View cases - Stewart McKelvey

[346] The reason for the protection is grounded in common sense and the pre-1944experience. A lack of exclusivity allows an employer to promote rivalry and discord amongmultiple employee representatives in order to “divide and rule the work force”, using tactics likeengaging in direct negotiations with individual employees to undercut “the credibility of theunion . . . at the bargaining table” (Paul Weiler, Reconcilable Differences: New Directions inCanadian Labour Law (1980), at p. 126; see also Adams, at para. 3.1750).2011 SCC 20 (CanLII)[347] Rol-Land Farms, for example, unrestrained by the legal requirement to bargain onlywith one bargaining agent, sponsored its own “employee association” in direct competition withthe union that had the workers’ majority support. That is precisely the kind of conduct that BoraLaskin identified in 1944 as the flaw in Canada’s then existing labour legislation, namely that “itneither compelled employers to bargain collectively with the duly chosen representatives of theiremployees nor did it prohibit them from fostering company-dominated unions” (“Recent LabourLegislation in Canada” (1944), 22 Can. Bar Rev. 776, at p. 781). It also led Canada’s LabourMinisters that same year to include exclusivity among what were considered to be indispensibleprotections for collective bargaining rights.[348] The inevitable splintering of unified representation resulting from the absence ofstatutory protection for exclusivity is particularly undermining for particularly vulnerableemployees. Professor David M. Beatty vividly observed that agricultural workers are “amongthe most economically exploited and politically neutralized individuals in our society”: