over the principle of stability to keep things on an even keel and your principle of democracy to give the employees an opportunity at appropriate times to indicate they have changed their mind that they no longer owe allegiance to the union which represents them, and they want another one, or they don't want one at all." -288-

labour-side members, which employers cynically dubbed the "chairman group." As this

campaign reached its conclusion in the middle of the decade, it was clear that employers were only prepared to tolerate the Board if it reinforced the same powers demonstrated in

courts. Ultimately, the attack on the "chairman group" was designed to reinforce the power of employers in the workplace and further limit the ability of the Board to expand unionization in Ontario.

Challenges to the Post-War Framework

By the end of the 1950s, questions of post-war labour relations law and the growth of union power grew to the top of the political agenda in many provinces. Many of the reforms implemented in other provinces had inevitable influence in Ontario. In British

Columbia, for instance, the Social Credit government of William (W. A.C.) Bennett stated that one of its highest priorities was to limit the growing number of strikes in the province.4 This promise culminated in the passage of Bill 59, An Act Relating to Trade

Unions in 1959. The new Act outlawed all picketing not linked directly to a single employer economic dispute. In essence, the new legislation prohibited all sympathy pickets, secondary pickets or jurisdictional pickets. The Social Credit government also bowed to employer pressure by requiring that trade unions be incorporated as legal entities rather than voluntary associations.5 As employers had argued before the Ontario

4 On labour unrest in British Columbia, see Jamieson, Times of Trouble, 374-86; Ian MacDonald and Alex Young, "I'll Stake Gov't on Labor Law—Bennett: Bill Passes by 30-12," The Sun, 19 March 1959. 5 John Shields, "British Columbia's New Reality: The Politics of Neo-Conservatism and Defensive Defiance," Ph.D. Thesis, University of British Columbia, 1989, 405-6. John Shields interprets the election -289-

Select Committee, this reform ensured that unlawful strikes would be subjected to civil

litigation.6 Under the BC legislation, unions were liable for any picketline offence that was deemed illegal. It also made union leadership personally responsible for the actions of individual members. This implied that union officials had to take a direct role in policing the actions of their membership on the picketline. This inevitably limited the militancy of strikes in the Province.7

The B.C. legislation also sought to weaken the ability for unions to mount a credible defence against employers in court. Section 4(2) of the new Act stated, "that the act of any member of an employer's organization or trade union is presumed, unless the contrary is shown, to be done, authorized or concurred in the employer's organization or trade union." According to A.W.R. Carrothers, this provision represented a giant step backward in linking post-war employment relations with a "prima facie doctrine of vicarious liability directly in unions for acts of their members, similar to that in the

of the Social Credit government in BC as the "continuation in the drift towards replacing restrictions on unions' freedom to strike." 6 AO, PSCLR, RG 49-138, Box C 89, Testimony of the Ontario Chamber of Commerce (and Windsor, London and Kitchener CCC and Windsor Automotive Parts Manufacturers), 28 November 1957, 2614-5. Employers insisted that a reform of this nature would hold "a trade union civilly liable for any damages caused by its unlawful actions or those of its members in connection with the trade union's activities." See also, Bruce Levett, "Jurisdiction Tough Labor Code Problem," Windsor Star, 4 January 1958. According to Harold Perkins (Council for the Select Committee), the BC Code played an influential factor in the Committee's final recommendation that unions be made legal entities. 7 Joe Morris, "New B.C. Labour Act: Political Reprisal," Canadian Labour, May 1961, 17. In 1961, the same government attempted to limit trade union political activity when it passed Bill 42, An Act to Amend the Trade Unions Act. Under this Act, a union was forbidden to use funds derived from membership (whether there was a check-off agreement in place or not) to support a political party because it was a violation of individual rights. For most trade unionists, this was nothing more than an attack on the foundation of collective bargaining in the province. 8 The British Columbia Trade Union Act, 1959. -290-

common law of master and servant and the general law of agency." In essence, this reform turned its back on the basic common law doctrine of due process as the burden of proof during labour disputes was automatically shifted to the union. For those who were suspicious that post-war legislative policy had shifted the balance of power in favour of the unions, the Social Credit government was clearly seeking to restrain the actions of trade unions and make it more accountable to the courts.10 By drawing all forms of trade union activity under these rules, the BC government also gave judges an increasingly dominant role in regulating strikes throughout the province. By pushing these questions to courts, the reforms to the Act sought to limit the ability of trade unions to strike and to picket.

The changing nature of labour relations law was not limited to British Columbia.

In Newfoundland, Premier Joey Smallwood—himself a former socialist and union organizer—introduced a series of reforms to limit the International Woodworkers of

America (IWA) from winning collective bargaining rights in the Province. The situation was complex, and beyond the scope of this analysis. Suffice it to say, the Cold War battles being waged in the CLC were also being played out in Newfoundland. In response to a bitter fight between the Brotherhood of Carpenters and Joiners and the

IWA, Smallwood unilaterally decertified the unions and created a company union (the

Newfoundland Brotherhood of Wood Workers) to represent the province's

9 A.W.R. Carrothers, "The British Columbia Trade-Unions Act, 1959," University of Toronto Law Journal, 13(1960), 281. 10 Editorial, "B.C. Grasps the Nettle," Globe and Mail, 5 March 1959. The Globe and Mail stated that this provision "repairs the weaknesses and inequalities in the BCLRA, which gives unions far more power (and far fewer responsibilities) than employers." -291-

woodworkers. Smallwood justified the creation of the company union by claiming to

be freeing "the loggers of Newfoundland from the tyranny of a foreign union."

According to Bryan Palmer, however, this was a larger attempt to break a bona fide trade

union from establishing a footing in the province.13

In building on this conviction, Smallwood's government extended the legislative

restriction on the IWA to the 1959 Labour Relations Act, which outlawed secondary boycotts and sympathy strikes. In addition, the government maintained a veto over what constituted a "legitimate" trade union. Put simply, any trade union that did not conform to the policies of the provincial government was subjected to repressive government policy.14

The Legacy of the Select Committee: The 1960 Ontario Labour Relations Act

Given the legislation in BC and Newfoundland and the 51 recommendations made by the

Select Committee, the Ontario government promised to amend the OLRA during the

1959 provincial election campaign.15 As was the case during Frost's re-election campaign

1' See Morton, Working People, 229-31. 12 Quoted in Palmer, Working Class Experience, 300-1. 13 Ibid., 301. 14 Canada Department of Labour, "Labour Relations Legislation in 1960," The Labour Gazette 60 (1960), 1155. Some of these provisions were repealed in 1960. In the 1960 amendment, the government authorized the Newfoundland Labour Relations Board to revoke the certificate of a trade union if the board had determined that a bargaining agent no longer represented the majority of employees in a particular unit. The board was also given the discretion to act upon its own motion and make an investigation as it saw fit. A hearing would be provided upon the request of either party. In any event, the board was given the discretion to decertify a union given specific circumstances. There were some employer restrictions included in this amended Act. 15 "Calls June 11 Election, Frost Issues Blueprint: Premier Cites Record on Decade in Office," Globe and Mail, 5 May 1959. On the influence of the British Columbia legislation in Ontario, see columnist Murray Goldblatt, "B.C.-Type Labor Law Threat in Ontario Could Handcuff Union," Toronto Daily Star, 4 April 1959. -292-

in 1955, the Tories chose to campaign on the accomplishments of the party rather than

make concrete promises for reform.16 On the labour question, the party took no position

on the Select Committee report, although Frost did state that, "it will be our policy to

make improvements where indicated." The ambiguity of the Tory platform did not go

unnoticed by the opposition parties. Fresh from his election as Liberal leader,17 John

Wintermeyer chastised the Premier for ignoring the Select Committee report because, "it

1 R

was afraid to handle such a political issue at election time." Wintermeyer promised to

implement the report in its entirety as well as appoint a series of labour-management

councils to discuss workplace issues, including automation, security and the "dislocation of industry." How the Liberal leader sought to accomplish this while building support from employers or the trade unions remained unclear.

Campaigning in St. Catharines, CCF leader Donald MacDonald highlighted the rising unemployment numbers in Ontario's manufacturing sectors and warned of

"industrial chaos" if the Tories implemented the recommendations of the Select

Committee.19 He maintained that the implementation of the report would put the provincial labour movement "on life and death." Ignoring the fact that he consented on

41 of the 51 recommendations, MacDonald used forceful rhetoric when he compared the

16 MacDonald, The Happy Warrior, 13-4. The vague commitments of the leader had not stopped the party from sending cabinet ministers to attack the opposition in the lead up to the campaign. According to Donald MacDonald, this included a renewed attack on socialism, the CCF and the linkages of trades unions to political parties by Select Committee member Robert Macaulay. 17 MacDonald, The Happy Warrior, 93. The choice of Wintermeyer led MacDonald to conclude that the Party consolidated its position "to the right of the Conservatives." See also, "The Liberals: Are They Growing Too Conservative?," Toronto Daily Star, 29 May 1959. 18 Anthony Westell, "Vote No Tea Party, Push Basic Issues," Globe and Mail, 20 May 1959 and Anthony Westell, "John Wintermeyer: Labor Relations Report Shelved For Campaign," Globe and Mail, 22 May 1959. 19 Ben Rose, "Chaos Threatening Labor-MacDonald," Toronto Daily Star, 11 May 1959. -293-

Committee's recommendations to the "Mein Kempf' of the CMA and stated that the

Tories "would make it almost impossible to organize new unions."20 He was also warned

that the election of a Tory government would give "the right to appeal decisions of the

OLRB to the courts which would enable wealthy corporations to destroy unions

financially by lengthy appeals even if the corporations knew they couldn't win."

MacDonald claimed that a CCF government would alleviate the contradictions inherent

in the Tories industrial relations framework, although the party gave only vague details in

the platform.

Much like in 1955, the opposition parties were not able to win over the electorate

nor were the parties able to capitalize on the scandals surrounding the Tory cabinet.

While unemployment remained an important problem, this issue also did not result in

1U1U. 21 Ibid. 22 AO, PSCLR, RG 49-138, Box C 92, Submission of the CCF to the Select Committee on Labour Relations, 21 January 1958, 2-3. During the CCF's testimony before the Select Committee, the party presented the basic social democratic philosophy of labour relations. It stated that "the state has a duty to clear out of the way obstacles which thwart the efforts of workers to build unions of their own. In the specific situation in Ontario, this requires the state to intervene in the following three respects: 1) By effectively preventing improper interference with the free choice of employees; 2) By compelling recalcitrant employers to recognize and bargain with unions which are genuinely representative of their employees; 3) By setting up machinery for determining impartially and conclusively and dispute on the question of fact as to whether or not a specific union actually represents a given group of employees. In order to address these complaints, the Ontario CCF borrowed from the Saskatchewan Trade Union Act and recommended reforming the Board to freely conduct certification applications and to allow it to prosecute unfair labour practices. The party also proposed including union security in the Act, promised to allow public employees to unionize and promised to lower the threshold to obtain certification to 35 per cent. The party also promised to eliminate the conciliation procedure. 23 MacDonald, The Happy Warrior, 75-91. From 1955 to 1959, the Tories were plagued by the Northern Ontario Natural Gas (NONG) scandal, which saw several cabinet ministers resign because of conflict of interest charges over the purchasing of land and stock in a company that was linked to government contracts. There were also several Liberal politicians, including leader John Wintermeyer, who were linked to the scandal. In 1958, Labour Minister Daley was accused of conflict of interest in a patronage scandal dealing with the Niagara Parks Commission (NPC). In this scandal, Daley purchased land that was under consideration to be transformed into a public park. CCF leader Donald MacDonald was instrumental in bringing both of these accusations to the public. -294-

public backlash against the Conservative government. Although other issues were stressed during the campaign—including liquor regulation, the portability of worker pensions, the appalling regulation in workers' health and safety, the increase in public debt and the expansion of public health insurance—the public voted for the status quo.

On election day, voters gave Frost a third term in government, although the Premier was unable to repeat the landslide victories of 1951 and 1955.25 The Tories lost a few

Northern seats (those linked directly to the NONG scandal) and remained strong in

Eastern Ontario, with rural voters and in Toronto, winning 71 of 98 seats with 46 per cent of the vote. The Liberals were able to gain 11 seats, winning 22, while the CCF added 2 seats to bring its total to 5. Although turnout for the 1959 campaign was one of the lowest in the history of the province, the election gave Frost a third straight majority and a mandate to stay the course. Given the generalities of the platform, whether the Tories were planning to implement the Select Committee report remained an open-ended question.

Behind the scenes, there is some indication that employers were demanding immediate reform to the Act. Throughout the campaign, many employers wrote to Frost conveying that their support for the Conservatives was tied to reformed labour laws. In one exchange, employers in the construction and manufacturing sectors chastised the

See the series of interviews by the Toronto Daily Star with party leaders. "The CCF: Renewed Vigor or the Fading of a Dream?" Toronto Daily Star, 21 May 1959.;"The Liberals: Are They Growing Too Conservative?," Toronto Daily Star, 29 May 1959.; "Conservatives: Scandals, Debt Don't Intimidate," Toronto Daily Star, 7 June 1959. 25 On the intricacies of the campaign, see Graham, Old Man Ontario, 359-64 and MacDonald, The Happy Warrior, 95-8. -295-

government for not introducing the report before the election. They subtly reminded

Frost that it was small and medium sized businesses that "had supported the government in past campaigns," and cautioned that they were expecting the government to implement the report upon the party's re-election. After the campaign, employer demands to amend the OLRA intensified. In a series of letters, hundreds of employers wrote to Frost promoting the virtues of the report, suggesting that it would bring:

(a) Union responsibility to the same extent that companies are liable for breaches of law. (b) Effective provincial machinery for a speedy and binding settlement of all jurisdictional disputes. (c) Legislation to effectively eliminate unlawful work stoppages (d) Effective legislation prohibiting picketing for the purposes or in support of unlawful activities. (e) Legislation providing enforcement machinery to ensure speedy compliance with the LRA. (f) Means by which the Department of Labour be made fully and directly responsible for the enforcement of its own labour legislation. 7

In addition to these priorities, employers continued to argue for judicial checks on OLRB discretionary power. In one example, the John Inglis Company Ltd stressed that excessive administrative discretion went against the growing public demand for enhanced government accountability.28

26AO, OPFGC, RG 3-23, Box 87, D.R. Emery, President of Emery Engineering Co. Ltd (Barrie Ontario) Telegram to Leslie Frost 8 June 1959. 27 AO, OPFGC, RG 3-23, Box 87, Telegrams to Leslie Frost Regarding Select Committee on Labour Relations, 8 June 1959-January 1960. 28 AO, OPFGC, RG 3-23, Box 88, John Inglis Co. Ltd., Letter to Leslie Frost Re: Bill 74, 11 March 1960; Government of Ontario, Report of the Committee on the Organization of Government in Ontario (The Gordon Commission) (Toronto: Queen's Printer for Ontario, 1959). The Inglis Company argued that public desire for greater accountability was expressed in the final report of the Committee on the Organization of Government in Ontario (the Gordon Committee). The Gordon Committee had been established by the Frost Government in June of 1958 to examine the administrative and executive powers of the Ontario bureaucracy. It was also asked to examine the evolving relationship between boards, commissions, and the -296-

The Select Committee's influence on future OLRA reforms was disturbing for

Ontario's labour movement. The OFL, for instance, was particularly concerned about the potential union-busting proposals in the Select Committee report. The union identified four specific areas of concern: the changes proposed to the certification procedures; the removal of the OLRA's privative clause allowing appeals to the courts; the outlawing of secondary picketing; and the outright ban on strikes in so-called "essential services."

Along with its affiliates, the OFL launched a post-card campaign, in which they sent letters of protest to each Member of Parliament outlining their opposition to the Select

Committee and warned against any drastic revision of the Act.

Meanwhile, individual unions continued to lobby the government on specific issues. The industrial unions stressed that any proposal to loosen employer speech rights would seriously hinder its ability to certify new plants and increase the likelihood of company unionism.30 The public sector unions continued to advocate for the elimination of the municipal exclusion clause of the Act (s.78). Additionally, the unions in the construction and building trades argued for increased freedom to strike. The Communist

Party (CPC) was also active in this letter writing campaign, although the party was far more critical of the Minister, employers and the overall limitations in the original Act.

The party emphasized that the most important issue was not the form of government

provincial executive. Like the Select Committee, the Gordon Committee adopted the classic business arguments that effective government was necessarily smaller and less intrusive. It also recommended that government ministries be smaller and that fewer boards and commissions be established. Perhaps the most controversial recommendation was the suggestion that the privative clause in the OLRA (and five other statutes) be removed to allow the decisions of boards and commission to be appealed. 29 OFL, "What Labour Fears," Ontario Labour Review, January-February, 1960, 4. 30 AO, OPFGC, RG 3-23, Box 88, George Burt President of the UAW, Letter to Leslie Frost, 20 March 1960. The UAW also stressed that unions be able to strike during the life of a collective agreement. -297-

intervention, but rather the "mounting attack upon the trade union movement and the trend toward government intervention—by means of the legalistic approach—in order to

force workers to accept the economic dictates of powerful private employers and monopoly interests."31 Ultimately, the opposition from trade unions and the left rested on concerns that the rights to organize and to strike were in jeopardy if the Select Committee report was implemented in its entirety.

As these tensions simmered beneath the surface, Daley stressed his reluctance to undermine the work he had done since becoming minister in 1943. Having been in the position for almost seventeen years, Daley took an unusual personal stance in defending the 1950 OLRA. Given this personal connection, he was particularly suspicious of the

Committee's report. In public, he took a defensive position, suggesting that the 1950 Act was reasonably balanced and should only be amended where necessary. This observation stemmed from his belief that labour relations had improved considerably since 1950 and that the legislation was not "a means whereby either labour or industry may have an undue advantage over the other, but shall encourage realistic and proper bargaining." Within this context, Daley's assessment of balance in the Act suggested that he remained convinced that the 1950 OLRA extended the rights of labour as far as possible. Daley proclaimed that existing legislation provided the minimum standards for

31 AO, OPFGC, RG 3-23, Box 88, Bruce Magnuson, Ontario Committee of the Communist Party of Canada, Letter to Leslie Frost, 25 January 1960. 32 Wilfred List, "Labor Minister Opposes Drastic Changes in Law," Globe and Mail, 3 November 1959. In a speech to the 1959 OFL convention, Charles Daley stated that the government was not interested in following the divisive labour policies in British Columbia or in Newfoundland. He stated further that the recommendations of the Select Committee confused him and the government believed that "a more satisfactory state can be achieved by a minimum of interference by the legislature." "Legislative Assembly of Ontario, Proceedings of the 26,h Parliament, 2nd Session, 3 March 1960, 937. -298-

organized labour and management to interact peacefully.34 Under these conditions, the

most important question for any reforms was how Ontario's labour law constructed the minimum conditions for responsible unions to engage with employers.35

Notwithstanding Daley's conciliatory public tone, the Select Committee's hostility to the 1950 Act privately annoyed him.36 This frustration was observable in a

series of meetings and letters to his Deputy Minister of Labour, J.P. Metzler.37 In these exchanges, Daley considered the majority of recommendations to be unworkable because they would destroy his labour legislation. He was particularly annoyed by the recommendations suggesting that management be made more responsible at the bargaining table (this was impossible he wrote) and deplored the recommendation of the

34 AO, OHSSPI, RG 47-27-1-29, Container Q-118, Interview with Mr. Charles "Tod" Daley, Ontario Minister of Labour, 1943-1961, 23 August 1974, 116-17. Daley later suggested that his opinion grew from the belief that relations between employers and employees were really a debate over "practical stuff and that this transcended partisan differences between Conservatives and Liberals, stating that "Really I don't think they were caring whether you were Conservative or Liberal. What they wanted was to improve their position, and it would have been done the same if we had been Liberal.... It was practical stuff. " 35 AO, OHSSPI, RG 47-27-1-29, Container Q-118, Interview with Mr. Charles "Tod" Daley, Ontario Minister of Labour, 1943-1961, 23 August 1974, 122. Daley suggested that employers would cooperate with unions "if they could get a good experienced man, because they weren't so militant in those days, if they can get a good man I suggest that you get him because he knows about how far he can go. Now, these fellows today (1974) are just elected and drunk with power. They won't know what to ask for or when to stop why they've got enough." 36 NAC, FP, MG 31, E-27, Vol. 8., Folder Oral History Project, December 1971., 5-6. This seems to have come from Daley's hostility to the Committee itself. Finkelman observed that Daley "was frightened of the Act and its technicalities and [thus] was afraid to stand up to the Committee." 37 AO, OMLC, RG 7-1-0-437, Box 9, Comments on the Recommendations of the Select Committee: Minister of Labour, January 1960. -299-

check-off. Daley also suggested that the Select Committee's recommendation that the threshold for certification be reduced to thirty-five percent would,

...encourage such unions in particular to come in after conducting a short blitz campaign and, in my opinion, the result would be a sharp increase in the number of votes that unions would lose which in turn would tend, however illogical it may be, to cast doubt on the soundness of the Act generally. In the long run, the respect for collective bargaining under the legislation would be reduced.

While this had not happened in Saskatchewan where similar certification levels existed, he was convinced that lowering certification levels would destabilize the Act. This level of hostility also extended to easing certification provisions for marginalized workers4 but

He suggested in the House of Commons that this recommendation would "deprive management of bargaining rights. This is completely unfair. Neither labour or management should be deprived of bargaining rights." Legislative Assembly of Ontario, Proceedings of the 26th Parliament, 2nd Session, 24 February 1960,696. 39 Recommendation 16: It is the opinion of the Committee that all employees should have an opportunity of indicating their wishes by democratic process. Subject to the particular requirements, where there is a clear indication by the employees in the bargaining unit, it is the recommendation of the Committee that S. 7 (2) of the LRA be amended as follows— If, on an examination under sub-section 1, the Board is satisfied that not less than 35% and not more than 75% of the employees in the bargaining unit are members of the trade union, the Board shall direct that a representation vote be taken. If the Board is satisfied that more than 75% of such employees in the bargaining unit are members of the trade union, the Board shall direct that the bargaining unit is automatically certified. In cases where the application is challenged, however, the Board MAY direct that a certification vote be taken. 40 AO, OMLC, RG 7-1-0-437, Box 9, Comments on the Recommendations of the Select Committee: Minister of Labour, January 1960. 41 AO, OMLC, RG 7-1-0-437, Box 9, Comments on the Recommendations of the Select Committee: Minister of Labour, January 1960. In this memo, Daley often emphasized his belief in "free" collective bargaining. In spite of this, he continued to defend the exclusion of workers in the agricultural, horticultural, municipal, domestic and medical sectors. On these grounds, he disagreed with the Select Committee's position that easing restrictions on the bargaining rights of office workers benefited large industrial workplaces. Despite pleas from the UAW to ease the restrictions on office certification, Daley argued that office workers should be organized in separate bargaining units. For the industrial unions, this made organizing office workers time consuming and often impossible. See AO, PSCLR, RG 49-138, Box C 90, Testimony of the UAW (International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CLC), 15 October 1957, 1624. The UAW argued to the Select Committee that employers often insisted that office workers were employed in a confidential manner. While the Board had established regulations around these criteria, the question remained ambiguous. In the Canada Iron Foundries Case (1956), for instance, the board held that a "self same trade union which represents what might be broadly described as a production and maintenance unit can properly be certified as bargaining agent for a separate unit consisting of office employees." -300-

paradoxically, not to employer speech rights. Within this context, Daley's reference to existing balance in the Act is telling. He believed that the 1950 OLRA gave trade unions the necessary freedom to engage in meaningful organizing, collective bargaining and the ability to strike. This implied that the 1950 Act represented the fullest extension of trade union rights in Ontario, rather than a necessary first step to further the rights of working people. Under this rationale, further reforms had to take seriously the notion that employers' rights were being undermined by the extension of union power.

Daley's suspicion of all 51 recommendations in the Select Committee report proved divisive in cabinet. On the one hand, former Select Committee members John

Yaremko, (Transport Minister) Robert Macaulay, (Minister of Energy) and James

Maloney (Minister of Mines) were pressing for tough union controls and in some cases outright legalization of union-busting.43 On the other hand, Daley's lukewarm reception for the final report and his intense desire to preserve his 1950 OLRA contributed to a far less restrictive Act than envisioned by the Select Committee members. Ultimately, the compromise achieved in cabinet was to introduce greater "labour control" amendments while dropping many of the proposals which sought to pick an open fight with organized labour in the province.

Bill 74, An Act to amend the Labour Relations Act was finally introduced in

February of 1960, becoming law on 22 October 1960 (Appendix II). In the new Act, the

42 AO, OMLC, RG 7-1-0-437, Box 9, Comments on the Recommendations of the Select Committee: Minister of Labour, January 1960. Daley accepted the rationale of the Select Committee that the 1950 Act had unfairly limited the role that employers could take in resisting union drives and agreed that S.45 of the Act had marginalized employers' freedom of speech. 43 Wilfred List, "Cabinet Approves Labor Act Changes," Globe and Mail, 20 February 1960; Pat McNenly, "Labor Arms Against Tougher Ontario Law, Toronto Daily Star, 15 December 1960. -301-

government focused on the Select Committee's technical concerns over certification, conciliation, mediation, arbitration and OLRB discretionary power while shelving many of the most egregious suggestions pertaining to certification, legal incorporation and the abolition of secondary boycotts. The amendments, however, sought to appease the position of Yaremko and Macaulay by making it easier for individuals to challenge a certified bargaining agent. In the building trades, the new legislation accomplished this by establishing a jurisdictional disputes commission to regulate conflicts between unions while bringing in restrictions on union security and union strike activity.44 By dealing with these aspects of Act, Daley boasted that the government had preserved the long sought after goals of balance in the OLRA.45 In this regard, the amendments did keep with the overall theme of the Select Committee's recommendations, which sought to strengthen the "rules and the ways and means, by which solutions can be found without resort, wherever possible, to destructive strikes and lockouts."

Bill 74 sought to impose two broad policy goals: a more streamlined process to settle industrial disputes and the increased legal regulation of trade union responsibility.

In order to accomplish these objectives, the government implemented the procedural aspects of the Select Committee's report pertaining to union certification and conciliation delay. It also made it easier for unions and employers to appeal to the OLRB for rulings on unfair labour practices during collective bargaining. The government also changed the

The commission was given the power to issue interim orders which were enforceable in the courts. This was meant to prevent jurisdictional disputes from interfering with production. 45 Daley comments in the House of Commons, Legislative Assembly of Ontario, Proceedings of the 26th Parliament, 2nd Session, 24 February 1960, 695. -302-

conciliation procedure by allowing the Minister to intervene in collective bargaining disputes to prevent delays in appointing a conciliation officer, and by revising the time delays associated with the establishment of a conciliation board. The amendments also made it easier for an employer or a union to seek the assistance of a mediator in order to settle collective bargaining disputes and they eliminated many of the barriers for either party to apply for arbitration.

In addressing certification changes, the government relied on the Select

Committee's observation that the current process was slow and cumbersome. While

Daley shied away from the radical proposals of the Committee, he followed through with his recommendation to loosen employer speech provisions (s. 45).47 In order to avoid outright dissent, he also gave a little back to the unions by making it an offence for employers to interfere with the selection of employees during an organizing drive.

According to the OFL, this was a perfect example of the Tory government giving a little with the left hand while taking more away with the right.48 Other changes reinforced the ability of the Board to determine a natural "voting constituency" for the purposes of collective bargaining. In part, the focus on a natural "voting constituency" allowed the

Board to determine whether craft workers could enter industrial unions or whether they should be incorporated into separate bargaining units. This amendment was one of the

47The wording in the Act (s. 45) stated that "... nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises, or undue influence." This was almost identical to the CMA's proposals that stated employer speech be protected "no matter how favourable or unfavourable such statements may be to any trade union, so long as no intimidation or coercion is involved." AO, PSCLR, RG 49-138, Box C 90, Submission of The Canadian Manufacture's Association (Ontario Division), 29 & 30 October, 16. 48 Ontario Federation of Labour, Bill 74 An Act to Amend the Labour Relations Act: An Analysis by David Lewis and Labour Representatives on the Labour Relations Board, (Toronto: OFL, 27 May 1960), 12. -303 -

rare instances where the CMA and the OFL had agreed that the Board be given the discretionary power to make these decisions.49 Daley also kept the 45 per cent threshold to receive an OLRB certification vote and maintained the long criticized provision that the union had to receive the voting support of 50 per cent of all those in the unit rather than a simple majority those voting. In this area, the status quo prevailed.

In other areas, the government imposed a series of restrictions on a trade union's ability to enter into a security agreement and to go on strike. Above all, the government refused to include the voluntary revocable check-off in the Act. Despite recognizing that the check-off had been a key ingredient in leading to employer hostility in the gold mines, Daley continued to argue that check-off legislation adversely affected the balance of power by limiting employer rights. He was adamant that,

...it has [no] place in this Act. It is a complete misunderstanding of the problem to say that it applies to a small group of gold producers who have some assert, quite unreasonably refused to accept it. The fact is that any kind of check-off presently in effect applies only during the lifetime of any agreement. The introduction, therefore, of any form of check-off by legislation in fact raises the bargaining platform and deprives management of bargaining rights. This is completely unfair. Neither labor nor management should be deprived of their bargaining rights.50

The denial of the check-off did not end there. The reforms also weakened the ability of unions to win a voluntary security agreement during first contract negotiations. Under this new provision, a union and an employer could not enter into a closed shop or maintenance of membership agreement where an employee was required to be a member

Canada Department of Labour, "Labour Law: Labour Relations Legislation in 1960," The Labour Gazette 60 (September 1960), 1154. 50 Daley comments in the House of Commons, Legislative Assembly of Ontario, Proceedings of the 26th Parliament, 2nd Session, 24 February 1960, 696. -304-

of a union unless 55 per cent of the employees were members of the union at the time the agreement was signed.

The government justified these restrictions by claiming to protect individual employees from losing employment if an employee had been expelled from a union

"because he was or is a member of another trade union or has engaged in activity against the trade union which is party to a collective agreement." This wording implied that a decision by a union to expel a member could not adversely influence his or her employment. In a series of confidential memos to Daley, OLRB chair Jacob Finkelman suggested that the purpose of this amendment,

...is to protect an employee who becomes involved in any situations where one union is certified and another union is attempting to replace the certified union and replace it with a new one. If this competition takes place in a similar workplace and the worker is expelled or suspended from membership in the union which is a party to the to the agreement or from whom membership is denied or withheld, and where the union involved calls upon the employer to discharge him under the terms of a union security clause of the collective agreement between the union and the employer.

51 The stated purpose of this section was to avoid "sweetheart deals" and thus further limit company unionism. Yet, it is unclear how a sweetheart deal could be identified simply by examining a union security provision. Presumably, a sweetheart deal made a security agreement unnecessary as the employer tacitly accepted the union in the workplace. In another bizarre twist, sub-section (d) excluded the construction industry from this provision, even though these arguments originated from construction firms where "union membership as a condition of employment" was most profound. In the 1980s, OLRB chair George Adams observed that this amendment pushed all unions to "seek a Board certificate, even if the employer is willing to bargain without one." Adams, Canadian Labour Law, 65. 52 AO, OHSSPI, RG 47-27-1-16, Container Q-118, Interview with Ken Bryden CCF/NDP MPP, August 1972, 20-1. On first reading, this clause faced heated reaction from the CCF members of the legislature. Ken Bryden was overly critical of this provision, suggesting that it practically "begged employers to interfere in the union." He also suggested that it was "a backdoor attempt to introduce right-to-work legislation in Ontario." As a partial response, the third reading of the bill included subsection 3, which forbade any such action if "had been instigated or procured by his employer or any other person acting on the employer's behalf has participated in such activity or contributed financial or other support to the employee in respect to such activity." Years later, Bryden argued that this was one of those rare instances where opposition criticism may have had a positive influence in changing a government bill. 53NAC, FP, MG 31, E-27, Vol. 1, Folder Labour Relations Act Collective Bargaining,, Memo Re: S. 16 of the Labour Relations Amendment Act 7960, March 1960, 3. - 305 -

Finkelman was aware of the problems addressed by this amendment, and only cautiously supported them. He even proposed to add a new subsection (which was partially adopted) to state that "...any member of a union who instigates an unlawful strike, embezzles the funds of a union, vilifies the officers of a trade union by using defamatory language or who wilfully disturbs or interrupts a union meeting can be disciplined by the union."54 According to Finkelman, this amendment removed protection from any employee who connives with the employer or any representative of the employer to bring about "decertification" of the incumbent trade union or to have another union certified.

While Finkelman's suggestion attempted to walk a fine line between legitimate and illegitimate behaviour of trade union members, the eventual wording in the Act (s.

35) sided with the CMA's position before the Select Committee, which called for restrictions on union security agreements because they eroded individual rights in the workplace. Yet, by limiting the wording to simply "engaged in activity against the trade union," the new regulations implied that the Act protected individuals performing both legitimate and illegitimate activity against a certified bargaining agent. In so doing, many union members felt that these amendments represented an underhanded attempt to implement a "right-to-work" clause in the OLRA.55 While Frost denied this,56 former

CCF organizer and future federal NDP leader David Lewis (legal counsel for the OFL)

54 NAC, FP, MG 31, E-27, Vol. 1, Folder Labour Relations Act Collective Bargaining, Memo Re: S. 16 of the Labour Relations Amendment Act 1960, March 1960, 2. 55 AO, OPFGC, RG 3-23, Box 88, Private Letter to Leslie Frost, Re: The Labour Relations Act, 1 March 1960. 56 AO, OPFGC, RG 3-23, Box 88, Leslie Frost, Letter to Constituent Re: The Labour Relations Act, 14 March 1960. -306-

argued that this provision was reminiscent of the "anti-labour attitude of a majority in the

S7 legislature," and nothing less than an attempt to "legalize union busting."

Bill 74 also incorporated a new section stating that, "no person shall do any act if he knows or ought to know that, as a probable consequence of the Act, another person or persons will engage in an unlawful strike or an unlawful act." Finkelman defended the wording in this section, suggesting that phrases of these types are, .. .frequently used in criminal and penal statutes [and] it has suggested that the use of the phrase "if he knows or ought to know" coupled with the phrase "probable consequences" which follows it may prevent a person from exercising his rights because of the fear that some other person or persons may use his action as an excuse for engaging in an unlawful strike or lockout. However, it is highly CO unlikely that the subsection even as originally drafted would be so interpreted.

This letter of endorsement by the OLRB chair signalled a united effort to crackdown on illegal strike activity and further limited trade unions from using the strike weapon for purposes not directly tied to a single employer economic dispute. The Labour Gazette read this amendment as having multi-layered consequences for the enforcement of illegal behaviour during strikes. It predicted that where a strike was declared illegal, picketing of any kind would be illegal even if employees simply respected the picketline out of solidarity with their fellow workers and refused to go to work.59 Daley's reforms in this area sought to meet some of the demands of employers by limiting the likelihood of

57 OFL, Bill 74, 11-2. 58 NAC, FP, MG 31, E-27, Vol. 1, Folder Labour Relations Act Collective Bargaining, Memo Re: Section 27 of the Labour Relations Amendment Act, March 1960, 2. 59Canada Department of Labour, "Labour Law: Labour Relations Legislation in 1960," The Labour Gazette, 60 (September 1960), 1165. -307-

secondary boycotts and large picketlines during illegal strikes, but stopped short of making unions liable in court. °

The new Act also altered the workings of the OLRB, although several of the

Select Committee's recommendations in this area were discarded. For instance, the 1960

Act did not conform to employers' demands to appeal all OLRB decisions to the courts.

The government took this approach for two reasons. First, Daley and Frost believed that the jurisprudence earlier in the decade had set a precedent in which aggrieved parties were able to appeal OLRB decisions on questions of jurisdiction.61 Second, the Minister believed that the changes to Board procedure, especially over questions of natural justice, reflected a sufficient legal oversight to the Board eroding individual rights. This being the case, the reforms did not attempt to strengthen the privative clause to address the mandamus and certiorari challenges that were at the centre of the Gale ruling. In keeping with its traditional notion of balance, the government also did not adopt the recommendation to expand OLRB discretionary power to rule on successor rights. Small changes were also made to the Board's powers to terminate bargaining rights and extended its powers to adjudicate unfair labour practices.63

While these changes did not go as far as the Committee had recommended, Daley added to the Board's enforcement powers by giving it the ability to file its orders with the

Ontario Supreme Court. Under this process, the ability to address unfair practice

Wilfred List. See "Enlarge Labour Department Staff to Enforce New Act's Provisions," Globe and Mail, 13 October 1960. 61 NAC, FP, MG 31, E-27 Vol., 8 Folder Oral History Project, 13 October, 1972., 6-7. 62 Ibid. 63 The changes to the Act (S. 57 and S. 59) transferred Ministerial powers to the OLRB -308-

questions and to issue reinstatement orders were given to the Board. These rules required the Board to appoint a field officer to investigate complaints and report back to the

OLRB (rather than the Minister).64 Another important (and US inspired) reform gave the

Board authority to authorize a pre-hearing vote. According to Finkelman, this change allowed the Board to conduct a quick vote before a certification hearing.65 The ballot box was then sealed and a detailed and prolonged hearing ensued.66 If the Board found that the union had genuine support, the votes were then counted. This reform considerably extended the Board's powers to intervene in certification, jurisdictional and collective bargaining disputes but also contributed to making the Board the most legalistic labour relations tribunal in Canada.67

In his study of these events, Adam Bromke suggests that the changes "indirectly strengthened the position of the Board vis-a-vis the judiciary by both further elaborating the Board's powers, and exempting from the courts' supervision the newly created jurisdictional dispute commissions." Bromke concluded by suggesting that the 1960 legislative changes did not drastically alter the "social objectives underlying labour

64NAC, FP, MG 31, E-27, Vol. 8, Oral History Project, 1971-72, Jacob Finkelman Interview, 3 May 1971, 4-5. Another aspect of the 1960 Act-the composition of the Board was also changed. The Act provided for any number of Vice Chairs to be appointed that were necessary. 65 NAC, FP, MG 31, E-27, Vol. 8, Oral History Project, 1971-72, Jacob Finkelman Interview, 3 May 1971 7-8. This idea came from the Landrum-Griffin Act in the US. In 1957, four representatives from Ontario attended a briefing session of the Federal Bar Association in Washington. They were the Deputy Minister of Labour (Metzler), Two Deputy Vice-Chairs (Reed and MacLean) and Finkelman. They discussed attempts in Ontario made some years before to hold a pre-hearing vote in instances of jurisdictional and certification disputes. 66 This occurred almost immediately in the prolonged dispute between Mine-Mill and Steel over Local 598 in Sudbury. Steel eventually replaced Mine-Mill by utilizing these provisions. 67 Bromke, The Labour Relations Board in Ontario, 1A. 68 Ibid., 49. -309-

legislation in Ontario, nor alter the balance between labour and management." By maintaining an invisible balance of power, Bromke praised the reforms as conforming to sound policy objectives designed to aligning the Act with modern economic and social conditions. Bromke also endorses the foresight of the government for ignoring the most drastic (and partisan) recommendations of the Select Committee, while accepting those proposals which strengthened the administration of labour relations in the province.

Such a limited reading of the reforms to the 1960 Act suggests that government policy was crafted in a purely technical and non-partisan manner. A more critical view of the 1960 amendments suggests that the government implemented restrictions on the

Board's discretionary power in order to address employer concerns over its union sympathies. In Bromke's analysis, the 1960 reforms were designed to address backlog and inefficiencies in the certification and conciliation processes that, ultimately, respected the balance of power between labour and management. Yet, he uncritically accepts that the changes to the Board replicated existing procedures in court. After 1960, the administration of the Act became far more susceptible to legal and judicial oversight, while union freedoms to certify and to strike were reduced and bound by legal procedures.70 Although the 1960 reforms did not adopt the certification thresholds recommended by the Committee, unions continued to be subject to greater legal oversight

69 Ibid., 98. 70 Finkelman responded to 1960 amendments by extending the Board's "judicial" characteristics. Under Fmkelman, the chair and the chair's independence became such a guiding principle of the OLRB that by the middle of the 1950s even public questioning of the chair was deemed inappropriate. This did not, however, leave the Labour Board chair free from criticism. Speaking in the Ontario House of Commons in 1962, Liberal MPP Elmer Sopha argued that the "chairman of the Board writes all amendments to the Act—layman unable to understand them without legal assistance which made it impossible for regular workers to access the Board. Sopha comments, Ontario Hansard, 16 March 1962, 2954ff. -310-

as to how certification votes were conducted. In return, unions lost the ability to discipline members that violated the union constitution. The two and three stage certification process, which required unions to obtain cards and a one-dollar initiation fee

(and sometimes a vote), were also maintained. There was also little change to the manner by which employers were able to introduce petitions to defeat certification applications.

In essence, the reforms in 1960 did little to extend union rights in Ontario and only marginally addressed union concerns over employers' ability to defeat organizing drives or to break strikes. In other words, it is difficult to conclude that the 1960s reforms were predicated on fairness and balance, as Bromke suggests. Rather, the 1960 reforms erected legal barriers to union organizing and bargaining, while ignoring the consistent criticisms from the unions that the OLRB's procedural reforms made it the most legalistic Board in the country.

While the amendments to the OLRA received top billing in the 1960 session, the government also passed a change the Judicature Act on the same day it introduced Bill

74. On 24 February 1960, Attorney General introduced an amendment that allowed for the entrenchment of ex parte injunctions in order to deal with emergent situations related to strikes and strike activity. The amended Judicature Act allowed for the granting of an ex parte injunction, "where the court is satisfied that a breach of the peace, injury to the person or damage to property has occurred or an interruption of an essential public service has occurred or is likely to occur." In introducing this change on the same day as the amendments to the OLRA, the government reinforced the ability of employers to end strikes through the courts. Whereas Bill 74 placed limits on the -311-

likelihood of illegal strike activity, Bill 75 gave employers greater freedom to end legal and illegal disputes, if it was determined that a strike had the potential to lead to injury or a threat to public service.71 By extending the powers of judges to rule on damages, violence, or public safety before it even occurred, Bill 75 significantly challenged the capacity of trade unions to legally strike.

The amendments to the OLRA proved politically successful for the governing party. In dispensing with the most contentious suggestions from the Select Committee, the government was able to appease large segments of the labour movement by simply doing nothing. While some business leaders were unhappy that Frost chose not to implement all of the recommendations from the Select Committee, their most vocal criticism continued to be over the discretionary power of the OLRB and the growing role of the state in regulating collective bargaining. What is more, while employers like the

John Inglis Co. privately demanded an outright ban on secondary boycotts and illegal picketing, they also state that they were willing to live with the new provisions restricting

71Bora Laskin, "The Ontario Labour Relations Amendment Act, 1960," University of Toronto Law Journal, 14 (Winter 1961), 117. In analyzing the unexpected powers given to judges in the Judicature Act Bora Laskin concluded that the government "...went beyond the Select Committee's recommendations by permitting such injunctions on the occurrence, inter alia, of injury to the person or damage to property ... and [changed] the specification in the enactment of a right to seek an ex parte injunction where an interruption of a essential public service has occurred or is likely to occur. " (Emphasis in original) 72 AO, OPFGC, RG 3-23, Box 88, Canadian Automobile Chamber of Commerce, Letter to Charles Daley, 15 March 1960. The CACC (including Chrysler, GM, Int. Harvester, Ford, and Studebaker) were overly concerned with the increased power of the OLRB and the increased use of arbitration and mediation to settle labour disputes. It was also critical of the newly implemented Jurisdictional Dispute Commission. It felt that it would not be powerful enough to stop union infighting and thus might infringe on "the recognized power of employers respecting the assignment of work." Nonetheless, the CACC concluded that the new Act improved labour relations in the Province and supported the increased regulation imposed on trade unions. -312-

illegal strike activity. Thus while employers were not overjoyed, they remained firmly committed to the government's legislation.

Surprisingly, the government managed to amend the Act while limiting immediate action from labour or employers. Internally, the government was able to withstand pressure from its own right flank by re-drawing the Act with a far more moderate brush than recommended by the Committee while still imposing significant legal restrictions on labour activity. For Daley and Frost, this response seemed to reflect their own rhetoric that labour legislation was predicated on balancing the interests between unions and employers.74 Commentators at the time certainly reflected this interpretation, as the Ottawa Citizen described the Act, as "a middle of the road piece of legislation," while the Toronto Daily Star emphasized that it was a "fair one that cannot reasonably be criticized severely by management or labour."76 With the benefit of hindsight, however, it is difficult to defend the 1960 OLRA as reflecting the underlying principles of balance. Rather, the 1960 reforms did little to advance the rights of organized labour while giving employers further legal tools to challenge unions in the workplace. The legislation also did little to address union concerns that the OLRB was becoming inaccessible to non-legal professionals. What is more, the 1960 OLRA intensified judicial procedures before the OLRB and reinforced the ability of employers

73 AO, OPFGC, RG 3-23, Box 88, John Inglis Co. Ltd, Letter to Leslie Frost Re: Bill 74, 11 March 1960. 74 As Harry Arthurs later argued, "so long as they kept the labour movement tolerably happy, the CCF would not be the beneficiary of militancy." Cited in Roberts, Don't Call Me Servant, 66. 75 Cited in Douglas G. Hartle, "The Economy," in John Saywell et al, eds, Canadian Annual Review of Politics and Public Affairs (Toronto: University of Toronto Press, 1960), 196-7. 76 Editorial, "A Reasonable Labor Code," Toronto Daily Star 26 February 1960; Editorial, "The Labor Law—and the Law," Globe and Mail, 26 February 1960. -313-

to check the Board's discretionary power by keeping it under the watchful eye of the

courts. It is therefore difficult to argue that the 1960 Act did anything to advance

"democratic" industrial relations, as Bromke's analysis implies. Rather, the Act handed

employers further tools to limit the power of trade unions.

At the centre of these reforms was the changing perception of balanced labour relations law in Ontario. As the legal limitations on the right to strike had been a project

of Ontario businesses since 1943, it is difficult to defend the 1960 OLRA as balanced.

Rather, it is clear that the trend in industrial relations throughout the 1950s had been to

strengthen the tools of business to resist trade unions. The limitations in the Act were apparent almost immediately when the construction industry exploded in labour disputes, bringing the city of Toronto to a virtual standstill in 1961. As Frost's term ended, the

Tory's philosophical goals of balance reinforced the power imbalance between employers and unions, and contributed to immediate discontent in the province's burgeoning service sector.

Summer of Discontent: The Toronto Construction and Royal York Hotel Strikes

The limitations inherent in the 1960 OLRA were reflected in a two disputes in early

1960. In a strike in the construction sector, workers were only successful in defeating government negotiators and employers when they stepped outside of the OLRA and struck illegally. These illegal actions were reinforced by the collective solidarity of the union, which forced government officials to address union concerns. By contrast, when workers at the Royal York hotel followed the rules in the OLRA, they were defeated by the hotel, government negotiators and a series of court decisions that undermined the - 314 -

position of the union. As will be shown in detail (appendix III), the Royal York hotel dispute demonstrated that government enforcement of the OLRA was very much predicated by the position of business. Ultimately, government action in these strikes calls into question the so-called role of balance in the Act.

By the beginning of the 1960s, Ontario was undergoing a significant transformation. In the cities, many of the remnants of "Old Ontario" were being replaced by burgeoning urbanization spurred by post-war immigration.77 Since the end of the war, the province was undergoing an economic boom based on greater output in the manufacturing sector and a growing army of workers in the service industries. According to historian Peter A. Baskerville, this included the transformation of Toronto from a

"regional metropolis" to a financial capital at the heart of Canada's national economy.

Most modern histories equate this transformation to the growth of professional industries in education, law, finance and public administration that fuelled the powerful movements

7Q for social change in the 1960s. Yet, the transformation in the economy was also predicated on a growing supply of workers who laboured in the low-wage retail and hospitality sectors and in the dangerous and often precarious construction industry. This included a flood of new and largely immigrant workers in the construction, retail, food and hospitality sectors.

Bagnel," The Ontario Conservatives and the Development of Anti-Discrimination Policy, 1944-1962," 138. 78 Peter A. Baskerville, Sites of Power: A Concise History of Ontario (Toronto: Oxford University Press, 2005), 214. 79 In many cases, the new middle classes are associated with everything from campus radicalism to the Quiet Revolution in Quebec. -315-

In Toronto, capital-intensive construction projects such as the new subway system and a massive extension of city apartments and residential housing contributed to the housing boom.80 In this sector, most of this precarious work force was labouring in an environment where employment benefits and regular wages were infrequent because of the short duration of many jobs and the volume of employers in the sector. Workers' problems were exacerbated because many were recent immigrants (largely from Italy and

Portugal), who experienced language barriers and employer discrimination that made

01 their struggles for workplace protection correspondingly difficult. These conditions emerged because the provincial government had not significantly regulated health and safety standards and the OLRA made it difficult for unions to organize. All of these conditions made the industry relatively cheap for would-be employers to create a construction firm or to bid for construction contracts.82 The resulting cutthroat competition drove many questionable small construction firms to squeeze labour costs in order to remain competitive. These competitive pressures were intensified because of the

Desmond Morton, Working People, 240. By 1961, Toronto absorbed a ninth of all building investment in Canada. 81 Franca Iacovetta, Such Hardworking People: Italian Immigrants in Postwar Ontario (Montreal & Kingston: McGill-Queen's University Press, 1992), 155-9; Franca Iacovetta, "Ordering in Bulk: Canada's Postwar Immigration Policy and the Recruitment of Contract Workers from Italy," Journal of American Ethnic History, 11 (1991), 52-7; 74-5; Morton, Working People, 240. He suggests that many of the construction unions were reluctant to organize immigrant workers because of the cost and time involved. 82 John Crispo, "Labour-Management Relations in the Construction Industry: The Findings of the Goldenburg Commission," The Canadian Journal of Economics and Political Science, 29 (1963), 348-63. According to the Royal Commission (the Goldenburg Commission) established shortly after the strikes, workers in the construction industry were regularly underpaid or, in some cases, not paid at all. The 10- hour workday and the seven-day workweek were also common. -316-

constantly changing workplace, the short duration of most jobs and the largely transient workforce in the sector.

In order to address the exploitation of construction workers the United

Brotherhood of Carpenters and Joiners, the Toronto Labourers and the Teamsters— dubbed the Brandon Hall Group by the media—organized a series of illegal recognition strikes in early 1961.84 In response, H.P Hyatt and his fellow employers from the Toronto

Metro Home Builders Association called for police intervention and threatened many of their foreign workers with deportation.85 The tension boiled over in the summer of 1961, when roving squads of striking workers ground the construction industry to a halt. At its height, the strike stalled the construction of the Toronto Subway, the Gardiner

Expressway and a series of other commercial and residential projects.

Characteristically, Daley was slow to respond to the magnitude of the problems, stating that he was confused by the job action. In a hasty response, he suggested to employers that "[i]f they are being imposed upon—and I think they are—they should take some of the steps provided for by the law." He added, "You just can't load men into a truck and go racing all over the place picketing a man's job. Their jobs are being picketed illegally, so why doesn't somebody ask us to stop it?" He further opined that

Jamieson, Times of Trouble, 408. 84 Morton, Working People, 240. 85 "Builders Unanimous: Deport Newcomer If He's Convicted," Toronto Daily Star 6 June 1961; "Building Walkout 'Illegal' Daley Will Act if Asked: Deportation Bid Rapped," Toronto Daily Star 3 June 1961. The Metro Toronto Home Builders Association went so far as to wire Immigration Minister Ellen Fairclough, asking that any striking newcomers who were charged with violence be deported. -317-

more police action was needed to "deal with this trouble." This statement was surprising, considering that the same Minister boasted that "the old days and the old methods of doing business are gone forever," had just called for police intervention in the strike.87 It was also candid because the Minister acknowledged that that the OLRA was a tool that could be used by employers to prevent job action by workers, no matter how legitimate the cause. Daley's calls for police intervention were supported by Attorney

General Kelso Roberts. In a public letter to Metro Toronto Chair Fred Gardiner and City of Toronto Police Chief Mackay, Roberts stated that he was willing to ask the OPP to assist in the situation if the city asked.88

The government's call for a forceful end to the strike had the desired results.

Clashes and mass police raids led to the arrest of 83 union members on a variety of charges, including obstructing police, assault, unlawful assembly and malicious damage.89 The heavy-handedness was further encouraged when government officials sent in the police to end a meeting of striking workers at the Lansdowne theatre on the 20

June 1961. Just after union officials adjourned the meeting, several carloads of police arrived to disperse a crowd who had been listening to union speeches through a loudspeaker. The police justified the action by stating that the workers on the street were assembling without the necessary permits. Using a rarely used city by-law regulating

"Building Walkout 'Illegal' Daley Will Act if Asked: Deportation Bid Rapped," Toronto Daily Star 3 June 1961. 87Legislative Assembly of Ontario, Proceedings of the 26th Parliament, 2nd Session, 3 March 1960, 937. 88 "Threat to Arrest 1,000 Ends Union Rally: Police Break Up Strike Audience," Toronto Daily Star 21 June 1961. 89 Wilfred List, "The Construction Strike: A Study in Confusion, 24 Day Walkout Rocks Housing," Globe and Mail, 22 June 1961. -318-

sound speakers in public, the police ended the rally and arrested several workers amidst the violence that inevitably followed.90 These incidents led the Toronto police to appoint staff inspector Harold Adamson to supervise all police action in dealing with the construction workers. In response, Gerry Gallagher, secretary-Treasurer of Laborers'

Union Local 183, urged striking construction workers to "keep fighting and stay together" throughout the week in order to continue the job action. He angrily responded to the government's use of police strikebreakers by stating that "[gjamblers and criminals are allowed to run around loose, but a segment of the people speaks up for their rights and the government mobilizes the paddy-wagons and threatens to bring in the troops."

In other words, construction workers took the position that their struggle was not simply about higher wages, but improving on the rights of all workers. In order to do so, workers had to defy employers and government officials, who, it seemed, were still supportive "of the old methods of doing business."92

The violence only ended when Frost personally intervened to mediate the dispute.

Having removed Daley from the negotiations, Frost promised to appoint a Royal

Commission to examine the exploitative working conditions in the construction sector.93

In the meantime, Frost promised immediate action on three fronts: the establishment of a temporary government agency to adjudicate construction disputes (later transferred to the

91 "Threat To Arrest 1,000 Ends Union Rally: Police Break Up Strike Audience," Toronto Daily Star, 21 June 1961. 92 See Daley quote, note 87. 93 "The Key Figures in the Dispute," Globe and Mail, 22 June, 1961. The Globe and Mail surmised that Frost's intervention in the construction disputes (and later in the Royal York dispute) pushed Daley to the background during one of the most turbulent disputes in his 18 years in office. -319-

OLRB); the creation of a new team of labour inspectors to make spot checks on construction sites;94 and the establishment of the Royal Commission to investigate working conditions in the sector.95 While employers opposed the Commission, the final recommendations led the provincial government (under the leadership of John P.

Robarts) to implement a series of amendments to the OLRA, the most important being the creation of a separate division of the OLRB to deal with issues in the construction industry.96 When these changes were introduced, the ability of construction unions to organize their workplaces was eased as it gave the OLRB discretion to coordinate bargaining units across different trades and crafts. It also addressed issues surrounding unpaid wages, health and safety standards, and hours of work. While the government would not have been happy to admit it, the "illegal" strikes had their intended consequences.

While Toronto's construction workers were on strike, workers across town at the largest hotel in the British Commonwealth were also on the verge of walking off the job in the spring of 1961. Unlike many workers in the Toronto's service sector, employees at

Inspectors were given the power to examine unpaid wages, hours of work and investigate health and safety violations. They were also empowered to monitor the scales of pay for construction work in order to ensure that employers were adequately compensating employees. 95 "Strikers Cheer Frost Minister," Toronto Daily Star, 16 July 1961. The Commission was named The Royal Commission on Labour-Management Relations in the Construction Industry (The Goldenberg Commission). 96AO, Premier J.P. Robarts General Correspondence (hereafter JPRGC) RG 3-26, Box 179, Robert Macaulay, Personal and Confidential Letter to John P. Robarts, 25 September 1962. These changes may have been more amenable to the government because they knew that large segments of the construction unions were more conservative than the industrial unions. In a letter to Robarts in late 1962, Minister of Economic and Development, Robert Macaulay wrote that most of organized labour was "heavily inclined officially to the Socialist Party," and thus warned that the government should be cautious in making drastic reforms to the Act. The exceptions, however, were the construction trades who could be persuaded to "favourably support this Government." -320-

Canadian National Railway's Royal York hotel had been unionized since 1943. In its early contracts, Local 299 of the Hotel and Club Employees Union (HCEU) won relatively strong wage increases because it was connected with the militant railway workers. By the spring of 1961, the situation had deteriorated. Through a series of arbitration cases at the national level, the service workers at

(CPR) hotels were denied the benefits won by railway workers.97 This change lowered the wage and benefit package received by Royal York employees and most hotels in

Toronto either caught or surpassed CPR benefits by the end of the decade.

Notwithstanding these structural changes, HCEU business agent Onofrio Zambri was still hopeful that the CPR would continue its practice of being a pace setter for wages and benefits because the hotel prided itself on its elite clientele and high-class image.

Zambri also knew that the Royal York had never risked an image tarnishing open strike.

The union's hopes were short lived. By the spring of 1961, the hotel's continued refusal to address the growing wage gap combined with their demand for greater flexibility to release or fire existing employees ground negotiations to a halt. When the talks broke

In a series of exposes during the Royal York strike, Toronto Star reporters Arnold Bruner and Roy Shields revealed a rich history of collective bargaining in CN's hotel system. According to Bruner and Shields, in late 1950 Justice R.L. Kellock ruled in a compulsory arbitration hearing that contracts for railway workers and hotel employees be severed. In this ruling, Kellock awarded the railway workers an increase of TA cents an hour compared to four cents an hour for hotel employees. See Arnold Bruner and Roy Shields, "The Strike Money Can't Settle: Last Ditch Battle...Then the Walkout," Toronto Daily Star, 16 January 1962. 98 Arnold Bruner and Roy Shields, "The Strike Money Can't Settle: Last Ditch Battle...Then the Walkout," Toronto Daily Star, 16 January 1962. In January 1961, the average weekly wage for all service-industry employees was $40.97. Yet, the average weekly wage for hotel and restaurant employees was $40.14. Among urban employees, the federal department of labour showed that these were amongst the lowest paid workers in Canada. Prior to the strike, monthly wages then raged from $ 118 for a pageboy to $400 for a pastry chef. At the time, these wages were considered more or less average in the industry. Workers at the hotel also received three meals a day. - 321 -

down—unlike their fellow workers in the construction industry—the HCEU steadfastly followed the provisions outlined in the OLRA and filed for conciliation. When the employer refused to moderate its position during conciliation, the union held a strike vote on 13 April 1961. The results of the vote suggested that the members were eager for a fight, as 94 per cent of employees who cast ballots voted in favour of the walkout.

The strike at the Royal York Hotel began on 24 April 1961.10° Until that date, the union was seeking an hourly increase of 15 cents/hour. During conciliation, the union lowered its wage demands to 10 cents/hour over a period of 33 months. The hotel countered with an offer of 2Vi cents/hour. Management also took a hard-line on fringe benefits in the collective agreement, stating that it would reduce "function rates" (wages minus gratuities) for server staff and limit meal bonuses. As this was a drastic reduction in benefits, the union rejected the take-backs demanded by the employer.

Instead, union officials went on the offensive. They were determined to seek stronger language in the collective agreement regarding layoffs and job protection. Prior to the expiration of their contract in August of 1960, workers at the hotel were given seven days notice before any impending layoff. During negotiations, the Royal York indicated it

w "Staff Votes for Walkout, Royal York Faces Closing," Globe and Mail, 14 April 1961, Bruner, and Shields, "The Strike Money Can't Settle." The number is somewhat contested. The Globe and Mail suggested it was 93 per cent while the Toronto Star reported that it was 94 per cent. In any event, the membership had clearly spoken. 100 The social aspects of this strike, including the racial and gendered component of service sector work in this period has been well told in Jeremy Milloy's recent article, "A Battle Royal: Service Work Activism and the 1961-1962 Royal York Strike," Labour/Le Travail 58 (2006), 13-40. 101 "Airlift Emergency Staff For 'Do-It-Yourself Inn," Toronto Daily Star 25 April, 1961. The union claimed, "that the demand for a wage increase in excess of the 2V4 cent offer of the company is more than justified by the fact that no major railway hotel agreement in the present cycle of wage agreements has been settled for less than 10 cents over a 33-month period." -322-

was looking to reduce that period to 48 hours. The union was firmly against this provision, suggesting that such a move would signify "a return to the inhuman conditions that plagued the hotel industry 30 years ago," and chastised the Royal York for

demanding the right to "order every employee by the day—the way it orders its carrots and cabbages." The Royal York was also determined to eliminate union security provisions in the collective agreement. According to government negotiator Tom Eberlee,

(Secretary of the Cabinet and future Deputy Minister of Labour) the elimination of the existing union security agreement was a top priority for the hotel.

When negotiations broke down and the picketlines went up, both the union and the company were prepared for a long fight. Management had undergone extensive strike preparation even before the conclusion of negotiations, purchasing advertisements in the local papers for replacement workers before the strike began! On the second day of the work stoppage, R.A. Mackie, general manager of Canadian Pacific Hotels took the extraordinary step of airlifting 60 replacement workers to the top of the hotel in order to avoid the picketline on the ground. By 26 April, the hotel had hired 161 new employees and flown in another 180 from CPR hotels as far away as British Columbia and Prince

Edward Island. The hotel claimed that the addition of these workers combined with the repositioning of supervisory staff gave them the necessary 500 employees to run the hotel safely. Jack Berry, head of CPR public relations, triumphantly claimed that the hotel

102 "Can't Do Job-Union: 'Hotel Drops 100 Strikebreakers,'" Toronto Daily Star, 3 May 1961. The Hotel reasoned that this change would actually benefit junior employees because it would allow them to compete for jobs. 103 Bruner and Shields, "The Strike Money Can't Settle." 104 AO, JPRGC, RG 3-26, Box 187, Folder Strikes-Royal York Hotel, Tom Eberlee Memorandum to the Honourable Leslie M. Frost, 21 September 1961. -323-

would continue to recruit new workers, vowing to keep the "employment office open all night until we have reached our quota of an additional 500 workers."1 5 Berry also declared that the 2,500 business executives attending the annual Association of Canadian

Advertisers general meeting had reaffirmed their commitment to hold their convention at the hotel.

While the hotel continued to defy the picketline by recruiting strikebreakers, picketline morale remained high. Roy Pooley, Local 299 picket-captain, claimed that,

"it's the 48 hour lay-off clause that we're fighting. If they don't need us a certain night, management wants to give only 48 hours notice. Previously we got a week's notice. You can't work under those conditions if you've got a family to support. If they altered that, I think everyone would go back to work." Striker Alice Courneyea, confirmed her frustration with the hotel's attempt to scale back wages (and gratuities) stating that her current wages did not cover the basic cost of living.10 Meanwhile Union business agent

Onofrio Zambri and International Canadian Union Director, Archie Johnstone stated that they were optimistic that union pressure would end the strike.

The provincial government was literally caught directly in the middle of this struggle. Not only had provincial officials been intimately involved in negotiations leading up to the strike, but many Ontario cabinet ministers resided in the Royal York hotel when parliament was in session.107 Toronto mayor Nathan Phillips also consistently

15 "Normal—Royal York Soon Empty—Union" Toronto Daily Star, 26 April 1961. 106 "Can't Do Job-Union: 'Hotel Drops 100 Strikebreakers'" Toronto Daily Star, 3 May 1961. 107 Besides the premier, Bryan Cathcarts, Minister of Travel and Publicity; Louis Cecile, Minister of Welfare; James Allen, Treasurer; William Nickle, Minister of Commerce and Development; and George -324-

crossed the picketline in order to attend city functions. While Frost decided not to cross the line, Labour Minster Daley did not share his objections.108 On 2 May, Daley provocatively crossed the line in order to attend a luncheon in the hotel. He defended his actions by stating that he had made plans to attend a road-builders convention long before the strike began, but joked that he had hoped his picture would not be taken while doing so. Ultimately, Daley's actions during the construction strike and the Royal York strike called into question his long role as Labour Minister.10

As the government struggled to find an end to the dispute, the union's early hopes for a settlement faded. As strikebreakers streamed through the largely peaceful picketline, the union moved from improving the wage and benefits to protecting the jobs of their members. The wave of replacement workers gave the hotel added confidence that it could end the strike while severely damaging the union. In an unprecedented move, on 26 June

1961, Angus MacKinnon wrote to each of the 1,000 striking employees threatening their dismissal if they did not return to work by 16 July 1961. The letter contained the following statements:

1. On the afternoon of April 24 you withdrew from the service of the Royal York Hotel and have not reported for duty since that time. In order that your employment status for the future may be settled, you may apply to return to work in the service of the Hotel; or you may resign. Please fill in

Wardrope, Minister of Reform Institutions all lived in the Royal York and continued to cross the line during the strike. 108 Editorial, "This Strange Neutrality," Globe and Mail, 10 November 1961. Frost was chastised by the Globe and Mail for not crossing the picketline to do "Ontario's business." The paper argued that the Premier's decision to respect the picketline was a public show of support for the union. They concluded that he should cross the picketline in order to demonstrate the province's "neutrality." 109 "The Key Figures in the Dispute," The Globe and Mail, 22 June 1961. Some unions demanded his resignation, but Daley defended his right to cross a picketline. -325 -

Form A—Resignation, or Form B—Return to Work, which are enclosed, and send it to the Personnel Office of the Hotel by July 15th, 1961.

2. If you do not wish to return to work at the Hotel, you should fill in Form A. When it is received by the Hotel, your employment record will be closed and any money owing to you by the Company, such as your contributions to the Canadian Pacific Pension Fund, will be refunded.

3. If you do wish to return to work at the Hotel, you should fill in Form B. When it is received by the Hotel, your return to work must depend on jobs being open in your classification and on your qualifications, having regard to the employees now at work. If you fill in Form B, you will, therefore, be recalled to work as jobs become open in which your services can be used.

4. I must further notify you that unless you fill in one or other of the enclosed forms and mail it to the Personnel Office of the Royal York Hotel by July 15th, 1961, you are dismissed effective July 16th, 1961. Your employment record will then be closed and any money owing to you by the Company, such as your contributions to the Canadian Pacific Pension Fund, will be refunded.110

Concerned by the employer's decision to fire all legally striking employees, HCEU

President A.R. Johnstone wrote to Daley asking the government to intervene and stop the illegal action of the company.111 Despite the obvious attempts to violate the OLRA,

Daley only agreed to mediate talks and took no firm stance on the hotel's actions. As the government refused to defend its own OLRA, the company promptly refused government mediation. The "back-to-work-or-resign" statement provoked 250 nervous employees to return to work by the end of the month. On 19 July, the Royal York followed through

1 19 with its threat and fired the remaining 600 striking employees. The consequences of

110 Regina v. Canadian Pacific Railway Co., Ontario High Court [1962] O.R. 108, 31 D.L.R. (2d) 209. 111 AO, OMLC, RG 7-1-0-620, Container B398240, A.R. Johnstone, Letter to Charles Daley 26 June 1961. 112 "Strikers Ignore Hotel Threat: Not One Letter Returned—Union," Toronto Daily Star, 29 June 1961. -326-

this action hit striking union members hard, as another 250 employees abandoned the strike and returned to work.113 By all accounts, the mass defection that this tactic engendered changed the dynamic of the strike from a struggle over fair wages to the basic rights of strikers to maintain their job.

The company's "back-to-work-or-resign" tactic boosted the confidence of management. In private communiques with government officials, Canadian Pacific

Railway Vice President Ian Sinclair refused government offers of arbitration because the company felt that it had won the strike. According to Eberlee, this attitude was justifiable because of the company's ability to operate during the strike. Eberlee further observed that the company was now advancing settlement proposals which were well below the level of the terms in the original collective agreement.114 Eberlee believed that the Royal

York would only agree to a contract with the union if it agreed to significant wage concessions, agreed to the company's layoff provisions, abandoned the hope for a union security agreement and agreed to give the company "a greater degree of flexibility in connection with operations in order to operate at maximum efficiency.""5

Given the government's refusal to defend the rights of striking workers, by the end of September the company was suggesting that it would unilaterally dictate any return to work protocol. Particularly, the company stated to government officials that 183 members would be immediately dropped from the bargaining unit because some were in

113 "Ultimatum Ignored Royal York 'Fires' 600," Toronto Daily Star, 19 July 1961. 114 AO, JPRGC, RG 3-26, Box 187, Folder Strikes-Royal York Hotel, Tom Eberlee Memorandum to the Honourable Leslie M. Frost, 21 September 1961. "5AO, JPRGC, RG 3-26, Box 187, Folder Strikes-Royal York Hotel, Tom Eberlee Memorandum to the Honourable Leslie M. Frost, 21 September 1961. -327-

"quasi-supervisory jobs while others, for personal reasons, should not be included in the

bargaining unit." The company also pledged allegiance to its replacement workers,

suggesting that it would only take the striking workers back in a manner that did not displace the newly hired employees. The company's strategy to defeat the striking workers was further revealed to Eberlee. He reported:

On the matter of prosecuting the Royal York for firing the strikers during the summer, the hotel will carry the fight through the courts to the Supreme Court of Canada. It will seek to obtain a ruling on the question of when a striking employee ceases to be an employee. Sinclair believes that the Supreme Court of Canada will rule that the striking employees no longer are employees after a certain period of the strike. Armed with this ruling, he would then ask the courts to remove the picket line from outside the Royal York.116

For the union, Eberlee believed that it had two choices: go back to work on the employer's terms or face outright termination.

As the government refused to defend its legislation by publicly condemning the actions of the hotel or defending the right to legally strike, the union took the fight to the

OLRB. Before the Board, the union claimed that the firing of striking employees was illegal under the OLRA.117 At the OLRB hearing on the 21 September 1961, the Board

116 AO, JPRGC, RG 3-26, Box 187, Folder Strikes-Royal York Hotel, Tom Eberlee Memorandum to the Honourable Leslie M. Frost, 21 September 1961. 117 The union believed that "the back-to-work or resign" action constituted an unfair labour practice and was therefore illegal. S. 50 s. 1(2) of the OLRA stated: "For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of his ceasing to work for his employer as a result of a strike or lockout, or by reason only of his being dismissed by his employer contrary to this Act or to a collective agreement." The union also believed that S. 50 (a) and (c) of the Act protected them from arbitrary dismissal during a legal strike. These sections read: "(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act; (or) (c) shall seek by threat of dismissal...to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to exercise any other rights under this Act." -328-

declared the action an unfair practice and gave the union leave to take the dispute to court."8 The union's legal strategy emphasized that the discharging of striking employees was meant to intimidate workers to abandon the picketline and return to work. The union cast the firings as unfair bargaining practice which the OLRA made illegal.

In Magistrate's Court in Toronto, on 2 October 1961, Justice Elmore ruled against the union's claim and stated that no section of the OLRA specifically outlined the collective right to strike nor did it protect strikers' right to their job.119 He noted that there were several sections of the Act which restricted the right to strike (during the life of a collective agreement) but that no provision of the Act altered the common-law requirement of the servant to terminate her contract before ceasing work. Instead, Elmore reasoned that he could not find,

...where the Act, in adopting the common law with the amendments it has made, has in any way altered the common law requirement of the servant to terminate his individual contract before ceasing to work. If this be the correct view of the law, it follows that the persons referred to in the informations (sic) had no right to strike and cease work as they did, and by so doing they ceased to be the employees of the accused, or in any event subjected them to being discharged in the manner in which they were.120

"No-Job Pay Sought in Hotel Strike," Toronto Daily Star, 7 October 1962. Striking workers faced added difficulty as they had been denied unemployment benefits by federal unemployment offices. The union stated that the 700 men and women still picketing after five months were eligible for benefits as officials had ruled in the past that strikers may apply for benefits when a struck plant resumed 85 per cent of normal operations. Local 299, Hotel and Club Employees Union, AFL-CIO CLC, the Hotel and Restaurant Employees and Bartenders International Union v. The Canadian Pacific Railway (1961) Canadian Labour Law Reporter No 15, 373 (Magistrate's Court). 120 Local 299 v. The Canadian Pacific. -329-

As the common law gave no right for employees to unilaterally cease work, Elmore suggested the workers of the Royal York ceased to be employees of the hotel and it was justified in discharging them.

In relying on the century's old master-servant relations in the common law,

Elmore's ruling showed a running dichotomy between judicial reasoning of work and the changing nature of employment in the post-war period.122 Ultimately, Elmore reasoned that the employment relationship between individual employees and the Royal York had terminated when the contract expired in April. After 1 April, Elmore maintained that the strikers were no longer "employees" under the law. Law Professor J. M Robinson claimed that Elmore's reasoning suggested that "by the common law alone, strikers may roughly be described as unemployed workmen who, though not involved in an illegal conspiracy, retain no relationship with their employer."123 Given the ambiguity in the

OLRA concerning the right to strike, Elmore reasoned that the Royal York was in its right as an employer to dismiss workers who no longer were categorized as legal employees.

121 "Rules Royal York Had Right to Fire Strikers," Toronto Daily Star, 19 October 1961. 122 Harry W. Arthurs, "The Right to Strike in Ontario and the Common Law Provinces of Canada," in Proceedings of the Fourth International Symposium on Comparative Law (Ottawa: Press, 1967), 190. 123 J.M. Robinson, "Case Comment: Canadian Pacific Railway Co. v. Zambri," University of Toronto Faculty of Law Review 22 (1964), 172. -330-

Elmore's decision sent chills through policy-makers at Queen's Park.1Z4 While

Daley stated that strikes were always ill-advised, he did confess that the Elmore ruling concerned him because the union had gone through,

...the proper procedure, including conciliation, [and] therefore it has every right to strike. It should not be penalized for following the law. I believe there must be a right to strike but I also think more consideration would be given by both sides before strikes take place.

It is unclear why Daley condemned the action of the Magistrate while remaining silent on the Royal York's tactics four months earlier. Had he placed the full weight of the government on the hotel (as he had when the unions struck illegally in the construction sector) there would have been little need to condemn the actions of judge still wedded to century's old master-servant laws.126 To be sure, Daley seemed to be genuinely concerned that the decision might unravel his long sought after balance in the Labour

Relations Act. In fact, Daley hastily penciled a quick note to new Premier John P.

Robarts stating that he was prepared to amend the Act in order to address the

Magistrate's decision. Demonstrating his soon to be well know propensity to delay policy reform, Robarts recommended that the government wait until the issue had been decided by the appellate courts.

When the decision was released, union counsel David Lewis stated that the union would appeal the decision because Elmore's ruling violated the right of to strike. He claimed that the 600 striking workers were fired illegally and that the Royal York's actions were in violation of the spirit and the letter of the OLRA. This criticism was echoed by OFL President David Archer, who maintained that the Elmore decision spoke to the broad limitations in the government's legislation. 125 "Rules Royal York Had Right to Fire Strikers," Toronto Daily Star, 19 October 1961. 126 Elmore was 75 years old when he ruled on the Royal York case. He retired before the appellate court made its final decision in 1962. 127 AO, JPRGC, Box 187, File Strikes-Royal York Hotel, Charles Daley, Letter to John Robarts, 3 November 1961. -331 -

On appeal, the company continued to rely on precedent from the turn of the

century to argue that all strikes were illegal in common law. In its decision on 8

December 1961, Justice James McRuer (writing for the Ontario High Court) disagreed with the company and Magistrate Elmore. He stated that the cases from the turn of the

century did not recognize collective rights to strike but that,

... the whole course of jurisprudence in the last century establishes that a strike is not an unlawful conspiracy unless it involves something more than the motive or purpose of advancing the interests of the employees.

McRuer reasoned that s. 50 of the OLRA prohibited an employer from refusing to employ a person (or group of persons) for exercising their rights under the Act. As the strike was a legal activity under the Act, McRuer suggested that employees had a statutory right to participate in the strike. This activity was confirmed by Supreme Court of Canada (SCC) Justice Ivan Rand, who wrote in 1950 that,

...[i]t is now established beyond controversy that in the competition between workmen and employers and between groups of workmen, concerted abstention from work for the purpose of serving the interest of organized labour is justifiable conduct.129

McRuer further reasoned that legislators saw the strike as a legitimate outcome of the collective bargaining process. That the Labour Relations Act in Ontario had sought to protect the collective rights to strike, he stated, was beyond question. In the end, industrial stability could only be preserved if the collective bargaining process gave security to both employers and employees alike. It followed that this implied that

Regina v. Canadian Pacific Railway Co., Ontario High Court [1962] O.R. 108, 31 D.L.R. (2d) 209. Newell v. Barker & Bruce, [1950] 2 D.L.R. 289 299, S.C.R. 385, 397. - 332-

striking workers had to be free from arbitrary dismissal by the employer. This also

suggested that workers' seniority, pensions and insurance rights must be maintained

despite a strike or lockout.

According to Arthurs, McRuer's decision put to rest the idea that a striking employee could be arbitrarily dismissed in Ontario. That observation, however, was not entirely accurate. Indeed, as further events at the Royal York demonstrated, the question about a striker's right to her job was still very much open to interpretation. For instance, how long did the employment relationship last after a strike commenced?

Sinclair's admission to Eberlee that the Royal York would starve out the union by exhausting the strikers employee status suggested that this was an extremely important question (if not the most important question) for the company. As an aside, McRuer suggested that the question of employee status was simple to answer. He reasoned that the rights of employment would remain as long as an employee had not gone back to work, taken employment with other employers, died or become unemployable.

On appeal, however, the SCC took a different approach. The SCC affirmed the company's position that employers were not obligated to rehire all striking employees at the conclusion of a strike. This rationale suggested that the hiring of replacement workers was a legitimate activity during a strike and that those new employees too had certain rights. Thus, the court confirmed it was illegal for the employer to fire striking employees. Nevertheless, the SCC also reasoned that employers were free to hire

130 Arthurs, "The Right to Strike in Ontario," 192. 131 Regina v. Canadian Pacific Railway Co., Ontario High Court [1962] O.R. 108, 31 D.L.R. (2d) 209. 132 Canadian Pacific Railway Co. v. Zambri, Supreme Court of Canada [1962] S.C.R. 609. -333 -

replacement workers and were under no obligation to offer strikers their jobs back once

the strike was over. Here Justice Charles Locke stated:

When employers have endeavoured to come to an agreement with their employees and followed the procedure specified by The Labour Relations Act, they are at complete liberty if a strike then takes place to engage others to fill the places of the strikers. At the termination of the strike, employers are not obliged to continue to employ their former employees if they have no work for them to do, due to their positions being filled. I can find no support anywhere for the view that the effect of the subsection is to continue the relationship of employer and employee indefinitely, unless it is terminated in one of the manner suggested.133

Locke's position left the door open on the rights of replacement workers to displace legally striking workers once a strike concluded. In making this concession, Robinson

suggested that Locke handed employers "an extra weapon in his (sic) armoury for the legalized war of economic attrition that is a strike."134 Certainly, this logic played into the hands of Sinclair and the Royal York management, as they had already indicated that they did not intend to rehire many of the striking workers. Ultimately, Locke's decision to uphold the company's position on the rehiring of striking employees handed employers a significant victory to defeat a legal strike.

The issue of replacement workers and job protection played an important role in the final settlement of the Royal York strike. Management knew that it still had the ability to manipulate the position of replacement workers in order to bargain with the

HCEU. Immediately following the decision of Ontario court, Sinclair defiantly maintained that "[ijrrespective of the decision by justice McRuer, former employees

Canadian Pacific Railway Co. v. Zambri, Supreme Court of Canada [1962] S.C.R. 609. J.M. Robinson, "Case Comment: Canadian Pacific Railway Co. v. Zambri," 176. -334-

cannot return to work unless the hotel agrees to reemploy them." For new Labour

Minister William Warrender, this proved to be a vital question in addressing the long-

term policy consequences arising from the strike. After the court decisions, the OFL

demanded that the government amend the OLRA to ban strikebreaking and spell-out the

rights of workers while on legal strike. Similar calls were coming from labour bodies

all over the province, as there was concern that the Royal York's usage of replacement workers added an additional tool for employers to defeat legal strikes. Employers

countered, stating that the Royal York hotel case spoke to the imbalances in the Act.

E.V. Rippingille, President of General Motors Diesel Ltd., for instance, wrote to Robarts

suggesting that any ban on replacement workers would discourage investment in Ontario and force "employees] to close [their] operations while a strike is in progress. In the spirited competition of today few employers can afford a prolonged shutdown and capitulation, under the proposed amendments, would be the only escape from financial disaster."

As a veteran of 16 years at the Ministry of Labour, Deputy Minister J.P. Metzler understood that the post-war legislative framework was designed to address the issues of

135 Arnold Bruner and Roy Shields, "Legal Battle Won't Settle Hotel Strike," Toronto Daily Star, 18 January 1962. 136 Ontario Federation of Labour, "OFL Brief, 1962," Ontario Labour Review, February-March 1962, 1. 137 AO, JPRGC, RG 3-26, Box 179, Letter to J.P. Robarts, 17 January 1962. Continued Rippingille: "By writing you, as a representative of a London riding, I wish to call your attention my endorsation of the position taken by (this organization) and to urge you to oppose any changes in the Labour Relations Act that would give to labour unions the overwhelming power to completely subjugate industrial organizations by unjustified strike procedure. Unions have for many years used the strike avenue as a weapon in enforcing their economic demands. The procedure for such action, if they desire to take it, is clearly defined in the Labour Relations Act and has served to keep strike action regulated while the parties negotiate towards settlement of their differences." Ultimately, he concluded that anti-scab legislation would "force business to seriously consider relocating in areas out of the Province." -335-

balance raised by Rippingille. He wrote to Warrender stating that any serious attempt to introduce a ban on replacement workers would seriously alter the manner in which the government incorporated balance in the post-war legislative framework. In what I believe represents a seriously unbalanced conception of fairness and balance, Metzler confirmed that it was impossible to extend restrictions on the hiring of replacement workers for fear of economic attrition. Metzler explained his approach in the following terms:

...our legislation does not take away the right to strike, it does provide a certain procedure which must be followed before it can be exercised. The reasoning, in part, behind this procedure is that every reasonable avenue of approach must be used and every effort must be made to settle the dispute without a strike. You cannot get away from the concept that to declare a strike is to declare an economic war. If an industrial dispute reaches a strike situation, it is obvious that both sides are prepared to "take each other on," no holds barred, in an effort to bring each other to their knees. I do not think that we should be influenced, even in this unfortunate situation, by the idea that the struggle is unequal or has had some extremely bad side-effects as far as the employees are concerned. It may be thought that the equalizer, in the present situation, would be that the employer should be forced to shut down in a strike situation. The net result could be economic paralysis because every dispute would be pushed to the limit, against the prospect of victory. I need only pose the question: where would such a situation leave Ontario's industrial future? I should certainly like to see the Royal York strike settled but I am frank in saying I am not sanguine about a settlement. I believe that the strike will ultimately disappear. Both sides are too deeply committed to their present positions to retreat. 3

138 "J.B. Metzler Deputy Minister helped shape labor legislation," Globe and Mail, 28 July 1971. Metzler was Deputy Minister from 1946-1965. Daley and Metzler were known to have a close working relationship. When Metzler died in 1971, the Globe and Mail reported that Metzler was instrumental in shaping Ontario's post-war labour code. While Metzler enjoyed cordial relations with later ministers, he was never as close with them as he was with Daley. 139 AO, OMLC, RG 7-1-0-620, Container B398240, J.P. Metzler, Confidential Memorandum for W.K. Warrender, Minister of Labour, 9 January 1962. -336-

Metzler's admission that the best course of government action was to let the strike fade away suggested that government officials saw little prospect in addressing the substantive issues emerging from the Royal York dispute. In one of his first statements as Premier, Robarts affirmed the arguments raised by Metzler and Rippingille, stating to a president of a small airline company that the idea of a ban on replacement workers "has not been brought to my attention but I can assure you that I would never approve of such an amendment; in fact it would strike at the basic concept of our labour relations system, which provides a set of rules under which labour and management can bargain freely."140

In taking this position, leaders in government and the bureaucracy confirmed that the provincial government only defended balance in the Act as long as it did not challenge employer abilities to control the employment relationship. It also suggested that the government did not treat illegal employer actions nearly as seriously as it did when unions struck illegally.

Armed with his Premier's warning, Warrender dismissed any idea of a legislative end to the Royal York strike and instead wrote to each of the parties seeking further mediation.141 In a move that Toronto Star reporter Arnold Bruner described as "cloaked in secrecy," Warrender met with the striking union and the hotel management in order to reveal what he termed to be a "secret plan" to end the dispute.142 Warrender's "secret plan" proposed that the company and the union agree on the restructuring of job

1 AO, JPRGC, RG 3-26, Box 179, J.P. Robarts, Personal and Confidential Letter to J.B Webster, President of Webster Air Equipment Co., Ltd., 25 January 1962. 141 On 21 January, Toronto mayor Nathan Phillips initiated a series of talks. Those talks had broken down in disillusionment. Warrender hoped that the new government would be able to end the strike. 142 Arnold Bruner, "Warrender Intervenes Meets Strikers, Hotel," Toronto Daily Star, 26 January 1962. -337-

classifications, while recommending that the union accept a maximum of four hours notice of layoffs for members with less than 15 years of service. If the union agreed, the company would drop its request for a "merit and fitness" requirement to govern employee promotions (rather than seniority) and abandon its demand to issue a 10-cent bookkeeping fee for a future union-security agreement.

Where the two sides continued to disagree was on the back-to-work protocol. The

Royal York stated that it would only accept 50 per cent of the strikers back "some time in

1963."143 Warrender explained that this request was unreasonable, and counter-proposed that the hotel accept 90 per cent of the strikers back in three groups over the period of one year. He recommended that they take 120 strikers back by the end of March, 240 more by the end of June and the remaining 360 by the end of this year. The company agreed, but made it clear that it would decide on which strikers returned to work and in what order. The union remained unimpressed, feeling it was unreasonable that the government propose an offer that accepted the company's argument that it could hand-pick the workers returning work.144 While Archie Johnstone and Onofrio Zambri felt that this particular proposal violated the principle that all striking workers retain the right to their job, under pressure from Warrender they did agree to take the offer back to the membership. They ended the meeting by promising the minister that they would present the proposals without trying to influence the final vote.

Arnold Bruner and Roy Shields, "Why the Strike May Go On and On," Toronto Daily Star, 5 February 1962. 144 Warrender stated that he was convinced that certain strikers did not "deserve" their jobs back because of information the hotel had supplied him. These charges ranged from strike misconduct to others who merely were "unsubordinated to Angus Mackinnon during the strike." - 338 -

At the subsequent union meeting, the leadership presented the minister's proposals. Their lack of enthusiasm was evident from Johnstone's earlier prediction that if the strikers accepted this deal, he "would go back to Scotland."145 His lack of enthusiasm was echoed by the strikers in the room. As Johnstone and Zambri read each proposal from the "Warrender plan," strikers' responded with boos and curses. When

Zambri introduced the back-to-work protocol, the room expressed shock and dismay, with veteran meat-cutter Emil Kaliz describing the Royal York as "monsters." When the issue went to a vote, the strikers rejected the Warrender proposal 341 to 15.

Warrender expressed his outrage, stating that he had been double-crossed by the union.

He struggled to hold back his frustration to the newspapers, expressing disdain for the union leadership and the "little people" in the union.1 7 Demonstrating his inexperience in these matters, Warrender then added fuel to the fire by stating angrily that he would

"cross the picket lines from now on, the strike could go on for years." Warrender's hostility to the striking picketers was echoed by the Royal York's Ian Sinclair. He claimed that the union had "gone crazy," in disobeying the instructions of a minister of the Crown.

Arnold Bruner and Roy Shields, "Why the Strike May Go On and On," Toronto Daily Star, 6 February 1962. 146 "Warrender Angry: Royal York Strikers Reject Settlement," Toronto Daily Star, 31 January 1962. 147 "Warrender Angry: Royal York Strikers Reject Settlement," Toronto Daily Star, 31 January 1962. Warrender added: "If the little people are looking to their union leadership for guidance and this is what they get, then how are these people going to react? By turning it down. Continuing the strike means that this blot remains on the community, that millions of dollars in salaries are being wasted and that many persons who normally would respect a picketline will have to reassess their attitude " -339-

Figure 6.1: The Star's View of the Negotiation

;OT^a"J—•^MTIWT ~~— •"- I -' .inifli il.. i ii i Mi. ' ••HiMi

The failure of the Warrender plan and the hotel's now steadfast refusal to bargain prolonged the strike into the spring. Four weeks after the failure of the Warrender proposal, John Robarts entered negotiations after facing pressure for crossing the picketline to attend government functions. Through Eberlee, Robarts worked to hold discussions with the union and the hotel. In order to mediate the dispute, Robarts asked special mediator H.C. Goldenberg to assist in negotiations. As Goldenberg was instrumental in bringing an end to the construction strike eight months earlier, it was felt that he could bring neutrality to the table, as he was respected by both labour and management. At Goldenberg's request, OFL president David Archer was also asked to sit in on negotiations and he played an instrumental role in getting the union to agree to

"Johnstone's Lament" Toronto Daily Star, 6 February 1962. -340-

the eventual settlement. With Robarts, Eberlee, Goldenberg, Archer and the two sides in negotiations, (with Warrender notably absent) the new government was able to score a partial victory by brokering an agreement to end the strike.

With Robarts' approval, Goldenberg negotiated a back-to-work protocol which addressed the union's concern regarding full acceptance of striking employees, while acknowledging management's request to bring back strikers in three separate stages.

This, according to Robarts, was the most important difference between the Goldenberg plan and the earlier Warrender proposal. While the hotel conceded to re-employing the

470 remaining workers, they were able to get agreement on staggering the striking employees over five months, the first 125 by 15 May, 125 by 15 June, and 125 by 15

July, with the remainder going back to work at the end of August.150 Upon return, the employees retained their pre-strike seniority, pension and vacation privileges and job classifications. This was the only significant concession to the union. On all other issues, the union was only able to return to pre-strike wage scales which were 2.5 cent an hour wage increase, with another one-cent increase in 18 months. The union also had to accept an end to the compulsory union check-off. They were also forced to accept the company's demand for a four hours notice before a layoff for those workers with less than eight years seniority.

149 AO, JPRGC, RG 3-26, Box 189, Folder, Strikes-Royal York Hotel, J.P. Robarts, Statement by the Honourable J.P. Robarts on the Royal York Hotel Strike in the Legislative Assembly, 6 April 1962. Robarts suggested that the OFL president had a calming influence on the HCETJ. This suggests that the OFL was also keen on a settlement. 150 "Strikers At Royal York Back On Pre-Strike Terms," Toronto Daily Star, 6 April 1962. 151 The union had been asking for a 10-cent increase over 33 months. -341-

Unlike the Warrender proposals, this agreement was fully endorsed by the union executive. The reasons for the leaders' endorsement varied. Johnstone and Zambri both claimed that they felt this agreement was a moral victory because they had been able to protect the jobs of the remaining striking workers and preserved their pre-strike wage and benefits. Although the International President, E.S. Miller opposed the settlement because of the low wage and the absence of union security, he did recognize that this was a Canadian matter and he was powerless to influence the final vote. When the agreement was put before the strikers, several people felt sold out by the actions of the union. While the back-to-work protocol was better than the original Warrender plan, members felt that the wage and benefits package was worse than when the strike began a year earlier.

Some strikers complained of being "sold down the river," stating that their wage and benefit packages were better before the strike. One group of women strikers complained that this settlement was not worth a year on a picketline.152 Despite opposition, the final settlement was supported by a vote of 316 to 76. After a year-long strike, the only victory that the union could claim was that it did not capitulate in the face of illegal

1 S^ actions by the employer.

Several victors did emerge from this strike. The Royal York hotel was able to establish control over its labour force. By hiring over 1 000 replacement workers and virtually dictating that strikers did not have the right to maintain their jobs, the hotel was able to utilize the weaknesses in the OLRA. MacKinnon stated that the most important

152 "Gaiety Turns Sour As Strikers Get Peace Terms," Toronto Daily Star, 6 April 1962. 153 "After 11 Months on Strike, Disillusionment," The Globe and Mail, 9 April 1962. Somehow, despite the loss, despite the setback and humiliation, the Royal York workers crammed into a sweltering hotel banquet room and found the energy to cheer and sing. -342-

victory for the hotel was to show that it could operate the hotel notwithstanding a strike.154 In being able to negotiate an end to the strike, Robarts and his new government scored an important victory. In personally intervening in the dispute, he was able to build on Warrender's faults and play peacemaker. While the Goldenberg offer was not radically different from Warrender's plan, Robarts' strategic intervention with showed that he was a sophisticated tactician. Finally, the work of Carl Goldenberg was widely acknowledged as a major victory for labour relations mediators, who were able to bring a peaceful end to the strike without addressing the employer's illegal action. Goldenberg's settlement allowed the hotel to look conciliatory just by agreeing to take their striking employees back to work (albeit over a six month term).155

The company's ability to utilize legal and illegal tactics to break a union's right to strike spoke to the weaknesses in both the 1950 and 1960 OLRA. The HCEU strikers followed all the rules in the OLRA. The strike was legal and the action of the strikers, as

Goldenberg later admitted, was one of the longest and most peaceful in the history of

Canada.156 Despite following all the rules, the union was still undermined by the provincial government that was unwilling to protect legally striking workers. While the construction strike showed that picketline violence would be met with an overwhelming degree of force, peaceful picketlines were only respected if the unions themselves forced

154 "Gaiety Turns Sour As Strikers Get Peace Terms," Toronto Daily Star, 6 April 1962. 155 The Star's editorial board stated that nobody won in this dispute, but praised Goldenberg for his "tremendous work" The Star concluded that "what the whole angry episode makes clear is that strikes have ceased to be an effective method of settling labour-management disagreement. When the battle is over, the damage often is greater than the gain, and there are usually no winners." 156 "Gaiety Turns Sour As Strikers Get Peace Terms," Toronto Daily Star, 6 April 1962. -343-

the employer to shut down their business. The Elmore ruling also revealed the narrowness of judicial reasoning in solving labour disputes and the continued weaknesses in the OLRA. While McRuer was far more enlightened on the historical evolution of labour law (especially since the Second World War), the Supreme Court of Canada acknowledged that no striker had a universal right to their job. This rationale suggested that the key actors in the post-war labour relations regime—including government and the courts—were only willing to concede on workplace protection for workers if they maintained their commitment to uphold labour peace and limit strikes. The Toronto

Construction strike and the Royal York dispute, however, showed that the same rules did not apply to employers. In addition, the intervention of the new, younger and more energetic Premier did not seem to challenge this interpretation.

Changing of the Guard? John Robarts and the Renewed Assault on the OLRA

In the spring session of 1961, Frost announced his decision to retire. An important part of this decision, Frost conceded, was to leave mid-term in order "to pass the torch of leadership to younger men."157 Many have interpreted Frost's decision to retire as an important step to rejuvenating the party, allowing it to modernize and stay relevant with

1 CO the changing electorate. Still others have argued that the leadership race allowed the party to elect a more moderate leader, one more in touch with the changing demographics

A.K. McDougall, John P. Robarts: His Life and Government (Toronto: University of Toronto Press, 1986), 59. Not long before he made the decision to leave, party strategist and president A.D. McKenzie died of a heart attack. As a result, the party was left without its president and its popular leader. 158 Ibid., 55-61. -344-

of Ontario in the 1960s.159 These interpretations, however, have been exaggerated. The

eventual selection of John Robarts as Premier continued the Tory trajectory of modest

social reform, combined with close connections to provincial businesses. These

connections were apparent during the leadership campaign and were reinforced in the

labour portfolio throughout Robarts' tenure as Premier.

After Frost announced his retirement, jockeying for the leadership began almost

immediately. The aspirants to succeed Frost included several high profile cabinet

ministers and all were from the Conservative caucus. The list was made up of Attorney

General Kelso Roberts; Education Minister John Robarts; Energy Minister and Select

Committee on Labour Relations member Robert Macaulay; former Speaker of the House

and Reverend, A. W. Downer; Minister of Reform Institutions, ;

Minister of Health, ; and Provincial Treasurer James Allen. By all

accounts, the leading contenders going into the autumn convention were Roberts,

Macaulay and Robarts.1 Roberts and Macaulay enjoyed a strategic advantage over

Robarts as both were well connected to the influential business classes in Toronto (and throughout the North) and were therefore well positioned to finance their campaigns. As a former Hollinger gold mine lawyer, this was particularly true of Roberts who counted among his allies several influential lawyers and business leaders. This list included Ross

Brownsey, Tory Life, 240-2; Steve Pakin, Public Triumph, Public Tragedy: The Double Life of John Robarts (Toronto: Viking, 2005), 22-5. 160 As Allen was roughly the same age as Frost and had been the treasurer who had introduced the sales tax, he was considered a long shot. -345-

Shouldice, a well-known Tory fundraiser and Sudbury developer; former Nickel Belt

Mayor and Senator, Rheal Belisle; Toronto developer Rod McAlpine and several Bay

street lawyers. Being from Toronto, Macaulay also had access to Bay Street

fundraisers and was a known urban reformer. He was also well positioned to overtake

Roberts because of his youth and well-known capacity to digest complex public policy issues. Of the leading candidates, only Robarts did not have direct access to Toronto money. He was well liked, however, by Frost and his closest confidants.163 These "Frost men" included party treasurer Harry Price and Chairman of the Metro Toronto Council,

Fred Gardiner. Not inconveniently, both Price and Gardiner had close connections to

Ontario's legal and business community.1 4 Robarts also benefited from being from

London, with its burgeoning financial classes, that helped him gain support from rural delegates suspicious of the urban reform elements in the party.

Typical of party leadership contests in Canada, the race to succeed Frost did not bring to the surface a deep ideological divide within the Progressive Conservative Party.

Robarts positioned himself in the middle of the party as he promised to take "a touch of

Frost" into the future. In doing so, Robarts deliberately aligned his candidacy with the existing regime in Queen's Park.165 His lacklustre campaign style and limited policy

In 1975, Shouldice was dismissed from the Conservative Party for his attempts to gain a series of patronage contracts from Premier William Davis. See "Ontario Tory fund-raiser denies party was offered $30,000 to make land deal," Globe and Mail, 27 January 1975. 162 Kelso Roberts, Thirty Years of Ontario Political Action (Toronto: Private Edition, 1969), 124. According to Steve Pakin, Roberts was well positioned to gain support from Bay Street and took advantage of this during his campaign for leadership. Pakin, Public Triumph, 26. 163 Frost remained neutral throughout the campaign. As the convention neared, however, it became clear that Frost did not want Kelso Roberts to be leader. 164 Keith Brownsey, Tory Life, 235-6. 165 McDougall, John P. Robarts, 64. -346-

platform contrasted with rivals such as the radical right-wing campaign of Downer, the dynamic Macaulay or the law and order agenda of Roberts.166 Downer, for instance, raised one of the most contentious policy issues at the convention when he challenged

Frost's post-war labour policies. During his convention speech, Downer suggested that he would bring in right-to-work laws and "would not put up with the direction by labor leaders and not permit gangsters to dictate to other people through their control of labor."167 Perhaps sensing the future strength of a united labour/CCF union in the province, Downer also favoured the legislation adopted in British Columbia which made it illegal for union dues to be used to support political parties. While Downer was not considered a leading contender for the leadership, his views certainly represented a segment of the party which viewed organized labour and the NDP as a potential threat.

The new linkage between labour and the NDP contributed to transforming frontrunner Robert Macaulay from a moderate social reformer to a dedicated

Conservative cold warrior. At the convention, he stated that he was "committed to a fateful struggle for the minds of men, [and] this decade may decide our ability to survive economically against communism and part of that struggle for survival will be waged here in Ontario."169 In order to fight communism, Macaulay assured delegates that under

Roberts also had a limited platform. His only focus seemed to be on law and order. See Roberts, Thirty Years, 123-8. During the leadership campaign, Robarts did not present a policy platform. During the final rounds of speeches, his only promise was to extend public support to farmers, while governing in pragmatic fashion. According to journalist Steve Pakin, this style very much matched Robarts' own lacklustre interest in the spectacle of campaign politics. See Pakin, Public Triumph, Public Tragedy, 26-7. 167 John Miller, "Ballyhoo Loud, Voters Uncertain," Globe and Mail, 25 October 1961. 168 Macaulay's campaign was run by future Ontario premier, William Davis. See Pakin, Public Triumph, Public Tragedy, 27. 169 "Seven Candidates Make Final Pleas Under Arena Lights," The Globe and Mail 25 October 1961. -347-

his leadership, the party would govern the province free from "any narrow partisan appeal or without the pretence of class struggle."170 Presumably, this implied that extended trade union freedoms were not a top priority for Macaulay. He hinted as much when he declared that he was against union security agreements that forced a worker to join a union as a condition of employment. Other frontrunners were less critical of

Frost's post-war labour policy, all of whom indicated that their leadership would continue along Frost's formula of clearing the way for private sector economic growth.

Notwithstanding the debates surrounding the labour code, most accounts of the

1961 leadership race suggest that it was a struggle between rural and urban control of the party.171 As the most prominent non-Toronto candidate, Robarts was able to position himself as the compromise candidate between the urban reformers (represented by

Macaulay and Roberts) and the more traditional, small town and rural elements

(represented by aging Treasurer Allen and Reverend Downer).17 This strategy proved successful. In a six-vote marathon, John Robarts (with the eventual support of Macaulay,

Allen and Downer) prevailed over Kelso Roberts. In doing so, Robarts became the

170 Ibid. 171 Lawrence S. Grossman, ""Safe" Seats: The Rural-Urban Pattern in Ontario," Canadian Journal of Economics and Political Science 29 (1963), 369; Wrong, "Ontario Provincial Elections," 397-8; R.J. Drummond, "Voting Behaviour: The Blueing of Ontario," in Donald MacDonald ed., Government and Politics of Ontario (Toronto: Macmillan, 1975), 310-1. According to Grossman, the rural delegation was considered the back-bone of the Tory party. Rural elites carried a great deal of weight specifically because rural, non-industrial seats were long considered "safe" seats for the Party. The party also made significant inroads in the smaller, non-rural and non-industrial areas as well. It was these two bases of political support that worked to benefit the Tories at the expense of the Liberals and CCF/NDP. In these areas, the Tories received support from east-central Ontario, and small rural communities representing some of the oldest settlements in the province. This confirms Drummond's conclusion that rural elites played a disproportionate role in the Conservative Party's long terms success and were a significant contributor to the continued dominance of the party in the 1950s and 1960s. 172 Brownsey, Tory Life, 237. -348-

candidate representing technocratic competency and political continuity into the 1960s.

Nowhere was this status-quo orientated strategy more prominent than in the ministries of economic development and labour.

In many ways, Robarts represented a younger generation and delegates saw him as the candidate best able to unite the party in the next election.174 The selection of a new leader, however, did not change the manner in which the governing party managed the province. At the same convention where right wing policy proposals gave way to the more moderate positions of Robarts and Macaulay, the party's policy committee reaffirmed its traditional approach to economic development and collective bargaining.

The committee stated that its core policies were firmly entrenched within the protection of free enterprise:

.. .the [Progressive Conservative] party is the party of the present and the future; it is the party which stands for free and competitive enterprise operating under proper restraint against monopoly, unfair competition and irresponsible exploitation of our natural and human resources...This party is opposed to the abdication by the individual of his rights and privileges to any socialistic party which intends to place in the hands of the state control over the means of production and distribution on the theory that a grand unlimited and expensive bureaucracy can run the business of the country better than those engaged in competitive free enterprise. We also believe that full and remunerative employment can only be accomplished if our province offers a climate satisfactory to the investment of domestic and foreign capital...

In order to achieve their dual goals of private sector growth and full employment, the party argued that collective bargaining allow the private sector to thrive and expand "so

173 Ibid., 242. 174 Ibid., 240-1. 175 AO, OMLC, R.G 7-3-0-15, Box 1, Ontario Progressive Conservative Party, Report of the Policy Committee, Ontario Convention, 25 October 1961. -349-

that the common objectives of capital and labour in production may be fully realized."

For this to happen, the party suggested that the government limit its interference in the process. Notwithstanding promoting the values of "free" collective bargaining, the committee also insisted that it would intervene in the internal affairs of trade unions if it challenged its stated economic goals. Delegates also stated that the government should closely monitor instances where union dues were used to support a political party.

That the policy committee of the Progressive Conservative party reaffirmed its commitment to free enterprise is unsurprising. What was unusual was that the party's formula for economic growth was very much integrated within the successful application of the Ontario Labour Relations Act. The party thus took the position that the rights of labour were only acceptable if they reflected the conditions "satisfactory to the investment of domestic and foreign capital." If labour challenged this strategy, then the party would abandon its commitment of non-interference and regulate trade unions.

Ultimately, the policy committee made it clear that the OLRA was not designed to encourage trade unionism or expand rights to association.

While Robarts sought to link his leadership with specific elements of "Old

Ontario," once in office there was a noticeable change at Queen's Park. Robarts' "new" style of governing was deliberately crafted to represent the new managerial professionals

1 77 that were coming of age in the 1960s. This strategy led many to characterize the

Premier as the "non-politician" or the "chairman of the board" who preferred to dutifully

Keith Brownsey and Michael Howlett, "Class Structure and Political Alliances in an Industrialized Society," 157. -350-

manage government rather than participate in the contested terrain of partisan political struggle. According to NDP leader Donald MacDonald, this style separated Robarts from

1 7R the governments of Drew and Frost. Veteran Queen's Park reporter Jonathan

Manthorpe suggested that this style was based on pragmatic management philosophies borrowed from the business world: Both Frost and Drew had recognized that the times required that the Conservatives sacrifice traditional Tory principles in order to maintain support and to provide needed programs; but Robarts took this idea well beyond the bounds of his predecessors thinking...For Robarts pragmatism was the only way to operate, and he did it extremely skilfully. On occasion he tried too hard to find consensus, and every change in law seemed to wait on the findings of plodding commissions and committees which investigated the situation to the point of screaming boredom.179

Characterizing Robarts' government as simply pragmatic suggests that the Premier did not make decisions based on partisan division. Graham White has stretched this observation further, arguing that the "interventionist bent of the Robarts government" was guided not by ideology but by an intense desire to modernize the policy-making capacity of the Ontario state.180 According to Rand Dyck, this pragmatic approach explains why a Conservative government was comfortable introducing policies such as the new minimum wage legislation, increased university grants, legal aid, the federal medicare program, new Toronto subway and the significant overhaul of the ministries of

1 Rl education and university affairs.

MacDonald, The Happy Warrior,1^3. 179 Manthorpe, The Power and the Tories, 72-3. 180 Graham White, "Change in the Provincial State," 15-6. 181 Rand Dyck, Provincial Politics, 315. According to Dyck, Robarts' non-partisan agenda also led to new a community college system, new mental health legislation, a new series of liberalized liquor licensing laws and dramatic changes in the legislature. -351-

To be sure, the "interventionist bent" of the Robarts government can not be easily ignored. Under his tenure, Ontario underwent one of the most sustained periods of economic growth in its history. This, in turn, led to dramatic increases in public spending. Upon taking office in 1961, the provincial budget had not yet reached $1 billion. By the time he left office in 1971, the budget had grown to over $5 billion per year. This increase can be attributed to relatively stable economic growth after 1962, which saw gross provincial product (GPP) grow from $15.3 billion to over $35 billion by the end of the decade.182 Of course, it was not simply government spending or increased regulation which created this prosperity. As unemployment dipped below 4 per cent in

1962, the manufacturing sector became the chief engine of Ontario's economy.

Represented by such companies as Bell Telephone, Massey Ferguson, Stelco, Inco, Ford,

General Motors, American Motors and public enterprises such as Ontario Hydro, workers in these companies became the face of Ontario's organized working class.183

Despite the massive social and economic transformation of Ontario in the 1960s, the characterization of Robarts as "pragmatic" overlooks the pro-business leanings of his government. Similar to both Frost and Drew, Robarts' government was predicated on utilizing the provincial state to create the conditions necessary for the private sector to

Brownsey and Howlett, "Class Structure and Political Alliances in an Industrialized Society," 157. 183 Macdermid and Albo, Divided Province, 166-7; Rae, The Prosperous Years, 28; Lang, The Service State. According to K.J Rae, between 1950 and 1975 over 50 per cent of all foreign immigration to Canada resided in Ontario. The period also witnessed a significant shift in Ontario's social structure. Between 1961 and 1971, Ontario witnessed an expanding baby boom and increased foreign immigration. The strength of this population growth led to an expanding labour force, which saw an increase in both female and male employment. The growth in employment occurred in numerous areas, but the service sector would grow an account for 65 per cent of all employment in Ontario by 1975. This growth was especially noticeable in the public sector, which saw its numbers swell in the period. -352-

flourish. This philosophy derived as much from Robarts' understanding of the party's financial base as well as his political beliefs as a Conservative. In summarizing these convictions, former NDP MPP Kenneth Bryden implied that Robarts' governing philosophy was linked to his reliance on economic and political support from the business world:

I have no doubt that the Tory party gets substantial amounts of money from the insurance companies and of course Robarts comes from London and has always been pretty close to London Life. [He was chairman of the Board at London Life after retiring from government in 1971] But it was basically his Conservative philosophy. He was against public intervention in the Canada Pension Plan or Medicare....I'm sure campaign contributions had some influence but I think philosophically he was an extremely cautious conservative. And conservative in our terminology, really means 19l century liberal, laissez-faire liberal, essentially that you should leave lots of scope for private enterprise.1 4

Contrary to his passionate stand on Canadian unity and the deepening of the Ontario-

Quebec alliance, in economic areas Robarts was unapologetic about his encouragement

(and even reliance on) foreign direct investment in the province. 6 Under Robarts, the

Ontario government promoted domestic manufacturing while also openly encouraging foreign producers to invest in Ontario.

Relying on federal investment plans to help spark the economy in the spring of

1962, Robarts and Macaulay (now Minister of Energy, Commerce and Development)

184 AO, OHSSPI, RG 47-27-1-16, Container Q-118, Interview with Ken Bryden CCF/NDP MPP, August 1972,41. 185 Robarts was a supporter of Canadian nationalism and promoted numerous efforts to bridge the growing gap between English Canada and Quebec. As premier one of his crowning achievements was the hosting of the Confederation of Tomorrow conference in November of 1967. This conference was a meeting of provincial premiers to discuss the future of confederation, with an eye to bridging the growing gap between Quebec and English speaking Canada. 186 McDougall, John P. Robarts, 142-3. -353 -

launched the "trade crusade" which had the dual goals of promoting Ontario exports abroad while also promoting the benefits of foreign investment in the province. In a string of memos to the Ministry of Labour, Robarts and Macaulay maintained that the trade crusade was designed as "part of an overall strategy to raise the level of prosperity in this Province and to provide more job opportunities to take care of our ever-expanding work force."187 The "trade crusade" was the provincial government's attempt to re­ educate Canadian producers and Canadian consumers to buy Canadian goods while promoting exports.188 As part of the overall strategy, the government opened trade offices throughout the United States and Europe.189 According to the Deputy Minister of

Labour, a key component of the "trade crusade" was to utilize the Ministry of Commerce and Development and the Ministry of Labour to coordinate a massive government sponsored inventory program so that private businesses could examine their purchasing habits with a view to buy domestic goods and thus encouraging greater trade in manufactured goods.190

In attempting to pull Ontario out of the recession that plagued the economy in

1961 and 1962, the provincial government created linkages between Ontario's leading manufacturers and the professional policy makers in Queen's Park. Programs like the

"trade crusade" were developed by the new professional classes in the Ontario bureaucracy who aimed to create provincial programs to assist domestic manufacturers to

AO, Deputy Minister of Labour's Correspondence Files (hereafter DMLCF), RG 7-54 Box 1, Robert Macaulay, Letter to J.P. Metzler 12 December 1962. 188 Rea, The Prosperous Years, 220-1. 189 Richmond, The Economic Transformation of Ontario, 16. 190 AO, DMLCF, RG 7-54, Box 1, J.P. Metzler, Letter to Jacob Finkelman 14 December 1962. -354-

create the conditions for long-term profitability. These programs included a push to replace reliance on import substitution, expand and deepen overseas sales missions, and provide financial assistance (subsidies) to industry.191 In many ways, being a

"management man" made Robarts a natural mediator between the growing presence of the state and the continued reliance on private sector wealth creation.

By the 1960s, popular economic thinking suggested that the state had a positive role to play in promoting and maintaining economic growth. In this regard, Robarts' government was able to recognize that the province could act to encourage investment in depressed regions while maintaining healthy conditions in the core. Besides the "trade crusade," the government also expanded the Ontario Development Corporation to assist faltering corporations (especially in the construction industry) and created the Ontario

Economic Council to provide economic advice to the government. In addition, the government increased the powers of the Ontario Securities Commission to bring Ontario stock trading in line with other jurisdictions.192 The provincial government was forced to address a new series of policy questions which called into question the excessive degree of foreign ownership in the Ontario economy. This issue was being pursued by the NDP, who were arguing that the government's economic policies, especially those on competition, business investment and foreign trade were adversely tied to the close relationship of Queen's Park with multinational corporations in the United States.

According to D.R. Richmond, the close relationship between Queen's Park and American

191 Richmond, The Economic Transformation of Ontario, 15 192 The government was left little choice but to reform the securities industry. In the mid-1960s, opposition parties pounced on this issue because of weak regulation of commodity industries, especially mining. -355 -

industry grew from the consensus that government regulation could aid industry in

1 Q^

addressing the changing structure of the economy.

Given the growth in the economy, the labour portfolio played an important role in

government. A key component of this new approach to labour relations included the

appointment of a new Minister of Labour for the first time in 18 years.194 In selecting his

first cabinet, Robarts replaced the aging Daley with a cautious new minister named

William Warrender. Warrender was the former Minister of Municipal Affairs and

Hamilton lawyer. The selection of Warrender garnered front-page headlines on the day the announcement was made, revealing the importance the media ascribed to the

Department of Labour.195 For the government, Warrender seemed a logical choice, as he had once had held a union card in the Brotherhood of Railway Signalmen.19 As

Warrender's time as a business lawyer long surpassed his time in the Railway union, the

800 delegates to the OFL's convention reacted without applause to his appointment.

Future UAW president Dennis McDermott's optimism was limited to his hope that

Warrender not "bungle this job the way he bungled the municipal affairs post," while

Gerry Gallagher, Secretary Treasurer of the Labourers' Union asserted, "that almost

Richmond, The Economic Transformation of Ontario, 15-6. 194 Daley had decided to retire not long after Frost announced he was stepping down as leader. As a departing gesture, Robarts appointed Daley Minister Without Portfolio until the 1961 election when he stepped down as MPP from Lincoln. Daley was labour minister for 18 years, making his stay in that department the longest in Ontario history. 195 "Warrender Labor Chief in Robarts' New Cabinet: Macaulay May Get Dual Post," Toronto Daily Star, 8 November 1961. 196 "Departmental Offices Switched Among Ministries," Globe and Mail, 9 November 1961. Warrender was a card-carrying member of Local 47 of the Brotherhood of Railroad Signalman of America from 1929 to 1931. He continued as a honourary member until 1959. Despite this experience, he emphasized to the media that he brought balance to the position because "on the other side of the coin, I have been a member of the Hamilton Chamber of Commerce." -356-

anyone would be better than Daley." Opposition parties were equally sceptical, with

NDP leader Donald MacDonald speculating that Warrender's appointment was only a

"stop-gap" measure for an eventual judicial appointment.198 If that were true (it was),

MacDonald lamented, "that it is regrettable in view of the importance of the post."'"

In addition to the controversy surrounding Warrender's appointment, there were also a series of new workplace issues for the new government to address. Beginning in the early the 1960s, the Department of Labour intervened in a series of new programs that included human rights protection, the creation of a women's bureau and improved health and safety legislation. Many of these concerns arose because of the growing rate of unemployment and unionization in the province.

Table 6.1 Unemployment in Ontario and Canada, 1962-1971 Year Ontario Canada 1962 4.3 5.9 1963 3.8 5.5 1964 3.2 4.7 1965 2.5 3.9 1966 2.5 3.6 1967 3.1 4.1 1968 3.5 4.8 1969 3.1 4.7 1970 4.3 5.9 1971 5.2 6.4

George Graham, "Choice Shocks Labour," Toronto Daily Star, 9 November 1961. Warrender's time in Municipal Affairs was plagued with an endless succession of scandals, which played an important role in the 1959 provincial election. 198 The rumours were true, Warrender was appointed to the bench in 1963. 199 "Shifts Disappointing, NDP Leader Says," Globe and Mail, 9 November 1961. 200 F.H. Leacy, Historical Statistics of Canada, 2nd Ed., (Ottawa: Statistics Canada, 1983), Unemployment rates, by region, annual averages, 1946 to 1975, Series D491-497. -357-

Table 6.2 Total Union Membership201 and Union Density202 in Ontario, 1962-1971 Year Total Membership Percentage of Paid Workers 1962 538,000 28.3 1963 553,000 28.5 1964 577,100 28.6 1965 614,900 29.0 1966 655,469 30.0 1967(a) 721,581 31.0 1968 731,677 30.6 1969 761,095 30.0 1970 813,229 31.7 1971-72 (b) 878,938 32.9

Employment rates and the steady rate of unionization, however, did not contribute to peaceful relations between labour and business. Rather, throughout the decade, some of the most prominent strikes occurred in residential construction in Toronto and in the service sector. In the later half of the decade, these strikes grew to include prominent

Sources derived from: (1) Canada Department of Labour, Union Growth in Canada, 1921-1967 "Table IIA Union Membership By Region, 1921-1967."(2) J.K. Eaton, Canada Department of Labour, Union Growth in the Sixties, "Table IVA Membership of Unions and Employees' Associations, by Region, 1957- 1970."(3) Ontario Ministry of Treasury, Economics and Intergovernmental Affairs, Ontario Statistics, 1975. 202 Sources derived from: (l)Canada Department of Labour, Union Growth in Canada, 1921-1967 "Table VII A, Union Membership as Percentages of Paid Workers, By Region, 1941-1967." (2) J.K. Eaton, Canada Department of Labour, Union Growth in the Sixties, "Table IVC Percentage of Paid Workers by Region, 1957-1970."(3) Ontario Ministry of Treasury, Economics and Intergovernmental Affairs, Ontario Statistics, 1975, Table, 10.6 Non-Agricultural Labour Force & Table 10.27, Union Membership, Canada and Ontario, 1961-1972. (4) Mary Lou Coates, David Arrowsmith and Melanie Courchene, The Current Industrial Relations Scene in Canada, 1989: The Labour Movement and Trade Unionism Reference Tables, "Table 15 Union Membership by Province in Canada, 1966-1986." (a) These numbers have been adjusted, (b) These numbers have been adjusted. 203 Jamieson, Times of Trouble, 400. According to Jamieson, one of the most notable features about the strike wave of the 1960s was the number of large or prolonged walkouts by workers who had traditionally avoided industrial conflict: teachers, hospital workers, liquour store employees, hotels, department stores, office workers and postal workers. This trend was most prominent in Quebec and British Columbia, although many service strikes did occur in Ontario. - 358 -

job actions by pulp and paper workers in Kaspuskasing, Newspaper workers in Toronto,

Oil Refinery and truck- drivers throughout the province, and Inco and Stelco workers in

Sudbury and Hamilton.204 According to Jameson, this labour unrest was characterised by violent outbursts of worker anger, including a sharp rise in inter-union disputes and illegal walkouts. What was also unique about this labour disruption was that so much of it was launched by rank-and-file workers against employment conditions, government policy and even the leadership in the unions. Jamieson further observed that labour unrest in this period was exceptional because workers were increasingly defying the "law and order" provisions of post-war labour legislation, which included a ban on mid-term strikes.205

Central to this level of working class unrest was frustration over court-imposed injunctions. As the changes made to the Judicature Act made it easier for employers to seek court injunctions, employers eagerly used them to curb picketing during strikes.

204 These are highlighted in Jamieson, Times of Trouble, 404-45. 205 Jamieson, Times of Trouble, 400-404. 206 A. W. R. Carrothers and E.E. Palmer, Report of a Study on the Labour Injunction in Ontario, (Toronto: Ontario Department of Labour, 1966), 87-91. Carrothers and Palmer report that 222 applications for injunctions were filed with the Supreme Court of Ontario. They report that the courts routinely limited the ability of unions to strike. -359-

Table 6.3 Strikes and Lockouts in Ontario by Fiscal Years, 1961-1971 Year Number of Disputes Workers Involved Working Days Lost 1961 166 39,817 644,770 1962 172 32,985 424,590 1963 181 37,744 364,190 1964 188 52,442 712,095 1965 269 92,633 1,343,001 1966 297 121,110 1,356,130 1967 228 65,563 1,542,550 1968 286 136,407 2,922,090 1969 238 130,909 5,318,770 1970 215 81,592 2,547,210 1971 205 79,726 1,359,140

Writing in the 1960 Canadian Annual Review, John Harbron concluded that the willingness of employers to challenge the legitimacy of strikes was reshaping collective bargaining in the province.208 In response to employer use of injunctions, many labour unions shifted their bargaining strategies from bread and butter issues such as union security to shorter workweeks, enhanced benefits and, most importantly, substantial wage increases. Nevertheless, it is important to note that the issue of job security did not go away for most union members. Rather, an increasing number of wildcat strikes concerned issues of unpaid wages and job security.20 In many of these disputes, union members were challenging the prevailing logic of legalized collective bargaining, seeing it, as Joan Sangster has argued, as exposing the extent to which the law masked an ideological legitimation of capitalist exploitation rather than a "natural" reality of post-

Ontario Ministry of Treasury, Economics and Intergovernmental Affairs, Ontario Statistics, 1975, Table 10.28 Strikes and Lockouts, Ontario, 1958-1971 208 John Harbron, "Business and Industry," in John Saywell ed., Canadian Annual Review 1960 (Toronto: University of Toronto Press, 1961), 262-3. 209 Jamieson, Times of Trouble, 401. -360-

war class relations.210 One way to advance this struggle was to challenge the legitimacy of the law by relying on quick illegal strikes and, in some cases, violence on the picket line in order to limit the ability of employers to end strikes.

At the very moment in which rank-and-file workers were challenging the "law and order" provisions in the OLRA, businesses were increasing calls to limit OLRB discretionary power. In particular, employers continued to defend the role of courts in protecting their interests during labour disputes and sought to restrict the Board's power to regulate strikes.212 The TBOT, for instance, suggested that the 1960 changes to the

OLRA shifted labour law too far away from the courts. For these employers, the law had to be used to protect rights of property and employment contracts, which included restricting the ability of a strike to shut down businesses. As far as these employers were concerned, the 1960 OLRA eroded these basic common law rights and was thus eroded basic freedoms of liberal democracy. In defending the rights of employers to seek court issued injunctions, for instance, the TBOT argued that,

[t]he blending of policy with justice in these matters contains an especially serious element in the use of unions making rulefs] against crossing picket lines to bring about breaches of contracts that employers have entered into and generally to disrupt the employer to accept the union's demands. If the protection of legal rights [that] courts give through injunctions were to be withdrawn and the restraints on conduct of this nature left to administrative tribunals where policy

210 Sangster, "We No Longer Respect the Law," 49-50. 211 Jamieson, Times of Trouble, 401. Jamieson states that strikes in the latter half of the 1960s reflected a number of unique characteristics: First, workers were far more confident in striking over wage demands rather than the union recognition and job security strikes in the 1940s and 1950s. Second, wildcat strikes were far more common. Third, there were increasing incidents of violence and illegality on the picketline. 212 AO, JPRGC, RG 3-26, Box 189, File Strikes-Exparte Injunction January 1966-June 1966, Harry Arthurs, Confidential Memorandum on Injunctions, 8 October 1964, 4-5. Harry Arthurs reported to the Ontario government that "the 20 odd judges who hear these cases do not have a wide range of knowledge about, sympathy for, and comprehension of, labour relations law and practice." -361 -

and justice are intermingled, this Toronto Board of Trade is convinced that there would be the most serious invasions of civil rights without legal remedies. All too often the trade union would be in a position to dictate terms of settlement regardless of the legal rights of employers and of the economic considerations involved, both for the employer and the public who use the goods and services of the employer.213

The Board of Trade's position rested on a firm belief that the specific nature of the post­ war legislative framework continued to favour trade unions. According to the TBOT, businesses had accepted collective bargaining because there was supposed to "be freedom from industrial strife, in the forms of strikes and lockouts, during the terms of a collective agreement." If this provision were removed (either by legislation or by workers on strike), they argued that public freedoms would be seriously undermined.

Business groups like the TBOT and the CMA were concerned that court-imposed injunctions might be transferred to the OLRB or eliminated altogether. Such concerns were far from abstract. In a memo prepared for the Minister of Labour and the Ontario

Premier in 1964 to address the growing debate over injunctions in labour disputes, Harry

Arthurs observed that courts rarely turned down injunction requests by employers. This fact alone, Arthurs noted, confirmed for the "objective observer—and, even more, to the biased unionist—that the present system operates unfairly."216 Arthurs also observed that injunctions had become frequent tools of employers to end strikes because of "the fuzzy

213 AO, DMLCF, RG 7-54, Box 3, The Toronto Board of Trade, Letter to Leslie Rowntree, 12 November 1964. 214 AO, DMLCF, RG 7-54, Box 3, The Toronto Board of Trade, Letter to Leslie Rowntree, 12 November 1964. 215 AO, JPRGC, RG 3-26, Box 189, File Strikes-Exparte Injunction January 1966-June 1966, Harry Arthurs, Confidential Memorandum on Injunctions, 8 October 1964, 1-2. -362-

sate of the common law" which enabled judges to reach almost any result in these cases.

In pointing out the flaws inherent in the law of strikes and lockouts, Arthurs outlined several options for potential reform, including replacing court-imposed injunctions with strengthened cease-and-desist orders by the OLRB.217 For Arthurs, these reforms made sense because the OLRB was far more capable of examining the legitimate interests of unions and employers during a labour dispute.

Employer fear of OLRB discretionary power continued to drive opposition to reforms recommended by Arthurs. Between late 1962 and January 1964, a series of memos were sent to John Robarts and the Minister of Labour, Leslie Rowntree concerning the role of the OLRB in regulating labour-management relations in

Ontario.219 These concerns were brought forward by V.W. Scully, President of the Steel

Company of Canada and was signed by E.G. Burton, President, Simpsons Ltd.; J.D.

Campbell, President, Canadian Westinghouse Co.; W.E. Phillips, VP and Chair of the

Board and CEO of Massey-Ferguson Ltd.; E.H. Walker, President General Motors of

Canada; R.V. Yohoe, President B.F. Goodrich Ltd.; W.H. Young, President Hamilton

Cotton Co.; H.J. Clason, VP Steel Co. of Canada and R.V. Hicks QC. In these letters, leading manufacturers and retailers expressed concern over the 'alarming' levels of

217 Ibid, 11. 218 Ibid.,12. Despite his conclusion that these recommendations were 'harsh,' Arthurs' recommendations were far from radical. Indeed, near the end of his memo he concluded that while picketing "contained elements of free speech it also is a technique of industrial warfare by which employers and the public might be damaged. Any reforms must give due weight to both sides." Despite making these proposals, Arthurs' recommendations for reform were ignored by the government. 219 AO, MLGC, RG 3-26, Box 174, Container B280698, November 61-December 65; AO, JPRGC, RG 3- 26, Box 189, File Strikes-Exparte Injunction, V.W. Scully, President, The Steel Company of Canada, Letter to the Prime Minister of Ontario, The Honourable John P. Robarts, 20 September 1962. Two other letters were in the same file, which were dated December 1962 and March 1963. -363-

OLRB support for trade unions and collective bargaining. Above all, business leaders were concerned that the Board developed the "administrative means of intervention rather than improving the objectives of this intervention." In particular, they suggested that post-war reforms had resulted in:

1. Increased the jurisdiction of the LRB 2. Transfer to, and concentrate in the Board jurisdiction formerly vested elsewhere 3. Increase the legislative authority of the Board 4. Increase the discretionary authority of the Board 5. Make the Board progressively immune from judicial review 6. Strengthen the relative position of the "Chairman Group" on the Board and weaken the position of employee and employer representatives on the

Despite winning almost every battle to limit OLRB discretionary power since 1950, businesses continued to stress that the Board was biased in favour of labour. They were especially concerned that the pro-union sympathies of the Board limited the rights and political freedoms of Ontario citizens.

In coming to this conclusion, businesses continued to concentrate on the excessive power of the Board and its growing threat to civil liberties in the province. Using this argument, they suggested that the Board was excessively reckless with the rules of evidence, procedure, precedent and legal interpretation. The ability of the Board to move beyond the procedures found in court, these employers argued, gave the Board almost dictatorial powers to determine questions of employee status; bargaining unit

220 AO, JPRGC, RG 3-26, Box 189, File Strikes-Exparte Injunction, V.W. Scully, President, The Steel Company of Canada, Letter to the Prime Minister of Ontario, The Honourable John P. Robarts, 20 September 1962. -364-

composition, bona fide trade unionism; the nature of bargaining; sole discretion of consent-to-prosecute applications; and to determine if the Act has been violated. As many of these powers have exceeded the "absolute powers of any court in the land," employers suggested that the government remove all judicial powers from the Board and

99 1 restore the power to the courts "where they traditionally and properly belong."

Having dismissed the discretionary powers of the Board, employers then criticized the power of Finkelman and the "chairman group" surrounding him. They insisted that these representatives had gained exceptional amounts of power at the expense of employer representatives. Concerns were raised over the expertise of these members, the pressure which Finkelman exerted over non-legal members (especially labour-side appointments), and the Chair's ability to control OLRB hearings. All of these concerns led these business leaders to conclude that the "chairman group," ...applies a presumption of innocence in dealing with unions, and a presumption of guilt in dealing with individual employees or employers. In the majority of its decisions, the Board makes no findings of fact and gives no reasons, with the result that it is frequently difficult to determine the basis upon which a decision is reached. There is no transcript taken of the proceedings before the Board and the Chairman is known to be adamantly opposed to such practice despite the fact that hearings may extend over a lengthy period. For all these reasons there exists a widespread and grave doubt as to the fairness of decisions of the Board, and a feeling of resentment amongst both employees and employers that they do not stand on equal footing with trade unions in their dealings with the Board.222

221 Ibid. 222 Ibid. -365-

As Finkelman was a "long time advocate of trade unionism," his control over OLRB hearings became increasingly problematic for business.2 Employers also complained that Finkelman controlled the appointment process for new Vice Chairs and that he chose new candidates in order to ensure conformity and dependence on his experience and expertise. As the current "chairman group" overly favoured labour, business concluded that the Board was bias in favour of trade unionism.224 Such biases violated every principle of legal fairness and, they insisted, contributed to the increase of strikes in the province.

Critiques of the "chairman group" were reinforced by business side appointments to the Board. In late 1962, Colin C. Young, former employer member of the Board told a session of the Auto Transportation Association that the OLRB was no longer working effectively and that the entire question of government intervention in labour-management relations needed review.225 Young was especially critical of the way in which the Board

Chair influenced decisions.

In 1950, [the Board] had a chairman, a government employee and two reps each of management and labor. Now we have a chairman, a Vice-chair, and four deputy vice chairmen, for a total of six government chairs, exactly balancing the three employee and management reps. Do not misunderstand me-I am not saying this power has been used or will be used, still less that is was deliberately created. All I am saying is that it now exists and that it therefore represents a subtle and very real and significant change in the character of the Board. Enforcement powers beyond those possessed by any court in the land have been created and vested in the OLRB....[The] administrative tribunal-principle means of government intervention—is outdated in the complex field of modern labor-

223 AO, JPRGC, RG 3-26, Box 179, V.W. Scully, President, the Steel Company of Canada, Memo to John Robarts, December 1962, 2-5. 224 AO, DMLCF, RG 7-54, Box 3, The Toronto Board of Trade, Letter to Leslie Rowntree, 12 November 1964. The Toronto Board of Trade insisted that the Finkelman Board was a "Board for labour." 225 'Dead hand' of the law in labor-boss relations," Toronto Daily Star, 26 November 1962. -366-

management relations. The practical experience of the members of the Board, their bargaining skills, and abilities to hammer out workable compromises fitted them admirably for the task of determining bargaining and settling other practical problems.226

Young concluded by stating that the current certification rules were old and moved slowly. As these complications were confounded by an unaccountable group of administrative chairs, Young argued that the government review OLRB powers and

• • 777 seriously consider transferring greater supervisory power to the courts.

In order to keep a tight rein on the powers of the "chairman group," businesses made several recommendations. They proposed limiting the power of the Board by putting all certification applications to a vote. Business raised this argument because they continued to believe that the OLRB gave unprecedented freedom to industrial unions that were now directly aligned with the NDP. They were also concerned that OLRB biases would allow industrial trade unionism to grow and thus lend itself to shifting political 77R alliances in the province. Sensing that the OLRB was contributing to these trends, businesses turned their attention to the Board's enforcement powers and its ability to regulate strikes. Once again, employers suggested that these powers be removed and returned to the courts. This included leaving all matters pertaining to unlawful strikes, picketing and secondary boycotts with judges. Additionally, business proposed to ban

22 AO, MLCF, RG 7-1-0-710, container B355533, Jacob Finkelman Memo to Leslie Rowntree, 6 December 1963. Countering these arguments, Finkelman sent several memos to government stating that these accusations were unfounded. He stated that there was little evidence to suggest that he had excessive influence over OLRB decision-making. Finkelman also stated that there was no evidence to suggest that the Board was biased in strike and lockout applications or that he unduly favoured trade unionism. He concluded by stating that he "resented the imputation implicit in these comments, that "government" members are second-class members of the Board. The Board is a tri-partite tribunal, not a bi-partisan one." 228 As unionization continued to grow during these years, perhaps the concerns over labour's relationship to the NDP made sense. -367-

the use of union dues for political purposes, eliminate the privative clause, use judges in arbitration decisions, while also opposing "successor rights" in the Act. All of these arguments were coupled with the premise that "the rights associated with private property are entitled to the protection contemplated by the due process of law and that unlawful

990 picketing and secondary boycotts should not be condoned and made illegal."

This level of lobbying was an effective tool to keep government from responding to the growing wave of industrial unrest in the middle of the decade. Indeed, in reforms to the OLRA in 1963, 1964, 1966 the government made only minor amendments to the

Act. In all of these reforms, the Robarts government avoided such contentious issues as union security, successor rights or expanded OLRB discretionary power to address worker concerns. They also continued to allow employers to address wildcat strikes by subjecting these disputes to court-imposed injunctions. In separate memos, the Premier the Minister of Labour, Leslie Rowntree and the Attorney General, A.A. Wishart defended the injunction process because they insisted that there was "no substantiated evidence to indicate that the courts are at present favouring management or labour in connection with Ex parte injunctions." Rowntree and Wishart believed that the purpose of picketing was to inform the public that a strike is in progress. As strikes were primarily viewed as an information exercise, they reasoned that limiting the number of picketers through an injunction did not limit its effectiveness of the strike. In other

229 AO, JPRGC, RG 3-26, Box 179, V.W. Scully, President, the Steel Company of Canada, Memo to John Robarts, December 1962, 20. 230 AO, JPRGC, RG 3-26, Box 189, File Strikes-Exparte Injunctions November, 1964 to December 1965, Personal and Confidential Memo to J.P. Robarts, 16 November 1964; AO, JPRGC, RG 3-26, Box 189, File Strikes-Exparte Injunctions November 1964 to December 1965, A.A. Wishart, Memo to John P. Robarts, 20 October 1964. -368-

words, the Ministers were of the opinion that "when picketing became a blockade it would become a public nuisance and ultimately lead towards violence." 31 In taking this position, the government maintained that picketline violence was initiated by the union and thus belonged in court.

The government avoided tackling the most contentious issues—including removing the privative clause from the Act—in the minor amendments made to the

OLRA in 1963, 1964 and 1966. The decision to keep the privative clause in the Act, however, was not a situation in which the government chose to protect the rights of trade unions. Rather, the state's relative autonomy gave it the freedom to identify that the employer challenges through the courts in the 1950s had weakened the Board. When employers questioned the biases of Finkelman, they were already capable of challenging the Board on questions of natural justice or over its jurisdiction. As the privative clause had been virtually made redundant after the Gale decision, there was simply no need to remove it. What is more, at the height of the strike wave between 1965 and 1971, the government continued to rely on judicial interpretation of injunctions to regulate strike activity in the province. This access to the courts answered the critiques of business and reinforced the position that the OLRB was a minor partner in the regulation of industrial relations in Ontario. Clearly the effects of business lobbying had an impact. By the

231 AO, JPRGC, RG 3-26, Box 189, File Strikes-Exparte Injunctions November 1964 to December 1965, A.A. Wishart, Memo to John P. Robarts, 20 October 1964. 232 AO, JPRGC, RG 3-26, Box 189, File Strikes-Exparte Injunctions November 1964 to December 1965, A.A. Wishart, Memo to John P. Robarts, 20 October 1964. The Attorney General concluded that "it is worthwhile to remember that courts will always intervene in questions of jurisdiction [and] this...is especially so in those unusual cases where a Board decision threatens.. .the public welfare." 233 See Laskin, "Certiorari to Labour Boards," 991. -369-

middle of the decade, the OLRB was squeezed between the opposition of employers and judicial hostility over the right of unions to strike.

Conclusion: Ontario Law, Politics and Industrial Relations in the 1960s

By the middle of the 1960s, the multiple tensions surrounding the law of labour relations had been in existence for over twenty years. By the time that the provincial government amended the OLRA in 1960, no piece of legislation in Ontario had undergone more study or debate. Having undergone a two-year investigation by the Select Committee, the provincial government was under pressure by businesses to amend the OLRA in order to make unions more accountable to judicial scrutiny. In the government's basic philosophic obsession with constructing balance in the Act, the Tories approached the Select

Committee's recommendations by treating organized labour and businesses as equal partners in industry. In other areas, the government accepted the argument that trade unions—buttressed by legal protection in the OLRA—surpassed the power of business.

In order to address this imbalance, the government erected new barriers to attain OLRB certification, while making it more difficult to go on strike. The new legislation also made it easier for employers to discriminate against legitimate union activity in the workplace. These new rules also constrained union organizing by erecting significant barriers for unions to expand in non-traditional sectors. These barriers were justified because the 1960 reforms to the OLRA attempted to balance the collective capacity of workers to strike against employers' entitlement to oppose union organizers in their plants. The Tories were able to claim their approach was neutral because the OLRA -370-

appeared less restrictive than comparable legislation in British Columbia, Newfoundland

and, most importantly, the recommendations of its own Select Committee.

The most effective tool in maintaining this balancing act was ensuring the OLRB

was subject to judicial supervision. As the Royal York and Toronto construction strikes

demonstrate, the contract rights oriented approach of the judiciary more often than not

protected and promoted the interests of employers.

The government claimed neutrality in these disputes because its legislation placed restrictions on the behaviour of both labour and employers, especially in the time leading up to and during a strike. In practice, however, these so-called balanced rules advantaged employers and disadvantaged unions. While the Toronto construction strike showed that the government would deal harshly with unions that struck illegally, the Royal York strike suggested that these same rules did not protect workers from the illegal actions of employers. In examining the internal documents surrounding the 1960 OLRA, it is clear that the government sought to address class antagonisms by changing the institutional configurations associated with the goals of industrial peace and union responsibility. To be sure, the government believed that they were working to protect employers and unions from using the OLRA to step on the rights of the participants involved. Nevertheless, in examining the government's intervention in the Royal York and Toronto construction strikes, the restrictions imposed on strike activity in the OLRA worked to benefit employers at the expense of the right to strike.

Attempts to limit the right to strike continued throughout the 1960s. In particular, business continued a twenty-year demand to transfer power to regulate strikes from the - 371 -

OLRB to the courts. This demand rested on the belief that courts were far more willing

to rule in favour of business over the OLRB's desire to expand trade union freedoms.

The necessity of such a position was becoming even more important by the middle of the

1960s, as labour strife reached levels not seen since World War II. At the heart of the

working class revolt was the notion that courts, not the OLRB, protected business

interests against legal and illegal strikes. As business testimony demonstrated during the

Select Committee hearings, employers believed that the OLRB was an administrative tribunal designed to protect and expanded the rights of labour. This campaign went so far

as to suggest that the Chair and the "chairman group" were openly bias and siding with

labour. Business thus demanded that the Board be subjected to greater judicial oversight.

For their part, labour continued to see the OLRB as an ally in their struggles.

While by no means united in this struggle, there is little evidence to suggest that the labour movement in Ontario—of any organizational stripe—ever saw OLRB discretionary power as a threat to unionization in the province. Rather, it has been demonstrated that employers never accepted the OLRB's positive interpretation of union rights. By the 1960s, the judicialization of OLRB procedure and the demand to appeal

OLRB decisions was very much a project imposed by employers and sympathetic

It is perhaps not a coincidence that employer arguments to weaken the jurisdiction of the OLRB in the early 1960s came on the heals of the Ontario Court of Appeals decision in February of 1963, in Hersees of Woodstock Ltd. v. Goldstein. 38 D.L.R. (2d) 449 (Reversing 35 D.L.R. (2d) 616). In this case, the court ruled that secondary picketing of a retailer handling goods from a manufacturer with who a union is on legal strike is illegal per se at common law. The level of contempt that the court held for the labour union in question is significant. Here they suggested that all forms of secondary picketing are illegal even if it is, "...carried on peacefully for the purpose of communicating information, such right as there might be to carry it on must give way, especially in a small community where there is considerable labour organization, to the retailer's right to trade which is a more fundamental right for the benefit of the community at large than the right of secondary picketing which is exercised for the benefit of a particular class only." -372-

members of the government. As labour continued to oppose judicial oversight, they were unwilling to concede greater powers to the courts to administer the employment relationship. Yet, employers continued to insist that courts play a role in checking OLRB discretionary power. Indeed, employers were successful in maintaining the power of courts to regulate strikes through the power of the injunction. Clearly, this went against the supposed goals of the OLRA, which was designed to keep issues of labour- management relations free from government or judicial interference. At this point, so- called balance in labour relations implied that courts limited the size and scope of strikes while the OLRB was relegated to be a junior partner in these areas.

By the middle of the 1960s, the promise of industrial democracy—so central to creation of the OLRA and the OLRB—only existed through a judicially imposed lens. As has been demonstrated in this chapter, this occurred because employers were able to use their close relationship with the provincial government to constrain the extension of trade union rights in the province. In cases where employers were unsuccessful in lobbying for changes to the OLRA, legislative changes usually reinforced the government's ability to enforce labour peace. Rarely did legislative reforms allow unions to challenge the status quo and it never favoured the extension of unionization in the province. Rather, government reforms occurred through restrictions on the right to organize and bargain through the OLRB. Employers were also successful in using the courts to limit the right of trade unions to strike. By the middle of the 1960s, it was impossible to argue that legislative changes in the post-war period had constructed an equitable compromise between labour and business in Ontario. -373-

Chapter 7 Conclusion: Rethinking the Politics of Post-War Labour Law in Ontario

Introduction

In 1967, D.M. Montgomery, President of the Toronto and District Labour Council, was asked by former Supreme Court Justice Ivan Rand why the labour movement was hostile to judicial interpretation of labour law. Montgomery responded by stating that the issue was not about the ideals of law, but rather, "what the law is for a poor man."1 In many ways, Montgomery's statement is at the centre of this thesis. On the surface, post-war labour law seemed to represent a shift in how government, courts and employers approached the rights of working people to organize, bargain and strike. In reality, however, the politics of post-war labour relations suggests that the law was significantly influenced by business interests that continued to oppose the expansion of unionization.

Particularly, this study has examined how the political struggle between workers, unions, business and the state in the two decades following the end of World War II shaped labour relations in Ontario.

In examining these struggles, the thesis has concentrated on the politics surrounding the OLRA and its administration by the OLRB. I have argued that these institutions represented a genuine victory for workers and unions after the prolonged struggles during the war. Notwithstanding this early victory, the central argument of the thesis has been that business was able to use its influence with the provincial government

'AO, Royal Commission on Labour Disputes (The Rand Commission), RG 18-152, Box 3, Container B227098, Testimony of the Toronto & District Labour Council, 19 January 1967, 644. -374-

to limit the fully progressive potential of these institutions. Additionally, business was able to use the courts effectively, which limited the ability of the OLRA and the OLRB to expand the rights of working people and their unions. As a result, union expansion in the province was curtailed, especially in sectors where unions were not already present. As I elaborate below, these dynamics are not only important from the standpoint of understanding historical events, but continue to play a significant role in shaping the dynamics of labour relations in the present period.

This chapter is divided into three sections. The first section will review the central arguments outlined in the thesis. Specifically, I will examine how participants in the labour relations community shaped the OLRA and its administration by the OLRB in the immediate post-war period. I will elaborate on my conclusion that businesses were able to reduce the capacity of the OLRB to expand on union rights, especially the capacity to organize. In the second section, I will explore how business influence over the OLRA and the OLRB continued throughout the 1960s and the 1970s. Although many have interpreted this period as one of excessive union growth fuelled by progressive labour law, I suggest that this interpretation is too narrow to explain the complex interaction between business, workers, organized labour, and the state. Through familiar tactics of appealing to sympathetic politicians and courts, business was able to redefine fairness and balance within labour law in such a way that protected its right of property over the expansion of union rights. Ultimately, the success of business in this struggle limited the ability of unions to expand on the early freedoms in the OLRA and its administration by -375-

the OLRB. In the final section, I argue that similar pressures helped to shape the reforms in the 1980s and 1990s and, ultimately, remain significant today.

Mapping the Post-War Period in Ontario

This thesis has challenged traditional narratives on the history of labour relations law in

Ontario. Conventional interpretations of the post-war era suggest that progressive state legislation—encouraged by newly minted business attitudes towards organized labour— openly recognized trade unions in the workplace. In return, labour conceded to abandon the collective capacity to strike, except after the conclusion of a collective agreement. At the centre of this purported compromise were new institutions that recognized the inherent rights of workers to organize and strike. In Ontario, government policy set out to regulate the conditions between workers, unions and business by codifying the law in a new Labour Relations Act, which was to be administered by the OLRB, a neutral, tripartite administrative board.

Initially, the OLRB was designed to have the administrative freedom to rule on issues pertaining to certification, collective bargaining and the right to strike. One of the most significant reforms gave the OLRB power to eliminate company unions. These new laws were also crafted in a manner to limit the judiciary from interfering with the OLRB.

The Board was afforded this insulation from judicial interference because organized labour saw judicial interpretation of the law as hostile to the expansion of collective union rights. Modelled on the Wagner reforms in the United States, the OLRB derived its legitimacy from its independence from government and the courts. The Board was staffed by labour and business representatives, as well as neutral, non-partisan experts, usually -376-

labour lawyers or professional public servants. The OLRB's mandate was inscribed to protect collective bargaining in Ontario. Given these realties, many commentators interpreted the changes as reflecting a new era of industrial pluralist democracy.

As was highlighted in chapter two, supporters of industrial pluralism adopt the position that labour law adequately mediates the balance of power between business and unions. Using liberal interpretations of the law within capitalist economies, these institutional scholars suggest that labour-management antagonisms can be balanced by the neutral arm of state legislation, administrative boards and the courts. In response, critical scholarship interprets the post-war construction of labour law as transforming the nature of workplace conflict. Whereas workers previously relied on collective solidarity and militancy to challenge employer injustice, in the post-war era, workers turned to the law to protect their interests. In doing so, critical scholars argue that union militants were displaced by union bureaucracy and legal experts in order to defend their rights. In identifying these limitations, many critics suggest that the legalized nature of post-war labour regulation created a new framework through which business could, and did, control workers.

A great deal of the criticism surrounding the post-war compromise focuses on the regressive role the judiciary played in its interpretation of labour law. As this study has argued, however, the concentration on the judiciary alone has been too narrow. Given the tripartite nature of the OLRB, there was a general feeling among workers and trade union

2 Fudge and Tucker, Labour Before the Law. See also Panitch and Swartz, From Consent to Coercion, 51- 83; 208-17. -377-

leaders that it could significantly challenge the power of employers to defeat trade unions.3 Interestingly, those few commentators who have examined the role of the OLRB have concluded that the OLRB has been compromised by liberal biases, which views unions and employers as relatively equal.4 Within this line of reasoning, the OLRB reinforces the contradictions inherent within capitalist society: in the last instance, it will be blind to the structural inequality within the market.5 While the OLRB can (and often does) constrain the rights of employers, its ultimate purpose in the eyes of these critical scholars is to preserve stability and to constrain the capacity of trade unions to challenge the political and economic status quo.6

While the ideological underpinning of law within capitalist societies does constrain the capacity of workers and trade unions, I have suggested that the OLRA and the OLRB cannot be understood as a legal barrier to trade union freedoms in Ontario.

Rather, an analysis of the politics surrounding the OLRA and the OLRB implies that business be viewed both as posing a substantial threat to the political and economic status quo. In examining unpublished government documents, correspondence between employers and government, judicial challenges and testimony before government commissions, I have argued that the OLRB had a great deal of potential to expand trade

3 Paul C. Weiler, "The Administrative Tribunal: A View from the Inside," University of Toronto Law Journal 26 (1976), 193. 4 Drache and Glasbeek, The Changing Workplace, 58. 5 Heron, The Canadian Labour Movement, 77-8. Heron suggests that the basic structure of the post-war compromise, including those of labour boards, "hamstrung unions further...[as] it was evident that the basic legal framework of labour relations could be fleshed out with administrative detail that could make forming and using unions difficult..." 6 Drache and Glasbeek, The Changing Workplace, 97. See also, Gary Svirsky, "The Division of Labour: An Examination of Certification Requirements," Osgoode Hall Law Journal 36 (1998), 567-596. -378-

union freedoms after the war and, ultimately, to further notions of genuine industrial democracy in Ontario.

Business in all sectors, however, was hostile to this potential and worked actively to undermine it. As was shown in chapter three, business used close relationships with government to delay and stall the expansion of collective bargaining in Ontario. When union strike activity made labour demands impossible to ignore, business called for increased judicial oversight over the OLRB, while also calling for significant limitations on the right to strike. Meanwhile, organized labour sought to expand on the democratic potential of the OLRB, pushing for increased discretionary power to protect union organizing, bargaining and the right to strike. On the surface, the Ontario government sought to "balance" these interests by giving the OLRB greater deference to interpret the

OLRA free from interference by government officials or the courts. In some ways, this neutrality benefited certain segments of the working class, especially unions in the industrial sectors. In its early stages, the Board was given the authority to certify unions free from employer interference. In almost every instance, however, pressure from organized business limited the capacities of the OLRA and the OLRB to expand on union freedoms won after the war.

In order to understand these complex events, I have argued that the politics of class and class antagonism directly shaped the OLRA and the OLRB's regulation over post-war organizing, bargaining and the right to strike. In coming to this conclusion, I relied on Karl Klare's analysis into how law, class and state power influence labour relations and administrative institutions. I argued that institutions are not simply created -379-

by enlightened policy makers, but are instead the product of sustained struggle between classes, officials and institutional forces within the state. In Klare's analysis, American business was able to rely on conservative judges on the American Supreme Court to soften the edges of the National Labour Relations Act. In those cases, judges constrained the extension of industrial democracy by giving broad interpretation of employers' right of property and individual employment contracts. These events, Klare maintains, limited the participatory nature of unionization and collective bargaining that was promoted by the Wagner reforms. Ultimately, these litigation strategies weakened the NLRB's ability to resist employers' opposition to trade unions.

I make similar observations in examining organized businesses' response to the establishment of the OLRA and the OLRB. Throughout the post-war period, employers sought to dull the edges of the OLRA, despite the fact that its provisions on conciliation and the right to strike were far weaker than the Wagner legislation in the United States.

In Ontario, employers interpreted any attempt to expand on union freedoms as the promotion of unionization. Under these circumstances, the rights in the 1950 OLRA were predicated on an ideological understanding of fairness and balance, which was defined by businesses as eroding individual rights. In this context, "individual rights" were centred on individual rights of property and the individual employment contract. Any legislative schemes that sought to challenge these constructs were then interpreted as altering fairness and balance in the law. Throughout the period, business arguments on individual rights were highly influential in shaping the OLRA, and by extension, its administration by the OLRB. By the end of the 1950s, the struggles over the balance of power saw - 380 -

employers use judicial interpretation of the law to defeat trade unions and narrow the discretionary power of the OLRB. Paradoxically, many unions embraced the law to protect the freedoms they had won or to gain advantages over jurisdictional disputes with other, usually Communist controlled unions.

Chapter three chronicles these events by examining post-war labour relations from 1943 to 1950 in the province of Ontario. As a case study, Ontario made sense because it was the largest and most industrialized economy in Canada. Given these realities, the industrial relations regime in the province was influential in shaping labour relations in the rest of the country. I suggest that this period represented an ongoing struggle by workers and their unions to expand on the promises of the PC 1003 model: to entrench and deepen the rights of trade unions to organize, bargain and to strike. In the early 1940s, the Liberal government under the leadership of Mitchell Hepburn introduced the province's first provincial code, but the reforms limited the advancement of

Wagnerism in the province. These limitations were most notable in the creation of the

Ontario Labour Court, staffed by judges of the Ontario Superior Court.

When the Tories scrapped the Court and replaced it with the OLRB in 1944, there was a general, if slow acceptance of collective bargaining by the new Progressive

Conservative governments of George Drew and Leslie Frost. Notwithstanding the creation of the Wagner board, the Progressive Conservative governments in the 1940s and 1950s only embraced PC 1003 when working-class struggles made it impossible to ignore. This explains why it took the governments of George Drew and Leslie Frost seven years to introduce the first independent OLRA in 1950. Notwithstanding the - 381 -

promises of establishing the most fair and equitable labour legislation in the country, the

new Act limited unionization and collective bargaining in the province. Based on

common law notions of individual rights, the 1950 OLRA forbade unionization in certain

sectors, including in the public service and in agriculture. In other sectors, the Act made

unionization cumbersome, especially in the precarious services sectors. This was most noticeable in union failures to organize clerical staff, construction workers or hospitality workers. The limits in the Act suggest that the government was only willing to extend trade union freedoms as far as was possible without alienating employers. In this regard, the post-war industrial relations regime in Ontario should not be understood as a new, stable compromise between business, labour and the state. Rather, the Act reflected a fragmented policy, which subverted collective bargaining rights by extending the rights of employers to resist unionization.

The examination of the new labour relations regime is continued in chapter four.

Despite the fact that employers were successful in restricting the coverage of the 1950

OLRA, the new Act was contested by employers. In the early part of the decade, these challenges were directed at the OLRB. An important part of this strategy was to reduce the capacity of the Board to certify unions in the province. In so doing, employers turned to the courts to stall OLRB decision-making over issues of certification and bargaining unit structures. Although the OLRA prevented the right of appeal on Board decisions, the intensity of the campaign waged by Ontario businesses forced the government's hand.

The result was an erosion of OLRB discretionary power. Although the unions raised several complaints—including conducting protests and a threatened boycott of the Act— -382-

the government's refusal to defend the Board imposed greater legal restrictions on union activity. So evident did this become, that by 1957, Secretary Treasurer of the OFL pointed to employer challenges to the Board as placing unions "in the position where they had to tailor their operations.. .with a view.. .of how they are going to make out once they got to court."7 From this point forward, judicial authority over the OLRB represented an important tool for employers to constrain unionization in the province.

A challenge to the OLRB's discretionary powers represented only one tactic used by employers to resist unionization. In other areas, employers used the Act's ambiguity on union security to limit union organizing and meaningful collective bargaining.

Struggles over union security led to a series of strikes in the mining sectors in the early

1950s. The mining companies were able to utilize various tactics to stall the extension of union security agreements throughout the sector. While the Steelworkers lost this battle, they continued to pursue union security in order to defeat the Communist leaning Mine-

Mill and Smelter Workers. An important part of this strategy was to seek greater legal protection to drive a wedge between CLC and non-CLC unions. Ironically, Mine-Mill leadership also embraced the law and order provisions in the Act to protect themselves against these raids. The result was both unions embracing legal protection to secure themselves in the mines. Ultimately, this embrace of the law played directly into the interests of business who argued that union security agreements eroded individual rights.

By appealing to these legal rights, unions were compelled to engage employers in a way

7 AO, PSCLR, RG 49-138, Box C 90, Testimony of the Ontario Federation of Labour, 1 October 1957, 4089-90. -383-

that limited their collective capacity to withstand employers determined to defeat legal strikes.

Tension over the function of the OLRA and the OLRB resulted in prolonged investigation of the Act in the late 1950s. As is covered in chapter five, these hearings demonstrated the confines of employer acceptance of the so-called post-war compromise.

During the Select Committee process, every employer group in the province argued that the 1950 OLRA undermined the traditional balance between unions and employers.

Throughout the decade, employers insisted that the post-war regime of industrial relations eroded individual rights of property. Based on this fact, employers argued that unionization ran roughshod over an individual's right-to-work. In order to correct this problem, employers lobbied for new provisions to resist unionization, which included moving industrial relations disputes to court. As they had in the past, employers concluded that judges were sympathetic to their arguments over individual rights. By extension, employers understood that judicial decisions also limited the capacity of the

OLRA and the OLRB to promote unionization. Trade unions, meanwhile, used the hearings to outline the limitations in the Act, calling for progressive reforms to both institutions. These arguments included limiting judicial decisions from eroding the capacity of trade unions to organize and to strike. Trade unions concluded that the post­ war regime of industrial relations fell significantly short of the promises made by the

Drew and Frost governments in the immediate post-war period.

Notwithstanding the position of unions, the arguments put forward by employers had significant influence on the Conservative and Liberal members of the Committee, -384-

many of whom agreed that unions had grown too powerful in Ontario. In their final

report, the Select Committee recommended greater legal freedoms for businesses to resist

unionization, while making organizing more legally arduous. Consequently, Ontario's

labour movement was forced to defend the existing legislation in order to hold off attacks

from the right-wing Liberals and Conservatives. When the Select Committee submitted

its final report to the Legislature, it was clear that a significant component of the

governing party had accepted employers' arguments that trade unions overly benefited

from post-war labour law. In order to correct this problem, the Committee proposed a

significant redrawing of the legislation in order to bring balance back to the Act. This

interpretation of balance had long-term implications for understanding labour relations in

Ontario, as it relied on employer interpretations of individual rights of property. As post­ war labour law had unfairly restricted these rights, the Committee's report called for

additional restrictions on the rights to organize, bargain and to strike.

As is demonstrated in chapter six, the reforms to the 1960 OLRA bowed to the pressures of employers, including expanding on businesses rights to stall unionization drives and limit the right to strike. While unions continued to push for greater freedoms in the OLRA and more discretionary power to the OLRB, the amendments made to the

Act mainly reflected what employers were demanding. By the end of 1960, government extended employer powers to defeat union drives and made it more difficult to certify new unions. The Board was also further legalized, and its rules of procedure were more strictly aligned with those found in court. These changes had the effect of removing union organizers and militants as the foundation for building new unions, replacing them -385-

with labour lawyers and bureaucratic staff. The legalization of the Board was also intensified when employers launched a campaign to challenge the neutrality and pro- labour leanings of the Board chair, Jacob Finkelman. These changes had long-term implications for Ontario's labour movement and its dealing with the new provincial government of John Robarts. In strike after strike, the government refused to defend its own legislation unless absolutely forced by the strength of workers. When employers started bypassing the OLRB to capitalize on judicially imposed injunctions in order to break strikes, the government was not willing to address these issues through legislation.

Instead, the government repeatedly deferred to the authority of the courts.

By the beginning of the 1960s, the OLRB could not be said to exist independently of judicially imposed rules. As unions were incapable of reversing these trends, the only alternative was to attempt to survive and grow within the highly regulated system. The result was an extremely limited regime of industrial relations in which the OLRB and the courts imposed significant restrictions upon unions. Why did so many trade union leaders embrace the limited regime of industrial legality? One reason may be that this regime offered some protection against employers who continued to resist unionization in the province. The law also gave unions security against inter-jurisdictional raids, especially for smaller and weaker unions. While the embrace of the law led to a highly rigid, hierarchal and bureaucratic form of trade unionism, it also provided important benefits, including protection from hostile employers. In the end, the struggles of the 1940s and

1950s proved to have a lasting influence on the structure of labour relations in Ontario.

Despite the promises of an earlier generation of workers, employer opposition to the -386-

OLRA and the OLRB explains why unions were unable to expand in the post-war period.

These challenges continued throughout the next three decades.

The Height of Post-War Industrial Relations? 1960s and 1970s

In many ways, employers' demands for greater judicial oversight of labour relations laid the groundwork for labour unrest in the 1960s. In this period, judicial oversight of union behaviour reinforced the highly rigid legalized form of labour relations that was solidified in the 1950s. The rise in strike activity represented an unprecedented level of working class unrest, as increasingly large percentage of all strikes were illegal, defiant of law and order, and violent.8 The general rise in wildcat strikes also reflected a generational shift in the Canadian labour movement, as younger workers challenged the established order, striking over work conditions, salaries, leisure time and hours of work.9 This trend was particularly noticeable in Ontario, accounting for 51 per cent of all strikes, 45 per cent of workers involved and 41 per cent of all person-days lost due to strikes in 1965 and 1966 alone.10 In particular, workers rebelled against employers using the newly minted provisions in the Judicature Act, who relied on court-imposed injunctions to end strikes.

Jamieson, Times of Trouble, 398-403. According to Jamieson, in 1965 were 149 (21 percent) of the total of 501 strikes were wildcats. In 1966 210 (33 percent) of 617 strikes were wildcats. In Ontario, 1965 witnessed 37 wildcat strikes. In addition to strikes waged against employers, many of these strikes were also against trade union leadership at the local, national and international levels 9 Palmer, Working Class Experience, 315-20 and Panitch and Swartz, Consent to Coercion, 16-7. 10 AO, MLGC, RG 7-54, Box 12, container B270632, Gerald Starr, Work Stoppages in Ontario, 1947- 1967, Research Branch Ontario Department of Labour, May 1969, 4. -387-

As strikes grew in frequency, it became clear that employer antagonism and judicial antagonism over strikes was fuelling working class unrest in the province.11

As it had in the past, the provincial government placed most of the blame for the unprecedented level of strikes on workers and the "loss of leadership in the trade union movement."12 The government also condemned the "disturbing trend" of workers to defy the "agreed upon" law and order provisions on the picketline. By the middle of the 1960s, the government concluded that it would restrict the freedom of trade unions to strike, depending "on how responsibly the parties to collective bargaining approach their confrontations."13 This final warning met with universal applause from employers, who commended the government's position on the proper role of law and order during labour disputes.14 In order to address the unprecedented level of workplace conflict, the Ontario government established a Royal Commission on Labour Disputes on 9 July 1966, headed by former Supreme Court Justice Ivan Rand.15 As the majority of wildcat strikes in the province were over the law-and-order provisions in the 1960 OLRA, the Rand

Commission's primary objective was to defend and preserve the system of industrial

11 Carothers, Labour Injunction in Ontario, 13-4. On this question, see Sangster's analysis, "We No Longer Respect the Law," 75. 12 AO, JPRGC, RG 3-26, Box 175, Statement by The Honourable H.L. Rowntree on the Introduction of The Department of Labour 1966-67 Estimates, 17 March 1966, 16-7. 13 Ibid. 14 AO, MLGC, RG 7-1-0-1145, Container B359089, A. Dick, President and General Manager of Western Freight Lines, Letter to Leslie Rowntree, 23 March 1966. Stated the company: "It is very heartening to have some of these things revealed in such a positive way publicly and I am sure that most of the employers will applaud your recommendation that the responsibility be defined and applied to unions...There no doubt, was a time when unions could have been put at a disadvantage through lack of facilities or fines to fight the court action of an employer but in my opinion this period has gone and we are now facing an entirely different situation with towering strength on both sides." 15 Sangster, "We No Longer Respect the Law," 71-87. - 388 -

legality.16 As employers were instrumental in crafting the industrial relations system in a way that preserved traditional rights of property, they took an unprecedented level of interest in defending the role of judges in regulating union organizing, bargaining and the right to strike. Employers also sought to reduce the capacity of trade unions to strike in the province.

The Rand Commission lasted for over a year and a half and received reports from provincial, federal and international experts, hearing testimony from over sixty-five participants including every major union in the province alongside all major business groups, lawyers and labour relations experts. In his final report, Rand defended the system of industrial relations crafted since the end of the War and called for further legal restrictions on the right of trade unions to picket and to collectively bargain. He also called for a ban on mass picketing.17 While critical of the manner by which management obtained injunctions ex parte, Rand nevertheless defended injunctions as a tool to punish illegal union behaviour. He also questioned the importance of strikes and recommended incorporating trade unions so that they could be sued in court. In the end, the major recommendation of the report—the creation of an all powerful tribunal to impose binding arbitration during industrial disputes—was condemned by labour and applauded by businesses in the province.

Rand's report represented a new direction for post-war industrial relations in

Ontario. As Rand had lent his name to a major pillar of the post-war system of collective

16 Ibid., 71. 17 Ivan Rand, Report of the Royal Commission Inquiry into Labour Disputes (Toronto: F. Fogg, Queen's Printer, 1968). Sangster notes that this recommendation was supported by all the major newspapers in the province. On these questions, see Sangster, "We No Longer Respect the Law," 82. -389-

bargaining, his condemnation of union power in the 1960s represented a major victory for employers in the province. Contentious as it was, the Rand report was the catalyst for the eventual amendments to the OLRA in 1970. While Rand's recommendation for the creation of an all encompassing industrial relations dispute tribunal was shelved, the new

OLRA made several reforms to limit strikes in the province. The new legislation proposed an Ad Hoc Industrial Inquiry Commission with terms of reference made by the

Minister in order to explore and make recommendations about the consequences of lengthy strikes. This reform paved the way for binding arbitration to settle lengthy disputes. Further restrictions also made it unlawful for any union to "threaten" an illegal strike, which put further pressure on union leadership to police militant action by rank- and-file members. The new legislation also altered the certification procedures, raising the level to attain automatic certification to 65 per cent while lowering the number to obtain a certification vote to 35 per cent.18

An important change to the Act was also made to address the Supreme Court's decision in the Royal York case earlier in the decade.19 The new section guaranteed that legal strikers had the right to reclaim their jobs within six months of the start of the strike, providing that these jobs were still available or "until the employee has returned to work, taken employment elsewhere, died or become unemployable." The government defended this provision as a "pro-labour" reform because it protected the right of individual

Wilfred List, "Bales' search for the middle ground in labor bill, "Globe and Mail, 7 July 1970. These levels were also endorsed by the Deputy Minister of Labour, Tomas Eberlee. See Thomas Eberlee, "The Role of Government in the Labour Relations System in Ontario," Canadian Personnel and Industrial Relations Journal 14 (March 1967), 34-5. Adams, Canadian Labour Law, 67. -390-

workers to protect their jobs during a prolonged dispute. In a series of private memos to the Minister and cabinet, however, government officials explained that this reform actually assisted employers engaged in lengthy strikes because it "favours the individual employee...gives him support, if he sees that the strike is being lost, in abandoning the

9 1 union's position and going back to work."

The changes had important implications for labour relations in Ontario.

According to a report conducted for the Ministry of Labour, in the year immediately following the implementation of the 1970 OLRA, applications for certification dropped more than fourteen per cent and an additional eighteen per cent in the non-construction sector.22 These changes made it exceedingly difficult to receive outright certification and erected barriers to win certification votes. After several years of falling unionization rates, the Act was brought back to its pre-1970 form because of a minority parliament in

1975.23 The experience with mandatory voting, however, demonstrates that employers

AO, JPRGC, RG 3-26, Box 180, D.S. Keen President of the Ontario Division of the CMA, Letter to Regarding Bill 167—An Act To Amend the Labour Relations Act, 9 October 1970. The CMA wrote to the Minister asking that this section be deleted because it limited an employer's ability to promise security of employment for workers "to cross a picketline which inevitably exposes him to danger and/or ridicule." 21 Quoted in Sangster, "We No Longer Respect the Law," 83. 22 V. Piliotis, The Impact of the Required Level of Employee Support on Securing Union Certification (Toronto: Ontario Ministry of Labour Research Branch, 1975), 5-8; 9-18. The numbers creped back to pre 1970 levels by 1973 but there was a general increase in failed certification votes as well. Piliotis reports that the success rate of certification elections filed with 35-45 per cent of signed cards was 32 per cent. The unions were also having difficulty reaching the 65 per cent range for automatic certification as employers were digging in their heels around the new certification rules, preferring to fight a vote. Additionally, Piliotis found that union certification determined by vote showed that there was a substantial drop from initial support for the union after the vote. Piliotis found that this occurred because of anti-union campaigns launched by employers. 23 Rose, "Ontario," 25. According to Rose, the 1975 reforms were also conciliatory to labour because the Premier had appointed federal NDP leader David Lewis' law partner, Tim Armstrong to chair the OLRB. In 1976, Armstrong was appointed Deputy Minister of Labour and was replaced by the more moderate D.D. Carter. -391-

continued to influence the form and content of industrial relations in Ontario. As the 1970

Act was crafted as a response to the strike levels in the 1960s, it was clear that

government accepted the position of business that legal restrictions had to be imposed on

trade unions in order to restrict the right to strike.

Two Steps Forward and Multiple Steps Back: 1980s and 1990s

It was this recurring notion of balance that defined revisions to the Act in the late 1980s

and early 1990s. Although the government of adopted the Rand formula in

1980 and amended the OLRB's discretionary powers in 1984,24 few changes occurred within Ontario's industrial relations system until the election of the NDP in 1990. The

NDP's amendments to the Labour Relations Act—while advancing several long-standing

issues advanced by trade unions since 1943—also stopped short of progressive reforms in

other provinces.26

Pat McNenly, Union dues check-off called long overdue," Toronto Star, 5 June 1980. See also "All must pay dues to union," Toronto Star, 18 June 1980. The amendment was introduced by Labour Minister whom conservative author Claire Hoy has described as "easily the most left-wing ideologue in the Davis cabinet." See Hoy, Bill Davis, 153. The new bill promised to secure trade union security while leaving some provisions for members to avoid paying union dues for religious reasons and did not apply in the construction industry. Wilfred List and Stan Oziewicz, "Issue in bitter Ontario strikes, PC's bill seeks forced dues checkoff," Globe and Mail, 4 June 1980. In what had become a hallmark of Tory interpretations of fairness and balance, the new bill also gave employers the right to demand a Ministry supervised vote on the last contract offer before or after a strike begins and allowed replacement workers to vote on a final contract. 25 Adams, Canadian Labour Law, 70. The 1984 amendments gave the Board explicit jurisdiction to deal with wildcat strikes (or even the threat of illegal strikes) and gave employers subjected to such action the ability to seek relief through the Board. The reforms also permitted the Board to respond to illegal agreements signed with company unions, while also making minor amendments to voting procedures in the construction industry. 26 For an overview, see Ontario Ministry of Labour, Proposed Reform of the Ontario Labour Relations Act: A Discussion Paper from the Ministry of Labour (Toronto: Ontario Ministry of Labour, November 1991); Ontario Ministry of Labour, Reform of the Labour Relations Act, Cabinet submission by Robert Mackenzie, Minister of Labour, 7 August 1991. Harish C. Jain and S. Muthuchidambaram, Ontario Labour Law Reform: A History and Evaluation of Bill 40 (Kingston: Industrial relations Centre Queen's University, -392-

Given the historical relationship between the social democratic party and the organized labour movement, the expectations that accompanied the changes to the OLRA were immense. Surprisingly, the NDP's amendments to the OLRA took over two years of consultation and delay. The government's amendments, among other things, created a

"purpose clause" promoting collective bargaining27 and expanded the rights of unionization to professional occupations, security guards and domestic workers.28 The government also gave third parties some access to private property for the purposes of organizing (most notably shopping centres). Additionally, the Bill gave the OLRB discretion to "combine" bargaining units, allowing part-time and full-time workers in the same company to be joined into a single unit.29 The NDP also reformed the grievance arbitration process, extended union rights to apply to the OLRB for first contract arbitration, expanded successor rights, expedited the hearing process before the OLRB, eliminated the one-dollar card fee to sign a union card and abolished employer-inspired petitions before the Board. The legislation also altered the certification procedure, allowing unions to apply for certification votes where 40 per cent of employees were members of a union (previously 45 per cent). Most prominently, the NDP government

1995); Harish C. Jain and S. Muthuchidambaram, "Ontario Labour Law Reforms: A Comparative Study of Bill 40 and Bill 7," Canadian Labour & Employment Law Journal 4 (1996), 311-330. 27 Panitch and Swartz, Consent to Coercion, 171. 28 Agricultural and Horticultural workers were not included in the new Act. After four years of "study and consultation," these workers were given unionization rights with the passage of the Agricultural Labour Relations Act, 1994. The Act was subsequently repealed after the election of Mike Harris in 1995. 29 For a discussion of this process, see Christopher Schenk, "Fifty Years After PC 1003: The Need for New Directions," in Cy Gonick, Paul Phillips and Jesse Vorst, eds., Labour Gains, Labour Pains: 50 Years of PC 1003 (Halifax: Fernwood, 1995), i97-8. -393-

restricted the use of replacement workers during a lawful strike or lockout (anti-scab

legislation).

On the surface, many of these reforms brought the Ontario Act into line with

other jurisdictions and were almost identical to recommendations made by social

democrats to "move beyond the Wagner Act."31 The fact that anti-scab provisions were

included in the Act—in any form—was enough to convince employers that the philosophical underpinning of balance in the Act had been abandoned. Yet, what was particularly remarkable about the final content of the NDP's reforms was how much they were influenced by the familiar notions of fairness and balance in industrial relations.

Particularly, the NDP's reforms were moderated by opposition from three large business coalitions—Project Economic Growth, The All Business Coalition and the More Jobs

Coalition—claiming to represent 85 per cent of private sector employers in Ontario.32

Returning to the same arguments that employers had raised since 1943, these groups maintained that the reforms proposed by the government significantly eroded individual rights of property and contract, while also severely crippling the economy. These arguments convinced the government to eliminate earlier proposals requiring employers to disclose financial information to union organizers and limited union organizers direct access to employer property. The government also balked at expanding bargaining units,

30 See Schenk, "Fifty Years After PC 1003," 197-8; Panitch and Swartz, Consent to Coercion, 168-71; Jain and Muthuchidambaram, Ontario Labour Law Reform, 31-95. 31 John O'Grady, "Beyond the Wagner Act, What Then?" in Daniel Drache ed., Getting on Track: Social Democratic Strategies for Ontario (Montreal & Kingston: McGill Queen's University Press, 1992), 162-3. 32 These groups represented the largest (and mostly unionized) companies in Ontario and included Ford Motor Company, Chrysler, General Motors, Goodyear, Imperial Oil, IBM, MacDonald's Restaurants, Brewers' Retail, Canada Trust, Coca Cola Beverages, Labatt Breweries of Canada and hundreds of others. -394-

or extending collective bargaining to include broad sectoral units in the service sector.

The right to strike was also weakened for public sector workers, as the legislation left the definitions of essential services open to a great deal of discretion for the OLRB.

Surprisingly, employers were also successful in maintaining speech provisions in the Act and in moderating the anti-scab provisions.34

When the NDP was defeated in 1995, it was replaced by the neo-liberal

Progressive Conservative government of Mike Harris.35 Supported overwhelmingly by coalitions of provincial businesses, the wealthy and the middle-class outside of the urban core,36 Harris' first priority was to bring "balance" back to labour relations in Ontario.

Almost immediately, the government introduced the contentious Bill 7, An Act to restore balance and stability to labour relations and to promote economic prosperity and to make consequential changes to statutes concerning labour relations. Avoiding the NDP's propensity to consult with stakeholders, the Conservatives promised to restore

"workplace democracy" through a new purpose clause emphasizing flexibility,

Richard Mackie, "The board could assist such companies by limiting picketing," Globe and Mail, 1 October 1992. According to one official, the modifications were designed to broaden the essential services that could not be shut down by a strike or lockout and to enhance protection for employees and unions affected by a change of cleaning, cafeteria or building security contracts. 34 Earlier anti-scab provisions had proposed eliminating the ability of employers to move personnel from other plants. The government also required that the anti-scab provisions only applied if a strike was legal and authorized by 60 per cent of the membership. 35 Peter Woolstencroft, "More than a Guard Change: Politics in the New Ontario," in Sid Noel ed., Revolution at Queen's Park (Toronto: Lorimer, 1997), 39-43. In the 1995 election, the Tories won 82/130 seats on 44.8 per cent of the popular vote. The Liberals, who had been expected to win the election, won 30 seats with 31.1 per cent of the popular vote while the governing NDP was reduced to 17 seats with 20.6 per cent of the popular vote. 6 On this question see, Robert Macdermid, Funding the Common Sense Revolutionaries (Toronto: Centre for Social Justice, 1999). -395-

productivity and communication in the workplace. Among other things, the new Bill eliminated the NDP provisions banning the use of replacement workers during a strike and mandated that a union could not call a strike vote any sooner than thirty days before the termination of a contract. The Bill also implemented the long-standing position of the

CMA, mandating a secret ballot vote for all union certification, contract ratification and strikes.38 As employers had known since 1943, this reform significantly weakened the ability of unions to launch successful organizing campaigns.

The new OLRA also changed the certification rules, making it more difficult to certify and easier to decertify trade unions. The threshold for certification to receive a vote was risen to 40 per cent (from 35 per cent) while a decertification vote was lowered to 40 per cent (from 45 per cent). The new rules also imposed a 12-month ban on organizing if a union lost a certification vote. The Bill also made several administrative changes to the OLRB, including the use of quick consultation in lieu of a full hearing over arbitration and conciliation. Several of the administrative powers given to the Board by the NDP were also repealed, including automatic certification powers, the power to reinstate discharged employees, while limiting the ability of the Board to determine

James Rusk, "Tories moving fast on labour law: Repeal of NDP's Bill 40 to be followed by new rules on workplace democratization," Globe and Mail, 29 July 1995; Tony Van Alphen, "NDP-appointed labour board head let go by Tories," Toronto Star, 26 July 1995. 38 Government Press Release, "Government Acts to Repeal Bill 40 to Spur Economic Growth and Create Jobs," Canada Newswire, 4 October 1995. This statement was remarkably similar to Meyers' position before the Select Committee in 1957. 39 Sara Slinn, "The Union Certification Experience in Ontario: 1993 to 1998," Ph.D. thesis, University of Toronto, 2003, 156. Slinn reports that between 1995 and 1998, 781 applications were received for certification under Bill 7 (down from 1706 in the two years under Bill 40) were granted, which represented a success rate of only a 64.0 per cent (compared to 72.7 under Bill 40). -396-

unfair labour practices. Perhaps most significantly, the Conservative government terminated several NDP appointments to the Board, including the chair, Judith

McCormack and vice-chairs Dale Hewat, Jerry Kovacs and Roman Stoykewych.41

The openly pro-business approach of the Harris reforms to the OLRA were

significant because it lifted the veil of fairness and balance and exposed the OLRA for what, in my argument, it has always been: legislation that accepted collective bargaining

so long as workers' collective action did not threaten economic and political stability.

When the NDP government tried to alter this notion, stern opposition from business demonstrated that any attempts to erode traditional rights of property with expanded trade union rights would be met with intense business opposition. Faced with this opposition, even the pro-labour members of the NDP cabinet were forced to moderate their positions.

In the last instance, the 1990 reforms by the NDP and the Progressive Conservatives cannot be interpreted as eliminating historical notions of balance in the OLRA and its administration by the OLRB. Rather, these reforms should be interpreted as conforming to the long-term interests of business in Ontario.

Bill Schiller, "Tough labour bill approved law will restrict rights of unions," Toronto Star, 24 June 1998. Further reforms to the OLRA arrived just prior to the government returning to the polls in 1999. In the spring of 1998, the government passed Bill 31, the Economic Development and Workplace Democracy Act altering the certification requirements, stripping the ability of the OLRB to impose certification if an employer had violated the law and intimidated union organizers during a vote. Bill 31 was dubbed the "Wal-Mart Bill" by the OFL because the reforms had arisen over the OLRB's decision to certify the USWA at a Wal-Mart in Windsor. In that decision, the employer had interfered in a certification vote to such a degree that the Board remedied the situation by certifying the union despite the fact that it lost the vote. See United Steelworkers of America, Applicant v. Wal-Mart Canada, [1997] OLRB Rep. January/February 141. Further reforms to the OLRA arrived just prior to the government returning to the polls in 1999. 41 Judith McCormack, "Comment on 'The Politicization of the Ontario Labour Relations Framework in the 1990s,'" 3331. These actions lead to several judicial challenges over the independence of Board members, which were successful. The court concluded that in this area, Harris' heavy-handed nature was a violation of the independence of administrative tribunals. See Dewar v. Ontario (1996), 137 D.L.R. (4th) 273 and Hewat v. Ontario (1998), 156 D.L.R. (4th) 193. -397-

After the election of Dalton McGuinty and the Liberal party in 2003, the new

Premier promised a new era of "balanced" legislation. Despite the fact that there was

virtually no public consultation or commissioned study to examine the OLRA, the

McGuinty government took two years to introduce its reforms.42 In introducing Bill 144, the Labour Relations Statute Law Amendment Act, Labour Minister Chris Bentley proudly announced that the Liberal reforms brought fairness and balance back to the labour relations regime in the province. Specifically, the Liberal amendments returned remedial certification powers back to the OLRB while also restoring the Board's power to temporarily reinstate workers who were fired or disciplined while exercising their rights during a union organizing campaign.43

Perhaps the most controversial reform was the change to the certification procedure, which returned the card-based certification procedure to its allies in the construction industry, but maintained a mandatory vote for all other workers. While construction employers denounced this change as an end to "democratic labour relations," the continuance of mandatory votes for workers suggests that the Harris reforms to certification may be permanent. The Liberal legislation also opposed bringing

The Liberals had made several minor reforms to the province's labour law regime, including ending mandatory retirement. The Liberals also amended the ESA to limit the ability of employers from mandating the 60- hour week. Under the reformed ESA, employers had to receive (in writing) permission from employees to work a 60-hour week (without overtime). The written permission forums would then have to be filed with the Ministry of Labour. Gillian Livingston, "Labour, business criticize Ontario's plans to end 60-hour week," Canadian Newswire, 26 April 2004. 43 The legislation also ended the rule that gave employers the freedom to post decertification information in a unionized workplace. 44 "Business leaders form coalition to oppose proposed changes to Ontario's Labour Relations Act," Canada Newswire, 16 December 2004. In opposing these changes, a group of businesses claiming to represent 100,000 individual businesses and roughly 2 million jobs announced the formation of the Coalition for Democratic Labour Relations in order to oppose Bill 144. -398-

back the NDP's anti-scab provisions and maintained many of the Harris government's amendments, including mandatory votes for contract ratification, to go on strike, maintained the same threshold for certification and continued to impose a 12-month bar on organizing if a union lost a certification vote. Just as importantly, the Liberals kept

Harris' purposive clause stating that collective bargaining should promote "flexibility, productivity and the need to create an economic environment that benefits both workers and employers." In other words, the governments in the 1990s and 2000s have completely lifted the post-war veil of fairness and balance in the OLRA. Today, collective bargaining in Ontario is dependent on employer competitiveness and long-term profitability. In this formula, rights of property far outweigh the rights of workers to unionization or fair contracts.

Conclusion: Shifting the Terrain of Balanced Labour Legislation?

The Liberal government's decision to maintain most of Harris' pro-business labour reforms suggests that Ontario's labour law easily fits within neo-liberal conceptions of flexible work and anti-democratic control of the workplace. Despite relying on historical notions of balance to legitimize unequal relations between trade unions and employers, the Liberal's 2005 reforms will have dramatic consequences on trade unions in Ontario.

Throughout the post-war period, trade union density in the province hovered at 30 per cent of the non-agricultural workforce (Table 7.1). After the full implications of Bill 7 were realized in 1997, union density fell below 30 per cent for the first time since 1966.

In 2004, union density fell to 27.7 per cent of the non-agricultural workforce, its lowest point since 1953. Ultimately, the slow recovery of union density since the 2003 election -399-

of Dalton McGuinty's Liberals suggests that the years of neo-liberal restructuring are challenging post-war forms of unionism.

As this thesis suggests, the politics surrounding post-war labour relations have always viewed fair and balanced labour law in a way that divorced direct class power from the relationship between empldyers and employees. In so doing, successive governments in Ontario have amended the OLRA to smooth the rough edges of class tensions while limiting, to all extents possible, the extension of unionization in the province. As has been shown, post-war labour law was as much about limiting the collective rights of workers and their trade unions as it was about labour peace and harmonious labour relations.

To be sure, one cannot view the history of the OLRA and the OLRB as one in which the state consistently sided with employer demands over the rights of trade unions.

Rather, the Act itself was structured through the lens of class relations in the province, giving some freedoms to the established trade unions, while maintaining numerous restrictions on the expansion of unionization in new sectors. Just as Klare demonstrated in his analysis of labour law and capitalist resistance in the United States, Ontario employers were able to use the heavy hand of the courts to limit the expansion of unionization in the province. In the final analysis, the post-war regulation created new, hegemonic controls in the workplace under the auspices of industrial democracy. This was a consistent theme throughout the history of post-war labour relations in Ontario. -400-

Table 7.1 Total Union Membership and Union Density in Ontario, 1976-200545

Year Total Membership Percentage of Paid Workers 1976 1,017,300 30.2 1977 1,057,400 31 1978 1,076,400 30.6 1979 1,116,400 30.6 1980 1,109,800 30.2 1981 1,123,200 29.8 1982 1,095,800 30.6 1983 1,221,300 32.3 1984 1,244,700 32 1985 1,282,900 31.8 1986 1,323,400 31.6 1987 1,362,300 31 1988 1,402,100 31.3 1989 1,427,200 31.2 1990 1,419,600 32.2 1991 1,399,900 32.5 1992 1,369,100 32.3 1993 1,357,000 32.1 1994 1,370,200 31.4 1995 1,408,700 32.1 1996 1,407,900 32.0 1997 1,326,600 29.8 1998 1,344,700 29.3 1999 1,334,300 28.1 2000 1,394,800 28.3 2001 1,412,900 27.9 2002 1,446,600 28.0 2003 1,498,700 28.2 2004 1,494,000 27.7 2005 1,572,900 28.7

CANSIM Labour force survey estimates (LFS), employees by union coverage, North American Industry Classification System (NAICS), sex and age group, annually (Persons); v810383 Ontario; Both sexes; Union density (Percent); v812110 Ontario; Both sexes; Unionized workers (Persons); v2124074 Ontario; Union coverage; Total employees, all industries; Both sexes; 15 years and over. -401-

While the economic relations may have changed, these same consistencies continue to guide the reform process to the OLRA today and will have to be addressed before progressive reforms can take place. As both Conservative and Liberal provincial governments have lifted the veil of fair and balanced labour law, unions are faced with an incredible challenge. The post-war structures of class struggle have changed dramatically.

The raison d'etre of contemporary labour law is the long-term competitiveness and profitability of business. Under these circumstances, reliance on the OLRA and the

OLRB to act as independent barriers against employers' hostility will be limited. It is also unlikely that the current OLRB will be a useful ally in expanding the ability of unions to organize, bargain or strike.

Given these circumstances, unions need a serious discussion about the possibilities and limitations of state protection for organization, collective bargaining and strikes. Given the open class tensions that surrounded the Harris and McGuinty reforms to the OLRA, strategies for renewal will have to rethink the continued support for legal restrictions on the right to strike and to organize.46 Among the multifaceted renewal strategies currently being debated amongst Canadian scholars (mostly outside of unions) have been calls for new forms of union organizing, building institutional linkages with other unions, challenging the question of "partnerships" with business and government, and expanding programs of education and training to rank-and-file activists.47 The most important questions, however, centre on the question of internal union democracy, the

Panitch and Swartz, Consent to Coercion, 233-4. Kumar and Schenk, "Paths to Union Renewal," 36. -402-

role of organizing the unorganized and building grass-roots activism and worker mobilization throughout the country and the world.

All of these calls for union renewal are centred on challenging the institutions associated with labour's post-war compromise. As this thesis has shown, Ontario unions find themselves in this position because the OLRA and the OLRB were contested and challenged by Ontario employers. In order to limit unionization in Ontario, employers challenged the democratic potentials of collective bargaining and union organizing by appealing to allies in the Ontario government and in court. In order to benefit from state legislation, labour conceded a great deal of its collective capacity to challenge the state and employers directly through mass strikes. When those benefits were lost as the legal freedoms were abrogated by the Ontario government and its allies in the business community, labour was left clinging to legal protections that were, for the most part, weak and ineffective. As the post-war freedoms were defined by the class position of

Ontario employers, workers and their unions must build on their own collective capacity to expand on democratic freedoms to challenge employers. In the current context, it is unlikely that this can occur simply through legislative reform or judicial intervention.

Genuine reform will only occur through the collective strength of workers themselves. -403-

Appendix I

Chronology of Labour Legislation in Ontario, 1935-2007

1935—Ontario Liberal government passes Industrial Standards Act

1943—Ontario Liberal government passes Ontario's first Labour Relations Act

o The bill creates the Ontario Labour Court, which is administered by the Ontario High Court. o Rights of Labour Act; Hours of Work Act and Vacations with Pay Act

1943—George Drew forms minority Conservative government

o Labour Court abolished. o Creation of the Ontario Labour Relations Board

1944—Federal Liberal Government passes Privy Council Order 1003, legalizing collective bargaining in Canada o Appeals allowed from the OLRB to the Federal Labour Relations Board

1947—Ontario Labour Relations Board Act revised

1948—Ontario passes the Ontario Labour Relations Act, similar in principle to the Federal government's Industrial Disputes Investigation Act

1949—Leslie Frost becomes Premier

1950—Ontario passes the province's first independent OLRA

o New procedure for certification o Procedures introduced for bargaining in good faith o New conciliation process o Strikes and lockouts prohibited during a collective agreement o Unfair labour practices defined o Labour Relations Board given power to decertify unions o Labour Relations Board given power to conduct certification vote (unique to Canada) o Minister given power to order the reinstatement of an employee discharged contrary to the Act

1951—Conservative legislative changes -404-

o The Fair Employment Practices Act is passed. The new legislation forbids employers to refuse to employ, to discharge or to discriminate against any person because of race, creed, colour, nationality, ancestry or place of origin, and forbids trade unions to discriminate against any person for any of these reasons. o The Fair Employment Practices Act also stipulates employers of fewer than five persons, and religious, philanthropic, education, fraternal or social non­ profit organizations and domestic servants in private homes are not covered by the act o The Female Employees Fair Remuneration Act, 1951 prohibits an employer from discriminating between male and female employees by paying a female employee at a lower rate than a male employee doing the same work in the same establishment

1954—Minor administrative changes to the OLRA

1956—The OLRA is amended to address the merger of the TLC (AFL)-CCL-(CIO)

1957-59—Minor amendments to the OLRA dealing with OLRB workload

1958—Select Committee Reports on the OLRA

1960-1—Conservative changes to the OLRA

o Changes to the certification process o Changes in conciliation procedures o Greater internal regulation of trade unions o Changes to the way in which unions can legally strike o The Labour Board receives the authority to order reinstatement, with discretion to order compensation o The Labour Board receives powers to refer jurisdictional disputes to a new jurisdictional disputes commission o New provisions for pre-hearing representation votes

1961—Conservative legislative changes

o Changes made to Judicature Act, making it easier for employers to obtain an ex parte injunction during a labour dispute

1961—John Robarts becomes Premier

1961-2—Report of the Royal Commission on Labour Management Relations in the Construction Industry (Goldenberg Commission) reports to the legislature -405-

o Leads to a special provision in the OLRA dealing with certification issues in the construction industry o New provision of the OLRB to deal with construction issues

1963—Conservative changes to the OLRA

o Successor rights provision included in the LRA

o The Labour Board is given new powers to rule on successor provisions

1966—Conservative changes to OLRA

o 40 changes made to the Act o Changes to OLRB discretion o Simplified conciliation procedure o Repeal of provision allowing municipalities to opt out of the Act 1968—Royal Commission on Industrial Disputes (Rand Commission) reports to the Legislature

1970—Conservative changes to the OLRA

o Legislature expands the power of the OLRB to deal with work assignment disputes, expanded powers for "cease and desist" orders in construction disputes. o Strikers are also given the right to retain their jobs within six months of the start of the strike o Duty of Fair Representation imposed on unions or councils of trade unions o Certification changes—unions required to obtain 65% union membership for automatic certification rather than the previous 55%, but level of support to obtain a vote is dropped to 35% from a previous 45%. o Majority rules changed—when a vote is held, the outcome is to be decided by the majority of those voting rather that a majority of those eligible to vote.

1970—Conservative changes to the Judicature Act

o Government eliminates ex parte injunctions

1971—William Davis becomes Premier

1975—Ontario election minority government—NDP form the official opposition

1975—Conservative changes to the OLRA

o The definition of employee is changed to include dependent contractors -406-

o The certification procedure is streamlined o Levels of certification back to pre-1971 levels o Board discretionary powers expanded to determine bargaining units without conducting investigation o Board granted the remedial power to certify unions in the event of employer unfair labour practice o Board also granted remedial power to grant "cease and desist" orders in all instances of unlawful strikes and lockouts o Greater Board power to regulate internal union affairs o The Board is given a key role in regulating the duty to bargain in good faith.

1977—Ontario election minority government—Liberals form the official opposition

1977—Conservative changes to the OLRA

o Changes made to Board regulation of the construction industry o Changes also made to employer status and trade union certification in construction industry—creates province-wide bargaining in the industrial, commercial, and institutional (ICI) sector 1978-1980—Bitter strikes at Fleck Industries, Radio Shack, Blue Cross, Inco and Fotomat, Hospital Sector

1980—Conservative changes to the OLRA

o Compulsory check-off (Rand formula) placed into the OLRA o The government also extends the right to vote in a strike vote to non-union employees of the bargaining unit o Changes also permit the employer to demand that a vote of the employees be held on final contract offer.

1983-84—Conservative changes to the OLRA

o Amendment to the Act bans professional strike-breaking.

1984—Conservative changes to the OLRB

o LRB remedial powers changes to deal with unlawful picketing. o The Board is also given greater discretion to regulate the construction industry

1985—Frank Miller becomes Premier

1985—Liberal becomes Premier, ending 42 years of Conservative governments -407-

o Peterson and NDP leader sign a deal to support the minority government

1986—Liberal changes to the OLRA

o First contract arbitration is introduced into the Act o The OLRB is given the discretion to direct a settlement of a first collective agreement by arbitration

1986—OLRA is brought into line with the Human Rights Code, 1981 and the Canadian Charter of Rights and Freedoms

1987—David Peterson forms majority Liberal government

1990—Liberal changes to the OLRA

o Fines under the LRA are increased for breach of the Act; o Fines for an individuals are doubled to $2,000 while those for a corporation or trade union are increased to $25,000

1990—NDP Leader Bob Rae becomes Premier

1991—NDP changes to the OLRA

o Amendments to the Act increase the terms of province-wide agreements in the construction industry from two to three years

1993—NDP changes to the OLRA

o Purposive clause strengthens the preamble to the Act solidified its protection of collective bargaining and harmonious relations between unions and employers o Extension of collective bargaining to agricultural, horticultural, domestic workers and various professional categories o Certification procedure was changed. The requirement of a membership fee was eliminated and the level of union support necessary for a representation vote was reduced from 45 percent to 40 percent. o The Board was given the power to combine two or more bargaining units involving the same employer and union o A bargaining unit consisting of full-time and part-time employees was deemed to be an appropriate unit o Employees and union officials were entitled to engage in organizing and picketing activities on private property normally open to the public -408-

o Loosens restrictions on reviewing a collective agreement during mid-term disputes o Employees were given "just cause" protection against being discharged or disciplined during certification, during the life of a collective agreement, and after the expiry of the agreement until a new collective agreement is signed o Arbitration system is changed, attempts to speedup arbitration decisions o Strengthens union successor rights o Ban on replacement workers during a legal strike (anti-scab law) when the union has received a minimum of 60 percent support for the strike via secret ballot o OLRB is given broader remedial powers, including the power to make interim orders and to enforce bad faith bargaining provisions

1993—NDP legislative changes

o Passage of the Crown Employees Collective Bargaining Act, giving Ontario public sector workers the right to strike o The OLRB is given the jurisdiction over collective bargaining in the public service o The act loosens restrictions on the political rights of public servants and gives the Board powers to protect those rights

1994—NDP legislative changes

o Government passes the Agricultural Labour Relations Act, allowing farm workers to organize for the first time o Government passes Social Contract legislation, which ends collective bargaining in the public sector and imposes agreements on public sector workers

1995—Conservative Mike Harris becomes Premier

1995— Conservative changes to the OLRA

o The new Act repeals the majority of NDP reforms o The purposive clause introduced by the NDP is amended to read: "promote flexibility" and "to encourage communication between employer and employees in the workplace" erasing any mention of the role of "unions" from participating in this discussion o Card based certification (automatic certification) is replaced with a system of electoral certification in every instance o A representation vote is applied when 40 percent of employees have signed cards and is required to hold the vote within five days of the application -409-

o The threshold for a decertification vote is reduced from 45 percent to 40 percent o Employers are given more freedom to initiate a decertification vote o New rules impose an automatic one-year bar on unions against re-applying certification after a failed strike vote o Strike votes are made mandatory under the Act and must take place within 30 days of the expiration of the contract or anytime after the expiration o Bargaining rights and collective agreements covering professionals to whom the Act's coverage had been extended were terminated o Security guards were given only limited access to collective bargaining o The government eliminates the Agricultural Labour Relations Act o The government eliminates successor rights from the Crown Employees Collective Bargaining Act(promoting privatization of government services) o Passes the Savings and Restructuring Act which eliminates 13,000 public sector jobs and reduces the powers of arbitrators to award contracts in essential public services

1997—Conservative legislative changes

o Passes the Public Sector Dispute Resolution Act and the Public Sector Labour Relations Transition Act establishing a separate regime of successor rights governing matters that arise out of restructuring and amalgamation in the broader public service o The Act gives the Board the power to determine new bargaining unit configurations that arise from municipal amalgamations, school board changes and hospital restructuring

1998—Conservative changes to the OLRA

o Passes the Prevention of Unionization Act making it illegal for welfare recipients in workfare programs to form trade unions o Passes the Economic Development and Workplace Democracy Act amends the OLRA o The changes eliminate the OLRB's remedial powers of automatic certification o The Act also bans strikes in large construction areas in Toronto o The new Act also act also allowed employers to challenge the appropriateness of a bargaining unit or a union's estimates of the number of individuals in a proposed bargaining unit.

2000—Conservative changes to the OLRA o The new Act makes it mandatory for employers in unionized workplaces to post procedures to for decertification o Decertification procedures are made easier under the Act o New rules provide for a one-year cooling off period during negotiations -410-

2000—Conservative legislative changes

o Changes to the Employment Standards Act require employees to work up to 60 hours per week without receiving overtime

2001— becomes Ontario Premier

2003—Liberal Dalton McGuinty becomes Ontario Premier

2005—Liberal changes to the OLRA

o Employers are no longer required to post decertification information in unionized workplaces o Unions no longer have to disclose names and salary benefits of all directors, officers and employees earning $ 100,000 or more a year o Restores OLRB remedial powers of automatic certification during unfair labour practices during a certification drive o Re-establishes a card-based certification system for the construction sector. In this sector, the union will be automatically certified if they receive 55 percent of cards in a specific workplace o Prevents consecutive strikes in the homebuilding industry o Restores the OLRB's power to reinstate workers on an interim basis who were fired or disciplined during a union organizing campaign -411-

Appendix II

1950 & 1960 OLRA

1950 OLRA Sections 1960 OLRA (Amendments) Sections 1 Definitions 1 Definitions 2 Exclusions: 2 Exclusions: -Domestic -(new) To a person, other than -Agricultural an employee of a municipality -Horticultural employed in silvaculture -Police -Fire -Teachers 3-4 Freedoms: 3-4 Freedoms: -Every person is free to join a (no change) trade union of their choice -Every person is free to join an employers' organization of their choice 5-6 Establishment of bargaining 5-6 Establishment of bargaining rights by certification: rights by certification: -trade union may apply to the -(new) Termination rights Board for certification -(new) Two month window for -Board shall determine unit termination added -Adds separate rules to address craft units

7 Certification: 7 Certification: -Board determination of -(no change) union members in bargaining unit -Representation vote: 45-55% -Certification after vote: 50 % of all those eligible to vote - Certification without vote: more than 50% 8 Exclusion of security guards 8 Pre-Hearing Representation Votes (new): -Trade union may request that a pre-hearing representation vote be taken -412-

-Board may determine a voting constituency (45%) necessary for a pre-hearing vote -Board may direct that the ballot box be sealed until after a hearing has taken place -After the vote, the Board shall determine that is appropriate for collective bargaining and if it has 45% support, than the vote is the equivalent of a representation vote in S. 7

9 Banning of company unions 9 Exclusion of security guards (no change) 10-12 Negotiation of a collective 10 Banning of company unions agreement: (no change) -Union must give written notice of its desire to bargain -Parties shall meet within 20 days and shall bargain in good faith to reach an agreement 13-14 Requests for conciliation 11-12 Negotiation of a collective agreement -(new)Parties shall meet within 15 days and shall bargain in good faith to reach an agreement 15-29 Duties and powers of the 13-15 Requests for conciliation conciliation board and its (minor changes) members 30-33 Contents of collective 16-31 Duties and powers of the agreements: conciliation board and its -No strike or lockout members (no change) provision -Arbitration provisions -Union security can be negotiated

34-37 Operation of collective 32-35 Contents of collective -413-

agreements: agreements: -Certain agreements will not -(new) No employer shall be considered collective discharge an employee who has agreements if an employer been expelled or suspended participated in the formation from membership in a trade or administration of the union organization -(new) A trade union and an -A Collective Agreement employer shall not enter into a cannot discriminate against collective agreement that any person because of race or includes union security creed agreements unless the trade -Collective agreements are union has established that not binding on employers, less than 55% of the employees unions, employees were members of the bargaining -Collective agreements are to unit at the time of certification be at least one year in length 38-39 Bargaining: 36-39 Operation of collective -Notice of desire to bargain agreements: for a new collective -Collective agreements cannot agreement—2 months before discriminate because of race, the expiration of an existing creed, (new), colour, nationality, collective agreement ancestry or place of origin -Collective agreements are binding -(new) provisions for council of trade unions to negotiate agreements and make them binding 40-44 Termination of bargaining 40-41 Bargaining: rights: -(minor changes to address -One year agreements: employer organizations) 2 month widow after ten months and before 12 months for a new union -Multiple year agreements: 2 month widow before the agreement expires -Voting procedures for termination are outlined (similar to section 7) -After one year if an agreement has not been reached members can apply for decertification -414-

-Certification obtained by fraud is outlawed -Termination for failure to give notice to bargain or to bargain within 60 days -Application for termination cannot proceed if conciliation services have been granted 45-46 Unfair practices: 42-46 Termination of bargaining -Employers not to interfere rights: with the formation or -(new) Two year agreements: administration of unions in the case of collective of -Unions not to interfere with collective agreements for a employers organizations term of not more that two years, only in the last two months of operations in the case of a collective agreement -(new) More than two years: Only after the twenty-third month -(new) Application for termination after conciliation services have been granted are not accepted

47-48 Employers not to interfere 47 Successor Rights (new) with employees' rights: -A trade union can apply to the -Cannot discriminate against Board after a merger, pro-union employees amalgamation or transfer of -instate as a condition of jurisdiction to maintain employment not to join a certification rights at the union business -Dismiss officers of a union -Use intimidation and coercion -Use persuasion to intimidate during working hours

49-52 Strike or lockout 48-50 Unfair Practices: agreement: (amended) -No strike or lockout can -No employer and no person occur while a collective acting on behalf of the employer | -415-

agreement is in operation shall participate in or interfere - Where no collective with the formation, selection or agreement is in operation, no administration of a trade union, employee shall strike and no but nothing in this section shall employer shall lockout be deemed to deprive an -No trade union shall employer of his freedom to authorize an illegal strike express his views so long as he -No employer shall authorize does not use coercion, and illegal lockout intimidation, threats, promises or undue influence (new)

53 Employer limits after 51-53 Employers not to interfere certification: with employees' rights -Working conditions may not (no change) be altered where a union has been certified and an agreement has not yet been reached 54-56 Information of collective 54-58 Strike or lockout agreement: agreements and constitution (amended) to be filed with Board -(new) a strike vote taken by a trade union shall be by ballots cast in such a manner that a person expressing his choice cannot be identified with the choice expressed -(new) no person shall do any act if he knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out -(new) Nothing in this Act prohibits any suspension for cause of an employer's operation or the quitting of employment for cause 57-61 Enforcement: 59 Employer limits after -Minister can appoint a certification: conciliation officer (no change) -Conciliation officer has power to inquire into the complaint and endeavour to -416-

effect a settlement of the matter complained - Board has power to declare lockout or strike unlawful 62-65 Powers to prosecute 60 Locals under trusteeship offenders (new) -Any provincial, national or international trade union that assumes supervision over a subordinate trade union, shall, within 60 days file with the Board a statement explaining the trusteeship -trusteeship cannot continue for beyond 12 months (unless consent of the Board is given) 66-68 Administration of the Act: 61-64 Information: -Function and powers of the (amended) OLRB -(new)\Jmons are required to -Jurisdiction of the Board furnish financial statements to members, which can be enforced by the Board 69 Privative Clause: 65-66 Enforcement: -OLRB decisions are final (amended) and may not be reviewed in -Board has power to appoint a any court, whether by way of filed officer injunction, declaratory -Creation of a jurisdictional judgment, certiorari, disputes commission mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board 70-71 Powers of OLRB members 67-71 Declaration of Unlawful Strike (amended) -trade unions and employers can apply to the Board for to declare an action unlawful -fines are increased

72-77 General administrative 72-74 Prosecution under the Act powers, procedures and (amended) rights -Board orders to be filed with the Ontario courts -417-

78 Municipal exclusion clause 75-79 Administration of the Act: (minor amendments)

80 Privative Clause (no changes) 81-82 Board members and legal rights 83-89 Administrative issues: -Secrecy of information -Minister's powers can be delegated to Deputy Minister

89 Municipal exclusion clause (no change) - 418 -

Appendix III -419 -

Chronology of the Royal York Hotel Strike 1961 April 24 —At 4pm 1200 members of Local 299, Hotel and Club Employees Union go on strike at the Royal York Hotel. May 2n —The union asks the Supreme Court of Ontario for an injunction restraining railway police from preventing picketing of the Union Station-Royal York Tunnel. 5th—500 strikers refused the suggestion the union should seek Provincial mediation 8th—Angus MacKinnon refuses the offer of Mayor Nathan Phillips to act as a mediator 9th—Toronto Musicians Association asks it members not to sign any contracts with the hotel 11th—Chief Justice McRuer dismisses the union's application for an injunction 15th—Union members voted down a proposal to return to work which had been raised by the rumor the hotel was discarding seniority lists 18th—Frost offers to act as a mediator June 27' —Daley intervenes and calls a meeting of the union and management. The occurs after the hotel announces that strikers who did not return to work would be discharged on July. 10' —Second notice issued by the hotel to strikers that they will be discharged if they to do return to work 19th—The Royal York announces that 600 strikers had been discharged 27th—International union president, E.S. Miller, promises that US locals would raise $3,000,000 to support the strike August 15 —The union protests to the OLRB against the hotel's discharge of 600 employees 29—Frost offers to negotiate between the parties. The offer is rejected by the Royal York September 2 j st—Y^e OLRB gives the union leave to prosecute the hotel for discharging strikers October 6 —Strikes apply for UI benefits, which is rejected 13th—Senior Magistrate T. Elmore hears the union's charges against the hotel discharging strikers 18th—T. Elmore dismisses the charges. The union appeals 19th—Frost and Daley say that new legislation might follow Elmore's decision December 2n —Justice McRuer overturns the Elmore decision to the effect the hotel had no right to discharge the striking employees 18th—Two unsuccessful attempts are made to settle the strike in Toronto and Montreal, where CPC officers meet with CLC president Claude Jodoin 1962 January 30' —Strikers reject labour minister Warrender's settlement proposal. February Is'—The hotel announces it will hire non-union musicians 13th—The Ontario Court of Appeal upholds McRuer's ruling April 9 ~Strike concludes after Premier Robarts intervenes in the dispute. June 25 —Supreme Court of Canada upholds McRuer's decision. Rules strikes do not have an unlimited right to their job. Source: "Chronology of A Strike," Globe and Mail, 7April, 1962. There are several author additions. -420-

Appendix IV Ontario Ministers of Labour and OLRB Chairs

Ministers of Labour , 1995-1997

PC 1943-1985 , 1997-1999

Charles Daley, 1943-1961 Chris Stockwell, 1999-2002

William Warrender, 1961-1962 Brad Clark, 2002-2003

Leslie Rowntree, 1962-1966 Lib 2003-

Dalton Bales, 1966-1971 Chris Bentley, 2003-2005

Gordon Carton, 1971-1972 Steve Peters, 2005-2007

Fernand Guindon, 1972-1974 , 2007-

John Palmer Macbeth, 1974-1975 OLRB Chairs BetteM. Stephenson, 1975-1978 Jacob Finkelman, 1943-1948; 1953-1966 Robert G. Elgie, 1978-1983 P.M Draper, 1948-1953 Russell H. Ramsay, 1983-1985 G.W. Reed, 1967-1974 Lib 1985-1990 Tim Armstrong, 1974-1976 William Wrye, 1985-1987 D.D.Carter, 1976-1980 Gregory Sorbara, 1987-1990 G.W. Adams, 1980-1984 NDP 1990-1995 Rosalie Abella, 1984-1989 Bob Mackenzie, 1990-1994 M.G. Mitchnick, 1989-1992 Shirley Coppen, 1994-1995 Judith McCormack, 1992-1995 PC 1995-2003 Richard MacDowell, 1995-2001 -421 -

Kevin Whitaker, 2001- -422-

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Archival Sources:

Archives of Ontario:

Correspondence of the Deputy Minister of Labour (RG 7-12) General Correspondence of the Chairman of the OLRB (RG 7-54) Legislation and Regulation Files (RG 7-14) Ministry of Labour Correspondence Files (RG 7-1) Minister of Labour Legislature of Ontario Files (RG 7-3) Ontario Historical Studies Series Political Interviews (RG 47-27). Premier Frost's General Correspondence Files (RG 3-23 and 24) Premier J.P. Robarts General Correspondence Files (RG 3-26) Proceedings of Select Committee on Labour Relations (RG 49-138) Proceedings of the Royal Commission on Labour Disputes (RG 18-152) Research Studies-Policy and Legislation (RG 7-130)

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Finkelman papers (NAC MG 31)

Thomas Fisher Rare Book Archive University of Toronto:

Toronto Newspaper Guild Alphabetical Files

Newspapers

Canada Newswire

Globe and Mail

Toronto Daily Star

Toronto Telegram

Ontario Labour Review

London Free Press -423-

Vancouver Sun

Windsor Star -424-

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Pentland, YL.C.A Study of the Changing Social, Economic, and Political Background of the Canadian System of Industrial Relations. Report on the Task Force on Labour Relations (The Woods Commission) No. 1 Ottawa: Privy Council Office, 1968.

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British Columbia (Labour Relations Board) v. Canada Safeway Ltd. [1953] 3 D.L.R. 641.

British Columbia Hotel Employees Union Local 260 v. British Columbia Hotels Association [1955] 2 D.L.R. 1.

Bruton v. Regina City Policemen's Association, Local No. 155, [1945] 3 D.L.R. 437.

Canadian Pacific Railway Co. v. Zambri, Supreme Court of Canada [1962] S.C.R. 609.

Dunmore v. Ontario (Attorney General) [2001] 3. S.C.R. 1016

Harding Carpets Ltd. and The Canadian Textile Workers, Local # 501 CLLC OLRB

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Ph.D. and Master's Theses

Bagnel, John C. The Ontario Conservatives and the Development of Anti-Discrimination Policy, 1944-1962. Ph.D. Thesis, Queen's University, 1984.

Brownsey, Keith. Tory Life: The Life Cycle of the Progressive Conservative Party of Ontario, 1935-1980. Ph.D. Thesis, Trent University, 1994.

Buik, William. Noranda Mines Ltd.: A Study in Business and Economic History. M.A. Thesis, University of Toronto, 1958.

Cako, Stephen. Labour Struggle for Union Security: The Ford of Canada Strike. M.A. Thesis, University of Guelph, 1971.

Coates, Daniel. Organized Labour and Politics in Canada: The Development of a National Labor Code. Ph.D. Thesis, Cornell University, 1973.

Drummond, Robert. Party Choice in Canadian Province: The Case of Ontario. Ph.D. Thesis, Northwestern University, 1975.

Fudge, Judy. Voluntarism and Compulsion: The Canadian Federal Government's Intervention in Collective Bargaining From 1900 to 1946. Ph.D. Thesis, University of Oxford, 1987.

Lang, John. A Lion in a Den of Daniels: A History of the International Union of Mine, Mill, and Smelter Workers in Sudbury, Ontario, 1942-1962. M.A. Thesis, University of Guelph, 1970.

Matheson, David. The Canadian Working Class and Industrial Legality. M.A. Thesis, Queen's University, 1989.

Millar, F. David. Shapes of Power: The O.L.R.B.: 1944 to 1950. Ph.D. Thesis, York University, 1980.

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Slinn, Sarah. The Union Certification Experience in Ontario, 1993-1998. Ph.D. Thesis, University of Toronto, 2003.

Thomas, Mark P. Regulating Flexibility: The Ontario Employment Standards Act and the Politics of Flexible Production. Ph.D. Thesis, York University, 2003.

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Books

Abella, Irving. Nationalism, Communism, and Canadian Labour. Toronto: University of Toronto Press, 1973.

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Bothwell, Robert, Ian Drummond and John English. Canada Since 1945: Power, Politics and Provincialism. 2" Ed. Toronto: University of Toronto Press, 1989.

Boyko, John. Into the Hurricane: Attacking Socialism and the CCF. Winnipeg: J. Gordon Shillingford, 2006.

Cameron J.C., and F.J.L. Young. The Status of Trade Unions in Canada. Kingston: Centre of Industrial Relations, Queen's University, 1960. -434-

Campbell, Robert M. Grand Illusions: The Politics of the Keynesian Experience in Canada, 1945-1975. Toronto: Broadview, 1987.

Caplan, Gerald. The Dilemma of Canadian Socialism: The C.C.F. in Ontario. Toronto: McClelland & Stewart, 1973.

Carrothers, A.W.R., E.E. Palmer and W.B. Rayner. Collective Bargaining Law in Canada. Toronto: Butterworths, 1986.

Charney, Richard J., and Thomas E.F. Brady. Judicial Review in Labour Law. Aurora: Canada Law Book, 2006.

Clement, Wallace. Hardrock Mining: Industrial Relations and Technological Changes at Inco. Toronto: McClelland & Stewart, 1981.

Clement, Wallace and John Myles. Relations of Ruling: Class and Gender in Postindustrial Societies. Montreal & Kingston: McGill-Queen's University Press, 1994.

Colton, Timothy J. Big Daddy: Frederick G Gardiner and the Building of Metropolitan Toronto. Toronto: University of Toronto Press, 1980.

Craven, Paul. An Impartial Umpire: Industrial Relations and the Canadian State, 1900- 1911. Toronto: University of Toronto Press, 1980.

Drache, Daniel and Harry Glasbeek. The Changing Workplace: Reshaping Canada's Industrial Relations System. Toronto: Lorimer, 1992.

Drummond, Ian M. Progress without Planning: The Economic History of Ontario from Confederation to the Second World War. Toronto: University of Toronto Press, 1987.

Dyck, Rand. Provincial Politics in Canada. 2n Ed. Toronto: Prentice-Hall, 1991.

Ehring, George, and Wayne Roberts. Giving Away a Miracle: Lost Dreams, Broken Promises and the Ontario NDP. Oakville: Mosaic, 1993.

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Graham, Roger. Old Man Ontario: Leslie M. Frost. Toronto: University of Toronto Press, 1990.

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Hoy, Claire. Bill Davis. Toronto: Methuen, 1985.

Hyman, Richard. Industrial Relations: A Marxist Introduction. London: MacMillian, 1975.

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Laskin, Bora. Canadian Constitutional Law. Toronto: Carswell, 1986.

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MacDowell, Laurel Sefton. 'Remember Kirkland Lake' The Gold Miners' Strike of 1941- 42. Toronto: University of Toronto Press, 1983.

. Renegade Lawyer: The Life of J.L. Cohen. Toronto: Osgoode Society and the University of Toronto Press, 2001.

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McDougall, A.K. John P. Robarts: His Life and Government. Toronto: University of Toronto Press, 1986.

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McKenty, Neil. Mitch Hepburn. Toronto: McClelland & Stewart, 1967.

Miliband, Ralph. The State in Capitalist Society: The Analysis of the Western System of Power. London: Quartet, 1969.

Millis, Harry A. and Emily Clark Brown. From the Wagner Act to Taft Hartley: A Study of National Labor Policy and Labor Relations. Chicago: University of Chicago Press, 1950.

Morton, Desmond. Working People: An Illustrated History of the Canadian Labour Movement. 4th Ed. Montreal &Kingston: McGill-Queen's University Press, 1998.

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Nicholson, Philip Yale. Labor's Story in the United States. Philadelphia: Temple University Press, 2004.

Oliver, Peter. Unlikely Tory: The Life and Politics of Allan Grossman. Toronto: Lester & Orpen Dennys Ltd., 1985.

Pakin, Steve. Public Triumph, Public Tragedy: The Double Life of John Robarts. Toronto: Viking, 2005.

Pal, Leslie A. State, Class, and Bureaucracy: Canadian Unemployment Insurance and Public Policy. Kingston & Montreal: McGill-Queen's University Press, 1988.

Palmer, Bryan D. Working Class Experience: Rethinking the History of Canadian Labour, 1800-1991. 2nd Ed. Toronto: McClelland & Stewart, 1992.

Panitch, Leo. Working Class Politics in Crisis: Essays on Labour and the State. London: Verso, 1986.

Panitch, Leo and Donald Swartz. The Assault on Trade Union Freedoms: From Consent to Coercion. 3rd Ed. Toronto: Garamond, 2003.

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Penner, Norman. Canadian Communism: The Stalin Years and Beyond. Toronto: Methuen, 1988.

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Poulantzas, Nicos. Classes in Contemporary Capitalism. London: Verso, 1975.

Rea, K.J. The Prosperous Years: The Economic History of Ontario, 1939-1945. Toronto: University of Toronto Press, 1985.

Roberts, Kelso. Thirty Years of Ontario Political Action. Toronto: Private Edition, 1969.

Roberts, Wayne. Don't Call Me Servant: Government Work and Unions in Ontario, 1911-1984. Toronto: OPSEU, 1994.

Russell, Bob. Back to Work? Labour, State, and Industrial Relations in Canada. Toronto: Nelson, 1990.

Sack, Jeffery and C. Michael Mitchell. Ontario Labour Relations Board Law and Practice. Toronto: Butterworths, 1985.

Schull, Joseph. Ontario Since 1867. Toronto: McClelland & Stewart, 1978.

Smith, Cameron. Unfinished Journey: The Lewis Family. Toronto: Summerhill, 1989.

Smith, Doug. Cold Warrior: C.S. Jackson and the United Electrical Workers. St. John's: Canadian Committee on Labour History, 1997.

Solski, Mike, and John Smaller. The History of the International Union of Mine, Mill and Smelter Workers in Canada Since 1895. Ottawa: Mutual Press, 1984.

Spiers, Rosemary. Out of the Blue: The Fall of the Tory Dynasty in Ontario. Toronto: Macmillan, 1986.

Tuohy, Carolyn. Policy and Politics in Canada: Institutionalized Ambivalence. Philadelphia: Temple University Press, 1992.

Walkom, Thomas. Rae Days. Toronto: Key Porter, 1994.

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Williams, Glen. Not for Export: The International Competitiveness of Canadian Manufacturing. 3rd Ed. Toronto: McClelland & Stewart, 1994.

Willis, John A. The Ontario Labour Court, 1943-1944. Kingston: Queen's University Centre for Industrial Relations, 1979.

Whitaker, Reginald. The Government Party: Organizing and Financing the Liberal Party of Canada, 1930-1958. Toronto: University of Toronto Press, 1977.

Whitaker, Reginald and Gary Marcuse. Cold War Canada: The Making of a National Insecurity State, 1945-1957. Toronto: University of Toronto Press, 1994.

White, Graham. The Ontario Legislature: A Political Analysis. Toronto: University of Toronto Press. 1989.

White, Randall. Ontario Since 1985. Toronto: Eastend, 1998.

. Ontario 1610-1985: A Political and Economic History. Toronto: Dundurn, 1985.

Wood, Ellen Meiksins. Democracy Against Capitalism: Renewing Historical Materialism. Cambridge: Cambridge University Press, 1995.

Woods, H.D and Sylvia Ostry. Labour Policy in Canada. 2nd Ed. Toronto: Macmillian, 1973.

Yates, Charlotte. From Plant to Politics: The Autoworkers Union in Postwar Canada. Philadelphia: Temple University Press, 1993.

Young, Walter D. The Anatomy of a Party: The National CCF, 1932-61. Toronto: University of Toronto Press, 1969.

Zakuta, Leo. A Protest Movement Becalmed: A Study of Change in the CCF. Toronto: University of Toronto Press, 1964. -440-

Articles

Adams, Roy J. "A Pernicious Euphoria: 50 Years of Wagnerism in Canada." Canadian Labour and Employment Law Journal 3 (1995): 321-354.

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