Doorey, D J --- "Harry and the Steelworker (or Teaching Labour Law to Non-law Students)" [2008] LegEdDig 18; (2008) 16(2) Legal Education Digest 10

• Harry and the steelworker: (or teaching labour law to non-law students)

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Harry and the steelworker: (or teaching labour law to non-law students)

D J Doorey

Can Lab and Employ Law J, 2008, pp 1–22

I begin with a confession: I have shamelessly stolen my title from Twining’s famous 1967 article, Pericles and the Plumber. Twining opened his article about legal education with the following observation: ‘...it may be a sensible intellectual procedure to develop separate theories for lawyer education and for education in law for non-lawyers, and only after this has been done, to examine to what extent their objectives and the best methods of attaining them are compatible.’

He urged legal educators in all cases to reflect upon the following pedagogical question: ‘For what purposes should what be taught to whom by whom using what methods in what milieux with what resources?’

For Twining, Pericles symbolised ‘the enlightened policy-maker, the wise judge, and the gentleman scholar.’ At the other end stooped the ‘plumber’ who, for Twining, symbolised the view of the lawyer as a practical nuts and bolts legal technician who had mastered a set of specialised skills which he employed while slugging it out in the legal trenches. The lawyer-as-plumber needs a ‘practical’, vocational legal education, a ‘no-nonsense specialised training’ that develops ‘competent technicians’.

On the other hand, to produce Pericles, legal education needs to situate law within its broader social, political, historical, economic, and cultural context.

Now for an explanation of why my Pericles is a ‘Harry’, and my Plumber, a ‘steelworker’. The themes discussed by Twining in 1967 remain central in debates about legal pedagogy today. And they were central in the 1983 report, Law and Learning. As principal author of that report, Harry Arthurs argued that legal education was too much focused on producing plumbers, and not enough on producing Pericleses. Law and Learning argued for legal education that emphasised ‘humane professionalism’, an education that ‘avoids narrow vocationalism’ and ‘transmits liberal and humane intellectual values, encourages interdisciplinary study, and ensures some exposure to legal theory and legal research’.

Harry’s belief that law should be taught as part of a broader program of liberal education applied to the teaching of law to non-law students too, as noted in Law and Learning: ‘While inevitably law teaching in ... other faculties will have to serve their particular needs, we underline the importance of investing such teaching with intellectual and social substance. Without this, it will degenerate into the mere recitation of rules and will contribute neither to genuine interdisciplinary insights nor to greater citizen involvement in law.’

I was fortunate enough to be a student of Harry’s. His labour law students learn the state-based legal rules, but in doing so are challenged to think about: whether those rules create new norms or codify existing ones developed originally ‘without the law’; why those rules and not others; who benefits from the rules and who is disadvantaged; whether the rules matter at all; and about why those rules are interpreted in one way and not another. For all of these reasons, Harry Arthurs symbolises for me the modern day Pericles. He represents the labour lawyer as an enlightened policy-maker, a creature that requires a broad, liberal arts training, based in research and scholarship, that situates ‘law’ in its broader social, economic, political, historical, theoretical context.

My Plumber is in fact a steelworker, for the very pragmatic reason that I have a greater affinity with the latter than the former. I was once legal counsel to the United Steelworkers of America, a job that required a fair amount of educating non-lawyers about labour law.

The Steelworker students I encountered in these legal seminars expressed little interest in grand legal theories, in the political economy of legal systems, in critical race or class theory, in socio-legal theory, or even in labour or steelworker history.

The question I want to address here is this: Where along the continuum between the ‘Harry’ liberal arts approach to teaching labour law and the ‘steelworker’ vocational skills and rules approach should we aim when designing courses in labour and employment law for the non-law student?

Virtually every university and college in Ontario has at least one course in which labour or employment law topics are a principal component, and most have more than one.

So, at York alone, we are looking in the range of 900 undergraduate students per year taking courses that include instruction in labour and employment law.

At the University of Toronto, approximately 400-450 students per year take undergraduate Industrial Relations and Employment Law courses. At Ryerson University, approximately 750 students per year take Industrial Relations and Employment Law courses. Thus, in the three Toronto-based universities alone, nearly 2000 undergraduate students per year are being taught labour and employment law outside of law faculties. There is no need to belabor the point further: there are far more post-secondary students in Canada being taught labour and employment law material outside of law schools than inside.

When I began teaching outside of the law faculty, I was immediately struck by how much labour and employment ‘law’ was included in the curriculum. In the many Employment Law courses, students are being taught, well, employment law. This includes a mix of common law cases and statutory law similar to what you would expect to find in a typical law school seminar on employment law.

In the Industrial Relations (IR) courses, labour law is a major component. Most of the basic IR texts follow a similar format.

There is a large body of literature examining how law should be taught to non-law students, although none of it (that I could find at least) explores the case of labour and employment law. There is general consensus within that literature that identifying the reason why law is being taught to the non-law students is a necessary first step in the process of designing an effective pedagogy.

I suppose that the purposes for which labour law is taught to non-law students depends very much upon who those students are. Steelworker Staff Representatives expect to be taught ‘useful’ legal tests, principles, and skills because they actually practice labour law on a daily basis.

When I was asked recently to teach a Labour Law course in an executive HRM graduate program, I was told that the students had expressed a preference for a ‘practical’ education in labour law, that they wanted a course that would teach legal principles and skills that they could use in their careers.

My point is that sometimes the students themselves answer the question of why we are teaching them labour law.

There are some students who are genuinely interested in labour relations issues and who do intend to pursue careers in which labour law is important. Others will acquire an interest in the field as a result of courses they take. And, in upper year, smaller courses (like the Advanced Industrial Relations course at York), the percentage of students with a genuine interest in labour law-related issues is probably higher. But overall, my sense is that a good majority of non-law students who are being taught labour law subject matter have no intention of pursuing careers requiring a strong knowledge of labour law.

I think it is clear enough that the purpose is not to arm the students with a detailed knowledge of legal rules, case law, and statutory language. The aim should not be to provide vocational training in labour law because we are not training the students to be labour lawyers or to give legal advice.

Most undergraduate students have little experience with unions or collective bargaining. This lack of personal experience does not, however, tend to discourage the students from forming strong opinions.

Therefore, in my opinion, the reason why we teach labour law to non-law students in undergraduate programs is to challenge the students to analyse the complex web of relations, norms, and assumptions that influence the organisation of work in a society, and the role that ‘law’, in all of its forms, plays in that organisation. In this exploration, students will no doubt learn some legal doctrine, but learning legal doctrine is not the reason for teaching labour law to non-law students. Rather, ‘labour law’ is taught as part of a larger program designed to teach students that normative behaviour in the work relationship is shaped by complex interactions between employers, employees, unions, and states that are informed by power relations which themselves take form in the context of a broader social, economic, historical, and political landscape. Law is one means by which those power relationships are addressed, and therefore it is necessary to introduce students to key legal principles, cases, and statutes and to challenge them to recognise and critically examine how law is affecting those relationships, if it is at all.

Instructional alignment literature informs us that only once we have identified our teaching objectives and purposes — why we are teaching the material in the first place — can we design an effective teaching methodology. I have argued that our objective in teaching labour and employment law to students in non-law undergraduate programs should be to challenge students to situate the ‘law’ in its broader context, to identify the forces and interests at play in the development of normative labour and employment practices, policy, and law over time and the many ‘non-law’ influences that shape normative behavior in the work relationship in addition to state-based regulation.

One pedagogical outcome of this is that non-law students should not be assigned reams of case law as is typical in LL.B labour law courses. Law students are taught early on that the reasoning in a decision is often more important than the outcome — it is understanding the rationale underlying a decision that enables the lawyer to distinguish cases, to predict the future direction of the law, and to move the law in directions beneficial to their clients. Non-law students have difficulty appreciating subtle factual distinctions, identifying the legal test or ratio of a case, and dissecting complex legal arguments.

What we need is a curriculum that will facilitate contextual learning of labour law. I am not proposing a specific teaching agenda.

All I have are my own experiences to drawn on.

Law is What Law Does: There is a good news segment I show to my IR students that describes in some detail how women in Canada’s garment industry are often paid below provincial minimum wage levels. The piece traces in some detail the many factors that contribute to this sad state of affairs, such as: language barriers, racism and sexism, a lack of representation and advocacy for these women, the nature of consumer and product markets in the garment industry, dishonest book-keeping by the employers, the inability to track sub-contractors and the ease with which these operations can disappear and reappear in different forms, globalisation of that industry, low unionisation levels, the complaint- based regulatory model, and weak regulatory enforcement supported by a lack of political will to address the situation.

After watching this video, most students have suddenly lost their confidence in the ability of employment regulation alone to solve the problem of labour abuse in the garment industry.

I make a similar point using the problem of designing a union certification model that protects the right of workers to freely choose whether to support unionisation and collective bargaining. Students are told to pretend that they are the Minister of Labour and to design a model that will fairly test the employees’ wishes on the question of whether they want to be represented by a union. They are given two options: a mandatory vote of employees or a system in which employees express their opinions by signing cards indicating they wish to be represented by the union. When I take a straw vote in class, a strong majority of the class always supports the vote model. When I ask why, I am usually told that ballots are more fair and ‘democratic’.

We then read Baron Metal, a case in which a Brampton-based employer hired thugs in the days prior to a ballot and permitted them to roam the workplace threatening the lives of workers (and their families) if the union won the ballot. The Union lost the vote. The Labour Board found the employer had committed very serious unfair labour practices by employing the thugs to intimidate workers into rejecting the unions. At the time, Ontario law did not permit a ‘remedial certification order’. The Board ordered another ballot, which the union lost again. When students are then asked whether the law requiring mandatory ballots achieved the goal of fairly testing the employees’ wishes at Baron Metal, there is considerable indecision.

While a vote may look like a fair enough process when prescribed in a law, what matters is what happens in the real world. How does the law work in practice, when employers have power over the livelihood of workers and perhaps an incentive to commit ‘efficient breaches’ of statutes because the perceived cost of breaking the law outweighs the cost of doing so? If a model based on membership cards helps reduce the opportunity for employers to engage in Baron Metal-like activity, then is it in fact a more ‘democratic’ model than a vote model? If not, how can the state ensure that the employers do not interfere in the vote process by threatening workers?

Through the use of examples like this, students learn to critique the efficacy of legal solutions to complex industrial relations problems and to appreciate the complexity of governing the work relationship, a relationship that is shaped above all by power structures. If we disabuse students of the notion that statutory enactment can solve all complex industrial relations problems, we can then reconstruct and refocus their attention on those other forces that influence normative behavior in the work relationship. This in turn will encourage a broader gaze into the employment relationship of the sort encouraged by Harry.

Law, and Not Law: This is the idea of legal pluralism in the workplace, the basic idea that law is not the only, nor even the most important source of normative behavior in the workplace. Norms of conduct that emerge over time through repetitive practice and that become embedded in workplace expectations, or that are negotiated formally or informally by employers and employees, perhaps through their union, sometimes following conflicts and struggles, often have more significance to workers on a day to day basis than state-based labour and employer laws.

This point is useful because it helps define the dichotomy between ‘substantive’ and ‘procedural’ employment regulation. Non-law students are familiar with laws that impose specific terms into employment contracts (minimum wage, no discrimination, et cetera). However, they need to be introduced to how regulation can be used differently, not to impose specific outcomes, but to influence the private negotiation of employment terms and conditions by establishing frameworks within bargaining takes place. One way that regulation can do this is to alter the power relations within which those negotiations occur.

Labour lawyers recognise collective bargaining laws as an example of procedural law, but the undergraduate student usually needs this point to be made explicitly. Once collective bargaining laws are introduced in this context, I find that the non-law students begin to more fully understand what states are attempting to do when they use regulation to facilitate unionisation, collective bargaining, and a right to strike. This recognition in turn facilitates a more sophisticated discussion of the role of these mechanisms in society, about whether they function adequately, about who benefits from these mechanisms (and who does not), and of the limits and potential of law to govern labour practices.

Clinical Labour Law and the Non-Law Student: It is common in Canadian IR courses for students to participate in collective bargaining simulations, to conduct labour arbitration research using Quicklaw, ‘Brown and Beatty’ and Labour Arbitration Cases, and other legal research tools, and to conduct a mock labour arbitration, including examining witnesses and presenting final arguments, and to be evaluated on these exercises.

Why we make non-law students engage in these clinical legal exercises is not self-evident. Few of these students will ever actually present labour arbitrations, unless they first attend law school, or act as a negotiator in collective bargaining. On the other hand, students consistently praise the exercises in their course evaluations. My decision one year to remove the arbitration simulation from my IR course was met with numerous complaints by students, who had been told by other students that the exercise was great.

The simulations are for the students a ‘real life’ exercise in which they get to work with other students in planning strategies and they learn to respond on their feet to unpredictable situations, which are useful skills in almost any profession. These exercises no doubt make collective bargaining and labour arbitration ‘real’ for the students, which may in turn peak their interest in the course material and in labour-related current events in their societies, encouraging them to explore the subject area more. They may tend also to legitimise the role of unions and collective bargaining in the minds of some students. The simulations also expose students to new career opportunities in law, industrial relations, or human resources management, for example. These exercises also provide evidence of how ‘private’ norm creation can occur at the workplace level in the shadow of state regulation. For all of these reasons, labour simulations can be justified as useful teaching tools in an introductory survey of industrial relations.

Based on conversations with students, reading evaluations, and speaking with other IR and labour law teachers over the years, my sense is that non-law students who take courses with labour law content actually prefer the more practical, vocational components of the courses over the broader theoretical and multi-disciplinary subject matter.

Therefore, while there are good strong reasons for leaning heavily towards the Harry side of the ledger, there is also student demand to move the curriculum and pedagogy towards the Steelworker side. It is useful though for all teachers of labour law, including those who teach outside of law faculties, to recognise the tension exists, because it encourages us to think carefully about why we are teaching our students this material and therefore about how we ought to be teaching it.