Will the System Men Sink it?
On Friday December 12th, 2003, veteran labour relations mediator Vince Ready called for binding arbitration to end a six-day dispute between the British Columbia Ferry Marine Workers Union (BCFMWU) and B.C. Ferry Services Inc., a former provincial Crown corporation now run as an independent business - with some government ties.
The 4,000 workers walked off the job a week earlier over their employer's demands for wage rollbacks and other concessions. When ordered by the BC Labour Relations Board to return to work, the workers refused. Ready had been appointed by the BC government to intervene in the dispute as a "special mediator". The 11th hour mediation session took place just as contempt proceedings against the workers were about to begin in a BC courtroom.
When the marathon mediation session over which he presided failed to end the strike, Ready recommended binding arbitration and union and employer representatives agreed. Legions of business, labour and government officials heaved a sigh of relief. The agreement ended a week long strike that inconvenienced thousands of commuters.
The ferry workers' strike, perhaps more so than any other labour dispute this year, has the potential to be a watershed event for working people. As strikes go, it was short but was very illuminating about the role of working people according to the labour relations system - to suffer in silence for profit - and about the extent to which mainstream labour leaders support and enable that system. It's a wake up call for us to stop putting our faith in a system that abuses and exploits us and to stop believing in the people who make it hum - our employers, unions and legislators.
Inside the System:
When we talk about the Labour Relations System we are referring to the various laws and government agencies that regulate labour-management relations in Canada. The conventional wisdom tells us that system is a good thing. It gives us rights - like the right to organize and the right to bargain collectively - and that it protects us from people who seek to interfere with our rights. It gives us Labour Boards where we can go if our employers interfere with our rights to organize and bargain collectively and arbitrators to whom we can turn if we are our collective agreements are not honored. The conventional wisdom is that the system gives us workplace justice but that's bullshit. The LR System is not about justice in the workplace and was never intended to be. The system exists to maintain order in the workplace - by keeping workers in line.
The system was introduced in Canada in the 1940's when the Industrial Relations Disputes Investigation Act (IRDIA) was implemented. The IRDIA gave unions the right to recognition and required employers to bargain once a union was recognized. Organizing became much easier and, in the decades that followed, unions organized millions of workers. The legislation came with a big string attached however: Strikes during the term of a collective agreement were prohibited. Disputes during the term of a contract were to be taken to binding arbitration - a legal process.
It was this element of the IRDIA that brought about a big shift in the internal culture of unions. Thousands of staff reps were hired to ensure compliance with collective agreements and to advise and counsel members as to their legal rights. The reps were a boon to biz union leaders who were anxious to control a not-always-satisfied membership. Although officially they existed to provide service, they were increasingly relied upon to keep a lid on things at the local level.
The new legislation gave significant rights to unions and placed major obligations on employers and gave union members... a bone: the right to fair representation and to periodically see a financial statement. What was meant by fair representation or how detailed a financial statement needed to be were questions the law never addressed. Members had the right to decertify their union and join another one if they wished, but this could only take place during a narrow window of opportunity at the conclusion of a collective agreement. The unions quickly developed methods to deal with members wishing to do so, some legal and some not. On a practical level, union members had no rights at all in their relationship with their unions. They could be neglected, poorly represented, bullied, lied to, bought, traded and sold, whatever suited their unions. There was no requirement that unions govern themselves democratically. The conventional wisdom was that unions were democratic organizations by their very nature and dissatisfied members would toss out unresponsive leaders. An alternative view was that unions didn't need to be democratic at all. Workers needed leadership - they needed tough, strong guys who were not afraid to make decisions, even unpopular decisions. But it didn't really matter. The legislation wasn't intended to give workers a whole bunch of rights. It was about controlling their growing militancy. Their unions would now join with the employers in putting a lid on that.
By the 1950's, the federal government spun off responsibility for labour relations (except for a few employers) to the provinces. Labour relations acts were passed in the provincial legislatures and LRB's were set up to administer the new laws. Across the country, it was decided that grievances - complaints arising under collective agreements - would be resolved by arbitration. Arbitration would become a private matter between unions and employers who would retain and pay for private "judges" to adjudicate their grievances and, in some limited circumstances, help them resolve their differences at the bargaining table. These circumstances would be restricted mainly to labour disputes that could place the public at risk (such as disputes involving police, fire department, hospital workers and so on), but from time to time would also be used in disputes where there was inconvenience to the public - inconvenience that might put pressure on elected officials to end the dispute.
In theory, arbitration was supposed to be a fair and fast way of resolving labour disputes. Representatives of management and labour would put their cases before a knowledgeable third party (the arbitrator) who would judiciously hear both sides and issue a legally binding ruling. Arbitrators would function much like judges but there was one major difference: labour arbitrators were unregulated, fee-for-service practitioners who would be selected and paid for by both sides. In order to successfully ply their trade, they had to please the two institutional parties - employers and unions.
The system has evolved so as to meet the needs of the two "institutional parties". It gives employers the right to expect loyalty, obedience and compliance from their workers. It gives unions the right to do pretty much what they want to their members. If a union wants quiet, obedient members, that's fine with the system. In fact, order is best kept when employers and unions work together to keep the workers quiet. The system is particularly harsh on workplace rebels and reformers.
The system guys - the arbitrators, LRB officials and mediators - work hard for the institutional parties. At the LRB's nothing gets tossed out as quickly as a DRF complaint. Arbitrators and mediators dispense "rough justice" to members who just can't quite get the obedience thing down pat. ("Rough justice" is a term used to refer to mediation techniques that border on bullying employed to get members to withdraw grievances or sign off on settlements they don't really like.) Mediation-arbitration, a form of alternative dispute resolution that's become very popular in recent years, actually allows the same system guy two kicks at the same dispute. First, he can put on his mediation hat and dispense a little rough justice. If that doesn't work, he can put on his arbitrator's hat and issue a ruling. His ruling can't be appealed. The system works really well at keeping as lid on workers' issues.
If you are a member with a grievance or a part of a bargaining unit whose collective agreement will be settled through arbitration, the system guys have the ultimate power to make you or break you. They can work with your employer and your union to make a deal and then shove the deal down your throat. Or they can just decided, based on whatever, what you're going to get. As far as the system is concerned, there's nothing wrong with that.
To function efficiently, the system requires a degree of cooperation among its three principle players: Employers, unions and governments. Although the government is supposed to play a balancing role between the first two and does to a certain extent, all must work together towards one important objective: Keeping workers in line.
The ferry workers' union's tough stand, in the face of demands for significant concessions by BC Ferries Services, drew harsh criticism from the business community, half-assed hand-wringing from labour leaders and some pompous snorting from other labour scene luminaries who characterized the striking workers as crazies who needed to give their heads a good shake. The union's President, Jackie Miller, was the target of a great deal of the criticism with union and business leaders alike suggesting that her principled stand was simply the result of inexperience and inability to "lead" her members with a sufficiently firm hand.
The criticism, from all three corners of the system was because, as a union leader, she wasn't playing the game by the system's rules and that just can't happen. Fortunately, the system is prepared for such occurrences (as rare as they are) and it worked its magic on her.
Jubilation about Arbitration
According to media reports like this one in the Globe and Mail, the agreement to go to binding arbitration was met with jubilation by the striking ferries workers and apprehension on the part of their employer.
B.C. ferries return to service
Strikers elated but company unhappy as negotiations go to binding arbitration
By ROD MICKLEBURGH
Saturday, December 13, 2003 - Page A7
VANCOUVER -- The familiar, coastal ferries that have become an integral part -- both loved and loathed -- of British Columbia's seascape over the years are back in service after the company agreed to an uneasy truce with its striking workers.
The bitter, illegal strike by 4,300 members of the Ferry and Marine Workers Union ended just before B.C. Ferries was due in court yesterday to seek contempt-of-court citations against the union for defying back-to-work orders from the government and the labour board.
The two sides accepted a recommendation from special mediator Vince Ready, perhaps the most skilled labour peacemaker in Canada, to submit their contract dispute to binding arbitration. Mr. Ready will be the arbitrator.
"We found it next to hopeless at the bargaining table," union leader Jackie Miller said after a fruitless, 16-hour negotiating session that ended at 2 a.m.
"Now there is the opportunity to have someone actually listen to our arguments."
On the picket line, ferry workers seemed jubilant that they could end their difficult strike, which had incensed business leaders and many members of the public, without being forced to accept extensive concessions that the company, B.C. Ferries, wanted and without paying a penalty -- at least so far -- for defying the government's back-to-work edict for more than a day and a half.
"I feel great," a striker said as pickets hugged, exchanged handshakes and began dousing fires in burn barrels.
"I'm very happy," another union member said.
"It's good to be going back to work and make a merry Christmas for everyone."
The company was less enthusiastic, however.
David Hahn, the president of the company, had waged a no-holds-barred assault on the union's contract for overtime, contracting out and pay concessions he said were needed to make the ferry fleet more efficient.
Now, these issues will be up to Mr. Ready.
Mr. Hahn said he "reluctantly" accepted binding arbitration.
"We believe that a bargained solution is always the best solution, but we understand that the first priority is to restore service to the public."
With picket lines down, passengers began streaming to the fleet's 25 terminals that connect the Lower Mainland, Vancouver Island and a number of other island communities.
Many had been lining up for hours, even days, hoping for ferry service to resume.
First in line at the busy Horseshoe Bay terminal in West Vancouver were Bill Fleming and his dog Whiskey from Comox on Vancouver Island.
Mr. Fleming said he had been waiting five days to get home. "The dog got more food than he usually does . . . doughnuts and chocolate cookies from the strikers."
During Thursday's marathon bargaining session, union negotiators were joined by B.C. Federation of Labour president Jim Sinclair and government employees' union head George Heyman, who are believed to have helped moderate the militant ferry workers' stand.
The formerly government-owned B. C. Ferries, which was quasi-privatized earlier this year, carries about 22 million passengers and eight million vehicles a year.
The tie-up was the fleet's first from a labour dispute in more than 25 years.
But Labour Minister Graham Bruce, while welcoming the resumption of ferry service, hinted yesterday that he may consider legislation to ensure there is no repeat of the week's acrimonious, crippling shutdown.
It's understandable that the workers would be happy to return to work and that after a week of fielding acrimonious attacks on her sanity and her members' motives, BCFMWU President Jackie Miller was content to go off to arbitration. It's also understandable that, during a lengthy mediation session where there was little if any movement on the part of the employer, arbitration began to look like a good option. The process has a kind of judicious smell about it. For those who haven't been there or haven't been there enough to know what it's really all about, it's easy to believe that it will result in a settlement that is fair, equitable, reasonable and words to that effect. That's how binding arbitration is usually presented to workers who can't be persuaded to settle for less. It's like going to court. We equate the courts with justice, so it's just a given that we'll come out with something "just". But that's just not the way it is.
Arbitration is arbitrary. It's a process that allows a single person to decide very important issues, with no recourse for anybody who doesn't like the outcome.
Nothing to Cheer About
Will binding arb prove a good move for Miller and the ferries workers? Probably not. We predict that when Arbitrator Ready is finished with Miller, she and her members will wish they hadn't gone there. Ready will throw Miller and the 4,000 or so members a few bones (maybe he'll leave their wages in tact or even grant them a small wage increase but he will side with the employer on issues of management flexibility and those are the issues that are at the heart of this dispute.
The members, many of whom are putting a lot of faith in Ready's impartiality and labour relations wisdom, will be sorely disappointed. So will Miller, but there will be nothing she can do to challenge Ready's decision legally.
Having agreed to go to arbitration with Ready acting as arbitrator, she can hardly take issue with his ruling. There will be no basis for any kind of legal challenge no matter what Ready awards the workers. They will be expected to eat it whether they like it or not.
If they walk off the job in protest, they will be engaging in an illegal strike and will face all the same threats and penalties as they faced earlier this month. It's unlikely that the pro-business BC government will bow to any kind of pressure from her union or any other - certainly not after an arbitration award is issued (although the BC government overturned a binding-arbitration agreement with its physicians in 2002).
Unless the momentum and solidarity that began during their strike can be maintained, the chances of the workers themselves resorting to some sort of protest when Ready slaps them, is unlikely. If they're being led to believe that Ready is going to do more than hear their arguments, there's a big letdown coming their way. When it happens, there will be few people outside of their own group who will be willing to go to bat for them.
Whatever Ready dishes out will be labeled "just" and "fair" by the mainstream labour community. The gentlemen's rules that govern good labour relations dictate that every good union leader must accept as a "good thing", the decision of any presiding rent-a-judge. Miller will feel a great deal of pressure to make like a seasoned labour leader and promote Ready's arbitration award as a good deal for the members - even though it won't be a good thing for them at all. We fully expect that Ready's award will stick the workers with at least some (if not most) of the concessions demanded by their employer - including the ability to contract out work.
Ties that Bind
It's important to understand what binding arb is all about, who presides over the proceedings and how things tend to shake out.
Binding arbitration in collective bargaining works like this: Representatives of the employer and the union present the issues in dispute to a supposedly impartial individual (an arbitrator) or an arbitration panel (an arbitrator and two side kicks, one representing management and one representing the union) who carefully considers the positions and supporting arguments of both sides and issues a binding (non-appealable) award that decides all the issues in the dispute.
The issues dealt with in the award as well as issues that were settled at the bargaining table form the new collective agreement between the workplace parties. The award (sometimes also called a "decision" or "ruling") is final. There is no recourse for anyone on either side (including the workers) who is dissatisfied with any aspect of it. The workers don't even get to ratify a collective agreement that has been arrived at through binding arbitration.
Who benefits from binding arbitration? Government officials who would rather not deal with the controversy that legislating striking union members back to work might set off; mediator-arbitrators like Vince Ready who make their living arbitrating labour disputes and have a strong vested interest in keeping government officials happy; labour leaders who don't want to get dragged into some labour dispute that doesn't involve their own members; business people whose profits might be affected by a strike; lots of well-heeled people have something to gain from binding arbitration. Union members? It's hard to say what's in it for them.
True, an agreement to go to binding arb will end a strike and get union members back to work. That's beneficial to workers in the short term. But over the long haul, union members almost always end up one step ahead and two steps back if collective bargaining ends in a visit to the arbitrator. They get tossed a bone in the form of a wage increase or some minor benefit improvement but in a lot of cases they concede (or rather, the arbitrator imposes concessions on them) on issues that are of critical importance to them - issues like management flexibility, contracting out, hours of work, scheduling - issues like the ones that caused the ferry workers to walk off the job earlier this month.
Arbitrators have complete control over the process and the outcome. They can rule whichever way they like on any issue that's placed before them and there isn't a whole lot that anyone can do about it.
For this reason, employer and union representatives generally try to avoid binding arbitration when negotiating collective agreements. They can't be forced into it except if workers are legislated back to work during a strike or if representatives of both sides agree to it. Not many go there, and for good reason: You can never be 100% sure of the outcome and, because at least some of the unresolved issues are ones that are really important, there is a lot of discomfort with the notion of letting some outsider, who can do whatever he wants, decide those issues.
Sometimes, however, binding arbitration is used "strategically" by the workplace parties. This can happen in situations where employer and union representatives are pretty much agreed on what they're willing to put in a new collective agreement, but the union is concerned that it won't be able to get the deal ratified. In these cases, the parties sometimes use a third party to impose their done deal on the workers.
In these circumstances, the arbitrator is not actively drawn into a conspiracy. It doesn't work that way. Labour relations is more subtle than that. The way it works is that during the course of hearing the employer's and union's submissions and in the informal discussions that often take place during breaks in the legal action, representatives "signal" to the arbitrator where the deal they have quietly agreed to is and the arbitrator - whose role it is to take their interests into account - is happy to take their interests into account. It's a nudge-nudge wink-wink sort of thing and it's perfectly OK under the rules that govern the labour relations system. That's because it serves the interests of the two workplace parties. The employer gets a deal that it already knows it can live with, the union can take credit for whatever its members get that's an improvement over their previous contract and can wash its hands of anything the workers don't like. The fact that the whole thing is basically a sham intended to deceive the workers, doesn't matter because they don't matter. The labour relations system is all about keeping them under control, not giving them rights or empowering them.
Binding arb robs workers of what little voice they have in collective bargaining and leaves decisions about their working conditions to outsiders who are presented as impartial and unbiased but are, in reality, completely beholden to the labour relations system that exists to keep workers down. Binding arbitration is a tool used by our governments to deprive workers of their single greatest source of power: The right to withhold their labour.
We are not suggesting that BCFMWU President Miller is in cahoots with BC Ferries management and agreed to trot off to binding arb just to make some already done deal look legitimate. Miller took a very principled stand and would never have displayed the degree of militancy that she did if she was doing the backroom boogie. What we are suggesting is that she agreed to binding arb at least partially because of her faith in the labour relations system and its gurus (guys like Vince Ready) and also at the instigation of mainstream labour leaders (guys like Jim Sinclair, President of the BC Federation of Labour and Ken Georgetti of the Canadian Labour Congress) - men who put labour peace ahead of workers' rights and who, just like the employers, rely on system guys like Ready to keep workers in line.
Rough `n Ready Gurus
Vince Ready is more than just a system man - he's a labour relations guru. A former government mediator (he was a conciliation officer with the federal government and a mediator with the BC government), Ready has since 1982 been president of Vincent L. Ready Labour Arbitration and Mediation Services Ltd., a private firm based in British Columbia.
His credentials are impeccable. Over the course of his career, Ready has arbitrated and mediated numerous labour and commercial disputes in a variety of industries including forestry, manufacturing, agriculture, transportation and the public sector. In addition, he has also been named arbitrator in over 600 collective agreement disputes across Canada and participated in over 4,000 negotiations.
He has received numerous appointments to commissions, panels and inquiries over the years including the Commission of Inquiry for the Province of Prince Edward Island and the Construction Industry Review Panel for the Province of British Columbia. He was an industrial inquiry commissioner on various issues for the Province of British Columbia and a special mediator for the B.C. Rapid Transit labour dispute.
Ready has also been a guest lecturer on mediation, arbitration and alternative dispute resolution at various conferences and training seminars for employers, unions and educational institutions.
There is no doubt that Ready has a lot of experience in imposing labour peace. He's done it hundreds of times in the past and will do it again in the BC Ferries case. A strike will be averted and much public inconvenience avoided. However, the fact remains that that any form of arbitration takes the control of the outcome out of the hands of workers. If you don't have control, you're going to get screwed - especially if your interests are opposed to those of your employer, your provincial government and the mainstream labour movement which professes to represent your interests but doesn't really do that.
Guys like Ready are not impartial or unbiased - as workers are given to believe. They're completely beholden to the labour relations system - and the three big players whose interests it serves - employers, government and unions (ones that know their place). Ready makes his living sitting on government commissions and panels and by arbitrating disputes between employers and unions. In order to continue scoring those lucrative government appointments, he's got to stay on the right side of the provincial administration. In order to continue being chosen to preside over arbitration cases, he has to be acceptable to employer and union officials. If he issues a ruling that is terribly controversial with employers - employer representatives won't agree to have him as an arbitrator. If he issues a ruling that acknowledges the interests of union members, a lot of union reps will be giving him a miss the next time they're picking arbitrators for some other unresolved dispute. He'll be labeled a "loose cannon" and shunned by all the people on whom he depends for his bread and butter. For those very fundamental reasons, Ready and other system guys do not issue rulings that are favourable to workers. The rent-a-judge concept is just one of the many ways in which the system operates to ensure that workers are kept in line.
The system is set up to suppress workers' militancy - not to encourage it. The system exists to maintain order in the workplace (not to provide workplace justice - a myth that is often fed to workers). Ready will not do anything that might promote disorder (i.e., workers' militancy).
Here's a classic example of a binding arbitration decision (one of Vince Ready's as a matter of fact): In a December 2003 arbitration decision reported by the CBC Ready gave 2800 unionized Yukon government workers a 10-per-cent pay hike over the next four years, but the 2,800 unionized workers were asking for a lot more than a raise from arbitrator Ready.
They wanted a paid day off on National Aboriginal Day, an hourly raise for people scheduled to work weekends, and an increase in their annual travel bonus.
Ready's decision, contained in this 34-page ruling, gives them a wage increase but the workers won't get the rest. The workers are bound by the non-appealable decision of Vincent Ready.
This is how it goes. The workers get a bit of money but rarely ever gain ground on issues that impact on the quality of their working lives or that might restrict management flexibility.
When Ready rules on the BC Ferries dispute, the company will have to pay out some dollars but will have achieved the kind of flexibility that it couldn't otherwise hope to achieve without a long and bitter strike. The workers will be stuck with the new flexibility and - because it's especially hard to negotiate language out of a contract once it's been awarded by an arbitrator - will be stuck with it for a very long time.
Sucked into the System
BC Ferries, the government, the media and mainstream labour leaders will hail Ready's decision as fair, pointing out that the workers are getting a pay increase and whatever else they're getting and downplaying the not-so-good stuff. Jackie Miller will be caught in a bind (no pun intended). Having agreed to arbitration, she will have a hard time taking issue with Vince Ready's award and will feel a lot of pressure to pitch it as a good deal or, in the least, a good deal under the circumstances. Like many union leaders who started out with some principles, Miller is about to find herself sucked into the system and having to decide whether to love it or leave it. Most decide to love it.
She will be faced with further demands for concessions in the next round of bargaining. If things get hot, Vince Ready or someone like him will be called in to settle things once again. It will be easier next time, because everyone will already be accustomed to it. They'll walk into negotiations with the binding arb option in their back pocket. Just like the first time, there will be high hopes for a fair and reasonable settlement. A few more bones will be thrown to the workers, more flexibility will be granted to the employer. Again, the whole thing will be pitched as "a good deal" or "a fair deal" and the whole cycle will repeat itself over and over again just like it's supposed to. That's how the system works and that's how it creates the kinds of labour leaders that will play ball and not get the masses stirred up.
The workers will find out soon enough what kind of bone Ready is going to throw them. Our prediction: The award will give BC Ferries the right to contract out work, within certain restrictions (which can be loosened up at the next round of bargaining). The workers will be disappointed. Some will even be angry but there won't be many of them left to get militant or disruptive by the time the next round of bargaining comes around. The most vocal will find themselves out of work, the rest will be silenced by the threat of possible contracting out of their work.
The leaders of their union - whoever they will be at that time - will join the chorus of mainstream labour leaders in deploring privatization and government support of the corporate agenda and continue riding the rails of the system that exists to support that agenda. They'll make their views known, firmly but politely, when they meet with Vince Ready or some other system guy, in yet another round of bargaining where concessions are being sought. The system guy will nod sagely and encourage them to think of the "realities" and they will.
How Jackie Miller spends the next few weeks will determine whether she blazes a path for union members or takes on the role of controller of workers' expectations. It's not too late for her to escape getting sucked into the system but it's going to get more difficult with each day. Every day that BCFMWU members sit quietly around with their fingers crossed, hoping for a fair decision from Vince Ready, is a day lost.
In the Fryer:
Amid the extensive media coverage of the BCFMWU strike, various business and labour luminaries weighed in publicly on the side of keeping workers under control.
Among the most verbose was mainstream labour analyst John L Fryer who dove into the profit-orientated waters of the mainstream media and offered up some most illuminating views from mainstream labour's "box seats".
Fryer opined that binding arbitration must have appeared like a "miracle life raft to a British Columbia union facing shipwreck during the stormy B.C. Ferries strike".
He was quoted by the somewhat conservative news medium www.canada.com as saying: "Lucky, lucky ferry workers. Vince Ready, probably the most experienced mediator in the country, let them walk back in off the end of the plank."
Not content to stop there, he went on to say that he believes the ferry workers' union was about to be "sucked into a whirlpool that was slyly engineered by the provincial government and the ferry company", with both wanting labour cost reductions and diminished power for the union.
"The ferry workers are a very isolationist union," Fryer said. "They keep to themselves and they don't participate very much in the affairs of the trade union movement because they believe that they are invincible."
The striking ferry workers had backed themselves into a corner and were in a no-win situation, Fryer stated flatly. "You always leave yourself a back door other than humiliation and defeat". Unfortunately, the leadership of the 4,300-member union doesn't have a face-saving strategy, he added. "They've escalated the dispute from a battle between themselves and the BC Ferries and the government of B.C. to a battle between themselves and the courts".
"That means they are now in open defiance of the rule of law...They can't win that one," said Fryer. "The absolute defiance of the rule of law is a no-win strategy," he added. "Everyone should give their heads a shake."
Just who the hell is Fryer with his condescending attack on the ferries workers union?
John L. Fryer is an Adjunct Professor at the School of Public Administration, University of Victoria. He is President Emeritus of the National Union of Public and General Employees (NUPGE). Mr. Fryer is a member of the board of directors of the International Centre for Human Rights and Democratic Development; and former Chair of the Advisory Committee on Labour-Management Relations in the Federal Public Service (1999-01). Mr. Fryer was a member of the Advisory Committee on Senior Level Retention and Compensation (1997-2001), chaired by Lawrence F. Strong.
In addition, Fryer worked for the AFL-CIO and the Canadian Labour Congress before launching a 21-year career in public sector unionism, first as a General Secretary of the B.C. Government Employees' Union (1969-83) and then as President of the National Union of Public and General Employees (1981-90). Mr. Fryer is a member of the Order of Canada and holder of the Gérard Dion award for outstanding contributions to Canadian labour-management relations.
Since his retirement from NUPGE, Fryer has applied his negotiating and dispute resolution skills to numerous important public policy issues.
Fryer is currently working a three-to-six month special assignment with the World Bank at its Washington, D.C. headquarters that began September 18th, 2003. He is one of three labour representatives invited to Washington to review current World Bank practices and propose alternative policies.
During his stint at the World Bank, Fryer is reported to have stated that, "'There are certain things - water, electricity and health care, for example - that are best and most properly handled by the state, and not by private enterprise". Perhaps Fryer doesn't believe that the B.C. Ferries are one of the things better handled by the state. That's a pretty scary thing for someone who is touted as a source that is knowledgeable about the interests of working people.
Fryer also had some interesting things to say about them and their militancy. Sending union leaders or rank-and-file members to jail, he stated, would make them martyrs. He recalled union leaders Jean-Claude Parrot and Grace Hartman were both sent to jail during illegal strikes. Here's a brilliant statement:
"I know them very well," he said of the labour leaders. "Being sent to jail changed and shortened their lives."
- Hartman, who died in 1994, received a 45-day jail sentence in 1981 while head of the Canadian Union of Public Employees after she refused to order Ontario hospital workers to end their illegal strike.
- Parrot, the now-retired leader of the Canadian Union of Postal Workers, spent two months in jail in 1980 for defying back-to-work legislation in 1978.
- Eight years ago, 64 union workers in B.C. were found guilty of criminal contempt of court; some were sent to jail for ignoring injunctions to lift a blockade at Port Alberni's paper mill.
What's so interesting about Fryer's statements is that he's advocating, in a more open manner than is normal, the mainstream labour perspective on workers' militancy: Militancy is bad, it's wrong-headed, workers must obey the laws of the land even if those laws deny them basic fairness and operate to their continued disadvantage.
Union leaders are supposed to behave like the leaders of the "labour movement" that is recognized by the system. Shame on the ferry workers' union for not wanting to play in the labour fakers club. F***ing isolationists!
As an credentialed labour "specialist", Fryer is playing as important a part in the suppression of workers' interests as the BC government, the privateering corporations and the corporate partner unions that are beginning to assert their self-serving objectives and their cynical view of working people more openly than ever before.
Fryer is lending his intellectual cachet to the effort to keep workers down. Oppressing people is more enjoyable when it looks like its the smart thing to do.
His statements are as arrogant as they are ridiculous. Were the risks taken by labour leaders like Parrot and Hartman and by the union members in Port Alberni not a means to an end? Sure they were. These working people made choices - they chose to put their collective interests first, even though it meant that they might personally pay a price. These were choices, not wrong-headed, emotional, irrational acts as Fryer suggests.
They are only wrong-headed, emotional and irrational if we accept that the role of workers is the one that has been assigned to them by the labour relations system (to submit to the wisdom of more important people in the workplace and in the union hall), that their immense power must never be used and that the rule of law must be respected even if the law is an ass.
Fryer speaks like a true labour aristocrat and there's a good reason for that: He is one. He's a well-off dude with impressive credentials who's been immersed in the system and stroked by its ego-inflating machinery for a long time. The system has helped him make a name for himself and he's beholden to it for that, just like the other system guys.
We don't dispute that workers who buck the law face stiff penalties:
The Alberta Union of Public Employees was fined $400,000 for a two-day illegal strike by licensed practical nurses, nursing attendants and support workers. The fine was reduced to $200,000 on appeal. No one was jailed during that labour dispute, but solidarity among union members was strengthened.
We don't dispute that the BCFMWU could conceivably be sued by third parties for its part in an illegal strike:
- A precedent was set in 1974 in Quebec when Santana, a shoe manufacturer, won third-party damages for losses during an illegal strike after it filed a civil lawsuit against the Canadian Union of Postal Workers.
- In 1991, a St. Hubert, Que. resident won a class-action suit against the Montreal South Shore bus drivers' union when service was disrupted by a wildcat strike on Jan. 18, 1988.
- A Quebec Superior Court judge ordered the union to pay a $100,000 fine -- $20 for each of the 50,000 passengers inconvenienced that day. The Montreal South Shore Transit Corp. responded by lowering regular bus fares for three months in 1992.
Defeat and Humiliation?
All those things might happen. But what is more humiliating? To lose some legal battle in a system that is set up to treat you unjustly or to live your life on your knees? It's a question of your perspective. Guys like Fryer deny perspectives that don't reflect their own because they don't consider those perspectives to be valid - because they come from people who they consider to be beneath them. Yet militancy, activism and selfless sacrifice for a greater good have been the calling card of people who have changed our world for the better from the beginning of civilization.
Lawsuits and fines are pale in comparison to the kinds of penalties that have been imposed upon activists who have taken on oppressive systems in the past - and many who are taking on oppressive systems in other parts of the world today. Presumably they were and are aware of the life-shortening effects of the firing squad or the "no win" situation in which one might find oneself if tied up to a flaming pole. Getting tossed into the slammer for two decades undoubtedly changed the life of Nelson Mandela. Standing up against the unjust laws shortened the life of Martin Luther King. According to John Fryer's views on militancy, both should have given their heads a shake and deferred to the wisdom of their oppressors.
Apart from his arrogant disregard for the rights of working people to life, liberty and security of the person, Fryer is expressing mainstream labour's belief that the labour relations system is supreme - that it's necessary and functions in a way that is beneficial, all things considered, to our society. He does not consider that the labour relations system only takes on the appearance of fairness if we ignore the interests of the largest group within our society: working people.
If we accept his view that militancy creates "no win" situations" where "there is no way out", we ignore the ultimate power of the workers - the power that comes from action like withholding their labour, the power that comes from reaching out to their community, building solidarity with other workers and raising awareness about their issues. The mediators, arbitrators, cooling off periods, news black outs and other expression-suppression tools exist to keep us from our power. Thank you John Fryer for coming out saying it like a man - a system man. And to hell with you.
Activism Works, So Do It
There is going to continue to be pressure on working people for concessions until we have nothing left to give. When we give ground to the point where we are getting only the legislated minimum wages and benefits, those minimums will be reduced. We will be a nation of groveling paupers, with no liberty, no security and no hope. If we complain, the Ready's of the world will impose peace on us and the Fryer's will lecture us about the rule of law and tell us to give our heads a shake. Unless workers rise up in large numbers and create total labour "chaos" (which really means chucking their rule books and doing things that advance our interests) we will all be considerably poorer within the next few years and our children will be poorer beyond our worst nightmares. Rising up can mean engaging in any form of protest. It isn't restricted to picketing as workplace - it can take many forms. Whatever puts pressure on employers, unions and legislators - and the system guys who do their dirty work - is worth doing. It could involve conventional protests, it could involve cyber activism, it could mean taking apart their myths and their statements and exposing their myths (or their darkest secrets). Anything that makes them sweat is potentially an effective form of protest.
You may well ask: "Why direct action? Why sit-ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling, for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent-resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, we must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.
The purpose of our direct-action program is to create a situation so crisis-packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.
Dr. Martin Luther King Jr., Letter from Birmingham Jail
Activism works. That's why the system guys don't like it and go to lengths to discourage us from engaging in it.
In 2001, the Province of Nova Scotia passed Bill 68, which legislated away the right to strike for essential service workers. Mass protests ensued and the bill was never enforced. It was a small victory for workers, but a victory.
The B.C. Ferry and Marine Workers Union was right to take a defiant stance against the B.C. government and its privatization projects. The rest of the B.C. labour movement let them down and a lost an important opportunity to derail the government's privatization agenda. The leaders of the official Canadian labour movement stood by scratching themselves while business and its government enablers scored another win. As galling as this is, it's to be expected. That's the role of our mainstream labour leaders: To scratch themselves while we get screwed. They're doing a good job of it too.
For months now, activist workers across BC have been advocating for a general strike but B.C. Federation of Labour President Jim Sinclair and his status quo cronies won't hear of it. At one point the leader of the BC Fed stated that he was pretty sure that workers in B.C. were not ready to rise up. Since then, Sinclair has been busy giving lip service to proponents of a general strike - spouting rhetoric here and there but saying nothing of substance in favour of engaging workers' power.
Surely the government and the employers know an idle threat when they hear one. Sinclair and his crew are just providing the privateers with motivation to go even further. If the B.C. Fed isn't going to go to bat for working people, what's to worry about?
It may take a general strike, perhaps across Canada, if workers are going to regain the rights and protections that have been stolen from them. If our right to determine our own destiny through free collective bargaining has been taken from us then we must explore other ways to determine our destiny. Widespread job action has been an effective tool for us in the past. And let's not confine ourselves to thinking that job action must be confined to standing around our workplaces with picket signs. There are many ways of bringing pressure to bear on the modern-day corporation and its political enablers. We just need to get started and encourage others to join us.
What will it get us? There will always be uncertainty about the future but we can be reasonably sure of what we will get if we put our faith in the leaders of business and its union and government tools. Poorer, more desperate, dehumanized. It's our choice.
Will Vince Ready's binding arbitration sink the ferries workers and their will to fight for their own future? It sure has the potential to do that. Binding arbitration is not called binding arbitration for nothing. In the very least, the passage of time while they wait for the decision will halt the momentum that developed during the strike. Union members will be encouraged to put their faith in the unbiased goodness of Arbitrator Ready. Then will come the disappointment, when the long-awaited award comes out. Then the devastation when they learn there's nothing they can do about it. Then the anguish of seeing their jobs disappear as their new fair and just collective agreement is implemented. Then the anger...and then what? Will there be an uprising or will they disappear into the masses of unemployed who have been similarly helped out of their jobs as their leaders stood idly by scratching.
It doesn't bode well for an uprising if workers are demoralized, disillusioned and disappeared by the time the grim reality arrives on their doorsteps. It will take the winds out of their sails for sure and weaken their resolve to fight back especially if they know that there will be harsh personal and financial penalties for defying the law, when no other labour organization is willing to support them with a general strike or similar labour chaos.
Making Every Day Count
If Jackie Miller wants to keep herself from being sucked into the system and leave the door open to a resurgence of militancy among BCFMWU members she should be encouraging the members to continue their efforts at raising awareness about their issues in their communities, discourage blind faith in the arbitration process and get the members exploring innovative direct action in case Vince Ready's award is disappointing.
If Miller isn't willing to do it, members who aren't prepared to put their faith in the system, should consider organizing their own activities to keep the momentum and the fighting spirit of the membership alive in the countdown to his decision.
Do not go to sleep waiting for the decision. Continue your activism. Continue raising awareness of your situation. Build awareness in your communities about the corporate greed that's turning your life upside down and that will touch their lives one day too - if it hasn't already.
Take stock of your employer's vulnerabilities. Plan for every possibility, including an all-out loss at arbitration. Where can you apply pressure, what kind of pressure can you apply to your employer to get them back to the bargaining table if the Ready award sucks? You've got some time to think through the options now. Use it productively and to your best advantage.
If it's a decent decision, celebrate. If it isn't - organize, agitate, educate, communicate.
The system is big and powerful. But, as we've already said, it is near collapse. What it will take to stand the system on its head is for workers to stop letting it push them around.