open shop

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An open shop is a place of employment at which one is not required to join or financially support a union as a condition of hiring or continued employment. Open shop is also known as merit shop.

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

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]

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.

The open shop in its milder form, in which the open shop only represents an employer's refusal to favor union members for employment, is legal. Although 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 also adopted the phrase "merit shop" to describe their operations. In the view of construction unions, "merit shop" is a codeword that signifies the extreme form of the open shop. Like labor unions, merit shop employers have established apprenticeship programs of their own. This allows such contractors to draw from a pool of non-union employees who can be hired without the complications 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 union dues.

Open shop movement in Canada

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

In various provinces these employers have joined forces to create associations to promote the principles of the open shop contractor. These organizations claim that small contractors are not adequately protected by current labour legislation. One of their major functions is to provide a voice for their point of view at the policy-making table. Another is to provide human resource services, such as a benefits package.

As labour law is a provincial jurisdiction in Canada the laws vary from province to province. However, there is some common ground. Despite opposition from open shop contractors, in Ontario the Liberal government recently reinstituted the card-based certification system that was in place for most of the post-World War II period. Card-based certification was only reinstated for the construction industry. It allows workers to certify an exclusive bargaining agent on the basis of membership, sometimes known as "majority sign-up". Some observers claim that this system creates a risk of employees being mislead by business agents. Others assert that it overcomes the natural advantage that employers in opposition to unionization have over their employees.

In terms of human resource services, many construction employers realize that providing benefits, training, and apprenticeship tuition refunds is a good way to attract and retain capable workers. The open shop associations in Canada share the responsibility of running an Hourbank style benefits package. This plan is priced by the hour allowing the contractor to predict what the cost of giving employees benefits will be for each job.

These associations in many ways are competing with unions for membership. The critical difference is that they represent the construction contractor, and not the employee and hence there is no collective "voice" for employees in the establishment of conditions for employment.

Some of these associations permit construction contractors that are unionized to join. Several companies whose employees are represented by the Christian Labour Association of Canada or CLAC, a union with non-traditional rules of membership, are members of the association. CLAC's roots trace to the Christian labour movement in the Netherlands. It believes in cooperation rather than confrontation. Because of its non-adversarial approach to employment relations, the CLAC is regarded by many "mainstream" unions as suspect.

Notes

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