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 op- portunity 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 prob- lems 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. 138 THE CANADIAN BAR REVIEW [VOL . XXX 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 em- ployer, 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 var- ious 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 pro- ceedings was that the "trial" conducted by the union investigat- ing 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 pro- vided 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 interest- ing 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 con- dition of employment . 1952] Union Security Clauses and the Right to Work 139 Despite the protracted and expensive litigation, which indi- cated 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 proceed- ings 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 as- sistance not only from individuals but from employers. 140 THE CANADIAN BAR REVIEW [VOL . xxx 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 conse- quences 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 agree- ments (it is the type of clause nearly every union tries to get) All present employees who are not now members of the union must be- come 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 consti- tution and by-laws of the union, as a condition of employment for the duration of this agreement .