The Rush to Crush Workers' Resistance
British Columbia's provincial government and the wealthy guys whose interests it's busy serving must be worried that the courage and determination of the workers at BC Ferries Services to resist concessions may spread to other areas of the economy.
Last month, the privatization-happy BC administration moved with lightening speed to deprive some 4000 workers of their legal right to strike. In a masterful but entirely transparent power play the gov denied the workers access to the only source of leverage they have with their profiteering employer - the right to withdraw their labour - and at the same time laid the foundation for a legal assault on their union by the community of profiteers that has the potential to destroy the union by draining its financial resources.
On December 15, 2003, a group of BC profiteers filed a class action lawsuit against the B.C. Ferry and Marine Workers' Union in B.C. Supreme Court for damages they allegedly suffered during the ferry workers' strike earlier that month.
The TML Daily reports that the plaintiff profiteers are seeking reparations for damages suffered as a result of "restriction of trade" during the weeklong job action. If the B.C. Supreme Court certifies the class action lawsuit, any profiteer who wants to claim a loss of profits during the strike can join the demand for reparations.
Given that profit is rarely something that is guaranteed (because of the mysterious forces of the marketplace), thousands of profiteers could conceivably join the class action based on nothing more than speculation about what they might have made if the strike had not occurred. If successful, the class action has the potential to - in one fell swoop - bankrupt the BCMFWU.
Now, you may be thinking something like, "The government ordered the workers back to work and they refused to comply. Shouldn't they have known better? Don't they deserve what's coming their way? Governments have passed back-to-work legislation before, haven't they? Workers are expected to comply aren't they?"
That's certainly how the BC government, the business community and their faithful tools in the mainstream media would like you to think. But it's not that simple. What the workers deserve or should have known was coming their way are difficult questions under any circumstances.
If we understand the principles of the labour relations system, the purpose of back-to-work legislation and the cautionary approach taken by legislators of every political persuasion in imposing it and the situation that led to the workers defying BC Premier Gordon Campbell's imposition of the back-to-work order, the questions are pretty much impossible to answer in the affirmative.
Refusal to comply with back-to-work legislation certainly put union leaders and members at risk - of jail time (if they refused to comply with a court order requiring that they comply with the back-to-work legislation). Whether their non-compliance opens the door to lawsuits for "reparations" or damages for loss of profit is something quite different. All's fair in business isn't it? It's dog eat dog, right? So go sue your competitors for putting a dent in your profit.
That's just one consideration. Another is the speed with which Campbell brought the legislative hammer down on the workers and their legal rights. What exactly motivated that decision, is something that we can only hope is held up to judicial scrutiny in the process of the legal proceedings that the profiteers have initiated.
The reality is that the BC government deprived these workers of a legal right on grounds that are flimsy at best. The workers had not misused their right - they scarcely had an opportunity to exercise it - nor was there any compelling evidence that public safety was in jeopardy. So what's really going on here?
It can't be that the BC government and the profiteers whose interests it's serving, have teamed up to deprive workers of their legal rights and to break their unions if they have anything to say about it. Or can it?
It's easy to feel unsympathetic towards the ferry workers. Reports in the mainstream media about their weeklong strike conjure up images of thousands of stranded island residents cut off from the necessities of life itself by a bunch of rowdy law-breaking, overpaid and under worked union thugs. But it wasn't like this at all. Let's understand what really happened.
The Right to Withhold Our Labour:
Withholding our labour once collective bargaining has reached an impasse is the only real leverage that we legally have with our employers. It's as simple as that. Walking off the job during the period of time when a legal strike is permitted is the only way that working people can pressure their employers for improvements in wages, benefits and working conditions without running the risk of being sued, fired or even thrown in jail.
These excerpts, from the web site of CUPE Local 3919, highlight the importance of this legal right:
Although it's not generally realized, the right to strike is a fundamental right no less important than freedom of speech or freedom of the press. Why?
Simply because it is a vital part of the collective bargaining process.
Free collective bargaining is the only instrument that workers have to protect and promote their economic interests in our economic system.
Without that ultimate right to withdraw their labour, they would have no strength to bargain. And would have to accept whatever wages and working conditions their employer decided to impose on them.
The only thing workers have to bargain with is their skill or their labour. Denied the right to withhold it as a last resort, they become powerless. The strike is therefore not a breakdown in collective bargaining - it is the indispensable cornerstone in that process.
The Federal Task Force on Labour Relations ruled out compulsory arbitration as an acceptable alternative to the right to strike. "The inconvenience caused by strikes," said the Commission in its historic report, "is a small price to pay for the maintenance of the present collective bargaining system and the basic human right on which it is founded".
In any event, a ban on strikes is impossible to enforce in a free society. Only in a police state can workers be forced to work against their will. In a free society, compulsory arbitration doesn't eliminate strikes; it merely makes them illegal.
How did this legal right come about? It was part of a package of labour laws that ushered in the "labour relations system" that we have in place today. The "system" was implemented because workers were beginning to use the strike frequently and, by the end of the 1940's, with increasing effectiveness.
The Alberta Federation of Labour provides a brief synopsis of the evolution of the system and what workers were doing around about the time that it was put in place.
Prior to the Second World War, Canadian industrial relations were typified by repeated, violent confrontation between employers and workers. Armed company constables held pitched battles with striking men and women - and almost inevitably, police were actively embroiled in the disputes. Riots, mass demonstrations, violent deaths and serious personal injury and property damage were the rule of the day. In Alberta, for example, there were over 10,000 coal miners on strike in the Crow's Nest Pass for over three months in 1934.
Industrial unrest over poor wages and working conditions, inadequate housing and education and health care and the desperate poverty of the unemployed reached crisis proportions that threatened the social fabric and political stability of the country.
The important role of unions in securing social and labour peace was finally and formally recognized by the federal government in 1944 with PC 1003 - a wartime labour act. All subsequent Canadian labour laws have been based upon the principles of PC 1003 - including Alberta's labour code.
In essence, Canadian labour laws are based upon the premise that unions and free collective bargaining are the best way to establish and maintain good labour relations and a healthy society.
This was probably best described by the Federal Task Force on Labour Relations (also known as the Woods Commission) Report in 1968:
"Freedom to associate and to act collectively are basic to the nature of Canadian society and are root freedoms of the existing collective bargaining system. Together they constitute freedom of trade union activity: to organize employees, to join with the employer in negotiating a collective agreement, and to invoke economic sanctions, including taking the case to the public in the event of an impasse."
The purpose of labour laws across Canada was historically to protect and encourage working people's democratic right to unionize. Labour laws were created to protect unions and to foster unionization because of the social benefits of a healthy, free labour movement. The intent of the laws was not to discourage or limit unions or legitimate union activity, but to promote unionization.
Actually, that last part about the purpose of labour laws across Canada isn't entirely accurate. The system was set up to contain workers' power and prevent them from using it at will. Preserving the social fabric and political stability were considerations but only to the extent that these could impact on the economy. The underlying reason for the birth of "the system" was economic. By 1948 - a record year for strikes in Canada - it was becoming evident that an escalation in strike activity would impact the bottom lines of Canadian corporations in ways that the federal government of the day (a tool of the corporations) could not ignore.
Protecting and encouraging workers' "democratic right to unionize" and "fostering unionization because of the social benefits of a healthy, free labour movement" were the sales pitches that were used to sell the "bill of goods" that accompanied PC 1003 and the Industrial Relations Disputes Investigation Act (IRDIA - the post-war legislation that formally established the labour relations system in 1948) to union leaders.
IRDIA contained some features that were very attractive to unions: The right to recognition by employers and the obligation on employers to negotiate in good faith once recognition was granted were rights for which unions had fought for many years. There were, however, a few significant strings attached. Strikes during the term of a collective agreement were banned. Disputes over violations of collective agreements were to be resolved through binding arbitration. The right to strike was protected but only after a collective agreement expired and negotiations reached impasse and mandatory conciliation proved unsuccessful.
Nonetheless, free collective bargaining including the right to strike was a central pillar of the "system" and our legislators have, for the most part, treated it that way. The inconvenience associated with strikes has been accepted as part of the price of maintaining this important right. (Think about it: Legal rights and obligations of any kind create inconvenience for somebody somewhere.)
The importance of the right to strike is evident from the infrequent use of back-to-work legislation by Canadian governments at the federal and provincial levels and by the narrow range of occupations that are restricted from exercising the right to strike entirely. Police, fire fighters, health care workers, correctional workers - essential services workers - are among the few groups of workers in Canada who can't legally strike under any circumstances. Certain other groups that provide important public services retain the right to strike but are required to maintain certain levels of service during their strikes to ensure the safety and health of the public. The BC Ferries workers fall into this category.
So - the safety and health of the public may be legitimate reasons to restrict a legal right. Inconvenience and loss of profits (real or speculative) are not. This is a principle that has been acknowledged for over fifty years by governments of every political persuasion. Our elected representatives have a keen interest in strike avoidance but have stopped short of strike suppression. Against this backdrop, BC Premier Gordon Campbell's actions in the case of the ferry workers strike are most troubling.
Anyone with a basic understanding of labour relations and half a brain could conclude that collective bargaining negotiations between the BCFMWU and BC Ferries Services Inc. had the potential to result in a work stoppage. The newly-privatized organization took a hard line in bargaining demanding extensive concessions from the union - whose members had voted in a new member-oriented executive early in the year. Among those concessions were wage rollbacks and the right to contract out work without restriction.
When negotiations reached impasse in November 2003, the union requested that the BC Labour Relations Board determine, as is required under the province's labour legislation, the essential ferry routes and services that would be maintained in the event of a strike and the BC LRB made its determinations. The Union committed to complying with the LRB's decision which, in some cases, would maintain service levels of up to 70% on certain routes. The union also committed to restoring full service over the Christmas holiday period.
As further negotiations failed to break the impasse - and with the employer playing hardball on issues that would pretty much guarantee a strike - the union served BC Ferries with the obligatory 72 hours strike notice on December 4, 2003. The strike commenced on December 8th.
By that time, BC Premier Gordon Campbell had already passed legislation allowing the for imposition of a 90 day "cooling off period" - a clever and less controversial way of saying "back-to-work legislation" in the event the ferry workers walked exercised their legal right to strike. (Quite unusual in fact, since back-to-work legislation normally means workers are ordered back to work and their dispute is settled through binding arbitration).
When the strike began on Dec. 8th, Campbell was asked whether he intended to impose the cooling off period. It was too early to tell, he stated, but he did it the following day, using the fact that some harsh words were exchanged at BCFMWU picket lines as a pretext.
The union refused to recognize this ham fisted suspension of its members' rights and continued with the strike. A mediator was parachuted in to try to resolve the dispute and was able to get the two sides to agree to take their dispute to binding arbitration a few days later.
Campbell's haste in relieving the 4,000 workers of their legal right to withhold their labour is as unusual as the legislated cooling off period. Typically, back-to-work legislation is imposed only after some time has passed, further efforts at reaching a settlement have failed, and there is considerable public pressure to end the strike. Twenty-four hours after the strike began, none of any of that had happened.
As quickly as Campbell made the workers' lawful actions unlawful, the profiteers filed their lawsuits for reparations. The profiteers put the blame for their losses squarely on the ferry workers. They accused the ferry workers of "restricting trade" when the B.C. government's ended their strike by imposing a "cooling off period".
What's very interesting about this and lends some credence to our conspiracy theory is that it is the imposition of the "cooling off period", that provides the profiteers with the basis for their argument for reparations. If the government had not declared the strike illegal, any restriction of trade and resulting dip in profits would not be cause for reparations - if we follow the profiteers' own logic.
If workers' withholding their labour is a "restriction of trade", then the federal and provincial governments that have passed labour legislation that allows workers to strike should be named as defendants in the profiteers' lawsuit. So should BC Ferries for its part in creating the conditions that led to the strike. (What's quite chilling about the profiteers' argument is that collective action was - at one time - considered a criminal offence in this and other countries on the basis that it was a restraint of trade. This oppressive proposition bit the dust in Canada in 1872!)
The profiteers have not named BC Ferries Services or the Province of British Columbia as defendants in their lawsuit, although clearly each had a part to play in the events that led up to the strike. Nor have they explained how a strike is different from any other event that could interfere with their ability to make a pile of dough - including a legal strike. Consider for a moment the impact of postal strikes, transit strikes, airline strikes, telecommunication strikes, strikes by suppliers or customers or just about any other kind of strike on the bottom line of a business? What's the difference? If it's about the money, then there's no difference.
But we're sure that doesn't really matter. Lawsuits aren't always filed to recover real losses - especially losses of a few thousand dollars. They're also useful as a form of economic terrorism - a deadly weapon wielded by the rich against opponents with lesser resources. It's hard for the wealthy to lose when it comes to exploiting the legal system. Even if they don't win, they can bankrupt their opponents simply by running up their legal tab. That's what this is about.
Denis Berntsen, a lawyer in the Vancouver Island community of Sidney, said that his client, Tony McDermid who has a fish business, suffered thousands of dollars in damages when fish couldn't be shipped. The Victoria-area fish wholesaler says he lost between $3,000 and $4,000 because he couldn't ship his product to market for three days. The fish were eventually sold, but McDermid claims the ferry shutdown halted his whole operation so that no new fish could be brought in. Berntsen hopes to have the case certified as a class action suit within five weeks, so other small businesses can join the action.
"This litigation is commenced under the Class Proceedings Act, which means the damages are going to be the damages assessed for every member of the class in the province. That could well exceed $5 million. That's what makes it feasible for this type of a lawsuit to go ahead," says Berntsen.
So basically, any biz guy who thinks he or she could have, should have or would have made a bigger buck if it were not for the strike can, at no cost whatsoever, join in the lawsuit and participate in the effort to sink the ferry workers union and - more importantly - to send a message to the rest of the community of workers about what exercising their rights will get them.
In case economic terror isn't enough to get the message across, Premier Campbell has hinted none-to-subtly that his government is considering an all out ban on any future strikes the ferry workers might organize. This would have the effect not only of depriving these workers, permanently and for no compelling reason, of an important legal right but would effectively criminalize any attempt on their part to exercise that right in the future. Just like back in the 1800's.
BC's wealthy class and its political tools must be deeply worried that the courage and determination of the ferry workers to resist concessions may spread to other sections of the economy. What other explanation can there be for such draconian measures in the 21st century.
Criminalizing the class struggle of workers, turning legal rights into prohibited offences, is an open and excessive use of the state machinery to oppress specific segments of the population. It's completely inconsistent with the principles of democracy and is unacceptable in a democratic society. From here it's just a short hop to the more overt methods of oppression.
What other means do the B.C. government have at their disposal to ensure that worker resistance remains contained? Do not think that Campbell's government is beyond calling in the riot police or the army. The suspension of fundamental rights on lame pretexts is often followed by more aggressive oppression if it doesn't achieve the desired results. Do not think that the B.C government is beyond giving the order to use deadly force to protect the rights and liberties of corporations. Hell, there is no greater deterrent to protest - peaceful or otherwise - than seeing your friends and family members falling to the ground - injured or even dead. The use of deadly force was one of the main reasons for the demise of the 1919 general strike in Winnipeg Canada.
Do you really think that the B.C. government will only rely on the legislated suppression of worker solidarity? No way. That's always just the beginning. The rationalization of oppression gets bolder as resistance grows.
With such open political interference in the economic struggle against concessions, the community of workers (yes, that includes you) must bring into play the strength of its numbers and its collective skill and knowledge to challenge the profiteers who will do anything to make a buck. Purposeful, creative and sustained worker resistance on multiple fronts - political, economic, social - will win our community a future where we have the status of humans and not human resources.
The IWW nailed this down more than a century ago:
The worker, wholly separated from the land and the tools, with his skill of craftsmanship rendered useless, is sunk in the uniform mass of wage slaves. He sees his power of resistance broken by class divisions, perpetuated from outgrown industrial stages. His wages constantly grow less as his hours grow longer and monopolized prices grow higher. Shifted hither and thither by the demands of profit-takers, the laborer's home no longer exists. In this helpless condition he is forced to accept whatever humiliating conditions his master may impose. He is submitted to a physical and intellectual examination more searching than was the chattel slave when sold from the auction block. Laborers are no longer classified by difference in trade skill, but the employer assigns them according to the machines to which they are attached. These divisions, far from representing differences in skill or interests among the laborers, are imposed by the employer that workers may be pitted against one another and spurred to greater exertion in the shop, and that all resistance to capitalist tyranny may be weakened by artificial distinctions.
Industrial Union Manifesto, Issued by Conference of Industrial Unionists at Chicago, January 2, 3 and 4, 1905.
Strategies for resistance and possibilities rebellion are limitless. New tools can make our presence felt in places that have been off limits to us and among people who have refused to accept us as equals.
As we go forward, we must remain alert to the tactics of the profiteers. We must stay united and must resist the temptation to only worry about only ourselves. That's one of the profiteers' most effective tactics - to keep us isolated from each other and consumed with consumerism.
We must defend the few meaningful legal rights that we have and turn up the heat for more. Abuses of legislative and legal processes that rob us our power - our right to withdraw our labour, our right to express ourselves, our constitutional rights to life, liberty and security of the person - render us powerless when in fact we have more power than they do.
If defending our rights means challenging oppression that has been rubberstamped by our provincial legislatures, then so be it. When the BC government deprived the ferry workers of their legal right to strike for no compelling reason, it yanked a central pillar from the labour relations system.
In its rush to crush the rights of our community it may be argued that BC legislator's tore up the bargain that was struck in 1948. We gave up our right to strike frequently and effectively in exchange for the promise that we could organize ourselves, that we could bargain collectively - during the proscribed periods - without interference from the state and that the profiteers were required to bargain with us in good faith. If that part of the deal is off, then the whole thing is off. So long to containing our power and using it only when permitted. Let's get back to striking frequently, effectively, in-person and electronically. Whatever it takes, let's do it. What little there is to lose they will soon take from us anyway.
Let us unite that the main efforts of those who want to stop this deadly trajectory should lie in building mass resistance. For only mass resistance can awaken millions to the true scope and depths of what is being done in their names--and to their rights. Only mass, well-organized resistance can meet and begin to defeat each new outrage and roll back the ones already in place. And only such resistance can prepare us for the storms in the offing and the opportunities that may well present themselves in the months and years ahead.
"Never doubt that a small group of thoughtful committed citizens can change the world. Indeed, it is the only thing that ever has," said Margaret Mead.
In its basic principles the I.W.W. calls forth that spirit of revolt and resistance that is so necessary for us if we are to engage the future.
The Ferry Workers have the spirit of revolt and resistance, but they will need our support if they are to overcome the profiteers' and their trusty government enablers rush to crush them.
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