Union Security Clauses and the

Right to Work
H. J. CLAWSON
Montreal

The final disposition of'Kuzych v. - White by the recent judgment'

of the Judicial Committee of the Privy Councils affords an op-
portunity to re-examine some of the practical implications of
compulsory union membership . This analysis is concerned not so
much with the legal issues that have arisen in this lengthy and
somewhat involved litigation (a number of which still remain
undetermined) as it is with the broader social and political prob-
lems of the "closed shop" and "union shop" - the contractual
device that makes the right to work at a trade or for a particular .'
employer conditional upon becoming and remaining a member in
good standing of a designated union.
The Kuzych case is now so well known in both labour, relations
and legal circles that it can, with justification, be termed a cause
célèbre . Professor Whitmore's excellent article in the last issue of
the Canadian Bar Review 2 has set forth the facts in considerable
detail, and for my purposes â brief summary of them will suffice.
It will be recalled that Kuzych was expelled from a union which
had a closed shop agreement with his employer. The grounds_
alleged for his expulsion were inter aliâ that (a) he assisted in
holding an unauthorized public meeting to discuss internal Busi-
ness of the union;, (b) he was guilty of conduct unbecoming a
union member by, publicly opposing established policies of the
union, that. is, the closed shop principle ; and (c) he violated his
oath of membership by failing to repudiate certain radio broad-
* H . J . Clawson, Director of Industrial Relations, Crane Limited, Montreal ;
Lecturer in Labour Relations, Industrial Relations Section, University of
Montreal; formerly a member of the Saskatchewan Bar.
1 Kuzych v . White et al ., [195112 W.W .R .-(NS) 679, and (195112 All E .M .
435 .
2 Judicial Control of Union Discipline : The Kuzych Case (1952), 30 Can .
Bar Rev . 1 .
138 THE CANADIAN BAR REVIEW [VOL . XXX

casts in his behalf which contained slanderous statements a-

gainst the president of the union local . These offences, being in
violation of specific provisions of the union's by-laws, were dealt
with by an investigating committee, whose deliberations resulted
in his expulsion. Under the closed shop agreement with his em-
ployer, he was accordingly discharged from his employment on
the ground that he had not remained a member of the union in
good standing .
Apparently Kuzych was not one to accept such treatment
without a struggle and he thereupon launched an action for var-
ious types of relief, including damages and an injunction for re
instatement in the union (so he could resume his job), which
eventually, after several trials and appeals, culminated in the
judgment of the Privy Council . Kuzych was successful both in
the original trial and in the union's appeal to the Court of Appeal
for British Columbia . His chief contention throughout the pro-
ceedings was that the "trial" conducted by the union investigat-
ing committee was biased, prejudiced and unfair, and denied him
"natural justice" . On this point, the judgments of the lower courts
upheld him. Their Lordships on the Privy Council agreed with
this finding but held that his proper remedy was to appeal to the
executive of the Shipyard General Workers Federation, as pro-
vided for in the union by-laws, and that, until he had done this,
as he was bound to do under the terms of his entry into the union,
he had no right to pursue a remedy in the courts.
Their Lordships therefore allowed the union's appeal, in effect
holding that Kuzych could not enlist the support of the courts,
at this stage at least, in his efforts to be re-instated in union mem
bership, and thus in his job. Subsequently, taking their Lordships
at their word, he appealed to the executive of the union, but his
appeal was rejected on the ground that (1) he had not proceeded
within the time limit provided by the union's by-laws, and (2) the
original union had been dissolved and its affairs taken over by a
new organization . He may still return to the courts and it is interest-
ing to speculate about the eventual outcome of the affair should he
do so. There are, of course, a number of interesting and arguable
legal points arising out of the proceedings recently terminated,
including the judgment of the Judicial Committee itself, and
these aspects of the case have already been adequately analyzed
by Professor Whitmore . As I have already said, this paper will
deal only with some of the non-legal and quasi-legal aspects of the
case, involving the broader issue of union membership as a con-
dition of employment .
1952] Union Security Clauses and the Right to Work 13 9

Despite the protracted and expensive litigation, which indi-

cated that both sides considered the issue of major importance,3
it should be emphasized that the most important problem arising
out of a "union security" clause was not in issue do these proceed-
ings at all, and would not have been determined no matter how
the final decision went: If, for instance, the Privy Council had
upheld the lower courts and had ruled that. Kuzych was entitled
to damages and re-instatement, it is quite evident, that only a,
narrow issue would have been decided, namely, that the expulsion
was ineffective because the union "trial" had been unfairly con
ducted . Although it is, of course, desirable that union as well as
other tribunals should be brought up short when they act in a
biased, prejudiced or unfair manner,_ the fact remains that a
favourable finding on this point would have been a restricted vic-
tory and would .have left completely unanswered the even more
serious problem that arises when a union member has had a wholly
proper trial, which still results in his expulsion and consequent
loss of employment under a union or closed shop contract . This
is the crucial problem that perturbs many thoughtful- citizens to-
day. In the present state of the law, it would appear that no legal
remedy (nor for that matter, any other real remedy) is available
to an employee who is employed under a union or closed shop
contract and who is refused entry into, or is expelled from a union
according to the terms of its by-laws or constitution .
Mr. Justice O'Halloran, when, the Kuzych case was in the
British Columbia Court of Appeal, stated : "A man has a right to
work at his trade. If membership in a union is a condition to
working at his trade, then he has an indefeasible right to belong
to that union. It must be so, or else the union can have no right
to agitate for a closed shop . Moreover, the civil liberties of 'the
subject cannot be decided by a trial committee set up by a labour
union. This is the prerogative of the constituted courts of the
country. In my judgment, the question the Union Trial Committee
sought to deal with in the circumstances here was beyond the
competence of any union to decide ." In the judgment he wrote
for the Privy Council, Lord Simon commented on this passage as
follows : "Their Lordships, while fully alive to the considerations
which weighed with this learned Judge, must not be misunder-
stood to agree with these last observations, which form no part
of the argument used by the other judges who considered the
a It is probable that other unions in Canada, as well as the Canadian
Congress of Labour and the Trades and- Labour Congress of Canada, con-
tributed to the union's costs, and that Kuzych has had outside financial as-
sistance not only from individuals but from employers .
140 THE CANADIAN BAR REVIEW [VOL . xxx

case and which are not necessary to support the view which has
hitherto prevailed in this litigation".4 In other words, these obiter
dicta of Mr. Justice O'Halloran's merely state what he thinks the
law should be and not what the law actually is. I propose to dem-
onstrate that the present state of the law in Canada is such that
it not only permits but may in fact encourage the very results
that Mr. Justice O'Halloran views with so much adhorrence. I
believe that when employers, conciliators, legislators, and in fact
many union members themselves, fully appreciate all the conse-
quences of making a man's tenure of employment dependent
upon membership in a particular union, especially when he may
be deprived of membership against his will by unilateral action,
there will be an end to unconditional union shop contracts. The
right to earn a living is too important a matter to be nullified by a
private contract between an employer and a union.

At this point it may be appropriate to examine a few typical

"union security" clauses with a view to assessing their impact on
the right to work. A common clause is the union shop clause that,
with minor variations, is found in many collective labour agree-
ments (it is the type of clause nearly every union tries to get)
All present employees who are not now members of the union must be-
come members within thirty days after the signing of the agreement . All
persons employed after this date must become members of the union
within thirty days after the date of their employment . All employees must
remain members of the union, in good standing, as defined by the consti-
tution and by-laws of the union, as a condition of employment for the
duration of this agreement .

As is well known, a variant of this provision is the closed shop

clause . It is similar in effect, the chief difference being that new
employees must be members of the union before they are hired.
This type of clause is normally sought only by craft unions, prob-
ably because industrial unions are not equipped to provide re-
cruiting facilities. Another variant, the maintenance of member-
ship clause, contains no compulsion to join the union, but provides
that, once having joined, the employee must remain a member
in good standing as a condition of employment. A still further
variant, developed in recent years, is the modified union shop (or
modified maintenance of membership) clause, which compels pre-
sent members, or any present employees who voluntarily become
members, to remain members, and new employees to become and
remain members as a condition of employment .
4 Kuzych v . White et al., [1951] 2 W.W .R. (NS) 679 .
1952] Union Security Clauses and the Right to Work . 14 1

The significant feature of all these provisions is, of course, the

phrases "must become" and "must remain a member of the union
in good standing as â condition of employment". The employer,
when he agrees to such a provision in a collective labour agree-
ment is, in effect, agreeing that, if an employee does not become
a -union member, 'or if he does not remain a union member for a
specified time, he will lose his employment . Most of the attacks
on the coercive features of compulsory union membership provi-
sions have dealt mainly with the problem of the employee who is
forced to join or remain, a member of a particular union. I thor-
oughly agree with all these serious objections, but I am here con-
cerned with a different problem, namely, involuntary loss of mem-
bership, and for this purpose I shall admit for a moment the va-
lidity of the arguments for "union security" . Whatever their
merits, it is significant that they conveniently ignore or gloss over
the real issue -the fact that loss of an employee's job may re-
sult, not from his refusal to become or, remain a member, but
from the fact that he is prevented from joining or is expelled .
Every argument I. have ever heard in support of the union shop
or variations of it, except one that will be referred to later, deals
with the subject as if the sole problem were the volition of the
employee . The arguments all assume that some employees either
do not want to join the union or, once having joined; want to
withdraw . In fact, the euphemism "union security" seems to be
based primarily on the assumption that the security of the union
is somehow at the mercy of recalcitrant employees who do not
want- to become or remain members. But the point that few unions
make, and many students of labour relations overlook, is that
with an ordinary closed shop, union shop or maintenance of mem-
bership clause an employee may be deprived of his job, not be-
cause he refuses to,join or stay in the union, but because he is
not allowed to join or because he is expelled .
Let us look at one or two examples of the possible implications
of this fact . An employer has a closed shop contract with a union.
He needs additional men and finally finds some that suit his pur
poses. They are not union members, so he sends them to union
headquarters to join the union and get a "work card". Unfortu-
nately for them .they are negroes, and the union's constitution
excludes coloured persons from membership . The employer 'is
powerless to hire them. It is no answer for the unions to say that
only a few unions have a colour bar. The fact is that some have,
and the incident mentioned has happened and can happen again .
Men have been refused entry to unions for other equally arbitrary
142 THE CANADIAN BAR REVIEW [VOL. XXX

reasons, for example, because the union's quota for journeymen

is filled, because the applicant is on a union black list, because he
cannot pay the high initiation fee demanded, because he is "not
a fit person for membership", and because he is not the son of a
union member and under the union's constitution only sons of
members are eligible for full membership.'
Proponents of the union shop will say: "Well, that is the
closed shop. I am against that, and in any event industrial unions
do not ask for the closed shop. All we want is the union shop,
under which the employer may hire whom he likes." The employer
then negotiates a union shop contract, providing that all employees
must join the union within thirty days of the signing of the agree-
ment or within thirty days after hiring . Eventually, the union
notifies the employer that X will have to be discharged because
he has not become a member of the union. The employer sends
for X, who is a valuable employee of long service, and asks him
why he refuses to join. X says that he filed an application for
membership and tendered the regular initiation fee, but both
were returned and he was refused admission into the union. It
happens that X had for some time been critical of the union in
this plant and had consistently refused to join in the past . The
union had consequently passed a by-law providing that all em-
ployees who had not joined the union within three months of the
original certification were required to pay up all back dues, which
in X's case amounted to over $50, and which he could not afford
to pay. Another employee, who also wanted to join the union in
order to keep his job, found that he was refused membership un-
less he paid a fine of $50, which had been levied against him by
the same union in another plant some years before for an infrac-
tion of the by-laws. He had been suspended for failure to pay the
fine, which he also could not afford to pay. Under his union agree-
ment this employer had no alternative but to discharge both
s One among the many cases that have involved union discrimination on
racial grounds under a closed shop contract was Marinship Corp. v. James
(California Supreme Court) reported in Vol . 15, Labour Relations Reference
Manual at p. 798 (1945), 15 L.R .R.M . 798, published by the Bureau of Na-
tional Affairs, Washington, D .C . The union involved was the International
Brotherhood of Boiler Makers, etc ., of America . Usually, industrial unions
have no colour bar, but some of the craft unions and the railway brother-
hoods do have . In 1946 a study of admission policies indicated that thirty-
two unions, representing almost one-fifth of organized labour in the United
States, denied full membership to negroes . See, The Right to Membership
in a Labor Union (1951), 99 U . of Pa . L . Rev. 919 . Many industrial unions
are actively opposed to racial discrimination. Recent legislation in the United
States has also resulted in some policy changes on this point. The union that
restricted membership to sons of members was the Newspaper and Mail
Deliverers' Union of New York, and the case is reported at (1950), 27 L .R .
R.M . 2003 .
1952] Union Security Clauses and the Right to Work 143

these employees, and his obligation is enforceable through the

arbitration procedures
But someone will say : "I admit that the closed shop and the
union shop are not fair and involve too great a degree of compul-
sion, but the same argument does not apply to a' maintenance of
membership clause . Here there is no compulsion, and no serious
consequences for employees who either do not want to join the
union or are not permitted to join. A maintenance of membership
clause merely provides that those who are members or who be-
come members must maintain their membership for the duration
of the agreement as a condition of employment, and surely it is
not unreasonable to expect them to adhere to obligations volun-
tarily accepted ." A certain . employee who had been a member of
the union for years, was in fact a past president, became convinced
that the present leaders of the union were not properly represent-
ing the employees and actively spoke against them during a
campaign for election of officers . At one meeting he attacked the
incumbents in somewhat intemperate terms. He was subsequent-
ly expelled from the union for creating disharmony at a member-
ship meeting and, since he thus failed to maintain his member-
ship, he also lost his employment under a maintenance of mem-
bership clause . Another employee under a similar clause carried
his opposition to the union.to the extent of joining another union
and soliciting other employees to . do the same with a view .to
getting the new union certified in place of the incumbent union.
He continued to pay his dues to the first union, but soon found
himself expelled and discharged for "dual unionism", a serious
offence .under most union constitutions.?
In all but one of the instances cited the employees were willing
to become or remain members of the union, but in each case they
were ..refused admission or expelled against their will . This is an
aspect of union security that is too seldom considered-that a
man may be deprived of his job, his livelihood, not because he re-
fused to accept the obligations of union membership but because
they were arbitrarily taken away from him. It is easy to see that,
if compulsory union membership became more prevalent, we
6 The cases
mentioned - must remain anonymous, but other similar cases
can be cited . One of the numerous cases on this point (which reached the .
National Labor Relations Board in the United States) involved the Inter-
national Association of Machinists (1951), 28 L .R .R .M . 1562 . See also In re
Kaiser Aluminum and Chemical Corp . (1951), 28 L .R .R .M . 347 . This case
involved a discriminatory initiation fee, $75 as compared with the normal
$25, and also a special $5 "ex-membership fee" .
7 These two cases are also anonymous but, as subsequent documentation
shows, similar instances have been reported . -`
144 THE CANADIAN BAR REVIEW [VOL . XXX

might even have a new form of ostracism-of men who are per-
manently barred from industrial employment, drifters and charges
on the state, because they are on a union blacklist. Now it is
quite true that many union men readily agree that such sinister
possibilities are deplorable and indefensible. They disavow any
desire to cause a man to lose his job by expulsion for reasons be-
yond his control and concede that only those who deliberately re-
fuse to become or remain members should lose their employment .
Others admit that the only compulsion they seek is payment of
dues . This more moderate attitude explains why many unions
are now willing to settle for such forms of union security as com-
pulsory dues check-off (the Rand Formula) . Although such de-
vices are vulnerable to attack on other grounds, the kind of
problems posed in this article do not arise with them . The fact
remains, however, that unions continue to insist upon "union
security" in its unadulterated form - membership, not merely
payment of dues, as a condition of employment. I do not know of
any union that has, as a matter of policy, abandoned its quest
for the full union shop .
Other union leaders are quite frank in contending that an
employee who is expelled from a union should lose his employ-
ment . They argue that one of the main purposes of a union shop
is to enable the union to maintain discipline and, without the
sanction of expulsion and consequent loss of his job, the union
has no way of enforcing its constitution and by-laws against
employees. This argument is the only one of the many common-
ly used to justify the union shop that contemplates the possibility
that an employee may be deprived of membership . All the others
proceed on the assumption that an employee has to be forced to
join or continue his membership . Some union negotiators have in
fact stressed the disciplinary features of the union shop in appeal-
ing to the employer-with the union shop they could keep
obstreperous employees "in line" and thus help the employer to
maintain discipline in the plant. Such an approach could, of
course, result in practice in a conspiracy between an employer
and a union to silence any employee or group of employees who
seek to exercise their lawful and proper right of negotiating grie-
vances or bargaining for better wages or working conditions . In
any event, it is not the union's function to maintain discipline in
the plant. This is clearly a function that can only be effectively
performed by management .
The usual reply of union spokesmen to the grave questions
posed in this paper is that they are largely imaginary, that very
1952] Union Security Clauses and the Right to Work 14 5

few union members have been expelled. and that few unions im-
pose restrictive conditions on joining- a union. One prominent
labour leader recently attempted to make light of the whole prob-
lem by stating that his union had only expelled three members
in the past thirty years. Obviously, this is no answer . Even if
only one employee had lost his job in this fashion or been prevent-
ed from obtaining another, the problem would still be a serious
one. The fact remains that he has been deprived of his means of
livelihood by the arbitrary and uncontrolled, action of a third
parity and, moreover, for an offence that may not even be remotely
connected with the ordinary employer-employee relationship.
There is another good reason why there have not been many such
instances. In Canada there are relatively few closed shop, or
union shop agreements ." But if the announced objectives of most
unions are attained and the union shop becomes universal, it is
obvious that the problem will be greatly accentuated. Although
it is hardly likely that the number of expulsions would ever be-
come great, the serious threat to individual liberties . would re-
main . It would take a brave union member to risk loss of his
employment by doing anything or saying anything that might
amount to an expellable offence under his union constitution .
The consequent effect upon internal union criticism or opposi-
tion, no matter how well merited, is obvious.
It may be said that there is no reason why unions should not
have the right to initiate a discharge in order to maintain internal
discipline, because the employer has a similar right through his
power to refuse to employ or discharge. The argument has no
validity at all.. In the first place, the analogy is a fallacious one.
The employer-employee relationship, involving as it does a mone-
tary consideration for services rendered, is obviously not, in any
respect, comparable to the union-member relationship. In the
second place, employers do not ask a third party to apply sane--
tions, as does a union that asks an employer to discharge an em-
ployee merely because he has been expelled from the union . No,
one denies the right of a union to expel a member, or even to re-
fuse membership . The . root of the difficulty, lies in the -"double
jeopardy'-the fact that, discharge from employment is added
to the expulsion. Finally, employers no longer have an unquali--

$ Nevertheless, the recent study made by the Labour Gazette of a sample

of 500 representative agreements in Canada (October 1951, p. 1359) showed
that there were 64 maintenance of membership, 55 union shop, 49 modified
union shop, and 62 closed shop agreements, covering. about 137,000 .employ-
ees. A study of all agreements would reveal substantially more provisions of
this kind .
146 THE CANADIAN BAR REVIEW [VOL. XXX

fled right to discharge employees. One of the basic principles of

all our labour relations legislation is to be found in the so-called
anti-discrimination or unfair labour practice sections, under which
it is not only an offence to refuse to employ a person because
of his union membership, but also to discharge any employee for
the same reason .9 An employer who discharges an employee for
this reason is subject to a fine and, in most provinces, the em-
ployee can also be reinstated . True, this restriction applies only
to discharge for union activities, but there is an even greater and
more important control over the employer's right to discharge.
Almost every collective labour agreement now contains an arbitra-
tion clause providing for compulsôry and binding arbitration of
disputes arising out of the agreement.l 9 Every time an employer
discharges an employee, he must, if the employee or the union
lodges a grievance, be able to prove to the satisfaction of an arbi-
trator, an independent third party, that he had sufficient and just
cause for the discharge. As every employer knows, this has result-
ed in an important diminution of traditional management prero-
gatives, and employers are being repeatedly required by arbitra-
tors to re-instate employees who have been discharged for what
the employer considers good cause. I do not quarrel here with the
arbitration of employer-initiated discharges . Even though it may
seem onerous and vexatious to employers, it has resulted in a
substantially greater measure of job security for employees,
particularly against arbitrary and unjust discharges .
The right to have the reasonableness of discipline adjudicated
by an impartial third party is probably one of the most important
achievements of collective bargaining. But, having fought for
and obtained this important benefit, unions now assert their
right to do the very thing they have succeeded in preventing em-
ployers from doing. By demanding the union shop, unions are in
effect demanding the right to discharge employees, not for a
breach of the employer's rules, but for breach of their own rules.
Admittedly, unions have an internal trial procedure with the
right of appeal to higher authorities, but an employee is no better
off under such a system than he was when the plant manager
made the final decision on a discharge. An appeal to the govern-
ing body of a union by a member who has been expelled is the
same as being tried by legislator and prosecutor . A union member
9 See Industrial Relations and Disputes Investigation Act, 1948 (Can .),
c . 54, s . 4 . All provincial labour relations statutes have similar provisions .
In Quebec there is no provision for reinstatement .
lo I n most provinces, the inclusion of such a provision in collective labour
agreements is mandatory.
1952] Union Security Clauses and the Right to Work 147

has no right to a trial before an impartial tribunal as an employee

has before an arbitrator. But even if he had;, he would have no
real remedy because a union tribunal would still be governed . .by
the union's- constitution and, although he might receive a "fair"
trial, he would have to remain expelled if he were found in breach
of that constitution . The employer's right to discharge is now a
negotiable matter, but a union's by-laws and constitution are
unilateral documents not subject to any external control. As the
Kuzych case shows, the only judicial redress available to an em-
ployee who has been expelled and discharged under a union shop
contract is when he can show that he has been denied a fair hear-
ing or if the "trial" has not been conducted according to the
rather vague concept of "natural justice" . Even then, he may,
presumably, contract out of his meagre rights, or out of any
trial at all, under the terms of his admission to the union. That is
why I emphasize that, even if Kuzych had been upheld in the
Privy Council, the real issue would not have been affected . Em-
ployees could still be expelled from unions, with a resulting loss
of their jobs, for any trivial and arbitrary reasons prescribed by
union constitutions, provided only that the internal trial or hear-
ing was fairly -conducted.
In the face of such palpably intolerable consequences, it is
indeed surprising that so many union leaders and supporters still
persist in sponsoring the union shop . It is even more surprising
that ordinarily thoughtful neutral observers should do so. The
union shop has received a considerable degree of support from
such sources, including textbook writers and conciliators . Their
reasoning has seemed to be as follows : a responsible union deserves
union security, that is, all employees should be required to be-
come and remain members; this union is responsible; therefore,
this union should have union security . The major premise here is
invalid in two respects . It is submitted that there has been . a
failure to appreciate the full implications of compulsory member-
ship enforced by the threat of loss of employment, in particular,
the possibility of expulsion. Moreover, as long as a union remains
a private and unregulated association, the degree of its respect-
ability or responsibility would seem to be immaterial. Even a
responsible union may have constitutional rules or requirements
that are inimical to the public interest."
11 I am not unmindful of the comparisons union spokesmen sometimes

make between the union shop system and the compulsory membership re-
quirements of the various professional societies-law, medicine, engineering,
for example . The administration of these societies may of course be subject
to criticism, particularly when they deviate from their original, objective of
 148 THE CANADIAN BAR REVIEW [VOL. XXX

At this stage, it is appropriate to examine some union constitu-

tions to ascertain the reasons for which union members may be
expelled. I also propose to examine the disciplinary policies of
unions and a few actual examples of the serious consequences
inherent in the application of compulsory union membership.
In making this analysis, I do not wish to be unfair and I realize
that, in many cases, the motives underlying union constitutional
provisions are perfectly proper, with no sinister objective in-
volved . I realize also that in administering their disciplinary
functions most unions have a creditable record. Nevertheless,
with the great increase in the economic and political power of
unions, their internal organization and administration are wholly
proper subjects for public scrutiny, especially when, as is the case
with the union shop, the employer is asked to impose the discip-
linary sanctions. Furthermore, an innocent sounding, and by
itself perfectly defensible, disciplinary rule can be and has been
applied for completely improper purposes.
Under the constitution of the International Union of Mine,
Mill and Smelter Workers (Ind.), it is an offence, subject to a
fine or suspension, if any member, for the purpose of influencing
an election, "maliciously or falsely circulates . . . any statement . . .
reflecting on the standing or character either in private or public
life of any member, or falsely construes the motives, or mali-
ciously reflects upon the integrity of any member . . . of the In-
ternational Union . . . as a majority vote may decide ".12
upholding the ethical and educational standards of professions which offer
their services to the public. The important point of difference is that their
rules, or their right to make rules, concerning qualifications for membership
are a matter of law . The rights of such governing bodies are derived from the
sovereign legislature . They are quasi-public bodies . Union constitutions are,
of course, wholly private documents and may contain any provision that a
convention chooses to incorporate . The judicial restraints on the rules of
private societies, such as clubs and unions, are, especially under the theory
of contract, decidedly nebulous and meagre . The multiplicity and rivalry of
unions is a further complication .
12 Article 5, section 1, of the amended constitution adopted by the 46th

Convention, September 1950 . It is of interest to note that the preamble to

this constitution reads as follows :
"I . We hold that there is a class struggle in Society, and that this struggle
is caused by economic conditions .
'T . We affirm the economic condition of the producer to be that he is
exploited of the wealth which he produces, being allowed to retain barely
sufficient for his elementary necessities.
'T . We hold that the class struggle will continue until the producer is
recognized as the sole master of his product .
"4 . We assert that the working class, and it alone, can and must achieve
its own emancipation.
"5 . We hold that an industrial union and the concerted political action
of all wage workers is the only method of attaining this end .
1952] Union Security Clauses and the Right to Work 149

Article 18, section 2, of this union constitution provides-that a

member who is charged with "conduct unbecoming of the Union
or with having committed an offence in violation of his obligation
or against the good and welfare of the International Union" may
be tried by a trial committee of five members, any three of whom
may recommend a fine of $100, or any four of whom may recom-
mend suspension or expulsion. The sentence is subject to confirma-
tion by a majority vote of the members present at a local union
meeting. There is an appeal to the international executive board
of the union. 1 3
This constitution further provides that "Anyone acting as a
strike-breaker or scab during a strike . . . who professes to have
seen the error of his ways, shall be fined a sum of not less than one
hundred dollars ($100.00) ; and shall be placed on probation . . ." .
He shall further "remain on probation until such time as the
Local Union- . . . shall declare his offence expiated in full by good
work for the cause" . One might well speculate on. the fate of a
member who persisted in living up to his collective agreement in
the ease of an illegal strike and who refused to. admit that he was
wrong.
The constitution of the International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America
(UAW-CIO)14 does not mention any specific offences, but article
48 contains an elaborate trial and appeal procedure to deal with
charges against a member of the Union who has " . . . violated
this Constitution, or engaged in conduct unbecoming a member
of the Ünion". It is apparently also a punishable offence for a
worker to have committed "acts or conduct detrimental to the
interest of the union or its members" while he was out of the
union on withdrawal card (article 48, section 2). This union dis-
tinguishes between ordinary suspensions and those involving loss
of a job in the case of a union shop contract, and also between
suspensions and expulsions . Section 11 of article 48 provides : "In
"6. An injury to one is an injury to all .
"7. . Therefore we, the wage workers employed in and .around the mines,
mills and smelters, tunnels; open pits, open cuts and dredges, of the Western
Hemisphere, unite under the following constitution :"
Under article 8, section 10, of this constitution the international president
may also "revoke the charter of, or penalize any Local Union for violation
of the Constitution, or proven treachery to the principles of the International
Union" .
13
Section 6 of the same article provides that : "A member placed on trial
shall be permitted representation by counsel of his own choice ; such counsel,
however, shall be a member in good standing of the international Union and
shall be required to abide by the trial procedure as established by the Trial
Board and as outlined in the Constitution" .
14
Adopted at Cleveland, Ohio, in 1951 .
150 THE CANADIAN BAR REVIEW [VOL . XXX

the case of a plant in which union membership is a condition of

employment, suspension from membership shall not require re-
moval from the job, provided, that in cases of extreme emergen-
cy, removal from the job may be required by a two-thirds vote of
the body voting suspension. However, in the case of a plant in
which Union membership is a condition of employment, expul-
sion from membership shall require removal from the job."
The constitution of the United Steelworkers of America (C.I.
0.) ib provides as follows in article 12, under the heading Discipline :
Section 1 . Any member may be penalized for committing any one or
more of the following offences : (a) violation of any of the provisions of
this Constitution, any collective bargaining agreement, or working rule
of the Local Union ; (b) obtaining membership through fraudulent means
or by misrepresentation ; (c) instituting, or urging or advocating that a
member of any Local Union institute action in a court against the Inter-
national Union or any of its officers or against a Local Union or any of
its officers without first exhausting all remedies through the forms of ap-
peal of the International Union ; (d) advocating or attempting to bring
about the withdrawal from the International Union of any Local Union
or any member or group of members ; (e) publishing or circulating among
the membership false reports or misrepresentations ; (f) working in the
interest of or accepting membership in any organization dual to the Inter-
national Union ; (g) slandering or wilfully wronging a member of the Inter-
national Union ; (h) using abusive language or disturbing the peace or
harmony of any meeting in or around any office or meeting place of the
International Union ; (i) fraudulently receiving any money due the or-
ganization or misappropriating the monies of the organization ; (j) using
the name of the Local Union or the International Union for soliciting
funds, advertising, etc. of any kind without the consent of the appropriate
body or officer of the International Union ; (k) furnishing a complete or
partial list of the membership of the International Union or of any Local
Union to any person or persons other than those whose official position
entitles them to have such a list, and (1) deliberately interfering with any
official of the International Union in the discharge of his duties .
Section 2 . Any member convicted of any one or more of the above
offences may be fined, suspended or expelled .
The constitution of the United Mine Workers of America
(Ind.)" is also fairly explicit on the subject of discipline. Article
18, section 7, provides : "when any member of the United Mine
Workers of America. is charged with fomenting, leading or en-
couraging a dual union or a dual movement within the Organiza-
tion . . . a hearing of such charges shall be had" and if, upon such
hearing, "the International Executive Board finds such . . . per-
sons guilty, it may order . . . the expulsion of such member from
the organization or suspension of his membership". Section 2 of
is Adopted at Atlantic City, N.J., on May 12th, 1950 .
is Adopted at Cincinnati, Ohio, in 1948 .
1952] Union Security Clauses and the Right to Work 15 1

article 18 provides for prosecution.and punishment of any member

who is accused of "violating any.of the Organization's laws or any
transgression against the Organization or any of its officers or mem-
bers".
Section 3 of article 16 is as follows:
Any member guilty of slandering or circulating or causing to be circulated,
false statements about any member or any members circulating or caus-
ing to be circulated any statement wrongfully condemning [sic] any de-
cision rendered by any officer of the Organization, shall upon, conviction
be suspended from membership for a period of six months 17 .

Lest readers get the impression that only the younger and
more militant unions. have such stringent and all embracing dis-
ciplinary rules, I hasten to add that, if anything, the constitutions
of the older unions of the America Federation of Labour are more
severe. In an excellent article entitled "Disciplinary Powers of
Unions" Professor Clyde Summers, Associate Professor of Law at
the University of Buffalo, studies the constitutions of 154 national
and international unions in the United States ." This . exhaustive
analysis includes such conservative unions as the railway brother-
hoods, the typographers, the printing pressmen's union, the Amer-
ican Federation of Radio Artists, the musicians' union, the car-
penters' union, the amalgamated clothing workers, the letter car-
riers', union, airline pilots, and many others . The great majority
of these unions operate in Canada.
,_ Many of the constitutions contain vague and general clauses
prohibiting certain conduct and providing penalties for a breach,
usually suspension or expulsion. The following is a partial listing
of the kinds of conduct that are prohibited : "disloyal", "dishon-
ourable", "detrimental to the best interests of the, Union", "which
destroys harmony", "causes dissension", "disruption", "under-
mines the Union or its members", "brings the Union into discredit
iv Another article of the United Mine Workers' constitution reads : "Any
member accepting membership in the Industrial Workers of the World, the
Working Class Union, the One Big Union, or any other dual organization, or
membership in the National Chamber of Commerce, or the Klu-Klux Klan,
or the Communist Party, or Fascist, Nazi or Bund organizations, shall be
expelled from the United Mine Workers of America, and is permanently de-
barred from holding office in the United Mine Workers of America, and no
members of any such organization shall be permitted to have membership
in our Union unless they forfeit their membership in the dual organization
immediately upon securing membership in the United Mine Workers of
America . Any member of the United Mine Workers of America who accepts
office in any dual organization shall be permanently expelled from the United
Mine Workers of America, unless reinstated by the International Executive
Board."
8 (1950), 3 Industrial and Labor Relations Review (Cornell University)
483,1 .and (1951), .4 ibid . 15 . See also an article by Professor Arthur Lenhoff
(1951), 46 111 . L. Rev. 669.
152 THE CANADIAN BAR REVIEW [VOL . XXX

or disrepute", "violation of the constitution", "violation of the

oath of membership", "disobedience to the regulations, rules, man-
dates and decrees of the Locals or International", "offences against
the general good and welfare of the Union". Other constitutions
contain penalties for various specific offences . For instance, some
prohibit : "interference or opposition to the legislative program of
the Union", "working with non-members", "use of machine-mixed
material" (plasterers' union), "strike breaking", "use of spray
guns" (painters' union), "discussing union business in public",
"acting as `stool pigeon' to the Captain" (marine cooks' union),
"leanings toward dictatorial principles", "adultery" (railwaytrain-
men), and so on.
A few of these rules may be quite justifiable-the sort of rules
that almost any social or fraternal association might have in its
by-laws. Most of them are, however, open to abuse. The rules
couched in general terms are for the most part completely inde-
fensible. They are so loosely and so broadly worded that they
could be used to oust almost any member on the flimsiest of
grounds. They seem almost to be designed to permit discipline of
members against whom no real offence can be proven . None of
these union rules is subject to any impartial adjudication . They
are administered-guilt established and punishment meted out
- by the same groups that made the rules, surely a strange ad-
mixture of legislative, prosecutory and judicial functions. In some
unions there is not even a semblance of a trial by a tribunal. Guilt
and penalties are determined without trial by a three-quarters vote
at a meeting of members. In one particularly flagrant instance,
the convention gave the president sole authority to expel any
member at his own discretion-without trial.'!)
Here again I must add that in the vast majority of unions the
more stringent disciplinary rules are rarely applied and even more
rarely abused . Nevertheless, they can be and have been used, and
they can be and have been abused, and with the frequently re-
curring internal quarrels and factionalism to which unions, as
political institutions, are subject, even the most honest and well-
intentioned union leader might be tempted to use his powers to
purge a harassing opposition. If the powers are not to be used,
then they should not exist. But even if the incidence of expulsion
is relatively low, the fact remains that Professor Summers' re-
search revealed that 218 cases involving union discipline have
reached the courts in the United States since 1890 . Some 88 of
is Summers, Disciplinary Powers of Unions (1951), 4 Industrial and La-
bor Relations Review at p . 122 .
19521 Union Security Clauses and the Right to Work 15 3

these involved multiple or mass discipline, and the number of

members affected is thus much greater than 218. Most of these
cases involved loss of employment under a union shop, closed shop
or maintenance of membership clause, but the figures do not in-
clude expulsions that were not taken to the courts .
The following are some of the offences for which union members
have been expelled or suspended with consequent loss of their jobs,
as revealed by Professor Summers' study and other sources: re
fusing to pay an assessment for political purposes; 10. returning to
work after a strike had been enjoined by court order but before
it had been officially ended by the union ; 21 during a union election
campaign, accusing incumbents of misfeasance in office ; 22 giving fi-
nancial assistance in a court action to à fellow member who had
been expelled ; 23 accusing the union president of having "scabbed"
in a strike ; 24 issuing a circular at a convention criticizing interna-
tional officers for not prosecuting a grievance; 21 being a Com-
munist ; 21 accusing the officers of a local of being Communists ; 27
campaigning for the Republicans when the local had voted to
campaign for the Democrats; 23 supporting a rival union in a cam-
paign preceding a labour relations board election ; 11 actively parti-
cipating in a campaign to organize a rival union; au writing a letter
to the newspapers urging unions to "clean their own house and
remove racketeering leaders" ;" telling, her forelady that the union
was putting pressure on her to hold down production on piece-
work ; 32 testifying before a legislative committee about a fine and

2 0 3 Industrial and Labor Relations Review at p . 495.

21 Ibid ., p . 495 .
221bid ., p . 498 .
23 Ibid ., p . 498 .

24 Ibid ., p . 499 .
25 Ibid ., p .
500 .
23 This involved the president of the local and several committee members

at the Consumers Gas Co . Ltd . at Toronto in 1950 during the "purge" in the
International Chemical Workers Union .
21 Bethlehem. Fairfeld Shipyard and Industrial Union of Marine and Ship-

building Workers (1944), 15 L .R .R .M . 2635 .

28 Morgan v. United Electrical, Radio and Machine Workers - of America
(1945), 16 L .R .R .M . 720 .
29 This incident occurred in an Ontario paper mill several years ago . A

C .I.O . union was attempting to displace an A.F . of L . union and three em-
ployees who were active in the campaign were, expelled from the incumbent
union. Under the union shop provision of the existing collective agreement,
they were discharged-obviously, an effective way to thwart the rights
given by the Ontario Labour Relations Act, under, which employees can
choose new bargaining agents.
30 In re Federal Electric Products Compdny and United Electrical, Radio
and Machine Workers of America, Vol 1, Labour Arbitration Reports (Bureau
of National Affairs, Washington, D .C .) p . 13 (1945), 1 L .A.R . 13 .
11 Summers, Disciplinary Powers of Unions, supra, at p . 506 .
32 Ibid., p . 507 . '
154 THE CANADIAN BAR REVIEW [VOL . XXX

suspension which had previously been levied by the union;" join-

ing another union toward the end of a contract period ; 34 failure
to pay a special assessment of $2 a week ; 31 conduct unbecoming
a union member ;" refusing to pay fines for non-attendance at un-
ion meetings ; 37 crossing a picket line ;" threat of personal injury
to another member; 39 refusing to pay a fine imposed for testifying
on behalf of an employer at an arbitration proceeding; 41 failure to
participate in a strike in violation of the contract ; 41 participation
in an unauthorized strike ; 42 resigning from the union during an
escape period without paying arrears of dues ; 43 refusing to give
up his membership in an A.F. of L. craft union; 44 being too zeal-
ous in discharging his duties as a sub-foreman ; 41 refusing to follow
33 I bid ., p . 508.
34 F . H . Hill Company Inc. and United Electrical, Radio and Machine
Workers of America (1947), 8 L.A .R . 62 .
3s In re Port Houston Iron Works Inc. and International Association of

Machinists (1947), 7 L.A.R . 679 .

38 In re Marathon Electric Manufacturing Corp . and United Electrical,

Radio and Machine Workers of America (1947) 7, L .A .R . 610 . Incidentally,

these arbitrators, when the company hesitated to discharge an employee on
such vague grounds, stated : "While the Arbitration Board does not agree
with the Company that it is either the duty or the right of the Company . . .
to inquire into the merits of the action taken by the Union, it does agree
that there is both a right and a duty to inquire into the question of why the
member is no longer in good standing, so that it may be assured : (a) that the
constitution and by-laws have been followed ; and (b) to make such inquiry
as it is necessary and advisable to protect itself against any possible viola-
tion of the National Labor Relations Act or other fundamental laws" .
37
In re Electric Boat Company and United Electrical, Radio and Machine
Workers of America (1946), 5 L .A .R . 258.
38 In re Illinois Bell Telephone Company and Illinois Union of Telephone
Workers (1946), 5 L.A.R . 326 .
39 In re National Malleable and Steel Castings Co. and United Automobile,
Aircraft and Agricultural Implement Workers of America (1947), ? L.A.R . 243 .
"0 In re Link-Belt Speeder Corporation and United Farm Equipment and
Metal Workers of America (1945), 2 L .A.R. 338 . In this case, the employer
was held not to be required to discharge because the expulsion on such grounds
was "contrary to public policy and contravenes the guarantee of free speech" .
Obviously, a remedy based on such general grounds is not very practical for
a man who has lost his job .
11 In re Sheffield Steel Corp . (1945), 17 L .R.R .M . 1776 . A similar incident
is reported to have occurred at Canada Packers Ltd. in Toronto in 1945 . The
union was the United Packinghouse Workers of America.
42 In re General Tire & Rubber Co . (1945), 16 L .R .R .M . 2560.
43 I n re Merrill Stevens Dry-Dock & Repair Co . and Industrial Union of

Marine and Shipbuilders of America (1944), 1 L.A.R . 15 . In this case, the

company rehired one of the employees, who had been discharged pursuant
to the maintenance of membership provision, as an assistant foreman - a
job outside the bargaining unit. The union objected and the arbitrator ordered
him not to be employed by the company in any capacity.
44 This occurred in an Ontario plant in which a C .I.O . union held a union
shop agreement . The employee was not actually expelled, but he was told
that he would not be admitted to membership until his other "dual" union
affiliations were severed .
45 This was a Canadian case that must remain anonymous. The employee

was subsequently re-instated when the employer appealed to the interna-

tional executive of the union .
 19521 Union Security Clauses and the Right to Work 15 5
e
union instructions not to work overtime .46 A number of the union
members involved . in these cases were subsequently ordered re-
instated by the courts on various grounds, chief among them be-
,
ing that the trial was biased and improper . 41

IV
The disciplinary powers of unions would, in ordinary circum-
stances, be the concern of no one but the members themselves.
Every voluntary association undoubtedly has the right to stipulate
the conditions under- which a person may hold membership . If ex-
pulsion merely entailed social ostracism, loss of internal union
benefits or voting privileges, there would be less justification for
any objection by outsiders, no matter how frivolous and arbitrary
the action might be. But when the employer is asked to apply the
sanctions for failing to maintain' membership in good standing,
when the ultimate penalty is loss of. a job and possibly loss of
livelihood . at his regular trade, then it becomes not only a matter
of concern for management, but gives rise to a social problem of
the first magnitude. A system whereby the right to employment
is made dependent on the terms of private contracts between em-
ployers and unions is inconsistent with the public interest .
Basically union leaders purport to justify compulsory union
membership by referring to the unfairness of "free riding"- of an
employee receiving the benefits obtained by the union without
paying for them . Even if this argument had merit (which is by no
means, admitted), there would still be no justification for com-
pulsory membership - much less for the right to expel. In any
event "free riding" is a separate problem wholly unrelated to the
point we are discussing here. Possibly union negotiators, who press
for compulsory membership provisions, either do not know about
the evil consequences that could result from expulsion of members
under their constitutions or disregard the possible results as being
too remote . Some of the cited instances reveal that the dangers
to job security and civil liberties are all too real. Many thoughtful
union 'leaders appreciate the incongruity of this aspect of union
"security" and deny any intention of precipitating the serious ef-
46 This was also
a Canadian case . It is not certain that anyone was actu-
ally expelled, but employees were threatened with expulsion and eventually
the union was successful in curbing all overtime work, including replacements
for absentees on a continuous process operation . Under its constitution, the
men could have been expelled and the possibility obviously had a deterrent
effect.
47 All the American
expulsions and consequent discharges ante-dated the
Taft-Hartley Act . As will be seen later, employees can no longer be discharged
for such reasons in the United States .
156 THE CANADIAN BAR REVIEW [VOL . XX_X

fects mentioned. The denials are undoubtedly made in good faith.

What, then, can be done? One obvious course is for the unions
to clean house and bring their disciplinary rules in line with cur-
rently accepted standards of industrial ethics . Most employers
have done so, many at the behest of unions . The old "book of
rules", which enabled an employer unilaterally to discharge an
employee for almost any reason, or indeed for no reason at all, is
largely a thing of the past. An employer's right to discipline em-
ployees under a collective agreement is subject not only to chal-
lenge by the union but also to adjudication by an impartial ar-
bitrator . Even if all union by-laws were amended to remove the
more glaring opportunities for injustice, and became models of
constitutional propriety, the chief problem would still remain-
an employee could still lose his membership and thus his job by
expulsion, without having any recourse to an impartial tribunal.
The courts, as the Kuzych decision and scores of others show,
provide only a narrow avenue of redress. The present state of the
law on the autonomy of private clubs and associations in making
and enforcing their own rules, and the theory of contract applied
by the Privy Council, make it impracticable and usually fruitless
for an expelled union member to seek the assistance of the courts .
Some employers have soaght to protect themselves and their
employees against arbitrary expulsion, and consequent discharge,
by providing in their agreements that employees refused admission
to the union, or expelled from the union, may have recourse to
the grievance procedure, including arbitration. This approach was
used by the National War Labor Board in the United States dur-
ing the war as a condition of imposing maintenance of member-
ship agreements upon employers. But such a device does no more
than protect an expelled member against an unfair union trial.
The arbitrator could make an unbiased finding of fact, but he
would still be bound to apply the terms of the union constitution,
a private, unilaterally conceived document. If the union constitu-
tion contains a prohibition against using a spray gun, for instance,
or against slandering an officer, or against working overtime, the
arbitrator is powerless to aid the employee to retain his job if he
has in fact committed one of those offences, no matter what he
might think about the justice of the provisions .
Another possible solution is for unions to cease demanding the
union shop and maintenance of membership. It is a fact that many
union leaders have in recent years professed to find adequate un
ion security in such devices as compulsory dues check-off (the
Rand Formula) or "maintenance of dues payment" clauses. Al-
19521, Union Security Clauses and the Right to Work 1.57

though these forms of financial security are in. themselves objection-

able on other grounds, it is true that they do not give rise to the
type of coercion we are concerned with in this paper. Unfortu-
nately, few unions have officially abandoned the objective of or-
thodox union security, that is, actual membership as a condition
of employment .48 Furthermore, a reliance on the good sense of .
responsible labour leaders would still not curb the, activities of
others less scrupulous, who are in a position to coerce an individual
employer into granting them the full union shop with all its poten-
tialities for evil.
One of the most disturbing aspects of. the whole union security
issue is the support it has received from neutral sources. As in-
timated earlier, a number of conciliation boards have recommended
that the union shop or . maintenance of membership be granted
without any conditions attached . In the province of British Col-
umbia such recommendations are becoming fairly common . In
Ontario, there have been several instances in recent years.49 In
one case, the report was unanimous though the board included a
business executive who was the company's representative. In
academic circles, there is also considerable support for the union
shop and maintenance of membership.. Individual clergymen and
official church bodies (Roman Catholic as well as Protestant) have
publicly recorded their support.
Again the good faith of the supporters is not questioned . The
as It is significant that at the Ford Motor Co . of Canada, which
pioneered
in the introduction of the Rand Formula, the U .A .W . demanded the full
union shop in recent negotiations . An editorial in the August 1951 issue of
the "Canadian Unionist", official organ of the Canadian Congress of Labour,
after quoting some adverse comment on the union shop principle from a
daily newspaper, went on to say : "This appears to us to be the grossest non-
sense. The closed shop is a recognized union principle, and has nothing to
do with one's economic or political views . It is rightly regarded as one of
the important objectives of a .trade union. There is no reason why any honest
worker should object to the closed shop, and' anyone who does so must be
regarded as unworthy. of membership ." This editorial writer apparently had
not checked with the author (Prof G . R . Schmitt) of the regularly featured
column, "Legally Speaking", which appeared in the same issue and con-
cluded : "The legal questions involved in the Kuzych case are quite technical,
and a discussion of them will await the decision of the Privy Council. How-
ever, the case does raise an important practical question. How far should a
union, especially a union with a closed shop agreement, be able to regulate
its membership? It is difficult to convince the public that it should be illegal
for, an employer to refuse to. employ a man because that man happens to be
pro-union, but perfectly legal for a union to prevent a man getting employ-
ment because, although he is willing to belong to a union, he happens to be
anti-union or anti-closed shop in his views . A union must be able to discipline
its members if it is to carry out its contractual obligations . But a union
which has the power to determine who shall work is hardly in the position
of a private club or a church which can expel non-believers or objectionable
characters without serious economic effects ."
as Notably a conciliation board report dealing with
Canadian Industries
Limited at Windsor and the recent Ford-U.A .W. report .
1â$ THE CANADIAN BAR REVIEW [VOL. XXX

sympathy for "union security" is probably a relic of the days

when unions were relatively weak and employers were some-
times able to devise effective methods of undermining them . It
was natural perhaps that well-meaning neutral observers should
view with favour a device which helped strengthen the union. Un-
doubtedly, "union security" originally implied security against
the employer, not against employees. The union shop has also
been justified on the grounds that it is socially desirable, and
actually in the interests of the employer, that all employees
should participate in the responsibilities of membership and thus
ensure a greater degree of democratic control.
The great fallacy, which seems to have escaped the "liberal"
elements, is that compulsory membership involves something
more than an employee's own volition . They no doubt appreciate
that if an employee does not join the union or does not maintain
his membership, he will lose his employment, but what they fail
to appreciate is that a union can also refuse to admit an employee
to membership or can expel an employee who wants to remain a
member. An employee's right to gainful employment thus de-
pends upon the decree of a private organization . I am confident
that once these features are fully understood much of the current
support for the union shop will disappear.
One would think that those who support compulsory union
membership as a condition of employment would, at the very
least, make an effort to ascertain on what terms membership can
be withheld or withdrawn. I have yet to see any awareness of these
terms in public pronouncements by advocates of the union shop.
Seldom has any attempt been made to study the union's constitu-
tion in order to find out the conditions of membership ; rarely is
there any interest in determining whether provisions for a fair
trial exist. Surely such an analysis should-be a condition precedent
to the granting of power to deprive a man of his employment .
Obviously, even if one were satisfied on these two points, it would
still be highly dangerous to confer so wide a power on a union.
Even if the constitution contained no right to expel, it could be
changed at any time at a union convention, or by means of a by-
law at the local level, because the internal rules of unions, being
private and independent associations, are not subject to external
regulation ."
so It will be noticed that I have not referred in this article to the constitu-
tions of any catholic syndicate unions . The omission is due to the fact that
they are not readily available . But even if an examination of such constitu-
tions revealed that they did not contain the same type of onerous disciplinary
provisions, my contention would apply to them with equal validity . The
1952] Union Security Clauses and the Right to Work 15 9

If unions persist in pressing for the union shop, thus arrogating

to themselves the right to say who shall and who shall not work,
it is imperative that other steps be 'taken to prevent potential
evils. I am sure that no one wants any more Kuzych cases, and I
believe this includes the unions . I know that many union leaders
personally share my repugnance for the coercive features of the
union shop here described. My motives in calling for an end to
the growth of compulsory union membership are not vindictive or
inspired by a dislike -for unions . On the contrary, unions have now
reached such an important position in our society, and have the
opportunity and the capacity for contributing so much that is con-
structivë, that it would be a tragedy if they were to be discredited
by continuing to ask for and obtain such unwarranted power
over the destiny of citizens.

V
Three courses of actions are available to deal with this problem.
It is possible for provincial legislatures to prohibit the - union
shop and other forms of compulsory - membership by statute.
Superficially, this direct approach appears to be an effective way
of dealing with the problem; it was in fact proposed in the United
States when the Taft-HartTley Act was originally under discussion.
It has some merit, but runs counter perhaps to our traditions of
freedom of contract . In Canada, the preferred course has been to
leave the ,terms and conditions of employment as far as - possible
to the processes of free collective bargaining. Normally Canadian
legislatures have prescribed rules or prohibitions by legislation
only if the problem was a serious one (as this one undoubtedly is)
and if no other solution appeared feasible . There is also the practi-
cal difficulty that an outright prohibition of a parti~ular subject
of collective bargaining might unduly interfere with established
and generally acceptable practices. The history of the Taft-
Hartley Act shows that well-meaning attempts to make frontal
legislative assaults on undesirable bargaining practices often fail
because they do not take this result into account. The closed shop,
for instance, was outlawed, but the prohibition was by no means
welcome even in the few industries where the closed shop was pre-
valent, for example, stevedoring and the building trades . Both
unions and employers in these industries apparently were satis
catholic syndicates are also private associations and, as such, they would
appear' to be free to include in their constitutions any rules they see fit. The
Professional Syndicates Act of Quebec, under which most of them are in-
corporated, does not appear to restrict their right to expel or disqualify mem-
bers .
160 THE CANADIAN BAR REVIEW [VOL . XXX

fled with the closed shop, and the whole recruitment machinery
would have broken down if the Act had been strictly enforced
there. Even the requirement for a majority vote of employees as
a condition precedent to the granting of the union shop was found
to be unrealistic and has now been removed. Sponsors of the
original Act are now also in favour of permitting the closed shop
- with the modifications that will be referred to later.
In Canada, most labour relations legislation, both federal and
provincial, not only does not prohibit making membership in a
union a condition of employment but seems to go out of its way
to encourage it. The Ontario Labour Relations Act, 1950, con-
tains the following subsection to section 33 :
(1) Notwithstanding anything in this Act, the parties to a collective
agreement may include in it provisions, (a) for requiring, as a condition
of employment, membership in the trade union that is a party to the
agreement. . . .
A similar provision appeared earlier in federal legislation, and has
since been adopted by most of the provinces. Although no ex-
pressly permissive provision appears in the Quebec Labour Re-
lations Act, it is certainly arguable that compulsory union mem-
bership by agreement would be held legal under that Act also.
In Saskatchewan, the Trade Union Act makes a modified union
shop provision mandatory in all collective agreements if it is re-
quested by the union."
There is no evidence that any of these legislatures ever made
any inquiry into the membership rules of unions before they set
out to encourage union membership as a condition of employ
ment. In their zeal to preserve freedom of contract, they have
apparently failed to take into account the possible effect on the
right to work . Did these legislatures realize, for instance, that
some unions can expel members (and thus cause loss of their jobs)
for refusing to pay a political assessment in support of a particu-
lar party or candidate? In Ontario, there was apparently some
knowledge about the attitude of unions to "dual unionism"-
joining another union - which is inconsistent with the provisions
of the Act providing machinery for changing unions, because a
rider was attached to the section that legalized compulsory mem-
bership. This reads : "No employer shall discharge an employee
who is expelled or suspended from membership in the trade union
mentioned in clause a of subsection 1 solely because he is a mem-
ber of another trade union " . b2 If inquiry had been made, it would
si The Trade Union Act, R .S .S ., 1944, c. 69, s . 25 .
as Labour Relations Act, R .S .O ., 1950, c . 194, s . 33 (2) . A similar qualifica-
tion appears in the federal Act .
1952] Union Security Clauses and the Right to Work 16 1

have been discovered that unions have expelled members for

much lesser offences than joining another union.
The prospect of any outright prohibition of the union, shop by
law is highly remote, even if it were desirable.
A second possible method of dealing with the problems in-
herent in the union shop is to regulate by law the 'contents of
union constitutions. In this way, society could be assured that
onerous provisions which might give rise to unjust expulsions
would not be allowed to become operative. Such a solution might
establish a dangerous precedent, involving as it does an inter-
ference with the internal rules of private unincorporated associa-
tions, and would of course be strenuously resisted by unions .
There is some precedent for it in the laws governing some of the
professional societies, and it is quite possible that, as unions
achieve more economic power, their internal affairs will become
increasingly subject to legislative regulation . The grant of ex-
clusive rights by law - certification - possibly makes regula-
tion by law inevitable . Nevertheless, I do not think that it is re-
quired at this time, particularly when a less stringent, more
generally acceptable and much- more effective remedy is avail-
able .
My own view is that the most effective way of reconciling the
unhappy dilemma between union security and our traditional
concept of the'right to work is to be found in recent legislation in
the United States . The Taft-Hartley Act provisions banning the
closed shop and providing for a vote preceding establishment of a
union shop are well known; what is not so well known is the fact
that a union's right to bring about loss of employment by expul-
sion has been drastically restricted . Section 8(2) and (3) of the
Act, 53 while expressly permitting an agreement making union
membership a condition of employment, further provides that an
employer may not discharge or otherwise discriminate against an
employee for non-membership : "(A) If he has reasonable grounds
for believing that such membership was not available to the em-
ployee on the same terms and conditions generally applicable to
other members or (B) if he has reasonable grounds for believing
that membership was denied or terminated for reasons other than
the failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership". 54
53 Labor-Management Relations_Act, 1947, c . 120, Eightieth Congress of
the United States .
54 A similar prohibition is placed on unions . A number of employers have
in recent years been required to reinstate (with substantial amounts of back
162 THE CANADIAN BAR REVIEW [VOL. XXX

In other words, although compulsory membership agreements

are lawful, all applicants must be allowed to join and the only
compulsion permitted is to enforce the payment of dues and in
itiation fees - at least so far as the application of sanctions by
the employer is concerned. Other restrictive and coercive provi-
sions in union constitutions affecting conditions of employment
are completely ineffective and a Kuzych case could not happen in
the United States now. The recent amendment to the Railway
Labour Act, legalizing the union shop on the railroads, similarly
defines "good standing" merely as the payment or tender of "peri-
odic dues, initiation fees and assessments (not including fines and .
penalties) ",55
Significantly enough, with all the hue and cry by unions a-
gainst the Taft-Hartley Act, I have yet to hear any criticism of
these provisions . The lack of it need not be surprising because
compulsory payment of dues -financial security -goes a long
way to satisfy the arguments commonly given in justification of
compulsory union membership. It is true that the Act does not
enable a union to impose "discipline", but probably the majority
of union leaders would be content to forego that power rather than
run the risk of revulsion among .their own members and the pub-
lic, which would be sure to follow if citizens continued to be de-
prived of their jobs through arbitrary denial or withdrawal of
union membership.
The result is that none of the so-called union shop agreements
in the United States now mean quite the same thing as in Canada.
General Motors Corporation is commonly spoken of as having a
union shop, but the clause in its agreements carefully modifies
the statement about membership in good standing by adding the
significant words "in so far as the payment of dues and general
assessments is concerned" . Still other agreements, as well as some
in Canada, stipulate that "for the purposes of this agreement, an
employee shall be deemed to be a member in good standing as
long as he continues to pay or tender the regular monthly union
membership dues" . Pending legislative action in Canada similar
to that in the United States, it would seem essential that concilia-
tors, arbitrators and employers be on the alert to insist on suit-
able safeguards when compulsory membership requirements are
imposed on employees.
pay) employees who had been discharged for loss of union membership on
other grounds than failure to pay dues. In some cases the union was required
to contribute all or part of the back pay.
51 Mr . Justice Rand, of course, anticipated this type of approach in his
"formula" in the Ford arbitration case in 1946 .
1952] Union Security Clauses and the Right to, Work 16 3

But alertness is not enough in view of the gravity of the prob-

lem. Through ignorance or by economic coercion, an employer
might still be persuaded to grant unconditional compulsory mem
bership, and other steps must be taken to protect the functions of
management and the job rights of individual employees. One
wonders how long it will be before Canadian legislators follow
the example of the United States and prevent by law the threat
to job security and individual liberties implicit in unconditional
compulsory union membership . Unless an employee is protected
by law against loss of his job by expulsion from his union, I fear
that we shall be faced with serious social andpolitical consequences .
This is a problem that transcends any partisan approach to labour
relations. It is not even remotely connected with the merits or
demerits of unions, and their role in society. It is simply a question
of regulating the use of private power. The state cannot continue
to tolerate the establishment by private contract of prohibitions
on the right to work. It must legislate to ensure that, in the words
of Mr. Justice O'Halloran, "If membership in a union is a con-
dition to working at his trade, then he has an indefeasible right
to belong to that union" .

Professional Education
Mr. Justice Frankfurter defined lawyers as `experts in relevance', and the
ability to distinguish between the relevant and the irrelevant is a character-
istic of the good professional man. We are all familiar with the man who is
a walking encyclopedia, but seems unable to apply the facts he has to the
solution of problems . He has knowledge without understanding . There is the
other person who, confronted with a complex maze of facts, has the capacity
to appreciate their significant relations, and to create order and meaning out
of chaos. This understanding is a skill which reflects habits of mind and
methods of disciplined thought . It should be the purpose of professional
education to develop understanding .
Wise judgment on the part of the professional man depends'on know-
ledge, understanding and a sense of responsibility. He can see his work both
as a service to his `clients and in terms of its implications for society. Such
a view, to which his education should contribute, results from an apprecia-
tion of the -forces that influence society. It is primarily this appreciation
which distinguishes professional education from vocational education, the
profession from the trade, and the professional man from the artisan . (From
an address by the President of the University of Alberta, Dr. Andrew Stewart, ,
to the Annual Meeting of the Law Society of Alberta on January 9th, 1952)