1. History and Class Consciousness: Studies in Marxist Dialectics 263–70 (Cambridge, Mass.: MIT Press, 1971 [1923]).Google Scholar

2. “Law and Morality,” 8 Tanner Lectures on Human Values 220 (1988) (Habermas, “Law and Morality”).Google Scholar

3. Similar actions in South Africa in the mid-1980s and in Great Britain forced the repeal of the Industrial Relations Act of 1971. For discussion of the British boycott, see Brian Weekes et al., Industrial Relations and the Limits of Law (Oxford: Basil Blackwell, 1975); William Gould, “Taft-Hartley Comes to Great Britain: Observations on the Industrial Relations Act of 1971,” 81 Yale L.J. 1421 (1972); Lorraine McDonough, “The Transferability of Labor Law: Can an American Transplant Take Root in British Soil?” 13 Comp. Lab. L.J. 504 (1992).CrossRefGoogle Scholar

4. See, for instance, Elizabeth Iglesias, “Structures of Subordination: Women of Color at the Intersection of Title VII and the NLRA: Not!” 28 Harv. Civ. R.–Civ. Lib. L. Rev. 395 (1993), for a discussion of labor and collective identities; Richard Epstein, “A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation,” 92 Yale L.J. 947 (1983); Katherine Van Wezel Stone, “The Legacy of Industrial Pluralism: The Deregulation of Labor Relations in the 1980s” (presented to Law & Society Association annual meetings, Amsterdam (1991), for a discussion of rights and the perceived need for unions. See John Dunlop, “The Limits of Legal Compulsion,” 27 Lab. L.J. 67 (1976), for a discussion of complexity. I, too, discuss complexity below, but theorize that it is something which cannot be avoided. Unlike Dunlop and the industrial pluralists he represents, 1 believe that rights can aid in solving the problems of complexity rather than causing its negative side effects.Google Scholar

5. See, e.g., Karl Klare, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness,” 62 Minn. L. Rev. 265 (1978); James Atleson, Values and Assumptions in American Labor Law (Amherst: University of Massachusetts Press, 1983); Katherine Van Wezel Stone, “The Post-War Paradigm in American Labor Law,” 90 Yale L.J. 1981 (1981). For 19th-century studies which argue a similar point about the antagonism between legality and progressive social action, see William Forbath, Law and the Shaping of the American Labor Movement (Cambridge: Harvard University Press, 1991) (“Forbath, Shaping”), and Victoria Hattam, Labor Visions and State Power: The Origins of Business Unionism in the United States (Princeton, N.J.: Princeton University Press, 1993). See also the cautionary words of David Montgomery, Citizen Worker: The Experience of Workers in the United States with Democracy and the Free Market during the Nineteenth Century 10, 11 (New York: Cambridge University Press, 1993).Google Scholar

6. See Rick Fantasia, Cultures of Solidarity: Consciousness, Action and Contemporary American Workers (Berkeley: University of California Press, 1988), and Kim Moody, An Injury to All: The Decline of American Unionism (London: Verso, 1988).Google Scholar

7. Density, defined as the percentage of organized workers, was about 30% in Canada and the United States in 1965. Today, density stands at around 16% in the United States, compared with 37% in Canada.Google Scholar

8. Paul Weiler, Governing the Workplace: The Future of Labor and Employment Law (Cambridge: Harvard University Press, 1990) (“Weiler, Governing the Workplace“); Noah Meltz, “Unionism in the Private Sector: A Canada-United States Comparison,” in Jane Jenson & Rianne Mahon, eds., The Challenge of Restructuring: North American Labor Movements Respond (Philadelphia: Temple University Press, 1993) (“Jenson & Mahon, Restructuring”); Peter Bruce, “State Structures and the Processing of Unfair Labour Practice Cases in the United States and Canada”, in id.; Joseph Rose & Gary Chaison, “The State of the Unions: United States and Canada,” 97 J. Lab. Res. 97 (1985). It is worth noting that even Paul Weiler who has argued the benefits of Canadian law suggests that a European model less based in contestable rights would be more advantageous for labour.CrossRefGoogle Scholar

9. Leo Panitch & Donald Swartz, The Assault on Trade Union Freedoms (Toronto: Garamond Press, 1988); Jane Jenson & Rianne Mahon, “Legacies for Canadian Labour of Two Decades of Crisis” in Jenson & Mahon, Restructuring 71. Postwar Canadian labour law, while based on the American Wagner Act, does protect much better against employer efforts to resist unionization, the lack of which American studies have shown to be integrally related to union weakness south of the border. See Michael Goldfield, The Decline of Organized Labor in the United States (Chicago: University of Chicago Press, 1987); William Dickens & J. Leonard, “Accounting for the Decline in Union Membership, 1950–1980,” 38 Indus. & Lab. Rel. Rev. 323 (1985); William Dickens, “The Effect of Company Campaigns on Certification Elections: Law and Reality Once Again,” 36 Indus. & Lab. Rel. Rev. 560 (1983); Paul Weiler, “Promises to Keep: Securing Workers’ Rights to Self-Organization under the NLRA,” 96 Harv. L. Rev. 1769 (1983). However, Canadian laws also eliminate the right to strike during the life of a contract, mandate reconciliation before strikes, retain the right of the state to intervene in labour disputes, and subject union leaders to fines for the illegal behavior of their members, all rules which are much broader than those faced by American unions. Because it has also been administered on a provincial level, the labour law has also been highly variable across jurisdictions making generalizations more difficult. See Weiler, Governing the Workplace 282–95 (cited in note 8). Alternative explanations for Canadian success include more favorable attitudes toward labour and larger public union density which can be found in Seymour Lipset, “Labor Unions in the Public Mind,” in Lipset, ed., Unions in Transition: Entering the Second Century 287 (San Francisco: ICS, 1986); Leo Troy, “Why Canadian Public Sector Unionism Is Strong,” 11 Gov't Union Rev. 1 (1990); id., “Is the US Unique in the Decline of Private Sector Unionism?” 11 J. Lab. Res. 111 (1990). See also the criticism of these alternative explanations by Peter Bruce, “Political Parties and Labour Legislation in Canada and the U.S.,” 28 Indus. Rel. 115 (1989); Gary Bowden, “Labor Unions in the Public Mind: The Canadian Case,” 26 Can. Rev. Soc. & Anthropology 723 (1989); and Pradeep Kumar, “Industrial Relations in Canada and the United States: From Uniformity to Divergence,” Queen's Papers in Industrial Relations 1991–2 (Kingston, Ont.: Industrial Relations Center, Queen's University, 1991).Google Scholar

10. Ian Robinson, “Economistic Unionism in Crisis: The Origins, Consequences, and Prospects of Divergence in Labour-Movement Characteristics,” in Jenson & Mahon, Restructuring 19 (Robinson, “Economistic Unionism”); Robinson, “Organizing Labour: Explaining Canada-U.S. Union Density Divergence in the Post-War Period” (Ph.D. diss., Dep't of Political Science, Yale University, 1990).Google Scholar

11. The practice of social unionism should not be conflated with the advent of social democracy. Although the Canadian welfare state is much more developed than the American, it is not nearly as complete as those of many European states. As Charlotte Yates's careful study of the Canadian Autoworkers has shown, unions in Canada and the United States must resort to a similar form of pluralist bargaining which is much more fragmented than the social democratic model. Charlotte Yates, From Plant to Politics: The Autoworkers Union in Postwar Canada (Philadelphia: Temple University Press, 1993). See also the theoretical ideas of Joel Rogers, “Divide and Conquer: Further ‘Reflections on the Distinctive Character of American Labor Laws,’ ” 1990 Wis. L. Rev. 1; and the comparative class analyses of William Johnston & Douglas Baer, “Class Consciousness and National Contexts: Canada, Sweden and the United States in Historical Perspective,” 30 Can. Rev. Soc. & Anthropology 271 (1993); and Wallace Clement, “Comparative Class Analysis: Locating Canada in a North American and Nordic Context,” 27 Can. Rev. Soc. & Anthropology 462 (1990).CrossRefGoogle Scholar

12. Robinson, “Economistic Unionism” at 31.Google Scholar

13. For a useful summary of this North American intellectual tradition, see Melvyn Dubofsky, The State and Labor in Modern America xi–xvii (Chapel Hill: University of North Carolina Press, 1994). Dubofsky's book stands as a useful critical approach to labour studies which places the consequences of legalized labour relations in a more ambivalent light. See also Melvin Dubofsky, “Legal Theory and Workers’ Rights: A Historian's Critique,” 4 Indus. Rel. L.J. 496 (1981).Google Scholar

14. Karl Marx, “Preface to a Critique of Political Economy,” in David McLellan, ed., Karl Marx: Selected Writings 390 (Oxford: Oxford University Press 1977).Google Scholar

15. For a discussion of the interaction of unions and new social movements, see Peter Waterman, “Social-Movement Unionism: A New Union Model for a New World Order?” 16 Review (Fernand Brandel Center for the Study of Economics, Historical Systems and Civilizations) 245 (1993); Nancy Gabin, Feminism in the Labor Movement: Women and the United Auto Workers, 1935–1975 (Ithaca, N.Y.: Cornell University Press, 1990); Ruth Milkman, “Union Responses to Workforce Feminization in the United States,” in Jenson & Mahon, Restructuring 226.Google Scholar

16. For a broad theoretical discussion, see Klaus Eder, The New Politics of Class: Social Movements and Cultural Dynamics in Advanced Societies (London: Sage Publications, 1993) (“Eder, New Politics“).Google Scholar

17. Fordism refers to a political economy integrating mass production with mass consumption via the institution of collective bargaining that assures high wages. For an excellent discussion of the particular social institutions of North American Fordism, see Mark Rupert, Producing Hegemony: The Politics of Mass Production and American Global Power (Cambridge: Cambridge University Press, 1995). For a theoretical discussion of Fordism and regulatory regimes, see Michel Aglietta, A Theory of Capitalist Regulation (London: New Left Books, 1979); Robert Boyer, The Regulation School (New York: Columbia University Press, 1990); Alain Lipietz, Mirages and Miracles: The Crisis of Global Fordism (London: New Left Books, 1987).Google Scholar

18. For a more extensive discussion, see Donald Swartz, “Capitalist Restructuring and the Canadian Labour Movement,” in Jenson & Mahon, Restructuring 381 (cited in note 8); Jane Jenson & Rianne Mahon, “Legacies for Canadian Labour of Two Decades of Crisis,” in id. at 71.Google Scholar

19. See Max Weber, Economy and Society 886, 894-95 (Berkeley: University of California Press, 1978).Google Scholar

20. Mancur Olson, The Logic of Collective Action (Cambridge: Harvard University Press, 1965). Olson understands law to be integral to the preservation of labour collectives by protecting the types of bureaucratic arrangements which unions require to prevent free riding. See id. at 88–91. See also Meir DanCohen, Rights, Persons, and Organizations 55–84 (Berkeley: University of California Press, 1986), for a discussion of the utilitarian tradition and legal rights in bureaucratic organizations.Google Scholar

21. See, e.g., Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University of Chicago Press, 1994) (“McCann, Rights at Work”); Neal Milner, “The Dilemmas of Legal Mobilization: Ideologies and Strategies of Mental Patient Liberation”, 8 Law & Pol'y 105 (1986); Stuart Scheingold, The Politics of Rights (New Haven, Conn.: Yale University Press, 1974), esp. at 83–148. See also Frances Zemans, “Legal Mobilization: The Neglected Role of the Law in the Political System,” 77 Am. Pol. Sci. Rev. 690 (1983); Paul Burstein & Kathleen Monaghan, “Equal Employment Opportunity and the Mobilization of Law,” 20 Law & Soc'y Rev. 355 (1986). McCann understands the theoretical position of contemporary legal mobilization theory to lie between neo-realism which underestimates law's constitutive power, and structuralism which overemphasizes the ideological impact of legal discourse. See Rights at Work 290–303.Google Scholar

22. Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (Ithaca, N.Y.: Cornell University Press, 1990) (“Minow, Difference”); id., “Interpreting Rights: An Essay for Robert Cover,” 96 Yale L.J. 1860 (1987); Pierre Bourdieu, “The Force of Law,” 38 Hastings L.J. 201 (1987).Google Scholar

23. McCann, Rights at Work 261–62. See also Patricia Ewick & Susan Silbey, “Conformity, Contestation, and Resistance: An Account of Legal Consciousness,” 26 New Eng. L. Rev. 731 (1992); and Gordon Marshall, “Some Remarks on the Study of Working-Class Consciousness,” 12 Politics & Soc'y 263 (1983).Google Scholar

24. Seyla Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics 104 (New York, Routledge, 1992) (“Benhabib, Self”).Google Scholar

25. See Jürgen Habermas, 1 The Theory of Communicative Action 1–271 (Boston: Beacon Press, 1981), and id., On the Logic of the Social Sciences (Cambridge, Mass.: MIT Press, 1988). Habermas has argued that it is necessary to transcend Weber's instrumentalist rationalization thesis with a dualistic notion of reason which added a theory of cognitive interests to his earlier work and a deontological ethics to his later writing. However, such a dualism in many ways vindicates Weber's enduring insight that “Sociology is a science concerning itself with the interpretive understanding of social action and thereby with a causal explanation of its course and consequences” (Weber, quoted in id. at 10), that, in other words, social explanation must incorporate both explanatory and interpretive approaches. For a discussion about Habermas's continual reliance on Weberian paradoxes, see John Tweedy & Alan Hunt, “The Future of the Welfare State and Social Rights: Reflections on Habermas,” 21 J.L. & Soc'y 288, 298–311 (1994). See Christopher Johnson, “Lifeworld, System, and Communicative Action: The Habermasian Alternative in Social History,” in Lenard Berlanstein, ed., Rethinking Labor History: Essays on Discourse and Class Analysis (Urbana: University of Illinois Press, 1993), for an attempt to bring this perspective to labour history.Google Scholar

26. Niklas Luhmann, quoted in Habermas, The Philosophical Discourse of Modernity: Twelve Lectures 263 (Cambridge, Mass.: MIT Press, 1987) (“Habermas, Discourse”). See also Luhmann, The Differentiation of Society 203-10 (New York: Columbia University Press, 1982).Google Scholar

27. Oliver W. Holmes, Jr., “The Path of the Law,” 10 Harv. L. Rev. 457 (1897).CrossRefGoogle Scholar

28. See Ralf Rogowski, “Industrial Relations, Labour Conflict Resolution and Reflexive Labour Law,” and other articles collected in Ralf Rogowski & Ton Wilthagen, eds., Reflexive Labour Law (Deventer: Kluwer Law & Taxation Publishers, 1994).Google Scholar

29. Klaus Eder argues that such systems are “the mechanisms by which the dominant elites reproduce their positions in an increasingly complex modern society. Such differentiation is not a master trend; it is the trend of the masters.” Eder, New Politics 31 (cited in note 16). While Eder and I both acknowledge the counter-systemic nature of much collective action today both by social movements and labour, my counter-argument here is that mediatized communication and the systems which it makes possible are not per se antagonistic to labour's interests, something which I believe the boycott to reveal.Google Scholar

30. Teubner, “Enterprise Corporatism: New Industrial Policy and the ‘Essence’ of the Legal Person,” 36 Am. J. Comp. L. 130, 139 (1988). Also see the discussions of Philip Selznick, Law, Society, and Industrial Justice 45 (New York: Russell Sage Foundation, 1969), and Joseph Vining, Legal Identity: The Coming of Age of Public Law 31 (New Haven, Conn.: Yale University Press, 1978).Google Scholar

31. H. J. Glasbeek, “Agenda for Canadian Labour Law Reform: A Little Liberal Law, Much More Democratic Socialist Politics,” 31 Osgood Hall L.J. 233, 247–48 (1993).Google Scholar

32. These arguments can be found within the debates between Jürgen Habermas and Niklas Luhmann. See Jürgen Habermas & Niklas Luhmann, Theorie der Gesellschaft oder Sozialtechnologie, (Frankfurt: Suhrkamp, 1971). See also Luhmann, Ecological Communication 133–38 (Cambridge: Polity Press, 1989); Habermas, Discourse 368–85. For an excellent general discussion, see Robert Holub, Jürgen Habermas: Critic in the Public Sphere 106–32 (London: Routledge, 1991), and see the provocative criticisms of Eva Knodt, “Toward a Non-Foundationalist Epistemology: The Habermas/Luhmann Controversy Revisited,” 61 New German Critique 77 (1994).CrossRefGoogle Scholar

33. See Habermas, Legitimation Crisis (Boston: Beacon Press, 1975).CrossRefGoogle Scholar

34. Quotation from Habermas, “Postscript to Faktizitat und Geltung,” 20 Philosophy & Soc. Criticism 135, 136 (1994). For other examples of the jurisprudential development in Habermas's thought, see in addition Habermas, Justification and Application: Remarks on Discourse Ethics 147–76 (Cambridge, Mass.: MIT Press, 1993); and Habermas, “Law and Morality” (cited in note 2). Also see Habermas, Between Facts and Norms (Cambridge, Mass.: MIT Press, forthcoming). For a general discussion of this development, see James Bohman, “Complexity, Pluralism, and the Constitutional State: On Habermas's Faktizitat und Geltung,“ 28 Law & Soc'y Rev. 897 (1994); David Rasmussen, “How Is Valid Law Possible? A Review of Faktizitat und Geltung by Jürgen Habermas,” 20 Philosophy & Soc. Criticism 21 (1994); and Mathieu Deflem, “Introduction: Law in Habermas's Theory of Communicative Action,” 20 Philosophy & Soc. Criticism 1 (1994). In earlier writings, Habermas notes several “waves of juridification” that enhance freedom, including the distinction of the lifeworld in the bourgeois state, the invention of civil rights in the German bourgeois constitutional state, and political rights created in the democratic constitutional state of the French Revolution. In the welfare state, law that seeks to bridle the economic and political systems is more ambivalent, being both freedom enhancing and restricting. I am arguing that this ambivalence must be fully developed even within traditionally mediatized spheres such as industrial relations law. See similar arguments about the ambivalence of law in Tweedy & Hunt, 21 J.L. & Soc'y. Google Scholar

35. See the compatible arguments of Paul Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (Toronto: Carswell Co., 1980).Google Scholar

36. The NDP was formed at the national level in 1961 with the merger of the Canadian Labour Congress and the Cooperative Commonwealth Federation, farm organizations, intellectuals, and other liberal groups. It has not acted as a labour party in the European model, in part because its constituency has been so mixed. As one study of the relationship between organized labour and the NDP has recently framed it, “In evaluating the linkage between organized labour and the NDP it becomes obvious that the party, like its organizational predecessor, the CCF, is not a labour party or a party controlled by organized labour. Rather it is a social democratic party with links of varying strength to the union movement, some of which are purposefully weak.” Keith Archer, Political Choices and Electoral Consequences: A Study of Organized Labour and the New Democratic Party, 39 (Montreal: McGill-Queen's University Press, 1990). Despite its broad base, the NDP has championed broader rights for workers. See also Elaine Bernard, “Labour, the New Democratic Party, and the 1988 Federal Election,” in Jenson & Mahon, Restructuring 137 (cited in note 8), and id., “The New Democratic Party and Labor Political Action in Canada,” 22 Lab. Res. Rev. 99 (1994).Google Scholar

37. Interview with Jean Swanson, official for Action Canada Network, 16 July 1994, Vancouver, B.C. See also essays by Art Kube and Rod Mickleburgh in Art Kube, Rod Mickleburgh, & Meyer Brownstone, eds., British Columbia's Operation Solidarity: What Can We Learn? (Ottawa: Canadian Centre for Policy Alternatives, 1984).Google Scholar

38. Also included was a series of reforms that would have affected certification of teachers unions known as Bill 20, Teaching Profession Act. Much of the organization around opposition to Bill 19 also included opposition to Bill 20, and teachers unions were working actively to support Bill 19. In this article, I economize in a manner consistent with the activists by addressing both proposed reforms under the name of the legislation that affected most of the organized workers of the province, Bill 19.Google Scholar

39. See Graham Leslie, Breach of Promise: Socred Ethics under Vander Zalm (Madeira Park, B.C.: Harbour Publishing, 1991), for a memoir of Socred policy development by the Deputy Minister of Labour under Vander Zalm. See also Vancouver Sun, 26 Feb. 1987, and George Dobie, “British Columbia Labour Legislation: Getting a Grip on Unions,” 2 Gov't Union Rev. 1 (1987).Google Scholar

40. Memo from Cliff Andstein, Vice President, to Ken Georgetti, President, 14 April 1987, BCFed offices, Burnaby, B.C.Google Scholar

41. Minutes of the Officers’ Meeting, 5 March 1987, BCFed Offices, Burnaby, B.C.Google Scholar

42. Minutes of the Special Officers’ Meeting, 9 March 1987, BCFed Offices, Burnaby, B.C.Google Scholar

43. Minutes of the Special Officers’ Meeting, 6 April 1987, BCFed Offices, Burnaby, B.C. The NDP was only apprised after this meeting of the decision to consider a boycott for which the party formally gave their support at their convention. Minutes of the Emergency Officers’ Meeting, 11 April 1987, BCFed Offices, Burnaby, B.C.Google Scholar

44. The Confederation of Canadian Unions was formed in 1969 among a handful of unions who broke from internationals often because of poor servicing or undemocratic practices in those unions. The CCU is left-wing and united about 20,000 workers in British Columbia during the 1980s. See Craig Heron, The Canadian Labour Movement: A Short History 115 (Toronto: James Lorimer & Co., 1989).Google Scholar

45. Interview with Jess Succamore, Area Director of Canadian Auto Workers union and past spokesperson for the CCU, 14 July 1994, Vancouver, B.C.Google Scholar

46. Interview with John Fitzpatrick, Secretary of Vancouver & District Labour Council, 20 July 1994, Vancouver, B.C.Google Scholar

47. Minutes of the Executive Officers’ Meeting, 23 April 1987; Minutes of the Officers’ Meeting, 26 May 1987, BCFed Offices, Burnaby, B.C.Google Scholar

48. Several major unions including the IWA, Labourers, Hotel Workers, and public health care unions received suspensions and were grieving these punishments as much as a year later. Private files, BCFed Offices, Burnaby, B.C.Google Scholar

49. Province, 2 June 1987, § A at 1; Vancouver Sun, 3 June 1987, § B at 3.Google Scholar

50. The Province, in an unsigned editorial (“A Double Whammy from Government,” 2 June 1987, § B at 3), wrote: “The Vander Zalm government has taken leave of its senses in going to court Monday for an injunction that would, in effect, muzzle all labour opposition to Bill 19. It had better come back down to earth before it does any more damage to peace, order and good government in B.C. After Monday's general strike it has pressed every panic button in sight and threatens to turn B.C. into an unnerving version of South Africa.”Google Scholar

51. Val Casselton, “B.C. Fed Poll Finds Majority Favor a Pause of Action,” Vancouver Sun, 10 June 1987, § A, at 6.Google Scholar

52. Forbath, Shaping 84 (cited in note 5). See also Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States 135–44 (Cambridge: Cambridge University Press, 1991).Google Scholar

53. For a discussion of traditional forms of decision making in the BCFed, see George Pavlich, “The British Columbia Federation of Labour” (unpub. paper; part of the project on “Counter-Hegemony in Theory and Practice: Coalition-Formation in the New Social Movements”; copy with British Columbia Federation of Labour, n.d.).Google Scholar

54. The appointed Advisory Committee on the boycott reported in October 1987: [T]he committee had considerable discussion over our ability to carry on a boycott of any kind for a long period of time, and the overall effectiveness of a long-term boycott. It was our opinion that the short-term impact was paramount and that we should discount the long-term accordingly. For a number of our unions, especially the building trades, the major impact of Bill 19 is going to be in the immediate future. Therefore, it is important that we respond with a strategy that takes this into account and discounts longer term actions. We consider it important that the situation is not quiet during the short-term, in other words, that Peck's agency [the IRC] does not have time to settle themselves in.”Google Scholar

Files, BCFed offices, Burnaby, B.C. The building trades were most vulnerable to changes in certifications which could result from loosened rules of successorship. Simple changes in employers’ situations such as altering the name of the corporation could provide adequate legal challenge to certifications for entire job sites under the new rules. At the same time, renegade unions such as the General Workers Union and Canadian Iron and Steel Industrial Workers Unions were opportunistically organized for the purposes of gaining new certifications with sweetheart contracts as the boycott began. Interview with Bruce Ferguson, Director, Tunnel and Rock Workers, 15 July 1994, Vancouver, B.C. Letter from Cecil McIntosh, Bridge, Structural and Ornamental Iron Workers to Ken Georgetti, 6 Oct. 1987, BCFed Offices, Burnaby, B.C.

55. Minutes of the Executive Council, 4 Aug. 1987, BCFed Offices, Burnaby, B.C. John Baigent, the Federation's chief attorney, wrote:Google Scholar

I believe a successful boycott must be total with a possible exception for teachers in the area of certification. I will not belabor the point but do want to emphasize that a partial boycott has certain pitfalls. If a partial boycott is to proceed, then an awareness of those dangers is imperative. The problems of a partial boycott include:

1. A.

   A. A certain loss of credibility since unions will be seen to Boycott only those procedures that might adversely affect them but finding the Council okay on other occasions.

2. B.

   B. There will be an inexorable tendency for the partial boycott to contract as time goes on. This tendency will increase depending on the Boycott's flexibility and the absence of clear guidelines concerning exceptions.

3. C.

   C. The BCFed as the referee of when exceptions should occur, will be in a difficult position and open to charges of inconsistency, etc., etc.

Letter from John Baigent to BCFed attn: Cliff Andstein, 31 July 1987, BCFed Offices, Burnaby, B.C.

56. Georgetti announced in an 18 August 1987 officers’ meeting that since 8 August, calls received from affiliates were “fairly consistent—affiliates were asking to appear before the Board, especially on certifications, and on those cases that were before the Labour Relations Board prior to Bill 19.” Minutes of the Officers’ Meeting, 18 Aug. 1987, BCFed Offices, Burnaby, B.C.Google Scholar

57. Condensed Analysis of Industrial Relations Reform Act (Bill 19), c. April 1987, BCFed Offices, Burnaby, B.C. In an informal paper written on the boycott, the Federation's attorney echoed similar sentiments. Regarding the realist promise by the NDP to go to the polls fighting Bill 19, “this is understandable but it is inconsistent with the underlying notion of labour legislation as a relatively neutral means of allowing workers and employers to reach compromises that fairly serve the interests of both constituencies.” John Baigent, “The Boycott: A Different Perspective” (unpub. White Paper, 1988, on file with BCFed Offices, Burnaby, B.C.) (“Baigent, ‘Boycott’ ”).Google Scholar

58. Donald Carter, “The Changing Face of Canadian Labour Relations Law” 2–3 (Kingston, Ont.: Industrial Relations Centre, Queen's University, 1985); David Beatty, “Labouring Outside the Charter,” 29 Osgoode Hall L.J. 839, 840 (1991).Google Scholar

59. R.W.D.S.U. v. Dolphin Delivery, 2 S.C.R. 573 (1986) (arguing that restricting the freedom of workers to engage in picketing was not a violation of the Charter since the labour law was a common law rule beyond the purview of the Charter); Labour Trilogy (Reference Re Alberta Public Service Employee Relations Act, 1 S.C.R. 313 (1987); P.S.A.C. v. Canada, 1 S.C.R. 424 (1987); R.W.D.S.U. v. Saskatchewan, 1 S.C.R. 460 (1987)) and Professional Institute of the Public Service of Canada v. Northwest Territories, 2 S.C.R. 367 (1990), excluding legislation bearing on the freedom of workers to strike and bargain collectively from protection of the Charter and constitutional review.Google Scholar

60. Baigent, “Boycott” at 2. This attitude was substantiated in the early years of the boycott when it became clear that employers were taking IRC decisions to court for enforcement. In the first half of 1987, no employers took LRB decisions to court for enforcement (although unions did 18 times). In the second half of 1987, employers took orders to court 39 times, something which one Federation officer found disturbing. “I think the conclusion that you can draw from this is that the only reason the IRC is having any effect at all against unions is because its orders are being filed in court. This is never a desirable situation in labour relations. Basically, blue collar working people are law abiding and therefore not very many of those court orders go disobeyed but labour relations in this province is being run by force.” Memo by Patty Lane to Ken Georgetti, 7 Jan. 1987, BCFed Offices, Burnaby, B.C.Google Scholar

61. Letter from Ken Georgetti to Don Vinoly, Business Manager and Secretary-Treasurer, Boilermakers Union, 8 Jan. 1988, BCFed Offices, Burnaby, B.C. The brief claimed in part that Bill 19 denied freedom of association rights under the Charter to maintain trade unions, bargain, strike, and picket. Brief, International Brotherhood of Boilermakers v. Her Majesty the Queen, In the Supreme Court of British Columbia, File no. B014685, 28 July 1987 (copy in BCFed Offices, Burnaby, B.C.).Google Scholar

62. Letter from Ken Georgetti to Marguerite Jackson, 29 Sept. 1987, BCFed Offices, Burnaby, B.C.Google Scholar

63. Letter from John Hodgins to Ken Georgetti, 23 Oct. 1987, BCFed Offices, Burnaby, B.C.Google Scholar

64. Minutes of the Officers’ Meeting, 9 Sept. 1987, BCFed Offices, Burnaby, B.C.Google Scholar

65. Report of the Advisory Committee on the Bill 19 Boycott, BCFed Offices, Burnaby, B.C.Google Scholar

66. Letter from Cliff Andstein to all affiliates, 22 July 1987, BCFed Offices, Burnaby, B.C.Google Scholar

67. Press release, 11 Sept. 1987, BCFed Offices, Burnaby, B.C.Google Scholar

68. The IRC administration's response to the sporadic lifting of the boycott was to change its manner of collecting statistics in order to demonstrate the agency's legitimacy. Early in the boycott, this involved counting cases which had continued from the previous labour board. Later, these statistics were compiled using the renegade unions which had been using the IRC regularly and miscounting the Federation's use of the Council. According to the IRC's head statistician as well as the leadership of the present Labour Relations Board, unfair labour practices were counted under the IRC by the number of code violations rather than by the union complaint; appointments to observe strike votes were counted by the number of appointees; mediation figures were also systematically inflated to show comparable numbers of cases when the mediation department was almost never busy. Interviews with Jackie Johnson, Head Statistician of the Labour Relations Board and former IRC, 19 July 1994; Brian Foley, Associate Chair, Mediation Department of the LRB, 19 July 1994; Stan Lanyon, Chair, Labour Relations Board, 19 July 1994.Google Scholar

69. Letter to all affiliates from Ken Georgetti, 10 Sept. 1987, BCFed offices, Burnaby, B.C.Google Scholar

70. Minutes of the Expanded Executive Council meeting, 19 Sept. 1987, BCFed Offices, Burnaby, B.C. “Brother Andstein said that unions would be persuaded to organize workers rather than get involved in jurisdictional disputes.”Google Scholar

71. Boycott support committee files, BCFed Offices, Burnaby, B.C.Google Scholar

72. Interview with Jean Swanson, official for Action Canada Network, 16 July 1994, Vancouver, B.C.Google Scholar

73. Case No. 1430, “Complaint against the Government of Canada (British Columbia) Presented by the Canadian Labour Congress.”Google Scholar

74. Citation Industries v. United Brotherhood of Carpenters & Jointers of America, Local 1928, 20 July 1988.Google Scholar

75. Memo from Ken Georgetti to Federation Officers, 13 Aug. 1987, BCFed Offices, Burnaby, B.C.Google Scholar

76. In one case involving individual rights against the interest of the International Woodworkers of America, the committee allowed an exemption based on the fact that the matter was “five years old, and is a good example of the IRC making work for itself. In light of the Sanders decision, it is important to test the emerging jurisprudence of the IRC with a good fact pattern. The officers felt that this was such a case.” The employee's application failed and this case was pursued no further. Boycott Exemption files, BCFed Offices, Burnaby, B.C.Google Scholar

77. Consider the following case involving a multi-employer bargaining unit: “In making the decision, the Officers took into account that your desire to file an application is part of an overall strategy to take the particular employer into the criminal courts. The officers also considered that your having a great deal of trouble organization the non-union arm of the employer, and that your Section 37 [multi-employer] application has a good chance of success” [sic]. Exemption files, BCFed Offices, Burnaby, B.C.Google Scholar

78. In one case that was denied the panel wrote, “nothing in the recent history of the IRC gives the Officers any confidence that the matter would stop there.” Exemptions files, BCFed Offices, Burnaby, B.C.Google Scholar

79. Letter to Bill Petterson, President of Sunshine Labour Council, from Ken Georgetti, 13 Jan. 1989, BCFed Offices, Burnaby, B.C.Google Scholar

80. Letter to Ken Georgetti from Len Stevens, Director District 3, USWA, 11 May 1988, BCFed Offices, Burnaby, B.C.Google Scholar

81. Letter to Len Stevens from Ken Georgetti, 2 June 1988, BCFed Offices, Burnaby, B.C.Google Scholar

82. Letter to Ken Georgetti from Donn Stanley, national representative of Canadian Union of Public Employees, 9 March 1988, BCFed Offices, Burnaby, B.C.Google Scholar

83. Robert Mnookin & Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 Yale L.J. 951 (1979).Google Scholar

84. In 1988, 8 exemptions were given to public unions to litigate unit changes and only 4 to private unions. In the next two years that ratio increased to 16 to 5, and then 11 to 4. That reflected government attempts to exclude managerial workers from bargaining units. The integration of managerial workers (unlike American unions) had long been a major source of solidarity.Google Scholar

85. Robert Flanagan, Labor Relations and the Litigation Explosion (Washington: Brookings Institution, 1987).Google Scholar

86. The BCFed's Exemption Files do not record telephone exemptions which were usually much more routine concerns than those for which hearings took place. Tallies of telephone exemptions were kept only for 1988 and 1989; 100 total exemptions were made in 1988, 54 by the Exemptions Committee; 223 total exemptions were made in 1989, 96 by the Committee. Assuming this holds throughout the four-year period of the boycott, the data reported here constitute about 46% of the total exemptions.Google Scholar

87. Letter to Ken Georgetti from Brooke Sundin, President and CEO, UFCW, 9 May 1991, BCFed Offices, Burnaby, B.C.Google Scholar

88. Statistics from Labour Relations Board Annual Report, 1986 (Vancouver, B.C.).Google Scholar

89. For example, one exemption panel's decision recommended that a union requesting adjudication of a bargaining unit dispute “first … should ask your counsel to attempt to get the employer to agree to an independent arbitrator to hear the case and render a binding decision based on previous Labour Relations Board jurisprudence. If this measure fails, the panel has granted an exemption to appear before the IRC pursuant to this matter.” Boycott Exemption Files, BCFed Offices, Burnaby, B.C.Google Scholar

90. Defense Fund Operating Statement, 31 July 1988, BCFed Offices, Burnaby, B.C.Google Scholar

91. B.C. Federation of Labour Omnibus Survey, 4 June 1990, Viewpoints Research Ltd., BCFed Offices, Burnaby, B.C. The difference between union members’ opinions and those of the nonunion public is statistically significant.Google Scholar

92. Survey done for British Columbia Federation of Labour by Viewpoints Research, 13 May 1992, BCFed Offices, Burnaby, B.C. Differential union viewpoint statistically significant.Google Scholar

93. Habermas has remained somewhat skeptical about the progressive consequences of communication about rights, following the Dworkinian maxim that rights are trumps in social interaction. For a sampling of communitarian theorists who argue a less absolute and more communicatively transparent understanding of rights, see Tweedy & Hunt, 21 J.L. & Soc'y (cited in note 25); Drucilla Cornell, “Gender, Sex and Equivalent Rights,” in Judith Butler & Joan Scott, eds., Feminists Theorize the Political 280 (New York: Routledge, 1992); and Minow, Difference (cited in note 22); and see the comments about modifying the pure notion of communicative action by Benhabib, Self (cited in note 24), and Thomas McCarthy, “Complexity and Democracy: Or the Seducements of Systems Theory,” in Axel Honneth & Hans Joas, eds., Communicative Action 119 (Cambridge, Mass.: MIT Press, 1991).Google Scholar