Unions' Duty to Act Intelligently and Honorably
This past week we visited the Duty of Fidelity. "Fidelity" is not a term in wide use in contemporary language. In the context of the workplace, the duty of fidelity means an obligation of workers to be loyal servants of their employers. If it sounds a bit medieval, that's because it is. The concept of the loyal servant goes a long way back - probably to the dawn of civilization when some of our ancestors discovered that they could make their own lives a lot better by controlling the lives of others.
The Duty has existed in various forms throughout history and always for the same reason: It's profitable to control others. Keeping them loyal to you and to keep them loyal to you. It's always been something of a head game. The conventional wisdom of the masters held that the Duty was a good thing for the servants. In exchange for the servants' loyalty, the master would do good things for them - give them a place to live, allow them to keep enough of their food to live on, protect them from enemies. "In exchange for your loyalty, I'll let you survive," seemed to be the bargain. Survival is an important thing so the servants bought in.
The purpose of the duty of fidelity has always been controlling and exploitative. It permits the masters to exploit their servants more fully because it dampens their desire to rebel. The "duty" reinforces their disempowerment. It makes them feel that their miserable exploited condition is their lot in life and that being loyal to the master is something noble, something to which one should be proud to aspire.
Over the years, some legal rights have been bestowed upon the servants to protect them from really blatant abuses by their masters. Developments in other areas of the law have restricted the extent to which the masters can expect loyalty from their servants. Unfortunately, a lot of our present day masters seem oblivious to this or at least are hoping their present day serfs don't get wind of it. It's a tough row to hoe for the masters. Working people are getting more knowledgeable about their rights and are beginning to exercise them.
The right to freedom of expression is an especially important right and one that's hard to hide from people because it's right in our Constitution. Constitutional rights can't be overridden - by anything. That's bad news for today's masters. Once the servants start expressing themselves, discussing their dissatisfaction, talking about what they want, the end is near. For this reason, even though we are living in the 21st century, employers continue to cling to the duty of fidelity as avidly as their feudal counterparts.
In workplaces run by 21st century feudal lords, the duty of fidelity is presented to workers as meaning "loyalty to the max". Workers are told that they can't criticize their employer and are not ever to say things that might cast their employer in a bad light. This obligation, they are told, applies inside and outside the workplace at all times, no matter what, and regardless of the legitimacy of the criticism. If the employer is engaging in corrupt business practices, allowing unsafe working conditions, manufacturing defective products, rewarding incompetent managers, turning a blind eye to bad business practices – it's all a big stinking secret and anyone who talks about it had better watch out. They'll be fired for insubordination and that's right up there in the 10 commandments for the 21st century worker: "Thou shalt not piss on the boss, no matter what the sonovabitch is doing to you".
This kind of repression of workers' constitutional rights is exploitative conduct on the part of employers. The fact is that workers have a constitutional right to freedom of expression. While the duty of fidelity has been deemed by judges and rent-a-judges alike to be a responsibility of workers, it's not enforceable to the max. There's a lot that workers can talk about in relation to their workplace that's perfectly "legal". What will or won't get you tossed into the dungeon depends on the circumstances, but one thing is for very sure: You can't be muzzled forever just because your employer has a fondness for a medieval head game.
It's important that workers understand their rights in relation to freedom of speech in the workplace and that they know that their employers can't duct tape their mouths inside or outside the workplace.
Well-informed unions with well-educated representatives are in a good position to educate and inform their members about their rights to freedom of expression and can also intelligently defend members who find themselves accused of insubordination when they choose to speak up. Insubordination can encompass many different kinds of activities. Simply stated, it means a refusal to carry out an order or instruction given by a person in authority. Under out current labour relations legal framework employers can expect obedience from workers, but they can't treat them like talking dummies. Workers who ask questions, express concern or opinions about what their employer is up to, aren't automatically guilty of insubordination.
This arbitration case in Manitoba informs us that management does not have totalitarian control over workers' loyalty, nor does the exercise of our right to free speech automatically constitute insubordination. Representatives of the United Steel Workers of America, who went to bat for this worker, were obviously well informed about the fine line between freedom of expression in the workplace and the limits to which management can demand loyalty. Although the judge clarified for the worker the boundaries beyond which he should be careful not to stray, the fact remains that his disciplinary notice was rescinded. We note also that the USWA took his discipline grievance through the entire grievance and arbitration process and got the best possible result. The USWA did the right thing for this union member: They fought to protect the security of his employment (which could be in jeopardy if the disciplinary notice stayed on his record) and they defended his constitutional right to free speech.
What happens, however, when union members don't get this kind of well-informed representation or who receive incorrect information about the extent of their right to freedom of expression in the workplace?
We recently learned about a CUPE National Representative in Manitoba who advised a member that workers' freedom of expression rights end the minute they enter the doors to the workplace. That a union rep was dispensing this kind of advice is shocking because it just isn't true. What kind of advice was this and why was it being given? Was the CUPE National representative misinformed about members' rights? Just what was the reason behind him giving this inaccurate and misleading information?
A short time later, the President of the CUPE member's local also repeated the same misguided advice. Surely not everyone in CUPE is this misinformed about workers' rights to free speech. Unions, especially large public sector unions, pride themselves on the extent to which their representatives are educated about laws that affect members' rights. Many consider themselves to be experts on this stuff. Surely they are all aware of the Charter of Rights and Freedoms and the case law on the duty of fidelity.
Was the rep inept or was there something more sinister afoot? We'd hate to think that he was trying to misinform or confuse a member about their rights – for whatever reason.
Union reps who misinform members are engaging in particularly troubling behavior. They're interfering in members' ability to think for themselves, to be able to understand what's going on around them and to be able to make educated and informed decisions on their own. In doing so, they're making it more difficult for members to exercise their rights in the workplace and opening the door to unfair treatment by employers. Why the hell wouldn't a union want its members to be able to think, act and defend themselves? Fortunately the union member in this story had a good understanding about these rights and was not easily led about the duty of fidelity.
The truly unfortunate aspect of this members' story is that there is no duty on the part of a union to act intelligently and honorably. In this case, this worker's representatives appear to have had no real desire to defend either the member or defend an important constitutional right. Telling members to shut the hell up because the boss likes it like that does nothing to empower them. If anything, it gives the boss more power.
How many other union members out there have been on the receiving end of such misinformation? How many have tried to exercise their legitimate constitutional rights and paid a high price – their livelihood - because there was no one there to defend them?
While members can, in theory, take their union and their employer to court to assert their rights, few have the resources to do so. Few will ever get past the dreaded LRB's which, as we've already discussed at some length in earlier articles, tend to give union members what their oppressors want them to have.
It's a damn shame that in an era when workers' rights are increasingly being shat upon, so many union representatives carry on as though they have a bad case of diarrhea - always covering their own or each other's ass and trying to get comfortable, letting out only that which they know will not hurt them. That's not representation by anybody's definition. That's just a bunch of guys trying to make their own lives less demanding. It's ironic that while union leaders lobby for workers' rights, they're not too keen on defending one of the most fundamental rights we have – the right to free speech.
Perhaps a solution may be for union members to have a separate independent organization, the sole objective of which would be to help union members see that justice is served. Or perhaps unions could just act intelligently and honorably and represent their members properly. If "fair representation" is too abstract a concept for LRB adjudicators to get their heads around, then let's redefine what union members should expect from their representatives: A duty to intelligent and honorable representation does not seem unreasonable to us.
It's time we got it this "duty" thing straight.