Ashton picks at old scab

Ashton is resorting to a concept which has appealed to labour in the past, a policy which has often been expounded but never been implemented -- "anti-scab legislation."

Under such legislation, if a union went on strike the employer would be prohibited from hiring replacement workers willing to do the work walked away from by striking employees.

The traditional labour movement did not know of such a concept. The old trade unionists believed in free collective bargaining. Employees should be free to collectively withdraw their services in support of their bargaining position. But they ran the risk of losing their jobs if they did not receive public support from consumers and from other workers who would not apply for their jobs.

An employer could try to maintain its operations and could legally attract both striking employees and others to do the work. This involved a risk that the operation could be put out of business. The jeopardy faced by both sides made for responsible bargaining. If one side or the other was guaranteed success, this would lead to irresponsible bargaining.

Until the NDP became the government of Manitoba, the trade union movement was comfortable with the objective of "free collective bargaining." When we took power, we immediately implemented significant legislation which removed unfair restrictions that had been imposed on unions.

But when some unions got into difficulty they found this freedom was not to their liking and demanded laws that would favour unions from what they believed to be a friendly government. By 1976, they were demanding anti-scab legislation.

This created a minor crisis in the party and eventually led to my resignation.

All the leadership candidates following the resignation of Ed Schreyer promised anti-scab legislation, including Howard Pawley and Muriel Smith. But lo and behold, neither Pawley nor Smith passed anti-scab legislation in subsequent NDP governments.

We have had 10 years of NDP government under Gary Doer and I do not wish to be unfair -- we have seen a good deal of pro-union legislation, but no anti-scab legislation.

Ashton is hoping that by playing the anti-scab card he will join battle with leadership rival Greg Selinger on this issue. If Selinger is responsible, which I expect he will be, then Ashton hopes to lay claim to a shallow-minded union vote and to others who like the sound of being against scabs but who have not really thought out the implications of such a law.

The notion that a hospital could not hire nurses to look after your ailing mother if the nurses went on strike should put doubts into the minds of the most militant trade unionists. But they will dismiss such a suggestion by making an exception for so-called essential services, a concept which once again is a departure from the principle of free collective bargaining.

But it won't end there. The attempt to regulate collective bargaining by laws will prove to be inexhaustible. Special rules as to what can be done during a strike, apart from the general laws which govern all of us, ultimately will restrict freedom of action and ultimately will be to the disadvantage of unions or at least employees.

Anti-scab legislation will be followed by legislation requiring every employee who is represented by a union to go on strike whether they want to or not. This will be followed by a law which makes picket line duty obligatory. Then another law that will prohibit employees in a union which is on strike from returning to their employment or from seeking other employment.

The Ashton pronouncement of policy that he would implement if elected leader, as well as similar announcements by the other leadership candidates early in the race, shows a remarkable transformation of the New Democratic Party.

In former years, it was holy party writ that leaders do not make the policy. Party policy was made by the convention or provincial council between conventions. A person running for the leadership would be severely criticized if he or she announced that they were going to implement a program that had not been approved at a party convention. In past years, contenders for the leadership did so on the basis of their ability to articulate and present party policy, not the making of it. It would appear that New Democrats have come of age and decided to join their competitors in pursuing what they used to call the "cult of personality."

Sidney Green is a Winnipeg lawyer and former NDP cabinet minister.

Republished from the Winnipeg Free Press print edition October 9, 2009 A13