Kuzych v White was a series of Canadian labour law decisions from British Columbia, dealing with a membership dispute between a trade union and a member of the union. Myron Kuzych, the union member, publicly objected to the closed shop favoured by the Boilermakers and Iron Shipbuilders Union of Canada (BISU). The union cancelled his membership, resulting in him being fired by the shipyard where he worked as a welder. Kuzych challenged the termination in the British Columbia courts, and eventually the matter was decided by the Judicial Committee of the Privy Council in Britain, at that time the highest court of appeal in the British Commonwealth. The Judicial Committee ruled that Kuzych should have exhausted his appeals within the union before going to court, and upheld his expulsion from the union.
Since the leadership of the BISU was dominated by members of the Communist Party of Canada, the dispute was portrayed at the time as an individual worker opposed to radical unionism. More recent scholarship has shown that Kuzych was actually a more radical socialist than the union leadership. He disapproved of closed shops because in his view they weakened unions, by interfering with the democratic rights of union members. He also believed that the closed shop co-opted the union leadership into assisting the employer to maintain workplace productivity, at the expense of the interests of the union members themselves.
The dispute was driven by ideological differences within the union movement, and occupied the courts of British Columbia for close to a decade. The decision of the Judicial Committee was simply one stop along the long litigation road – and not the final stop, at that. Before the matter was concluded, six judges of the British Columbia Supreme Court, five judges of the British Columbia Court of Appeal, and five law lords in Britain had given decisions in the various aspects of the dispute, from 1944 to 1953. There were also two attempts to appeal related matters to the Supreme Court of Canada.
The case continues to be cited by Canadian courts for the requirement that union members must exhaust internal union settlement procedures before resorting to the courts. The same principle has been applied more generally, to other private organizations with internal appeal processes.
Background Boilermakers and Iron Shipbuilders Union During the Second World War, new techniques evolved to speed up shipbuilding production. Welding largely replaced riveting in the construction of ships. In British Columbia, the Boilermakers and Iron Shipbuilders Union of Canada (BISU) became the primary union representing welders in the shipbuilding industry. In 1942, its leadership came to be dominated by members of the Communist Party of Canada. At the time of events, Bill White and William Stewart were two of the leaders of the union.Mark Leier, "Dissent, Democracy, and Discipline: The Case of Kuzych v White", in Judy Fudge and Eric Tucker, Work on Trial: Canadian Labour Law Struggles (Toronto: Osgoode Society, 2010). The union leadership strongly favoured the closed shop, where workers had to join the union in order to obtain work in the shipyards. They took the view that a closed shop was necessary to obtain union security, which in turn was the only guarantee that the employer would bargain with the union and respect a collective agreement.
Myron Kuzych Myron Kuzych was born Miroslav Kuzych in 1911, in a small village near Kolomyia, Ukraine, then part of the Russian Empire. After the First World War, that area of Ukraine became part of Poland. In 1926, Kuzych and his twin brother emigrated to Canada, to avoid being drafted into the Polish Army. As a young man in Canada, he acquired a good education in the Vancouver public schools.
At the time of the events, Kuzych was characterized by his opponents as a "scab", "anti-union", and a "class traitor". It was alleged that he was in the pay of the employers. More recent scholarship has clarified Kuzych's ideological views on unionism. During the Great Depression, he became interested in socialism and was influenced by the thinking of Daniel De Leon, an American Marxist theoretician and trade union organizer. Briefly a member of the Communist Party of Canada, he later was a member of the Socialist Labor Party, which was strongly Marxist. Kuzych was a fervent believer in unionism, but rejected the labour relations system of the American Wagner Act, which heavily influenced labour relations laws. He was committed to democratic, grassroots control of unions. He believed that the closed shop, where the union leadership reached an agreement with the management, undercut democratic organization of unions by giving too much control to the union leadership. In his view, the union leaders became committed to ensuring labour peace and productivity to benefit the employer, not the union membership.
In 1942, Kuzych obtained a position as a welder in the North Vancouver Ship Repairs shipyard, which had a collective agreement with the BISU. He made a voluntary donation to the union and attended union meetings, but he objected to the requirement that he become a member. However, early in 1943, the union insisted that all workers at the shipyard be union members. The management confirmed to Kuzych that if he was not a member, he would be dismissed. Kuzych signed the union card to keep his job. The union card stated that one of the conditions of membership was to support the goals and constitution of the union, which included the closed shop. Members were also not to publicly criticize the union.
Conflict between Kuzych and the BISU Kuzych and the union leadership under White and Stewart quickly came into conflict.E. F. Whitmore, "Judicial Control of Union Discipline — The Kuzych Case" (1952), 30 Can. Bar Rev. 1. In 1943 the provincial government set up a conciliation board to consider workplace issues at West Coast Shipbuilders, the last remaining open shop shipyard in Vancouver. Kuzych appeared before the board and strongly criticized the concept of a closed shop, and the leadership of the union. His position was that the Communist-led BISU was not radical enough in fighting the employers for the rights of union members. The local media highlighted Kuzych's submissions, and flagged that a union member was criticizing the union leadership and their closed shop policy. Not knowing about Kuzych's personal views on socialism and unions, the media portrayed the dispute as an anti-union worker challenging the Communist-led union.
The conciliation board recommended that the shipyard remain an open shop. White concluded that Kuzych was either a paid operative of business groups, or an anti-union individual acting on his own. White believed that whatever Kuzych's reasons, his testimony before the commission had "served the bosses."
In addition to his appearance before the conciliation board, Kuzych spoke out against the closed shop policy at union meetings, and in letters to local newspapers. Kuzych organized challenges to the union leadership in the next set of elections, including calling a public meeting to organize the election campaign. White and Stewart considered the meeting to be a breach of the term of the union constitution that members would not publicly challenge union policies. Kuzych initially stood for election as union president, but withdrew to avoid vote-splitting. Kuzych's favoured candidate, C. A. Henderson, was elected, defeating Stewart, but the internal opposition from the Communist Party members of the union was strong, and eventually Henderson was replaced by White.
Kuzych also made some appearances on radio, discussing his opposition to the closed shop and automatic dues-checkoffs, which he saw as benefitting the union leadership, not the workers:
The BISU responded by taking disciplinary proceedings against Kuzych under the union constitution, for publicly criticising both the union leadership and the closed shop requirement. In December 1943, the union cancelled his membership and expelled him from the union, resulting in his firing by the North Vancouver shipyard. Kuzych successfully challenged the expulsion in the British Columbia Supreme Court (the trial court) on procedural grounds. In 1944, the court awarded him $1,000 as damages for lost wages and re-instated him as a member of the union. Kuzych v. Stewart et al., 4 DLR 775; 61 BCR 27 (BCSC). The BISU then restarted the disciplinary proceedings and in 1945 again cancelled his membership, again resulting in his firing by North Vancouver shipyard. Kuzych again challenged the decision in the courts.
Decisions of the British Columbia courts Supreme Court Kuzych brought another action in the British Columbia Supreme Court. He sought a declaration that he had not been validly expelled and was still a member in good standing; damages; and consequential relief. He challenged the fairness of the disciplinary hearing, including whether the committee had been properly constituted under the union's by-laws: an ineligible member had been elected, which Kuzych argued meant that the union had acted in breach of his membership contract. White, as president and representative of the BISU, defended the union's conduct, including advancing the novel argument that since a closed shop was in restraint of trade, there was no valid contract of membership between Kuzych and the union, so there had not been any breach of contract.
After initial skirmishes in the British Columbia Supreme CourtKuzych v. White (No. 1), 2 DLR 496; 1 WWR 322 (BCSC). and the British Columbia Court of Appeal, including an attempt by the union to appeal to the Supreme Court of Canada,Kuzych v. White et al. (No. 2), 2 WWR 732 (BCCA) the matter came on for trial before Justice Norman William Whittaker of the Supreme Court. In 1949, he ruled in favour of Kuzych. He rejected the union's argument that there had been no valid contract and found that the BISU had not strictly followed its own internal disciplinary process, resulting in an unfair process: it was so flawed and biased that it was a nullity. Whittaker also commented on the serious consequences for Kuzych if his membership was cancelled: since he would not be able to work in closed shops, expulsion was "little less than a sentence of industrial death". The BISU was therefore in breach of the membership contract. The court awarded $5,000 in punitive damages and directed that Kuzych be re-instated. Kuzych v. White et al. (No. 2), 4 DLR 662, 2 WWR 558 (BCSC).
Court of Appeal On behalf of the union, White appealed to the British Columbia Court of Appeal. The appeal was heard by five judges of the Court of Appeal: the Chief Justice of British Columbia, Gordon M. Sloan, and Justices O'Halloran, Robertson, Sidney Smith and Bird. In 1950, by a 3–2 decision, the Court of Appeal upheld the trial decision and the orders for punitive damages and re-instatement.Kuzych v White et al. (No. 4), 4 DLR 187; 2 WWR 193; 1950 CanLII 222 (BC CA).