In defence of 'anti-scab' legislation

CBC Saskatchewan recently commissioned a survey on attitudes toward labour unions in the province. 

To go along with the survey, CBC Saskatchewan commissioned two op-eds on the topic of so-called anti-scab legislation.

One of those pieces is below. See the other here.

Banning the use of replacement workers — scabs in the lexicon of working people —  would be a natural legislative response to the legal imbalance employers get from being property owners. 

The Co-op refinery's decision to lock out members of Unifor Local 594 in Regina has brought a great deal of public attention to the role of picket lines during lockouts and strikes. 

More concretely, the lockout has focused attention on the role of the state—including the government, law, courts, and the police—in regulating strike and lockout tactics.

That role has come into sharper focus because the company has used a two-fold strategy to try to defeat the union: employ a small army of scab labour to starve out the union while also applying for and being granted an injunction to legally restrain the picketing of the union. These two strategies should not be seen as mutually exclusive.

In taking these actions, the company has used the social and legal power that stems from ownership of property to weaken the collective capacity of workers to effectively picket.

For the survey, the University of Saskatchewan's Social Science Research Laboratory polled 400 residents in the province. The results are accurate to plus or minus 4.9 per cent, 19 times out of 20. 

Eighty per cent of respondents said they were not members of unions:

More people surveyed approved of unions than not: 

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The tensions that arose after the anti-picketing injunction show how the state alters the balance of power between workers and employers during a labour dispute.

The use of injunctions during labour disputes is nothing new. In fact, in the early decades of the 20th century employers routinely received injunctions to weaken workers' ability to picket. Before the courts, employers routinely argued that picketers interfered with the right to freely run a business.

In Ontario during the 1960s, injunctions became so common that they were routinely identified as a catalyst for picket-line violence. The subsequent legislative response by the Ontario government in 1970 amended the Judicature Act to make judicial intervention in labour disputes more difficult, although certainly not impossible.

In my research, I have never once encountered a situation where a union has sought, let alone won, an injunction to push back against the natural power advantage employers have as property owners. When an injunction is awarded, it is always to the benefit of employer. 

Add these legal advantages to the powers employers maintain in the workplace before a lockout or strike occurs and it is difficult to see how the labour law regime is in any way balanced.

Employers also benefit from the labour law regime in the timing of lockouts or strikes. Under the Saskatchewan Employment Act, legal strikes can only occur after the conclusion of collective agreements, after bargaining is declared at an impasse and the parties undergo mediation or conciliation, after a strike vote and after the parties receive 48 hours written notice. 

During this process, employers are free to stockpile product, to build camps on their property to ship in replacement workers and to use their own unionized workers to build such camps and make such preparations.  

A majority of people surveyed said they thought unions are more helpful than harmful to employees:

However, on the topic of legislation that would prevent companies from hiring replacement workers (so called anti-scab legislation), respondents were split, with 34 per cent saying they either strongly or somewhat supported it, and 34 per cent saying they either strongly or somewhat opposed it:

The entire labour relations regime that Canada and the provinces have adopted since 1944 is built on a conflict model where the two sides attempt to "starve" each other out through what industrial relations scholars define as "economic warfare."  Yet, if one side in that dispute is aided by legal obstacles, how can the dispute be considered balanced? 

One way to correct this imbalance is through a legislative ban on replacement workers during a lockout or strike, as has been enacted in British Columbia and Quebec. Under British Columbia's model, employers are legally forbidden from hiring new workers during a legal strike or lockout and cannot transfer in workers from other locations to perform the work of bargaining unit members.

This legislation is far from perfect. Businesses can encourage existing union members to cross the picket line while also utilizing management to maintain operations. Yet, the main point is that workers cannot be replaced by new labourers to weaken the union's picket line. 

Similar legislation in Saskatchewan would be a significant improvement. Such a ban can easily be added to existing labour codes and would make the strike or lockout decision be based on an equal balance of power. 

Such legislation would make the usage of injunctions during labour disputes virtually irrelevant. Violence on picket lines would be substantially reduced. In other words, peace and public safety would be maintained and police would not be directed by courts or politicians to intervene in the dispute.

The lockout of Unifor 594 in Regina has demonstrated that the picket line continues to be a concrete and vivid image of struggle by working people to defend their material gains in a society that too often is indifferent to deep-seated class inequality.  

By banning the use of replacement workers, the state could go a long way to bringing a semblance of equilibrium to the inevitable future struggles between workers and employers. 

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.

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