Fining Strikebreakers (Updated)

In an op-ed printed today, John Mortimer of LabourWatch applauds an Ontario court’s decision not to enforce the Public Service Alliance of Canada’s fines against members who crossed picket lines. One wonders how his inane rhetoric about “human rights” slipped past the Financial Post’s editors.

To an economist, this issue is a classic “free rider problem.” Collectively, the workers benefit from the bargaining power obtained by withdrawing their labour during a strike. However, individuals have a personal financial incentive to cross the picket line, collect income by working during the strike, and still share in the future gains bargained through the efforts of other strikers. Of course, if too many workers cross the line, these future gains disappear and everyone is worse off.

The workers need mechanisms to prevent each other from breaking strikes. Fines are a good mechanism because they remove the financial incentive to cross the picket line.

Saskatchewan has legislation empowering unions to collect such fines. Mortimer implies that this law violates the Charter of Rights. However, workers who cross picket lines receive no shortage of high-powered corporate legal support (e.g. McCarthy Tetrault, Gowlings, etc.) If Saskatchewan’s legislation were truly unconstitutional, why have the courts not struck it down?

Mortimer recommends removing Saskatchewan’s “union-financed NDP government in next month’s election.” Since election day is tomorrow, one must conclude that the Financial Post’s editors were asleep at the switch.

UPDATE (Nov. 10): Today’s Financial Post includes the following letter from my colleague Hassan Husseini:

Fining free riders

Financial Post

Saturday, November 10, 2007

Re: No Right to Fine, John Mortimer, Nov. 6

John Mortimer’s latest tirade against the labour movement is not surprising. In his capacity as president of the Canadian Labour-Watch Association, he speaks for, and in the interest of, the business community in Canada and should never, for a moment, pretend otherwise. That is why he is highly selective of the cases he and his organization choose to comment on.

It so happens that on the same day (Oct. 17) that the Ontario Superior Court of Justice released the PSAC decision Mr. Mortimer celebrates, the Alberta Court of Appeal unanimously overturned a Labour Relations Board decision that allowed Finning International to bust a legitimate union, in violation of well-established successorship principles. Does Mr. Mortimer’s silence on this important ruling mean that he is not willing to defend employee rights when they are violated by employers?

Mr. Mortimer conveniently appeals to the United Nations Declaration of Human Rights and the Canadian Charter of Rights only when it serves his union-busting agenda. Otherwise, he would have lauded the Alberta and other high-court decisions that unequivocally protect union members’ right to collective bargaining. Instead, he claims that Saskatchewan “forces union membership on most unionized workers” and allows them to levy fines on strikebreakers in violation of the Charter of Rights. If this were the case, why have the courts not struck down the legislation? The fact is, the Supreme Court of Canada has upheld the right of mandatory membership and dues-checkoff in collective agreements, not only in Saskatchewan but across the country.

Levying fines on strikebreakers is one way of dealing with the “free-rider problem” and has nothing to do with human rights, as Mr. Mortimer would have us believe. Collectively, the workers benefit from the bargaining power obtained by withdrawing their labour during a strike. However, individuals have a personal financial incentive to cross the picket line, collect income by working during the strike, and still share in the future gains bargained through the efforts of other strikers. Of course, if too many workers cross the line, these future gains disappear and everyone is worse off. Everyone, except employers who force workers to go on strike in the first place.

Hassan Husseini, national representative, Canadian Labour Congress, Ottawa