Open shop

In terms of United States labor relations, an open shop is a place of employment at which one is not be required to join a labor union as a condition of hiring or continued employment. Open shops are required by law in right-to-work jurisdictions and employers such as the U.S. federal government. An open shop is, in contrast to a closed shop, one in which all employees must be members of a union to be employed, and a union shop, in which an employee must pay dues or their equivalent to the union, but may not be fired if he or she fails to maintain membership in good standing in the union for any reason other than failure to pay such dues. The open shop and the union shop are the labor arrangements permitted by the National Labor Relations Act and the Railway Labor Act.

The term open shop is also used similarly in Canada, mostly in reference to construction contractors that have at least a partially non-union workforce. Canadians enjoy the freedom to associate, guaranteed by the Charter of Rights and Freedoms, which inherently includes the right not to associate(1).

"Open shop" as a slogan

The open shop was the slogan adopted by United States employers in the first decade of the twentieth century in their attempt to drive unions out of the construction industry. Construction craft unions, then and now, rely on controlling the supply of labor in particular trades and geographical areas as a means of maintaining union standards and establishing collective bargaining relations with the employers in that field. In order to do that, construction unions—and to a lesser extent unions representing musicians, longshore workers, restaurant employees and others who work on a transitory and relatively brief basis—must require that employers hire only their members. By refusing to hire exclusively union members, construction employers effectively undercut many of the conditions, such as the eight hour day, that unions had achieved over the past several decades.

The open shop was also a key component of the American Plan introduced in the 1920s, when employers attempted to reverse the gains made by unions during World War I. In that era the open shop was not only directed at construction unions, but also unions in mass production industries; the open shop represented not only the right to discriminate against union members in employment but also a steadfast opposition to collective bargaining of any sort.

The legal status of the open shop

United States labor law outlaws the open shop in its extreme form, in that it prohibits private sector employers from refusing to hire employees because they are union members. This is still significant in the construction industry in which construction employers frequently impose obstacles to keep union members out of their workforce. Construction unions, for their part, have used this as a weapon against targeted employers by sending "salts", union members sent to a non-union contractor in the hope that the employer will either discriminatorily refuse to hire them, thereby leading to potentially significant financial liability on the employer's part for this illegal labor practice, or will hire these members, giving the union a foothold in attempting to organize it.

In its milder form, in which the open shop only represents an employer's refusal to favor union members for employment, the open shop is legal. While the National Labor Relations Act permits construction employers to enter into pre-hire agreements, in which they agree to draw their workforces from a pool of employees dispatched by the union, employers are under no legal compulsion to enter into such agreements.

Non-union construction employers have adopted the phrase "merit shop" to describe their operations. In the view of construction unions, "merit shop" is merely a codeword that signifies the extreme form of the open shop, that is the systematic refusal to hire union members in order to undermine the prevailing standards established through collective bargaining. "Merit shop" employers have attempted to establish non-union apprenticeship programs of their own in order to build up the same sort of pool of non-union employees who can be hired without the risk entailed in hiring construction workers whose union background and sympathies are unknown.

The open shop is also the legal norm in those states that have adopted right-to-work laws. In those cases employers are barred from enforcing union security arrangements and may not fire an employee for failure to pay dues under a union security clause that might be lawful in another jurisdiction.

Open Shop in Canada

There exists a healthy movement for Open Shop Construction Contractors in Canada. According to Statistics Canada approximately 70 per cent of the Canadian construction industry is in fact Open Shop.

In various provinces these employers have joined forces to create associations which will champion the principles of the open shop contractor. These are: freedom of choice and fairness. These contractors feel that after years of influential lobbyists from big labour unions that small contractors are no longer adequately protected by current labour legislation. A main function of the organizations in each province is to provide a voice for these contractors at the policy-making table. The other is to provide human resource services, such as a benefits package -- which union employees usually enjoy as a benefit of their membership.

As labour law is a provincial jursidiction in Canada the laws vary greatly from province to province, however there is some common ground. In Ontario the Liberal government recently stripped construction employees of their right to a secret ballot vote in favour of a card-based certification system. According to the Open Shop Contractors Association Many construction employers feel this is grossly unfair because the card-system is largely unregulated by government, meaning that a union business agent has freedom to walk onto a job site and communicate with an employee in any way he desires. There is a real risk of employees being mislead by business agents, and currently there is no recourse for an employee that feels he or she was coerced into signing one of these cards. A workplace is certified should 55 per cent of it's employees choose to sign a card.

Herein lies another issue. When the Ontario Labour board decides who is eligible to have a say in their union status they only count employees present on a site for the specific day that the application is launched. If the particular employer in question is working a skeleton crew of three employees on a Saturday, but normally runs a 50 person crew, and the application is launched that Saturday the three employees present decide for all 50 employees. As you can see these are areas of law that any employer wishing to remain union free would be concerned with.

In terms of human resource services, many construction employers realize that providing benefits, training, apprenticeship tuition refunds is a good way to keep your employees happy and show your appreciation for their loyalty and work. The open shop associations in Canada share the responsibility of running an Hourbank style benefits package. In the traditional style of many union benefits packages the plan is priced by the hour so it's easier for a contractor to predict what the cost of giving employees benefits will be for each job.

Training and tuition refunds have also come as a logical progression of services expansion. These associations in many ways are competing with unions for membership. The critical difference however is that they represent the construction contractor, and not the employee and hence there is no collective agreement.

Suprisingly some of these associations even allow construction contractors which are unionized to join. In Ontario several companies whos employees are represented by the Christian Labour Association of Canada or CLAC, a union with non-traditional rules of membership (and a somewhat misleading name, it has little to do with religion) are members of the association.

Canada's open shop associations do not engage in union busting. Instead they take the position that employees should have the unfettered right to choose for themselves. In general only when coersion and or underhanded tactics such as Salting take place that these associations become vocal.

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Footnotes

1. Decided in a Quebec Supreme Court battle (R. v. Advance Cutting & Coring Ltd.) in which Eight (8) of the nine (9) judges were easily able to conclude that the freedom to not associate was a logical corollary to the freedom of association.