McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 36
Montreal
1991
No 4
On The Moral Presence Of Our Past
Gerald J. Postema*
The doctrine of precedence, the author argues,
operates on two levels, providing both a doc-
trine for judicial decision-making and ajustifi-
cation for following past decisions. While the
first is well understood, the latter has been
given insufficient attention. The author
explores several conceptions of the doctrine of
precedent and the justificatory theories under-
lying them. He finds, however, that these the-
ories fail, and suggests instead a justification
based on the idea of keeping faith with our
past and with each other. This is developed
through an analysis of moral deliberation and
the communal relations and obligations consti-
tutive of genuine communities. The author
concludes by elaborating the notion of critical
history, which requires that we accept both the
precedential value of our past practices and the
failure of those practices to live up to the past
we may wish to have had.
Selon ‘auteur, la doctrine du stare decisis doit
s’appr6cier A deux niveaux. Au premier
niveau, il s’agit d’un outil d~cisionnel alors
qu’au second, il s’agit plut6t d’un argument
justifiant le recours aux decisions pass6es.
L’auteur examine plusieurs conceptions de la
doctrine ainsi que les justifications th~oriques
qui les sous-tendent, les rejettant toutes. I1 pro-
pose en revanche une justification bas~e sur la
confiance en nous-memes et en notre pass6.
L’auteur ddveloppe sa th~orie en analysant les
d6lib~rations morales ainsi que les relations et
obligations collectives constitutives d’une
v6ritable communaut6. L’auteur conclut sa
th~se en 6laborant une notion critique de l’his-
toire. Cette notion n6cessite que nous accep-
tions i la fois Ia valeur pr6c6dentielle des pra-
tiques pass6es ainsi que la possibilit6 que la
r6alit6 du pass6 ne corresponde pas A ce que
nous aurions esp~r6.
* Chair, Dept. of Philosophy, University of North Carolina, Chapel Hill.
McGill Law Journal 1991
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Introduction
Synopsis
I.
II.
Law and the Past
A. On the Essentially Historical Character of Law
B. Refining the Question
C. Standard Reasons for the Moral Force of Precedent
1. Wisdom of the Ages
2. Consistency, Fairness, and Treating Like Cases Alike
3.
Reliance, Predictability, Stability
Individual Moral Deliberation and the Past
A. Moral Deliberation, Imagination, and Regret
1. The Place of Memory in Practical Reason
2.
Imagination and Regret
B. The Past and Reasons for Present Action
1. Voluntary Commitments
2.
Loyalty
m. Communal Obligations of Co-Members
A. Communal Relations and Obligations of Co-Members
B. The Moral Force of Precedent
C. Critical History
**
1991]
MORAL PRESENCE
1155
“Put me in remembrance, let us argue together…”
Isaiah 43.26
Introduction
In his Eighteenth Brumaire, Marx chronicled the inability of the revolu-
tionaries of 1848 to break the strangle-hold of the past on their language and
deliberations.
The tradition of all the dead generations weighs like a nightmare on the brain of
the living. And just when they seem engaged in revolutionizing themselves and
things, in creating something that has never yet existed, precisely in such periods
of revolutionary crisis they anxiously conjure up the spirits of the past to their ser-
vice and borrow from them names, battle-cries, and costumes in order to present
the new scene of world history in this time-honoured disguise and this borrowed
language.’
Marx’s portrait is impatiently ironic. On his canvas, revolutionaries
demand the radical transformation of the old order into something altogether
new, using “the venerable disguise and borrowed language” of the very past
they seek to destroy. These revolutionaries manifested what T.S. Eliot called a
sense of the presence of the past.’ Of course, Marx, his feet planted firmly in
the future, decried the revolutionaries’ weakness of resolve, although it is not
clear that this was a weakness from their point of view.3 My present concern,
however, is not to debate with Marx this particular historical issue, despite its
interest. Marx’s observation is important for my purposes because it alerts us to
a practical or moral dimension of Eliot’s originally literary notion.
The past is morally present to us in familiar ways. We have made promises,
we have undertaken projects, we have joined organizations, we have discovered
ourselves already a part of a family or community with a long history and tra-
dition. The past, like a potter’s hands, molds the options available to us in the
present; indeed, it molds the very alms and values through which we view and
assess these options. Our individual histories give shape and substance to our
individual options and identities; so too do the collective histories of the com-
munities in which we live.
The moral presence of the past is so pervasive that we seldom pay it much
heed. Occasionally, however, it forces us individually or collectively to reflect
on it, as it did in Germany in the mid-nineteen eighties, when the scholarly and
popular press was filled with debate over the present significance of Germany’s
Selected Writings (Oxford: Oxford University Press, 1977) 300 at 300.
‘K. Marx, “The Eighteenth Brumaire of Louis Bonaparte” in D. McLellan, ed., Karl Marx:
2T.S. Eliot, “Tradition and the Individual Talent” in Selected Essays (London: Faber and Faber,
1972) 13 at 14.
3Cf. C.J. Calhoun, “The Radicalism of Tradition: Community Strength or Venerable Disguise
and Borrowed Language?” (1983) 88 Am. J. Soc. 886.
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Nazi past. Charles Maier, who chronicled the so-called Historikerstreit,
observed that “insofar as a collection of people wishes to claim existence as a
society or nation, it must thereby accept existence as a community through time,
hence must acknowledge that acts committed by earlier agents still bind or bur-
den the contemporary community.”4
At the end of this essay I shall return to issues suggested by this example,
but I will focus my attention primarily on another way in which the present is
tense with the past, a way which is familiar especially to lawyers. In the summer
of 1973, after lengthy interrogation, Frank Miller confessed the murder of Deb-
orah Margolin.5 Miller unsuccessfully sought to suppress the confession at trial
and was convicted. The Supreme Court of New Jersey ruled that the confession
was voluntary and properly admitted into evidence. Miller then sought a writ of
habeas corpus in the U.S. Federal Courts. Federal District Court dismissed the
petition without an evidentiary hearing on the grounds that the voluntariness of
a confession is a factual issue within the meaning of 28 U.S.C. 2245(d), which
provides that state-court findings of fact are presumed correct in federal habeas
proceedings. The Court of Appeals affirmed the District Court’s ruling, but the
U.S. Supreme Court overturned it, resting its decision heavily on the fact that
fifty years of Federal case law stood against the lower courts’ ruling. They
argued:
we do not write on a clean slate. “Very weighty considerations underlie the prin-
ciple that courts should not lightly overrule past decisions.” Thus, even assuming
that contemporary considerations supported respondent’s construction of the stat-
ute, nearly a half century of unwavering precedent weighs heavily against any sug-
gestion that we now discard the settled rule in this area.6
In law, as in much of the rest of our lives, the past is present in our moral or
practical deliberations in the form of precedent.
I. Law and the Past
A. On the Essentially Historical Character of Law
Why take our past as normative for our choices and decisions? As the pas-
sage from Miller clearly illustrates, this question arises with singular urgency
within legal practice. This is true for all legal systems, not just for those with
formal rules of stare decisis.7 Law is essentially historical, not just in the sense
4C. Maier, The Unmasterable Past (Cambridge: Harvard University Press, 1988) at 14.
Miller v. Fenton et al. 474 U.S. 104 (1985) [hereinafter Miller].
61bid. at 115, quoting Moragne v. States Marine Lines, Inc. 398 U.S. 375 (1970) at 403.
7Anthony Kronman writes, “Respect for past decisions … [is] a feature of law in general, and
wherever there exists a set of practices and institutions that we believe are entitled to the name of
law, the rule of precedent will be at work, influencing, to one degree or another, the conduct of
1991]
MORAL PRESENCE
1157
that the life stories of legal systems can be chronicled, but more importantly in
the sense that it is characteristic of law to anchor justification to the past. Time
is the soil of the lawyer’s thinking.
Oliver Wendell Holmes expressed just this thought in his familiar but much
misquoted bon mot: “The life of the law has not been logic: it has been expe-
rience.”‘ We forget that he went on to say that to understand the scope and appli-
cation of laws, we must know how they will be dealt with by judges trained in
the past which the law embodies. For that we must ourselves know something
of that past. “In order to know what [the law] is, we must know what is has
been…”9 Maintaining the law’s “historic continuity with the past,” Holmes said
on another occasion, “is not a duty, it is only a necessity.”‘” It is a necessity
because without it we could not understand the legal rules, structures, and
arrangements presently facing us, but also because law anchors justification in
the past. For lawyers and judges, “the past is … a repository not just of infor-
mation but of value, with the power to confer legitimacy on actions in the pres-
ent…. 11
The issue in legal practice, then, is not whether the past is present in the
prudence of jurists (and of the rest of us insofar as we seek to act within the
law). The issue, rather, is why should it be? Why treat this past as normative?
Why think the past has legitimating power?
The question, once posed, demands an answer, because the case for not
doing so seems persuasive. Time itself seems to have no magical moral powers.
Why should we not treat a decision of the past like a restricted railroad ticket,
good for this day and train only? as Justice Roberts once mused.12 Locke had
a point when he said, with his typical moderation, that “at best an Argument
from what has been, to what should of right be, has no great force.”‘ 3 Holmes,
who thought the law’s historic continuity with the past to be a necessity, put a
sharper point on Locke’s scepticism. “It is revolting,” he said, “to have no better
reason for a rule of law than that so it was laid down in the time of Henry IV.”‘ 4
those responsible for administering the practices and institutions in question” (A. Kronman, “Prec-
edent and Tradition” (1990) 99 Yale L.J. 1029 at 1032).
80. Holmes, The Common Law, ed. by M. De Wolfe Howe (Boston: Little, Brown and Co.,
1963) at 5.
91bid.
100. Holmes, Collected Legal Papers (London: Constable & Company, Ltd., 1920) at 139.
“Kronman, supra, note 7 at 1032-33.
‘2Smith v. Allwright 321 U.S. 649 (1943) at 669 (diss.), quoted in F. Schauer, “Precedent” (1987)
39 Stan. L. Rev. 571 at 571 n. 1.
Press, 1967) c. 8, s. 103 at 354.
13J. Locke, Two Treatises of Government, ed. by P. Laslett (Cambridge: Cambridge University
140. Holmes, “The Path of Law” (1897) 10 Harvard L. Rev. 457 at 469. Lord Atkin: “When
these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper
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Bentham raised the ante even further, arguing that the tendency to treat the
past as normative for us is a kind of intellectual and practical blindness –
an
occupational disease to which lawyers are especially susceptible. In the hands
of lawyers, he complained, precedent becomes “an avowed substitute for rea-
son;” under its influence blind imitation replaces rational deliberation guided by
a refined sense of human suffering. Judges “follow their leaders, –
as sheep
follow sheep, and geese, geese.”‘ 5 Lawyer’s know dead men’s thoughts too well,
we might argue.’ 6 To give lawyers their way is to invite the dead to bury the
living.
The case against the moral force of precedent, I think, demands an answer.
I propose to meet this challenge, but first I must refine the issue I will address
here, because important philosophical questions about the nature and signifi-
cance of precedent abound and are easily confused with the one issue I shall
address.
B. Refining the Question
“An argument from precedent,” says Anthony Kronman, “asserts that
something should be done in a certain way now because it was done in that way
in the past.”‘ 7 Why is this so? What accounts for the moral force of precedent?
My project is to explain in moral terms why we believe that the fact that a deci-
sion of a certain sort was taken in the past provides a sound reason for reaching
a similar decision in the situation currently facing us.
Note that this phenomenon is not restricted to formal institutions (like the
law) in which there is a recognized practice of precedent-following. For even
outside these institutions –
for example, in domestic life – we tend to feel the
force of such appeals to the past. (Recall Lon Fuller’s study years ago of the
force of reasons of precedent in the context of informal arbitration.8) The ques-
tion I wish to address is not a question about whether an institution of a certain
course for the judge is to pass through them undeterred” (United Australia, Ltd. v. Barclay’s Bank,
Ltd., [1941] A.C. 1 at 29).
15J. Bentham, The Works of Jeremy Bentham, ed. by J. Bowring (New York: Russell & Russell,
1962), vol. X at 511, and vol. IX at 322. Bentham was very fond of calling the doctrine of prec-
edent the “sheep and geese principle.” See University College London Manuscripts, Box lxxi,
folio 126. This, however, represents only one strand in Bentham’s very complicated view of prec-
edent and its merits. See G. Postema, Bentham and the Common Law Tradition (Oxford: Oxford
University Press, 1986) c. 6 & 8 [herinafter BCLT].
& World, 1963), 85.
16C. Sandberg, “The Lawyers Know Too Much” in Smoke and Steel (New York: Harcourt, Brace
I7Kronman, supra, note 7 at 1032.
18L. Fuller, “Collective Bargaining and the Arbitrator” (1963) Wisc. L. Rev. 3. Larry Alexander
recently observed that “even without a formal practice of precedent following, people can and will
draw inferences from decisions in earlier cases about how future cases will be decided” (L. Alex-
ander, “Constrained by Precedent” (1989) 63 S. Cal. L. Rev. 1 at 6 n. 3).
1991]
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kind exists, let alone about the conditions of existence of certain familiar social
institutional practices. In particular, it is not a question about whether there is
an established doctrine of binding stare decisis in English or Canadian or Amer-
ican law, or what the “rules of precedent” in these legal systems are.’ 9 The ques-
tion I wish to address is not one of social theory or descriptive jurisprudence,
but rather a question of moral theory, albeit a question that arises with special
urgency with regard to law because of the law’s self-proclaimed historicity.
Our past decisions and actions seem to have the moral force of precedent.
But not always. Some actions have moral consequences without having prece-
dential force. This is especially true of actions or choices which are taken for
no reason at all. However, if it is ever true that decisions and actions have the
moral force of precedent, it is true of decisions and actions taken for reasons,
or of those decisions and actions for which we legitimately demand that reasons
be given. This may explain why the past seems to weigh more heavily in the
deliberation of those who occupy positions of authority.2″ Thus to refine our ear-
lier observation, we must say “decisions for reasons have the moral force of
precedent.”
At this point it is natural to ask, does a single such decision do the trick,
or is the moral force the product of several decisions made on the same basis?
Does the moral efficacy of such decisions depend on their being taken in the
context of similar, overlapping, or reinforcing decisions? Does it make a differ-
ence to the moral causality involved that the decisions are spread over different
decision makers? These are interesting and important questions, but they are not
on my agenda. For the sake of simplicity, I will speak as if a single decision can
enjoy the kind of moral efficacy we have observed, but I do not wish thereby
to beg any of these questions.
Our focus, then, is on decisions for reasons. Once we recognize this, our
problem seems easier. We have asked, “Why are past decisions normative for
present decisions?” It is tempting to reply, “Since these are decisions for rea-
sons, and since reasons are necessarily general (having to do with types or kinds
of actions, rather than particular actions), these decisions must be taken logi-
cally to instantiate rules which then bind agents to specific decisions in the pres-
ent.” According to Theodore Benditt, “the question of whether, and why, judges
should follow precedent is the question of whether earlier decisions establish
rules of law.”‘” However, while I do not want to reject the suggestion implicit
in this explanation, I think it does not get our inquiry off on the right foot.
19The point of departure for all discussions of this sort is R. Cross, Precedent in English Law,
3d ed. (Oxford: Oxford University Press, 1977).
20See N. MacCormick, “Why Cases Have Rationes and What These Are” in L. Goldstein, ed.,
Precedent in Law (Oxford: Oxford University Press, 1987) 155.
21T. Benditt, “The Rule of Precedent” in Goldstein, ed., ibid., 89 at 94.
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First, it joins issue on a matter tangential to my main concern, viz., whether
the way in which past decisions for reasons give moral shape to the future is
through establishing rules. This thesis seems very plausible, but many “partic-
ularists” deny it. They think arguments from past decisions are, as Roy Stone
put it, arguments from “particular to particular –
similea e similibus …-22 But
this is not the issue before us. The “particularist” vs “rationalist” debate con-
cerns the logic of the inference from past decisions. It assumes that past deci-
sions generate present reasons and focuses on the logic of this inference. My
concern is to explain and defend the truth of that prior assumption. Thus, the
focus of my inquiry is not, “How logically do we move from past to present?”
but “Why start with the past?” Not “How do decisions make rules?” but rather
“How do past decisions for reasons provide reasons for present decisions?”
Second, with attention focused on decisions for reasons, it might be tempt-
ing to think that we can account for the moral force of past decisions in terms
of the soundness of those reasons. However, there is an obvious problem with
this suggestion: the reasons for which the earlier decision was taken may not
have been morally sound. Indeed, there may be no morally sound reasons for
the decision. Nevertheless, in some of these cases, the past decision is still
regarded as providing a reason for a similar decision in the present. Surely, from
the fact that an agent in the past believed certain considerations to justify the
decision, it does not follow that they succeed in doing so. So an explanation of
the moral force of a past decision in terms of the moral soundness of the reasons
on which it might have rested cannot succeed.
Thus, if past decisions for reasons give reasons for present decisions, it is
not the soundness of the past decision alone, nor the soundness of the reasons
for which it was taken alone, that provides the reason. The moral force of prec-
edent must be, at least to some degree, independent of the merits of the decision.
I will call this the independence thesis. To clarify the independence thesis, con-
sider a contrasting view of the authority of a judicial decision expressed by
Chief Justice Taney in the nineteenth century.
I … am quite willing that it be regarded hereafter as the law of this court, that its
opinion upon the construction of the Constitution is always open to discussion
when it is supposed to have been founded in error, and that its judicial authority
should hereafter depend altogether on the force of the reasoning by which it is sup-
ported.23
2R. Stone, “Ratiocination not Rationalisation” (1965) 74 Mind 463 at 481 and see 477-78. For
suggestions of this view in classical common law theory see BCLT, supra, note 15, c. 1.3 and G.J.
Postema, “Some Roots of our Notion of Precedent” in Goldstein, ed., supra, note 20, 9 at 20-21.
Also see C. Fried, “The Artificial Reason of the Law, or: What Lawyers Know” (1981) 60 Texas
L. Rev. 35 at 57; S. Fish, Doing What Comes Naturally (Durham: Duke University Press, 1989).
23Smith v. Turner 48 U.S. 282 (1849) at 470.
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If we take his last clause at face value, Taney is suggesting that we regard the
authority of the Court’s decisions on issues of Constitutional construction to rest
exclusively on the force of its reasoning. This, however, is to deny the decisions
of any precedential force, because it maintains that there is no reason to follow
the Court’s past decisions other than the fact that those decisions rest on argu-
ments which meet standards of reasonableness. Taney, it seems, is willing to
accept the view that the Court’s decision itself provides no basis for deciding
in a similar way in the future. This may be the appropriate way to regard the
decisions of the Court in Constitutional matters, or even in other areas of law,
but it is clear that on this view it would no longer be plausible to say that the
past decision set precedent for present decision making. If the decision set a
precedent, then the fact that the case was decided in a particular way must itself
give some reason, or figure essentially in some more complex reason, for decid-
ing in the same way in the future, and this reason must be rooted in consider-
ations independent of the specific merits of the case. This is the thrust of the
independence thesis.
That much, I think, is relatively clear, but matters become more difficult
as we realize that the independence thesis can take several different forms. Per-
haps the weakest version of the independence thesis seems to have had some
currency in seventeenth and perhaps even eighteenth century common law juris-
prudence. (It may also lie behind Taney’s proposal). On this view,’ past deci-
sions have authority not in virtue of their confonnity with timeless standards of
reason or justice, nor simply in virtue of having been decided, but rather in vir-
tue of having a place within a body of common experience and of being the
product of a process of reflective deliberation exercised within this body of
experience, and thus invite and focus reasoning in future cases. No single deci-
sion, on this view, is exempt from the trained critical eye of subsequent jurists,
and each has authority only if it passes critical scrutiny. Nevertheless, the stand-
ards of critical success are given concrete content only in and through the his-
torically accumulated common experience reposited in the vast body of partic-
ular past cases. This view of past decisions recognizes the moral presence of the
past, but, if it is a form of the independence thesis, it is a limiting case. The prac-
tical authority of any decision rests on the merits of the reasoning for it, yet the
standards for assessing the merits are themselves self-consciously historical.
The reasonableness of any argument is a function of its fit with widely recog-
nized and historically rooted paradigms of such reasoning.
Another, slightly stronger, form of the independence thesis is analogous to
a version of the epistemological principle of “methodological conservatism.”‘
241n this paragraph I rely on my discussion of Coke, Sir Matthew Hale, and Blackstone in Pos-
tema, supra, note 22 at 18-23.
2See L. Sklar, “Methodological Conservatism” (1975) 84 Phil. Rev. 374, and W. Lycan, Judge-
ment and Justification (Cambridge: Cambridge University Press, 1988) c. 8.
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According to this epistemological doctrine, the very fact that a proposition is
believed is warrant for maintaining that belief, until one has reason to challenge
the veracity of the belief. The analogous doctrine of precedent holds that one
has a sound reason to follow decisions in the past so long as they were not
decided in error (alternatively: so long as the present decision maker does not
have sufficient reason to believe they were decided in error).26 On this version
of the independence thesis, past decisions are thought to provide at least some
reason for similar decisions in the present, conditional upon its not being the
case (or its not being shown to the decision maker’s satisfaction) that the past
decision is in error. This leaves some –
basis for the
independence of the moral force of precedent from the merits of past decisions.
On this view, past decisions give reasons for present similar decisions, inde-
pendent of the merits of the case, but these reasons are defeated once it is shown
that the precedent case was decided in error. Thus, as long as the precedent deci-
sion is one among several more or less equally reasonable solutions to the prac-
tical problems thrown up by the case, it can exert its own special moral force.
albeit a rather narrow –
The modem doctrine of precedent since at least the nineteenth century
insists on a stronger version of the independence thesis. It insists that past deci-
sions retain their normative hold on our deliberation in the face of legitimate
reservations about the merits of those decisions.27 Larry Alexander, for example,
thinks that the best way to isolate the moral (or rational) force of precedent is
to focus on “constraint [on judicial decisions imposed] by incorrectly decided
precedents.”‘ However, we must take care not to overstate the independence
thesis. We must keep in mind that one can acknowledge this independent moral
force of precedent without accepting that the fact that a decision was taken in
the past always gives a sound (let alone overriding) reason for making a similar
decision in the present. That is to say, independence entails nothing about the
logical or substantive relations between the moral reasons of precedent and
other sound moral reasons. Moreover, the independence thesis does not entail
that past decisions have moral force regardless of their merits (or demerits),29
for the moral force of a precedential decision may be overridden, and even
‘rhis seems to be the view expressed by Justice Powell in dissent in Vasquez v. Hillery: “when
governing decisions are badly reasoned, or conflict with other, more recent authority, the Court
‘has never felt constrained to follow precedent”‘ (474 U.S. 254 (1985) at 269, quoting Smith,
supra, note 12 at 665). See also Woods v. Lancet 303 N.Y. 349 (1951) at 354-55. Stephen Perry
calls this a “weak Burkean” conception of precedent. S. Perry, “Judicial Obligation, Precedent and
the Common Law” (1987) 7 Oxford J. Leg. Stud. 215 at 221.
27Justice Brandeis’s well-known statement in Burnet v. Coronado Oil & Gas Co. is illustrative.
“Stare decisis is usually the wise policy,” he wrote, “because in most matters it is more important
that the applicable rule of law be settled than that it be settled right …. This is commonly true even
where the error is a matter of serious concern …” (285 U.S. 393 (1931) at 406). See also D. Lyons,
“Formal Justice, Moral Commitment, and Judicial Precedent” (1984) 10 J. Phil. 580 at 583.
28Alexander, supra, note 18 at 4.
29This is the way Lyons interprets the moral principle of precedent. Lyons, supra, note 27 at 581.
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MORAL PRESENCE
1163
entirely defeated by substantive considerations. The thesis does not even entail
that the fact a certain decision was taken in the past is by itself alone a sound
reason for making a similar decision in the present,” for the “historical pedi-
gree” of a decision may only be part (albeit an essential part) of the reason for
following it. The independence thesis maintains only that the moral force of past
actions or decisions is not reducible to reasons for the decision regarded time-
lessly. A consequence of this is that there may be cases in which one has reason
to follow precedent in spite of doubts we may have about the merits of the deci-
sion regarded timelessly.
This has three important implications for our inquiry. First, the independent
moral force of precedent may be limited in certain respects. To see this, consider
an analogy to promises. The fact that one has promised to perform some action
is often sufficient to override or at least compete with reasons for not per-
forming the action at the appointed time. We believe, however, that even sin-
cerely made promises lose their moral force if the promisor has no right to per-
form the promised act. Contracts for murder, for example, are not morally
binding. The moral force of past promises is conditional in a way on the merits
of the action promised. In spite of this fact, promises have moral force inde-
pendent of the merits of actions promised, although this independence is limited
by the above condition. Similarly, the moral defects of a past decision may in
some cases entirely defeat the moral hold that the decision normally would have
on our deliberation. The moral force of the past again in such cases is condi-
tional upon the merits of the actions or decisions in question; its independent
moral force is thereby limited.
Second, the practical reasons generated by past decisions and actions may
be overridden by conflicting considerations.3’ To recognize independence of
reasons is one thing, to determine the relative weight of those reasons is another.
30Fred Schauer says arguments from precedent have the following form: “The previous treat-
ment of occurrence X in manner Y constitutes, solely because of its historical pedigree, a reason
for treating X in manner Y if and when X again occurs” (Schauer, supra, note 12 at 571).
31This seems to be the view of the legal status of precedent in constitutional law adopted by Jus-
tice Brandeis in Burnet, supra, note 27 at 406-407 (arguing that prior decisions be overturned). Jus-
tice Marshall, following Brandeis’s line, argued against overruling precedent in Vasquez, supra,
note 26 at 265-66. “Our history does not impose any rigid formula to constrain the Court in the
disposition of cases. Rather, its lesson is that every successful proponent of overruling precedent
has borne the heavy burden of persuading the Court that changes in society or in the law dictate
that the values served by stare decisis yield in favor of a greater objective” (supra at 266). Marshall
seems to embrace what Stephen Perry calls a “strong Burkean” conception of precedent (Perry,
supra, note 26 at 222). He also suggests that this seems to be the prevailing view of Canadian com-
mon law judges. He quotes former Chief Justice Bora Laskin, who wrote, “We are now able to
view it [stare decisis] as simply an important element of the judicial process, a necessary consid-
eration which should give pause to any but the most sober conclusion that a previous decision or
line of authority is wrong and ought to be changed” (B. Laskin, “The Role and Function of Appel-
late Courts: the Supreme Court of Canada” (1975) 53 Can. Bar Rev. 469 at 478).
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The moral force of the past is no different in this respect than the moral force
of fairness, promises, the welfare of the community, or any other familiar moral
ground for action.
Third, some philosophers find it tempting to give the independence of the
reasons created by past decisions a special peremptory character. Fred Schauer,
for example, has argued that “[j]ust as an argument from rule gives independent
weight to the fact that a result is indicated by that rule, so too does an argument
that a result resembles one in the past.”32 From this premise Schauer concludes
that “an argument from precedent is a form of argument from authority,” by
which he means that it provides “exclusionary” or peremptory reasons for a
decision in the present.33 That is, it provides a reason for a decision maker not
to decide the cases on the basis of reasons concerning its merits –
a reason
which precludes decision on the merits. This inference, however, is mistaken.
For the fact that a reason is distinct from other reasons does not imply that it
is peremptory relative to them. More specifically, although the fact that the
moral force of a past decision is independent of its merits implies that the deci-
sion can maintain its claim on deliberation even when it is proved erroneous, it
does not imply that the precedential force of the past decision precludes decision
in the present on the basis of an assessment of the precedent decision’s merits.
It is a point worth repeating: to say that past decisions generate moral reasons
for decisions in the present in some degree independent of the merits of the past
decisions is not to commit to any view about how these reasons fare in compe-
tition with other practical or moral reasons.
Finally, I should perhaps point out that the independence thesis is in no
way committed to Anthony Kronman’s extravagant view that we must respect
the past for its own sake, or that a decision in the past imposes “an immediate
claim to our respect simply in virtue of its pastness.”‘ While Kronman is prop-
erly sceptical of familiar utilitarian arguments for the value of precedent, he rad-
ically overstates his case by insisting, in effect, that the past has some simple,
intrinsic, and ultimate value.
I have tried to isolate a specific question about the practical and moral
nature of precedent for our consideration, a question which is different from
those typically addressed in discussions of the doctrine of precedent. The ques-
tion I wish to address is: Why give any practical or moral weight to past deci-
sions? What claim does it have on us and on what can we ground this claim?
32F. Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-
Making in Law and in Life (Oxford: Clarendon Press, 1991) at 182-83.
33Schauer follows Joseph Raz on this. See J. Raz, Practical Reasons and Norms, 2d ed. (London:
Princeton University Press, 1990) at 35-48; The Authority of Law (Oxford: Oxford University
Press, 1979) c. I & 2; The Morality of Freedom (Oxford: Oxford University Press, 1986) c. 3; and
“Facing Up: A Reply” (1989) 62 S. Cal. L. Rev. 1153 at 1154-79.
34Kronman, supra, note 7 at 1036-37, 1039 & 1042-43.
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C. Standard Reasons for the Moral Force of Precedent
Given the centrality of the past, especially the doctrine of precedent, in
legal practice, it is not surprising that lawyers keep a stable of arguments well-
fed and ready to run against any challenge. I will briefly discuss three of the
most familiar arguments. I will argue that each fails to answer the question I
have isolated.
1.
Wisdom of the Ages
Blackstone, looking back on his monumental outline of English law,
argued that common law claimed our allegiance because it is “fraught with the
accumulated wisdom of the ages.”35 Sir Edward Coke, of course, was fond of
reminding all critics of the common law that
we are but of yesterday … our days upon the earth are but as a shadow, in respect
of the old ancient days and times past, wherein the laws have been by the wisdom
of the most excellent men, in many successions of ages, b 6 long and continual
experience, (the trial of right and truth) fined and refined…
The pedigree of this venerable argument notwithstanding, the argument
simply fails to answer our question. If its premise that the wisdom of “the most
excellent men” in the “successions of ages” is embodied in the law is true, then
we probably do have a reason to decide and act as they have decided and acted.
The fact that they so decided, however, is no part of that reason for following
suit. Rather, it is exclusively the justice and wisdom of the course of action
which calls us. Its having been so decided is not a reason for deciding or acting;
at most, it is a reason for believing that a certain course of action is wise or just.
But, then, we cannot appeal to the wisdom of the ages to explain the moral force
of precedent. Past decisions, on this view, provide us with no reason for present
decisions independent of the merits of those past decisions.
Contemporary defenses of precedent seldom rely on this Blackstonian
argument, however; rather, they tend to rely either on some version of the
formal principle, treat like cases alike, or on a principle of respect for legitimate
expectations or promotion of the reliability of authoritative decisions.37 Rather
of first edition Chicago: University of Chicago Press, 1979), vol. 4 at 435.
35W. Blackstone, Commentaries on the Laws of England, 4 vols (first edition 1765-69, facsimile
36Calvin’s Case, 7 Coke’s Reports at 36, 77 E.R. (Full Reprint) 377 at 381.
37Fred Schauer rests his account largely on a third kind of consideration, promotion of official
decision making efficiency and accuracy under law. See Schauer, supra, note 12 at 602. I will not
develop the argument here, but I believe that, much like the standard arguments I consider,
Schauer’s argument begs the question of why we should look to the past for this advantage. Once
we have settled that we must do so, it will be reasonable for us to insist that our practice of prec-
edent be regimented in various ways to insure quality official decision making. At best this latter
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than take up all the familiar versions of these arguments, I will consider a few
representative arguments.
2.
Consistency, Fairness, and Treating Like Cases Alike
It is a home truth in discussions of precedent, and legal reasoning gener-
ally, that basic fairness (sometimes “formal justice”) requires that we treat like
cases alike, which itself is thought to be a requirement of simple consistency of
judgment, both synchronic consistency (equality) and diachronic consistency
(respect for precedent).” This home truth, however, is false. The principle of
precedent, as we have seen, requires that since cases of a certain type were
decided in a particular way in the past, later cases of that same type ought to
be decided in the same way. The principle of precedent biases practical delib-
eration towards that past in this respect. The principle of “formal justice” (treat
like cases alike), however, does not have this implication.
First, regarded simply as a principle of consistency, the injunction to treat
like cases alike does not entail the principle of precedent. The injunction
requires that if two cases are alike in morally relevant respects, than they must
be treated in the same way as those morally relevant features require. Then, if
one treats two cases differently, either one must show that the two are different
in relevant respects, or one must (upon pain of inconsistency) admit that at least
one of the decisions is mistaken. This logical requirement applies to the cases
and decisions regarded timelessly, abstracted from the sequence in which they
may have been decided. Thus, if one proposes now to treat a case differently
from the way one in the past treated a similar case, consistency requires only
that one accept one of the decisions as a mistake, not that one regard the pro-
posed decision in the present case as the culprit. It does not force one to treat
the subsequent case in the same way one treated the first one, any more than it
forces one to accept the logical consequence of one’s beliefs. (It is always open
to one to reject the belief in question.) Consistency, then, does not force on deci-
sion makers any bias toward the past.3 9
question is a question of institutional design, not a question of the underlying moral force of
precedent.
38Schauer, ibid. at 596. The fascination of lawyers and philosphers with the formal justice prin-
ciple can be traced back to H.L.A. Hart, “Positivism and the Separation of Law and Morals” (1958)
71 Harvard L. Rev. 593 at 623-24; Hart, The Concept of Law (Oxford: Oxford University Press,
1961) at 155-57; and C. Perelman, “Concerning Justice” in C. Perelman, The Idea of Justice and
the Problem of Argument, trans. J. Petrie (London: Routledge, 1963) 1 (this essay was first pub-
lished in 1945). For critical discussions see K.I. Winston, “On Treating Like Cases Alike” (1974)
62 Cal. L. Rev. 1; D. Lyons, “On Formal Justice” (1973) 58 Cornell L. Rev. 833; P. Westen, “The
Empty Idea of Equality” (1982) 95 Harvard L. Rev. 537; and P. Westen, Speaking of Equality
(Princeton: Princeton University Press, 1990) c. 9.
39Michael Moore argues that “If a case in the past has been decided in a certain way, the ideal
of equality [i.e., the injunction to treat like cases alike] constrains ajudge in a way he was not con-
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One might argue, of course, that since we cannot change the past, once a
decision is made, consistency forces us to regard the currently proposed deci-
sion as the mistake. However, the premise that we cannot change the past is
either irrelevant to the argument for the principle of precedent, or it is false. In
either case the argument fails. It is true that we cannot change the past, if what
we mean is that we cannot now make it true that case was treated differently in
the past. But it is irrelevant. For the issue is what does consistency require of
us, and while we cannot make the decision different from what it was, we can
treat it as mistaken and treat the case-type as it ought to be treated. The premise
is false, of course, if what we mean by it is that the past decision puts us on an
unalterable course.
The argument I have just given is not likely to satisfy defenders of the
“formal justice” principle, for they feel that the principle states a requirement
of justice or fairness, not mere consistency.4″ Consistency may be satisfied by
such retrospective mistake declarations, they will argue, but fairness and equal-
ity demand more. I understand the frustration. It is born of the intuition that
there is (at least in some cases) some moral reason for following past decisions.
That is the intuition I am working with as well, but the task is to explain that
intuition. I challenge the explanation in terms of fairness understood as the
injunction to treat like cases alike. If we are to take the injunction to state, albeit
very abstractly, a substantive principle of fairness, then we still need an argu-
ment for a substantive principle that biases present decisions in the direction of
past decisions. What principle of fairness, precisely, calls for this bias? None
has been offered. Moreover, fairness (and equality) are not to be confused with
sameness. There are lots of ways of treating people or cases which are the same,
but no more fair for all that. Fairness, of course, is essentially comparative in
a way that, say, desert is not. That is, one can treat people as they deserve with-
out paying attention to how, comparatively, they are treated; one needs only pay
strained before. The judge must either decide the case in front of him the same way, or articulate
a defensible theory of why the differences between the two cases justify different treatment” (M.
Moore, “A Natural Law Theory of Interpretation” (1985) 58 S. Cal. L. Rev. 277 at 316). But this
is a mistake. His “ideal of equality” has this implication only on the assumption that the deliber-
ation is already (properly) biased toward past decisions. In a more recent essay Moore clarifies his
position. He argues that judges are not bound by “equality” to regard past decisions as fixing the
criteria of similarity and difference among past and future cases. “Real equality,” he insists, is
given by the best moral theory of the relevant similarities and dissimilarities. Moore, “Precedent,
Induction, and Ethical Generalization” in Precedent in Law, Goldstein, ed., supra, note 20, 183 at
186-87. But this again begs the question I have raised, namely, why must judges direct their atten-
tion to past cases in the first place? Moore’s “Natural Law” theory accepts without argument that
the past demands our allegiance. But this needs an argument from moral theory.
40Schauer, at one point, tries to capture the idea of fairness involved here as follows: “decisions
that are not consistent are, for that reason, unfair, unjust, or simply wrong” (Schauer, supra, note
12 at 596). But this is surely wrong, unless, as I suggest in this paragraph, we build into consistency
a substantive moral principle.
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attention to the non-comparative principle of desert and whether each person
regarded individually is treated as that principle requires. Fairness (like equal-
ity) is essentially comparative, such that judgments of relative treatment within
a set of people are an essential component of the judgment of fairness. However,
to say fairness or equality require sameness of treatment in some specific
respects is not to say that to treat people the same in any respect or other is to
treat them fairly or equally. Fairness is a special kind of sameness of treatment;
there are an indefinite number of ways in which we can treat people the same
which are not ways of treating them fairly. But, then, from the fact that past
decisions project as it were a way of treating people the same, it does not follow
that that is a way of treating them fairly, or that people are treated unfairly if
this projection is not followed. Or, rather, it does not follow, unless we are given
reason to believe that fairness requires that past decisions for reasons (especially
official decisions) be followed, that is, reason to believe that fairness requires
that we treat like cases in that way.4! ‘
3.
Reliance, Predictability, Stability
We perhaps should look for the argument for fairness beyond the formal
considerations of consistency and equality, One such argument appeals to the
fact that people tend to rely on past decisions, especially official decisions. It is
unfair, it is argued, to defeat legitimate expectations generated by past official
decisions. Therefore, reasons of fairness require that we treat past decisions as
reasons for present decisions.
This argument, however, also begs the question. Ignoring or overturning
precedent is unfair because, presumably, people expect that present decisions
will conform to precedent, and these expectations are defeated (without warning
or compensation, we must add). Of course, expectations can either be reason-
able or unreasonable, either legitimate or unfounded. It is unfair to defeat expec-
tations only if they are legitimate. They are legitimate if there are good moral
reasons for thinking that decision makers ought to follow precedent, or if the
decision makers themselves, or the institutional structure within which they
work, actively encourage such expectations. If the expectations are legitimate
in virtue of the fact that there are good reasons to demand as a matter of moral-
ity that officials respect precedent, then again the case for fairness presupposes,
rather than supplies, an answer to our main question. Similarly, while expecta-
tions may be legitimate if actively encouraged, the encouragement succeeds
precisely because people already accept that past decisions give reasons for
present ones. Moreover, we can ask: why encourage reliance in this way?
4’For a slightly different line of criticism of the fairness argument see L. Alexander, supra, note
18 at 10.
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The answer to this question is often made in terms of promoting stability
and predictability of official decision making. The idea is that through binding
official decisions to precedent we can regiment an indeterminate present and
future by anchoring it to a determinate, because determined, past. This argument
presupposes that the past is not only determinate, but also that in this determi-
nate form it is publicly accessible. Attending to the past yields predictability of
future, on this view, because the past yields determinate rules the terms of
which most of those governed by them are able to recognize. It may well be true
that the past is metaphysically determined, but its normative and practical sig-
nificance for us frequently is not determined, or if it is, there is still likely to be
a great deal of disagreement about what that significance is. The problem is not
that it is hard to get a reliable, full picture of the relevant events of the past; the
problem is, rather, that what we must take as morally relevant is often open to
disagreement.”
Let me be clear: I am not advancing the sceptical or relativist argument that
there never is any determinate answer to these questions of (moral or normative)
relevance of past decisions. I am willing to accept that often there are determi-
nate answers to such questions, at least in the sense that it is appropriate to think
that some accounts are mistaken, and some better than others, and perhaps even
that there is a best overall account. The problem with the predictability argu-
ment is not that it depends on this sort of determinacy, but that it depends on
the stronger assumption that people will largely agree in their judgments of such
matters. To assume that the past can deliver that sort of determinacy is surely
extravagant. Hence, despite the metaphysical and possibly even the normative
determinacy of the past, it is implausible to think the past can provide an ade-
quate basis for the predictability argument to have much force.
To be sure, we can incorporate more stringent conditions into our doctrine
of precedent, requiring, for example, that the rules formulated verbally in the
public defense of past decisions be taken as fixed;4 perhaps also that they be
understood to provide peremptory reasons for deciding in similar ways in
future. But this imposes institutional constraints on precedent which the notion
of precedent itself does not seem to require, in order to make the past publicly
determinate enough to serve the end of predictability. This suggests to me that
the predictability of decision making is not a primary reason for thinking that
42Commenting on the practice of historians, Charles Maier observed that “Most persistent his-
torical debates do not finally turn upon evidence omitted, miscited, or newly found, but upon the
significance to be accorded the data. Ultimately, historians differ on what is important” (The
Unmasterable Past, supra, note 4 at 13). This is likely to be even more persistently the case when
the debate is explicitly over the normative or moral significance of the past and its implications
for individual and collective actions.
4 3In Rupert Cross’s apt phrase, it would require not stare decisis but stare rationibus decidendis.
See Cross, supra, note 19 at 183 n. 2.
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past decisions provide reasons for present decisions, but rather a reason for
introducing certain institutional refinements of the practice, once it has been
established, that precedent decisions ought to be recognized as normative.
I conclude that standard arguments for the moral force of precedent fail.
There is, however, another quarter from which an argument for the moral force
of the past can be mounted, one which does not deny or seek artificially to cabin
and crib the elusiveness of the past. The motto of this paper is taken from the
prophet Isaiah who reports God saying to the people of Israel, “Put me in
remembrance, let us argue together …” (Isaiah 43.26). In my view, it is not the
already determined character of the past that renders it fit for our allegiance, but,
paradoxically, its very elusiveness. Our past practice bears the shape of our
common life, while at the same time forcing us to address together the question
just what this shape is, and what it means for our collective and individual
actions now and in the future. In short, we are bound to keep faith with our past
because that is a way of keeping faith with each other. In the remainder of this
essay I will try to fill out this explanation. I will start with a brief discussion of
the place of a sense of the past in individual moral deliberation and then return
to the social context.
II. Individual Moral Deliberation and the Past
A. Moral Deliberation, Imagination, and Regret
1.
The Place of Memory in Practical Reason
Coleridge once said, rather ruefully, that while it might be true that history
and experience give us light for our way, this light “is a lantern on the stern,
which shines only on the waves behind us.”‘ There is much sad truth in this;
yet I want to argue that a robust sense of the past is indispensable to individual
deliberation about the present or future. This is part of what I mean by “the
moral presence of the past.’ 45
Aquinas held the view that memory is one of the three necessary compo-
nents of practical reason, the other two being foresight and understanding of the
present.46 We can take this thought one step further: not only is an historical
England” (1985-1986) 68-69 Salmagundi, 48 at 48.
“Coleridge, Table Talk, December 18, 183 1, quoted in J. Clive, “The Use of the Past in Victorian
45While I will take as my focus the deliberation of an individual moral agent, I believe that most
of what I shall argue can be extended to the case of political or collective deliberation. I will not
argue this thesis here.
46Aquinas argues that “Memory, understanding, and foresight, as also caution and readiness to
learn and the like, are not virtues distinct from prudence; they are, as it were, integral parts or com-
ponents, inasmuch as they are all requisite for perfect prudence” (Summa Theologiae, ed. & trans.
by W.D. Hughes (Westminster. Blackfriars, 1969) question 57, article 6, v. 23 at 61).
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sense a necessary component of practical (or moral) reason alongside the others,
it is presupposed by them. One’s ability to form an adequate conception of the
future and of the place of oneself and one’s action in it, depends on – or is of
a piece with –
a rich sense of the moral presence of the past. Memory is the
bone and sinew of practical life, without it an agent loses all shape, all capacity
to act.47
Among the capacities essential to practical reason is the capacity to under-
stand the future and the relationship between one’s decisions and actions and the
future. To be purposive, one must be capable of projecting one’s action into an
intelligible future. To be deprived of a future that is now intelligible to one is
to have one’s present deliberation and action cut off from any meaning. Essen-
tial to an intelligible future is an intelligible past. Consider the person suffering
amnesia. Typically, she regards her (unrecoverable) past not merely with
detached, nostalgic curiosity, but with genuine terror born of disorientation. Her
present and future have little meaning for her. Because she has no sense of her
self, she is unable to project a self into the future. Her future is not intelligible
to her because her past is not accessible to her. Thus, the meaningfulness to an
agent of her deliberation, decision, and action in the present depends on a full
and real sense of herself continuing through time from her past into her future.
2.
Imagination and Regret
Of course, memory is not always agreeable. George Eliot once wrote, “the
happiest women, like the happiest nations, have no history.”4 Why happiest?
Because regrets and recriminations are the fruit of reflection on the past.49 How-
ever, while regret is, surely, an unpleasant emotion to experience, it plays a cen-
tral role in responsible moral deliberations.5”
At the core of moral agency is a cycle of self-reflective projection and ret-
rospective assessment. One imaginatively projects oneself (one’s decision and
action) into the future and one retrospectively assesses one’s action. One
resolves on patterns of action to achieve one’s ends and purposes and through
these deliberate actions one’s character unfolds. Each of us cares how things
turn out because we have a great deal invested in these ends. One’s character
and sense of identity are at stake. Consequently, from time to time we take a
critical look in retrospect at our behaviour and habits.
471 borrow the image from Anne Riophe, “The Politics of Anger” (1986) 1 Tikkun 8 at 18.
4 8G. Eliot, The Mill on the Floss, ed. by G.S. Haight (Oxford: Clarendon Press, 1980) bk 6,
c. 3 at 338.
4 9Blanche Du Bois gives a clue to the puzzle Eliot raises: “Crumble and fade and –
regrets –
recriminations … ‘If you’d done this, it wouldn’t have cost me that.’ …” T. Williams, Streetcar
Named Desire, scene 9.
501 take my cue here from S. Hampshire, Thought and Action (Notre Dame: University of Notre
Dame Press, 1983) at 240-43.
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Moreover, our resolves are always partial and incomplete. Virginia Woolf
once said that “one never [fully] realizes an emotion at the time. It expands
later; and thus we don’t have complete emotions about the present, only about
the past.”‘” She, of course, exaggerates. But to a degree she is right, and what
she says is more true of our actions. Concerning some actions it is only later,
long after the event, after reflection, that we understand what we were doing.
Our resolutions, choices, and actions on them are incomplete not only in the
sense that they need the details to be filled in, but also that they need maturing.
Maturing calls for greater knowledge of one’s world and deeper knowledge of
oneself, of what the story of one’s life up to this point comes to. Charles Taylor
reminds us that one “need[s] time and many incidents to sort out what is rela-
tively fixed and stable in [one’s] character, temperament, and desires from what
is variable and changing …- 52 This self-understanding comes through reflection
on one’s experience and action over time. 3 Moral deliberation, then, is not sim-
ply a matter of setting oneself on a course for the future, it is a matter of fitting
one’s present and future action into a pattern of action and experience that has
some incomplete and maturing meaning.
This is so even when reflection forces one to acknowledge that the pattern
of action must be turned acutely in some new direction. The capacity for regret
is indispensable here. Not only must one be able to plot out the pattern of
actions and consequences in the past and project it into the future, as if one were
telling the life of a character in the novel, but one must also be able to see one-
self in that past, to see it as one’s own story –
both the agreeable and the dis-
agreeable episodes. Nietzsche reminds us how difficult this can be: “‘I have
done that,’ says my memory. ‘I cannot have done that,’ says my pride, and
remains inexorable. Eventually – memory yields.”‘ Yet, Nietzsche’s pessi-
mism notwithstanding, regret’s mandate holds one to a standard of integrity and
of responsibility to one’s past. Thus, moral deliberation depends essentially
51V. Woolf, quoted in M. Warnock, Memory (London: Faber & Faber, 1987) at 112.
52C. Taylor, Sources of the Self (Cambridge: Harvard University Press, 1989) at 50.
53 The past only comes back when the present runs so smoothly that it is like the sliding
surface of a deep river. Then one sees through the surface to the depths. In those
moments I find one of my greatest satisfactions, not that I am thinking of the past; but
that it is then that I am living most fully in the present. For the present when backed
by the past is a thousand times deeper than the present when it presses so close that
you can feel nothing else, when the film on the camera reaches only the eye” (V. Woolf,
“A Sketch of the Past” in Moments of Being, ed. J. Schulkind (London: Hogarth Press,
1985), quoted in Warnock, supra, note 51 at 136).
54F. Nietzsche, Beyond Good and Evil, trans. W. Kaufmann (New York: Vintage Books, 1966)
s. 68 at 80. Kaufmann notes the influence of Nietzsche, and of this passage in particular, on Freud.
W. Kaufmann, Nietzsche: Philosopher Psychologist, Antichrist, 4th ed. (Princeton: Princeton Uni-
versity Press, 1974) at 182-83. Freud quotes the passage in “Psychopathology of Everyday Life”
in The Basic Writings of Sigmund Freud, ed. by A.A. Brill (New York: The Modem Library, 1938)
35 at 103 n. 1.
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upon a sense of the past, because moral deliberation is deliberation of agents
who care about the integrity and meaningfulness of their actions over time,
because they care about who they are as this unfolds over time, and because
they want to be involved actively in shaping who they are.
B. The Past and Reasons for Present Action
A second respect in which the past is essential to present individual delib-
eration arises from the fact that our decisions and commitments in the past cre-
ate for us present reasons for action. Our lives only take shape in and over time.
The self is what it is in virtue of what it is in time. This gives a certain practical
bias to past decisions and actions. The shape one’s life or self takes over time
is given in the mold of one’s aims and goals –
aims and goals which we judge
to be worthy of our commitment.5 5 These commitments project one into a struc-
tured and meaningful future and provide one with reasons for acting as that
future is traversed. I will consider two contexts in which this appears to be true.
1.
Voluntary Commitments
Consider, first, commitments voluntarily and intentionally undertaken. One
may explicitly promise, or consent, or join an organization, and one may do so
because the project or goal or organization is worthy of one’s support. Never-
theless, it is important to acknowledge that one has reason to follow through on
these commitments in virtue of this act of commitment or exercise of will, not
solely in virtue of the merits of the goals or projects involved, but rather in vir-
tue of the fact that those reason-grounded goals play a role in the shaping of
one’s life. Insofar as those goals give meaning and direction to one life, they
provide one with reasons which transcend the reasons or value inherent in the
goals which first attracted one to them. This is not to say that rejection or mod-
ification of these goals is never appropriate. But it is to say that, from the point
of view of an agent, they can be abandoned or substantially modified only for
reasons coherent with the overall set of goals that give shape to that agent’s self.
Thus, these are not only reasons additional to those arising from the merits of
the goals themselves, they are also different in kind from them. They are reasons
of a more direct and personal kind.56
domn, supra, note 33 at 140-43 & 298-305.
550n the reason-grounded character of our important aims and goals see The Morality of Free-
56In recent philosophical jargon, they are “agent-relative” reasons. See D. Parfit, Reasons and
Persons (Oxford: Oxford University Press, 1984) at 55; A.K. Sen, “Rights and Agency” (1982)
11 Phil. & Pub. Aff. 3.
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Let me illustrate the special character of these reasons.s7 On the first anni-
versary of her mother’s death, in a reflective mood and thinking of her mother’s
example, Jean resolves to support the local fund for the homeless during the
next year. A year later, again moved to reflection on the anniversary of her
mother’s death, Jean realizes with shame that her resolve has entirely slipped
her mind. There is an important difference between Jean’s assessment of her
actions on these two anniversaries. It is not that the needs of the homeless have
changed. After her resolve, people may have been in no greater need than before
it. Both in the year before the first anniversary of her mother’s death and in the
year after it, Jean did not contribute and the needs of some people were not met
that could have been met. But on the second anniversary of her mother’s death,
Jean is forced to admit that she failed. Her resolution the previous year turned
omission into failure. Her commitment created for her new possibilities of suc-
cess as well as failure, it created new reasons for her. During the year, Jean had
reason to write out a check to the homeless fund, not only because the needs of
the homeless were great at that time, but also because this need had a special
significance in her life in virtue of her resolve and its meaning to her. Her com-
mitment to this project gave her reason in mid-year to write the check. It was
not her exercise of will that created this new reason; it was, rather, the fact that
in making her resolve Jean had given a certain determinate shape to her life. The
reasons her resolve gave her are rooted in the meaningfulness of living out that
life over time. The power of these reasons from the past to shape present and
future decisions is drawn from the fundamental demand of personal integrity, a
demand which is continuous over time, because the self enjoys integrity only in
and over time.
2.
Loyalty
The past has significance for us in this way not only through projects and
commitments voluntarily and intentionally undertaken, but also through histor-
ically evolving relationships, many of which are at most semi-voluntary.58 Our
at 385-86.
571 use and modify an example employed by Raz. See The Morality of Freedom, supra, note 33
58Wendell Berry in a wonderfully nuanced passage captures the combination of choice, chance,
and history that shapes our most important relationships. Andy Catlett, wandering about at loose
ends in San Francisco, comes to see that he must return to his life in rural Kentucky. “On the verge
of his journey,” writes Berry,
he is thinking about choice and chance, about the disappearance of chance into choice,
though choice be as blind as chance. That he is who he is and no one else is the result
of a long choosing, chosen and chosen again. He thinks of the long dance of men and
women behind him, most of whom he never knew, some he knew, two he yet knows,
who, choosing one another, chose him. He thinks of the choices, too, by which he chose
himself as he now is. How many choices, how much chance, how much error, how
much hope have made that place and people that, in turn, made him? He does not know.
He knows that some who might have left chose to stay, and that some who did leave
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personal histories are not only records of commitments we undertake, but also
stories of relationships which take shape, meaning, and value for us over time
through shared experiences. This is the theme of Graves’s poem, “Two
Fusiliers.”
And have we done with War at last?
Well, we’ve been lucky devils both,
And there’s no need of pledge or oath
To bind our lovely friendship fast,
By firmer stuff
Close bound enough.
Show me the two so closely bound
As we, by the red bond of blood,
By friendship, blossoming from mud,59
When human beings live together, Aristotle tells us, it is not like cows sharing
a pasture. For us, shared experience yields a common past with a common sig-
nificance because it engenders, and is further enriched by, common perception
and common discourse (koinonein logon kai dianoias).6 The comrades in Gra-
ves’s poem lived through the events of war together. These shared actions and
experiences acquired a common meaning. Through their experiences and
actions, and their common reflection on them, something new came into being
of which they were both a part, something intrinsically valuable to them, to
which they both found themselves committed.
Over time, relationships take shape, acquire their own distinctive outlines,
meaning, and value. Such relationships generate their own duties of loyalty.
Duties of loyalty are justified by appeal to the (agent-relative) value of the rela-
tionship to its partners; however, the justification is not instrumental, for the
duties are constitutive of that relationship.6 Fulfilling the duties of loyalty in a
relationship is a way of being true to the relationship and of keeping faith with
the other partners in the relationship by being true to that which has common
significance and value for them.
Thus, obligations and responsibilities that arise out of shared history are
concrete forms in which we keep faith with each other and with that which we
create together. This form of moral causality may still seem mysterious, but it
is really no more mysterious than the moral causality of promise making.
chose to return, and he is one of them. Those choices have formed in time and place
the pattern of a membership that chose him, yet left him free until he should choose
it, which he did once, and now has done again (W. Berry, Remembering (San Francisco:
North Point Press, 1988) at 60 (emphasis added)).
59R. Graves, “Two Fusiliers” in Fairies and Fusiliers (New York: Alfred A. Knopf, 1919), 19.
6Aristotle, Eudemian Ethics, 1244b24-26 and Nichomachean Ethics, 1170b11-12.
61The Morality of Freedom, supra, note 33 at 353-57.
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Surely, the mystery of self-binding promises is not dispelled by observing that
promises generate obligations in virtue of the more general moral principle that
promises are to be kept. Indeed, if there is a plausible deep explanation of the
binding character of promises, it lies, I believe, not in the utility of the practice,
but in the fact that it is one form among others of keeping faith with each other.
That is, promissory obligations and obligations arising from a common past,
while different in important ways, represent two ways of keeping faith with, and
concretely expressing our recognition of, other human beings to whom we are
related in significant ways.
1. Communal Obligations, Law, And Precedent
A. Communal Relations and Obligations of Co-Members
The above analysis of the moral presence of the past in the individual case
suggests a line of argument for the social or communal case. The extension of
the argument to the case of communal obligations must be done with care. Com-
munal obligations arise out of the complex overlapping and crisscrossing rela-
tions among individual members. These relations have a horizontal dimension,
relating member to co-member, and a vertical dimension, relating the commu-
nity as a whole (and in particular, those institutions that speak and act for the
community) to individual members. The thesis I shall now defend on the basis
of the analogy to the argument in the individual case is that we can trace the
importance of the moral presence of our past, and of precedent in particular, to
the duty to keep faith with each other, in both dimensions of our communal
relations.
I begin with the observation that genuine communities are historical com-
munities. They differ from merely notional communities, or accidental aggre-
gates of people, in that their members share a history. Genuine communities
take on projects and commitments and develop identities as certain kinds of
community directed towards certain ideals and visions –
all of this only
through their history, the history of the activities and the sufferings, the interac-
tions and the practices of their members. Through their histories the moral sub-
stance of genuine communities congeals. If a sense of the past is essential for
the moral deliberation of individuals, it is also important to deliberation of com-
munities. If we, in and through the communities we constitute, are to deliberate
and act purposively and responsibly in time, we must be able to see our com-
mon actions as fitting into meaningful patterns and practices through time. The
hopes, aims, projects, and values we hold as a community take shape through
our common deliberation, discourse, and activity over time. We are what we do
together.
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1177
Our common past is important to us for a further reason: it shapes the obli-
gations and responsibilities that we members have to one another as
co-members. Our commitments, not only the commitments of the community
regarded collectively, but also individually as members to members, are projec-
tions from our common past. The content and scope of our mutual obligations
and responsibilities within a community – what exactly we are called upon to
do and with regard to whom –
are determined by the history of our interactions
and practices and those of the community more generally. We have obligations
to others as co-members in virtue of what we as a community are committed to
and in virtue of our participation in its practices. The history of these practices
is the common point of reference from which we determine what members in
this community owe each other. Acknowledging and working to fulfil these
obligations is the primary way in which we seek to keep faith with other
co-members of the community.
B. The Moral Force of Precedent
We can return now to our primary question: how are we to explain the
moral force of precedent in law? It is to be located, I believe, in a duty of loyalty
constitutive of both horizontal and vertical relations in the law’s community. I
have argued that the moral force of the past in the individual case is rooted in
the requirements of personal integrity. Something similar is true of communities
and members of communities. The integrity of a community is a function of the
quality of relationships among co-members and between the community as a
whole and its members; that is, it is a function of the quality of horizontal and
vertical relationships in the community.
Integrity in a community takes the form of an ideal of equality, not the
formal or abstract equality of treating like cases alike, but substantive equality,
equality among members in recognition of their co-membership. 2 Arguments
rooted in this ideal take the following canonical form:
Since A, a member of Society S, was treated in manner M in circumstances C,
then, B, who is also a member of S, ought, in the name of co-membership, to be
treated in the same manner.
This substantive notion of equality treats co-membership as an essential compo-
nent of the argument for equal treatment, and the nature and social meaning of
the relationships among members as a focal point of the argument.
In this notion of communal integrity and its expression in a distinctive
notion of equality, we can account for the moral force of precedent. Respect for
621 have discussed this ideal of equality in “Equality as Membership” (1990) Rechtsfilosophie
& Rechtstheorie 155.
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precedent is the form that concern for integrity of this special egalitarian sort
takes in historical communities. It is one primary way in which members of
such a community directly and indirectly keep faith with each other. The typical
form of argument from precedent is:
Since case A was decided (for reasons) in manner M in the past, case B, like A
in relevant respects, must also be decided in this manner.
This is a special case of the egalitarian argument I just identified. Past judicial
decisions, because they are taken on behalf of the community and because we
insist that they be decisions-for-reasons, bind the community as a whole in its
vertical relationships, and bind members to members in their horizontal rela-
tionships. Past decisions bind in the name of equal treatment as members and
ultimately in the name of keeping faith with each other. What equality of this
sort requires in particular cases – what the rule of a precedent case is –
is a
function of the moral coherence of the combined commitments of the commu-
nity as they have been adopted and are carried out over time.
C. Critical History
Precedent, on the account I have sketched, is a way members collectively
and individually keep faith with other members of their communities. It is also
an invitation to members of a community to argue about what exactly they are
committed to as a community. The prophet Isaiah set the motto for this essay:
“Put us in remembrance, let us argue together …”, but a sage adds a note of cau-
tion: “Shake a sieve, and the rubbish remains; start an argument, and discover
a man’s faults.”’63 We must heed the caution. The account of the moral force of
precedent I have defended also suggests some of the limits of the argument from
precedent. Being true to one’s community and keeping faith with one’s fellow
members in some cases may call for rejection of the demands of precedent.
My point of departure is Dworkin’s account of law as integrity with which
my explanation of the moral force of precedent has much in common.’ 4 For
Dworkin, a community’s past recorded in its settled law is data calling for the-
oretical reconstruction and explanation. Our task, as officials or as citizens, he
believes, is to determine what our common practice in the past commits us to
now and in the future. To determine this we need to interpret that practice,
uncover the principles and commitments implicit in its official decisions and
actions. In the name of the integrity of our community we must seek an inter-
pretation of our legal practice which, so far as possible, represents it as mani-
63Ecclesiasticus 27.4.
64R. Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986) c. 1-3 & 6-7.
1991]
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1179
festing a coherent conception of justice and fairness. Interpretation requires that
we work to show the practice in its best light, to make it the best it can be.
Dworkin readily admits that no interpretation of a complex, historically
evolving practice will be able to capture within its four corners all the activities
that go on within the practice. The best interpretation is not necessarily the one
which captures or fits the largest amount of the data. Even the best interpretative
theory of the practice may be forced to regard some parts of the practice, some
of its recognized decisions and actions, as “mistakes.” They are not, however,
our mistakes, for which we bear some responsibility. Rather, they are theoretical
anomalies, in Dworkin’s view, and therein lies the problem. Dworkin’s interpre-
tive approach asks us, for the purpose of interpreting the practice, to presuppose
that those who engage in the practice have been acting with integrity. That is,
we must assume that the practice as it presents itself historically is consistent
with its underlying principles, that participants have been behaving in a way that
is consistent with its underlying commitments, and that the only question is
what these commitments are.
There is an ambiguity in the notion of integrity as Dworkin uses it. It is
used to evaluate both the behaviour of participants in a practice taking its prin-
ciples and commitments asfixed, and as a more comprehensive evaluation of the
coherence of the behaviour in light of the coherence of its ideals or aims. This
ambiguity obscures the possibility of what Nietzsche termed “critical history,”‘6
which involves simultaneously an interpretation and an indictment of current
and perhaps long-standing behaviour of members of a community, indictment
made in terms of the commitments and ideals of that community. This view
treats “mistakes” not merely as theoretical anomalies, but as behaviour for
which participants at the time, and those who inherit the practice, are
accountable.
Dworkinian integrity, we might say, leaves no room for regret; however,
regret is an essential component of our sense of the moral presence of our past.
As in the individual case, collective memory is not always benign. Our common
past can be accusatory. Our past can complicate and threaten, it can invite
shame, regret, and remorse. Practical attention to the past is not an exercise in
theoretical explanation, but of uncovering the moral significance of that past for
our present and future. That past, all of it, including the mistakes, is ours.
The challenge of critical history, especially to national hypocrisy, is illus-
trated by a portion of Frederick Douglass’ “Fourth of July Oration” of 1852:
“What have I, or those I represent to do with your national independence,” he
demanded of the white elite.
65F. Nietzsche, On the Advantages and Disadvantages of History For Life, trans. Peter Preuss
(Indianapolis: Hackett Publishing Co., 1980) ss 2-3 at 14-22.
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Are the great principles of political freedom and natural justice, embodied in the
Declaration of Independence, extended to us?66
The existence of slavery in this country brands your republicanism as a sham, your
humanity as a base pretense, and your Christianity as a lie.67
This Fourth of July is yours not mine. You may rejoice, I must mourn.6 8
This is prophetic memory forcing the nation to take an honest, inclusive look at
its past, forcing it to face its hypocrisy. The power of this criticism comes pre-
cisely from the fact that the principles it appeals to are historically grounded in
the nation. Douglass condemns the practice of slavery not sub specii aeternita-
tis, but from the perspective of the errant nation’s own principles, from the prin-
ciples of humanity, liberty, and community which the national holiday purports
to celebrate. His penultimate sentence: “This Fourth of July is yours not mine”
is powerful, precisely because Douglass stands as marginal within this commu-
nity, and not as an outsider to it.
Argument from precedent in a community takes seriously the community’s
past, as it is represented in the past decisions of its members and officials. Inev-
itably such arguments form around competing interpretations of the record of
legal memory and its implications for the community’s present and future
actions. But argument from precedent is not sufficient in a community. It must
be complemented with a practice of critical history. If members are to take their
community’s history as normative for their dealings, that community must own
up to its past, look back at the roads not taken and the suffering it has caused,
and hold itself accountable for them. This, to be sure, is no guarantee of the jus-
tice of its institutions or righteousness of its policies, but it, joined with argu-
ments from precedent invoking the ideal of equality as membership, guarantees
a point of contact for the demands of justice in the concrete political life of a
community.
66F. Douglass, “Fourth of July Oration” in What Country Have I? Political Writings by Black
Americans, H.J. Storing, ed., (New York: St. Martin’s Press, 1970) 28 at 32.
671bid. at 31.
6Slbid. at 36.
Toward the Feminization of Collective Bargaining Law
Gillian Lester
Canadian collective bargaining law is flawed
because it fails to address the concerns of a
substantial segment of the work force and
overlooks women as a rich source of insight
into the dynamics of the bargaining environ-
ment. The author begins by exploring the
problems inherent in the classical contractua-
list model, arguing that current collective bar-
gaining law reflects these weaknesses and
echoes a morality and ideology which are
stereotypically masculine. By analyzing the
legal and practical structures of collective bar-
gaining, the author illustrates the ways in
which the “morality of the workplace” is man-
ifested differently between men and women.
The author then examines the ideological dif-
ference between public and private work, dis-
cussing how this distinction situates women as
subordinate to men and its effects on the
unionized workplace. Moving to an analysis of
dispute resolution, certification, unfair labour
practices and bargaining unit determination,
the final part of the article is devoted to sug-
gestions for structural change in collective bar-
gaining law. The author proposes ways in
which feminist insight can be used to replace
the current oppositional structure of collective
bargaining with more cooperative mechanisms
for resolving disputes.
Le droit relatif A la n6gociation de conventions
collectives est d6ficient en ce qu’il ignore une
portion consid6rable de travailleurs et n’appr-
cie pas l’importance des perspectives f6mini-
nes dans la dynamique des n6gociations. L’au-
teur d6velope cette these en examinant d’abord
les faiblesses propres au module contractuel
classique qu’elle dit se refl6ter dans le droit du
travail actuel, et qui reproduisent une id6ologie
et une moralit6 typiquemment masculine. En
analysant les structures 16gales et pratiques de
la n6gociation de conventions collectives, l’au-
teur illustre comment la << moralit6 du contexte
de travail >> se manifeste diff6remment chez les
hommes et les femmes. L’auteure examine
ensuite les diff6rences id6ologiques entre le
travail public et priv6, distinction qui subor-
donnent les femmes aux hommes, et ses cons6-
quences dans le contexte du travail syndiqu6.
Elle passe ensuite A une analyse de la r6solu-
tion de griefs, de l’accr6ditation, de la d6termi-
nation de l’unit6 de n6gociation et des pra-
interdites afin de sugg6rer des
tiques
changements d’ordre structurel au droit de la
n6gociation de conventions collectives. L’au-
teur propose des m6canismes qui permettraient
l’adoption de perspectives f6minines afin de
remplacer le module contradictoire de la n6go-
ciation, tel qu’il existe pr6sentemment, par une
structure coop6rative de r6solution des
conflits.
* J.S.D. Candidate, Stanford Law School. I gratefully acknowledge Jody Freeman, Robert
Howse and the anonymous reviewers for the McGill Law Journal for their helpful criticism and
suggestions with respect to earlier versions of this article, and Chris Black for her word processing
assistance. Special thanks to Patrick Macklem for his tireless encouragement and insightful
comments.
McGill Law Journal 1991
Revue de droit de McGill
1182
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[Vol. 36
Synopsis
Introduction
I.
Theory of Contract
A. Morality
B.
Ideology
H. Collective Bargaining
A. The Goals of Collective Bargaining
B. Critiques of Collective Bargaining
C. Women and Collective Bargaining
1. Morality Revisited
Ideology Revisited
2.
II. Toward Structural Change: Selected Aspects of Collective Bar-
gaining Law and Possibilities for Reform
Conclusions
Introduction
Collective bargaining law, though laudable in its aspiration of fostering
autonomy among workers in relation to their employers and the state, is flawed.
It is flawed in part because it fails adequately to address the concerns of a sub-
stantial segment of the Canadian workforce.’ It is also flawed because it over-
looks a rich source of insight into the dynamics of organization and relationship
in the bargaining environment. This source is women.
In this article, I suggest that because collective bargaining is formulated
within a classical contractualist understanding of human interaction, its prem-
ises are incompatible with an alternative worldview emerging in the writings of
feminist scholars. I begin by proposing that two elements of classical contrac-
‘The Canadian workforce is 43% female. Seasonally adjusted figure as of December 1989: Sta-
tistics Canada, The Labour Force (Ottawa: Minister of Supply and Services Canada, January 1990)
B-3.
1991]
COLLECTIVE BARGAINING
1183
tualism, its morality2 and its ideology,3 are fundamentally at odds with this alter-
native vision. Contractualism presumes a form of social relationship which is
intrinsically oppositional, and which draws sharp distinctions between public
and private life. Critics of collective bargaining have argued that the system
betrays its contractualist foundations, or more specifically, that it replicates the
very errors of contractualism that it was designed to defeat. I take this argument
further, and propose that to the extent that collective bargaining does echo the
failures of contractualism, it also echoes a morality and ideology which are
stereotypically masculine.
In order to illustrate my thesis, I examine the legal and practical structures
of collective bargaining. I investigate, for example, what I will call “workplace
morality,” focusing on the ways in which that morality is manifested differently
between men and women. In addition, I draw upon the types of work women
perform and the nature of their participation in unions to illustrate how the ideo-
logical distinction between public and private, which situates women as subor-
dinate to men, is reflected in the structure of the unionized workplace. In the
final part of this article, I explore four aspects of collective bargaining –
dis-
pute resolution, certification, unfair labour practices, and bargaining unit deter-
mination. I suggest ways in which feminist insights can inform changes to
replace the current approach with a less oppositional conception of collective
bargaining.
I. Theory of Contract
The common law of employment is based on classical notions of contract:
the employee bargains freely with the employer to determine the terms of an
exchange of labour for remuneration. This private relationship is insensitive to
inequalities between the parties and, for this reason, the common law has often
produced inequitable outcomes between frequently wealthy employers and less
powerful employees. Collective bargaining law developed as a response to this
and other inadequacies in the common law of employment. Nevertheless, for
most Canadians, the common law is still the primary institution governing the
employment relationship, supplemented by statutorily imposed standards such
as minimum wage requirements, restrictions on the duration of the work week,
and maternity provisions. Even where collective bargaining law applies, the
2When I use the word “morality” in this article, I am not using it in the sense of human virtue
or ethics. Rather, I use it to describe one’s perception of self in relation to other persons and things.
31 use the word “ideology” to describe the ideas which characterize a social or political system.
I argue in this article that collective bargaining is an example of a social/political system shaped
by a particular ideology. Morality and ideology, as I refer to them, are closely related concepts. The
morality of individuals gives rise to their social ideology. In a hierarchical society, the prevailing
ideology is likely to reflect the morality of the dominant class of persons.
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[Vol. 36
essential relationship between the parties is still one of contract, albeit in mod-
ified form.
The contractualist model infusing the common law of employment hails
market ordering as the path to individual and social freedom. Freedom in eco-
nomic arrangements is seen not only as an efficient means of structuring a cap-
italist society, but also, and more importantly, as an ideology unto itself. Milton
Friedman describes it as such: economic freedom constitutes freedom of action
per se, and also is an indispensible instrument in achieving political freedom,
that is, freedom of the market from state intervention.4 The contract envisaged
by proponents of private market exchange is between equally powerful, con-
senting parties who have adequate information to make a reasoned choice.5 Crit-
ics of contractualism, most notably in the legal realist tradition, have argued that
classical notions of contract flowed from a modem myth that freedom was
embodied in capitalist ideology.6 The myth, however, led to a perversion of the
original ideal of freedom, and has come to permit legal coercion through con-
tract law under the pretense of maximizing freedom.7 This is so, it is argued,
because the state exercises the prerogative to enforce or not to enforce a con-
tract, based on paternalistic notions of what constitutes “freedom.” Therefore
the contract itself, supposedly the centrepiece of the private law regime and thus
free from public constraint, becomes tantamount to a regulatory system. The
determination of “freedom” ultimately is reduced to a judicial assessment of the
appropriate exercise and distribution of power in the market.8
A. Morality
Contractualism is based on the presumption that all persons share a com-
mon understanding of the moral individual. I believe this understanding of
morality is stereotypically masculine.9 A “masculine” conception of self infuses
traditional notions of contract with a corresponding bias. Freedom of contract
presumes a shared understanding that the liberty to pursue individual interests
is an essential aspect of freedom.” This morality runs deep in contemporary
4M. Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962) at 8.
5J.M. Feinman, “The Significance of Contract Theory” (1990) 58 U. Cin. L. Rev. 1283 at 1286.
6For a comprehensive review of the contributions of the legal realists to the criticism of classical
theory of contract, see J.W. Singer, “Legal Realism Now” (1988) 76 Cal. L. Rev. 465 at 482-95.
71bid. at 495. See also, P. Gabel & J. Feinman, “Contract Law as Ideology” in D. Kairys, ed.,
8Singer, ibid. at 486.
9When I use the term “masculine,” I do not mean that all men necessarily have only masculine
qualities or that women cannot be masculine. I refer to the common social understanding, or the
archetype, of what is appropriately masculine, i.e., the manner in which boys and men are taught
to think and behave.
The Politics of Law (New York: Pantheon, 1982) 172 at 176.
‘0R.A. Posner, The Economics of Justice (Cambridge: Harvard University Press, 1981) at 90.
The modem liberal conception of freedom of contract is generally thought to find its genesis in
1991]
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contractualist discourse. Even those who distance themselves from an unapolo-
getic defence of self-interest reveal this bias. For example, Charles Fried’s reac-
tion to the individual liberty argument put forth by Friedman is to eschew self-
interest as the moral basis of one’s obligation to keep a promise. Rather, he
argues, the obligation stems from respect for trust and the autonomy of others.
Ultimately, though, Fried’s response is anchored to the presumption that this
regime is a necessary harness for men and women in what otherwise would be
a “jungle of unrestrained self-interest.”” Anthony Kronman seeks to modify the
Hobbesian state of nature (the unregulated state, which is a “war of every man
against every man”) by incorporating into it the necessary ingredients of coop-
eration and mutualism in relations of exchange.’ Nevertheless, the state of
nature remains an inherently risky place where all contracting parties must pro-
vide for their own protection and maximize their own ends. 3 For both Fried and
Kronman, whose work I have set out as examples of broader, more flexible
approaches to contractarian thinking, the independent, atomistic individual is
still the primary unit in social relations.
Contractarian thinking, as I discussed earlier, has met with spirited criti-
cism. Among the critics are communitarians, who challenge the doctrine for its
failure to recognize community as relational, contextual, and conducive to coer-
cive, interdependent exchanges. 4 Communitarians raise important arguments
which question the legitimacy of the free market model. Indeed, feminist and
communitarian sympathies are often closely aligned in their shared challenge to
the liberal presumption that individualism is the path to self-fulfillment. How-
ever, while feminists may glean considerable insight from communitarian schol-
arship, there nevertheless are significant distinctions to be made between the
two families of discourse.
The work of several feminists is helpful in examining the difference
between communitarian and feminist conceptions of the self. It has been argued,
the treatises of Thomas Hobbes and John Locke. See T. Hobbes, Leviathan (1651) ed. by M. Oake-
shot (Oxford: Basil Blackwell, 1960) and J. Locke, Two Treatises of Government (1690), ed. by
P. Laslett (Cambridge: Cambridge University Press, 1967).
” C. Fried, Contract as Promise: A Theory of Contractual Obligation (Cambridge: Harvard Uni-
Law” [1985] Wisconsin L. Rev. 565.
versity Press, 1981) at 14.
12A.T. Kronman, “Contract Law and the State of Nature” (1985) 1 J. L. Econ. & Org. 5.
131bid. I should note that one of the ways in which Kronman suggests individuals can reduce
their risks is through union with another, i.e., by “taking steps to increase the likelihood that each
will see his own self-interest as being internally connected to the welfare of the other” (supra at
20). However, in the end, he affirms that the state of nature is inescapable: even union “is likely
to result in the internal replication of those same conflicts it was intended to overcome” (supra at
30).
14R.W. Gordon, “Macaulay, Macneil and the Discovery of Solidarity and Power in Contract
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for example, that communitarianism is dangerous because it threatens to deny
the legitimacy of difference.’
Iris Marion Young suggests that “the desire for
mutual understanding and reciprocity underlying the ideal of community is sim-
ilar to the desire for identification that underlies racial and ethnic chauvinism.”‘ 6
Donna Greschner rejects the determinism she sees as inherent in communitar-
ianism.”7 She contends that
[flor the vast majority of women, remaining true to the traditions of their birth
communities (or even voluntary communities such as universities, let alone pro-
fessions such as law) would mean they would never be feminists. To paraphrase
Simone de Beauvoir, one is not born but rather becomes a feminist. If the commu-
nitarian conception of self is that we are completely constituted by our communi-
ties, that we cannot escape the traditions into which we are born, that all we can
do is continue the narratives and practices, then that conception is anti-feminist.1 8
Greschner, however, does not deny that community and connection are funda-
mental constituents of the self. Rather, she describes the negotiation of one’s
identity as a process involving the constant rejection of old connections and
forging of new ones. 9 This position, it seems, occupies a space somewhere
between liberalism and communitarianism. Yet it would be simplistic to charac-
terize such a position as merely hybrid and without any distinguishing insight.
Jennifer Nedelsky ventures to formulate her feminist vision of the self as simul-
taneously autonomous and inseparable from the dense weave of social context.20
She uses the term, “finding one’s own law,” to describe the process of achieving
personal autonomy. Her notion of autonomy is distinct from liberal autonomy.
She suggests that “[t]he idea of ‘finding’ one’s own law is true to the belief that
even what is truly one’s own law is shaped by the society in which one lives
and the relationships that are part of one’s life.”21
Robin West is bolder than most feminists in that she freely attributes diver-
gent conceptions of self to nature.22 West distinguishes between the cultural
15See, e.g., I.M. Young, “The Ideal of Community and the Politics of Difference” in L.J. Nichol-
son, ed., FeminismnlPostmodernism (New York: Routledge, 1990) 300 and S. Williams, “Femi-
nism’s Search for the Feminine: Essentialism, Utopianism, and Community” (1990) 75 Cornell L.
Rev. 700 at 708.
16young, ibid. at 311.
17D. Greschner, “Feminist Concerns with the New Communitarians: We Don’t Need Another
Hero” in A. Hutchinson & L. Green, eds, Law and the Community: The End of Individualismn?
(Toronto: Carswell, 1989) 119.
“5Ibid. at 135.
‘9 bid. at 138.
20J. Nedelsky, “Reconceiving Autonomy: Sources, Thoughts and Possibilities” (1989) 1 Yale J.
21Ibid. at 10.
22R. West, “Jurisprudence and Gender” (1988) 55 U. Chi. L, Rev. 1.
L. & Fern. 7.
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feminist,’ and communitarian notions of connection between self and commu-
nity. She contends that while communitarians aspire to connectedness, cultural
feminists believe women already possess it. In West’s view, connection for corn-
munitarians is a device for achieving self-fulfillment, while for cultural femi-
nists, it is an expression of their true selves.24 West interprets the communitarian
quest for love and intimacy in societal relations as a reaction against men’s fun-
damental, existential state of being: individuation, or the feeling of separation
between self and other.
West is criticized by some feminists for her reliance on biology. Her posi-
tion is threatening to them because she makes the essentialist claim that women
are inherently and materially different from men. She sees women as “essenti-
ally connected” to the rest of humanity through the processes of pregnancy,
childbirth and lactation; this material connection replicates itself “existentially,
through moral and practical life.”‘ Most North American feminist legal theo-
rists are wary of essentialist claims, fearing that an emphasis on difference
serves only to encourage law’s tendency to objectify, and thus to perpetuate the
domination, disadvantage and disempowerment of women.26 In addition, essen-
tialism has been criticized on the grounds that highlighting gender as the basis
for women’s oppression results in the de-emphasis of differences in experience
‘3Ibid. West’s “cultural” feminism is mainstream feminism, and it is this I often mean when I
use the generic term, “feminist.” Carol Gilligan, discussed below, is cited as typical of cultural fem-
inists (supra at 14). In contrast, West refers to Andrea Dworkin and Catharine MacKinnon as “rad-
ical” feminists who prize “individuation” and view intimacy as a form of collaboration with patri-
archy (supra at 43). Individuation, however, is not to be confused with liberal autonomy:
individuation “is the right to be the sort of person who might have and then pursue one’s own
ends,” while liberal autonomy is simply “one’s right to pursue one’s own ends.” Radical femi-
nism’s individuation precedes autonomy (supra at 42).
24Quaere, however, whether the following assertion by Michael Sandel represents a communi-
tarian vision that surpasses mere aspirational thinking:
And insofar as our constitutive self-understandings comprehend a wider subject than
the individual alone, whether a family or a tribe or a city or class or nation or people,
to this extent they define a community in a constitutive sense. And what marks such
a community is not merely a spirit of benevolence, or the prevalence of communitarian
values, or even certain ‘shared final ends’ alone, but a common vocabulary of discourse
and a background of implicit practices and understandings within which the opacity of
persons is reduced if never finally dissolved (M. Sandel, Liberalism and the Limits of
Justice (Cambridge: Cambridge University Press, 1982) at 172-73).
Perhaps West would (I think somewhat tenuously) characterize his acknowledgement of shared
final ends, or more likely, his concession that the opacity of persons may never finally be dissolved,
as evidence that his experience of connectedness will never be more than aspirational.
25West, supra, note 23 at 3. This view is shared by many French feminists; for a collection of
French feminist thought in this area, see C. Duchen, ed., French Connections: Voices From the
Women’s Movement in France (Amherst: University of Massachussetts Press, 1987), in particular,
Annie LeClerc’s essay, “Woman’s Word,” supra, 58.
26See, for example, A.C. Scales, “The Emergence of Feminist Jurisprudence: An Essay” (1986)
95 Yale L.J. 1373 at 1376.
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among women,27 and misstates the constraints of gender as a problem which is
uniquely women’s, rather than one shared by both men and women.2
While it may be dangerous to rely on determinism rather than socialization
in theorizing about morality, it would appear to me to be more dangerous still
to construct a rigid dichotomy between the two. If the self is recognized as the
product of an interaction between social organization, biology and the physical
environment, gender difference must be seen as something more complex than
merely a manifestation of determinism or socialization alone.29 I do think that
the essentialist/anti-essentialist debate is collateral, in many respects, to the cen-
tral project of social change shared by all feminists.
Nevertheless, I tread cautiously when using the terms “masculine” and
“feminine” to characterize differing moralities and ideologies. In using these
terms, I speak of socially recognized archetypes. It would be inimical to my the-
sis to convey that I believe these archetypes preclude social change. I do, how-
ever, as I explain further below, accept as a premise that traditional social insti-
tutions privilege archetypically masculine over feminine rituals and
conventions.
I suggest that archetypically masculine assumptions regarding what consti-
tutes the individual, and what constitutes rationality, inform traditional notions
of contract and as such make the regime of contract one which typically fails
for women. The model contracting person is impartial and can remove himself
from his context in order to assess his situation. Many feminist philosophers
urge us to recognize that the universality of efficiency, consistency and self-
interest is a fictional notion.3″ This fiction ignores traits such as affectivity, pas-
sion and desire, often associated with the private world of women, in the cre-
ation of social policy and justice.
27See, for example, A. Harris, “Race and Essentialism in Feminist Legal Theory” (1990) 42
Stan. L. Rev. 581; M. Minow, “The Supreme Court, 1986 Term – Forward: Justice Engendered”
(1987) 101 Harvard L. Rev. 10 at 34-37; and Z. Eisenstein, The Female Body and the Law (Berke-
ley: University of California Press, 1988) at 38.
(Brighton: Harvester, 1983).
Modernism and Gender Relations in Feminist Theory” (1987) 12 Signs 621 at 629.
2K.T. Bartlett, “Feminist Legal Methods” (1990) 103 Harvard L. Rev. 829 at 876; J. Flax, “Post-
29For a rich discussion on this subject, see A. Jaggar, Feminist Politics and Human Nature
3 0See, for example, J. Grimshaw, Philosophy and Feminist Thinking (Minneapolis: University
of Minnesota Press, 1986) at 195-204; M. Minow & E. Spelman, “Passion for Justice” (1988) 10
Cardozo L. Rev. 37; R. Poole, “Morality, Masculinity and the Market” (1985) 39 Rad. Phil. 1 at
22; and I.M. Young, “Impartiality and the Civic Public,” in S. Benhabib & D. Cornell eds, Fem-
inism as Critique: Essays on the Politics of Gender (Minneapolis: University of Minnesota Press,
1987) 56 at 58.
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Some feminists maintain that women take a different approach than men
to solving problems and resolving disputes.” Mary Joe Frug examined this
hypothesis in the contract context. 2 In a particularly illustrative example, she
describes a standard form contract case in which a court enforced the obligation
of a woman who signed a bill of lading without reading the fine print.3 The
footnotes to the judgment reveal that the woman testified she signed the contract
hastily because the men who delivered her goods were cold and tired and in a
hurry to leave. Her actions were thus shaped by what could be called a typically
a concern and sympathy for the discomfort of the
female personality trait –
workers. Frug analyzes the case in terms of relations of power:
it reveals that traditional contract doctrine, by treating the parties as if they had an
adversarial relationship, implicitly rejects the more cooperative way in which
many women have traditionally experienced power and knowledge. The major
form of power available to most women, given the kind of work they have done,
has been the power to nurture and share…. [Tihe court’s rhetoric of freedom of
choice in Allied is simply another way of exercising power.34
Katharine Bartlett avoids posing feminine “contextualized” reasoning as
the polar opposite of abstract male thinking.35 Instead, she uses the term “fem-
inist practical reasoning” to describe a mental process in which the problem
solver considers factors beyond the minimum required to reach an answer, yet
also sees rationality and abstraction as legitimate and essential tools in solving
the problem. Thus the feminist practical reasoner will recognize the diversity in
human experience, state her moral assumptions and political partiality, and seek
to integrate her emotive and intellectual faculties. I think this approach is par-
ticularly well-suited to the present enterprise. It supports the idea that, while it
may be dangerous to overstate the role of nature in distinguishing men and
women, “feminine methods” can foster a brand of justice which is more inte-
grated, responsive to diversity, and ideally, accessible to men as well as
women.36
31By now, a reference to the work of Carol Gilligan has become almost rhetorical in feminist
writing. Gilligan presented a moral dilemma to children and asked them to solve it. On the basis
of their differing responses, she concluded that girls and women tend to solve moral dilemmas by
exploring their connection to others and relations of care within the community, while boys and
men tend to rely on abstract notions of individual justice. C. Gilligan, In A Different Voice (Cam-
bridge: Harvard University Press, 1982).
32MJ. Frug, “Re-Reading Contracts: A Feminist Analysis of A Contracts Casebook” (1985) 34
Am. U. L. Rev. 1065. For another feminist treatment of contract doctrine, see C. Dalton, “An Essay
in the Deconstruction of Contract Doctrine” (1985) 94 Yale L.J. 997.
33Allied Van Lines Inc. v. Bratton, 351 So.2d 344 (Fla., 1977), discussed in Frug, ibid. at
1125-34.
34Frug, ibid. at 1133-34.
35 Bartlett, supra, note 28 at 854-58.
36In this vein, see also Drucilla Cornell’s treatment of difference in an article where she states
that “[w]ithout in any way denying how deeply imprinted our gender identity is, it is still possible
to change, and, more specifically, for men to change by allowing themselves to ‘accept’ the fem-
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[Vol. 36
B.
Ideology
The ideology of the classical liberal paradigm is as masculine as its moral-
ity. Freedom of contract depends on voluntary choice by parties entering into
relations of exchange. Choice is a difficult, multi-faceted concept which incor-
porates wealth, endowment, power, and opportunity. Critics of classical liberal-
ism have analyzed the complexity of choice, and suggested that many factors
operate to constrain the choices of an individual or a social class. For example,
the legal realist holds that by refusing to intervene in private contractual rela-
tions, the state in fact makes a normative decision.37 Specifically, the state
decides that there is justice in the pre-existing distribution of wealth, be it in the
form of property or natural attributes. Marxists have argued that the separation
of capital and labour is fundamentally coercive, and as such, represents a regime
of constrained or illusory choices.3”
If constrained choices operate to undermine freedom of contract, then for
women, that freedom is tenuous indeed. In many ways, society traditionally has
restricted the choices available to women because they are women. The concept
of choice or consent is complicated because the true voluntariness of a decision
depends on the extent to which social factors influence one’s subjective expe-
rience. Jody Freeman’s discussion of consent in the context of prostitution cap-
tures its complexity:
Consent is structural and changeable. Interpreting what consent means in a given
situation is partly objective, and partly subjective. … So when one consents, one
is both responding to and creating the meaning of the term at a particular time in
a particular context. A woman’s past experience, her socialized self-image, her
fears and expectations about sexuality –
all of these things are in play when she
says yes, no or remains silent. 39
Thus a woman’s conception of herself, immersed in a dynamic milieu of rela-
tionship and responsibility, may be manifested in an ambiguous and shifting set
of prerogatives. More concretely, a woman’s “choice” of a particular occupation
or the decisions she makes once a member of the labour force may be influ-
enced by her belief that other options are not available or appropriate.
What has come to be known as the public/private distinction further con-
tributes to the constraints on women’s choices. Contractualist ideology empha-
sizes and seeks to preserve a distinction between the public (government regu-
inine in themselves” (D. Cornell, “The Doubly-Prized World: Myth, Allegory and the Feminine”
(1990) 75 Cornell L. Rev 644 at 673).
37Singer, supra, note 6 at 482.
38See, for example, C.B. MacPherson, “Elegant Tombstones: A Note on Friedman’s Freedom”
39J. Freeman, ‘The Feminist Debate Over Prostitution Reform: Prostitutes’ Rights Groups, Rad-
ical Feminists and the (Im)possibility of Consent” (1989-90) 5 Berkeley Women’s L.J. 75 at 97-98.
in C.B. MacPherson, Democratic Theory (Oxford: Clarendon Press, 1973) 143.
1991]
COLLECTIVE BARGAINING
1191
lation) and the private (market freedom).” Both realist and Marxist critics
identify this division as central to the flaw in contractualist thinking.4″ Similarly,
most feminists adopt a modified (and in the case of essentialists, sometimes
misused) version of the public/private critique to explain the subordination of
women. However, an important distinction must be made between feminist and
other notions of the the public/private split. While others see the distinction as
being between governmental or political regulation and the private market, fem-
inists see it as being between the private family regime and the public market.4″
Since well before the industrial revolution, women have been tied primar-
ily to familial tasks, tasks related to reproduction and to the maintenance of an
environment conducive to sustaining men’s lives. Simone de Beauvoir, in her
classic text, The Second Sex, spoke of the effect of woman’s situation in the
home on her self-esteem, and its role in shaping a subordinate, even parasitic
status for women.43 The ideology of dependency has led, in Carole Pateman’s
words, to the regime of the “sexual contract.”‘ Pateman views social contract
theory as incomplete because our society adopts a patriarchal conception of sex-
ual difference in which women are subordinate to men. In this conception of
society, only men own property in their person (and they also own women).
However, ownership of one’s own person is the primary precondition to being
a subject of the original contract. Therefore, women are not “individuals” for the
purposes of the social contract (but are instead the object of the contract).4″ The
work a woman performs in the home is “labour power appropriated by her hus-
band,”46 thus, in Pateman’s view, her function becomes tantamount to slavery.
This “domestic economy” persists despite our contemporary recognition of
its oppressive effects upon women, because it serves the indispensible role of
40 However, the locus and determinants of the dividing line between public and private are sub-
ject to some debate. See R. Howse, “Dolphin Delivery: The Supreme Court and the Public/Private
Distinction in Canadian Constitutional Law” (1988) 46 U. T. Fac. L. Rev. 248 at 252-54.
“‘See Singer, supra, note 6, for his discussion of both realists and Marxists; D. Kennedy, “The
Stages of the Decline of the Public/Private Distinction” (1982) 130 U. Penn. L. Rev. 1349; K.E.
Klare, “The Public/Private Distinction in Labor Law” (1982) 130 U. Penn. L. Rev. 1358.
42See, for example, K. O’Donovan, Sexual Divisions in Law (London: Weidenfeld and Nichol-
son, 1985); and F.E. Olsen, “The Family and the Market: A Study of Ideology and Legal Reform”
(1983) 96 Harvard L. Rev. 1497. It has been argued that the manipulability of the distinction has
been used to create barriers to feminism. See Dalton, supra, note 32; and J. Fudge, ‘The Public/
Private Distinction: The Possibilities of and Limits to the Use of Charter Litigation to Further Fem-
inist Struggles” (1987) 25 Osgoode Hall L.J. 485 at 487-88.
43S. de Beauvior, The Second Sex (New York: Knopf, 1952) at 511.
41″The (sexual) contract is the vehicle through which men transform their natural right over
women into the security of civil patriarchal right” (C. Pateman, The Sexual Contract (Stanford:
Stanford University Press, 1988) at 6).
4Slbid.
46Ibid., at 133, citing C. Delphy, Close to Home: A Materialist Analysis of Women’s Oppression
(Amherst: University of Massachusetts Press, 1984).
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supporting the public sphere as we know it.47 The domain of women, that of
undervalued labour in the private sphere, is the natural corollary to the public,
wage-earning sphere of men. The nature of familial organization, in which
women are perceived as vulnerable, and are held responsible for secondary or
supplementary tasks, has gained ideological status. Thus it is reinforced and
duplicated in other settings. Later in this paper, I will argue that this has cur-
rency in the labour setting.
II. Collective Bargaining
A. The Goals of Collective Bargaining
Collective bargaining law seeks to correct for injustices within the com-
mon law of employment. It enables workers to form a collective for the pur-
poses of bargaining with the employer. Where a majority agrees to it, the work-
ers will select a union to act as an agent in representing their interests. The
system assumes that employees as a group will have greater power than they
would individually in dealing with the wealthier, more powerful employer.
Equally important, it seeks to preserve for workers a sense of autonomy or self-
governance in determining the conditions of their working lives. The state reg-
ulates collective bargaining through federal and provincial legislation. In Can-
ada, the Canada Labour Code and analogous provincial statutes serve this role.
Broadly speaking, these pieces of legislation contain protections against the
coercion and restraint by employers of workers seeking to organize a union, and
ensure that the parties deal with one another in good faith. The economic “lev-
ers,” or manifestations of power in collective bargaining, are the strike and the
lockout. Where the employees cannot bear the terms of an agreement, they may,
within legislatively controlled limits, refuse to work, or “strike.” Likewise, the
employer may stage a “lockout,” or refuse to employ the union members (and
hire replacement workers) under legislatively controlled circumstances. Empir-
ical evidence suggests that collective bargaining has been successful in improv-
ing the economic condition of workers. Freeman and Medoff’s48 examination of
the influence of unions on the economics of the labour market led them to con-
clude that unionism is a powerful force in reducing wage inequalities.49 They
based their conclusion on three phenomena associated with unionization. First,
union activities reduce inequalities within firms by operating on a philosophy
of distributive justice, by replacing managerial discretion with equitable rules,
and by promoting worker solidarity and organizational unity. For example, the
47N. Redclift, “The Contested Domain: Gender, Accumulation and the Labour Process” in N.
Redclift & E. Mingione, eds, Beyond Employment: Household, Gender and Subsistence (Oxford:
Basil Blackwell, 1985) 92.
48R. Freeman & J. Medoff, What Do Unions Do? (New York: Basic Books, 1984).
491bid., c. 5 at 78-93.
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COLLECTIVE BARGAINING
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wage in a unionized setting is more likely to attach to a given job than to a par-
ticular individual. Second, unions exert sufficient pressure on the market to
standardize wages across industries. Individual differences between workers,
such as education, have less of an impact on earning in a unionized environ-
ment.50 Third, unionism reduces the wage disparity between white collar and
blue collar workers.
The principal challenge to their findings is that by increasing wages in the
organized sector, the number of jobs in that sector correspondingly decreases.
The displaced workers go to the non-organized sector, resulting in a decrease in
wages for all non-unionized workers. Freeman and Medoff meet this argument
by comparing the gains to be had in the organized sector with the losses in the
non-organized sector. They conclude that the net effect is a reduction in wage
inequality. Thus from a utilitarian perspective, collective bargaining is econom-
ically beneficial.
Collective bargaining, however, is more than merely a means to redress
inequality of bargaining power. It is also a vehicle for individual self-fulfillment
because the workplace is the locus of what for most people is their primary
social contribution. Flanders5 warns against viewing the collective agreement
as merely an employment contract serving multiple parties. He argues that col-
lective bargaining differs from bargaining for employment contracts in the
marketplace in three ways. First, collective bargaining gives rise to a body of
procedural rules which regulate the continuing functioning of the labour market.
Second, it is highly political in character, thus justifying its description as “a
diplomatic use of power.”52 More specifically, it imposes the “rule of law” on
employment relationships, such that workers are no longer at the mercy of the
market. Both parties have an interest in more than just the exchange of labour
for capital. They also mutually desire to establish and maintain continuity in
relations, a desire for self-government which manifests itself in the institution
of collective bargaining. Third, negotiation in collective bargaining goes beyond
the resolution of economic conflict. Rather, it is fundamentally about power: the
power to shape the conditions and the values informing managerial decision-
making. Central to this is a clash between the values of efficiency and worker
security.53
50Freeman and Medoff acknowledge that equality may favour unionism rather than unionism
producing equality. That is, workers who are similar to one another may feel more community with
one another and therefore be more likely to organize.
51A. Flanders, “The Nature of Collective Bargaining” in A. Flanders, ed., Collective Bargaining:
Selected Readings (Middlesex: Penguin, 1969) 11.
521bid. at 17.
531bid. at 30-31. Note the contrast between this thinking and the argument of Freeman and
Medoff that these two values are not mutually exclusive.
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[Vol. 36
Power is a theme common to all theoretical accounts of collective bar-
gaining. Dubin characterizes the manifestations of power in a somewhat less
benign light than does Flanders. Dubin argues that power is exercised primarily
through the conscious and deliberate use of force. He describes the union’s use
of the strike, slowdown and jamming of the grievance procedure, and the mana-
gement’s use of the lockout, arbitrary re-interpretation of the collective agree-
ment, and harsh grievance decisions, as the arsenal of weapons available to par-
ties engaging in industrial combat. Conflict and disorder are the lifeblood of
industrial justice. Collective bargaining law, by institutionalizing this use of
force, tempers it. It provokes management to respect industry-wide standards
and has a stabilizing influence on the human relations in the industrial sector.
Although Dubin assures us that “each conflict-created disorder is inevitably
succeeded by a reestablished [sic] order,”54 and that “collective bargaining tends
to produce self-limiting boundaries that distinguish permissible from subversive
industrial disorder,” the use or threat to use force, albeit tempered, is still the
animating essence of the institution.
B. Critiques of Collective Bargaining
The promise of “industrial democracy” accompanying the introduction of
collective bargaining to North America nearly a half-century ago has long since
lost its lustre.” The dissolution of these hopes inspired one commentator to
lament that contemporary American labour law is “an elegant tombstone for a
dying institution.”56 The presumptive model of self-interest remains a pervasive
force in the collective bargaining environment.” Even so, the system has failed
to secure autonomy for individual workers, both in its inability to foster their
full participation in making decisions that affect their working lives, and in
terms of the quality of participation that has been attained.
Critics of collective bargaining have focused the problem in a number of
ways. Although different diagnoses of collective bargaining’s failure to correct
for the flaws of the free market derive different suggestions for reformulating
the system, they do not, by and large, include calls to abandon collective bar-
gaining. In the pages to follow, I will discuss ideas of selected critics, followed
Ross, eds, Industrial Conflict (New York: McGraw-Hill, 1954) 37 at 45.
54R. Dubin, “Constructive Aspects of Industrial Conflict” in A. Komhauser, R. Dubin & A.
55it should be noted that for many, the form in which collective bargaining law was introduced
failed to meet their aspirations for radical change. Nevertheless, it can be fairly stated that most
perceived the new laws as a positive move in the direction of industrial democracy. See K.E. Kiare,
“Judicial Deradicalization of the Wagner Act and the Origins of Modem Legal Consciousness,
1937-1941” (1978) 62 Minnesota L. Rev. 265 at 290.
56p. Weiler, “Promises to Keep: Securing Workers’ Rights to Self-Organization Under the
57See B. Langille & P. Macklem, “Beyond Belief: Labour Law’s Duty to Bargain” (1988) 13
NLRA” (1983) 96 Harvard L. Rev. 1769 at 1769.
Queen’s L.J. 62 at 74-75.
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1195
by an exploration of concerns unique to women in the current bargaining
regime. Later I will seek to incorporate feminist arguments into existing criti-
cisms of collective bargaining.
Paul Weiler asserts that the primary flaw in American collective bargaining
lies, not in the prevailance of free contract values, but rather, in the degree of
contractual freedom permitted at various stages of the bargaining process.5″ On
one hand, the parties are given too much freedom at the initial contract stage.
In the U.S., the hands-off approach of the National Labor Relations Board dur-
ing the events leading to the signing of a first agreement has a traumatizing
effect on fledgling unions struggling to secure some collective voice for work-
ers. At this threshold stage, a union is particularly vulnerable to damaged
morale and attrition. Allowing the employer to engage freely in resistance tac-
tics is contrary to the intention of collective bargaining legislation. 9
On the other hand, Weiler argues, the workers are given too little freedom
in their permissible use of economic weapons during the term of an agreement.
More specifically, free bargaining with the strike as a weapon, as opposed to
interest arbitration by a labour tribunal, is an essential ingredient of the nego-
tiation process. It is the primary weapon available to the workers in exercising
control in shaping an agreement responsive to the particular requirements of
their situation. The strike is seen as the “litmus test for distinguishing the regime
of collective bargaining from that of individual employment relations.”‘ Even
though strikes are allowed, the terms regulating their use are unduly restrictive.
For example, it is inequitable that employers can hire replacement workers dur-
ing a strike but employees cannot enlist support from unionized workers in
companies carrying on business with the struck employer.61 In sum, Weiler sees
contractual freedom within collective bargaining as a good thing, one which
promotes the autonomy of the worker vis a vis the employer. His criticism
focuses largely on the balance of that freedom in the current American bar-
gaining regime. Reform, for Weiler, will come from shifting rather than increas-
ing the existing constraints imposed by collective bargaining law on contractual
freedom.
While advocating greater contractual freedom in collective bargaining,
Weiler also identifies an emerging trend among workers to eschew the formality
and legalism of “business unionism.”62 He argues that the large bureaucratic
union has come to resemble the employer with which it does battle; the worker
58p. Weiler, “Striking a New Balance: Freedom of Contract and the Prospects for Union Repre-
sentation” (1984) 98 Harvard L. Rev. 351.
591bid. at 357-63. It should be noted that in Canada, this problem is not as significant: see J. Rose
& G. Chaison, “New Measures of Union Organizing Effectiveness” (1990) 29 Ind. Rel. 457.
6Weiler, ibid. at 365.
6’1bid. at 387-94.
62p. Weiler, Governing the Workplace (Cambridge: Harvard University Press, 1990) ch. 5.
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feels silenced and alienated by the very institution created to give him a voice.
Weiler calls for a move to “enterprise unionism,” a less centralized, more
co-operative scheme in which workers have a higher degree of responsibility for
decisions affecting the operation of the workplace. 63 The dilemma, for Weiler,
is how to reconcile the continued need for big-union muscle to back organizing
and mount strikes with this new vision of enterprise unionism.’
“Critical” labour law scholarship has also scrutinized collective bargaining.
Karl Klare’s scheme for labour law reform is rooted in the ambition that the
institutions of industrial governance can act as the catalyst for broad-based par-
ticipatory democracy. 65 Self-realization, individual autonomy, and interpersonal
connection are, in his view, the hallmarks of this approach. Klare concentrates
his criticisms of the existing American collective bargaining regime on its mis-
guided notion of a dichotomy between market freedom and regulation. Tradi-
tional notions of market freedom wrongly juxtapose state regulation and effi-
ciency as if they were mutually exclusive. Assessing the merits of the free
market is reduced to a trade-off between efficiency and the intervention neces-
sary to secure basic guarantees of social justice. Klare reconstitutes and relies
on the contributions of the legal realists, who exposed the fallacy of the “unreg-
ulated” free market. The realists reformulated the question in the debate from
whether to regulate, to what form the regulation, inevitable in any market
regime, should take.66 Klare wishes to restrain contractualism more than does
Weiler. In Klare’s opinion, the judicial use of formal contractual analysis is a
primary culprit of the systematic “deradicalization” of the progressive intentions
of the American collective bargaining statute, the Wagner Act.67 While the U.S.
Supreme Court facilitated free choice and private ordering between the parties
by rearranging their relative bargaining power, it failed to address the substan-
tive content of the bargains struck.6″ Klare seeks to mobilize a “reconstruction
of the market” at all levels of the employment relationship. He thinks compre-
hensive substantive and procedural restrictions on freedom of contract are a
necessary means to enhancing employment democracy. He shares with Weiler
a desire to facilitate the opportunity for workers and fledgling unions to orga-
nize and establish a first contract by legislative means. He also advocates mea-
sures to abolish managerial prerogative and the doctrine of reserve rights,
through disclosure and a redefinition of “the basic social understanding of prop-
631bid. at 189.
64Ibid. at 223.
65K.E. Klare, “Workplace Democracy & Market Reconstruction: An Agenda for Legal Reform”
(1989) 38 Catholic U. L. Rev. 1.
& 37 and accompanying text.
661bid. at 13-18. See also the earlier discussion in this paper of the legal realists supra, notes 6-8
67Supra, note 55 at 292-93. The Wagner Act is another name for the National Labour Relations
68lbid. at 309.
Act, 29 U.S.C. 151-169 (1988) [hereinafter NLRA].
1991]
COLLECTIVE BARGAINING
1197
erty.”69 Other goals are employee participation in management, retaining ele-
ments of adversarialism while fostering greater co-operation,” and a broad-
based statutory imposition of minimum standards in the conditions of
employment.
A third critic of collective bargaining, David Beatty, takes a somewhat dif-
ferent tack.7 For Beatty, the collective bargaining regime is ineffective, first
because it replicates and institutionalizes the inequities of the common law, and
second, because it generates injustices of its own. Pivotal in Beatty’s argument
is the notion that the “democratic” tenet of majoritarianism, fundamental to col-
lective bargaining, is actually a principal barrier to workplace justice. He count-
ers the utilitarian defence of collective bargaining by pointing to the vast
number of workers denied the benefits of the system. The reasons for their
exclusion, be they statutory, locational (i.e., both in terms of industry and geog-
raphy), or as a result of the “displacement” Freeman and Medoff spoke of
(whereby every gain for the unionized produces a corresponding loss for the
non-unionized), are devoid of morality. Rather, they are the same social con-
structs, stemming at the basest level from inherited endowments, that generate
distributional inequities in a regime of free contractualism. The losers in this
scheme are those who are already disadvantaged: at a broad level, those in sec-
tors without the strength of organization to unionize, and at a more local level,
those in a workplace who have the least seniority (the young, the ethnic, and the
female). He explains:
It is a system in which the well-to-do prosper at the expense of the weak; the haves
take from the have-nots; better paid workers gain at the expense of the more
poorly paid, the organized at the expense of the unorganized, the employed at the
expense of the unemployed. Whatever the final definition of industrial justice, a
scheme of employment regulation which settles its wins and losses in such a man-
ner cannot be considered distributively just. It is plainly not fair. It is not the way
we commonly teach sisters to treat each other and their brothers. 72
To the extent, Beatty continues, that utilitarian justifications are advanced, they
fail because the “losers” in this scheme cannot fairly be said to have consented
to their position in the heirarchy of entitlements.
Beatty also attacks claims that value inheres in the process of collective
bargaining itself. Advocates analogize the process to democracy because of its
6 9Supra, note 65 at 52.
70K.E. Kiare, “The Labor-Management Co-operation Debate: A Workplace Democracy Perspec-
tive” (1988) 23 Harvard C.R.-C.L. L. Rev. 39 at 77.
71See, e.g., D. Beatty, “Shop Talk: Conversations About the Constitutionality of our Labour
Law” (1989) 27 Osgoode Hall L.J. 381; Putting the Charter to Work: Designing a Constitutional
Labour Code (Kingston: McGill-Queen’s University Press, 1987); and “Ideology, Politics and
Unionism” in K. Swinton & K. Swan, eds, Studies in Labour Law (Toronto: Butterworths, 1983)
298.72″Ideology, Politics and Unionism,” ibid. at 315.
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electoral mechanisms. 73 Furthermore, the process of allowing each individual to
participate in the determination of matters affecting the conditions of her life is
said to enhance individual justice. Beatty replies by asserting that where partic-
ipation is not universal, there can be no true democracy. He re-iterates his posi-
tion that there is no justice in the arbitrary allocation of personal endowments,
and adds that the tyranny of the majority determines individual justice. His
vision of a just regime of industrial democracy places the system on a political,
as well as market plane.74 Specifically, Beatty envisages the “constitutionaliza-
tion” of collective bargaining, whether via a Bill of Rights for employed people,
or the Canadian Charter of Rights and Freedoms,75 as the natural route to the
democratization of and achievement of justice in labour markets.
C. Women and Collective Bargaining
The critiques of collective bargaining I outlined above analyze collective
bargaining from a variety of perspectives. Although each offers insight into why
collective bargaining has failed to correct the inadequacies of the market, none
addresses those failures as they pertain uniquely to women. As I discussed ear-
lier, the free market is blind to the moral and ideological gender divisions in our
society. Ironically, collective bargaining, despite its mandate to correct for the
failings of the market, fails in the same ways as the free market in achieving
social justice for women. A fuller discussion of the barriers women face will be
useful in assessing whether existing suggestions for reform of collective bar-
gaining can incorporate the concerns of women.
1.
Morality Revisited
The moral framework of collective bargaining is based on masculine social
stereotypes. It is premised on the notion that the employer and the employees
are engaged in combat. The system provides the rules for combat, and the par-
ties have access to the “weapons” that will assist them: the strike and the lock-
out. Even the language of bargaining, the influence of which is not to be under-
estimated, invokes images of the passion and struggle of a clash of powers.76
73This claim can be found in the arguments presented by both Flanders, supra, note 51, and
Dubin, supra, note 54.
74This echoes the observation of Flanders in describing the difficulties in defining collective bar-
gaining as a path to social justice based solely on a market model: “[w]hen, however, one goes out
from the alternative premise that what is known as collective bargaining is primarily a political
institution because of the two features already mentioned –
that it is a rule-making process and
involves a power relationship between organizations –
no logical difficulties obstruct definition”
(supra, note 51 at 19).
c. 11 [hereinafter Charter].
75 Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
76This is particularly unsettling if one accepts (as I do) the arguments of Lakoff and Johnson that
metaphors in all aspects of life and discourse shape our experience of the world. See G. Lakoff
1991]
COLLECTIVE BARGAINING
1199
Terms such as “hard bargaining” and “bull sessions” create in the mind’s eye the
spectacle of angry embattled adversaries. According to some feminists, this
combative conception of conflict resolution is incompatible with the moral
worldview of women. Womens’ conceptions of power, as discussed earlier,
evolved within the private sphere, where the rituals and conventions of social
interaction differ from those of the public sphere. This, cultural feminists have
theorized, has led women to take a different approach to solving problems and
resolving disputes. From this point of view, it is not surprising that women
are less willing than men to resort to strike action in resolving industrial dis-
putes.77 I hope to illustrate, by way of the following examples, how I perceive
women’s approach to shop floor conduct to be different than traditional
approaches.
Charlene Gannage spent two years studying the operation of a union and
the interaction among workers in a small Toronto garment factory.7″ Part of her
study involved a comparison of the manner in which the primarily male “oper-
ators” and primarily female “finishers” distributed work among themselves. 9
The men developed a system of rules for determining work assignments. They
set out guidelines and elected a shop chairman and committee to implement the
guidelines. The women, on the other hand, developed an informal, ad hoc
arrangement based on the honour system. For example, if a worker had taken
on light assignments one day, she was expected to volunteer for heavier assign-
ments the next day. Where individual antagonisms arose, the shop floor workers
themselves bore the responsibility of mediating the conflict, rather than calling
in the male shop chairman to resolve it. Only if the dispute could not be resolved
internally would the shop chairman be called.
The behaviour of the women was consistent with an alternative conception
of how to divide the burdens and benefits of the shop floor, and how best to
minimize personal tensions among themselves.8″ First, the women chose an
honour- over rule-based system, and in doing so, opted for a more internalized,
less rigid form of organization, based on principles of trust. Second, the women
& M. Johnson, Metaphors We Live By (Chicago: University of Chicago Press, 1980). On the power
of language in particular in shaping our construction of reality, see K. Busby, “The Maleness of
Legal Language” (1988) Man. L.J. 191; and R. West, “Communities, Texts and Law: Reflections
on the Law and Literature Movement” (1988/89) 1 Yale J.L. & Hum. 129.
77N. Charles, “Women in Trade Unions” in Feminist Review, ed., Waged Work: A Reader (Lon-
don: Virago, 1986) 160 at 174-75.
78C. Gannage, Double Day, Double Bind: Women Garment Workers (Toronto: The Women’s
Press, 1986).
791bid. at 151-58.
801 should note here that this was not Gannage’s interpretation –
she attributed the “disorgan-
ization” and “dependence” on the shop steward to the ideology of the gender division of labour
(ibid. at 173), which I discuss below.
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chose horizontal rather than hierarchical forms of governance and dispute res-
olution. These choices require a greater degree of involvement in one another’s
lives, as well as sensitivity to, and personal responsibility for, each other’s
stresses and conflicts.
A second notable feature among the women was their sensitivity to the
double workday of women co-workers. Hanne Petersen made some astute
observations about the “morality of the workplace” in her recent study of union-
ized women in the Swedish public sector.8′ She found that both management
and union colleagues felt a sense of responsibility for employees struggling to
balance wage with non-wage (domestic) labour. Petersen observed the develop-
ment of an “informal law of the workplace,” in which employees took into
account the competing demands in each others’ lives. It was characterized by
an ethos of “non-intervention” of work into private life, manifested in a vigilant
effort among workers to protect one another from the possibility of employment
responsibilities infringing on private/family time. It was characterized by a
“norm of consideration, [which] presupposes certain conditions among employ-
ees, namely, ‘responsibility,’ trust and abstention from abuse; a certain ‘cautiou-
sness,’ and ‘watchfulness’ when making use of the liberty of action provided by
it.”82 For example, this norm would contemplate a woman’s taking an extra
workload where her colleague required relief due to a domestic obligations such
as a sick child. 3
A third revealing set of observations about this alternative “morality of the
workplace” is illustrated by the organizing drives of the all-women Harvard
Union of Clerical and Technical Workers and Women Workers (HUCTW) in
1988,1 and Local 34 (also clerical and technical workers) of the Federation of
University Employees at Yale University in 1981.5 The unions used a variety
of alternative techniques, and set for themselves non-traditional goals. These
campaigns, unlike most, placed secondary emphasis on pay and benefits, focus-
ing instead on worker empowerment, participation and self-representation. One
HUCTW organizer described the message to the employees as being, “you are
as smart and capable of handling these problems certainly as anyone in manage-
81H. Petersen, “Perspectives of Women on Work and Law” (1989) 17 Int. J. Soc. L. 327.
821bid. at 340.
83’This sensitivity to each others’ dual lives has been cited elsewhere as serving a greater role
than merely mutual protection and support. Rather than being seen as “trivial” domestic concerns,
the shared ethos among women of the centrality of the family translate into heightened solidarity
and the facilitation of organization through kin. See M. di Leonardo, “Women’s Work, Work Cul-
ture, and Consciousness” (1985) 11 Fem. Stud. 491 at 494.
94See M.D. Kandel, “Finding a Voice Through the Union: The Harvard Union of Clerical and
85See M. Ladd-Taylor, “Women Workers and the Yale Strike” (1985) 11 Fern. Stud. 465.
Technical Workers and Women Workers” (1989) 12 Harvard Women’s L.J. 260.
1991]
COLLECTIVE BARGAINING
ment currently, and you ought to be involved in those processes.”” The unions
attracted members through personal contacts (“we organized one employee at a
time”‘ ) rather than through leaflets, so that each employee could express her
concerns to the union representatives.”8 Leadership roles were played down, in
order to foster confidence and participation among “rank and file” workers. In
addition, the themes and slogans of the campaign focused on attitudes or fears
women tend to share regarding trade unions. For example, a major theme was
the notion of “a community of co-workers” rather than opportunities for individ-
ual gain. 9
Both campaigns also addressed another hurdle. Because many traditionally
female jobs (for example, secretarial and clerical jobs) involve close personal
interaction with management, an identification with and loyalty towards man-
agement often develops.” Both drives contemplated the possibility of fear
among workers that the union would jeopardize personal relationships and pos-
itive identification with management. Interestingly, the two drives used different
tactics in this regard. The HUCTW assured workers that unionization was not
incompatible with good employer/employee relations and discouraged anti-
employer sentiment (as one slogan put it, “It’s not anti-Harvard to be pro-
union”).9’ The Yale union, on the other hand, sought to debunk management’s
paternalistic claim to be interested in protecting the workers from union harass-
ment.92 Both campaigns, however, shared the overarching strategy of promoting
personal empowerment and women’s “gaining control of their lives.”’93
86Supra, note 84 at 272. One Canadian study, however, suggests that women may seek tradi-
tional rather than non-traditional goals through the union: P. Andiappan, R. CaHaneo & D. Stasiu-
lis, “Attitudes of Female Union Members Towards Their Union: Result of a Survey of Nurses and
Clerks in a Canadian City” (1984) University of Windsor Faculty of Business Administration
Working Paper No. 84-001. Two things must be noted, though. In the study, the term “non-
traditional” referred to benefits and working conditions specifically desirable to women, such as
child care, maternity benefits and flexible hours. In the HUCTW campaign, benefits and flexibility
fit within the “traditional” category. Furthermore, the authors of this study emphasized that the data
were gathered during the 1982 recession, when workers in general were concerned with high infla-
tion and unemployment.
87Kandel, ibid. at 265.
8sYale’s Local 34 used a “bottom-up” structure, such that small groups of workers all across
campus discussed any decision before it was made. This allowed women who previously had never
found themselves in leadership positions to run meetings, speak before large groups, and present
grievances to their supervisors. See supra, note 85 at 470.
89The upshot of this was that some women who otherwise might not have had a particular inter-
est in the union developed an interest out of a sense of obligation to their co-workers. For example,
one worker was quoted as saying, “If younger workers are going to be concerned about my issues,
it would be unfair if I wasn’t concerned about theirs” (supra, note 84 at 274).
“Ibid. at 269-70, esp. 269 n. 56; supra, note 85 at 467. See also V. Schultz, “Telling Stories
About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII
Cases Raising the Lack of Interest Argument” (1990) 103 Harvard L. Rev. 1749 at 1828-29.
91Kandel, ibid. at 269.
92Supra, note 85 at 470.
93Ibid. at 471.
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2.
Ideology Revisited
Earlier in the paper I touched upon the ideological force of the public/
private distinction. More specifically, I focused on the ideology of the family,
and the resulting social construction of male and female participation in soci-
ety.94 This social construction of gender is replicated in the labour setting, in two
primary ways: there is a devaluation of women’s labour power in the wage-
earning sector, and the political organization of industrial society is structured
in a way which inhibits women’s participation.
With respect to the devaluation of women’s labour power, I will identify
two theories of how this phenomenon emerges. The first emphasizes the con-
struction of gender outside of, or prior to, women’s entry into the labour market.
Women’s traditional work in the private, domestic sphere has come to be per-
ceived as unstimulating, unchallenging, repetitive, isolated and low in prestige.
The work is unpaid, and its relationship to the financial rewards of the family
is indirect. It cannot be exchanged on the market, and as such, is considered to
be of little value. The impact of the unfavourable social perception of home-
centred work on women’s self-valuation has been described by Armstrong and
Armstrong:
Although the labours of love may often appear superior to those performed merely
for a wage, the labours of love may in our society be debilitating. Care and love
often mean submission to others, submission that is not often reciprocated. For
women in the home, labours of love usually mean work without pay, work done
for others and in response to others.95
The subjective or internalized devaluation of women’s traditional work has put
women into a vulnerable position upon entering the labour market. They may
feel that their work is supplementary or secondary to the primary means of fam-
ily support. Moreover, because work for any pay will always be financially
worth more than housework, the thresholds of what women will accept in bar-
gaining for compensation traditionally have been lower than those for men.
Vicki Schultz challenges the notion that women choose stereotypically
female or female-dominated occupations, either because of socialization before
they enter the labour market, or because of their heavier family obligations.”
94Although this familial ideology is the starting point of many gender-based theories of social
construction, some scholars have taken a “deconstructionist” approach, in which the division of
labour in the family is one among several coexistent and equally influential elements of the social
concept of gender. For a discussion of this, see V. Beechey, “Rethinking the Definition of Work:
Gender and Work” in J. Jenson, E. Hagen & C. Reddy, eds, Feminization of the Labor Force: Para-
doxes and Promises (New York: Oxford University Press, 1988) 44 at 57-58.
95P. Armstrong & H. Armstrong, The Double Ghetto: Canadian Women and Their Segregated
Work, rev’d ed. (Toronto: McLelland & Stewart, 1984) at 188.
96Schultz, supra, note 90 at 1817-20.
1991]
COLLECTIVE BARGAINING
1203
Rather, Schultz contends that women’s work aspirations and preferences are
shaped by their experiences after they enter the labour market. This “new struc-
turalist” tack posits that “employers structure opportunities and incentives and
maintain work cultures and relations so as to disempower most women from
aspiring to and succeeding in traditionally male jobs.”’97
In either scenario, the result is that women not only tend to perform lower-
paying jobs, but they also are paid less than men to do the same or equivalent
work.9″ While pay equity has been implemented in Ontario to remedy gender-
based wage imbalances,” it attempts merely to equalize the discrepancies cre-
ated within the system. It does not address how the discrepancies are socially
created and systemically reinforced within collective bargaining.”0
This bias manifests itself not only in the wage gap, but also in other aspects
of working life. There has been much study of the influence of capitalist ideol-
ogy on the labour process, postulating among other things the phenomenon of
labour market segmentation. The theory of labour market segmentation posits
that group status (sex, race, educational background) is a critical determinant of
one’s working conditions, promotional opportunities, wages, and industrial sec-
tor. “‘ Men dominate the primary sector, which requires more stability and skill,
and promises higher wages and job ladders. Women, minorities and youths
dominate the secondary sector, characterized by less stable and less skilled
work, low wages, high turnover, and few job ladders. Segmentation, it is sug-
gested, was encouraged by early labour monopoly capitalists. By breaking jobs
down into discrete, simplified, specialized tasks (“deskilling”), management
was able to increase productivity, reduce costs, increase hierarchy and manage-
ment control, and reduce worker independence. 2
Feminist writers have criticized much of the literature on labour market
segmentation because of its underlying gender neutrality. They argue that
deskilling has a distinctly (and overlooked) gendered dimension to it, i.e., forms
971Ibid. at 1816.
981t would seem that this hypothesis is borne out in Canadian earnings statistics: the average
female employment income (regardless of unionization) in the most recent figures was 66 percent
of the male average (Statistics Canada, Women and the Labour Force, 1990 (1985 figures)). The
gap is about 10 percent lower among unionized workers, but only 31 percent of women (as
opposed to 39 percent of men) are unionized. See P. Kumar & D. Cowan, “Gender Differences in
Union Membership Status: The Role of Labour Market Segmentation,” Queen’s Papers in Indus-
trial Relations (Kingston: School of Industrial Relations, Queen’s University, 1989).
“Pay Equity Act, S.O. 1987, c. 34.
10 0See C. Cuneo, Pay Equity: The Labour-Feminist Challenge (Toronto: Oxford University
101M. Reich, D. Gordon & R. Edwards, “A Theory of Labor Market Segmentation” (1973) 63
Press, 1990) at 149-50.
Am. Econ. Rev. 359.
1021bid. See also, H. Braverman, Labour and Monopoly Capital: The Degradation of Work in
the Twentieth Century (New York: Monthly Review Press, 1974).
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[Vol. 36
of control differ depending on whether the workers are male or female.’0 3 Fur-
thermore, the analysis works more effectively in the male-dominated manufac-
turing sector than in the female-dominated service sector.1’ Many occupations
typically filled with women, such as teaching and nursing, cannot accurately be
described as fitting within the secondary workforce – yet the pay may be low
and the work, though complex and high in responsibility, may not be defined
as skilled.0 5 Secondly, and related to the previous point, the definition of “skill”
may be ideologically influenced. What counts as training, and what is consid-
ered skill may have as much to do with gender as it does objective qualifications
and knowledge.” In these analyses, the ideology of patriarchy, rather than cap-
italism, is responsible for the dual labour market.
The empirical reality of women’s participation in the workforce is consist-
ent with the above hypothesis. Women are employed primarily in the service
sector, particularly in “caring” jobs and paid domestic or domestic type
labour.” Furthermore, women dominate the part-time labour force,0″ which
tends to perform low skilled, low paying jobs with little job security, few ben-
efits and minimal opportunities for advancement. 1″9 A recent study revealed that
employers with special needs, such as a flexible workforce and longer opera-
tional periods, were more likely to create part-time positions if the workers were
women than if they were men. For men in comparable situations, employers
were more likely to create temporary contracts or short-time work, and use
overtime.”0 The characteristics of female labour markets has prompted the
observation that “women’s work in the labour force does not promote the devel-
opment of aggressive, independent, competitive, self-directing people.””‘
The ideology of collective bargaining also operates to exclude women by
encouraging a particular political environment within the union. Political power
103J. Wajcman, “Patriarchy, Technology and Conceptions of Skill” (1991) 18 Work & Occupa-
tions 29. See also Beechey, supra, note 94 at 48, citing a 1983 study by Game & Pringle, and N.
Sokoloff, “What’s Happening to Women’s Employment: Issues for Women’s Labor Struggles in
the 1980s-1990s” in C. Bose, R. Feldberg & N. Sokoloff, eds, Hidden Aspects of Women’s Work
(New York: Praeger, 1987) 14 at 17.
“4During 1989, an average of 57 percent of the service sector and 80 percent of clerical workers
were female: Statistics Canada, supra, note 1 at C-24. More specifically, women dominate the sec-
retarial, clerical, teller and cashier, food services, nursing, elementary teaching, janitorial, and tex-
tiles occupations.
’05Beechey, supra, note 94 at 49.
‘0Ibid., and Wajcman, supra, note 103.
“7Beechey, ibid. Among unionized women, more than half are in the service sector.
‘During 1989, an average of 72 percent of part-time workers in Canada were women: Statistics
Canada supra, note I at C-27.
‘gCommission of Inquiry Into Part-Time Work, Part-7ime Work in Canada (Ottawa: Labour
Canada and Minister of Supply and Services Canada, 1983) (Joan Wallace, Commissioner) at 34.
“Beechey, supra, note 94 at 50.
‘M. Barrett, Women’s Oppression Today (London: Verso, 1980) c. 5. at 191.
1991]
COLLECTIVE BARGAINING
1205
within unions typically rests with men.”‘ Indeed, men were the first to organize,
and from their earliest days, trade unions operated in a way which excluded
women.”‘ There are several arguments why women have failed to participate
and acquire leadership posts within unions, or even to become members of
unions. First, women have more constraints on their time. Union meetings often
take place in the evenings, outside of regular work hours. For women with fam-
ily obligations, finding the time and physical resources to attend meetings and
engage in organizational activities is difficult at best. This may be compounded
by pressure from their husbands or partners to avoid union activities. 4 As one
commentator succinctly puts it, “women ‘negotiate’ an ambiguous identity
strung between two received ‘worlds’: the male world of wage labour, and the
female world of home and family.”… A recent study reveals, however, that
women’s priorizing of family commitments is not synonymous with lack of
interest in the benefits of unionization.” 6
In addition, women’s work in the shop is perceived as having a lower value
than that of men. As I mentioned earlier, women tend to work in lower paying
jobs, and on less “significant” aspects of production vis a vis the finished prod-
uct. Consequently, women may feel less “identification with the finished prod-
uct” because of their role in working on bits and pieces of garments after design
and prior to assemblage. Gannage describes women who felt that the marginal-
12A study within Canadian unions revealed a strong correlation between gender and union sta-
tus. Women tended to fill the positions of secretary, secretary-treasurer or treasurer more often than
men, while the reverse was true for the position of president. Furthermore, almost 75 percent of
women in union posts reached them by acclamation, appointment, or elections where there was no
male opposition. See G. Chaison & P. Andiappan, “Profiles of Local Union Officers: Females and
Males” (1987) 26 Ind. Rel. 281.
” 3Barrett, supra, note 111. Barrett cites Karl Marx as endorsing a sexist vision of collective
organization: he is reported to have encouraged male workers to organize in order to resist the dilu-
tion of the workforce with women and children. See also H. Hartmann, “Capitalism, Patriarchy and
Job Segregation by Sex” in Z.R. Eisenstein, ed., Capitalist Patriarchy and the Case for Socialist
Feminism (New York: Monthly Review Press, 1979) 206.
11″A recent study found these family-related constraints to be more significant deterrents to
achieving high union status than lack of personal confidence. See G. Chaison & P. Andiappan, “An
Analysis of the Barriers to Women Becoming Local Union Officers” (1989) 10 J. Lab. Res. 148.
See also the corroborating data of D. Cornfield, H. Cavalcanti Filho & B. Chun, “Household,
Work, and Labor Activism” (1990) 17 Work & Occupations 131, which revealed an inverse cor-
relation between household responsibilities in women and union activism. Regarding family con-
straints and participation in general, see Gannage, supra, note 78 at 179; A. Pollert, “Women, Gen-
der Relations and Wage Labour” in E. Gamamikow, D. Morgan & D. Taylorson, eds, Gender
Class & Work (Aldershot: Gower, 1985) 96; and D. Gallagher, “Getting Organized in the Canadian
Labour Congress” in M. Fitzgerald, C. Guberman & M. Wolfe, eds, Still Ain’t Satisfied: Canadian
Feminism Today (Toronto: The Women’s Press, 1982) 152 at 160.
115S. Cunnison, “Participation in Local Union Organisation: School Meals Staff: A Case Study”
in Gamamikow, Morgan & Taylorson, ibid. at 77.
” 6This was one conclusion of a study of American women and unionization: T. Moore, “Are
Women Workers ‘Hard to Organize’?” (1986) 13 Work & Occupations 97.
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[Vol. 36
ity of their work and their lower pay resulted in the union’s having little interest
in fighting for their concerns. Furthermore, they felt that their contributions to
union activities would be considered superfluous.’ 17
A third problem is that sexist stereotypes function to discourage women
from entering or remaining within the political fray. (I use the word “stereo-
types” deliberately, because researchers in this area have been emphatic in
stressing that women’s “apolitical” stance has nothing to do with biology. That
is, women are not inherently predisposed to be passive or apathetic). Men are
encouraged more strongly than women to enter into the forum of union poli-
tics.”8 Those women who do enter often leave because of harassment or patron-
izing treatment by male co-workers and union officials. For example, women
report pressures to vote with the men, rather than showing their “bias” by taking
“pro-women” stances on particular issues.” 9 Finally, the negative connotations
associated with ambition in women may inhibit their desire to seek power
within the union. 2
Finally, I think that the male domination of union leadership produces a
political climate which most women find inaccessible. The formality of bar-
gaining may be alien and incomprehensible to women who have been in the
workforce for a shorter time than men, and who have had little exposure to the
mechanics of the system.’ The culture of the trade union comprises a verbal
” 7Supra, note 78 at 176. Collateral to this point, from a Canadian study comparing union lea-
ders’ perceptions of the concerns of women in unions with the women members’ actual reported
concerns, is the finding that male union leaders do not recognize this as a barrier to women’s par-
ticipation, while female union leaders do. See S. Hameed & J. Sen, “Perceived Barriers to Union-
ization of Women: A Survey of Canadian Union Leaders” in Proceedings of the 23d Annual Mee-
ting of the Canadian Industrial Relations Association (Winnipeg: University of Manitoba, May
29-31, 1986) 125.
‘S. Ledwith, F. Colgan, P. Joyce & M. Hayes, “The Making of Women Trade Union Leaders”
(1990) 21 Ind. Rel. J. 112 at 113. See also J. White, Women and Unions, Prepared for the Canadian
Advisory Council on the Status of Women (Ottawa: Minister of Supply and Services Canada,
1980) at 29-31; G. Lowe, “Problems and Issues in the Unionization of Female Workers: Some
Reflections on the Case of Canadian Bank Employees” in N. Hersom & D. Smith, eds, Proceedings
and Papers From a Workshop Held at the University of British Columbia to Evaluate Strategic
Research Needs in Women and the Canadian Labour Force (Ottawa: Minister of Supply and Ser-
vices Canada, 1982) 307 at 314; and J. Sen, “Towards a Theory of Unionization of Women” in H.
Jain, ed., Emerging Trends in Canadian Industrial Relations: Proceedings of the 24th Annual Mee-
ting of the Canadian Industrial Relations Association (Hamilton: McMaster University, 1987) at
637.
“gT. Colling & L. Dickens, “Bargaining for Equality” (1990) 29 Equal Opportunity Rev. 22 at
23.
12This point brings to mind my own experience when I first joined a union at the age of 19.
I consulted an older female co-worker, who had been a union member for many years, to learn how
I might gain a better understanding of the workings of the union. She pulled me aside and informed
me, in hushed tones, that only “militant lesbians” attended union meetings.
’21Pollert, supra, note 114 at 96.
1991]
COLLECTIVE BARGAINING
1207
currency, a rhetoric –
spoken and unspoken assumptions about protocol. All of
these are part of a community from which women are tacitly excluded. This
problem plays itself out in the attitudes of male union members to the female
participants. In a study of the General and Municipal Workers’ Union in
England, male union members were interviewed about the women’s contribu-
tions to internal union organization.12 When women’s issues were at stake, male
union leaders often held special meetings, inviting only women to attend. They
did so because they and other men in the union complained about the “unrul-
iness” of women at meetings, and their lack of understanding of procedural for-
malities. Women who have tried to become active in union affairs report being
ruled “out of order” or not being able to get their concerns put on the agenda
at meetings,”z or feeling that they had to work particularly hard in the union to
prove themselves to be competent.24 The result is that women feel silenced and
lack confidence, which perpetuates “a vicious circle of non-involvement ‘”‘
in
the union.
Much of this discussion may beg the question, “Why don’t women orga-
nize their own unions?” The answer is complicated for several reasons. First,
not all of the reasons I discussed above related specifically to difficulties women
confront due to sexist attitudes within mixed-gender unions. Women face the
barrier of family commitments regardless of the demography of their union. 6
In addition, within a mixed-gender union, the factors inhibiting involvement
would certainly also act to inhibit a movement to “break off’ into a separate
female union. Furthermore, non-unionized women have experienced tremen-
dous difficulty in getting organized in largely female sectors of the workforce,
the paradigmatic example being the banking sector. A study by Kumar and
Cowan showed that this correlated with women’s occupations and industries of
employment, rather than gender per se.” For instance, in the banking industry,
management has taken a very strong stance against unions and used a variety
of tactics to preclude organizing activity.”z However, as we have seen, gender
122Supra, note 115.
‘I1bid.
124Supra, note 77 at 186.
‘2Pollert, supra, note 114 at 106.
126And as noted at supra, note 114, Chaisson and Andiappan found this to be the most significant
factor preventing women from gaining access to official posts in Canadian unions. See also Corn-
field, Filho & Chun, supra, note 114.
127Kumar & Cowan, supra, note 98.
128For a full discussion of these tactics, which include interrogation and intimidation of employ-
ees, no solicitation rules, litigation based on legal loopholes in order to frustrate certification, dis-
ciplinary measures, pre-certification polling of employees to sway pro-union sentiment, and
employee transfers, see E.J.S. Lennon, “Organizing the Unorganized: Unionization in the Char-
tered Banks of Canada” (1980) 18 Osgoode Hall L.J. 177; S. Muthuchidambaram, “Settlement of
First Collective Agreement” (1980) 35 Rel. Ind. 387 at 390; and E. Beckett, “Unions and Bank
Workers: Will the Twain Ever Meet?” Paper Prepared for the Women’s Bureau, Labour Canada
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and occupational segregation are intimately connected. 9 It is noteworthy that
empirical evidence refutes any implication that women have less desire to orga-
nize than men. 3
Let us return now to the academic criticisms of collective bargaining I pre-
sented earlier, and discuss how they might assist in addressing the ideological
barriers that women face. Problems of gender exacerbate some of the tensions
identified by these scholars. For example, both Klare and Weiler speak of the
folly in denying the inevitability of conflict between labour and management.
They recommend enhanced co-operation as a complement, rather than substi-
tute for adversarial bargaining, the latter being the central lever of labour
power.’ The foregoing discussion illustrates that women, though not incapable
of mastering conffict, tend to place particular value on exhausting co-operative
methods of problem-solving before resorting to active confontation. Accepting
the inevitability, indeed, necessity of some adversarialism in the labour-
management relationship, the task of reform presents a dual challenge in
responding to women workers. Reforms seeking to encourage the entry of
women into the milieu of labour management relations should facilitate, not
only the integration of more co-operative methods of participation, but also the
modification of traditional bargaining structures to accomodate the constraints
within women’s lives.
Klare envisions a more politicized workforce.’32 But his enduring commit-
ment to democratic forms in industrial governance makes sense only if one has
faith in the justice of such arrangements. For the reasons I have outlined above,
women feel alienated by, and remain excluded from, the democratic processes
within union operations. Democracy, at least for women in mixed-gender
unions, does not guarantee participation, though Klare is hopeful that the crea-
tion of more democratic employment structures will be informed by feminist
consciousness.133 He also speaks optimistically of the potential for minimum
standards legislation to remedy the shortcomings of collective bargaining. In
this regard, I believe that Klare’s formulations for reconstruction may provide
(Ottawa: Labour Canada and Minister of Supply and Services Canada, 1984) at 8. Furthermore,
as I will discuss below, early labour board jurisprudence on bargaining unit determination in banks
worked to the banks’ favour.
129Supra, notes 101-109 and accompanying text.
130Studies by P. Marachak, cited in White, supra, note 118 at 30 (Canadian); and Moore, supra,
note 116 at 106 (American) both found unorganized women to be more interested in becoming
unionized than their male counterparts.
131K.E. Kare, supra, note 70 at 39; Weiler, supra, note 62 at 225-26.
132Supra, notes 61-65 & 70 and accompanying text.
133Supra, note 70 at 47.
1991]
COLLECTIVE BARGAINING
1209
answers to some of women’s difficulties.”3 Nevertheless, the task before us is
to devise ways to modify the structure of collective bargaining itself. In this way
we can preserve the ideals of women workers’ autonomy and self-governance
(rather than turning solely to state intervention) while at the same time correct-
ing for systemic gender bias.
Beatty does address the shortcomings of industrial democracy. I believe his
assessment of women’s situation would be that the subordination of women as
we see it in the market is replicated in the union. The dominance of men is rein-
forced through majoritarian union politics, and women are the unwilling los-
ers.’35 I find these arguments compelling and readily see their applicability to
the reality of women’s experiences in the collective bargaining setting. How-
ever, Beatty’s solution to these inequities, a Bill of Rights for employed persons,
or greater access to Charter remedies, should be approached with qualified
optimism.
It is possible that the failures of the market, to the extent that they replicate
themselves in collective bargaining, will again replicate themselves in the con-
stitutional sphere. Chief Justice Dickson recognized this hazard in his majority
judgment in Slaight Communications Ltd. v. Davidson.136
The constitutionalization of free market inequalities may occur on both
substantive and procedural levels. Substantively, the Charter embraces liberal
notions of individual rights. Judith Fudge cautions that rights discourse may
abstract problems to a level removed from reality. Fudge argues that Charter
jurisprudence, by and large, has been blind to the separation of public and pri-
vate.137 To the extent the public/private split is at the root of women’s oppres-
sion, Charter jurisprudence has failed to correct for that oppression. Fudge ana-
lyzed Charter litigation in several areas of law, including labour, and found that
the courts have tended to construe equality in a formal and narrow sense.’38
Formal equality does not take into account the full history and context of gender
discrimination, a step necessary to ameliorating the subordination of women.
134He specifically notes, in reference to women, that the elimination of the effects of labour mar-
ket segmentation will require statutory intervention to reduce the work week, establish benefits for
part-time workers, and improve childcare provisions. Supra, note 65 at 55.
135For a more detailed account of this position, see supra, notes 67-70 and accompanying text.
136The Chief Justice stated that “[tihe courts must be … concerned to avoid constitutionalizing
inequalities of power in the workplace and between societal actors in general” (Slaight Commu-
nications Inc. v. Davidson [1989] 1 S.C.R. 1038 at 1052, 59 D.L.R. (4th) 416). This decision is
exceptional, however, among constitutional cases in the labour field. Patrick Macklem interprets
this as being consistent with a recent ambivalence in the Supreme Court regarding the role of the
contractualist ideal and its intrinsic individualism. See P. Macklem, “Developments In Employ-
ment Law: The 1988-89 Term” (1990) 1 Sup. Ct. L. Rev. (2d) 405.
137Fudge, supra, note 42 at 493.
138Ibid. at 489-509 & 530.
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McGILL LAW JOURNAL
[Vol. 36
Thus legislation which formally treats men and women the same may have a
disparate impact on women.
Fudge noted an exceptional case, Action Travail des Femmes v. C.N.R. 39
in which the Supreme Court of Canada affirmed the need to address systemic
discrimination by implementing affirmative hiring programs in the workplace.
Fudge warned, however, that we must be cautious not to read Action Travail as
signalling a new judicial approach to equality.’40 The decision was merely a val-
idation of the decision of an expert human rights tribunal (which the court
quoted directly in the judgment), well versed in dealing with complex issues of
equality. By contrast, Fudge argued, a challenge to s. 15 of the Charter would
require the court independently to assess the scope of equality and strike down
legislation if it saw fit.’
More recent judgments reviewing the decisions of human rights tribunals
have followed the lead of Action Travail in promoting gender equality in the
employment realm. The Supreme Court-has ruled that both sexual harassment’42
and discrimination based on pregnancy’4 3 are forms of sex discrimination, which
the employer has a responsibility to prevent.’ 4 Nevertheless, the Supreme Court
has yet to address employment-related gender discrimination in the context of
a challenge under s. 15 of the Charter.’45 However, even if rights adjudication
Action Travail cited to S.C.R.].
139Action Travail des Femmes v. C.N.R., [1987] 1 S.C.R. 1114,40 D.L.R. (4th) 193 [hereinafter
‘ 40Fudge, supra, note 42 at 501.
141Ibid
142″When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual
power” (Janzen and Govereau v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252 at 1284, 59 D.L.R.
4th 352, (Dickson C.J.)).
143″Discrimination on the basis of pregnancy is a form of sex discrimination because of the basic
biological fact that only women have the capacity to become pregnant” (Brooks v. Canada Safeway
Ltd., [1989] 1 S.C.R. 1219 at 1242, 59 D.L.R. (4th) 321, (Dickson C.J.) (overruling Bliss v. Attor-
ney General of Canada, [1979] 1 S.C.R. 183, 92 D.L.R. (3d) 417 which held the opposite)).
‘4’hough not in the context of sex discrimination, the Supreme Court has also held that an
employer cannot justify discrimination on the basis of a “bona fide occupational qualification”
(which has been a successful defence to discrimination on the basis of pregnancy: Mack v. Marivt-
san et al., [1989] 89 C.L.L.C. para. 17,004 (S.H.R.B.I.)) where there is indirect discrimination due
to an adverse effect of a condition of employment. There is a duty on the employer, short of undue
hardship, to accomodate the adversely affected employee or group: Alberta Human Rights Com-
mission v. Central Alberta Dairy Pool et aL, [1990] 2 S.C.R. 489, 6 W.W.R. 193. The Supreme
Court also granted leave recently in a similar case from the British Columbia Court of Appeal in
which the question is raised whether there is also a duty to accomodate on the union: Renaud v.
Board of School Trustees, District No. 23 (Central Okanagan) et. al., leave to appeal granted
[1990] S.C.C. Bull. 1760.
145There is, however, an application in the Supreme Court of Canada for leave to appeal the deci-
sion of the Ontario Court of Appeal in Re Tomen et al. and Federation of Women Teachers’ Asso-
ciations of Ontario et al. (1989), 70 O.R. (2d) 48, 61 D.L.R. (4th) 565 in which a s. 15 argument
was raised. The appellants are challenging a law which requires teachers to join certain unions
based, in part, on their gender. The Ontario Court of Appeal dismissed the appeal without consid-
1991]
COLLECTIVE BARGAINING
1211
can further the interests of gender equality, it may not provide a complete solu-
tion. The assumption that legislators will respond to rights adjudication by
implementing systemic reforms in employment law has been characterized as
suffering strains of romanticism. 146
Procedurally, using the Charter or Canadian Bill of Rights47 may alter the
relationship of the worker to the employer and to the state by making it legal-
istic, formal and ultimately, inaccessible. There may be reason to question the
belief that the courts, complete with complex and formalistic procedures, adver-
sarial norms, and costly, delayed proceedings, will be any more amenable to
meaningful participation by women than the institution of collective bargaining
itself.
In thinking about the merits of turning to rights as a solution to gender ine-
quality, work in the area of race and legal reform might be helpful. Kimberl6
Williams Crenshaw writes about the dilemma American Blacks face in evalu-
ating the utility of liberal-based civil rights discourse in their struggle. 41 While
the legitimation of a meritocratic free market has helped to co-opt Blacks
through formal equality and reinforce the belief that they are socially inferior,
rights discourse has also been the means by which Blacks have made their most
important gains in American society. Crenshaw thinks the solution is the “prag-
matic use of liberal ideology” in a way that preserves rights but transcends the
oppositional dynamic in which Blacks are cast as subordinate.’49 Feminists, as
well, may reap qualified benefits through human rights adjudication. While
there is reason to remain wary of classical liberalism as an answer to feminist
concerns, I agree with Crenshaw that “rights-talk” need not be wholly antithet-
ical to progress towards equality and, in the labour milieu, more balanced par-
ticipation.’50
ering the s. 15 argument on the ground that the impugned legislation was private and thus outside
the scope of the Charter.
146Paul Weiler makes this point in cautioning against what he calls the romantic liberalism of
David Beatty and others. See P. Weiler, “The Charter at Work: Reflections on the Constitutional-
izing of Labor and Employment Law” (1990) 40 U.T.L.J. 117 at 141.
147Canadian Bill of Rights, R.S.C. 1985, Appendix III.
148K.W. Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in
Antidiscrimination Law” (1988) 101 Harvard L. Rev. 1331 at 1370.
1491bid. at 1385-86.
150This echoes themes in the now-classic formulation by Duncan Kennedy of the “fundamental
contradiction.” Kennedy speaks of the inescapable tension, a pervasive theme in liberalism,
between individual freedom and collective coercion:
The very structures against which we rebel are necessarily within as well as outside of
us. We are implicated in what we would transform, and it in us. This critical insight
is not compatible with that sense of the purity of one’s intention which seems often to
have animated the enterprise of remaking the social world. None of this renders polit-
ical practice impossible, or even problematic: we can overcome oppression without
having overcome the fundamental contradiction, and do something against it. But it
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[Vol. 36
M. Toward Structural Change: Selected Aspects of Collective Bargaining
Law and Possibilities for Reform
I stated in the Introduction that although there are problems with current
Canadian collective bargaining law, I endorse its aspiration, which is to enhance
the participation of workers in determining the conditions that affect their lives.
The question now is this: how can we preserve collective bargaining law while
working to eliminate the processes which reinforce the social construction of
gender? Statutory minimum standards, such as pay equity and anti-
discrimination legislation, while salutory, operate “from the outside in.” In other
words, they attempt to remedy problems that arise, in part, from a defective
process, but the process itself remains the same. In changing the process, we
need to find ways to enhance opportunites for women to become involved in
union activites, to voice their concerns, and to have those concerns met. In this
Part of the paper, I will make several suggestions for reform within the frame-
work of collective bargaining itself.
I mentioned earlier that collective bargaining legislation encourages a com-
bative approach to dispute resolution. The strike and lockout (or threats of
either) remain the prime arsenal in forcing agreement. Indeed, the right to strike
is a primary, perhaps the primary, lever of worker power under collective bar-
gaining law. At the same time, alternative methods of problem solving may bet-
ter fit the sensibilities and encourage the participation of many workers, such as
women, who fail to see strikes as the optimal path to dispute resolution.’ This
creates a paradox. Power, as traditionally conceptualized in the collective bar-
gaining relationship, sits opposed to the full participation collective bargaining
seeks to encourage. Despite this apparent dilemma, I think there is room for rec-
onciliation of these competing concerns through the implementation of pro-
grams to facilitate greater co-operation between union and management. While
not eliminating the strike and lockout as instruments of last resort, such pro-
grams might reduce the incentives of parties to make use of them.
Commentators have suggested an alternative model of collective bar-
gaining which would seek to increase employee morale and productivity by
replacing negative tactics with an atmosphere of accomodation, co-operation,
trust, and respect.”5 2 Currently, collective bargaining statutes throughout Canada
not only provide mechanisms for conciliation or mediation, but also usually
require exhaustion of these procedures before the parties are legally permitted
does mean proceeding on the basis of faith and hope in humanity, without the assurance
of reason (D. Kennedy, “The Structure of Blackstone’s Commentaries” (1979) 28 Buf-
falo L. Rev. 205 at 212-13).
15 1See, supra, notes 58-61 and accompanying text.
’52D. Yoder & P.D. Staudohar, “Rethinking the Role of Collective Bargaining” (1983) 34 Labor
L.J. 311 at 314.
1991]
COLLECTIVE BARGAINING
1213
to strike or lockout.i 3 However, these mechanisms constitute only one aspect of
co-operative union-management relations. The sort of scheme I am referring to
is far broader reaching. It would involve consultation between organized labour
and mangagement in decisions affecting control of the enterprise. 5″
There is an extensive body of literature exploring this idea, to which my
treatment here cannot do justice. However, for the purposes of illustration, I will
sketch briefly how such a scheme might operate. An effective mechanism for
enhancing co-operation at this level would be to create committees or teams,
comprised of union and management representatives. These committees would
meet on a scheduled basis to discuss issues arising in the maintenance of the
collective agreement. As such, they would serve a troubleshooting function, as
well as providing an educative role by broadening each party’s awareness of the
other’s concerns. If successfully implemented, this type of network would cul-
tivate a sense of common mission between management and labour, thereby
reducing the mistrust that traditionally divides the two cultures.
Empirical and comparative research suggests that the success of such pro-
grams requires a significant commitment in principle and resources by both par-
ties. The most effective joint labour-management teams are those having fre-
quent (e.g., weekly) meetings and which make decisions of some weight, rather
than merely engaging in discussion or making recommendations. 5 Another
effective technique is to give union members a “right of consultation” in
decision-making at the plant and enterprise levels.’56 Evidence suggests that
there is less resort to strike action where co-operative or horizontal rather than
hierarchical union-management structures exist.57 For one thing, union repre-
153See, specifically, Canada Labour Code, R.S.C. 1985, c. L-2, ss 71 & 89; Labour Relations
Code, S.A. 1988 c. L-1.2, ss 62 & 71-72; Labour Code, R.S.B.C. 1979, c. 212, as am., ss 137.3
& 81-82; Labour Relations Act, R.S.M. 1987, c. L-10, ss 67, 95 & 94; Industrial Relations Act,
R.S.N.B. 1973, c. 1-4, ss 36 & 91; Labour Relations Act, 1977, S.N. 1977, c. 64, ss 79 & 94; Trade
Union Act, R.S.N.S. 1989, c. 475, ss 35 & 45; Labour Relations Act, R.S.O. 1980, c. 228, ss 16
& 72(2); Labour Act, R.S.P.E.I. 1988, c. L-1, ss 24 & 40(3); Labour Code, R.S.Q. c. C-27, ss 54
& 58, Trade Union Act, R.S.S. 1978, c. T-17, s. 22.
154For more comprehensive discussions of these principles, see D. Drache & H. Glasbeek, “The
New Fordism in Canada: Capital’s Offensive, Labour’s Opportunity” (1989) 27 Osgoode Hall L.J.
517; K. Stone, “The Future of Collective Bargaining: A Review Essay” (1989) 58 U. Cin. L. Rev.
477; K. Stone, “Labor and Corporate Structure: Changing Conceptions and Emerging Possibilities”
(1988) 55 U. Chi. L. Rev. 73; K.W. Wedderbum (Lord), “Trust, Corporation and the Worker”
(1985) 23 Osgoode Hall L.J. 203; Weiler, supra, note 62, ch. 5.
55W. Cooke, “Factors Influencing the Effect of Joint Union-Management Programs on
1
Employee-Supervisor Relations” (1990) 43 Ind. & Lab. Rel. Rev. 587.
156This type of system has met with considerable success in Sweden: for a description, see C.
Summers, “Patterns of Dispute Resolution: Lessons From Four Countries” (1991) 12 Comp. Lab.
L.J. 165 at 167-69.
157See ibid. at 168 and B. Levesque, “Cooperation et Syndicalisme: Le Cas des Relations du
Travail dans les Caisses Populaires Desjardins” (1991) 46 Rel. Ind. 13.
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McGILL LAW JOURNAL
[Vol. 36
sentatives can put the issue of greater decision-making power on the bargaining
table. Better still, collective bargaining statutes could be amended to require or
give unions the option of creating, by way of vote, horizontal management
teams or rights of consultation. Though the strike may remain the ultimate chal-
lenge to employer control, with these more immediate levers of power in the
hands of the union, the strike would become a less desirable alternative.
I am optimistic that the enhanced employee participation fostered by these
methods would help transcend gender boundaries. The parties’ working jointly
and equally towards common goals such as harmonious relations and the suc-
cess of the enterprise would instil a less oppositional atmosphere. The con-
textualized mode of problem-solving advocated by feminist scholars, examined
earlier in this article, is fundamental to the present discussion. A collective bar-
gaining scheme incorporating co-operative structures may well be conducive to
a version of Bartlett’s “feminist practical reasoning.”’58 The parties would ben-
efit by recognizing and confronting one another’s divergences of interest, sta-
ting their assumptions and partialities, and seeking an empathetic understanding
of each other’s position. Such an atmosphere, according to the preceding anal-
ysis, would be less alienating to women and possibly other excluded groups of
workers. Accordingly, employee participation would increase, and worker-
management relations would take place under more harmonious conditions. The
result would serve the interests of both parties and both genders.
To clarify further, I do not suggest simply that the parties should “be nice”
to each other so that women will be more interested in participating. There is
justified fear that such an approach could serve to cloak worker co-optation in
a deceptive facade of co-operation. Although I maintain the belief that
co-operative schemes will reduce the traditional combativeness of the bar-
gaining relationship, this need not be synonymous with a reduction of union
power. Rather, the notion of union-management co-operation envisages the
replacement of one type of labour power by another. Power through the use of
the strike and lockout weapons of economic force is at least partially replaced
by power through the sharing of economic decision-making control.
Characterized in this light, co-operative schemes involve a radical shift in
workplace proprieties. They require a modification of the prevailing under-
standing of management control as vested in ownership. 59 It may be that justice
in employment requires a reconceptualization of the prerogatives of manage-
ment and the social meaning of property. Patrick Macklem, for example, envis-
ages a “relativist” conception of status and property in the employment milieu,
158Bartlett, supra, note 28 and accompanying text.
159This understanding, popularly known as “reserve management rights,” gives management, as
owner (or agent thereof) of the enterprise, the right to make management decisions and use its
property as it sees fit unless it has specifically bargained those rights away.
1991]
COLLECTIVE BARGAINING
1215
such that the rights attaching to managerial status and property are fluid and
must be justified according to their context and purpose.”6
In addition to facilitating positive change in the overall bargaining milieu,
I would expect the structures put in place by these schemes also to be conducive
to more direct measures for promoting workplace equality. In Canada, the only
programs currently directed specifically at promoting equality are administered
by umbrella groups hoping to increase general awareness. For example, the
B.C. Federation of Labour set up a Women’s Committee, which has recom-
mended that employer monies be allocated to funding women’s attendance at
conferences devoted to enhancing women’s participation, that women’s com-
mittees be set up in unions throughout the province, that union meetings be
scheduled during worktime or lunch hours, and that affirmative action be taken
to place women in leadership positions in labour organizations across the coun-
try.” ‘ Some European countries, on the other hand, have attempted through leg-
islation to implement such measures.’62 In Sweden, this has given rise to “equal-
ity committees,” set up at the option of unions across the country, which lobby
for and monitor the implementation of equality policies. 63 However, the forma-
tion of these committees, because it is optional, has met with some resistance. 64
A union may choose not to create such committees, and if it does, may pay lip
service to their recommendations. Management, in turn, may reject any
equality-enhancing proposals that the union does bring to the bargaining table.
In light of early signs of success emanating from joint worker-management par-
ticipation schemes generally, it may be fruitful to explore similar proposals for
instituting equality-enhancing measures. Joint management-labour teams could
be mandated, not only for the task of management, but also for the more spe-
cialized task of implementing equality measures.
The subject of equality within unions leads me to a second suggestion for
legal reform, this one aimed at trade unions themselves. Collective bargaining
statutes are relatively non-interventionist with respect to the constitution of
trade unions. A minority of jurisdictions bar the certification of a union if it dis-
160P. Macklem, “Property, Status and Workplace Organizing” (1990) 40 U.T.L.J. 74 at 96.
161See Women’s Rights Committee, “Policy Statement on Eliminating Barriers to Women’s
Union Activities,” Summary of Proceedings of the B.C. Federation of Labour Annual Convention
(30 Nov. – 4 Dec. 1987) 142.
162See A. Cook, “Collective Bargaining as a Strategy for Achieving Equal Opportunity and
Equal Pay: Sweden and West Germany” in R. Steinberg Ratner, ed., Equal Employment Policy for
Women: Strategies for Implementation in the United States, Canada and Western Europe (Phila-
delphia: Temple University Press, 1980) 53.
163 Ibid. at 69. The initiatives of these committees include on-the-job training of women in expert
technical work, and men in typing, introduction of a shorter working week and flextime for both
sexes, enhanced paternity leave provisions, and rotating chairmanships and group participation in
policy planning and office committees.
164Ibid. at 70.
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criminates on grounds of discrimination prohibited by human rights codes and
the Charter.6 Even these measures, however, would encounter enforcement
obstacles. The worker who feels discriminated against but neverthless is eager
to unionize faces a dilemma as to how to vote. The worker who wishes to defeat
certification on the grounds of discrimination also faces a dilemma as to
whether to make unrepresented submissions to the labour board, bear the costs
of representation, or form a potentially uncomfortable alliance with the
employer against the union. Finally, the employer wishing to defeat certification
on this ground may not have access to evidence to support the claim. Perhaps
it is no surprise that I can find no cases where certification was denied because
of sex discrimination.
A more effective way to promote equality within unions would be to guar-
antee positive as well as negative rights. It could be required that affirmative
equality guarantees be established as a precondition of certification. The most
obvious strategy, already adopted voluntarily by some unions,” 6 is to require
that a certain number of seats be reserved for women in the union. There might
be a requirement, for example, that there be proportional representation by gen-
der in executive positions.
A third area where I see possibilities for equality-enhancing reform is
“unfair labour practices.” Collective bargaining statutes across Canada contain
rules designed to prevent employers from interfering with union organizing
activity. Accordingly, an employer cannot discriminate against, intimidate,
threaten or otherwise discipline any person because of his or her participation
in trade union activities. 67 However, these protections are tragically diluted by
the limitations placed on how and when the employer’s premises may be used
for organizing activities. It lies wholly within the discretion of the employer to
give a union access to its premises. 68 In addition, the employer is entitled to
165B.C. Labour Code, s. 50; N.S. Trade Union Act, s. 24(15); Ont. Labour Relations Act, s. 13
and P.E.I. Labour Act, s. 14.
166See “Union Reserved Seats – Creating a Space for Women” (1990) 79 Labour Research 7;
“Equality for Women in Trade Unions” (1990) 31 Equal Opportunities Rev. 18.
167 Canada Labour Code, s. 94; Alberta Labour Relations Code, s. 146; B.C. Labour Code, s.
3; Manitoba Labour Relations Act, s. 6; N.B. Industrial Relations Act, s. 6; Newfoundland Labour
Relations Act, s. 25; N.S. Trade Union Act, s. 51; Ont. Labour Relations Act, s. 66; P.E.I. Labour
Act, s. 9; Quebec Labour Code, s. 14; Saskatchewan Trade Union Act, s. 11.
16SAs an example of the potential consequences of this rule, in R. v. Labelle (1965) 1 O.R. 321,
48 D.L.R. (2d) 37 (C.A.) union organizers were held liable in trespass for entering, for the purpose
of lawful union organizing, property for which the employer held a land use permit. Exceptions,
however, may be made where geographical constraints make it impossible or impracticable for the
union to gain access to the employees without entering the employer’s premises. See Cadillac
Fairview Corporation Ltd. v. Retail, Wholesale and Department Store Union et al. (1989) 71 O.R.
(2d) 206, 64 D.L.R. (4th) 267 (C.A.) [hereinafter Cadillac Fairview] (employer located in shop-
ping mall); and TNL Construction Ltd. v. Canadian Iron, Steel and Industrial Workers Union,
1991]
COLLECTIVE BARGAINING
1217
prohibit union activites during working hours. Labour boards have upheld
employer rules strictly limiting union activities to before or after the workday 69
and further, have withdrawn unfair labour practices protections where activities
have occured during the working day.17 Furthermore, despite the fact there is
nothing in labour relations statutes to prohibit union activities during break and
lunch periods at work, Cominco17′ has been taken as authority that the employer
can also regulate the conduct of employees during this time and discipline those
who overstep the bounds of permissible break-time organizing. These decisions
reflect a policy of balancing the workers’ rights to undertake trade union activ-
ities against the employer’s right to run an efficient business. 72 Clearly implicit
in this policy is deference to the concept of reserve management rights, dis-
cussed earlier.
However, in addition, by allowing employers to prohibit union activities
during working hours and restrict them during non-working hours, the law puts
those who are unable to attend meetings before and after work at a disadvan-
tage. Because women tend to have the least flexibility outside working hours
due to family obligations, these provisions have a disparate impact on women.
As a first suggestion for reform in this area, collective bargaining laws could
oblige the employer to provide the workers with some minimum monthly period
of working time for organizing activities. Certainly, collective bargaining legis-
lation is designed to maximize the freedom of the parties to strike the terms of
their own agreement, but in the context in which it operates –
a regime where
Local 1 (1989) 90 C.L.L.C. para. 16,026 (B.C.I.R.C.) (employer operation at remote mining site
accessible only by helicopter).
169See Cadillac Fairview, ibid.; International Chinese Restaurant [1977] O.L.R.B. Rep. 681;
Adams Mine, Cliffs of Canada Ltd. [1982] O.L.R.B. Rep. 1767 [hereinafter Adams Mine]; Ottawa-
ires (Canada) Ltd. and
Carleton Regional Transit Commission [1985]. But see Re Michelin
United Rubber, Cork, Linoleum and Plastic Workers of America, et al. (1979), 35 N.S.R. (2d) 104,
107 D.L.R. (3d) 661 (C.A.), in which the Board arguably permitted an employer to prevent orga-
nizing activities outside the workday as well. The Board, although it issued a cease and desist order
against the employer for extending a no-solicitation rule to periods outside working hours, held that
it was not empowered under the Nova Scotia Act to order the employer to send a letter to employ-
ees explaining the effect of the cease and desist order.
170See Union of Bank Employees, Local 2104 (C.L C.) v. Canadian Imperial Bank of Commerce,
(1985) 85 C.L.L.C. para. 16,021; Consolidated Fastfrate, [1980] O.L.R.B. Rep. 418 at 421, and
Adams Mine, ibid. However, it has been held on more than one occasion that employees’ wearing
union pins while working is not solicitation and thus ordering their removal constitutes an unfair
labour practice by the employer: Quan v. Canada (Treasury Board), [1990] 2 RC. 191, 107 N.R.
147 (C.A.); Union of Bank Emplyees (B.C. and Yukon), Local 2100 v. Canadian Imperial Bank of
Connerce, North Hills Shopping Centre and Victoria Hills Branches, (1979) 80 C.L.L.C. para.
16,001 (C.L.R.B.); United Steelvorkers of America v. Rosco Metal Products Ltd., (1964) 64
C.L.L.C. para. 16,303 (O.L.R.B.).
171Cominco Ltd. v. Canadian Association of Industrial Mechanical and Allied Workers, Locals
23, 24, 25, 26 and 27 and United Steelworkers, Locals 480, 651, 8320, 9705 and 9672, [1981] 3
Can. L.R.B.R. 499 (B.C.L.R.B.).
172Consolidated Fastfrate Ltd., supra, note 170.
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both parties benefit from stable collective employee representation –
it seems
reasonable that management be required to bear some of the costs of securing
fair and adequate representation. At a minimum, the legislation could compel
one or both parties to provide child-care facilities or expenses for union meet-
ings taking place outside working hours.
A fourth area meriting discussion is bargaining unit determination. Bar-
gaining unit determination has been emphatically described as a determination
of “the essential power relation in industrial relations” and “nearly everything
of consequence.”‘ 73 Labour relations boards generally have unfettered discretion
to determine the appropriate bargaining unit. 74 There is a multitude of compet-
ing considerations in determining bargaining unit size.’75 The larger the bar-
gaining unit, the more powerful its bargaining position relative to the employer.
However, the interests of marginalized groups within the unit are likely to be
sacrificed in favour of a strong and unified collective voice. Where bargaining
units are small and decentralized, on the other hand, they may be less powerful,
but can more faithfully represent the unique interests of their constituents. Fur-
thermore, they are easier to organize because of the ease of communication and
harmony of interests possible within a small cohesive group. However, another
disadvantage of small units is that the achievement of industrial stability may
be more difficult. Where fragmented units represent workers in interdependent
segments of one industrial sector, a strike by one bargaining unit may disrupt
the entire industry.
I see this as particularly pertinent to women’s situation, where personal
contacts and a sense of support from the immediate community are more impor-
tant than pressure from a large group in encouraging union membership. 76
However, the smaller unit suffers pitfalls beyond lack of bargaining power. For
example, the high turnover of employees in female-dominated fields may make
it difficult to maintain continuity and coherence within small units. It has also
been suggested that, in smaller units, closer personal relations are likely to
173J. Rogers, “Divide and Conquer: Further ‘Reflections on the Distinctive Character of Amer-
ican Labor Laws”‘ [1990] Wisconsin L. Rev. I at 121.
174See, respectively, Canada Labour Code, s. 27; Alberta Labour Relations Code, s. 32; B.C.
Labour Code, s. 42; Manitoba Labour Relations Act, s. 45(1); N.B. Industrial Relations Act, s.
13(1); Newfoundland Labour Relations Act, s. 37(1); N.S. Trade Union Act, s. 24(4); Ont. Labour
Relations Act, s. 6; P.E.I. Labour Act, s. 12; Saskatchewan Trade Union Act, s. 5(a). In Quebec,
however, the Labour Commissioner is restricted to requests by the parties and the specifics of
applications made (Quebec Labour Code, s. 28).
175The B.C. Labour Board reviewed them in Insurance Corporation of British Coltmbia v.
Canadian Union of Public Employees et aL, [1974] 1 Can. L.R.B.R. 403 (B.C.L.R.B.). There is
also a substantial body of literature on the subject. Two discussions I found useful are in B. Lan-
gille, “The Michelin Amendment in Context,” (1981) 6 Dalhousie L.J. 523 and P. Weiler, Recon-
cilable Differences (Toronto: Carswell, 1980) at 151-78.
176Lowe, supra, note 118 at 331-32.
1991]
COLLECTIVE BARGAINING
1219
develop between employees and supervisors and serve as a deterrent to organi-
zation.177 Regarding the latter point, however, it might equally be argued that the
closely knit community composing a small bargaining unit could support resist-
ance and liberation as easily as acquiescence and accomodation 7 s
The poignancy of the dilemma is illustrated in the history of unionization
failures in female-dominated occupations, such as bank and clerical workers in
Canada. In the mid-1970’s the female office employees of the Canadian Impe-
rial Bank of Commerce campaigned vigorously, led by the Service, Office and
Retail Workers Union of Canada (S.O.R.W.U.C.), a feminist union, for branch-
by-branch bargaining units. 7 9 They saw this strategy as a foil for their fiercely
anti-union employer and the barriers to organizing the 2,000 branches dispersed
across Canada. After a history of labour board resistance to branch-based
the bank workers rejoiced at the pathbreaking decision of the Canada
units,’
Labour Board that individual branches were more appropriate units for repre-
It was not long, however, before a
senting their “communities of interest.””
whole new set of difficulties emerged with the decentralized units. Union lead-
ers faced onerous organizational and financial burdens in having to negotiate for
each branch individually. Furthermore, the banks were intransigent in their
refusal to accomodate the union’s request to negotiate a single master agree-
ment. One year after the celebrated Labour Board ruling, S.O.R.W.U.C., unable
to meet the demands on its resources, had its bank certifications cancelled. Sim-
ilar difficulties defeated the attempt of Eaton’s department store clerks, once
certified in 14 bargaining units spread across 6 Ontario stores, to bargain effec-
tively with the employer.”2 The pointed refusal of the employer to negotiate a
master agreement or even to meet with more than one bargaining unit at a time
resulted in frustration, expense, delays and, ultimately, the decertification of the
union. These tactics were legal, and indeed, found to be consistent with a legit-
imate employer policy to engage in “hard bargaining.”‘8 3
177See Lennon, supra, note 128 at 226.
178See R. Austin, “Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of
Emotional Distress” (1988) 41 Stan. L. Rev. 1 at 29-35.
179My sources for this discussion, where the campaign was analyzed at greater length, are Len-
non, supra, note 128; and Weiler, supra, note 175 at 15-20.
’80Kitimat, Terrace and District General Workers Union Local No. 1538 CLC v. Bank of Nova
Scotia, Kitimat (1959) 59 C.L.L.C. para. 18,152 (C.L.R.B.); Syndicat National des Employis de
la Banque Canadienne Nationale v. La Banque Canadienne National, (1967) 67 C.L.L.C. para.
16,010 (C.L.R.B.).
[1977] 2 Can. L.R.B.R. 99 (C.L.R.B.).
‘8’Service, Office and Retail Workers Union of Canada v. Canadian Imperial Bank of Commerce
’82See A. Forrest, “Organizing Eaton’s: Do the Old Laws Still Work?” (1988) 8 Windsor YB.
Access Just. 190.
C.L.L.C. para. 16,026 (O.L.R.B.).
’83Retail, Wholesale and Department Store Union v. T Eaton Company Ltd. et al., (1984) 84
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[Vol. 36
The Canada Labour Board later retreated from its endorsement of branch-
specific bargaining units, adopting instead the concept of “clusters” of establish-
ments on the basis of geographical area. The policy of labour boards across
Canada appears generally to be to avoid fragmentation in favour of large cen-
tralized units able to bring enough economic pressure to bear on the employer
to have some impact. The Ontario Board, on the other hand, has recently
favoured regimes of smaller units in some sectors,’
expressing concern about
difficulties the union might otherwise have in reconciling competing interests,’
and the broader impact this may have on the viability of the bargaining relation-
ship.
186
We return, then, to the original dilemma, which labour boards evidently
have been unable to resolve in a consistent manner. One way to deal with the
tension described above could be to occupy some middle ground between
strictly independent local bargaining units and a single broad-based unit. For
example, a labour board might certify small units to facilitate the fledgling
stages of organization but then allow some form of enlargement later.’87
Although such practice might ultimately result in some compromise of the inter-
ests and autonomy of individual units, it is arguably a justifiable quid pro quo
for the achievement of certification. A variety of techniques, such as amalgama-
tion,’88 certification of trade union councils,’89 “sweeping in””‘ and decentrali-
zation of unions 9’ have been explored elsewhere and, though not without their
own difficulties, merit further investigation.
Conclusions
In this article I have argued from a feminist perspective that collective bar-
gaining fails to create justice, equality, participation and autonomy, both among
workers and between workers and employers. I advocate applying feminist
methods in the context of workplace conduct and organization because I am
optimistic of their transformative potential for both men and women in the
184For example, among trust company workers National Trust, [1988] O.L.R.B. Rep. 168.
’85Kidd Creek Mines Ltd., [1984] O.L.R.B. Rep. 481 at 495.
’86Adams Furniture Co. Limited, [1975] O.L.R.B. Rep. 491 at 493.
187The B.C. Board discussed the advantages of this approach in Woodward Stores (Vancouver)
Ltd. v. Graphic Arts International Union, Local 210 and Bakery and Confectionary Workers Inter-
national Union of America, Local 468, [1975] 1 Can. L.R.B.R. 114 (B.C.L.R.B.); see also The
Original Dutch Pannekeok House Ltd. and the Frying Dutchman Restaurants Ltd. v. Hotel, Res-
taurant & Culinary Employees Union and Bartenders Union, Local 40 (1978), [1979] 1 Can.
L.R.B.R. 212 (B.C.L.R.B.).
188A. Forrest, “Bargaining Units and Bargaining Power” (1986) 41 Rel. Ind. 840 at 849.
’89Weiler, supra, note 175 at 165-68.
19Langille, supra, note 175.
191Weiler, supra, note 62 at 222-23.
1991]
COLLECTIVE BARGAINING
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labour law setting. 92 I do not want, however, to be over-simplistic in my crit-
icism of the combative nature of traditional collective bargaining. While a
de-emphasis of opposition may serve to increase the participation and empower-
ment of women within the collective bargaining setting, it would be unrealistic
to believe that it could be dispensed with entirely in the current regime or per-
haps in any regime. Indeed, an absolute elimination of opposition between
workers and employers would be regressive. It would be a bittersweet victory
indeed if workers seeking to reduce conflict in their relations with the employer
paid the price of presumed consent to their own domination.
Part of the goal of feminism is to find ways for women to challenge tra-
ditional power structures. This is, intrinsically, an exercise in opposition. But
while conflict may be necessary to social change, I think there is also room for
evolution of the methodologies employed. If opposition breeds opposition, then
conversely, methods more conducive to mutual support, sense of community,
and co-operative participation may assist in altering the tenor of the workplace
as a whole.
I believe in the potential of collective bargaining among other forms of
employment regulation to help build this new working environment and permit
employees to play a meaningful role in shaping the conditions of their working
lives. Many of the system’s flaws are rooted much more deeply, in the founda-
tional ideological premises of our society. The task of reformulating such ide-
ology is immense. It would be naive to presume that modifications to collective
bargaining law are the panacea for this greater ailment. Nevertheless, I have
made some suggestions for reform within the current bargaining framework in
the hope that they can serve as examples of initial steps towards transformation.
192Nancy Ehrenreich similarly argues that legal measures against sexual harassment based on
feminist principles will help “reveal to men the narrow confines of their own gender identities, thus
enabling them to see that feminist reforms (ultimately) offer benefits to both sexes” (N.S. Ehren-
reich, “Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment
Law” (1990) 99 Yale L.J. 1177 at 1230).
