Le syndicalisme de cadres et la législation québécoise du travail Supervisory and Managerial Unionism Under Quebec Labour Legislation

Résumé

Quelques notions qu'on entretienne sur le syndicalisme de cadres, il convient de le situer, comme concept et comme fait, dans le contexte plus large de la réalité sociale, économique, politique etjuridique du milieu même dans lequel on souhaite ou redoute son épanouissement. De même, il faut tenir compte de la tradition et des structures administratives des entreprises de ce même milieu. Tout emprunt, en cette matière, à des conceptions ou à des structures juridiques et administratives étrangères (pour fertiles que soient les comparaisons) doit s'entourer de beaucoup de circonspection, sous peine de flotter en pleine équivoque ou de n'être qu'une manoeuvre tactique.

Abstract

No matter how one feels about supervisory and managerial. unionism, this level of organization must be pitted, as both concept and fact, against the larger context of law, sociology, economics, politics and business administration in a given society. This essay will develop no thesis, « pro » or « con ». It will lay emphasis on thelegal aspects, hoping for others to indicate, through careful research, the important differences (social, political, economic and administrative) existing between the European context (in which some form of supervisory and managerial unionism flourishes) and the North-American one (in which such unionism is practically non-existent).

Legislation in both continents is closely related to such divergent realities. It is clearly restrictive, as regards supervisors, managers and collective bargaining, in all of North America ; on the contrary, it is permissive in Europe, and particularly in France.

One distinction must be made at the outset betweenprofessional andmanagerial unionism. The professional employee relates to an intellectual discipline in which he has acquired competence after years of university training ; he often, although not necessarily, belongs to the supervisory or managerial ranks. The supervisor or manager, on the other hand, exercises a given amount of delegated authority, whether technical or administrative; he obviously does not have to be a professional man.

In Québec, as well as in the rest of Canada and the U.S., the collective bargaining legislation (the 1944 Labour Relations Act and the 1964 Labour Code) acknowledges two basic categories in organizations : those who manage, at whatever levels, and those who obey. In France, as well as in several European countries, three categories, rather than two, are recognized : the workers-employees, the employers, and the supervisors-managers in between, who are not on the board of administrators and are not responsible for general policies, although they participate in management, control or advising.

THE PROFESSIONAL SYNDICATES ACT (QRS 1941, Ch. 162)

In Québec, several hundreds of engineers have elected to associate through incorporation under the Professional Syndicates Act, first adopted in 1924 when legislators certainly did not have professional employees in mind, although the latter may legitimately use the law for their purposes of associating and acting collectively in a variety of endeavours : appearing before the courts, acquiring property, establishing indemnity funds, building houses, setting placement bureaus, administering professional undertakings, subsidizing co-ops, and « enter (ing) into contracts or agreements with all other syndicates, societies, undertakings or persons, respecting the attainment of their objects andparticularly such as relate to the collective conditions of labour » ( Art. 6, par. 9 ).

Section III of the Act, accordingly, covered the « Collective Labour Agreement », which could not belegally forced upon a reluctant employer.

THE LABOUR CODE (12-13 Elis. II, 1964, Ch. 45)

The new Labour Code has eliminated articles 21-26 of the Professional Syndicates Act, which constitute precisely Section III on collective bargaining. In other words, collective bargaining under the law, from now on, will be governed by the Labour Code alone.

The Code introduces no novelty with respect to the 1944 Labour Relations Act on supervisory and managerial unionism. It covers by its stipulations an association only « recognized » by the employer, but obviously favours an association « certified » by the Labour Relations Board (See articles 6, 21, 38,40ff, 49 and 123 to verify the legislator's preference for certification as illustrating the « plenitude » of the law ).

The new Code maintains the very spirit of the 1944 Labour Relations Act as regards the definition of the « employee ». Article 1, par. m excludes from the purview of the law : « 1. a person who, in the opinion of the Board, is employed as manager, superintendent, foreman or representative of the employer in his relations with his employees ; 2. a director or officer of a corporation... ». In other words, managers and supervisors are not to be legally considered as compulsory interlocutors at the bargaining table, although, again, they may be recognized « freely » as such by the employer.

For the first time, however, the Québec labour law covers professional employees as such for collective bargaining purposes, provided :

1. they belong to the same profession (art. 20) ;

2. they hold an absolute majority in a given bargaining unit ;

3. they be « employees » according to art. 1, par. m, which specifically excludes supervisors and managers.

THE AMBIGUOUSNESS OF THE TWO LAWS

According to the Professional Syndicates Act, therefore, professional employees « in similar trades, or doing correlated work » (art. 2), mayassociate, whether they belong or not to supervisory and managerial levels, andact collectively in a number of specific endeavours, although, since September 1st, 1964,not for collective bargaining purposes by legal compulsion or intent.

What happens, then, to a union of professional employees, both supervisory and non-supervisory, managerial and non-managerial, who have developed among one another a strong level of solidarity and belonging, who are incorporated together under a given law, and who finally ask their employer to recognize them « de facto », telling him at the same time that they do not intend to get a certificate from the Labour Relations Board ? They argue according to the following logic : « The right of association is basic ; we are associated under formal law by incorporation with colleagues of the same profession ; a corollary to this association is collective action, a privileged form of which is collective bargaining. We therefore want to bargain collectively all together for all of us ».

The employer may go along with that logic, out of sheer « social realism » or because he is faced with strong economic pressure (as, for instance, the threat of a strike ) on the part of the union. And yet, he is likely to prefer the « plenitude » of the law, that is, certification of the union before the Board. Or else, he may accept « de facto » recognition, provided both parties agree on the bargaining unit in which the union will have to demonstrate its majority ; failing this, the employer will attempt to convince the union to go before the Board for a certificate. And furthermore, his definition of a correct bargaining unit will probably try to equate the intent of the legislator as expressed in article 1-m of the Code ; in other words, he will attempt to exclude from the bargaining unit all professional employees who act in a supervisory or managerial capacity, thus painfully amputating the union for collective bargaining purposes. Should he decide to go beyond the spirit of the law, he may be accused by other employers of creating « dangerous precedents » and of « playing legislator » in a legal and administrative context which runs against such precedents.

Should the employer « play it safe » and stay at the level of article 1-m of the Code, he may be threatened with a strike. Should the strike occur, the legal position of the parties seems to be as follows :

1. If the union groups only non-supervisory professionals, i.e. « employees » under the Code, the latter may not legally strike to compel their employer to recognize them « de facto », since they may go before the Board to get a certificate which will impose bargaining upon the employer. If they strike, there is a breach of individual contract, with all accompanying risks for the individual professionals.

2. If the union groups only supervisory or managerial professionals, i.e. « employees »not covered by the Code, these would in vain ask for a certificate from the Board. They remain bound by their individual contract ; should they strike, this will be a breach of individual contract, which may be followed by strong disciplinary action, including dismissal.

3. If the union groups both supervisory and non-supervisory professionals, these may not legally strike to forcibly bargain with the employer, for reasons given above for each of the two categories of professionals.

Facts and precedents, however, are often more decisive than laws, provided they be backed by strong economic power and patient resistence by a sufficiently numerous group of useful employees. Such forceful « precedents » are often what makes new laws.

CONCLUSION

It is to be hoped that the intent of the legislator will be clarified as soon as possible and that, once made perfectly clear as representing the mores and the will of a majority of the people, it will be respected by all interests groups, so that, inasmuch as it is humanly possible, the individual business concerns (whether government or private) be not the scene of costly and painful tests of strength.