Union Security Clauses and the Right to Work

H. J. CLAWSON Montreal

The final disposition of'Kuzych v. - White by the recent judgment' of the Judicial Committee of the Privy Councils affords an opportunity to re-examine some of the practical implications of compulsory union membership. This analysis is concerned not so much with the legal issues that have arisen in this lengthy and somewhat involved litigation (a number of which still remain undetermined) as it is with the broader social and political problems of the "closed shop" and "union shop" - the contractual device that makes the right to work at a trade or for a particular.' employer conditional upon becoming and remaining a member in good standing of a designated union. The Kuzych case is now so well known in both labour, relations and legal circles that it can, with justification, be termed a cause célèbre. Professor Whitmore's excellent article in the last issue of the Canadian Bar Review 2 has set forth the facts in considerable detail, and for my purposes â brief summary of them will suffice. It will be recalled that Kuzych was expelled from a union which had a closed shop agreement with his employer. The grounds_ alleged for his expulsion were inter aliâ that (a) he assisted in holding an unauthorized public meeting to discuss internal Busi- ness of the union;, (b) he was guilty of conduct unbecoming a union member by, publicly opposing established policies of the union, that. is, the closed shop principle ; and (c) he violated his oath of membership by failing to repudiate certain radio broad-

* H. J. Clawson, Director of Industrial Relations, Crane Limited, Montreal ; Lecturer in Labour Relations, Industrial Relations Section, University of Montreal; formerly a member of the Saskatchewan Bar. 1 Kuzych v. White et al ., [195112 W.W.R .-(NS) 679, and (195112 All E .M. 435. 2 Judicial Control of Union Discipline : The Kuzych Case (1952), 30 Can. Bar Rev. 1.

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casts in his behalf which contained slanderous statements a- gainst the president of the union local. These offences, being in violation of specific provisions of the union's by-laws, were dealt with by an investigating committee, whose deliberations resulted in his expulsion. Under the closed shop agreement with his employer, he was accordingly discharged from his employment on the ground that he had not remained a member of the union in good standing. Apparently Kuzych was not one to accept such treatment without a struggle and he thereupon launched an action for various types of relief, including damages and an injunction for re instatement in the union (so he could resume his job), which eventually, after several trials and appeals, culminated in the judgment of the Privy Council. Kuzych was successful both in the original trial and in the union's appeal to the Court of Appeal for British Columbia. His chief contention throughout the proceedings was that the "trial" conducted by the union investigating committee was biased, prejudiced and unfair, and denied him "natural justice". On this point, the judgments of the lower courts upheld him. Their Lordships on the Privy Council agreed with this finding but held that his proper remedy was to appeal to the executive of the Shipyard General Workers Federation, as provided for in the union by-laws, and that, until he had done this, as he was bound to do under the terms of his entry into the union, he had no right to pursue a remedy in the courts. Their Lordships therefore allowed the union's appeal, in effect holding that Kuzych could not enlist the support of the courts, at this stage at least, in his efforts to be re-instated in union mem bership, and thus in his job. Subsequently, taking their Lordships at their word, he appealed to the executive of the union, but his appeal was rejected on the ground that (1) he had not proceeded within the time limit provided by the union's by-laws, and (2) the original union had been dissolved and its affairs taken over by a new organization. He maystill return to the courts and it is interesting to speculate about the eventual outcome of the affair should he do so. There are, of course, a number of interesting and arguable legal points arising out of the proceedings recently terminated, including the judgment of the Judicial Committee itself, and these aspects of the case have already been adequately analyzed by Professor Whitmore. As I have already said, this paper will deal only with some of the non-legal and quasi-legal aspects of the case, involving the broader issue of union membership as a condition of employment .

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Despite the protracted and expensive litigation, which indicated that both sides considered the issue of major importance,3 it should be emphasized that the most important problem arising out of a "union security" clause was not in issue do these proceedings at all, and would not have been determined no matter how the final decision went: If, for instance, the Privy Council had upheld the lower courts and had ruled that. Kuzych was entitled to damages and re-instatement, it is quite evident, that only a, narrow issue would have been decided, namely, that the expulsion was ineffective because the union "trial" had been unfairly con ducted. Although it is, of course, desirable that union as well as other tribunals should be brought up short when they act in a biased, prejudiced or unfair manner,_ the fact remains that a favourable finding on this point would have been a restricted vic- tory and would .have left completely unanswered the even more serious problem that arises when a union member has had a wholly proper trial, which still results in his expulsion and consequent loss of employment under a union or closed shop contract. This is the crucial problem that perturbs many thoughtful- citizens to- day. In the present state of the law, it would appear that no legal remedy (nor for that matter, any other real remedy) is available to an employee who is employed under a union or closed shop contract and who is refused entry into, or is expelled from a union according to the terms of its by-laws or constitution . Mr. Justice O'Halloran, when, the Kuzych case was in the British Columbia Court of Appeal, stated : "A man has a right to work at his trade. If membership in a union is a condition to working at his trade, then he has an indefeasible right to belong to that union. It must be so, or else the union can have no right to agitate for a closed shop. Moreover, the civil liberties of 'the subject cannot be decided by a trial committee set up by a labour union. This is the prerogative of the constituted courts of the country. In my judgment, the question the Union Trial Committee sought to deal with in the circumstances here was beyond the competence of any union to decide." In the judgment he wrote for the Privy Council, Lord Simon commented on this passage as follows : "Their Lordships, while fully alive to the considerations which weighed with this learned Judge, must not be misunder- stood to agree with these last observations, which form no part of the argument used by the other judges who considered the a It is probable that other unions in Canada, as well as the Canadian Congress of Labour and the Trades and- Labour Congress of Canada, con- tributed to the union's costs, and that Kuzych has had outside financial assistance not only from individuals but from employers.

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case and which are not necessary to support the view which has hitherto prevailed in this litigation".4 In other words, these obiter dicta of Mr. Justice O'Halloran's merely state what he thinks the law should be and not what the law actually is. I propose to dem- onstrate that the present state of the law in Canada is such that it not only permits but may in fact encourage the very results that Mr. Justice O'Halloran views with so much adhorrence. I believe that when employers, conciliators, legislators, and in fact many union members themselves, fully appreciate all the consequences of making a man's tenure of employment dependent upon membership in a particular union, especially when he may be deprived of membership against his will by unilateral action, there will be an end to unconditional union shop contracts. The right to earn a living is too important a matter to be nullified by a private contract between an employer and a union.

At this point it may be appropriate to examine a few typical "union security" clauses with a view to assessing their impact on the right to work. A common clause is the union shop clause that, with minor variations, is found in many collective labour agreements (it is the type of clause nearly every union tries to get) All present employees who are not now members of the union must become members within thirty days after the signing of the agreement . All persons employed after this date must become members of the union within thirty days after the date of their employment. All employees must remain members of the union, in good standing, as defined by the constitution and by-laws of the union, as a condition of employment for the duration of this agreement . As is well known, a variant of this provision is the closed shop clause . It is similar in effect, the chief difference being that new employees must be members of the union before they are hired. This type of clause is normally sought only by craft unions, probably because industrial unions are not equipped to provide re- cruiting facilities. Another variant, the maintenance of membership clause, contains no compulsion to join the union, but provides that, once having joined, the employee must remain a member in good standing as a condition of employment. A still further variant, developed in recent years, is the modified union shop (or modified maintenance of membership) clause, which compels present members, or any present employees who voluntarily become members, to remain members, and new employees to become and remain members as a condition of employment . 4 Kuzych v. White et al., [1951] 2 W.W.R. (NS) 679.

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The significant feature of all these provisions is, of course, the phrases "must become" and "must remain a member of the union in good standing as â condition of employment". The employer, when he agrees to such a provision in a collective labour agreement is, in effect, agreeing that, if an employee does not become a -union member, 'or if he does not remain a union member for a specified time, he will lose his employment. Most of the attacks on the coercive features of compulsory union membership provisions have dealt mainly with the problem of the employee who is forced to join or remain, a member of a particular union. I thor- oughly agree with all these serious objections, but I am here concerned with a different problem, namely, involuntary loss of membership, and for this purpose I shall admit for a moment the validity of the arguments for "union security" . Whatever their merits, it is significant that they conveniently ignore or gloss over the real issue -the fact that loss of an employee's job may result, not from his refusal to become or, remain a member, but from the fact that he is prevented from joining or is expelled. Every argument I. have ever heard in support of the union shop or variations of it, except one that will be referred to later, deals with the subject as if the sole problem were the volition of the employee. The arguments all assume that some employees either do not want to join the union or, once having joined; want to withdraw. In fact, the euphemism "union security" seems to be based primarily on the assumption that the security of the union is somehow at the mercy of recalcitrant employees who do not want- to become or remain members. But the point that few unions make, and many students of labour relations overlook, is that with an ordinary closed shop, union shop or maintenance of membership clause an employee may be deprived of his job, not because he refuses to,join or stay in the union, but because he is not allowed to join or because he is expelled. Let us look at one or two examples of the possible implications of this fact. An employer has a closed shop contract with a union. He needs additional men and finally finds some that suit his pur poses. They are not union members, so he sends them to union headquarters to join the union and get a "work card". Unfortu- nately for them .they are negroes, and the union's constitution excludes coloured persons from membership . The employer 'is powerless to hire them. It is no answer for the unions to say that only a few unions have a colour bar. The fact is that some have, and the incident mentioned has happened and can happen again. Men have been refused entry to unions for other equally arbitrary

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reasons, for example, because the union's quota for journeymen is filled, because the applicant is on a union black list, because he cannot pay the high initiation fee demanded, because he is "not a fit person for membership", and because he is not the son of a union member and under the union's constitution only sons of members are eligible for full membership.' Proponents of the union shop will say: "Well, that is the closed shop. I am against that, and in any event industrial unions do not ask for the closed shop. All we want is the union shop, under which the employer may hire whom he likes." The employer then negotiates a union shop contract, providing that all employees must join the union within thirty days of the signing of the agreement or within thirty days after hiring. Eventually, the union notifies the employer that X will have to be discharged because he has not become a member of the union. The employer sends for X, who is a valuable employee of long service, and asks him why he refuses to join. X says that he filed an application for membership and tendered the regular initiation fee, but both were returned and he was refused admission into the union. It happens that X had for some time been critical of the union in this plant and had consistently refused to join in the past. The union had consequently passed a by-law providing that all employees who had not joined the union within three months of the original certification were required to pay up all back dues, which in X's case amounted to over $50, and which he could not afford to pay. Another employee, who also wanted to join the union in order to keep his job, found that he was refused membership unless he paid a fine of $50, which had been levied against him by the same union in another plant some years before for an infrac- tion of the by-laws. He had been suspended for failure to pay the fine, which he also could not afford to pay. Under his union agreement this employer had no alternative but to discharge both s One among the many cases that have involved union discrimination on racial grounds under a closed shop contract was Marinship Corp. v. James (California Supreme Court) reported in Vol. 15, Labour Relations Reference Manual at p. 798 (1945), 15 L.R.R.M. 798, published by the Bureau of Na- tional Affairs, Washington, D.C. The union involved was the International Brotherhood of Boiler Makers, etc., of America . Usually, industrial unions have no colour bar, but some of the craft unions and the railway brother- hoods do have . In 1946 a study of admission policies indicated that thirty- two unions, representing almost one-fifth of organized labour in the United States, denied full membership to negroes . See, The Right to Membership in a Labor Union (1951), 99 U. of Pa. L. Rev. 919. Many industrial unions are actively opposed to racial discrimination. Recent legislation in the United States has also resulted in some policy changes on this point. The union that restricted membership to sons of members was the Newspaper and Mail Deliverers' Union of New York, and the case is reported at (1950), 27 L.R. R.M. 2003.

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these employees, and his obligation is enforceable through the arbitration procedures But someone will say : "I admit that the closed shop and the union shop are not fair and involve too great a degree of compulsion, but the same argument does not apply to a' maintenance of membership clause. Here there is no compulsion, and no serious consequences for employees who either do not want to join the union or are not permitted to join. A maintenance of membership clause merely provides that those who are members or who become members must maintain their membership for the duration of the agreement as a condition of employment, and surely it is not unreasonable to expect them to adhere to obligations voluntarily accepted." A certain . employee who had been a member of the union for years, was in fact a past president, became convinced that the present leaders of the union were not properly representing the employees and actively spoke against them during a campaign for election of officers. At one meeting he attacked the incumbents in somewhat intemperate terms. He was subsequently expelled from the union for creating disharmony at a membership meeting and, since he thus failed to maintain his membership, he also lost his employment under a maintenance of membership clause. Another employee under a similar clause carried his opposition to the union.to the extent of joining another union and soliciting other employees to . do the same with a view .to getting the new union certified in place of the incumbent union. He continued to pay his dues to the first union, but soon found himself expelled and discharged for "dual unionism", a serious offence .under most union constitutions.? In all but one of the instances cited the employees were willing to become or remain members of the union, but in each case they were ..refused admission or expelled against their will. This is an aspect of union security that is too seldom considered-that a man may be deprived of his job, his livelihood, not because he refused to accept the obligations of union membership but because they were arbitrarily taken away from him. It is easy to see that, if compulsory union membership became more prevalent, we

6 The cases mentioned - must remain anonymous, but other similar cases can be cited. One of the numerous cases on this point (which reached the. National Labor Relations Board in the United States) involved the Inter- national Association of Machinists (1951), 28 L.R.R.M. 1562 . See also In re Kaiser Aluminum and Chemical Corp . (1951), 28 L.R.R.M. 347 . This case involved a discriminatory initiation fee, $75 as compared with the normal $25, and also a special $5 "ex-membership fee". 7 These two cases are also anonymous but, as subsequent documentation shows, similar instances have been reported . -`

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might even have a new form of ostracism-of men who are permanently barred from industrial employment, drifters and charges on the state, because they are on a union blacklist. Now it is quite true that many union men readily agree that such sinister possibilities are deplorable and indefensible. They disavow any desire to cause a man to lose his job by expulsion for reasons beyond his control and concede that only those who deliberately refuse to become or remain members should lose their employment . Others admit that the only compulsion they seek is payment of dues. This more moderate attitude explains why many unions are now willing to settle for such forms of union security as compulsory dues check-off (the Rand Formula) . Although such devices are vulnerable to attack on other grounds, the kind of problems posed in this article do not arise with them. The fact remains, however, that unions continue to insist upon "union security" in its unadulterated form - membership, not merely payment of dues, as a condition of employment. I do not know of any union that has, as a matter of policy, abandoned its quest for the full union shop. Other union leaders are quite frank in contending that an employee who is expelled from a union should lose his employment. They argue that one of the main purposes of a union shop is to enable the union to maintain discipline and, without the sanction of expulsion and consequent loss of his job, the union has no way of enforcing its constitution and by-laws against employees. This argument is the only one of the many commonly used to justify the union shop that contemplates the possibility that an employee may be deprived of membership. All the others proceed on the assumption that an employee has to be forced to join or continue his membership. Some union negotiators have in fact stressed the disciplinary features of the union shop in appeal- ing to the employer-with the union shop they could keep obstreperous employees "in line" and thus help the employer to maintain discipline in the plant. Such an approach could, of course, result in practice in a conspiracy between an employer and a union to silence any employee or group of employees who seek to exercise their lawful and proper right of negotiating grie- vances or bargaining for better wages or working conditions. In any event, it is not the union's function to maintain discipline in the plant. This is clearly a function that can only be effectively performed by management. The usual reply of union spokesmen to the grave questions posed in this paper is that they are largely imaginary, that very

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few union members have been expelled. and that few unions impose restrictive conditions on joining- a union. One prominent labour leader recently attempted to make light of the whole problem by stating that his union had only expelled three members in the past thirty years. Obviously, this is no answer. Even if only one employee had lost his job in this fashion or been prevented from obtaining another, the problem would still be a serious one. The fact remains that he has been deprived of his means of livelihood by the arbitrary and uncontrolled, action of a third parity and, moreover, for an offence that may not even be remotely connected with the ordinary employer-employee relationship. There is another good reason why there have not been many such instances. In Canada there are relatively few closed shop, or union shop agreements." But if the announced objectives of most unions are attained and the union shop becomes universal, it is obvious that the problem will be greatly accentuated. Although it is hardly likely that the number of expulsions would ever become great, the serious threat to individual liberties . would remain. It would take a brave union member to risk loss of his employment by doing anything or saying anything that might amount to an expellable offence under his union constitution. The consequent effect upon internal union criticism or opposition, no matter how well merited, is obvious. It may be said that there is no reason why unions should not have the right to initiate a discharge in order to maintain internal discipline, because the employer has a similar right through his power to refuse to employ or discharge. The argument has no validity at all.. In the first place, the analogy is a fallacious one. The employer-employee relationship, involving as it does a mone- tary consideration for services rendered, is obviously not, in any respect, comparable to the union-member relationship. In the second place, employers do not ask a third party to apply sane-- tions, as does a union that asks an employer to discharge an employee merely because he has been expelled from the union. No, one denies the right of a union to expel a member, or even to refuse membership . The . root of the difficulty, lies in the -"double jeopardy'-the fact that, discharge from employment is added to the expulsion. Finally, employers no longer have an unquali--

$ Nevertheless, the recent study made by the Labour Gazette of a sample of 500 representative agreements in Canada (October 1951, p. 1359) showed that there were 64 maintenance of membership, 55 union shop, 49 modified union shop, and 62 closed shop agreements, covering.about 137,000 .employees. A study of all agreements would reveal substantially more provisions of this kind.

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fled right to discharge employees. One of the basic principles of all our labour relations legislation is to be found in the so-called anti-discrimination or unfair labour practice sections, under which it is not only an offence to refuse to employ a person because of his union membership, but also to discharge any employee for the same reason.9 An employer who discharges an employee for this reason is subject to a fine and, in most provinces, the employee can also be reinstated . True, this restriction applies only to discharge for union activities, but there is an even greater and more important control over the employer's right to discharge. Almost every collective labour agreement now contains an arbitration clause providing for compulsôry and binding arbitration of disputes arising out of the agreement.l9 Every time an employer discharges an employee, he must, if the employee or the union lodges a grievance, be able to prove to the satisfaction of an arbitrator, an independent third party, that he had sufficient and just cause for the discharge. As every employer knows, this has resulted in an important diminution of traditional management prero- gatives, and employers are being repeatedly required by arbitrators to re-instate employees who have been discharged for what the employer considers good cause. I do not quarrel here with the arbitration of employer-initiated discharges. Even though it may seem onerous and vexatious to employers, it has resulted in a substantially greater measure of job security for employees, particularly against arbitrary and unjust discharges. The right to have the reasonableness of discipline adjudicated by an impartial third party is probably one of the most important achievements of collective bargaining. But, having fought for and obtained this important benefit, unions now assert their right to do the very thing they have succeeded in preventing employers from doing. By demanding the union shop, unions are in effect demanding the right to discharge employees, not for a breach of the employer's rules, but for breach of their own rules. Admittedly, unions have an internal trial procedure with the right of appeal to higher authorities, but an employee is no better off under such a system than he was when the plant manager made the final decision on a discharge. An appeal to the governing body of a union by a member who has been expelled is the same as being tried by legislator and prosecutor. A union member 9 See Industrial Relations and Disputes Investigation Act, 1948 (Can .), c. 54, s. 4. All provincial labour relations statutes have similar provisions . In Quebec there is no provision for reinstatement . lo In most provinces, the inclusion of such a provision in collective labour agreements is mandatory.

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has no right to a trial before an impartial tribunal as an employee has before an arbitrator. But even if he had;, he would have no real remedy because a union tribunal would still be governed. .by the union's- constitution and, although he might receive a "fair" trial, he would have to remain expelled if he were found in breach of that constitution. The employer's right to discharge is now a negotiable matter, but a union's by-laws and constitution are unilateral documents not subject to any external control. As the Kuzych case shows, the only judicial redress available to an employee who has been expelled and discharged under a union shop contract is when he can show that he has been denied a fair hearing or if the "trial" has not been conducted according to the rather vague concept of "natural justice". Even then, he may, presumably, contract out of his meagre rights, or out of any trial at all, under the terms of his admission to the union. That is why I emphasize that, even if Kuzych had been upheld in the Privy Council, the real issue would not have been affected. Em- ployees could still be expelled from unions, with a resulting loss of their jobs, for any trivial and arbitrary reasons prescribed by union constitutions, provided only that the internal trial or hearing was fairly -conducted. In the face of such palpably intolerable consequences, it is indeed surprising that so many union leaders and supporters still persist in sponsoring the union shop. It is even more surprising that ordinarily thoughtful neutral observers should do so. The union shop has received a considerable degree of support from such sources, including textbook writers and conciliators . Their reasoning has seemed to be as follows: aresponsible union deserves union security, that is, all employees should be required to become and remain members; this union is responsible; therefore, this union should have union security. The major premise here is invalid in two respects. It is submitted that there has been . a failure to appreciate the full implications of compulsory membership enforced by the threat of loss of employment, in particular, the possibility of expulsion. Moreover, as long as a union remains a private and unregulated association, the degree of its respect- ability or responsibility would seem to be immaterial. Even a responsible union may have constitutional rules or requirements that are inimical to the public interest."

11 I am not unmindful of the comparisons union spokesmen sometimes make between the union shop system and the compulsory membership requirements of the various professional societies-law, medicine, engineering, for example . The administration of these societies may of course be subject to criticism, particularly when they deviate from their original, objective of

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At this stage, it is appropriate to examine some union constitutions to ascertain the reasons for which union members may be expelled. I also propose to examine the disciplinary policies of unions and a few actual examples of the serious consequences inherent in the application of compulsory union membership. In making this analysis, I do not wish to be unfair and I realize that, in many cases, the motives underlying union constitutional provisions are perfectly proper, with no sinister objective involved. I realize also that in administering their disciplinary functions most unions have a creditable record. Nevertheless, with the great increase in the economic and political power of unions, their internal organization and administration are wholly proper subjects for public scrutiny, especially when, as is the case with the union shop, the employer is asked to impose the disciplinary sanctions. Furthermore, an innocent sounding, and by itself perfectly defensible, disciplinary rule can be and has been applied for completely improper purposes. Under the constitution of the International Union of Mine, Mill and Smelter Workers (Ind.), it is an offence, subject to a fine or suspension, if any member, for the purpose of influencing an election, "maliciously or falsely circulates . . . any statement . . . reflecting on the standing or character either in private or public life of any member, or falsely construes the motives, or maliciously reflects upon the integrity of any member . . . of the In- ternational Union . . . as a majority vote may decide".12 upholding the ethical and educational standards of professions which offer their services to the public. The important point of difference is that their rules, or their right to make rules, concerning qualifications for membership are a matter of law . The rights of such governing bodies are derived from the sovereign legislature . They are quasi-public bodies. Union constitutions are, of course, wholly private documents and may contain any provision that a convention chooses to incorporate. The judicial restraints on the rules of private societies, such as clubs and unions, are, especially under the theory of contract, decidedly nebulous and meagre . The multiplicity and rivalry of unions is a further complication . 12 Article 5, section 1, of the amended constitution adopted by the 46th Convention, September 1950. It is of interest to note that the preamble to this constitution reads as follows : "I. We hold that there is a class struggle in Society, and that this struggle is caused by economic conditions . 'T. We affirm the economic condition of the producer to be that he is exploited of the wealth which he produces, being allowed to retain barely sufficient for his elementary necessities. 'T. We hold that the class struggle will continue until the producer is recognized as the sole master of his product. "4. We assert that the working class, and it alone, can and must achieve its own emancipation. "5. We hold that an industrial union and the concerted political action of all wage workers is the only method of attaining this end .

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Article 18, section 2, of this union constitution provides-that a member who is charged with "conduct unbecoming of the Union or with having committed an offence in violation of his obligation or against the good and welfare of the International Union" may be tried by a trial committee of five members, any three of whom may recommend a fine of $100, or any four of whom may recommend suspension or expulsion. The sentence is subject to confirma- tion by a majority vote of the members present at a local union meeting. There is an appeal to the international executive board of the union.1 3 This constitution further provides that "Anyone acting as a strike-breaker or scab during a strike . . . who professes to have seen the error of his ways, shall be fined a sum of not less than one hundred dollars ($100.00); and shall be placed on probation . . ." . He shall further "remain on probation until such time as the Local Union- . . . shall declare his offence expiated in full by good work for the cause". One might well speculate on. the fate of a member who persisted in living up to his collective agreement in the ease of an illegal strike and who refused to. admit that he was wrong. The constitution of the International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO)14 does not mention any specific offences, but article 48 contains an elaborate trial and appeal procedure to deal with charges against a member of the Union who has " . . . violated this Constitution, or engaged in conduct unbecoming a member of the Ünion". It is apparently also a punishable offence for a worker to have committed "acts or conduct detrimental to the interest of the union or its members" while he was out of the union on withdrawal card (article 48, section 2). This union distinguishes between ordinary suspensions and those involving loss of a job in the case of a union shop contract, and also between suspensions and expulsions. Section 11 of article 48 provides : "In "6. An injury to one is an injury to all. "7.. Therefore we, the wage workers employed in and .around the mines, mills and smelters, tunnels; open pits, open cuts and dredges, of the Western Hemisphere, unite under the following constitution :" Under article 8, section 10, of this constitution the international president may also "revoke the charter of, or penalize any Local Union for violation of the Constitution, or proven treachery to the principles of the International Union" . 13 Section 6 of the same article provides that: "A member placed on trial shall be permitted representation by counsel of his own choice; such counsel, however, shall be a member in good standing of the international Union and shall be required to abide by the trial procedure as established by the Trial Board and as outlined in the Constitution" . 14 Adopted at Cleveland, Ohio, in 1951 .

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the case of a plant in which union membership is a condition of employment, suspension from membership shall not require removal from the job, provided, that in cases of extreme emergen- cy, removal from the job maybe required by a two-thirds vote of the body voting suspension. However, in the case of a plant in which Union membership is a condition of employment, expulsion from membership shall require removal from the job." The constitution of the United Steelworkers of America (C.I. 0.) ib provides as follows in article 12, under the heading Discipline : Section 1. Any member may be penalized for committing any one or more of the following offences : (a) violation of any of the provisions of this Constitution, any collective bargaining agreement, or working rule of the Local Union; (b) obtaining membership through fraudulent means or by misrepresentation ; (c) instituting, or urging or advocating that a member of any Local Union institute action in a court against the Inter- national Union or any of its officers or against a Local Union or any of its officers without first exhausting all remedies through the forms of appeal of the International Union ; (d) advocating or attempting to bring about the withdrawal from the International Union of any Local Union or any member or group of members ; (e) publishing or circulating among the membership false reports or misrepresentations; (f) working in the interest of or accepting membership in any organization dual to the Inter- national Union ; (g) slandering or wilfully wronging a member of the Inter- national Union; (h) using abusive language or disturbing the peace or harmony of any meeting in or around any office or meeting place of the International Union; (i) fraudulently receiving any money due the organization or misappropriating the monies of the organization ; (j) using the name of the Local Union or the International Union for soliciting funds, advertising, etc. of any kind without the consent of the appropriate body or officer of the International Union ; (k) furnishing a complete or partial list of the membership of the International Union or of any Local Union to any person or persons other than those whose official position entitles them to have such a list, and (1) deliberately interfering with any official of the International Union in the discharge of his duties . Section 2. Any member convicted of any one or more of the above offences may be fined, suspended or expelled . The constitution of the United Mine Workers of America (Ind.)" is also fairly explicit on the subject of discipline. Article 18, section 7, provides : "when any member of the United Mine Workers of America. is charged with fomenting, leading or en- couraging a dual union or a dual movement within the Organiza- tion . . . a hearing of such charges shall be had" and if, upon such hearing, "the International Executive Board finds such . . . persons guilty, it may order . . . the expulsion of such member from the organization or suspension of his membership". Section 2 of is Adopted at Atlantic City, N.J., on May 12th, 1950. is Adopted at Cincinnati, Ohio, in 1948.

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article 18 provides for prosecution.and punishment of any member who is accused of "violating any.of the Organization's laws or any transgression against the Organization or any of its officers or members". Section 3 of article 16 is as follows: Any member guilty of slandering or circulating or causing to be circulated, false statements about any member or any members circulating or causing to be circulated any statement wrongfully condemning [sic] any decision rendered by any officer of the Organization, shall upon, conviction 17 be suspended from membership for a period of six months . Lest readers get the impression that only the younger and more militant unions. have such stringent and all embracing disciplinary rules, I hasten to add that, if anything, the constitutions of the older unions of the America Federation of Labour are more severe. In an excellent article entitled "Disciplinary Powers of Unions" Professor Clyde Summers, Associate Professor of Law at the University of Buffalo, studies the constitutions of 154 national and international unions in the United States." This. exhaustive analysis includes such conservative unions as the railway brother- hoods, the typographers, the printing pressmen's union, the Amer- ican Federation of Radio Artists, the musicians' union, the car- penters' union, the amalgamated clothing workers, the letter car- riers', union, airline pilots, and many others. The great majority of these unions operate in Canada. ,_ Many of the constitutions contain vague and general clauses prohibiting certain conduct and providing penalties for a breach, usually suspension or expulsion. The following is a partial listing of the kinds of conduct that are prohibited: "disloyal", "dishon- ourable", "detrimental to the best interests of the, Union", "which destroys harmony", "causes dissension", "disruption", "under- mines the Union or its members", "brings the Union into discredit

iv Another article of the United Mine Workers' constitution reads : "Any member accepting membership in the Industrial Workers of the World, the Working Class Union, the One Big Union, or any other dual organization, or membership in the National Chamber of Commerce, or the Klu-Klux Klan, or the Communist Party, or Fascist, Nazi or Bund organizations, shall be expelled from the United Mine Workers of America, and is permanently de- barred from holding office in the United Mine Workers of America, and no members of any such organization shall be permitted to have membership in our Union unless they forfeit their membership in the dual organization immediately upon securing membership in the United Mine Workers of America . Any member of the United Mine Workers of America who accepts office in any dual organization shall be permanently expelled from the United Mine Workers of America, unless reinstated by the International Executive Board." 8 (1950), 3 Industrial and Labor Relations Review (Cornell University) 483,1 .and (1951), .4 ibid. 15. See also an article by Professor Arthur Lenhoff (1951), 46 111. L. Rev. 669.

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or disrepute", "violation of the constitution", "violation of the oath of membership", "disobedience to the regulations, rules, man- dates and decrees of the Locals or International", "offences against the general good and welfare of the Union". Other constitutions contain penalties for various specific offences. For instance, some prohibit: "interference or opposition to the legislative program of the Union", "working with non-members", "use of machine-mixed material" (plasterers' union), "strike breaking", "use of spray guns" (painters' union), "discussing union business in public", "acting as `stool pigeon' to the Captain" (marine cooks' union), "leanings toward dictatorial principles", "adultery" (railwaytrain- men), and so on. A few of these rules may be quite justifiable-the sort of rules that almost any social or fraternal association might have in its by-laws. Most of them are, however, open to abuse. The rules couched in general terms are for the most part completely indefensible. They are so loosely and so broadly worded that they could be used to oust almost any member on the flimsiest of grounds. They seem almost to be designed to permit discipline of members against whom no real offence can be proven. None of these union rules is subject to any impartial adjudication. They are administered-guilt established and punishment meted out - by the same groups that made the rules, surely a strange ad- mixture of legislative, prosecutory and judicial functions. In some unions there is not even a semblance of a trial by atribunal. Guilt and penalties are determined without trial by athree-quarters vote at a meeting of members. In one particularly flagrant instance, the convention gave the president sole authority to expel any member at his own discretion-without trial.'!) Here again I must add that in the vast majority of unions the more stringent disciplinary rules are rarely applied and even more rarely abused . Nevertheless, they can be and have been used, and they can be and have been abused, and with the frequently re- curring internal quarrels and factionalism to which unions, as political institutions, are subject, even the most honest and well- intentioned union leader might be tempted to use his powers to purge a harassing opposition. If the powers are not to be used, then they should not exist. But even if the incidence of expulsion is relatively low, the fact remains that Professor Summers' re- search revealed that 218 cases involving union discipline have reached the courts in the United States since 1890. Some 88 of

is Summers, Disciplinary Powers of Unions (1951), 4 Industrial and La- bor Relations Review at p. 122.

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these involved multiple or mass discipline, and the number of members affected is thus much greater than 218. Most of these cases involved loss of employment under a union shop, closed shop or maintenance of membership clause, but the figures do not include expulsions that were not taken to the courts. The following are some of the offences for which union members have been expelled or suspended with consequent loss of their jobs, as revealed by Professor Summers' study and other sources: re fusing to pay an assessment for political purposes; 10. returning to work after a strike had been enjoined by court order but before it had been officially ended by the union; 21 during a union election campaign, accusing incumbents of misfeasance in office; 22 giving financial assistance in a court action to à fellow member who had been expelled ; 23 accusing the union president of having "scabbed" in a strike ; 24 issuing a circular at a convention criticizing international officers for not prosecuting a grievance; 21 being a Com- munist; 21 accusing the officers of a local of being Communists; 27 campaigning for the Republicans when the local had voted to campaign for the Democrats; 23 supporting a rival union in a campaign preceding a labour relations board election; 11 actively parti- cipating in a campaign to organize a rival union;au writing a letter to the newspapers urging unions to "clean their own house and remove racketeering leaders" ;" telling, her forelady that the union was putting pressure on her to hold down production on piece- work ; 32 testifying before a legislative committee about a fine and

20 3 Industrial and Labor Relations Review at p. 495. 21 Ibid ., p. 495. 221bid ., p. 498. 23 Ibid ., p. 498. 24 Ibid., p. 499. 25 Ibid., p. 500. 23 This involved the president of the local and several committee members at the Consumers Gas Co. Ltd . at Toronto in 1950 during the "purge" in the International Chemical Workers Union. 21 Bethlehem. Fairfeld Shipyard and Industrial Union of Marine and Ship- building Workers (1944), 15 L.R.R.M. 2635 . 28 Morgan v. United Electrical, Radio and Machine Workers - of America (1945), 16 L.R.R.M. 720. 29 This incident occurred in an Ontario paper mill several years ago . A C.I.O. union was attempting to displace an A.F. of L. union and three employees who were active in the campaign were, expelled from the incumbent union. Under the union shop provision of the existing collective agreement, they were discharged-obviously, an effective way to thwart the rights given by the Ontario Labour Relations Act, under, which employees can choose new bargaining agents. 30 In re Federal Electric Products Compdny and United Electrical, Radio and Machine Workers of America, Vol 1, Labour Arbitration Reports (Bureau of National Affairs, Washington, D.C.) p. 13 (1945), 1 L.A.R . 13. 11 Summers, Disciplinary Powers of Unions, supra, at p. 506 . 32 Ibid., p. 507. '

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suspension which had previously been levied by the union;" joining another union toward the end of a contract period;34 failure to pay a special assessment of $2 a week; 31 conduct unbecoming a union member ;" refusing to pay fines for non-attendance at union meetings ; 37 crossing a picket line ;" threat of personal injury to another member;39 refusing to pay a fine imposed for testifying on behalf of an employer at an arbitration proceeding; 41 failure to participate in a strike in violation of the contract ; 41 participation in an unauthorized strike; 42 resigning from the union during an escape period without paying arrears of dues; 43 refusing to give up his membership in an A.F. of L. craft union; 44 being too zeal- ous in discharging his duties as a sub-foreman ; 41 refusing to follow

33 Ibid ., p. 508. 34 F. H. Hill Company Inc. and United Electrical, Radio and Machine Workers of America (1947), 8 L.A.R. 62 . 3s In re Port Houston Iron Works Inc. and International Association of Machinists (1947), 7 L.A.R. 679. 38 In re Marathon Electric Manufacturing Corp . and United Electrical, Radio and Machine Workers of America (1947) 7, L.A.R. 610 . Incidentally, these arbitrators, when the company hesitated to discharge an employee on such vague grounds, stated: "While the Arbitration Board does not agree with the Company that it is either the duty or the right of the Company . . . to inquire into the merits of the action taken by the Union, it does agree that there is both a right and a duty to inquire into the question of why the member is no longer in good standing, so that it may be assured : (a) that the constitution and by-laws have been followed; and (b) to make such inquiry as it is necessary and advisable to protect itself against any possible violation of the National Labor Relations Act or other fundamental laws". 37 In re Electric Boat Company and United Electrical, Radio and Machine Workers of America (1946), 5 L.A.R. 258. 38 In re Illinois Bell Telephone Company and Illinois Union of Telephone Workers (1946), 5 L.A.R. 326. 39 In re National Malleable and Steel Castings Co. and United Automobile, Aircraft and Agricultural Implement Workers of America (1947), ? L.A.R . 243 . "0 In re Link-Belt Speeder Corporation and United Farm Equipment and Metal Workers of America (1945), 2 L.A.R. 338. In this case, the employer was held not to be required to discharge because the expulsion on such grounds was "contrary to public policy and contravenes the guarantee of free speech" . Obviously, a remedy based on such general grounds is not very practical for a man who has lost his job. 11 In re Sheffield Steel Corp . (1945), 17 L.R.R.M. 1776 . A similar incident is reported to have occurred at Canada Packers Ltd. in Toronto in 1945 . The union was the United Packinghouse Workers of America. 42 In re General Tire & Rubber Co. (1945), 16 L.R.R .M. 2560. 43 In re Merrill Stevens Dry-Dock & Repair Co. and Industrial Union of Marine and Shipbuilders of America (1944), 1 L.A.R. 15. In this case, the company rehired one of the employees, who had been discharged pursuant to the maintenance of membership provision, as an assistant foreman - a job outside the bargaining unit. The union objected and the arbitrator ordered him not to be employed by the company in any capacity. 44 This occurred in an Ontario plant in which a C.I.O. union held a union shop agreement . The employee was not actually expelled, but he was told that he would not be admitted to membership until his other "dual" union affiliations were severed. 45 This was a Canadian case that must remain anonymous. The employee was subsequently re-instated when the employer appealed to the international executive of the union.

19521 Union Security Clauses and the Right to Work 155 e union instructions not to work overtime.46 A number of the union members involved . in these cases were subsequently ordered reinstated by the courts on various grounds, chief among them be- ,ing that the trial was biased and improper. 41

IV The disciplinary powers of unions would, in ordinary circumstances, be the concern of no one but the members themselves. Every voluntary association undoubtedly has the right to stipulate the conditions under- which a person may hold membership . If expulsion merely entailed social ostracism, loss of internal union benefits or voting privileges, there would be less justification for any objection by outsiders, no matter how frivolous and arbitrary the action might be. But when the employer is asked to apply the sanctions for failing to maintain' membership in good standing, when the ultimate penalty is loss of. a job and possibly loss of livelihood. at his regular trade, then it becomes not only a matter of concern for management, but gives rise to a social problem of the first magnitude. A system whereby the right to employment is made dependent on the terms of private contracts between employers and unions is inconsistent with the public interest. Basically union leaders purport to justify compulsory union membership by referring to the unfairness of "free riding"- of an employee receiving the benefits obtained by the union without paying for them. Even if this argument had merit (which is by no means, admitted), there would still be no justification for compulsory membership -much less for the right to expel. In any event "free riding" is a separate problem wholly unrelated to the point we are discussing here. Possibly union negotiators, who press for compulsory membership provisions, either do not know about the evil consequences that could result from expulsion of members under their constitutions or disregard the possible results as being too remote. Some of the cited instances reveal that the dangers to job security and civil liberties are all too real. Many thoughtful union 'leaders appreciate the incongruity of this aspect of union "security" and deny any intention of precipitating the serious ef- 46 This was also a Canadian case . It is not certain that anyone was actually expelled, but employees were threatened with expulsion and eventually the union was successful in curbing all overtime work, including replacements for absentees on a continuous process operation. Under its constitution, the men could have been expelled and the possibility obviously had a deterrent effect. 47 All the American expulsions and consequent discharges ante-dated the Taft-Hartley Act . As will be seen later, employees can no longer be discharged for such reasons in the United States.

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fects mentioned. The denials are undoubtedly made in good faith. What, then, can be done? One obvious course is for the unions to clean house and bring their disciplinary rules in line with cur- rently accepted standards of industrial ethics. Most employers have done so, many at the behest of unions. The old "book of rules", which enabled an employer unilaterally to discharge an employee for almost any reason, or indeed for no reason at all, is largely a thing of the past. An employer's right to discipline employees under a collective agreement is subject not only to chal- lenge by the union but also to adjudication by an impartial arbitrator. Even if all union by-laws were amended to remove the more glaring opportunities for injustice, and became models of constitutional propriety, the chief problem would still remain- an employee could still lose his membership and thus his job by expulsion, without having any recourse to an impartial tribunal. The courts, as the Kuzych decision and scores of others show, provide only a narrow avenue of redress. The present state of the law on the autonomy of private clubs and associations in making and enforcing their own rules, and the theory of contract applied by the Privy Council, make it impracticable and usually fruitless for an expelled union member to seek the assistance of the courts. Some employers have soaght to protect themselves and their employees against arbitrary expulsion, and consequent discharge, by providing in their agreements that employees refused admission to the union, or expelled from the union, may have recourse to the grievance procedure, including arbitration. This approach was used by the National War Labor Board in the United States during the war as a condition of imposing maintenance of membership agreements upon employers. But such a device does no more than protect an expelled member against an unfair union trial. The arbitrator could make an unbiased finding of fact, but he would still be bound to apply the terms of the union constitution, a private, unilaterally conceived document. If the union constitution contains a prohibition against using a spray gun, for instance, or against slandering an officer, or against working overtime, the arbitrator is powerless to aid the employee to retain his job if he has in fact committed one of those offences, no matter what he might think about the justice of the provisions. Another possible solution is for unions to cease demanding the union shop and maintenance of membership. It is a fact that many union leaders have in recent years professed to find adequate un ion security in such devices as compulsory dues check-off (the Rand Formula) or "maintenance of dues payment" clauses. Al-

19521, Union Security Clauses and the Right to Work 1.57

though these forms of financial security are in. themselves objectionable on other grounds, it is true that they do not give rise to the type of coercion we are concerned with in this paper. Unfortu- nately, few unions have officially abandoned the objective of or- thodox union security, that is, actual membership as a condition of employment.48 Furthermore, a reliance on the good sense of . responsible labour leaders would still not curb the, activities of others less scrupulous, who are in aposition to coerce an individual employer into granting them the full union shop with all its poten- tialities for evil. One of the most disturbing aspects of. the whole union security issue is the support it has received from neutral sources. As in- timated earlier, a number of conciliation boards have recommended that the union shop or . maintenance of membership be granted without any conditions attached. In the province of British Col- umbia such recommendations are becoming fairly common. In Ontario, there have been several instances in recent years.49 In one case, the report was unanimous though the board included a business executive who was the company's representative. In academic circles, there is also considerable support for the union shop and maintenance of membership.. Individual clergymen and official church bodies (Roman Catholic as well as Protestant) have publicly recorded their support. Again the good faith of the supporters is not questioned. The as It is significant that at the Ford Motor Co. of Canada, which pioneered in the introduction of the Rand Formula, the U.A.W. demanded the full union shop in recent negotiations. An editorial in the August 1951 issue of the "Canadian Unionist", official organ of the Canadian Congress of Labour, after quoting some adverse comment on the union shop principle from a daily newspaper, went on to say: "This appears to us to be the grossest non- sense. The closed shop is a recognized union principle, and has nothing to do with one's economic or political views. It is rightly regarded as one of the important objectives of a.trade union. There is no reason why any honest worker should object to the closed shop, and' anyone who does so must be regarded as unworthy. of membership." This editorial writer apparently had not checked with the author (Prof G. R. Schmitt) of the regularly featured column, "Legally Speaking", which appeared in the same issue and con- cluded: "The legal questions involved in the Kuzych case are quite technical, and a discussion of them will await the decision of the Privy Council. How- ever, the case does raise an important practical question. How far should a union, especially a union with a closed shop agreement, be able to regulate its membership? It is difficult to convince the public that it should be illegal for, an employer to refuse to. employ a man because that man happens to be pro-union, but perfectly legal for a union to prevent a man getting employment because, although he is willing to belong to a union, he happens to be anti-union or anti-closed shop in his views. A union must be able to discipline its members if it is to carry out its contractual obligations . But a union which has the power to determine who shall work is hardly in the position of a private club or a church which can expel non-believers or objectionable characters without serious economic effects ." as Notably a conciliation board report dealing with Canadian Industries Limited at Windsor and the recent Ford-U.A.W. report.

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sympathy for "union security" is probably a relic of the days when unions were relatively weak and employers were sometimes able to devise effective methods of undermining them. It was natural perhaps that well-meaning neutral observers should view with favour a device which helped strengthen the union. Un- doubtedly, "union security" originally implied security against the employer, not against employees. The union shop has also been justified on the grounds that it is socially desirable, and actually in the interests of the employer, that all employees should participate in the responsibilities of membership and thus ensure a greater degree of democratic control. The great fallacy, which seems to have escaped the "liberal" elements, is that compulsory membership involves something more than an employee's own volition. They no doubt appreciate that if an employee does not join the union or does not maintain his membership, he will lose his employment, but what they fail to appreciate is that a union can also refuse to admit an employee to membership or can expel an employee who wants to remain a member. An employee's right to gainful employment thus depends upon the decree of a private organization . I am confident that once these features are fully understood much of the current support for the union shop will disappear. One would think that those who support compulsory union membership as a condition of employment would, at the very least, make an effort to ascertain on what terms membership can be withheld or withdrawn. I have yet to see any awareness of these terms in public pronouncements by advocates of the union shop. Seldom has any attempt been made to study the union's constitution in order to find out the conditions of membership ; rarely is there any interest in determining whether provisions for a fair trial exist. Surely such an analysis should-be a condition precedent to the granting of power to deprive a man of his employment . Obviously, even if one were satisfied on these two points, it would still be highly dangerous to confer so wide a power on a union. Even if the constitution contained no right to expel, it could be changed at any time at a union convention, or by means of a by- law at the local level, because the internal rules of unions, being private and independent associations, are not subject to external regulation."

so It will be noticed that I have not referred in this article to the constitutions of any catholic syndicate unions. The omission is due to the fact that they are not readily available . But even if an examination of such constitutions revealed that they did not contain the same type of onerous disciplinary provisions, my contention would apply to them with equal validity . The

1952] Union Security Clauses and the Right to Work 15 9

If unions persist in pressing for the union shop, thus arrogating to themselves the right to say who shall and who shall not work, it is imperative that other steps be 'taken to prevent potential evils. I am sure that no one wants any more Kuzych cases, and I believe this includes the unions. I know that many union leaders personally share my repugnance for the coercive features of the union shop here described. My motives in calling for an end to the growth of compulsory union membership are not vindictive or inspired by a dislike -for unions. On the contrary, unions have now reached such an important position in our society, and have the opportunity and the capacity for contributing so much that is con- structivë, that it would be a tragedy if they were to be discredited by continuing to ask for and obtain such unwarranted power over the destiny of citizens.

V Three courses of actions are available to deal with this problem. It is possible for provincial legislatures to prohibit the - union shop and other forms of compulsory - membership by statute. Superficially, this direct approach appears to be an effective way of dealing with the problem; it was in fact proposed in the United States when the Taft-HartTley Act was originally under discussion. It has some merit, but runs counter perhaps to our traditions of freedom of contract. In Canada, the preferred course has been to leave the ,terms and conditions of employment as far as - possible to the processes of free collective bargaining. Normally Canadian legislatures have prescribed rules or prohibitions by legislation only if the problem was a serious one (as this one undoubtedly is) and if no other solution appeared feasible. There is also the practical difficulty that an outright prohibition of a parti~ular subject of collective bargaining might unduly interfere with established and generally acceptable practices. The history of the Taft- Hartley Act shows that well-meaning attempts to make frontal legislative assaults on undesirable bargaining practices often fail because they do not take this result into account. The closed shop, for instance, was outlawed, but the prohibition was by no means welcome even in the few industries where the closed shop was prevalent, for example, stevedoring and the building trades. Both unions and employers in these industries apparently were satis catholic syndicates are also private associations and, as such, they would appear' to be free to include in their constitutions any rules they see fit. The Professional Syndicates Act of Quebec, under which most of them are in- corporated, does not appear to restrict their right to expel or disqualify members.

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fled with the closed shop, and the whole recruitment machinery would have broken down if the Act had been strictly enforced there. Even the requirement for a majority vote of employees as a condition precedent to the granting of the union shop was found to be unrealistic and has now been removed. Sponsors of the original Act are now also in favour of permitting the closed shop - with the modifications that will be referred to later. In Canada, most labour relations legislation, both federal and provincial, not only does not prohibit making membership in a union a condition of employment but seems to go out of its way to encourage it. The Ontario Labour Relations Act, 1950, contains the following subsection to section 33 : (1) Notwithstanding anything in this Act, the parties to a collective agreement may include in it provisions, (a) for requiring, as a condition of employment, membership in the trade union that is a party to the agreement. . . . A similar provision appeared earlier in federal legislation, and has since been adopted by most of the provinces. Although no expressly permissive provision appears in the Quebec Labour Re- lations Act, it is certainly arguable that compulsory union membership by agreement would be held legal under that Act also. In Saskatchewan, the Trade Union Act makes a modified union shop provision mandatory in all collective agreements if it is re- quested by the union." There is no evidence that any of these legislatures ever made any inquiry into the membership rules of unions before they set out to encourage union membership as a condition of employ ment. In their zeal to preserve freedom of contract, they have apparently failed to take into account the possible effect on the right to work. Did these legislatures realize, for instance, that some unions can expel members (and thus cause loss of their jobs) for refusing to pay a political assessment in support of a particular party or candidate? In Ontario, there was apparently some knowledge about the attitude of unions to "dual unionism"- joining another union - which is inconsistent with the provisions of the Act providing machinery for changing unions, because a rider was attached to the section that legalized compulsory membership. This reads: "No employer shall discharge an employee who is expelled or suspended from membership in the trade union mentioned in clause a of subsection 1 solely because he is a member of another trade union" .b2 If inquiry had been made, it would si The Trade Union Act, R.S.S., 1944, c. 69, s. 25. as Labour Relations Act, R.S.O., 1950, c. 194, s. 33 (2) . A similar qualifica- tion appears in the federal Act.

1952] Union Security Clauses and the Right to Work 161

have been discovered that unions have expelled members for much lesser offences than joining another union. The prospect of any outright prohibition of the union,shop by law is highly remote, even if it were desirable. A second possible method of dealing with the problems inherent in the union shop is to regulate by law the 'contents of union constitutions. In this way, society could be assured that onerous provisions which might give rise to unjust expulsions would not be allowed to become operative. Such a solution might establish a dangerous precedent, involving as it does an interference with the internal rules of private unincorporated associations, and would of course be strenuously resisted by unions. There is some precedent for it in the laws governing some of the professional societies, and it is quite possible that, as unions achieve more economic power, their internal affairs will become increasingly subject to legislative regulation. The grant of ex- clusive rights by law - certification - possibly makes regulation by law inevitable . Nevertheless, I do not think that it is required at this time, particularly when a less stringent, more generally acceptable and much- more effective remedy is available. My own view is that the most effective way of reconciling the unhappy dilemma between union security and our traditional concept of the'right to work is to be found in recent legislation in the United States. The Taft-Hartley Act provisions banning the closed shop and providing for a vote preceding establishment of a union shop are well known; what is not so well known is the fact that a union's right to bring about loss of employment by expulsion has been drastically restricted . Section 8(2) and (3) of the Act, 53 while expressly permitting an agreement making union membership a condition of employment, further provides that an employer may not discharge or otherwise discriminate against an employee for non-membership: "(A) If he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership".54 53 Labor-Management Relations_Act, 1947, c. 120, Eightieth Congress of the United States . 54 A similar prohibition is placed on unions . A number of employers have in recent years been required to reinstate (with substantial amounts of back

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In other words, although compulsory membership agreements are lawful, all applicants must be allowed to join and the only compulsion permitted is to enforce the payment of dues and in itiation fees - at least so far as the application of sanctions by the employer is concerned. Other restrictive and coercive provisions in union constitutions affecting conditions of employment are completely ineffective and a Kuzych case could not happen in the United States now. The recent amendment to the Railway Labour Act, legalizing the union shop on the railroads, similarly defines "good standing" merely as the payment or tender of "periodic dues, initiation fees and assessments (not including fines and . penalties)",55 Significantly enough, with all the hue and cry by unions a- gainst the Taft-Hartley Act, I have yet to hear any criticism of these provisions. The lack of it need not be surprising because compulsory payment of dues -financial security -goes a long way to satisfy the arguments commonly given in justification of compulsory union membership. It is true that the Act does not enable a union to impose "discipline", but probably the majority of union leaders would be content to forego that power rather than run the risk of revulsion among .their own members and the public, which would be sure to follow if citizens continued to be deprived of their jobs through arbitrary denial or withdrawal of union membership. The result is that none of the so-called union shop agreements in the United States now mean quite the same thing as in Canada. General Motors Corporation is commonly spoken of as having a union shop, but the clause in its agreements carefully modifies the statement about membership in good standing by adding the significant words "in so far as the payment of dues and general assessments is concerned". Still other agreements, as well as some in Canada, stipulate that "for the purposes of this agreement, an employee shall be deemed to be a member in good standing as long as he continues to pay or tender the regular monthly union membership dues" . Pending legislative action in Canada similar to that in the United States, it would seem essential that conciliators, arbitrators and employers be on the alert to insist on suit- able safeguards when compulsory membership requirements are imposed on employees.

pay) employees who had been discharged for loss of union membership on other grounds than failure to pay dues. In some cases the union was required to contribute all or part of the back pay. 51 Mr. Justice Rand, of course, anticipated this type of approach in his "formula" in the Ford arbitration case in 1946.

1952] Union Security Clauses and the Right to, Work 163

But alertness is not enough in view of the gravity of the problem. Through ignorance or by economic coercion, an employer might still be persuaded to grant unconditional compulsory mem bership, and other steps must be taken to protect the functions of management and the job rights of individual employees. One wonders how long it will be before Canadian legislators follow the example of the United States and prevent by law the threat to job security and individual liberties implicit in unconditional compulsory union membership . Unless an employee is protected by law against loss of his job by expulsion from his union, I fear that we shall be faced with serious social andpolitical consequences . This is a problem that transcends any partisan approach to labour relations. It is not even remotely connected with the merits or demerits of unions, and their role in society. It is simply a question of regulating the use of private power. The state cannot continue to tolerate the establishment by private contract of prohibitions on the right to work. It must legislate to ensure that, in the words of Mr. Justice O'Halloran, "If membership in a union is a condition to working at his trade, then he has an indefeasible right to belong to that union".

Professional Education Mr. Justice Frankfurter defined lawyers as `experts in relevance', and the ability to distinguish between the relevant and the irrelevant is a character- istic of the good professional man. We are all familiar with the man who is a walking encyclopedia, but seems unable to apply the facts he has to the solution of problems . He has knowledge without understanding . There is the other person who, confronted with a complex maze of facts, has the capacity to appreciate their significant relations, and to create order and meaning out of chaos. This understanding is a skill which reflects habits of mind and methods of disciplined thought . It should be the purpose of professional education to develop understanding . Wise judgment on the part of the professional man depends'on knowledge, understanding and a sense of responsibility. He can see his work both as a service to his `clients and in terms of its implications for society. Such a view, to which his education should contribute, results from an appreciation of the -forces that influence society. It is primarily this appreciation which distinguishes professional education from vocational education, the profession from the trade, and the professional man from the artisan . (From an address by the President of the University of Alberta, Dr. Andrew Stewart, , to the Annual Meeting of the Law Society of Alberta on January 9th, 1952)