From Rand to straitjacket labor

———

Injunctions . . .

By RAE MURPHY

In the 263 page report of the
Rand Commission, a little better
than one page is devoted to the
course of events which Rand
says constituted the “immediate
investigation of the Commission.”
“A course of events,” Rand says,
‘following a strike of the work-
ing force of about sixty em-
ployees, mostly women, of a

oe anda Mri

A funny thing happened to
Justice Rand on his way to pro-
posing an Industrial Tribunal to
Straitjacket labor — he insert-
ed a paragraph which described
the legal restrictions which al-
ready encumbers the right to
organize and bargain collective-
ly. As Rand points out:

“Strike today in Ontario is a

device of limited scope. No long-
er is it legitimate as a means of
compelling union recognition;
nor of enforcing grievances
arising out of a collective agree-
ment; nor as against an unfair
labor practice; and it is abso-
lutely forbidden during the op-
eration of a collective agree
ment. Even where there is no
certification of the union agency,
and no collective agreement has
been entered into, strike is ille
gal until the procedure of con-
ciliation has been exhausted.”
_ It would naturally follow that
the Commission would have
gone on to rectify the obviously
Serious restrictions placed upon
labor, but not a chance. As we
have already seen, Rand endors-
ed the principle of the use of
injunctions and even taking into
account the fact that the “strike
today in Ontario is a device of
limited scope,” he later states,
“We have not yet produced an
acceptable framework of ideas
to replace the crudely developed
Strike ritual . . . disfiguring and
wasteful procedures.”

Perhaps he recognizes that
the “disfiguring” and “wasteful”
Procedures are all part and par-
cel of the restrictive legislation
that have been hamstringing
bargaining over the years. In
any case, he is like the good
surgeon who upon noticing the
wrong leg amputated decides to
rectify matters by removing the
other, and while the knife is
Sharp takes off both arms for
good measure.

The sharp knife in Rand’s re-
port is the establishment of an
Industrial Tribunal. He draws
his main inspiration for this Tri-
bunal from Australia, where sev-
eral variants on this theme have
been established for several
years. After trying to digest
some of the sweeping powers to
be. granted to this Industrial
Tribunal one also comes to the
belief that on his way to Aus-
tralia Rand stopped off in South
Vietnam and studied the pacifi-

. cation program of the Green

Berets.

Wilfred List, labor reporter
for the Toronto Globe and Mail,
and never one to overstate la-
bor’s case on anything, points
out that the “powers Mr. Rand
would give the tribunal—includ-
ing those to set aside any pro-
vision of the legislation he pro-
poses—are frighteningly broad.”

As one looks over’ the half a

hundred concrete recommenda-
tions of the Rand Commission,
the description of the powers
given the Industrial Tribunal as
“frighteningly broad,’ must be-
come the understatement of the
year.

By way of example the follow-
ing, almost random quotes from
the recommendations are per-
haps instructive. Note the lee-
way given the Tribunal — to
make its own rules — to change
them when it desires, and to
enforce them as it sees fit.

e “On the application of the
union or the employer, the Trib-
unal may, at any time, fix the
number of pickets, the locations
at which they may be, and the
conditions of picketing permis-
sible. Where the terms of the or-
der are violated the line or group
shall be illegal as to all persons
participating in it and an offence
hereunder.

e “Subject to any order of the
Tribunal, no person is to act as
a picket who is not a member of
the unit of employees on strike
or an Official of the union; and
appropriate placards with legiti-
mate information may be carried
or otherwise exhibited by pick-
ets.

.© Mass picketing, including a
number greater than reasonably
adequate to the purpose men-
tioned or as authorized by the
Tribunal, or any other form of
demonstration at or near the
plant or business in respect of
the strike, by any persons whom-
soever, shall at all times be pro-
hibited.

e “During a lockout, the ex-
tent of picketing, if any, shall be
determined by the Tribunal.

e “When a strike has contin-
ued for forty-five (45) days, on
the application of any striking
employee or employees to the
Tribunal, the Labour Relations
Board shall, at the request of the
Tribunal, which the Tribunal, in
its discretion, may make, take a
secret vote by the postal service
of all employees in the unit on
strike on the question of whether
the continuance of the strike is
approved. For the purposes of
such a vote the Labor Relations
Board may, if necessary, inspect
the records of the employer to
obtain the names of all employ-
ees in the striking unit with their
street or other address. Should
any question arise as to the em-
ployee status of any person, it
shall be at once referred to the
Tribunal for decision.

And so on and so forth. The
wide, sweeping powers of the
Tribunal are intensified because
there is to be no appeal from
any decision of the Tribunal. Sec-
tion 10 of the proposed constitu-
tion spells this out.

“Except as herein expressly

' provided, no decision, order, di-
PACIFIC TRIBUNE—SEPTEMBER 27, 1968—Page 4

small industry in the City of
Peterborough in which the vio-
lation of an injunction against
the maintenance of more than
twelve pickets at the four en-
trances to the plant resulted in
the imprisonment of five persons
sons for 15 days .. .As can read-
ily be imagined, the punishment
occasioned a reaction of strong
community protest against what

rection, award or ruling of the
Tribunal shall be questioned or
reviewed in any provincial court,
and no order shall be made or
process entered, or proceeding
taken in any such court, whether
by way of injuncion, declaratory
judgment, certiorari, mandamus,

_ prohibition, quo warranto or

ctherwise, to question, review,
prohibit, or restrain the Tribunal
or any of its proceedings except
on the ground of want of juris-
diction.”

You can say one thing about
old Justice Rand, he sure is
thorough. Without going into
this “certiorari, mandamus”
stuff, nobody is going to be able
to get an injunction against his
Tribunal.

It is almost incidental that
Rand suggests that the members
of the Tribunal be suggested by
both employers and labor, but
the government is bound only to
give “careful consideration” to
any suggestions, but even this

little loop-hole is covered when -

Rand describes the qualifications
for membership on the Tribunal.

”In general, they should be of
outstanding abilities with educa-
tion and training in political
science, economics, sociology,
psychology, labor relations, :phi-
losophy and history, and prefer-
ably with experience in the field
of labor relations law.”

Thus if any worker can take

time out from his polo ponies,
there are a few nice jobs open-
ing up, with a judge’s salary, and
a guaranteed annual wage until
pension time.
‘ David Archer, President of
the Ontario Federation of Labor
has described the Tribunal pro-
posal as a Winter Works pro-
gram for lawyers. Only it isn’t
the lawyers that are going to get
the works, which perhaps brings
us to the final point on the sub-
ject.of Tribunals.

The only people who support
the system of compulsory arbi-
tration are those whose wages
and working conditions are not
determined by such tribunals.

Rand, in his report, complains
about the “Jungle Law” which
conditions labor - management
relations in Ontario. The whole
system is operated on the Jungle
Law” recommendations and such
as Rand’s just merely strengthen
the predatory animals. It is one
of the interesting omissions in
the voluminous report that no
evidence is given that compul-
sory arbitration or tribunals les-
sen the inevitable struggles be-
tween workers and employers.
Such devices do not nor are they
intended to bring harmony. or
“labor peace,” they just make
the struggle more difficult and
on a more unfriendly terrain for
the labor movement.

was felt to be an outrageous in-
terference with legitimate activ-
ity of striking employees. As it
was described by a, labor leader,
these employees and their sym-
pathizers, rendered helpless by
the injunction, were forced to
watch the workplaces of the
strikers being taken over by in-
terlopers. Bitterness against the
employer and authorities was
inevitable and it still may ran-
kle.”

Yes, the injustice of the Tilco
affair, along with the other
strikes that were smashed
through the use of injunction,
still “rankles.” The use of cops
to smash the strike at Coleman
industries still “rankles.” The
fines and prison terms handed
out to unionists still “rankles.”
The weight of the whole state
apparatus—the courts, the cops
—the whole set-up still “ran-
kles.”

But as Justice Rand, rather

smugly, points out, although “it

became an issue in a general
provincial election in the follow-
ing year; a calmer and fuller
understanding of exactly what
was involved seems to have
been reached by some, at least,
of the electors.”

Thus, if one should feel like
laughing, the laugh would be on
us, because the Rand Commis-
sion, once set-up to get the heat
off the government over the par-
ticular injustice of the use of
injunctions which are rankling
the whole-labor and democratic
movement in Ontario, has now
come in with a whole set of
proposals that will make the
mere injunction seem like -Para-
dise Lost.

When one is bent on estab-
lishing unions as legal entities,
abolishing strikes in the public
service and establishing com-
pulsory arbitration anywhere
else the poobash decide, what
is a mere injunction? Yet even
in this instance, Rand isn’t giv-
ing way. This is in part what
he has to say about injunctions:

“Two items of the present pro-
cedure followed for obtaining
injunctions, especially ex parte,
may within limits fairly be cri-

ticized: the use of affidavits of
an application, and the apparent
failure of resort in some caseS
to police action.”

Rand has a notion, which he
expresses several times, that the
police haven’t really been used
enough during strikes in On-
tario. Later, however, he states
in defense of injunctions:

“In many cases of misconduct
on the picket line the use of the
injunction is in reality much less
objectionable than to call on the
police. It is a notice in civil law
that certain conduct is unlawful
and prohibited; and why effective
police action is thought to be
preferable is hard to understand.
That action at once associates
strikes with apparent criminal-
ity; and the economic conditions
of organized labor in Canada
today exclude any role of marf-
tyrdom.”

Many people after reading the
Rand Report would come to the
conclusion that the only role left
for labor in Ontario will be mar-
tyrdom . . . now even this the
Justice takes away. ;

In his actual proposals on in-
junctions Rand makes the ob-
servation that they should only
be used in emergency. But the
whole theory of the injunction
is as an emergency device. At
least the bosses have always
claimed it was an emergency,
and the judges have mostly
agreed. Rand however, perhaps
as a sop, wishes to amend the
legal procedure to pretty well
eliminate the ex parte injunc-
tion, or make it a little moré
difficult to obtain. fe

The intention of the Commis-
sion is clear however, the
weapon of injunction is to re
main part of the legal millstone
around labor’s neck. This is for-
tified by his idea that, rather
than amend the Judicure Act in
the manner of injunction pro-
cedure, the whole system of in-
junctions be taken from the
courts and placed within the
jurisdiction of the projected Tri-
bunal.

So much for injunctions—‘the
immediate investigation of the
Commission.”

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JUDGE, JURY AND EXECUTIONER

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