State Intervention and Assistance in Collective Bargaining: The Canadian Experience, 1943–1954 9781487582890

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STATE INTERVENTION AND ASSISTANCE IN COLLECTIVE BARGAINING: THE CANADIAN EXPERIENCE, 1943-1954

CANADIAN STUDIES IN ECONOMICS

A series of studies sponsored by the Canadian Social Science Research Council, and edited by V.W. Bladen. 1. International Cycles and Canada's Balance of Payments, 1921-33. By Vernon W. l\lalach.

2. Capital Formation in Canada, 1896-1930. By Kenneth Buckley. 3. Natural Resources: The Economics of Conservation. By Anthony Scott. 4. The Canadian Nickel Industry. By O.W. Main. 5. Bank of Canada Operations, 1935-52. By E.F. Neufeld. 6. State intervention and Assistance in Collective Bargaining: The Canadian Experience, 1943-54. By H.A. Logan.

State Intervention and Assistance in Collective Bargaining THE CANADIAN EXPERIENCE 1943-1954

H. A. LOGAN

UNIVERSITY OF TORONTO PRESS: 1956

Copyright, Canada, 1956 University of Toronto Press Printed in Canada Reprinted in 2018 ISBN 978-1-4875-8161-9 (paper)

PREFACE Pride in one's country should be based on knowledge of and satisfaction with its purposes and achievements. Canadians are at a disadvantage with respect to some phases of their culture, in that they have been singularly incoherent in describing their accomplishments, Though possessing distinctive wares of their own, they have made no effort to display them abroad, and even at home they have continued to pass them by to feed on the well-packaged offerings of other lands. It is in the hope of contributing something to our knowledge of what we ourselves are doing in the sphere of industrial relations and, looking beyond the home circle, of sharing our experience with others to whom we are in debt, that this little book is written. Canada recently has joined the march of nations in state endorsation of, and assistance to, collective bargaining wherever her workers want it. In so doing, she has sought to uphold democracy in that institution, and to see that contracts are honoured, that production is not stopped or slowed down during their term and as little as possible at other times, She has been especially solicitous about equal treatment by the state of labour and management andabout undue encroachment on the responsibilities of the parties themselves to the detriment of the institution. In spite of these well-considered principles, there undoubtedly are dangers in even this measure of state control. Positive interference can never take place without affecting the quality of an institution; and collective bargaining by its very nature is vulnerable to social and political error. Its opposition of interests as between the participants, its balance of strength and necessary final dependence upon stoppage of production, its elements of secrecy, its timing, the peculiar interplay of economic and political forces that govern its leadership, the interest of society as consumers in con-:tinuous production -all suggest the need of a general understanding, likely to be had only on a basis of well-studied experience, lest correction of one undesirable symptom disturb the functioning whole. This essay is an attempt to describe the Canadian system of state interference since its general inception a decade ago, against a background of lesser interference affecting a section of the economy over the forty preceding years. While the main purpose is that of general education, attention is directed at times to controversial matters that have been the direct concern of legislators, administrators, participants, and critics, Where such questions are raised (as, for instance, in Chapter Ten in the treatment of conciliation), the reader will understand from the context that he is moving temporarily in the realm of opinion rather than among historical or proven facts. The study divides naturally into two parts: the first eight chapters present the forms of state interference in collective bargaining and the conditions and circumstances to which this manner of interference has been the reaction; they also examine the methods used to determine the will of the people with respect to industrial relations. The last two chapters develop a summary statement of the effects of the legislation, and present some of the issues to which the various .laws have given rise. An attempt has been made to describe administrative techniques where these concern the· efficiency of the boards' performance,

and case material is presented at points in the text where the judgments conspicuously affect the trend and the quality of the legislation, Elaboration of these matters, however, is left largely to scholars of more competence -preferably I think to persons closer to the day-to-day administration. The two acts of the dominion government are presented in full in Appendices I and II and some additional cases in .Appendix III. Canada's federal system of government, in this as in many other fields, lays extra burdens upon those who make and administer laws. Added to the question of the merit of the content of the legislation itself is that of its constitutional validity. Similarly, a responsibility is laid upon the writer who seeks to portray the result. An opening section, therefore, provides a simplified statement of the relevant parts of the Canadian constitution, and, thereafter, portions of the text are devoted to explaining the changing jurisdictional status of Dominion and provinces as affecting industrial relations in passing from peace to war and back again to peace, Inasmuch as eleven jurisdictions are involved, it has been found necessary to limit the study. Most space has been given to the federal government because of its leadership under emergency powers in wartime and its attempt to provide a model act for the provinces upon the return to peacetime conditions. Two chapters are given to Ontario and one to Quebec as the leading industrial provinces, and some special attention has been directed toward Oritish Columbia because of its contributory pioneering. References to other Erovinces occur only incidentally and mostly in relation to the particular subject-matter under consideration, Some of the provinces are said to have been influenced considerably on the administrative side, since the adoption of their statutes, by the judgments of Ontario. The writer owes much to many persons for contributions of various kinds to the content of this book, Important among them, were those people who, submitting to lengthy interviews, brought realistic appraisal of functioning to what would otherwise have been mere description based on the formal legislation and government literature, Considerations of confidence forbid disclosing their names, _Of somewhat similar help, though contacts with them were less intimate, are the reporters for the press, and notably those of the Toronto Globe and Mail and the Montreal Gazette who were generous in giving access to their files. Others assisted by directing the writer to materials necessary and valuable for his purpose, such as hearings before boards and Parliamentary committees, transcripts of conferences, and minutes of trade union meetings, Among government servants, acknowledgments are due to Deputy l\linisters A. H, Brown of the Dominion Department of Labour and J. O. Metzler and Gerard Tremblay of the Ontario and Quebec Departments respectively; to Messrs. M. M, MacLean and_ Ber.nard Wilson of the Canadian Labour R~lations Board, to· J. Finkelman, Chairman of the Ontario Board and to M. LeBrun, Vice-Chairman of .that of Quebec; to Dr. George Haythorne and staff members of the Research Branch of the Department of Labour, amongst whom particular reference should be made to Dr. Tait Montague, for assistance in making contacts and for valued discussion; and to Professor H. D. Woods, Director, Industrial Relations Institute, ~1cGill University, for similar assistance in Montreal. Thanks are due to Professor V, W. Bladen and to Mrs, Jane Ward for sympathetic editing, Financial support came from grants from the Rockefeller Foundation, the Canadian Social Science Research Council during the academic year 1954-55, and the Universities -Department of Labour Research Committee.

H. A. L.

CONTENTS

Preface

V

1.

The Background

3

2.

Industrial Relations in Wartime: The Approach to Compulsion in Collective Bargaining 11

3,

Compulsory Collective Bargaining in Action

24

4,

Preparing for Peacetime Legislation

38

5,

The Industrial Relations and Disputes Investigation Act

47

6.

Labour Relations Legislation in Ontario since the Passage of P.C. 1003

52

7.

Administration of the Ontario Legislation, 1944-1954

58

8.

Labour Relations Legislation in Quebec

69

9.

Effects of Canadian Labour Relations Legislation

73

Significant Issues of Yesterday and Today

87

10.

Notes

107

Appendix I

125

Appendix II

137

Appendix III

165

Index

173

vii

STATE INTERVENTION AND ASSISTANCE IN COLLECTIVE BARGAINING: THE CANADIAN EXPERIENCE, 1943-54

CHAPTER ONE

THE BACKGROUND 1. The Constitutional Setting To understand the legislation affecting labour relations in Canada, it is necessary to examine the distribution of powers in the Canadian federation, and to recognize that this distribution is related not only to the character of the economy in 1867 (rather than in 1955) and to the views held at that date as to the proper function of governments, but also· to the fundamentally bicultural character of the new Dominion. The legislative competence of the Dominion and the provinces is determined by the British North America Act: under its terms some labour legislation lies within the competence of the Dominion, some solely within that of the provinces. As will be seen in the course of this study, the interpretation of the Act has not always been easy; judicial interpretation has been necessary and some reference will have to be made to cases as well as to the clauses of the Act. The powers of the Canadian Parliament are laid down in Section 91 of the British North America Act. There is, first,' a comprehensive grant "to make Laws for the Peace, Order, and good Government of Canada in relation to all matters not coming within the Classes of Subjects by this Act assigned exclusively to the Pr~vinces": then there is an enumeration of specific powers which the Act states is "for greater certainty, but not so as to restrict the Generality" of the general grant. Of the enumerated items, those which have been of importance for labour legislation . are: "(2) The Regulation of Trade and Commerce" and "(27) The Criminal Law." The powers of the provincial legislatures are enumerated in Section 92; two of the enumerations must be noted: "(13) Property and Civil Rights in the Province" and "(10) Local Works or Undertakings other than (a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces ••• (c) Such Works as, although wholly situate within the Province, are ••• declared by the Parliament of Canada to be for the General Advantage of Canada." This is not the place for a full examination of the changing interpretation of these sections. All that is intended is a general indication of the uncertainty and restriction of the constitutional powers of Parliament in enacting labour legislation. This can best be done. through an examination of the legislative and judicial history of a national statute, the Industrial Disputes Investigation Act. By way of preface, however, a few general remarks should be made. First, the development of a national economy with more industries and more trade unions, reaching beyond provincial boundaries, made provincial administration of labour matters more difficult and further centralization increasingly desirable. This was just one phase of a general problem of the economic regulation ot national affairs. Second, it appeared in the earlier days of Confederation that judicial interpretation of the constitution would make it possible for the dominion government to assume new powers of national regulation as they became necessary. This expectation was based on the wide . interpretation given of the vague words "peace, order and good government" in Russell v. 3

4

State Intervention and AHistance in Collective Bargaining

The Queen. It was also expected that the "regulation of trade and commerce" would be broadly interpreted. In later years these expectations were shattered by decisions which gave a very wide interpretation to the exclusive jurisdiction of the provinces over "property and civil rights." "Peace, order and good government" was accepted as enabling the dominion government in 1914 and again in 1939 to assume wide powers in the emergency of war: in peacetime it gave no support to dominion action. Nor were the Courts ready to give much latitude under the heading "regulation of trade and commerce"; such regulations generally were found to interfere with property and civil rights. Finally, it is proper to say a word about amendment of the Act. If the distribution of powers as interp1;-eted by the Courts is unsatisfactory, cannot the Act be revised? Here the problem is political rather than constitutional. In part, the difficulty is that stated by Professor R. MacGregor Dawson in The Government of Canada: "The essential difficulty arises from the endeavour to accomplish two desirable yet contradictory things: (a) The written constitution should be kept rigid in order to give adequate protection to the minority ••• (b) The written. constitution should be kept elastic so that new conditions and demands can be readily met •••• " In part, the difficulty lies in divergencies of social philosophy in different provinces, and within provinces, which preclude a sufficient unanimity as to the character of the changes necessary to meet new conditions. There is no formal constitutional barrier to an amendment which would give the Dominion greater authority over labour relations; but for the time being we seem destined to operate within the constitution ·as it now is. The Industrial Disputes Investigation Act of 1907 provided compulsory investigation by government-appointed boards into the · labour disputes of certain types of industry. It prohibited a stoppage ol work pending investigation. By amendment, it required both employers and employees to give thirty days notice of an intendetl change in wages and hours, and if such notice caused a dispute, neither party could alter the conditions until the dispute had been dealt with by a board. The Act relied on the effect of public opinion, which would be informed of the stand of the parties in dispute and of the published recommendation of the board, to help settle the controversy with justice to both parties. The Act had compulsory application only to coal mining, transport, and communication agencies, and to gas, electric, water, and power works. Its machinery could be applied, however, to any dispute in other industries if both parties to the dispute consented, and in the early 'twenties it was turned increasingly to this use. The constitutional validity of this labour legislation was questioned in 1911 when the Montreal Street Railway Company challenged the power of the dominion government to enact such a statute; but a Quebec Superior Court upheld its validity on the ground that the subject-matter had a general or national importance and was connected with the peace, order, and good government of Canada. 1 In 1917, however, when the city of Edmonton applied for an order to restrain a board from inquiring into a dispute with its street-railway employees, the· dominion authorities did not oppose the injunction and no inquiry was made. In fact, it was officially stated later that in these years the practice of the Labour Minister was to establish a board in a dispute involving municipal utilities only "in the absence of a distinct protest by the municipality on the ground of jurisdiction." But in 19'23 a board was established in a case involving

The Background

5

the Toronto Electric- Commissioners, a municipal body. A restraining order applied for by the Commissioners was granted and the question of the validity of the Act was before the Courts. The Ontario Court of Appeal upheld the Act maintaining that it provided machinery for inquiry into disputes "which may,- and in other cases will, develop into disputes affecting not merely the immediate parties thereto, but the national welfare, peace, order and safety and the national trade and business •••• " It declared, furthermore, that "the legislation is not law in relation to municipal institutions, local works, property and civil rights or matters purely local as these words are used in the British North America Act." In January 1925 the Judicial Committee of the Privy Council in a famous judgment read by Viscount Haldane, reversed this decision declaring that the Act was one "primarily affecting property and civil rights," a subject reserved to the provincial legislatures,and that most of its clauses "could have been passed, so far as any Province was concerned, by the provincial legislature under the powers conferred by Section 92." 1 The Judicial Committee rejected the plea that the Act was valid as an exercise of the power to regulate trade and commerce, or as creating a new crime, that of striking without notice. More important was its handling of the precedent established in Russell v. The Queen: "It appears to their Lordships that it is not now open to them to treat Russell v. The Queen as having established the general principle that the mere fact that dominion legislation is for the general advantage of Canada, or is such that it will meet a mere want which is felt throughout the Dominion, renders it (the Parliament of Canada) competent if it cannot be brought within the heads enumerated specifically in Section 91." The decision recognized, however, that there might be cases "of some extraordinary peril to the national life of Canada, as a whole, such as the cases arising out of a war, where legislation is required of an order that passes beyond the heads of exclusive provincial competency. Such cases may be dealt with under the words at the commencement of Section 91, conferring general powers in relation to peace order and good government, simply because such cases are not otherwise provided for." 1 Following this adverse decision of the Privy Council, the Industrial Disputes Investigation Act was amended to restrict its. application ta: (i) "any dispute in relation to employment upon or in connection with any work, undertaking or business which is within the legislative authority of the Parliament of Canada" and there follows an enumeration; (ii) "any dispute which is not within the exclusive legislative authority of any provincial legislature •• .'·'; (iii) "any dispute which the Governbr in Council may by reason of any real or apprehended emergency declare to be subject to the provisions of this Act"; (iv) "any dispute which is .within the exclusive legislative jurisdiction of any province and which by the legislation of the province is made subject to the provisions of this Act.'' This last clause was the significant one. :It opened the way for expansion of the federal power through legislative action in the provinces to delegate authority to the Dominion. Within a year British Columbia, Saskatchewan, Manitoba, and Nova Scotia passed such legislation, while Alberta passed an IDI Act of its own on the federal model. Ontario and Quebec :-~ssed accommodating acts in 1932. In this way it was thought that the problem arising out of the Privy Council decision had been overcome and the necessary flexibility achieved,

6

State Intervention and Assistance in Collective Bargaining

The records of the Department of Labour and statements published in the Labour Gazette show clearly that (contrary to some belief prevailing today) the powers granted to the federal government by . this permissive legislation were used. During the late 1920's and the 1930's, for example, the provisions of the IOI Act were regularly invoked to deal with disputes involving coal mines and street railways which, in the absence of the enabling legislation, would have been beyond the scope of the Act_. Beyond these again, on a few occasions during this same period, boards of conciliation and investigation were established in accordance with the provisions of the Act to deal with disputes in works and undertakings that were outside both the normal boundaries of federal jurisdiction and the definition of "employer" set forth in the Act. ·The latter was done, apparently, only with the consent of both parties to the dispute. There was, however, considerable opposition to this enabling legislation, at least on the part of employers, in the provinces which had enacted it. As a result, a considerable body of legal opinion which held that such legislation was ultra vires of the provincial legislatures accumulated. lo 1950 the Supreme Court of Canada, in an early use of its newly acquired high responsibility, 4 upheld a decision of the Supreme Court of Nova Scotia in finding that a province cannot delegate the powers conferred upon it under the constitution to another political body of co-ordinate rank. The substance of this judgment as summarized in Dominion Law Reports was as follows: Neither the Parliament of Canada nor the legislature of any province can delegate one to the other (to be exercised by that other as a Parliament or Legislature as the case may be) any of the legislative authority respectively conferred upon them by the B.N.A. Act, and especially bySections 91 and 92 thereof. The legislative authority conferred upon Parliament and upon a provincial Legislature is exclusive and as a consequence, neither can bestow upon or accept power from the other although e_ach may delegate to subordinate agencies.... Delegation of this kind is incompatible with Canadian federation. 5 Thus one more way of extending federal authority was blocked. 2. Early Legislation Having explained in the first part of this chapter the constitutional restrictions and uncertainties, it remains to note very briefly the background of experiments in legislation, provincial and dominion. The history of the 'forties can be understood only in the light of the character of these experiments, and especially in terms of their limited scope. Provincial Reflecting the simpler and more localized economic conditions, nineteenth-century legislation affecting industrial relations was mostly provincial. State inquiry and interference in the 'eighties and 'nineties was a reaction, in some instances, to sweat-shop conditions and to low standards of safety from accidents but increasing attention was also turned to the problem of disputes. Statutory provision for intervention in disputes is found, for example, in the =I'rades Arbitration Act !)f Ontario in 1873, in the Nova Scotia Compulsory Arbitration Act of 1888, and in the Trades Disputes Acts of British Columbia and

The Background

7

Ontario in 1894 and of Quebec in 1901. Space ·forbids elaboration of these and other early provincial acts. There seems to have been little in them that was original. Canadians seemingly copied British and Australian legislation -a circumstance that led a federal Royal Commission on Labour and Capital, reporting in 1889, to recommend that more attention be paid to American statutes and their administration as being more applicable to Canadian conditions. Perhaps the chief lessons to be derived from them were: (1) that the difficulties in administering legislation in this field were considerable; (2) that laws that were gaining prestige abroad £ailed to £it the requirements of Canada; (3) that the early expectations of the use of state compulsion tended to give way, sometimes through administrative compromise, to voluntary and moderate forms. With the turn of the century, leadership in this field passed to the federal government, and Canadian legislation soon showed evidence of more originality in design and a maturer appreciation of the country's needs. Yet the provincial legislatures did participate in the improvement. 6 Ontario's Railway and Municipal Board Act of 1906, for instance, carried many of the same features as the federal legislation of the period and provided, in addition, machinery for taking over and operating any railway where services were suspended- machinery which it twice used with effect. Over an eighteen-year period (1906-23) the Ontario Railway and Municipal Board intervened in five strikes of street-railway employees, as compared with some fifty applications to the federal Department of Labour for boards of conciliation and investigation under the Industrial Disputes Investigation Act by street-railway companies or their employees. This proportion indicates the larger dependence of public utilities upon the federal authority in this period, even among industries wholly within a single province. Challenges to the jurisdictional competence of the Dominion to deal with industries thus localized came to fruition in 1925 and the Privy Council decision effectually barred the federal authority from further action. Thereafter, as has been stated in the earlier part of this chapter, permissive legislation, passed by the various provinces at the invitation of the Dominion, reasserted the competence of the Dominion to deal with intra-provincial labour disputes in the range of industries intended to be subject to her under. the constitution.

Dominion Peacetime Legislation The dominion government's formal contribution to peacetime labour relations before World War Il involved the enactment and operation of the following legislation: the Trade Union Acts of the early 1870's, freeing the unions from charges of criminal conspiracy and, by implication, creating an area of legal picketing; the Conciliation Act of 1900; the Fair Wage Resolution, covering government employees only; the· Railway Labour Disputes Act of 1903; and the Industrial Disputes Investigation Act of 1907 with its later amendments. None of these, unless it he the first, was directed especially toward collective bargaining. With one exception, these early twentieth-century statutes were concerned with the settlement of disputes per se leading, or threatening to lead, to stoppages. The Conciliation Act of 1900 was patterned on the British act of the same name of 1896. It contained no compulsory features but merely provided free conciliation by individuals or boards, chosen by the disputants themselves, upon request of either party to a dispute, and arbitration upon request of both parties. It provided, also, for registration of the boards so created, for the establishment of a Department of Labour to collect and digest statistics relating to labour matters and to publish a monthly Labour Gazette.' The Railway

8

State Intervention and Aeeistance in Collective Bargaining

Labotr Disputes Act, whose passage through Parliament took two years and whose content changed in the process from a prescription fOC' democratically administered compulsory arbitration to something much milder, became law in 1903. • After a very limited functioning, it was consolidated with the Conciliation Act in 1906, and subsequently the railway field was covered by the Industrial Disputes Investigation Act with· its more varied weapons of control and its wider jurisdiction. The chief significance of the Railway LabolD' Disputes Act for us today lies in the fact that it was a stepping stone on the way to the Industrial Disputes Investigation Act, and that its changing prescriptions during its slow passage through Parliament reveal the groping trial and errOC' in the thinking of the legislators of that period. 9 The Industrial Disputes Investigation Act. 10 The main features of · ihe Industrial Disputes Investigation Act were: (1) compulsory provisions for industries assumed to be under dominion jurisdiction and designated as affecting the public interest; 11 (2) the representative principle in administration through a government-appointed ad hoc board of three, including a nominee by each party to the dispute and an independent chairman; (3) dependence upon public opinion through (a) publication of the report of the investigation of the dispute and the board's recommendations thereon and (b) permission, at the discretion of the board, to the press to be present at the board's hearings; (4) conciliation opeiati~g through the agency of board members and affected hy publicity; (5) ••cooling-off period" of defined length enjoyed or endured by the disputants who had been made cognizant of the facts revealed through investigation, and whose attitudes had been somewhat affected by the conciliators. With experience and the passage of time there is said to have developed (a) less dependence upon publicity and a greater reliance upon conciliation; 12 and (b) a tendency, with the growth of organized unions, to permanent disagreement among the board membere and the issuance of minority and majority reports. Inasmuch as this Act was operative over a period of nearly forty years and as many of its terms are incorporated in present legislation, it will be helpful at the outset to point to certain matters that came to be issues, and which, in some instances, are still among our unanswered problems. The following list will alert the reader to their persistence. (1) How effective is investigation per se in remedying disputes? (2) What is the effect of the reporting of such investigation to the public? Was Mr. Mackenzie King, author of the Act, wrong in this dependence in 1907? 11 (3) Is there a conflict between effective conciliation and publicity, and if so, what is the nature of this conflict? (4) Has the "cooling-off period" become obsolete? What are the psychological and the economic effects of delay? (5) What are the weaknesses and what the points of strength of ad hoc representative boards as agencies of conciliation? (6) Did the Industrial Disputes Investigation Act lose its competence with changing conditions? We shall see in future pages (a) its failure to deal effectively with wage control under the War Orders of 1940 and (b) its aJleged failure in labour disputes generally in the 1940's which necessitated new orders-in-council. 14 Orders•in-Council in World War I The government rather tardily in World War I struck a pattern of labouirelations control very similar to that of the earlier years of World War II which is to be described at some length in Chapters Two and Three below. It involved: (1) An extension of the IDI Act (March 1916) to cover industries producing war illaterial for the duration, through making use of the war emergency power; (2)

The Background

9

a declaration of principles (July 1918) naming, among other matters, the right to organize al)d negotiate without discrimination, comparable to the famous P.C. 2605 of June 1940 for the guidance of employers and employees engaged in war production: this in the interest of fair and peaceful industrial relations and maintenance of war output; the 1918 Order differed, however, in that it provided for arbitration with final authority through use of a tripartite pennanent Labour Board of Appeal, to which either party to a dispute might appeal from decisions of the boards of conciliation investigating the disputes; (3) prohibition of strikes and lockouts for the duration of the war, ordered only one month before the end of the conflict; (4) the use of one-man commissions and of royal commissions in the investigation and settlement of disputes. Though attention to industrial relations was much less in World War I because of the smaller and less vitally necessary war industry and the comparatively inadequate organization of unions to challenge big industry, the pattern of control as developed in response to the stress at that· time doubtless contributed to the quicker use of the same techni,:rues in 1940. It may be significant that the Deputy Minister of Labour during the creative years of the second war was already rising to prominence in the Department during the first.

3. The Industrial Relations Situation in the 'Twenties and 'Thirties Finally, it is necessary to say something, very briefly, about the extent of union organization and the degree of union acceptance in the pre-war period. Collective bargaining during this time was limited chiefly to railways, building trades, printing, paper milling, coal mining, and clothing. It made little headway in manufacturing, in trucking, or in merchandising. Before 1933, in fact, the American Federation of Labor unionism came to a continent-wide halt. Factors contributing to this were: (1) the "open-shop drive" of the manufacturers; (2) the defeat of the great strikes after World War I in steel, coal, railway shops, and so on, which sapped the. unions financially and undermined their confidence; (3) for Canada, in particular, the One l3ig Union secession movement in t-he West; and later (4) for both countries, the welfare offerings of the big progressive employers. After 1933, with the assistance of a friendly government, labour organization increased rapidly in the United States, but the Canadian sections of the internationals were scarcely affected, The small coverage of trade union collective bargaining was also attributable to employee representation, which came to the front in Canada as well as in the United States, but which lasted longer in Canada. It functioned largely as a substitute for collective bargaining in such industries as steel, packinghouse, and agricultural implements. · For Canada this comparative failure of trade union organization was, after 1933, in marked contrast with great changes in the United States, made possible there by the National Recovery Administration and the Wagner Act, and spearheaded by the new unions then laying the foundations of the Congress of Industrial Organizations. Collective bargaining, it is evident, and the way in which it was carried out, had become the central issues in industrial relations. Yet through all this period, the Industrial Disputes Investigation Act show.e d no positive stand toward collective-bargaining negotiation, and· its boards, .until 1940, had no legislative instruction with respect· to discriminatory practices. 11

10

State Intervention and Assistance in Collective Bargaining

The unions, in view of their successes in the United States under the Wagner Act, and especially after the declaration by the Supreme Court in 1937 of its constitutionality, exerted pressure on the provincial governments for legislation aiming to give like results in Canada. Nova Scotia, in April 1937, stimulated by problems related to the forceful action of the Steel Workers' Organizing Committee in the steel plant at Sydney, passed a Trade Union Act; Manitoba at the same time, and Quebec and British Columbia later in the year, followed suit; Saskatchewan, Alberta, and New Brunswick followed in 1938. These provincial statutes, however, while declaring against discrimination and generally supporting labotr organization and collective bargaining, failed to provide administrative boards to certify the organization acceptable to the workers, and consequently failed to enforce the law against non-recognition and other unfair practices. 16 They were, therefore, spotty in their achievement and, f« the most part, of little effect, thongh indirectly valuable in focusing the attention of legislators across the country on this great problem. 17 In the dominion Parliament, Pfk-. J. S. Woodsworth, after earlier failure, succeeded in 1939 in getting a private members' bill passed, outlawing discrimination by an employer against a worker, solely for the reason of his being a member of a trade union. This, too, although subsequently embodied in the Criminal Code, was ineffectual because the condition in any particular case was practically incapable of proof.

CHAPTER TWO INDUSTRIAL RELATIONS IN WARTIME: THE APPROACH TO COMPULSION IN COLLECTIVE BARGAINING

I. Early Orders-in-Council, World War II This, then, was the situation at the declaration of war on September 10, 1939. On November 7, by Order-in-Council P.C. 3495, the dominion government

extended the Industrial Disputes Investigation Act to cover defence projects and all industries producing munitions and war supplies. On June 19, 1940, in P.C. 2685, it made a declaration of principles to govern the conduct of industrial relations during the war. Seeking the avoidance of industrial strife and the utmost acceleration possible in the production of goods essential to war, P.C. 2685 recommended, inter al.ia, that fair and reasonable standards of wages and working conditions should be observed, that the right of workmen to organize in trade unions and to bargain collectively should be recognized, that disputes should be settled by negotiation or with the assistance of government conciliation services, and that collective agreements should provide machinery for adjusting grievances. This declaration of principles, while generous and comprehensive, was soon discovered to be no more than a set of recommendations. The government maintained that it was not intended to be coercive, but organized labour at first regarded it as such. In fact the Canadian Congress of Labour, in its memorandum to the Cabinet in the spring of 1941, pointed out "that employers generally had disre_garded the order," and urged that it be implemented by legislation that would protect the right to organize and bargam collectively by providing penalties for infringement of that right. Furthermore, it employed legal counsel, in the person of Mr. J. L. Cohen, K.C., to draft proposals for a new order-in-council in line with its ideas and aiming specifically to check employer discrimination and interference. This document which, among other things, called for the establishment of a Labour Policy Enforcement Board, for prescribed fines to be imposed on offending employers, and for compensation to be paid to victims of discrimination, was placed before the National Labour Supply Council and there discussed.1 This early expression of what labour had in mind is significant as a landmark anticipating the government's offering of three years later. The discussion that took place before the NLSC apparently suggested that immediate fulfilment of the request was unlikely. The Executive Board of the Congress was, therefore, led "to recommend also an agency of more limited function, viz., an Industrial Disputes Enquiry Commission with power to investigate disputes and allegations of discrimination on account of union membership or activity, and where the Commission considered it desirable, to recommend the appointment of conciliation boards. This last advice the government followed: and thus came into being Order-in-Council P.C. 4020 on June 6, 1941, providing an investigation agency more speedy in action and in closer relation with the Labour Minister and his department than the ad hoc hoards (of the IDI Act>:'' 2 By this order, the Minister might also refer to a commission any actual or tbreatened dispute which fell within the jurisdiction of the IOI Act as extended. Originally it provided for a standing commission of three members, but in July the Order was 11

12

State Intervention and Assistance in Collective Bargaining

amended (P.C. 4844) to use one or more members appointed ad hoc by the Minister. At bis direction, such commiasi~ were in frequent use in alleged discriminatory discharge cases. (The Order also named alleged coeri;:ion or intimidation to induce joining unions as objects of investigation, but this phase was not operated.) Failing settlement, the commissioner would report bis findings to the Minister who would issue a final and binding order to give effect to recommendations . Through this medium, a large number of dismissal cases were investigated during the war and, in many of them, reinstatement in employment with back pay for the period of wrongful dismissal was ordered. This_ direct ·relief to the employee, based on recommendations by commissioners, marked the beginning of compulsion of behaviour as defined by government administrators. With the adoption of P.C. 1003 in 1944, the sections of P.C. 4020 which were inconsistent with the regulations of the new order were snspended, but the sections relating to investigation by commissions for wrongful dismissal, union coercion, and effective utilization of labour in the war effart, remained in force supplementary t