DEMOCRACY IN A COOPERATIVE LABOUR RELATIONS PARADIGM? THE CAW, MAGNA, AND THE FRAMEWORK OF FAIRNESS
by
Porter Heffernan
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at
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Appendices Copyright Releases (if applicable) TABLE OF CONTENTS
Abstract viii
List of Abbreviations Used ix
Acknowledgements x
Chapter I: Introduction 1
Chapter II: Magna, the CAW, and the Framework of Fairness 10
A. Introduction 10
B. Magna Background 11
1. Magna International, Inc 11
2. Fair Enterprise and the Employee Charter at Magna 15
C. CAW Background 24
1. The Canadian Autoworkers 24
2. The CAW and the Politics of Organized Labour 26
3. Prior Organizing at Magna: Getting a Foot in the Door 33
D. The Framework of Fairness and the National Agreement 39
1. A Framework of Principle? 39
2. Recognition and Bargaining 46
a. Recognition 46
b. Bargaining 52
3. Workplace Governance and Dispute Resolution 62
a. Workplace Governance 62
b. Dispute Resolution 69
IV E. The Response from Organized Labour 80
F. Conclusion 92
Chapter III: Independence, Cooperation and Conflict in the CAW/Magna Agreement 94
A. Introduction 94
Prelude: What is Cooperation? 96
B. Cooperation at Work: What does it Offer? 97
/. What does Cooperation at Work Offer for Employers? 98
2. What does Cooperation at Work Offer for Unions and Employees? 104
3. Pursuing the Benefits of Cooperation in the CA W/Magna Agreement 110
C. The Risks of Cooperation at Work 114
1. Is There Such a Thing as Genuine Cooperation? 116
2. Questioning Exploitation and Domination 117
3. The Danger of Disingenuousness 121
D. Cooperation and Independent Representation 124
1. Can a Genuinely Independent Union Cooperate with Management? 124
2. Is there a Place for Independent Representation in a Cooperative Relationship? 128
E. Containing Conflict to Build Cooperation 132
1. Institutionalizing Structures for Conflict Resolution 133
2. The Legitimacy of Limits on the Right to Strike 135
3. The Wisdom of Limits on the Right to Strike 137
F. Conclusion 144
Chapter IV: Democratic Employee Representation under the CAW/Magna Agreement 146
A. Introduction 146
v B. The Debate over Union Democracy 148
C. Union Democracy, Political Democracy, and Freedom Building 153
1. Justifying Union Democracy 153
2. Evaluating Union Democracy 159
D. Democracy and the CAW under the CAW/Magna Agreement 161
1. An Apparent Concern for Democracy 161
2. The Limits on Participation 166
a. A Deviation from the Norm? 171
b. Principled Objections 184
c. The 'Politicization' and Free Speech Problem 185
3. Limits on Democracy to Constrain Conflict 190
4. Limits on Democracy which Corrode Cooperation 193
E. Conclusion 198
Chapter V: Law, the Labour Relations Board, and the
CAW/Magna Agreement 200
A. Introduction 200
B. Independent Representation and Employer Domination 201
/. The Statutory Prohibition on Support 202
2. Neutrality and Interference 204
a. The Employee List 208
b. The Access to Employees 209
c. The 'Captive Audience' Meeting 211
C. Bargaining Unit Issues 218
1. Jurisdiction 219
2. Appropriateness 221
VI 3. Timeliness 226
4. Displacement and Decertification 231
a. Displacement 233
b. Decertification 239
D. Voluntarism Issues 246
/. Reaching a Voluntary Recognition 248
2. Voluntarism in Action 252
a. Opting Out of Recourse to the Labour Board 253
b. Abandoning the Right to Strike 259
i. Can the Parties Permanently Revoke the Rights to Strike and to Lockout? 261
ii. Is the Representation/Ratification Vote Enough to Validate this Bargain? 272
E. The Concern Resolution Process 274
1. "Final and Binding Settlement by Arbitration" 275
2, The Duty of Fair Representation 280
F. Conclusion 288
Chapter VI: Conclusion 290
A. The Successes and Failures of the Agreement 290
B. Where Now for the CAW/Magna Agreement? 292
Reference List 296
vu ABSTRACT
Magna International and the Canadian Autoworkers Union in 2007 entered a new
Framework Agreement to structure labour relations at Magna. This Framework raises theoretical and legal issues which place it at the cutting edge of recent developments in labour relations, including labour-management cooperation and democracy at work. This thesis explores these issues, to evaluate the Agreement on its merits and assess its potential impact on Canadian labour relations. The thesis concludes that the Agreement represents an innovative model of cooperative labour relations, with a significant chance of success. However, the Agreement also restricts the Union's internal democracy, and risks illegality in other areas, including its .revocation of the right to strike. These problems have the potential to destabilize the Agreement despite the strength of its cooperative structures. The Agreement offers a valuable new model for the representation of employees, but one which will require further refinement before its widespread adoption.
viii LIST OF ABBREVIATIONS USED
CAMI CAMI Automotive Incorporated CAW National Automobile, Aerospace, Transportation and General Workers of Canada (Canadian Autoworkers Union) CAW National AP CAW National Union Assistant to the President CLC Canadian Labour Congress CRSC Concern Resolution Sub-Committee CUPE Canadian Union of Public Employees DFR Duty of Fair Representation EA Employee Advocate ERRC Employee Relations Review Committee FFA Framework of Fairness Agreement FFAW Fishermen, Food and Allied Workers' Union FC Fairness Committee GM General Manager Magna EVP Magna Executive Vice President, Human Relations NA National Agreement NDP New Democratic Party NSTUA Nova Scotia Trade Union Act OFL Ontario Federation of Labour ONLRA Ontario Labour Relations Act, 1995 SEIU Service Employees International Union UAW United Autoworkers UFCW United Food and Commercial Workers UK United Kingdom USWA-Canada United Steelworkers of America - Canada WPS Workplace Problem Solving
IX ACKNOWLEDGEMENTS
The Author wishes to acknowledge firstly the invaluable support of the Trustees of the Killam Foundation, and that of the Dalhousie Faculty of Graduate Studies, without which this research would not have been possible. The Author also wishes to thank Bruce Archibald and Dianne Pothier for their support, guidance and critique, which has vastly enriched the following work. In addition, the Author wishes to thank Sheila Wile and Geordie Lounsbury, who made the final submission of this thesis a far simpler task than it could have been.
The Author also wishes to acknowledge the assistance of Hemi Mitic, and Cathy Austin, both of whom provided copies of agreements which were vital to the success of this project. The Author is further indebted to Hemi Mitic for his assistance in seeing past the bare text of the Agreement to the spirit beneath. Finally, the Author wishes to thank his partner, Eryn O'Neill, for her unwavering support and unfaltering tolerance.
x Chapter I: Introduction
The Canadian automobile industry is in a multifaceted state of transition. On the one hand, the industry is experiencing the changes in the organization of work and of labour relations which are affecting virtually all sectors of the Canadian economy. The most recent figures from Statistics Canada suggest that overall union density in 2006 fell to just under 30%. While the rate of unionization has floated near this level for the last
2 decade and a half, that consistency masks significant change. Part-time, casual, at-home, and other types of "non-standard" employment have expanded at the expense of full- 3 time, long-term "standard" employment. These changes have been accompanied by
4 falling rates of unionization in the private sector: from 26% in 1977 to just 17% in 2006.
On the other hand, the service sector, including both low- and high-income work, has experienced a concurrent expansion relative to the whole of the Canadian economy, while the manufacturing sector has declined. In combination with factors such as a slowing American economy and a strong Canadian dollar, this places unprecedented pressure on auto industry unions and employers.
Ernest Akyeampong, "Unionization" Perspectives on Labour and Income (August 2006), online: Statscan
The auto industry has traditionally offered premium employment: high wages, good benefits, and good job security. This is in no small part because the industry has also traditionally represented a bastion of organized labour. However, unions which cut their teeth in industrial and manufacturing workplaces have been forced to either adapt to the changes outlined above or face stagnation. This means both the immediately important task of finding "new sources and forms of membership," and the more challenging tasks of developing and implementing new strategies for organizing, and new ways of dealing with employers who are facing entirely different pressures than those they faced in the post-war era. The auto industry is no exception to this trend.
Solutions to these problems for unions and employers in the auto industry will not necessarily be found in the terms of existing labour legislation. Canadian labour laws for the most part grew out of the patterns of work which dominated the first half of the 7 Twentieth Century. Its traditional application does not necessarily offer the best solution g to the problems arising from the modern economy, or the modern labour market. Where the legislative scheme is a poor fit, it will be up to representatives of labour and management to craft a model for their relationship which better suits their own needs, within the space allowed for discretion under the terms of existing legislation. Some measure of deviation from the traditional labour relations process is already contemplated by the space provided in labour legislation for the private negotiation and enforcement of
Morley Gunderson, "Ten Key Ingredients of Labour Policy for the New World of Work" (2002) 23 Can. Pub. Pol'y 117 at 117-18 [Gunderson]. 7 Trudeau, supra note 3 at 149-50. 3 voluntary recognition (VR) agreements. In Canada, and to a greater degree the United
States, relationships built on negotiation have spread even to agreements to set the terms under which the union's organizing drive will take place.
In the United States, authors have adopted the phrase "neutrality agreement" as a description of this new sort of pre-VR agreement. The straightforward phrase masks a
For example, where an employer voluntarily agrees to recognize a union as representative of its employees, waiving, in other words, the need for a certification application by the union, and a representation vote among the employees, the Labour Relations Act, 1995 gives the union and employer access to the same rights and the same dispute resolution and conciliation provisions as in the case of a certified union: S.O. 1995, c. 1, sch. A., ss. 16, 18(3) [ONLRA]; see also The Trade Union Act, R.S.N.S. 1989, c. 475, s. 30 [NSTUA]. The extent to which the negotiation of a voluntary recognition agreement allows the employer and the union to craft a different model for their relationship rather than merely offering an easier path to the legislative model will be addressed more thoroughly in Chapter V. Note the parallel citation to Ontario and Nova Scotia labour relations legislation: as will be explained in the next Chapter, the CAW/Magna Agreement primarily covers work sites in Ontario, but has the potential to cover one or more locations in Nova Scotia as well. While the discussion of legislation in this thesis will focus primarily on the laws of Ontario, parallel citation to the appropriate Nova Scotia legislation will be included, and differences will be canvassed where relevant. See David J. Doorey, "Neutrality Agreements: Bargaining for Representation in the Shadow of the State" (2006) 13 C.L.E.LJ. 41, online: Social Sciences Research Network
Voluntary agreements on the structure of the labour-management relationship such as neutrality agreements represent a test bed for experiments which have the potential to shape the future of labour relations in Canada. By avoiding the processes set out in legislation in favour of negotiating their own terms for their relationship, the parties to voluntary recognition and neutrality agreements may be able to produce conditions better suited to the practical realities of the employer's workforce and the needs of its employees than those set out in labour legislation. Voluntary recognition agreements are nothing new: they have existed since the North American model of labour relations legislation developed in the 1930s. However, such agreements may spread in the face of the changing needs and circumstances outlined above. This is particularly true for agreements as sophisticated and comprehensive as "neutrality agreements" have the potential to be.
efforts at organizing will take place, the phrase continues to dominate the literature, and will therefore be used as a convenient shorthand throughout this thesis. 12 Doorey, ibid, at 2; Brudney, ibid, at 821. The promise to recognize and bargain with the union as representative of the employees is by definition the core of traditional voluntary recognition agreements. Whether or not this is made contingent on some show of majority employee support for the union varies from agreement to agreement. 5
The negotiated models established in voluntary recognition agreements may be
emulated by other actors in the labour relations community. More importantly, they may
also serve as the model for legislative reforms as governments pursue the "reform if not 13 complete rehabilitation" of laws crafted in an earlier, different era of labour relations.
For that reason, the analysis of even small-scale experiments with new ways of ordering
the labour-management relationship can be both informative and important. Experiments
such as neutrality agreements raise issues at the leading edge of controversies in labour
relations, they suggest new directions for research, and they hint at future targets for legal
regulation. If new models of voluntary recognition agreement spread, as successful ones
are likely to, their virtues and vices must be fully explored before they do are taken up by
others in the system. This is particularly true in the auto industry, as employers and
unions seek new ways of working together to overcome the new challenges facing them.
The Agreement between the Canadian Auto Workers Union and Magna
International (the CAW/Magna Agreement, the Agreement) is of unprecedented potential 14 scope and scale. It cannot be readily classified as either a traditional voluntary
recognition agreement or an American-style "neutrality agreement," instead
Gunderson, supra note 6 at 18. 14 The Agreement is made up of several distinct parts, which should be described clearly from the outset in order to avoid confusion: first, the Framework for Fairness Agreement (FFA), setting out the principles and general terms of the relationship between the parties; second, the National Agreement (NA), which will form the collective agreement for all CAW-organized divisions of Magna; and thirdly the local agreements, which will modify the terms of the National Agreement for application to each individual division. To minimize confusion, the use of abbreviations throughout the following text and notes will correspond to the structure listed above: CAW/Magna Agreement to refer to the package of agreements as a whole, FFA to refer to the Framework of Fairness specifically, NA to refer to the National Agreement specifically, and the particular name of each to refer to the local agreements. incorporating elements from each into something much larger. If fully adopted by
Magna's workers, the Agreement stands to cover 18,000 employees at forty-five divisions in two provinces. It makes dramatic changes to the traditional Canadian model of labour relations, as set out in labour legislation across the country. These changes affect every dimension of the relationship between the parties. Rather than merely setting the conditions under which the employer will allow the union to organize its workers unhindered, or the terms on which the employer will agree to recognize and bargain with the Union, the Agreement provides rules for organizing, for bargaining, for grievance and dispute resolution, for workplace governance and for the representation of
17 employees at work and in the union. It establishes a complex and sophisticated set of structures for consultation and joint problem-solving in the workplace, in the name of building a cooperative, mutually beneficial relationship between the union and
18 management.
The Agreement raises difficult and controversial issues of cooperation and conflict at work, of the need for and stability of independent employee representation, and of the importance of democratic forms and structures in that representation. It offers a concrete framework to ground a consideration of these principled questions. Through its voluntary reordering of the relationship between the CAW and Magna, the Agreement also challenges the traditional structures of labour legislation, offering alternatives to
CAW, "Membership Presentation" (7 December 2007) online: CAW-TCA Canada
many of the well-established legislative processes. While the challenges presented by the
Agreement may produce some instability, they also highlight areas where Canadian
labour law has begun to stagnate, areas where the "rehabilitation" suggested by
19 Gunderson may be particularly important.
It goes without saying that the CAW/Magna Agreement is a unique and
innovative development in Canadian labour relations, which may have an enormous
impact on the landscape of organized labour in Canada. The following four Chapters will
devote themselves to considering the Agreement and its implications for the law and
theory of labour relations. The outcome will be a close analysis of its benefits and
drawbacks, of its probable successes and its potential stumbling blocks, and of its meaning for the Union, the Company, its employees, and the labour relations community
at large.
The next chapter will offer background to the Agreement itself, as well as the parties thereto. It will introduce the CAW and Magna, will offer some relevant background information on each, and will review the past relationship between the two.
In addition, this Chapter will introduce the terms of the Agreement, and explore the way in which they diverge from traditional labour relations structures. Finally, the Chapter will close with a review of the criticism to which the Agreement has been subjected, in an effort to identify the most important issues highlighted by the critics.
The third Chapter will be devoted to exploring the interaction of conflict, cooperation, and independent representation in the Agreement, all prominent in the concerns of its critics. This Chapter will address the compatibility of the mechanisms for
Gunderson, supra note 6 at 18. 8 labour-management cooperation entrenched in the Agreement with independent representation by the CAW. It will explore the benefits and risks offered by a cooperative paradigm for employees and employers, and their implementation in the Agreement. It will discuss the practical conditions required for a cooperative model of labour relations to succeed, and the constraints on labour-management conflict which those conditions require. This Chapter will also introduce the tension between democracy and cooperation, which will be developed further in the next Chapter.
The fourth Chapter will address the role of democracy in employee representation. The Agreement places restrictions on the capacity of CAW members at
Magna to choose their own representatives, and to participate in traditional democratic processes of discourse within the union. This Chapter will address the question of whether democracy is desirable in employee representation, and subsequently the question of whether the Agreement provides enough room for democracy within the limits it sets. This Chapter will also further explore the multifaceted tension between cooperation at work and democracy in union representation, and will ask whether the
CAW/Magna Agreement has balanced the tension correctly.
The fifth Chapter will consider the various ways in which the CAW/Magna
Agreement presents a challenge to the existing structures of labour law in Ontario and
Nova Scotia. It will explore the potential for the Agreement to be undermined or destabilized through conflict with the law, and will attempt to suggest changes which could be made to address that risk. It will also identify areas in which the Agreement exposes weaknesses in the law which labour policy-makers may have to address if agreements on this model spread. 9
The final Chapter will conclude with a discussion of the possible futures of the
CAW/Magna Agreement. It will review the successes and failures identified in the preceding Chapters, and will speculate on its probable fate. It will also explore the possibility of the Agreement spreading beyond the manufacturing sector, into other industries where unions may be meeting even less success in organizing, and where departure from the norms of labour legislation may be even more helpful. Chapter II: Magna, the CAW, and the Framework of Fairness
A. Introduction
The purpose of this Chapter is to offer a factual backdrop for the discussion of the
CAW/Magna Agreement which will dominate the subsequent Chapters. To that end, it will first set out some relevant background details on each of the parties to the
Agreement, Magna International (Magna) and the Canadian Auto Workers Union
(CAW). The discussion of Magna in the first section will highlight its human resource strategy which has been so successful at keeping the Company union-free for fifty years.
It will review the strong points of the strategy, and highlight some weaknesses. The next section will offer some background on the CAW. It will explore the turbulent twenty-five year history of Canada's largest private sector union, in particular highlighting points at which the union has come into conflict with other elements in the labour movement. This section will also outline the history of the relationship between the CAW and Magna prior to the signing of the Framework of Fairness.
The next section will introduce the terms of the Agreement. Offering comparisons with both Magna's human resource strategy and traditional collective agreements negotiated by the CAW, this section will explain how the CAW/Magna Agreement is a truly unique development in the Canadian labour relations landscape. The final section will explore the reactions to the public announcement of the Agreement. The volume of criticism has been remarkable, and the concerns of the critics highlight some of the issues which will be analyzed in greater detail in the subsequent Chapters.
10 11
B. Magna Background
1. Magna International, Inc.
Magna International (Magna, the Company) is a Canadian public company,
employing 83,000 workers at 240 manufacturing sites and 62 research and development
sites in 23 countries worldwide. Its Canadian operations comprise 61 manufacturing
2 sites and 8 engineering and development sites employing a total of 20,550 employees. It
is the largest automobile industry employer in Canada, and the fifth-largest in North 3 America. Magna was launched in 1957 by Austrian immigrant Frank Stronach as a
small tool and die shop in Toronto, and was built, diversified, and expanded over the
4 subsequent fifty years, still primarily under his leadership.
Over the last half of that fifty-year history, Magna has faced and overcome
economic challenges which have devastated other auto-industry companies, most notably
including the "Big Three" of Ford, General Motors, and Chrysler: increasing
Magna International, "Third Quarter Report 2007" (2 November 2007) online: Magna International
Despite experiencing these same challenges, Magna has continued to grow, with global sales reaching over twenty-four billion dollars in 2006.
While Magna's legal structure is relatively straightforward, its operational and practical structure is far more complex. Magna is divided into a number of separate but coordinated divisions. Until April 2005, three of these divisions, Intier Automotive,
Decoma International, and Tesma International were publicly traded companies in which
7 Magna owned a controlling interest. Since that time, Magna has acquired the outstanding shares in these companies and privatized them, in order to carry out a
o reorganization of their operations along geographic lines. Due to this recent reorganization, the operational structure of Magna International is not always clear.
Nicolas Van Praet, "How Stronach Learned to Sing Union Song" National Post (16 October 2007), online: Financial Post
Magna operates on a "corporate policy of functional and operational
9 10 decentralization." Each individual plant acts as a "separate profit centre". The
management of each plant sets rates of pay and work schedules, and makes both supply-
side and production contracts. Magna's Canadian operations are divided among some sixty-one work sites or "divisions," most of which do not fit the Henry Ford model of a
12 massive, integrated production complex. The management team of each of these small
divisions is responsible for keeping the plant profitable and competitive, and they answer
13 to the regional and executive management for their successes and failures to do so. The
disparate divisions are also unified by the requirement that they adhere to the Magna
14 Constitution and Employee Charter. This has the effect of maintaining a consistent
human resource policy across the company, despite the decentralization and the wide
latitude for independence on the part of local management.
Until last year, Magna's Canadian operations remained primarily union-free.
This was due in part, no doubt, to Frank Stronach's openly anti-union attitude. It was
9 Magna, "Information 2006," ibid, at 12. 10 Ibid. 11 Ibid. 12 Lewchuk & Wells, supra note 3 at 5. The authors note that the average number of employees at a Magna division in 2006 was 366 {ibid, at 5, n. 5). 13 Magna International. "About Magna - Our Global Structure" (2008) online: Magna International
17 labour-management cooperation, communication, teamwork, and profit-sharing. The success of Magna's union-avoidance strategy is felt both in the failed attempts by the
CAW to organize particular divisions of the company, and in the surprising satisfaction with the terms and conditions of work the authors noted in the Magna employees they
18 interviewed. Lewchuk and Wells' interviews revealed little interest in unionization among Magna employees.
What is it about human resources policy at Magna that has kept employees so satisfied? An answer to that question is beyond the scope of this paper, and has been
20 offered in any event in the Lewchuk and Wells article. Reviewing the structures of the employee relations system at Magna is nonetheless useful, as it will offer background for
Only one of our shops is unionized ~ the one on the east coast. Unions as such believe in socialistic philosophies; their basic goal is to change society so that practically everybody shares equally. I don't agree with that. If somebody wants to sabotage a system, you have to take countermeasures. In our system, there is no great need any more for unions. This socialistic philosophy says that we have to share everything equally. What's wrong with that is that people aren't all equal. It would be the end of mankind.
Quoted in Van Praet, "Union Song," supra note 5. 17 Lewchuk & Wells, supra note 3 at 644. Lewchuk and Wells emphasize the importance of Magna's HR policy, in combination with the external labour market and economic factors, in keeping the company largely union-free (ibid, at 656). 18 Ibid, at 642. 19 Ibid, at 17. Of course, whether that disinterest will continue when union representation is offered up with the blessing of management remains to be seen. It should also be noted that Lewchuk and Wells studied only a very limited number of Magna plants in Canada, and their conclusions may not represent the feelings of a majority of Magna employees. 20 Ibid, at 659-60. 15
21 the comparison with the CAW/Magna Agreement which is to follow. This comparison will illustrate in clear terms how much of Magna's existing employee relations framework the Agreement incorporates, and where and how far it strays from collective bargaining norms.
2. Fair Enterprise and the Employee Charter at Magna
The system of employee relations at Magna has its roots in the Company's
22 Corporate Constitution and the Employee's Charter (the Charter). The Corporate
Constitution establishes the basic division of the company's profits between employees,
23 management and shareholders. Instituted in 1988, the Charter stipulates the
24 fundamentals of the relationship between the company and its employees. As is stated
21 The agreement between the CAW and Magna [the CAW/Magna Agreement, the Agreement] is made up of several distinct parts: see supra, Chapter I, note 14. Those parts bear repetition here: first is the Framework for Fairness Agreement [FFA], which sets out the principles and general terms of the relationship between the parties; second is the National Agreement [NA], which will form the collective agreement for all CAW- organized divisions of Magna; and third are the local agreements, which modify the terms of the National Agreement for application to each individual division. To minimize confusion, the use of abbreviations will correspond to the structure listed above: CAW/Magna Agreement to refer to the package of agreements as a whole, FFA to refer to the Framework of Fairness specifically, NA to refer to the National Agreement specifically, and the particular name of each to refer to the local agreements. Magna International, "Corporate Constitution" (2005) online: Magna International
in the preamble to the document, it expresses Magna's "operating philosophy of fairness
25 and concern for people." The seven principles (or tenets, in the philosophical spirit of the document) set out in the Employee's Charter are implemented in a variety of ways in
. 26 practice.
The first tenet of the Employee's Charter is Job Security. The Charter states that
"Being competitive by making 'a better product for a better price' is the best way to
27 enhance job security." The Charter emphasizes training and "Job Counselling" as
28 examples of the company's commitment to job security. These examples reflect a post-
Fordist understanding of security, or in other words "employability security" rather than 29 employment security in the traditional sense. In practice, however, Lewchuk and Wells
30 note that employment is relatively secure at Magna. They note that seniority in the union sense is not a significant factor in this security, attributing it instead largely to the
25 Magna, "Charter," supra note 22. The online version of the Employee's Charter includes pop-up explanatory notes accompanying each tenet. Where these notes offer some added insight into the tenet's implementation, they will be mentioned here, though they must be distinguished from the wording of the tenets themselves - they do not form part of the official text of the Charter. 27 Magna, "Charter," supra note 22. 28 Ibid. 29 See Katherine V.W. Stone, "The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law" (2001) 48 UCLA L. Rev. 519 [Stone] at 539-549 for a discussion of the change from "employment security" to "employability security". Stone argues that the promise of full-life, full-time employment which was offered implicitly by most large employers in the post-war period, following the approach of Henry Ford and the Ford Motor Corporation, has been replaced in the "post-Fordist" period with a promise similar to that made here: the company will help upgrade your skills and knowledge to make you as employable as possible, but it will not guarantee you permanent employment. Lewchuk & Wells, supra note 3 at 649. 17 economic success the company has enjoyed, coupled with the company's reliance on a
31 pool of temporary workers to absorb the impact of downturns in business. All new employees hired by Magna undergo a period of temporary employment before possibly being hired on a permanent basis, offering a constant buffer against layoffs of permanent 32 employees. Lewchuk and Wells question the sustainability of these high levels of job
33 security on Magna in the face of serious economic adversity.
The second tenet of the Employee's Charter promises to "strive... to provide... a 34 working environment which is safe and healthful." In accordance with the company's legal obligations under the Occupational Health and Safety Act, the notes attached to the online version of this relatively straightforward commitment guarantee "an active Joint 35 Health and Safety Committee and regular safety audits and inspections." Continuing the theme of balancing employee protection and competitiveness, the second tenet also links safety back to efficiency and productivity.
The third tenet of the Employee's Charter, which commits the company to the principle of "Fair Treatment," is both one of the briefest and one of the broadest. It stipulates that "Magna offers equal opportunities based on an individual's qualifications
11 Ibid, at 656, 649. 32 Ibid, at 651. 33 Ibid, at 659. 34 Magna, "Charter," supra note 22. 35 Ibid; Occupational Health and Safety Act, R.S.O. 1990 c. 0.1, particularly at s. 9(2). While the Company has plants in different provinces, including Nova Scotia, their obligations under Occupational Health and Safety legislation are similar: see Occupational Health and Safety Act, S.N.S. 1996, c. 7, ss. 13, 29. Magna, "Charter," ibid. 18
37 and performance, free from discrimination or favouritism." The online notes to the
Charter point to three manifestations of this principle: "The Employee Opinion Survey,
38 Fairness Committees and the Open Door process." While the notes to this tenet refer only to disciplinary and grievance procedures, the text suggests a link to promotion and evaluation as well. In practice, the fair treatment principle offers the foundation for the relatively sophisticated formal and informal grievance resolution process at Magna workplaces.
The "Open Door process" is an umbrella name for a number of institutions which 39 substitute for the formal grievance procedures common in unionized workplaces.
Leaving questions of comparison aside for the moment, the intention of the open door policy is to provide as quick and informal a resolution to employee concerns as possible.
The process has multiple levels. At its most basic, workers bring concerns to their supervisors within the ten to twelve-person production units which make up the workforce at Magna facilities, and the supervisors attempt to deal with the issue on the 40 shop floor. At a higher level, workers can bring their concerns to the Employee
Advocate, a full-time employee selected by management, but removable only by a
41 majority ballot of the employees. The Employee Advocate is empowered to offer
"management-sanctioned options" to resolve worker concerns, and to mediate between
37 Ibid. 38 Ibid. 39 Lewchuk & Wells, supra note 3 at 644. 40 aid. 41 Ibid, at 645; Magna International, "Annual Information Form 2007" (2007) online: Magna International
42 workers and management. Another step in the Open-Door Process is the Fairness
43 Committee, made up half of managers and half of elected employees. Again, employees can bring their concerns to the Fairness Committee, and members of the
44 Committee can attend meetings between workers and management.
The final step in the Open-Door Process commits the Company to providing a
"Hotline" through which employees can reach individuals who are empowered to investigate and resolve their concerns, and who are answerable to the company's "Global
Human Resources Department" rather than any one site, division, or regional
45 management team. This represents the ultimate option available to employees who are unsatisfied with the resolution of their concerns through the other steps in the Open-Door
Process, and one of the guarantees the Company offers that its divisions will operate in accordance with the Employee's Charter. The Company also monitors the compliance of 46 its divisions through the regular "Employee Opinion Survey."
The interviews carried out by Lewchuk and Wells call into question the degree to which the Open-Door Process actually furthers the Employee's Charter goal of fair treatment. Some of the respondents expressed reluctance to use the process, stemming from fears of reprisals, although the interviewees did not point to specific cases of
42 Lewchuk & Wells, supra note 3 at 645. 43 Ibid. 44 Ibid. 45 Magna, "Charter," supra note 22. 46 Lewchuk & Wells, supra note 4 at 647; Magna, "Charter," ibid. 20
47 retaliation by management. Outside sources noted that several workers had been laid-
48 off after suffering injuries on the job. Finally, while no other suggestion of
discriminatory treatment was made, the interviews demonstrated significant evidence of
49 the favouritism which the third tenet of the Employee's Charter purports to exclude.
Lewchuk and Wells' interviews suggest that a worker's personal relationship with his or
her supervisor is often the basis for preferential treatment, including for example: "better
access to training and job postings, preferred vacation schedules, and hiring of friends
and family members. Supervisors typically suggest training for particular workers, and
this can play a major role in promotions." While Magna may genuinely aspire to the
ideal of fair treatment set out in the Charter, its implementation seems to be at odds with
the understanding of fairness one might expect in a unionized workplace.
The fourth tenet of the Employee's Charter commits Magna to pay a wage and
benefit package competitive with both that offered by the Company's competitors and the 52 average in the employee's community. This is closely linked to the fifth tenet of the
47 Lewchuk & Wells, ibid, at 644. 48 „ . , Ibid, at 645. 49 Ibid. Ibid, at 646. Such an understanding might include a hiring and promotion process based on job postings, with concrete and transparent criteria for decisionmaking, for example, seniority, with recourse to an independent process of dispute resolution in the event of a disagreement over the application of those criteria. 52 Magna, "Charter," supra note 22; the fourth tenet reads as follows: "Magna will provide you with information which will enable you to compare your total compensation, including total wages and total benefits with those earned by employees of your competitors, as well as with other plants in your community. If your total compensation is 21
53 Charter which promises "Employee Equity and Profit Participation." This is by far the most concrete of the Charter's tenets, and is particularly notable in its clear definition of
"competitive," a rarity in a Charter made up predominantly of generalities.
The fifth tenet of the Employee's Charter is supported by a provision of the
Corporate Constitution which sets aside ten percent of the Company's pre-tax profits to
54 be paid out in both shares and cash to employees. This investment in profit sharing is an important component of Magna's employee relations strategy. Lewchuk and Wells describe it as "perhaps the most effective mechanism encouraging workers to promote management goals." The profit sharing is for the most part carried out through shares held in trust accounts for periods of at least ten years, which encourages employees to take a long-term view of the profitability of the Company. In spite of its motivational power, as Lewchuk and Wells note, the deferred profit sharing also constitutes "a risky
57 financial strategy" for Magna employees. The Company no longer offers a registered pension plan as an alternative to the profit sharing scheme, although it once did so, and
found not to be competitive, then your wages will be adjusted.": ibid. Lewchuk and Wells offer mixed reviews of the competitiveness of Magna's wages in practice: [Magna's w]ages are modest for the sector, about average for the parts sector but about 40% lower for assemblers and 15% lower for skilled categories compared to Big Three assembly plants. Benefits are also much lower than in Big Three plants. Work shift premiums at the Big Three, for example, are two to four times those at Magna, and there are substantial differences in paid time off, including holidays and vacations. (Lewchuk & Wells, ibid at 650.) 53 Magna, "Charter," ibid. 54 Magna, "Constitution," supra, note 22. Lewchuk & Wells, supra note 4 at 652. Ibid. 57 Ibid. 22 indeed "most [Magna employees] rely on profit-sharing as their main source of retirement
58 income." This leaves the retirement income security of many employees tied solely to the well-being of the Company, a situation which might at best be described as dangerous.
Finally, the sixth tenet of the Employee's Charter addresses communication, 59 which includes the flow of information both to and from employees. While soliciting employee suggestions and comments is a means of ensuring that individual divisions are following of Magna's Open Door Policy and furthering the principle of fair treatment, the
Company also takes steps to ensure that workers are provided with information about the successes and failures of their individual working groups, as well as the plant and
Company as a whole. The sharing of information occurs under both formal and informal circumstances, but always with the tone of teamwork, cooperation, and advancing the competitiveness and productivity of the Company.
It would be imprudent to address the terms of the Employee's Charter and their implementation in practice and not also devote some attention to the question of the document's real meaning for the Company. Naming the document the Employee's
"Charter," and describing the contents as principles which guide the philosophy of the
Company is clearly intended to evoke in employees a sense of its permanence and fundamental reliability. The processes outlined above for ensuring that the many disparate divisions of Magna all abide by the principles set out in the Charter are
58 Ibid. 59 Magna, "Charter," supra note 22. Lewchuk & Wells, supra note 4 at 647-48. 61 Ibid. 23 reminiscent of the machinery of the law, operating to protect employees and hold their local management to a certain basic structure of employee relations. The posting of the
Employee's Charter in the workplace communicates clearly to employees the immutable foundations of their relationship with the Company, and the Company's obligation to them. It adopts the "new psychological contract" model and makes it concrete.
But how solid is the framework of principle which the Charter establishes?
Conceivably the Company could undergo a change in management accompanied by a shift in philosophy, and could back away from the principles set out in the Charter. A dissatisfied employee might be able to pursue an action in contract, or even for constructive dismissal if the change in approach was radical enough. However, most of the commitments are phrased in such a way that their meaning for an employee is difficult to quantify. What would an employee seek as compensation for a management decision to reduce the disclosure of information and the opportunities for employee input? Damages might be quantifiable in some cases, for example for the termination of the profit-sharing plan. In others, the courts might be unwilling to ascribe legal meaning to the relatively vague and general principles in the Charter.
While the Charter offers the appearance of reliable guarantees from Magna, and while the principles it commits the Company to are laudable, they appear to be founded only on Magna's goodwill and on its commitment to a particular philosophical
The "new psychological contract" in management theory refers to the changing expectations for the employment relationship on the part of employers and employees; long-term job security is no longer the employer's offer in return for dedication to the firm. See, for example, Stone, supra note 29; Denise M. Rousseau, "Changing Psychological Contracts: Implications for Human Resources Management and Industrial Relations" in Thomas Kochan & David Lipsky, eds., Negotiations and Change: From the Workplace to Society (Ithaca, NY: Cornell University Press, 2003) 37. 24 perspective. Magna's employees may not be able rely on the permanence of the Charter or of the promises it makes. Moreover, as the Lewchuk and Wells interviews showed, even the "guarantees" of fair treatment and equal opportunity set out in the Employee's
Charter may amount to something less in actual practice. The Company sets the terms of the Employee's Charter, the Company decides how they will be implemented, and the
Company decides whether or not they have been adhered to.
C. CAW Background
/. The Canadian Autoworkers
Having reviewed the background of Magna International, it is now equally important to take a moment to explore the other partner to the Agreement. The National
Automobile, Aerospace, Transportation and General Workers of Canada (the CAW, the
Union) is the largest private sector union in Canada, as is proclaimed on the home page
/TO of the union's website, hi 2005, the CAW had 265,000 members across Canada, in a wide variety of sectors, including automobile manufacturing, aerospace, shipbuilding,
64 transportation, resources, retail and service, and the public sector. Of that total
CAW & Magna International, "Framework of Fairness Agreement" (15 October 2007), online: CAW-TCA Canada
The CAW has existed as an independent entity for almost twenty-five years.
The CAW was born as a division of the United States-based United Auto Workers
International Union. In the early eighties, the CAW split from its parent over a growing rift in goals, orientation, and perspectives, and amidst a spreading sense of nationalism which arose out of challenges to the auto industry similar to those faced today. The split had its genesis in the very different approach by the Canadian and American divisions of the UAW to the crisis of globalization and competition in the auto industry in the early eighties. The Canadian division was reluctant to accept the wage and benefit
69 concessions that the American division had taken under economic and public pressure.
The Canadian division met the demands for concessions and the lack of support from its
As the short form of its name, "Canadian Auto Workers," suggests. CAW, "Sector Profile: Major Auto" (2006) online: CAW-TCA Canada
American leadership with increasing resistance, eventually leading to a complete
70 separation and independence for the new Canadian union.
Over the following decade, the CAW was able to greatly expand, despite
71 significant continued setbacks in the auto sector. It gained new members in diverse sectors of the economy, spreading far beyond its original base. Air transportation workers, service workers, and railway workers all sought membership in the CAW, which also expanded through a number of significant mergers with large, well-
72 established unions. Throughout this period of expansion, the union retained a reputation for militancy, independence, and resistance to the larger international 73 unions.
2. The CAW and the Politics of Organized Labour
The rapid expansion of the CAW, in combination with its willingness to challenge the larger international unions has earned it its fair share of conflict with other actors in the labour movement. Compiling a list of everyone the CAW has ever displeased would be a long and pointless task. However, three particular crises are worth exploring in more detail, as they offer some context for the analysis below of the criticism with which the
CAW/Magna agreement has been received. These three points are the CAW conflict with the United Food and Commercial Workers (UFCW) in 1987; the defection of 12,000
70 Ibid. 71 Ibid, at ch. 9. 72 For example, the Canadian Brotherhood of Railway, Transport, and General Workers [CBRT] in 1994, the Canadian Association of Industrial, Mechanical, and Allied Workers in 1992: Ibid. 73 Ibid. 27
Canadian members of the Service Employees International Union (SEIU) to the CAW in
2001; and the CAW split with the New Democratic Party (NDP) in 2006.
The first conflict arose out of the desire on the part of Newfoundland fisheries 74 workers to leave the UFCW in 1987. Rather than follow established procedures for secession, the local UFCW members attempted to merge directly with the CAW. They were met with stiff opposition from the international leadership of the UFCW, who imposed a trusteeship on the local and launched a variety of court actions against the
75 leadership of the revolt. The local leadership responded by terminating their association with the UFCW, forming a new union (or rather, a new incarnation of the union they had been before merging with the UFCW, the Fishermen, Food and Allied Workers Union
(FFAW)), and defeating the UFCW in certification votes all across the province.
77 Immediately upon winning certification, the FFAW merged with the CAW. Although the UFCW complained to the Canadian Labour Congress (CLC) that the CAW was engaged in raiding, the CLC declined to sanction the CAW, on the basis that the UFCW
78 had already taken the matter to the courts. The dispute was eventually settled, but not
74 Ibid. The fisheries workers had gone from being an independent Newfoundland union to a UFCW local through a series of mergers which predated the formation of the UFCW (ibid). 75 Gary N. Chaison, Union Mergers in Hard Times: The View from Five Countries (Ithaca, NY: Cornell University Press, 1996) at 63 [Chaison]. 76 Ibid, at 64. 77 Ibid, at 64. 78 Ibid, at 64. 28 before the CAW spent millions on legal fees defending itself and the defecting FFAW 79 membership from the UFCW's various claims.
This would not be the last time the CAW and the UFCW would clash over the wishes of union members. On two separate occasions in 2003 the unions locked horns over corporate mergers and sales which resulted in the amalgamation of CAW and
80
UFCW bargaining units. In both cases, the employer entered voluntary recognition agreements with the UFCW which excluded the CAW, and in both cases the CAW pursued a vote of the workers, in the face of opposition from the UFCW and from the 81 Canadian Labour Congress. In the first case, the CAW overwhelmingly won a representation vote and was certified, while in the second they lost the vote to the
UFCW.82
The second crisis in many ways parallels the first. In 2000, the leadership of eight
Canadian locals of the large United States-based Service Employees International Union, representing 30,000 members, decided that they wanted to leave SEIU and join the
79 Gindin, "Birth and Transformation," supra note 67 at ch. 9. Interestingly, Gindin notes that the FFAW brought with them low dues and high costs, and relatively little benefit for the CAW (ibid). 80 Buzz Hargrove, "Speech of CAW President Buzz Hargrove to CAW Council, Sheraton Centre, Toronto, December 13-14 2003" (14 December 2003) online: CAW- TCA Canada
83 CAW. Before they could bring their decision to their membership for ratification, the
SEIU executive in Washington placed all eight locals under trusteeship, and fired the 84 staff involved. The CAW backed the SEIU members' attempts to leave despite the
SEIU opposition. What began as a dispute between the two unions spread through the
labour movement when SEIU brought raiding complaints to the Canadian Labour
85 Congress. The CLC appointed an impartial umpire, who found the CAW guilty of
raiding for failing to follow the procedures established in the CLC Constitution for a
change of allegiance. The CLC ordered the CAW to stop all attempts to organize the
former SEIU members. The CAW refused to follow this directive, and in the result, the
CAW was subjected to escalating sanctions, eventually culminating in their expulsion 87 from all CLC bodies and activities. In response, the CAW withheld dues from the
CLC.88
83 SEIU, "SEIU leadership vote to leave U.S. Based union and Merge with CAW" (20 February 2000), online: Hartford-HWP World History Archives
Resolving the dispute between SEIU and the CAW took more than a year, and deeply polarized the organized labour community in Canada. After its sanctioning and expulsion from the CLC, the CAW seemed to be standing virtually alone, with major unions including the Canadian Union of Public Employees (CUPE) and the United 89 Steel workers of America - Canada (USWA-Canada) harshly criticizing its actions. The
CAW responded to the expulsion by threatening to set up its own governing body for labour, while continuing to support decertification votes as they become timely in SEIU 90 workplaces which had voted in favour of the merger. Eventually, a deal was brokered between the CAW and SEIU which allowed the former SEIU members to continue to
91 vote whether to stay or go, while also allowing the CAW to effectively rejoin the CLC.
Ultimately, 12,000 SEIU members left the union in favour of the CAW, while the SEIU consolidated their Ontario membership into one large local, "SEIU Local l.on," under the 92 leadership of Vice President Sharleen Stewart. Relations between the CAW and many unions, including CUPE, the USWA-Canada, and of course the SEIU remained
93 strained.
The third and most recent political crisis for the CAW did nothing to repair the ailing relations between the CAW and the rest of the Canadian labour movement. At the
89 Ibid; the exception was the Alberta Union of Public Employees which left the CLC in protest after the CAW was suspended: Anonymous,"Alta. Leader Backs CAW; union faces own strike" (23 October 2000) 13:18 Canadian HR Reporter 16. 90 Wheeler, ibid. 91 Robinson, supra note 87; Anonymous, "CAW and SEIU make up" (18 June 2001), 14:12 Canadian HR Reporter 5. 92 Now SEIU Local I Canada: SEIU, "SEIU-Local 1 Canada," online: SEIU-Local 1 Canada
"strategic voting," as Hargrove called it, was intended to prevent a Conservative majority 95 government, and he heralded it as a success. Others disagreed, and the move attracted some scathing responses. One critic suggested that rather than increase Liberal support, the CAW's endorsement of Martin may only have strengthened the commitment of
96 Conservative voters.
The harshest reaction of all came from the Ontario wing of the NDP, which 97 suspended Buzz Hargrove from membership for his public support of the Liberal party.
In response, the union "overwhelmingly" voted to withdraw support for the party; "the 98 delegates saw this as an attack on the union," Hargrove told the press. This move by the CAW further divided the labour movement, and the gap widened when the CAW repeated its call for strategic voting in the October 2007 Ontario provincial election. This time, the call sounded more like a boycott of the Ontario NDP than a pragmatic proposal
94 John Intini, "The Buzz Fracture" Macleans Online (8 February 2006) online: Macleans.ca,
99 to avoid a Conservative majority. His praise of the Ontario Liberal party as "more left than the NDP" earned him the derision of many, including NDP candidate and CUPE executive Sid Ryan, with whom Hargrove exchanged sharp words in the press.
Some, including notably former CAW executive member Sam Gindin, pointed to the move away from the NDP as representative of a broader shift within the union.
Gindin identified it as a long-term shift toward "pragmatism" and away from an
"expansive vision," and suggested that "the union seems to have gotten uncomfortably close to both the corporations and the Liberals."
This puts a dramatically different face on the CAW than that observed by some commentators. One article, published at the same time as the Gindin piece, characterized the CAW as having positioned itself as a "militant union," which "embraces an ideology 102 of conflicting interests." Drawing on policy documents, speeches, and other sources internal to the CAW, the authors suggest that the union "rejects 'partnerships' with employers and related initiatives such as wage or workrule concessions, teamwork, 103 profit- or gain-sharing, and long-term collective agreements." The contrast between
99 Linda Diebel, "No Reason to Vote NDP, Hargrove Says" Toronto Star (5 October 2007), online: Star Online
Whether or not the picture the CAW has presented of itself as militant and aggressive remains accurate, it is clear that they have isolated themselves from the rest of the labour movement. This isolation is of particular importance when analyzing the critical responses to the CAW/Magna Agreement. It may be tempting for critics to judge the Agreement by their perceptions of the CAW's past transgressions, whether personal or against the labour movement as a whole. This may in part explain the ferocity of the backlash against the Agreement. As we will see, however, it cannot explain away the merits of the criticisms which have been offered.
3. Prior Organizing at Magna: Getting a Foot in the Door
The politics of organized labour in Canada provides part of the context for the
CAW/Magna Agreement. Even more important, however, is the background of the relationship between the Company and the Union. The Agreement arose out of two years of negotiations between the parties, but those negotiations only came about because the
CAW and Magna had had an opportunity to build a working relationship at the three 104 Magna facilities which the CAW was able to organize years before. The process of
CAW, "Membership Presentation on the Magna Agreement" (7 December 2007) online: CAW-TCA Canada 34
organizing those facilities, and the structure of the collective agreements bargained at
each formed the foundation for the Framework of Fairness, and subsequently for the
National Agreement.
The CAW's first success at a Magna facility came after almost ten years of
unsuccessful organizing, including three defeats in representation votes. Workers at
Integram Seating in Windsor, Ontario voted in favour of representation by the CAW in
October of 1999, by a margin of only 317 to 285. This result was followed by fourteen
months of settlement discussions and struggling over the details of the vote at the Ontario
Labour Relations Board before Magna agreed to abandon its challenges and begin
107 bargaining. By November of 2001, a collective agreement which satisfied the union,
108 Magna, and the workers at Integram had been reached.
In contrast with the difficult process of organizing at Integram, agreements at
Innovatech and Mississauga Seating were organized with ease. In each case, the plant in
question was a new operation being set up, and in each case Magna made no efforts to
resist the CAW's organizing efforts at the new facility. In the case of Innovatech, the
Seating, the new plant took over the business of a unionized facility in Oakville which closed, and an agreement was reached in advance that the new facility would also be organized by the CAW.
The content of the Framework of Fairness Agreement, which will be explored in more detail shortly, was also not created out of whole cloth. The previous agreements at
Integram/Innovatech and Mississauga Seating both incorporated unique features which would later reappear in the FFA. In the case of Integram/Innovatech, the union agreed before bargaining began to a no-strike/no-lockout provision, although one which was
112 limited in duration to six years. The union explained the no-strike agreement by pointing to the narrow margin of support at Integram, suggesting that the union might not 113 survive an early strike at the plant. The no-strike agreement expired just as CAW
Local 444 entered its most recent round of bargaining in January of 2008. While a new
109 Tony Van Alphen, "New Magna Plant Innovatech gains union recognition" Toronto Star (24 April 2002) E12 ["Innovatech Recognition"]. Greg Keenan, "CAW strikes deal at Magna unit" Globe and Mail (11 December 2002), online: Globe and Mail
., 114 to a stake.
Magna's employee relations structures make their first appearance in the recognition and recitation of the principles of Magna's Employee's Charter found at the outset of both the Integram and Mississauga Agreements. The Charter is incorporated in each agreement as a point of reference, or tool of interpretation for the collective agreement. Each agreement also includes, as its first words, a statement of purpose reflecting a familiar sentiment: "The parties have entered into this Model Collective
Agreement to help them find better ways of working together to meet the Customers' expectations of a quality product at a competitive price so as to improve the profitability
117 of the Company and thus improving job security for all employees." Similar language is evident in the Company's Employee's Charter, discussed above, and in the
CAW/Magna Agreement.
114 Sarah Sachelli, "Integram Workers Accept Contract" Windsor Star (10 March 2008), online: Windsor Star
The agreement which covers both Integram and Innovatech also worked elements
of Magna's Open-Door Policy, outlined above, into the typical grievance resolution 118 process. This was accomplished through a parallel procedure: an employee faced with
a concern had the option of addressing it through either the "Workplace Problem
Solving" (WPS) process under Article VII of the Collective Agreement, or the traditional 119 grievance process under Article VIII. If an employee chose to address their concern through the WPS process, they could first informally approach anyone in the supervisory 120 chain of the plant, from their supervisor to the General Manager (GM). If the problem could not be resolved in this way, the employee could take their concern to a panel of the plant Fairness Committee (consisting of three workers and two supervisors or managers) 121 * for formal resolution. Any concern could be taken through the WPS/Fairness 122 Committee process, including the termination of the employee in question. The
Fairness Committee could hear representations from the employee, or anyone else 123 involved. Ultimately, they decided the complaint through a simple majority vote, and they could uphold, overturn, or modify the original management decision which resulted
118 Tony Van Alphen, "Magna Workers Proud of New Contract" Toronto Star (13 November 2001) C03; Integram CA, ibid, at 19-24. 119 Integram CA, ibid, at 19-24, 25-28. 120 Ibid, at 21. 121 Ibid, at 23, ss. 7.08(b), 7.08(c)(3)(a)(i). 122 Although the decision of the Fairness Committee on the issue of termination was required to be put forward for a secret ballot vote by all employees working on the same shift in the same department as the terminated employee: ibid, at 24, Art. 7.08(d), and at 97. 123 Ibid, at 24, ss. 7.08(d). 38
124 in the complaint. The decision of the Fairness Committee was binding and not arbitrable: choosing the WPS process excluded the application of the traditional 125 grievance process.
Even if the employee chose the traditional grievance process, elements of the
WPS approach were incorporated. Step one offered the typical grievance process first step, requiring the employee to take the issue up verbally with their immediate supervisor. Failing a resolution at this step, either the Union or the Company was entitled at step two of the grievance process to refer the matter to the plant Fairness Committee
1 0f% for a decision. If the Fairness Committee could not produce a mutually satisfactory result, then the matter would return to the standard grievance process for resolution, with 127 recourse to arbitration if necessary.
This tentative blending of Magna and traditional labour relations approaches was duplicated in the Mississauga Seating agreement three years later, suggesting that the 128 parties were satisfied with its effectiveness at Integram. In addition to the importation of the Workplace Problem Solving processes from the Integram agreement, the
Mississauga agreement contained further concessions to the Company's flexibility, including only half the usual number of job classifications, and providing for the use of
Ibid. 125 Ibid, at 20, Art. 7.06; and at 25, Art. 8.01. 116 Ibid, at 25-26, Art. 8.03. 127 Ibid, at 20, Art. 7.06; and at 29, Art. 9.02. 128 Mississauga Seating CA, supra note 115 at 10, Art. VII; and at 16, Art. VIII. 39 temporary workers to supplement or replace bargaining unit employees in limited 129 situations.
D. The Framework of Fairness and the National Agreement
As can be seen, the CAW/Magna Agreement is not the parties' first experiment with an integrated system of representation. In the Agreement, however, they have moved beyond the tentative steps taken at Integram and Mississauga and created an entirely new model of labour-management relations. The first step to exploring this new model must be to describe the content and meaning of the Agreement by which it is established. It is not enough to merely summarize its terms. To be able to properly analyze the agreement's blend of cooperation and democratic representation, and to give fair consideration to the criticisms to which it has been subjected, it will be necessary to explore both the ways in which it departs from traditional collective bargaining practice and the ways in which it adopts Magna's own distinctive model of employee relations.
1. A Framework of Principle?
The Framework of Fairness Agreement is the result of more than two years of bargaining between Magna and the CAW towards a structure for unionizing Magna's
130 operations in Canada. It stands to cover 18,000 Magna employees working at forty-
129 Ibid, at 51, 64; see also "CAW Strikes a Deal", supra note 110. These two measures offer management more flexibility in distinct ways: a reduced number of classifications allows managerial flexibility in work assignments and job descriptions, while allowing the use of temporary workers allows greater flexibility to respond to changing demand by varying staffing levels without engaging seniority and layoff provisions. 130 CAW Presentation, supra note 104 at 13. 40
five different Canadian divisions, forty-four in Ontario and one in Cape Breton, Nova 131 Scotia. The negotiations rested on the experience of the parties working together at the
three previously unionized Magna plants, mentioned above. Leaving the question of the
legal significance of the agreement for later, it is clearly intended to establish the
superstructure which will shape the future relationship between the parties.
Legally, the CAW/Magna Agreement as a whole could probably be described as a 132 sophisticated form of voluntary recognition agreement. From the CAW's own
glossary of relevant terms, the Framework of Fairness is the "Founding document which
will guide the process by which Magna employees can vote on whether to join the CAW, 133 and how the relationship between the company and the union will be conducted." The
Framework of Fairness should be distinguished from the National Agreement, a
document which will serve as a single overarching collective agreement for all Magna
divisions at which the employees are organized by the CAW. While there is some overlap
in content between the two agreements, the Framework of Fairness has a broader role in
131 CAW, "Speaking Notes," online: CAW-TCA Canada
Agreement sets the precise terms and conditions of employment for unionized Magna 134 employees.
The Framework of Fairness Agreement opens with a relatively lengthy review of 135 background, context and principles. This information is the core of an agreement which is heralded by the CAW, at least, as a "statement of principles between the two
1 ^f\ sides" and "not a contract." The objectives and principles which the parties have chosen to highlight at the outset of the FFA are telling; the opening sections should not be lightly passed by in favour of the structural substance of the latter parts.
The first section of the FFA is devoted to identifying the shared interests of the
Company and the Union. The Union, the employees and the Company are clearly positioned on one side, with the Company's competitors, both local and international, on the other. The challenges faced by the Company are framed in equal measure as 138 challenges to the employees. Similarly, the FFA suggests that the benefits sought by
134 See CAW & Magna International, "Framework of Fairness, National Agreement, and Windsor Modules Local Appendix" (7 November 2007) [unpublished, on file with author] [National Agreement]. 135 FFA, supra note 63 at 2-5. CAW Presentation, supra note 104 at 15. The CAW's assertion that the FFA does not represent a contract is dubious in light of the National Agreement's express incorporation of the terms of the FFA as an interpretive guide: National Agreement, supra note 134 at 32, Art. 1, s. 2. It is perhaps better understood as a reference to the fact that the FFA in isolation does not constitute a collective agreement, rather than as a comment on the legal status of the FFA. 138 FFA, supra note 63 at 2. 42
139 the Company will be reaped by all. It casts the competitiveness and profitability of the
Company as the surest means of protecting the employees' job security, a device familiar from the above discussions of both the Employee's Charter and the Integram and
Mississauga agreements.140
The first section of the FFA clearly entrenches key concepts at the heart of the labour relations structures established for the parties in the latter sections: competitiveness, efficiency, cooperation, fairness and participation. The FFA's message is clear: what hurts one of us, hurts all of us, and a "cooperative and productive working
141 relationship" is the best path to mutual gains. This is tempered by its reflection, present in equal parts: employees must be given opportunities for involvement and participation, opportunities to take "ownership, responsibility, and accountability," and must be treated with fairness for the relationship between the Union and the Company to be successful.
None of this language is entirely novel. As is discussed above, the Integram and
Mississauga agreements incorporated phrasing of this sort. Even outside of its relationship with Magna, however, the CAW has proven willing to accept language of this sort in collective agreements. The CAW has itself pointed to similarities between the language in the early portions of the Framework of Fairness Agreement, and that in the
139 Ibid, at 3. 140 wd. 141 Ibid, at 4. 142 „ .. , Ibid, at 5. 43 recently renegotiated collective agreement between CAMI Automotive and CAW Local
88.'43
The negotiated organization of the new CAMI Automotive assembly plant in
1989 by CAW Local 88 represented a major victory for the Union. CAMI is a joint venture of Suzuki and General Motors, and the success of the CAW in organizing its
Ingersoll, Ontario plant represented the first such success of the CAW in organizing an
144 assembly plant operating on an Asian production model. Much as was the case with the FFA, the first collective agreement between CAMI and Local 88 included reference to principles, which, while diluted over the nearly twenty years of bargaining since the plant was first organized, are still apparent in the most recent agreement. These principles bear a closer consideration.
Although the Framework of Fairness is more detailed, the concepts in the CAMI
Agreement are similar. Compare the language in the most recently renegotiated CAMI
Agreement to that quoted above:
CAMI and the Union agree that a cooperative environment within which the team members, the Union and CAMI can work productively, avoiding confrontation, is in the best interests of the team members, the Union and CAMI. Stable and harmonious industrial relations will facilitate the achievement of high operational efficiency and productivity, constant improvement, high quality, and low production costs, which are essential ingredients to a profitable operation. Through its profitability, CAMI will be able to provide stable employment; equitable treatment and
143 CAW Presentation, supra note 104 at 31. 144 Herman Rosenfeld, "Magna is not CAMI" (6 November 2007) online: Socialist Project
145 CAW Local 88 & CAMI Automotive Inc., "Collective Agreement Between CAMI Automotive Inc. and CAW Local 88" (17 September 2007 - 19 September 2010) [unpublished, on file with author] at 7 [CAW/CAMICA 2007-10]. This represents a substantial dilution of the principles articulated in the first agreement. Most obviously, the 1989 agreement opened with a statement occupying a full page, which read "This agreement between CAMI and the CAW was negotiated and will be administered in the spirit of mutual trust and in support of CAMFs values" (ibid). Also compare the text quoted above to the comparable, but much longer, passages from the 1989 CAMI/CAW agreement:
CAMFs primary objective is the production of small economic vehicles of good quality. The parties recognize that the significant investment in establishing such a joint venture in Canada is based on the Union's commitment described in this agreement.
The purpose of this Agreement is to set forth the terms and conditions of employment for employees of CAMI represented by the Union. CAMI and the Union have agreed in the course of ongoing discussions that cooperation between the Union and CAMI is essential for the long-term viability of CAMI as a going concern. The parties also recognize that it is essential to establish initial and ongoing working conditions at CAMI which will promote harmonious and stable industrial relations.
CAMI and the Union agree that a cooperative environment within which the employees, Union and CAMI can work productively, avoiding confrontation, is in the best interests of the employees, the Union and CAMI.
The objective of CAMI, which will operate utilizing the Suzuki production system, is the manufacture and assembly of small vehicles of high quality produced in Canada, and it is intended that they provide new efficient quality transportation for the average family at affordable prices. The Union and CAMI have entered into this Agreement to achieve this Aim, while taking note of the significant potential contribution of CAMI to the development of the Canadian economy.
It is further recognized by both parties that the Company must be profitable. This can be achieved by maintaining high operational efficiency and productivity, obtaining high quality and low production costs and achieving continuous and ongoing improvement. 45
The themes are identical: cooperation and non-adversarialism; efficiency and
productivity as a shared interest; continued profitability as the best route to job security.
The Framework of Fairness thus may be unique in the CAW's experience in terms of its
scope and the particular structures it establishes, but the principles on which it is founded
certainly are not.
While the interplay between the principles in the first section of the FFA is
fascinating, it is not what has generated the most controversy. After identifying a
foundation in principle for the relationship between the Company and the Union, the
subsequent sections of the FFA disclose the practical structure of that relationship. They
define the process for recognizing the CAW as representative of Magna employees, the
parameters for collective bargaining between the parties in the event that the CAW is
determined to be representative, and the superstructure of the collective agreement which
will result from that bargaining. While the details are left to the National Agreement, the
Through its profitability, CAMI will be able to provide stable employment; equitable treatment and compensation recognizing the employees' ability and contribution; a pleasant working environment; and a safe workplace. (CAW Local 88 & CAMI Automotive Inc., "Collective Agreement Between CAMI Automotive Inc. and CAW Local 88" (23 January 1989 - 14 September 1992) [unpublished, on file with author] at 1-2).
Some of the material which has been removed from successive agreements over the twenty year relationship between the CAW and CAMI obviously was simply no longer relevant after the Company was firmly established. Significant changes in favour of the union were made in the 1992 agreement, however, after a lengthy strike Rosenfeld, supra note 144. The evolution of the CAMI agreement will be revisited later in this paper; its similar origins in cooperation and a mutual focus on productivity and efficiency and its gradual slide into adversarialism offer several opportunities for an interesting comparison with the CAW/Magna agreement. Framework of Fairness paints the broad strokes of the relationship between the parties once Magna is unionized.
The relationship that it describes is very different from the typical labour- 146 management relationship contemplated by the Ontario Labour Relations Act. It works major changes to three dimensions of the relationship: firstly, to the recognition and bargaining process, secondly, to the workplace governance mechanisms, and thirdly, to the dispute resolution processes to be followed during the life of the National Agreement.
In each case, elements of traditional labour relations are evident, but they are heavily modified through reference to Magna's own human resource strategy, and to the models established at Integram and Mississauga.
2. Recognition and Bargaining
a. Recognition
The process of recognition of the CAW as representative and bargaining agent for employees of the covered divisions of Magna is set out in detail in the Framework of
Fairness Agreement. Obviously, one of the main goals of the CAW in negotiating the
Agreement was to open the door to Magna's operations that they had cracked ajar with 147 the initial organizing drive at Integram. The recognition process in the Framework of
Fairness throws that door wide open. Under the heading "Determining Majority Status", the FFA states that secret ballot votes will be held at each covered division, according to
146 ONLRA, supra note 110; note also that because the FFA contemplates covering at least one division outside Ontario, it raises issues of jurisdiction and bargaining unit definition which will be explored in Chapter V, Section C, below. 147 See "CAW Strikes a Deal", supra note 110, where an organizer expressed concern about the Union's ability to make headway at larger Magna facilities. a predetermined schedule, and where a majority of employees in a division vote in favour
of representation by the CAW, the FFA commits the company to recognize the CAW as
148 the sole bargaining agent for the employees of that division.
This does not appear to be a major deviation from the voluntary recognition
149 model anticipated by the Labour Relations Act. Indeed, the presentation made by the
CAW executive to the membership delegates in December of 2007 identified the
Framework of Fairness as a voluntary recognition agreement. The Agreement
certainly provides for voluntary recognition, but describing it as such paints only an
incomplete picture. Part of what sets it apart is that the representation votes do not come
as a precursor to bargaining, as anticipated by the ONLRA. Instead, bargaining toward
152 a National Agreement occurred as soon as the FFA was finalized. The secret ballot
representation votes which will take place at each division will come in the context of a
finalized National Agreement, and will serve a dual purpose - they will determine both
148 FFA, supra note 63 at 5. 149 See for example, ONLRA, supra note 110, ss. 7(3), 16, 18(3), 66; see also The Trade Union Act, R.S.N.S. 1989, c. 475, s. 30 [NSTUA]. Where a union and an employer agree to a voluntary recognition, an informal vote to ascertain majority support for the union will rarely be taken. Nonetheless, a requirement from an employer for a demonstration (by vote or card-check) prior to recognition that the union represents a majority of the employees is hardly radical: see Doorey, "Neutrality", supra note 8 at 15-16. CAW Presentation, supra note 104 at 10. See ONLRA, supra note 110, s. 16. 152 FFA, supra note 63 at 7,14. The National Collective Agreement was signed on November 7, 2007, shortly before the ratification of the local agreement at Magna's Windsor Modules plant: see National Agreement, supra note 134. 48
whether the employees of that division wish to be represented by the CAW, and whether 153 they ratify the terms of the already-bargained National Agreement.
In the Memorandum which sets out the terms of the representation/ratification
vote in more detail, the Company commits to providing employee lists and access to
employees to the Union in advance of the vote, to appear with the Union before
employees and inform them that the Company and Union "have a constructive and 154 productive working relationship." The Memorandum stipulates that the vote is to be
supervised by a Neutral, and upon the Neutral's finding that a majority of employees
have voted in favour of representation by the Union (and ratification of the National
Agreement), the Company commits to recognize the Union as bargaining agent of the 155 employees.
While these terms differentiate the FFA from a common voluntary recognition
agreement, and begin to move it outside the realm of typical models of labour relations,
they are still not sufficient to make it sui generis. Voluntary recognition agreements
including terms such as those above are not entirely uncommon. The CAW has had
153 154 FFA, ibid, at 21. Ibid, at 21. The expression of the Company' support for the Union raises an issue of employer influence on the employees' decision whether or not to be represented by a union. Where the employees are voting for or against a single union, the employer's support for the union may not be significant. Where two or more unions are competing for the votes of the same employees, however, the question of employer support is certainly a live issue. The labour board jurisprudence on this subject which will be explored in Chapter V, Section B, below. Ibid, at 22. The National Agreement incorporates a list of agreed-upon neutrals, which was incomplete at the time of writing. In the US, the term 'neutrality agreement has come into use to refer to these limited- scope voluntary recognition agreements, intended to keep the employer out of the 49
157 several successes with voluntary recognition agreements. The precise structures of such agreements vary. At the common core, however, is an agreement to recognize the union as representative of employees without having recourse to the Labour Board's certification procedures.
In many cases, voluntary recognition agreements are negotiated by an employer and a union who are already labour relations partners, in order to extend collective 158 bargaining to non-unionized sites operated by the same employer. In these cases, the agreement is often negotiated during the collective bargaining process and incorporated into the resulting collective agreement, leaving its legal status clear. For an example of this in practice, one may turn to the Integram/Innovatech agreement between the CAW
159 and Magna. That agreement was first reached in 2001, before the establishment of the
Innovatech plant. It nonetheless incorporated provisions for the organization of the organizing campaign. The term is of limited use here, though the concepts are helpful: see Doorey, "Neutrality", supra note 8 at 1-2. 157 For example, the first collective agreement at CAMI Automotive came about through voluntary recognition agreements: see supra, note 145 and accompanying text. For a recent example from another Canadian union, one need look no further than the USW agreement with Dofasco, a Canadian steel company which has long been proudly non union. Under that agreement, Dofasco will allow the Steelworkers access to its employees, and will waive its right to express an opinion about the union: Greg Keenan, "United Steelworkers gain Toehold at Dofasco" Globe and Mail (19 March 2008), online: Globe and Mail
Innovatech plant upon its construction, and the Union's recognition as bargaining agent
under the terms of the Integram agreement.
The experience of the Framework of Fairness Agreement is more complicated. As
explained above, the FFA constitutes one half of a pair of agreements which together
define the relationship between the Company and the Union. It is not simply incorporated by reference into the terms of an existing bargaining relationship. Instead, the FFA was
negotiated independently of the National Agreement, making it more difficult to analyze
in terms of more familiar labour relations structures.
Once the employees of a division have yoted in favour of representation by the
CAW and ratified the National Agreement, the operation of the Framework of Fairness becomes clearer. It acts as a sort of expanded statement of principles to guide the interpretation and application of the National Agreement, without itself being subject to modification or alteration by arbitrators who might be called on to interpret the terms of the National Agreement. It forms an enduring statement of the commitment of both parties to a set of values which is more durable than it would be if it had been incorporated as an Article in the National Agreement.
The legal meaning of the FFA during the organization process, before a particular division has ratified the National Agreement, is unclear. Obviously it is intended to be
"Innovatech Recognition," supra note 109. 1 fO See National Agreement, supra note 134, Art. 5, s. 3, at 43; see also CAW Presentation, supra note 104 at 15. 1 fv\ One might speculate whether the parties are learning from the experience of CAMI Automotive and CAW Local 88, where the cooperative and non-adversarial statement of principles was gradually erased over several difficult rounds of bargaining and one major strike: see supra note 145 and text. 51 binding, but what does it mean for the parties? The recognition and representation vote process is left entirely in the FFA (and the attached memoranda and letters of agreement), and is not incorporated in any significant way into the National Agreement. At least prior to the representation vote, then the FFA is more than merely statement of principles: it must have some legal meaning. But, as the aphorism goes, there is no right without a remedy. The provisions of the FFA offering a remedy for its breach may provide some insight into its legal significance.
At the recognition stage, in the event of an allegation by one party that the other has not complied with the terms of the FFA or the "Memorandum of Agreement
Regarding Recognition Process", recourse is available first to the Employee Relations
Review Committee (ERRC, the composition and role of which is explored in more detail below), and subsequently to a mutually agreed-upon neutral, if the ERRC cannot reach a
164 satisfactory resolution. The neutral is empowered by the Memorandum to resolve the dispute, so long as he or she does not step outside the granted jurisdiction by attempting to alter the terms of the Agreements, or make a decision inconsistent therewith.
Similar provisions for enforceability are included in the bargaining and workplace dispute resolution sections of the Agreement. The Company and the Union are creating their own process for dispute resolution through which to enforce compliance with the FFA.
FFA, supra note 63 at 22. Ibid. It should be noted that these provisions are standard in the arbitration clauses of most collective agreements. See ibid, at 24,12; the legality of this sweeping attempt to exclude the courts and the labour board from their relationship will be explored in Chapter V, Section D, below. 52
It is debatable whether either the Company or the Union could enforce the FFA in court, or make an unfair labour practice claim to the labour board in the event of a breach. To a large extent the question is academic. The FFA commits the parties to a cooperative, communicative relationship, and to the furtherance of that relationship through recourse to one of a preselected list of neutrals. The diversion of the processes to the courts or to the Labour Board would signal a breakdown in that relationship so complete that there would be little point injudicial enforcement of the FFA. Can two parties be compelled to take a cooperative, mutual gains approach to their relationship?
The entire relationship established by the FFA and the National Agreement depends on mutual management of conflict between the parties within a broader context of cooperation. If that cooperation breaks down in a severe and systematic way, the entire relationship is likely to collapse with it.
b. Bargaining
As discussed above, the Framework contemplates a process of bargaining toward a National Collective Agreement occurring before and independently of the recognition/ratification votes which are to take place at each covered Magna division.
The National Agreement will cover all forty-five divisions of Magna to which the
Framework of Fairness applies, with the roll-in of the existing units at Integram,
See supra, note 166. 1 (\R See below, Chapter III, Section D. Note, however, that the collapse of the voluntary ordering of the parties' relationship would not, much to Magna's likely chagrin, mean the end of the CAW's representation. Instead, absent a decertification vote, the CAW would continue to represent employees according to typical Labour Board structures. 53
Innovatech and Mississauga expected to follow. The National Agreement itself makes it clear that all covered divisions will constitute a single bargaining unit, which would 170 seem to cover solely production and maintenance employees.
The Employee Relations Review Committee, consisting of three union representatives (an Assistant to the CAW President (CAW National AP), the Senior
FFA, supra note 63 at 23; National Agreement, supra note 134, Art. 1, s. 2, at 32. Absent a list of covered divisions, which is not publicly available, it is not clear whether this figure is inclusive or exclusive of the pre-existing CAW units. In any event, as of March 2008, members of CAW Local 444, representing both Integram and Innovatech workers, had ratified a new collective agreement, distinct from both the Framework of Fairness and the National Agreement. A progress report from the Local 444 bargaining committee suggests that the idea of a roll-in under the FFA was on the table at one point, but that the bargaining committee resisted the adoption of any of its elements, noting that "at the appropriate time, our members will democratically decide whether they see the FFA as advantageous to them and their families... But to suggest Local 444 members will be incorporated in the FFA without recognizing or understanding its contents or objectives is just not reasonable." (Integram Update II, supra note 114). It would seem that the roll-in of the locals contemplated in the Agreement occur later, if it is ever to be carried out. 170 National Agreement, ibid., Art. 1, s. 1, at 32, which reads: Section 1: Bargaining Unit The Company recognizes the CAW as exclusive bargaining representative for the purpose of collective bargaining with respect to the terms and conditions of employment, for the term of this Agreement, for all full-time and regular part-time production and maintenance employees employed by those facilities listed in Appendix A of this Agreement. For the purpose of this Agreement, the term "employees" shall not include office and clerical employees, engineering and technical employees, managerial employees, nurses, supplemental employees, guards, supervisors or any other category of person otherwise excluded by the Ontario Labour Relations Act (the "Act").
As will be discussed in greater detail in Chapter V, below, the legal viability of this single bargaining unit will depend on the ultimate scope of coverage for the CAW/Magna Agreement. Potentially, the Agreement could cover plants in Ontario and in Nova Scotia. If the Nova Scotia plant votes in favour of representation by the CAW, the Labour Relations Board of each province will recognize a bargaining unit extending only to the borders of its own province; while the Company and the Union could operate the two bargaining units in tandem, they would remain legally distinct. 54
CAW National Representative servicing the Magna Local, and the President of the
Magna Local) and three company representatives (two from the office of the Magna
Executive Vice President (Magna EVP), Global Human Resources, and one senior
Operating Executive), will take the lead role in negotiating the terms of the National
171 Agreement. If the ERRC is able to reach agreement on its terms, the Agreement will be sent to the Executive Council of the- CAW Local which will be chartered to represent
172 Magna employees. If the Executive Council approves it, it will be submitted to the
173 entire Local membership for a ratification vote.
The FFA suggests that the parties intend the basic provisions of the National
174 Agreement to be renegotiated relatively infrequently. In the text of the National
Agreement, the term is limited to three years, a relatively common term for collective agreements in the industrial sector. As we will see, however, the process to be followed on the expiry of that term is highly unusual.
One of the primary sources of controversy in the Framework of Fairness is the process to be followed in the event that the ERRC cannot reach consensus in renegotiating the terms of the National Agreement. At a worksite organized through the standard certification processes under the ONLRA, there are statutory procedures to be followed in bargaining. At or near the expiry of the collective agreement in force, either
171 FFA, supra note 63, at 6, 7, 8. 172 Ibid, at 24, Art. 2. 173 Ibid., Art. 3. 174 „., _ Ibid, at 7. 55
175 the union or management issues notice to bargain. This imposes a duty on the other
1 if* party to meet and bargain over renewal or alteration of the agreement. If the parties
cannot reach agreement, the Minister of Labour must appoint a conciliation officer to 177 attempt to resolve the dispute. After the report of the conciliation officer is released, a
cooling off period of seven days is required, after which the parties are legally entitled to
strike or lockout.
One of the most prominent criticisms of the CAW/Magna Agreement is that the
179 CAW has bargained away its members'right to strike. The FFA itself and
commentary from the CAW clearly indicates that the intention of the parties is that
., . . . . , , . . . 180 _ . neither is to use economic sanctions to support its demands in negotiation. This intention has been carried out in the National Agreement. Article 2 states in no uncertain
181 terms that neither party shall use economic sanctions to force its position on the other.
175 ONLRA, supra note 110, ss. 16, 59. The process is broadly similar under the NSTUA, where the relevant sections of the statute are ss. 33-35: NSTUA, supra note 149. 176 ONLRA, ibid, s. 17; NSTUA, ibid, s. 35(a). 177 ONLRA, ibid., s. 79(2). In Nova Scotia, the Minister may appoint a conciliation officer upon a breakdown in bargaining: NSTUA, ibid., s. 37. 178 Ibid.; note s. 79(3), however, requiring that a strike must be authorized by a secret ballot vote of the union membership in order to be lawful. In Nova Scotia, the cooling-off period is fourteen days in the event that the Minister appointed a conciliation officer, seven days if he or she appointed a conciliation board: NSTUA, ibid, s. 47(1). The NSTUA also requires a secret-ballot vote of the membership authorizing the strike: NSTUA, ibid, s. 47(3)(a). 179 See, for example, Wayne Fraser, et al., "The Magna Sell Out" Financial Post (23 November 2007), online: National Post
Furthermore, the Article notes that any employee who participates in a work stoppage will be subject to immediate discharge, "unless mitigating circumstances exist that are
109 acceptable to the ERRC." Finally, the Article also stipulates that either party may seek compensation for financial losses incurred as a result of the use of economic sanctions, and clothes the arbitrator designated in the Concern Resolution Process with the necessary authority to hear complaints about the use of economic sanctions, and to craft
183 any appropriate remedy.
Neither of the parties shall utilize any economic sanction to force its position on the other party over any issue. Further, no Employee or group of Employees shall individually or through concerted action, take part in any activity that impedes the operation of the business, except as otherwise authorized by this Agreement.
Should any person or group of people participate in any such unauthorized activity, upon notification of such occurrence, the Union or the Company, as the case may be, will direct such person or group of people to resume normal operations and will take effective means to cease the unauthorized conduct. Any employee or group of employees who participate in such unauthorized activity shall be subject to immediate dismissal, unless mitigating circumstances exist that are acceptable to the ERRC.
Should either party suffer financial damage as a result of such unauthorized activity, they may pursue compensation for such loss at the arbitration step of the Concern Resolution Process, and the arbitrator shall have full authority to remedy any violation of this Article.
182 ML 183 Ibid. Ordinarily illegal work stoppages are within the jurisdiction of the Labour Relations Board. In Nova Scotia, any person involved in an illegal work stoppage may complain to the Board, which has the authority to issue a cease and desist order: NSTUA, supra note 149, s. 51. A breach of that order is an offence subject to a fine of $1000: ibid., s. 85. The NSTUA contains no explicit provision authorizing the Labour Relations Board to award damages for an unlawful strike, however the Board may award damages under its general remedial authority in s. 89. In Ontario, the process is different. The ONLRA similarly empowers the Board to hear complaints about an unlawful strike or lockout: ONLRA, supra note 110, ss. 100,101. However, the declaration that a strike or 57
The language of Article 2 is certainly strong. Considered in isolation from the
Agreement's subsequent sections, however, it goes no farther than the Labour Relations
Act itself. The ONLRA requires that all collective agreements contain a term prohibiting strikes within the lifetime of the agreement, and furthermore places a statutory ban on 184 strikes and lockouts while the collective agreement is "in operation." As outlined above, strikes are only lawful after the collective agreement has expired and a range of other conditions have been fulfilled. Strikes during the life of a collective agreement are 185 not legally protected, and employees who take part may be subject to discipline. In the absence of anything more, the prohibition included in Article 2 of the National
Agreement would be legally insignificant. The National Agreement would expire after three years, the parties would negotiate toward a new agreement, and the terms of the expired agreement would no longer be binding. After meeting the statutory requirements, the Union and employer would be in a lawful strike and lockout position despite the intention of the parties to ban the use of economic sanctions.
The parties have overcome this problem, however. It is open to either party to give notice to bargain within the final ninety days of the term of the National lockout is unlawful creates a statutory right of action before an arbitration board for the wronged party: ONLRA, ibid., s. 103. The National Agreement seems to be seeking to displace this statutory process with a similar process before a single arbitrator. For more on the legal validity of attempts to contract out of the rights afforded by labour legislation, see Chapter V, Section D, below. 184 ONLRA, supra note 110, ss. 46, 79(1). 185 An arbitrator could find such an employee guilty of insubordination: See Donald J.M. Brown & David Beatty, Canadian Labour Arbitration, 4th Ed. (Aurora, ON: Canada Law Book, 2006) at paras. 7:3640, 9:2100 [Brown & Beatty], citing Canada Post Corp. (2006) 147 L.A.C. (4th) 296. It is debatable whether an arbitrator would uphold the penalty of immediate discharge: see Brown & Beatty, ibid, at para. 7:4100. FFA, supra note 63 at 15. 58
187 Agreement. Rather than merely terminating at the date of expiry, however, the
National Agreement will renew automatically if the Union and the Company are unable
188 to agree on a new agreement by its expiry date. Any issues which the parties are
189 unable to resolve on their own will be sent to an arbitrator for final offer selection.
The scope of that arbitrator's jurisdiction will be narrowed in one important way,
however. The National Agreement is divided into Part A and Part B. Part A encompasses
the fundamentals of the relationship between the parties: the recognition and bargaining
unit definition (Article 1); the strike ban (Article 2); the selection process and duties of
the Employee Advocate and the other mechanisms for representation (Article 3); the
concern resolution process (Article 4); and the process for renewal and renegotiation of 190 the National Agreement itself (Article 5). Part B includes everything else one would
expect to see in a collective agreement: management rights, union security, seniority,
191 wages, safety, layoff and recall, discipline, and so forth. The arbitrator carrying out
the final offer selection will have jurisdiction to modify only those Articles in Part B of
the National Agreement; Part A, as well as the FFA, is excluded from his or her 192 jurisdiction completely.
187 National Agreement, supra note 134, Art. 5, s. 2, at 43. 188 FFA, supra note 63, at 24; National Agreement, ibid., Art. 5, at 43. 189 National Agreement, ibid. See Chapter V, Section D.2.b, below, for a discussion of the legality of these provisions. 190 Ibid, at 32-43. 191 Ibid, at 44-72. 192 y Ibid. 59
The parties have once again established their own unique process to regulate their relationship. Even though bargaining would normally take place outside of the term of the collective agreement, the automatic renewal provision brings the renegotiation process within the coverage of the National Agreement. This ensures that the parties are never without the operation of the prohibition on economic sanctions in Article 2, and 193 furthermore the statutory prohibition in section 79(1) of the ONLRA.
There is a real possibility that the automatic renewal provision of the National
194 Agreement may be found illegal. The parties apparently have similar concerns, for they have included a contingency plan in Section 4 of Article 5. Section 4 requires that if the automatic renewal provision is overturned by any arbitrator, court or tribunal, such a decision will constitute an automatic amendment to Section 1, extending the term of the
195 Agreement ten years from the date the decision is issued. When considered in its entirety, Article 5 constitutes an innovative attempt by the parties to withdraw from the structures of labour law and set their own terms for bargaining and conflict resolution.
Absent these peculiarities of execution, the practical effect of the CAW/Magna
Agreement is clear: there are to be no lockouts or strikes during the bargaining process, and all disputes are to be settled by arbitration. As will be explored below, this particular element has been at the heart of much of the criticism to which the Agreement has been subjected. Agreeing to forego the use of the strike weapon is clearly a step away from traditional North American labour relations. As the CAW itself points out, however,
193 ONLRA, supra notel 10. 194 See Chapter V, Sections B.3, D.2.b, below. 195 National Agreement, supra note 134, Art. 5, s. 4 at 43. 60
voluntary recourse to arbitration in lieu of economic sanctions is hardly unprecedented:
one hundred and twenty-five such agreements have been reached, by virtually every
196 major union in Ontario over the last decade. There is precedent for such an agreement
even in the CAW's own relationship with Magna: at Integram/Innovatech the CAW
197 agreed not to strike for six years at the outset of bargaining. The wisdom and
legitimacy of the CAW decision to relinquish the right to strike will be considered in
more detail in Chapter III. For now it is enough to observe that the parties' intention to
forego economic sanctions is clear, it is intended to endure the length of their
relationship, and it is very unlikely to be changed.
Before moving on to consider the workplace governance elements of the FFA,
one final point requires exploration. While the process of negotiating and renegotiating
the National Agreement is clear, relatively little is said about the possibility of changing
the Framework of Fairness. This seemingly important issue is accorded only a brief mention in the FFA itself, stating that the FFA "shall not be changed through future negotiation, arbitration, nor shall such principles be made the basis for any labour action.
Any changes to the FFA or the Supplements shall only be made through mutual 198 agreement between the parties." The failure of the parties to draft any mechanism for the resolution of fundamental disputes relating to the FFA is difficult to comprehend, in light of the priority they have apparently placed on drafting comprehensive dispute
196 CAW Presentation, supra note 104 at 23. 197 "Foothold", supra note 105. This move was justified at the time on the grounds that the new union was simply too weak to survive a lengthy or difficult strike {ibid). 198 FFA, supra note 63 at 13. 61
resolution mechanisms of their own design for virtually all other aspects of their
relationship.
This probably speaks in part to the enduring role the parties see for the FFA in
structuring their relationship. Disagreements over proposed changes to the FFA which
cannot be resolved by consensus in high-level discussions at the ERRC are likely to
signify the total breakdown of the relationship, rendering dispute resolution mechanisms
unhelpful. A more cynical view would note that this also serves to keep the substance of
the Framework of Fairness Agreement, built over two years of undoubtedly difficult
negotiations, from being altered at the hands of the rank and file members, or even the
low-level leadership of the CAW. "Mutual agreement between the parties" in this case
would seem to mean agreement between the highest leadership in the CAW and the most
senior Magna executives. If the FFA remained 'on the table' in negotiations, changes
could potentially be pushed forward in the negotiating process over the resistance of the
leadership of each side, and eventually imposed by a sympathetic arbitrator. This limit
locks the structure of the FFA in place and avoids any unexpected shifts in the terrain of
the parties' relationship. While this stability may be highly desirable from the company's
point of view, its interaction with the workplace governance and local union structures set
out in the FFA and National Agreement may place some concerning limits on the 199 opportunities for the exercise of democracy among the membership.
See Chapter IV, Section D, below, for a discussion of the impact of these limits and the rationale behind them. 3. Workplace Governance and Dispute Resolution
The remainder of the Framework of Fairness is devoted to outlining the basic structures of the parties' relationship during the term of the National Agreement. While the revocation of the right to strike and to lockout has attracted the most critical attention, it is in the workplace governance and dispute resolution mechanisms that the most
significant differences from typical North American labour relations arise. Here the parties' efforts at creating a privately-ordered relationship, independent of the structures of both the Ontario Labour Relations Act and labour relations convention are most apparent. Here also the most interesting theoretical dilemmas present themselves.
a. Workplace Governance
At the core of the employee representation and workplace governance structures established by the CAW/Magna Agreement are the positions of the Employee Advocate
(EA) and the Fairness Committee (FC), both imports, in part, from Magna's own human resource structures. Although the majority of its responsibilities relate to the dispute resolution process, I will explain the Fairness Committee first, as an appreciation of its structure and role is necessary to understand the selection and function of the Employee
Advocate.
Each plant represented by the CAW is to select a Fairness Committee, composed of "bargaining unit, non-bargaining unit, and management members." The members,
FFA, supra note 63 at 10. The National Agreement indicates that the role of FC members is "to act as resources in the Concern Resolution process": National Agreement, supra note 134, Art. 4, s. 2, at 36. Similarly, the FFA notes that their role "is to act as a resource in the Concern Resolution Process in each facility, and to work to build a positive and productive work environment within their division": FFA, ibid, at 10. The 63
201 "where feasible," are to be drawn one from each department and one from each shift.
Interested employees submit their names to the Employee Advocate, and the member is 202 selected by a secret ballot vote of the employees of that department and shift. The
members are elected for a three-year term, structured so that one-third of the
203 representatives are elected each year. The management representatives are appointed
by the management of the division, drawn from the ranks of management and 204 supervisors. Once elected, the FC Members sit for their term, unless dismissed by the
205 ERRC for breaching the FC Guidelines.
The primary role of the Fairness Committee is to act as a step in the concern
resolution process, a role which will be analyzed in more detail below. It also has a
significant role in selecting the Employee Advocate. Any employee with three years or
more of seniority can nominate themselves for appointment as EA for the division. Upon
receiving the nominations, a sub-committee of four members of the Fairness Committee
FFA specifically notes that the role of the fairness committee members is not to represent employees: ibid, the National Agreement contains phrases the restriction differently: "In performing their role, FC members shall.. .Act as an impartial resource in the Concern Resolution Process, giving due consideration to the interests of all parties": National Agreement, Ibid., Art. 4, s. 3, at 37. Asserting that employees elected to the fairness committee are not representing the interests of employees may be naive, particularly where the employees elect a member from each work area or department and each shift. 201 FFA, ibid, at 16; National Agreement, ibid, Art. 4, s. 2, at 36. 202 FFA, ibid.; National Agreement, ibid. 203 FFA, ibid.; National Agreement, ibid., Art. 4, s. 2, at 37. 204 FFA, ibid.; National Agreement, ibid. 205 FFA, ibid.; National Agreement, ibid. 64 will be convened, consisting entirely of elected bargaining-unit members. Three of these members will each independently review the nominations and rank them according to a "mutually agreed-upon" checklist, while the fourth will receive and combine the
207 scores. The top three candidates will be submitted to the CAW National AP, who will interview each and "select the candidate who best meets the qualifications and
208 expectations of the position." The EA's performance is to be evaluated by a survey of employees at the division carried out every thirty-six months, beginning eighteen months 209 after the appointment of the EA. If the employees are dissatisfied with the performance of the EA, they will have an opportunity to remove him or her in secret-
210 ballot ratification votes to be held every three years after his or her appointment.
There is some suggestion.that to continue in the position, the EA must receive the support
211 of a sixty-five percent majority of the employees. The EA may also be removed by the
CAW National AP in the event of extenuating circumstances, for example "a failure to
This point is not made clear in the Framework of Fairness, which gave rise to some suggestion that management representatives would have a hand in selecting the Employee Advocate for each plant: see Section E, below. It is clarified in the National Agreement: National Agreement, ibid., Art. 3, s. 2(d), at 35. 207 FFA, supra note 63 at 18; National Agreement, ibid., Art. 3, s. 2(c), at 35. It is unclear if the checklist is to be agreed-upon by the FC panel members, or by CAW and Magna leadership. 208 FFA, ibid; National Agreement, ibid., Art. 3, s. 2(e), at 35. 209 FFA, ibid; National Agreement, ibid., Art. 3, s. 2(h), at 35. 210 FFA, ibid; National Agreement, ibid. 211 CAW Presentation, supra note 104, at 18; this is not expressly stated anywhere in the FFA or the National Agreement. 65
212 perform his duties or a breach of confidentiality or ethics." The CAW National AP is given the sole discretion to decide whether such circumstances exist.
The Employee Advocate, once appointed, is unquestionably intended to be a representative of the employees. Outside the concern resolution process, the role of the
EA is described generally in the Framework of Fairness as "to ensure that the Employee's
Charter, the FFA and the National Agreement are consistently followed and applied in a fair manner," and further to "Ensure that employees receive 'due process' and are treated in a fair and consistent manner during the disciplinary process," and to "Promote communication and a positive work environment between management and employees
213 and between employees and their co-workers." While the adversarial element of the
EA's role is not emphasized, it is by no means excluded.
By contrast, the Employee Advocate in Magna's non-union employee relations system was specifically not intended to represent employees in an adversarial contest against management, but rather to mediate in employee-management disputes, and to
214 offer advice and support to employees. Similarly, the Employee Advocate under
Magna's non-union system was appointed directly by management, with little or no input
215 from employees. While the name remains the same, the role of the Employee
Advocate under the CAW/Magna Agreement is a far cry from that under Magna's non union structures.
212 FFA, supra note 63, at 18; National Agreement, supra note 134, Art. 3, s. 2(i), at 35. FFA, ibid, at 5. 214 „ „„ , See supra, note 42 and accompanying text. 215 See supra, note 41 and accompanying text. 66
The Employee Advocate has an important second role within the representational
structures of the CAW. As outlined above, each individual plant which votes in favour of
the CAW and the National Agreement will be rolled into one large CAW "Magna
71 ft Local." Each Employee Advocate will serve as the representative of the membership 217 at his division on the Executive Council of this Magna Local. It is from the ranks of
the EAs that the executive of the Local will be drawn, including the President, who will
218 sit on the ERRC. The Executive Council also serves as the first line of review once the
ERRC reaches a tentative consensus on modifications to the National Agreement. The
Executive Council must approve the tentative Agreement before it can be put to the
219 membership of the Local for ratification. Finally, the Executive Council serves to
organize and coordinate the participation of the Magna Local in the activities of the
broader CAW membership, including education and social initiatives, and the Employee
220 Advocates will be responsible for this coordination at the division level.
The differences between Employee Advocates and traditional union
representatives bear exploring. At CAW-represented plants covered by the Framework of 221 Fairness, employees are represented by a single Employee Advocate. At traditionally- organized CAW plants, employees are represented by a variety of elected representatives, including stewards, committee-persons, and a plant chairperson, each with varying
FFA, supra note 63 at 5. 217 CAW Presentation, supra note 104 at 18; FFA, ibid, at 6. FFA, ibid. 219 FFA, ibid, at 24. FFA, ibid, at 6. 221 National Agreement, supra note 134, Art. 3, s. 1, at 34. 67
222 roles. Two points should be noted when comparing the single EA to the number of representatives at plants organized by traditional means, however. Firstly, the average 223 size of Magna's plants is small, much smaller than the average auto assembly plant.
Secondly, the FFA leaves room for variation among larger and smaller covered 224 divisions. The ratio of one full time representative for 366 employees is lower, but not dramatically lower than the ratio at other plants. For example, the collective agreement at
CAMI Automotive sets the ratio at one full time representative for every 250
225 employees. At CAMI the full-time committeepersons are similarly unassisted by a network of shop stewards.
The Employee Advocate performs functions which amount to a blend of those traditionally performed by the shop steward, the plant committeeperson, and the local union executive board member. The closest analogue to the position of Employee
Advocate is probably that of plant committeeperson, as a full-time representative, paid a full salary by the Company. Because of differences in the bargaining structure between
222 See, for example, CAW Local 1001 & Freightliner CD A, Collective Agreement Between Sterling Trucks, St. Thomas and CAW Local 1001 (27 March 2006 - 27 March 2009) [unpublished, on file with author] at 63 [Freightliner CA]; Integram CA, supra note 115 at 15. 223 See Lewchuk & Wells, supra note 3 at 5, where the authors note that the average was 366 employees. 224 FFA, supra note 63 at 6; National Agreement, supra note 134, Art. 3, s. 1, at 34, where it is noted that there may be more than one EA per plant if the parties agree as such. 225 CAW/CAMI CA 2007-10, supra note 145 at 13. The relationship between the CAW and CAMI Automotive, introduced above, provides a helpful point of comparison for the FFA, sitting as it does in a grey area between traditional and more cooperative models of labour relations. 226 Ibid at 13-15. 68 the Magna CAW Local and locals organized on a traditional, site-by-site Basis, the EA does not have the role of the Plant Chairperson in leading the bargaining committee and negotiating the collective agreement with the Company. This all falls to the leadership of the CAW/Magna Local and the National CAW. The Employee Advocates are responsible, however, for bringing before the ERRC arguments on the part of the workforce of their plants for local variation from the National Agreement, for representing the employees of their divisions in the Concern Resolution Process, and for
227 supporting employees in their formal and informal interactions with management.
The process for selecting the Employee Advocate is markedly different from the process of elections commonly used to select stewards, local representatives, and plant chairpersons. The CAW itself describes the election process for Employee Advocates as
"unusual... but not totally unprecedented," indicating that at several CAW locals
228 representatives are selected by a variety of procedures different from direct elections.
The lack of a vote may nonetheless raise potential problems of inconsistency with the 229 CAW Constitution.
This lack of direct election procedures for the EA warrants further inquiry. The nomination of the EA by the directly elected employee representatives (or, to be faithful to the terms of the FFA, members) on the Fairness Committee without a doubt represents a democratic step forward from the process of unilateral appointment by management under Magna's non-union structure. At first blush, however, it seems to represent
227 FFA, supra note 63 at 8. 228 CAW Presentation, supra note 104 at 19. 229 As will be explored further in Chapter IV, Section D.2.a, below. 69 something less than full democratic representation in the workplace. The extreme centralization of power in the CAW National Union, reflected in part in the final interview and selection by the CAW National AP is also problematic.
Under traditional models of collective bargaining, the processes for the selection of employee representatives is a matter normally left for the union's constitution. The fact that the selection process for the employee representatives is incorporated into the
CAW/Magna Agreement is concerning. As highlighted by the critics, when the requirement in the FFA that changes to even these terms be subject to the agreement of the Company is considered as well, the Agreement begins to look like it might offer a
230 very limited sort of democracy. These issues will form the substance of the discussion in Chapter IV.
b. Dispute Resolution
The intention of this section is to explore the Concern Resolution Process which the CAW/Magna Agreement adopts in lieu of the grievance process. This is distinct from the process which the FFA establishes for the resolution of disputes arising in the renegotiation of the National Agreement. The Concern Resolution Process blends elements of typical collective agreement grievance procedures and to Magna's own
Open-Door Policy, and it incorporates elements of both. It makes ultimate recourse available to third-party arbitration, but places a number of mandatory steps in between which are radically different from typical collective agreement grievance procedures. The structure of the process set out in the Framework of Fairness and the National Agreement
See Section E, below. 70 reflects the principle that employees should take responsibility for their own grievances, particularly early in the process. It also demonstrates the application of the themes of labour-management cooperation so apparent in the opening paragraphs of the 231 Framework.
The structure of the Concern Resolution Process mirrors the gradual escalation common to both the grievance processes of a traditional collective agreement and
Magna's own Open-Door Policy. The idea is that the concern should be resolved as efficiently and informally as possible in the circumstances, while still providing for fair and consistent treatment of employees. To this end, the first step in the CRP replicates the first step in Magna's non-union concern resolution process: an employee with a concern is free to go directly to anyone in authority within the division, from his immediate 232 supervisor to the General Manager (GM). While the employee is responsible for pursuing the issue, support is available in meeting with management representatives from either the Employee Advocate, or members of the Fairness Committee.
This bears some similarity to typical grievance procedures, although it is far more flexible. Under the Freightliner Sterling collective agreement, for example, the first step in the grievance procedure is for the affected employee to take the problem up with his or
233 her immediate supervisor. However, if the supervisor is unable to resolve the issue to
231 See Chapter III, Section E, for a discussion of the Agreement's attempt to fashion conflict resolution procedures which leave the cooperative tone of the Agreement intact. 232 FFA, supra note 63 at 10. It is worth noting that a similar right is preserved in Nova Scotia by s. 15 of The Trade Union Act, which affirms that notwithstanding anything in the Act, employees retain the right to take their grievances directly to their employer: NSTUA, supra note 149, s. 15. 233 Freightliner CA, supra note 222, Art. 11.01, at 19. 71 the employee's satisfaction within twenty-four hours, the shop steward submits a written grievance and the matter is formally addressed by escalating levels of management and
234 union representatives. By comparison, under the CAW/Magna Agreement, an employee could work informally all the way up to the division manager, without invoking any formal grievance procedures.
An employee is also able to bring a concern "regarding the application of the
National Agreement" before a formal panel of the division Fairness Committee after, or 235 as an alternative to pursuing the concern informally with management. The FC has a dual role in the concern resolution process, as is made clear in the National Agreement.
On the one hand, employees can approach members of the Fairness Committee for assistance in dealing informally with their concerns - for example, to facilitate meetings with their supervisors, or for assistance interpreting or understanding particular rules or policies. In this role, FC members appear to be acting more as mediators than as adjudicators: their role is to "facilitate resolution of the issue" rather than to make a 237 formal decision.
The second role for the Fairness Committee is to convene a formal panel to hear employee concerns that the informal processes fail to resolve, or that an employee
238 chooses to bring directly to the FC. In this capacity, the FC sits as a five member
234 See, for example, ibid. 235 FFA, supra note 63 at 10. 'J'lf. National Agreement, supra note 134, Art. 4, s. 4, at 38. 237 aid. 238 aid. 72
239 panel: three bargaining unit members and two management members. They hold a
240 formal hearing, take evidence, and issue a formal decision. The employee can be assisted by the EA, but at the hearing he or she must present her own case - the EA is not a formal representative, but rather renders assistance and facilitates the work of the 241 FC. The decision issued by the Fairness Committee is, in reality, more like a recommendation. Although it is handed down like a formal decision, the FC has no authority to change company policy or procedure (and of course, no authority to change 242 either the FFA or the National Agreement). Instead, the FC decision "may influence 243 future management reviews or collective bargaining."
Lewchuk and Wells observed that employee opinions were mixed about the 244 fairness of Magna's non-union Open Door Policy. Some employees appreciated the informality, while some worried that they were isolated in pursuing their concern, that 245 they lacked the support available under union processes. This is accounted for under the National Agreement Concern Resolution Process. First of all, support is available from the EA or the FC throughout the open door process. While the EA is framed as a
"facilitator" rather than a representative, this is clearly a far more independent, far more
239 Ibid. This reflects the continuing concern of the parties with a consultative joint problem solving process, even after the initial informal efforts to resolve an issue have failed. Ibid. 241 md. 242 National Agreement, supra note 134, Art. 4, s. 4, at 39. 243 Ibid. 244 See supra note 47 and accompanying text. 245 Lewchuk & Wells, supra note 3 at 642. 73
supportive role than the EA under the non-union open-door process, who was to "offer
246 management-sanctioned options" to resolve the concern. The formality of a Fairness
Committee hearing is also available to an employee who prefers it to the informal open-
door process. Secondly, the FFA guarantees protection from retribution for raising
concerns, protection which is implied by Magna's Employee's Charter but certainly not
247 explicitly stated. Finally, and perhaps most importantly, an employee can bypass the
open door process and the Fairness Committee entirely, and take their concern directly to
the Magna Hotline should they wish to avoid raising their concern with management at
their own division.
The Magna Hotline under the FFA functions in a similar fashion to the Hotline for
Magna's non-union divisions. It is staffed by Magna employees operating independent of
249 the rest of Magna's operations. Callers to the Hotline can remain anonymous, with
250 certain exceptions for "practical and legal" reasons. The Hotline is responsible for pursuing the resolution of the complaint, while upholding the Employee's Charter, the
251 Framework of Fairness and the National Agreement. This resolution is pursued through a variety of means, up to and including a direct investigation by Hotline
246 Ibid, at 645; see supra note 41 and accompanying text. 247 Magna, "Charter," supra note 22. 248 FFA, supra note 63 at 11. Complaints relating to termination of employment must be taken directly to the Hotline level, and are not eligible to be dealt with at the open-door or FC levels. 249 Ibid 250 Ibid. 251 Ibid. 74
252 employees into the circumstances of the concern at the affected division. At that point the similarity between Magna's non-union processes and the Framework process ends, however. While under Magna's non-union process, the Hotline represented the ultimate recourse for concerned employees, under the Framework it merely delineates the outer boundary of the employees' responsibility for pursuing their own concerns. Beyond the
Hotline level, responsibility passes to the Employee Advocate to represent the employee
253 in seeking the resolution of their concern.
If an employee or a division's GM is dissatisfied with the Hotline staffs efforts to resolve a concern, they are entitled to bring it forward for review by the Concern
Resolution Sub-Committee (CRSC), a subordinate body of the Employee Relations
254 Review Committee (ERRC). The CRSC represents a final effort to resolve the concern before the involvement of the full ERRC is required. It is made up of two Union representatives, namely the EA of the division and a representative of the office of the
CAW National AP, and two company representatives, namely the division GM and the 255 Director of Labour Relations. The representatives of the Union and Company respectively are responsible for reviewing complaints brought forward by their own side and determining whether they warrant discussion by the CRSC. Given the
252 National Agreement, supra note 134, Art. 4, s. 5, at 39. The National Agreement sets out the protocols for intake and handling of complaints at the Hotline in far more detail than the FFA (ibid.). 253 Ibid., Axi. 4, s. 5, at 40. 254 FFA, supra note 63 at 11. 255 M Ibid. Both the procedures at the CRSC and those at the ERRC raise interesting issues relating to duty of fair representation (DFR) complaints. On the one hand, the DFR will 75
membership of the CRSC, its deliberations would seem to represent a collaborative
approach to problem solving, a sort of an assisted final settlement discussion at a local
level, before involving the top-level labour-management representatives on the Employee
Relations Review Committee. Again, the emphasis on cooperation and the shared interest
in the fair and rapid resolution of disputes is apparent.
The penultimate step in the Concern Resolution Process is pursued where the
CRSC is unable to reach agreement on the appropriate disposition of a complaint.
Interestingly enough, appeal to the ERRC from a CRSC impasse is open to the GM of the
affected division, but not the Employee Advocate - instead, on the union side only the
257 CAW National AP can appeal. The ERRC serves as sort of a last-ditch settlement
conference at a national level, one final attempt on the part of the bargaining partners to 258 avoid arbitration. The members of the ERRC, described above, meet and discuss the
initial concern and any issues which have arisen on appeal, and attempt to reach a 259 negotiated settlement. If their decision fails to satisfy either the union or management
of the affected division, appeal is available to a neutral arbitrator. Again, however, the play a vital role in ensuring the fairness and consistency of the National Union's treatment of individual members in the Concern Resolution Process, as it does in ordinary collective agreements. At the same time, the cooperative tone of the Concern Resolution Process structures will make it all the more important for the Union to make sure that they are meticulous in their observation of the requirements of the DFR. This will be addressed in more detail in Chapter V, Section E, below. 257 ^ Ibid. 258 See supra note 171 and accompanying text. The ERRC is composed of three union representatives (an Assistant to the CAW President (CAW National AP), the Senior CAW National Representative servicing the Magna Local, and the President of the Magna Local) and three company representatives (two from the office of the Magna Executive Vice President, Global Human Resources (Magna EVP), and one senior Operating Executive). FFA, supra note 63 at 12. 76
Framework restricts the right of appeal to the CAW National AP and the Magna EVP.
The conditions under which an appeal will be taken from either the CRSC or the ERRC are not clearly articulated in either the Framework of Fairness or the National
Agreement.
The Framework process offers both more options for a concerned employee than
Magna's non-union procedures, and more support and protection in the pursuit of a resolution. At the same time, however, it sets a long road between the employee and the eventual recourse to arbitration. In comparison with typical grievance procedures, it remains informal for far longer. Rather than one informal discussion with the employee's immediate supervisor, the Framework process calls for multiple levels of informal engagement between the concerned employee and division management. While this flexibility is offset by the availability of some formal procedures, and some recourse outside the division from the outset of the process, there may be pressure on employees not to pursue these avenues until after considering informal, local options. The
Framework itself makes the preference of both the Union and the Company for local, informal resolution of disputes very clear. Whether employees will actually feel as free as they are said to be to take their complaint outside their division from the outset remains to be seen.
260 md. If the National Agreement sets no standards for appeal, it may fall to the duty of fair representation to carry most of the burden: See supra note 256. See, for example Freightliner CA, supra note 222, Art. 11.01, at 19. FFA, supra note 63 at 11. 77
The first two steps added to the Concern Resolution Process above the Hotline level appear to have more in common with collaborative settlement discussions than with the independent adjudication of disputes. At the CRSC level, the representatives of each
264 side in the dispute sit on the committee (the EA and the Division GM). It certainly reinforces the vision in the Framework Agreement of a fully cooperative, non-adversarial model of labour relations. From the perspective of a concerned employee, however, it may be intimidating. At the ERRC level, employees may not know the Union representatives on the Committee, and certainly would not have as close a relationship with those representatives as they would with the EAs of their own divisions. The Union will have to work hard to convey a sense of fairness from this process, and to avoid the impression of six shadowy figures meeting in a closed room to decide the fate of a lowly
265 employee.
The incorporation of its own non-union concern resolution process into the unionized environment has clearly been a bargaining priority for Magna since the CAW first succeeded in organizing Integram Seating in 2001. As described above, the collective agreements at both Integram/Innovatech and Mississauga Seating blended elements of Magna's Open-Door Policy and Fairness Committees into their grievance resolution procedures. The processes remained parallel rather than fully blended, however. Employees could choose to pursue either the Open-Door, Fairness Committee route to resolve their concerns, or the traditional grievance procedures. While the
264 National Agreement, supra note 134, Art. 4, s. 7, at 40. As mentioned above, the duty of fair representation is likely to play a significant role in motivating the union to avoid this impression. See Chapter V, Section E, below. See supra, note 118 and accompanying text. 78
Fairness Committee remained available as a resource under the conventional grievance procedure, it otherwise largely followed the traditional chain of informal discussion, formal grievance, meetings with union and management reps, high-level meeting, followed by independent arbitration. The FFA represents the first full integration of the two procedures, with the addition of the unique processes for consultation and mediation at the national level in the form of the CRSC and the ERRC.
The FFA also brought changes to the selection process for employee members of the Fairness Committee: under the Integram/Innovatech and Mississauga agreements no provision was made for direct election. Instead, members volunteered for the position and were accepted as long as they had at least sixty days of service with the company.
Given the expanded role of the union Fairness Committee members in selecting the
Division's Employee Advocate, selection by a secret-ballot vote is an important addition to the FFA and the National Agreement.
The structures and processes at the Concern Resolution Sub-Committee and the
Employee Relations Review Committee are also unique to the Framework model. The broader emphasis on cooperative and informal problem solving as the most desirable alternative is not even unique to Magna, however. While the structures through which they are pursued differ, the agreement between CAMI and CAW Local 88 espouses the 269 same goals. The similarity between the two ends past the first stage of the grievance process at CAMI, however. None of the detailed structures for cooperative problem
See for example, Integram CA, supra note 115, Art. 8.03, at 25-27. 268 Ibid., Art. 7.03 at 19. 269 CAW/CAMI CA 2007-10, supra note 145 at 46. 79 solving implemented in the Framework of Fairness are apparent in the CAMI agreement.
Instead there is a reference to principle followed by a description of what amounts to a
270 typical grievance procedure. In light of this, perhaps it is not so difficult to understand why the labour-management cooperation anticipated by the negotiators of the CAMI agreement, and adopted in the opening paragraphs of the agreement never seemed to materialize:
Our local wasted little time in establishing an independent presence in the plant. Over time the union began to demand changes and workers fought back. By contesting CAMI policy and practice, the members increasingly came to see the local as an independent force that 271 championed the cause of workers' dignity and rights.
This may explain some of the key differences between the Magna Agreement and other collective agreements, including that at CAMI. Perhaps Magna is learning from what it views as CAMFs mistakes, and seeking specific commitments from the CAW rather than vague promises of a cooperative approach to the relationship.
After a close review of its structures and processes, the CAW/Magna Agreement remains potentially controversial. The Agreement incorporates several features which certainly warrant closer analysis. It is indisputable that the Agreement makes radical departures from labour relations norms, and displays a side of the CAW which is surprisingly comfortable with labour-management cooperation, in light of the Union's 272 history. However, it also shows significant improvements to the weak guarantees of
270 Ibid, at 46-47. 271 Rosenfeld, supra note 144. 272 Eaton & Verma, supra note 102. 80 fairness, consistency and democracy in workplace governance incorporated into Magna's non-union employee relations model. The next two Chapters will attempt to address the principal questions raised by the Agreement: do these improvements go far enough toward independent, democratic representation, or do they raise new concerns for fairness and democracy in and of themselves.
Before moving on to that analysis, the next section will consider some of the criticisms which have been leveled against the CAW. An effort to separate the wheat from the chaff, so to speak, is vital to a thorough inquiry into the cooperative labour relations regime established by the CAW/Magna Agreement. The earlier review of the
CAW's long record of irritating others in the labour movement offers a tempting and convenient explanation for the criticism with which the Agreement has been received, but the foregoing description of the structures of the Agreement suggests that there may be more to that criticism than just bad blood and hurt feelings.
E. The Response from Organized Labour
Criticisms of the CAW/Magna Agreement have focused primarily on two themes: the independence of the Union, and democracy in both its internal structures and its representative functions. The criticism came in waves: the first reactions both from inside the union and from out focused almost exclusively on the agreement to forego the right to strike, and related concerns about the Union's independence from the Company. As critics became aware of more of the agreement, their attention shifted to its other unfamiliar features: the number, selection, and role of employee representatives; limits on 81
the structures of the Local which would be chartered to represent Magna workers; and the
actions of the CAW in negotiating and then in defending the agreement.
Amidst the controversy in the labour movement over the Framework of Fairness,
there has been a virtual silence from Magna International and parties interested therein.
Sam Gindin suggested that the driving force behind the deal on Magna's part was Frank
Stronach, and that he pushed it through in the face of resistance from "some of Magna's
273 top management," although he cited no sources for this claim. One reporter cited
"industry sources" as stating after the Agreement's announcement that there was 274 opposition from workers "at some key Magna plants." Another article suggested that
the shareholder response had been weakly negative, with share values dropping by 275 roughly five percent after the announcement. After the initial announcement of the
FFA, Magna has remained relatively quiet (publicly, at least) about the Agreement.
273 Sam Gindin, "The CAW and Magna: Disorganizing the Working Class" The Bullet (19 October 2007), online: Socialist Project
Opposition came immediately upon the announcement of the Agreement, both from within and from outside the CAW. From within, the president of 22,000 member
CAW Local 222, Chris Buckley, delivered his rejection of the CAW/Magna Agreement in an open letter to Buzz Hargrove little more than a week after the Agreement was announced. "A 'No-Strike clause goes against the fundamental rights of workers," he
277 stated. Similar letters from Gord Wilson, former director of education for the
UAW/CAW, and Jeff Casey, president of CAW Local 4451 were sent as October drew to 278 a close.
Opposition from within came also from a somewhat surprising source: Local 88, representing workers at the CAMI Automotive plant in Oshawa, which was organized in the 1980s under a cooperative voluntary recognition agreement that was in some ways 279 similar. The executive of the CAW Local passed a resolution which "adamantly" rejected the proposal as opposed to workers' fundamental rights, and forwarded a letter outlining the differences between the CAW/Magna Agreement and their own to the
01 f\ Chris Buckley, "Letter to Buzz Hargrove" (25 October 2007), online: Socialist Project
280 Toronto Star. A similar sentiment was expressed at the CAW National Convention by
281 Local 112, representing manufacturing workers in Toronto.
One of the more vocal commentators on the Agreement has been Sam Gindin,
CAW historian, estranged former member of the Union's leadership, and at the time the
282
Agreement was announced, visiting lecturer at York University. Three days after the
Agreement's announcement, Gindin produced a lengthy condemnation of its flaws, including the first critical comment on a point which rivaled the no-strike rule in its power to anger representatives of organized labour: the possibility of management 283 involvement in the selection of the Employee Advocate. That critics believed management would have a role in selecting the Employee Advocate was understandable enough, given the wording of the Framework, which suggested only that the EA would be selected by "members" of the Fairness Committee, without stipulating that only the 284 employee members would have any input. It persisted, however, far longer than it
280 Keenan, "Cracks", supra note 274; Rosenfeld, supra note 144 at 5-6. 281 Greg Keenan, "CAW Signs off on Magna Deal" Globe and Mail (7 December 2007), online: Globe and Mail
285 late November, and the CAW's presentation to its membership in early December.
Gindin's critique of the Agreement has focused on its potential to erode the ability of the union to remain a truly independent representative of its members. He has not been
shy about expressing his views of labour-management cooperation, describing teamwork
and mutual gains as "mushy cliches," and questioning the validity of unionization which is not directed toward challenging management and building class consciousness. He also found enough space in his initial comments to rail against past transgressions by the
CAW (including support for Liberal politicians, and funding a breakaway Canadian
287 splinter of the Labourers' International Union), to the point where it is difficult to say whether he is truly interested in analyzing the merits and flaws of the Agreement itself, or attacking a union with which he has become broadly disenchanted.
A common theme in the work of Gindin and likeminded critics is a comparison between the Agreement and "company," "Yellow Dog," or employer dominated unionism of the sort outlawed in the National Labour Relations Act in the United States
288 and in labour legislation across Canada. Gindin and others suggest that the level of cooperation between the union and Magna which is described in the Framework of
285 Geoff Bickerton, "First FFA Collective Agreement Restricts Workers Democratic Rights" The Bullet (26 November 2007) online: Socialist Project
Fairness is indicative of a weakened union which has accepted too many concessions, and is no longer able to speak with an independent voice for the interests of its members. The allegation that the CAW is losing its independence through this agreement may be surprising, but it has real practical and legal import. The practical compatibility of independence and cooperation will be explored in Chapter III, and the legal implications of Magna's support for the CAW will be canvassed in Chapter V.
Gindin's commentary on the Framework of Fairness has been published primarily through "The Socialist Project", which has hosted a digital record of criticism and complaints about the terms of the Agreement and the conduct of the CAW since the FFA
289 was announced in October. Another regular contributor has been labour activist and author Geoff Bickerton, who has devoted his attention to the Agreement's impact on the institutions of democracy, both in the workplace and within the Union's internal 290 structures. Bickerton's principal (though not only) concern with the Agreement in his earliest comments was with the potential for management participation in the Fairness
Committee panel which selected the top three candidates for appointment as Employee
291 Advocate. This concern, which initially appeared entirely reasonable, has since been 292 dispelled.
289 Socialist Project, "CAW and Magna Agreement," online: Socialist Project
Bickerton remains concerned despite the exclusion of direct management
293 influence on the selection process, and his concerns raise a number of valid points.
While employees may have the only say in the selection of the Employee Advocate, the process is still not a direct election. Because the Executive of the Magna Local will be drawn entirely from the ranks of the Employee Advocates, employees do not have the 294 right to elect their own Executive. Instead, the Executive is elected by a pool of
295 representatives ultimately appointed by the CAW National AP, as described above.
Furthermore, the members of the Local will be unable to vote to change the structures of their internal democratic processes. Aside from any question of influence or interference from the National CAW, the entrenchment of the Local's internal procedures in the 296 Framework of Fairness renders any change subject to Magna's agreement. This raises the question, addressed in Chapter IV, of whether labour-management cooperation as close as that sought in the Agreement requires such limits on democracy. Perhaps
Bickerton is wise to remain concerned.
Other criticisms of the Agreement reflected some blend of the early critiques offered by Gindin and Bickerton. One of the loudest came in the form of an editorial written jointly to the National Post by members of the leadership of six Ontario
Federation of Labour ("OFL") affiliated unions, on the eve of a conference where the
293 Bickerton, "First FFA," supra note 285. 294 Ibid, at 1. See Chapter IV, below, for a discussion of this and other potential problems arising from an apparent inconsistency between the CAW/Magna Agreement and the CAW Constitution. 295 See supra, note 206 and accompanying text. 296 Bickerton, "First FFA," supra note 285 at 2. 87
297 OFL voted unanimously to condemn the Framework of Fairness. Titled "The Magna
Sell-Out," the November 23rd editorial again compared the CAW to a "company union," pointing to the limits on the right to strike and to the alleged management influence on 298 the selection of employee representatives.
The condemnation offered by the OFL should not be considered out of context.
The OFL and the CAW had parted ways some time before the Framework of Fairness was announced, and a number of those signing their names to the editorial accusing the 299 CAW of "selling out" its members had standing grievances with the CAW. It would be inappropriate and, in light of the opposition to the Agreement from other quarters, probably incorrect to say that the OFL criticism of the Framework Agreement was entirely politically motivated. However, it must be said that few of the delegates who passed the resolution condemning the Framework of Fairness likely came to the convention bearing any goodwill toward the CAW. Certainly Buzz Hargrove believes this to be the case; he has publicly blamed the criticism from the OFL on the CAW-NDP
297 Fraser et al., supra note 179. 298 Ibid; continued emphasis on the latter point reflects a certain lack of research, as it had by this point been proven to be mistaken: Bickerton, "First FFA," supra note 285. 299 See Section C.l, above; Relations between the CAW and the USW, CUPE, and SEIU, strained already by the dispute between the CAW, SEIU and the CLC, were pushed to the breaking point by the CAW's abandonment of support for the NDP, both federally and more recently in Ontario. Sid Ryan and Buzz Hargrove in particular came to harsh words over the issue little more than a month before the OFL convention: Diebel, supra note 99. 88 divorce, pointing out that none of the other Canadian labour federations have voiced 300 criticism of the agreement.
The academic response to the Framework has been limited. One York University professor called the Agreement "bad for workers" in an interview, with her primary concerns focusing on the loss of the right to strike and the changes to the grievance
301 procedures. She worried that the cooperative orientation of the new elements in the
Concern Resolution Process might weaken the Union's ability to independently represent 302 and defend workers who are facing problems with management. On the other side of the debate, Roy J. Adams, formerly a professor at McMaster, wrote a brief article stressing the importance of expanding collective bargaining coverage, supporting the usefulness of binding arbitration, and chiding critics of the Framework that "we should not be too quick to throw out unconventional opportunities to expand collective 303 bargaining's reach." He did not address critics' complaints about the limits the agreement places on workplace democracy.
John Steele, "Auto Workers Union Ratifies No Strike Deal" (14 January 2008), online: The Militant
In one of the editorials specifically mentioned by Adams, Ed Broadbent linked the right to strike, workplace democracy, and recent Supreme Court labour jurisprudence, and eloquently condemned Buzz Hargrove and the CAW for "attacking the very
304 foundations of independent unionism." Broadbent tied workplace democracy to political democracy and labour rights to human rights to cast the Framework of Fairness 305 as an assault on the very fabric of Canadian society. Unfortunately, his argument was diminished somewhat by a reliance on the same misconception about the Agreement shared by so many other critics: that management would have a say in the selection of the employee advocates. With this factor contradicted, Broadbent's otherwise eloquent and forceful argument must rest on the agreement to forego strike action, diminishing its rhetorical punch.
Other voices joined the critique of the democratic structures of the Framework of
Fairness, however. Shortly before the National Convention, an editorial by a CAW member appeared in the Socialist Project attacking the CAW for its failure to uphold the principles of democracy, not through the terms of the Agreement but rather in the process of negotiation, and through the union's response to its critics. Concerns about the
Union's failure to follow processes of internal democracy in formulating the Agreement may have run out of steam with the overwhelming show of support at the National
Convention in December 2007. The debate within the union came to a head at the
304 Broadbent, supra note 302. Ibid. Wayne Dealy, "Democracy, Solidarity and the Framework of Fairness" (3 December 2007), online: Socialist Project
' , 308 union seems to have wound down.
Prior to the vote, those of the Agreement's supporters willing to comment publicly were fewer in number but no less committed to their position than its detractors.
Early on, the President of Local 444, representing, among others, workers at hitegram and Innovatech Seating in Windsor expressed his opinion that the agreement was "the right method" to organize Magna, and opinion he based on his experiences organizing
309 Integram. Bob White, former president of the CAW and the CLC, and the man under whose leadership the CAW broke from the UAW in the early eighties, brushed aside
307 The figure of ninety-five percent in favour of the agreement is impressive, but at least one author raised serious and concerning allegations about the process of the vote at the Council meeting on December 7: The icing on the cake came when he abruptly declared that the vote would be held by having the delegates cast their votes by standing up to show how they were voting. This meant that those who were opposed to the recommendation had to do so under the watchful eyes of all of the delegates along with the top CAW leadership and their small army of staff representatives who service the delegates' local unions. Given this it is more than reasonable to suggest that the pressure put on the delegates to vote for the recommendation was considerable. (Bruce Allen, "On and After the Magna Vote" New Socialist (29 December 2007), online: New Socialist < http://www.newsocialist.org/index.php?id=1485> (last accessed: 12 June 2008).) 308 Anonymous. "Magna Deal Approved but Local 222 Voices Opposition" Toronto Star (8 December 2007), online: Torstar Network
critics' concerns about restrictions oh the right to strike by pointing to the gains made by
310 workers in the public sector even without a legal right to strike.
Tim Armstrong, former Deputy Minister of Labour in Ontario, lambasted "the 311 negative, knee-jerk reaction by ideologues in organized labour." He dismissed
criticisms of the no-strike clause by pointing to similar evidence to that cited by Bob
White: thousands of unionized workers lack the right to strike and benefit nonetheless 312 from collective bargaining. Moreover, he pointed out that other unions have voluntarily opted to forego strikes and lockouts without seeing the sort of intense 313 opposition the CAW has faced from other players in the organized labour community.
Above all, the CAW has been active in defending itself from criticism, at least until the CAW/Magna Agreement was ratified at the December 7 National Convention.
In its presentation to the membership, the CAW Executive touched on similar points to
314 those raised by White and Armstrong. After the vote, with a fresh mandate from its
315 membership to implement the Agreement, the CAW seemed to have lost interest in
310 Bob White, "Unions have to innovate to better serve workers" Toronto Star (30 October 2007), online: The Star Online
2008, praised critics' willingness to debate matters of principle so openly, and expressed his hope that the discussion would continue even now that the CAW membership has 317 committed to its path. But are the critics and the proponents of the Agreement really engaging in any sort of principled debate? Or are they instead yelling at one another from across the room, while ignoring the higher questions which divide them?
F. Conclusion
It seems apparent that despite the familiar voices in the outcry against the
Framework of Fairness, not all of the criticism can be easily laid at the feet of politics and stale grudges. The issues raised even by those like Sam Gindin who carry some bitterness toward the CAW run deeper than the technical details of the Agreement. Bickerton is correct that many of the critics rest their arguments on a firm belief in the inviolability of certain principles, and the entrenched position of those principles at the heart of the labour movement. Critics see these principles, particularly independence from management, the right to strike, and the election of representatives as a rigid core supporting and lending meaning to the representation of workers.
On the other side of the debate, the proponents advocate different principles, and different objectives for unions. They talk about dwindling collective bargaining coverage, about the need to innovate and become once more relevant for workers. They talk about
This may have been in a large part due to the impending negotiations with the "Big Three" automakers at Chrysler, Ford and General Motors. 317 Geoff Bickerton, "Dissent and Democracy" (2008) 42:1 Canadian Dimension 6. 93
flexibility, about the pressures of competition, and the need for a joint effort and even for
cooperation to promote and protect the shared interests of companies and workers.
In the comments of many of the Agreement's opponents, the arguments made have been framed in traditional socialist terms, drawing on concepts of solidarity, working class power, and class conflict which allow no room for shared interests among workers and management. The unquestioned premise underlying these arguments is that a union cannot possibly take a cooperative approach to its relationship with management and remain an independent defender of its members' interests. Is this assumption correct?
Are cooperation and independence incompatible?
This question will form the subject of the next chapter. Offering a full account of the CAW/Magna Agreement without questioning this fundamental assumption, shared by so many of the Agreement's critics, would be an impossible task. The compatibility of cooperation and independence is the subtext of much of the dispute between the
Agreement's proponents and its opponents. As is often the case, arguing over details without addressing the underlying questions of principle amounts to senseless bickering rather than to the vital discourse which Bickerton advocates. Chapter III: Independence, Cooperation and Conflict in the CAW/Magna Agreement
A. Introduction
As reviewed in Chapter II, the dominant themes of the CAW/Magna Agreement
include the establishment and maintenance of a cooperative, non-adversarial labour-
management relationship, the pursuit of shared interests and mutual gains, and a
coordinated effort on the part of the Union and the Company to work together toward
enhancing the Company's efficiency, productivity, and competitiveness. This is not only
demonstrated in abstract statements of principle. The emphasis on cooperation is also
apparent in joint management-labour panels at every level of the dispute resolution process, in the mutually-agreed upon system for union recognition, in the process of
bargaining towards the renewal of the Agreement, and in the prohibition on the use of
economic sanctions in the course of that bargaining.
Many of the CAW/Magna Agreement's critics focused on the prohibition of
economic sanctions as evidence of a "sell-out" of Magna's workers by the CAW.
Similarly underlying much of the criticism of the Agreement is a sense that this
cooperation, in both principle and in the structure of its practical implementation, is an
affront to the independence of the CAW. The assumption shared by critics of the
Agreement seems to be that independent employee representation is incompatible with a cooperative model of labour-management relations. Is this assumption supported by the
Wayne Fraser et al, "The Magna Sell Out" Financial Post (23 November 2007), online: National Post
As this chapter will attempt to show, cooperation at work offers benefits for both employers and employees. It also carries significant risks, not the least of which is that identified by the critics, the risk of diminishing the union's capacity to provide independent representation of the interests of its members. However, cooperation, at least as it is understood in the CAW/Magna Agreement, is not synonymous with passive complacency on the part of the Union and/or employees. The sort of cooperation described in the Agreement requires commitment from employees, which is promoted, rather than undermined by independent representation of those employees' interests by the Union. Nothing about cooperation is inherently contrary to the interests of workers or of unions, and the risks to the Union's independence can be managed.
Making cooperation work involves managing conflict. The CAW/Magna
Agreement represents a comprehensive attempt to build a cooperative labour- management relationship. It seeks to realize the benefits of cooperation, by promoting active commitment from the Union and employees to the success of the Company and the
Agreement. At the same time, it seeks to manage the risks of cooperation by creating and institutionalizing formal processes for dispute resolution, to contain and structure conflict. Eliminating conflict from the labour management is a hopeless goal, and the
Agreement recognizes this, instead allowing room for conflicts to arise and to be resolved without doing lasting harm to the relationship between the Union, the Company, and the employees. 96
Prelude: What is Cooperation?
Labour-management cooperation means different things to different people. To
many workers it means joint decision-making, and a willingness on the part of
management to not only hear, but to listen and respond to the concerns and suggestions of 2 the union and employees. Among managers, understandings of labour-management
cooperation may vary, but it frequently seems to imply a reduction in labour conflict and
adversarialism, and a greater alignment of union/employee and management interests, as
well as joint consultation and joint decision-making between management and
representatives of workers.
The CAW/Magna Agreement presents a very particular model of cooperation.
The Agreement provides for detailed and formalized processes of company-wide co-
determination on both narrow issues of working conditions and broader strategic
decisions, with an extensive emphasis on negotiation and joint-problem solving. This model of cooperation is supported by independent and mutually-agreed upon dispute resolution processes, close alignment of the interests of the Union and management on a range of issues, and clear and firm prohibitions on of the use of economic sanctions by
either party. It is important to keep this model in mind while reviewing the benefits and risks of cooperation in the workplace.
This is true of the United States, at least: Richard B. Freeman & Joel Rogers, What Workers Want (New York: Russel Sage, 1999), at 58 [Freeman & Rogers]. 3 See David E. Guest & Ricardo Peccei, "Partnership at Work: Mutuality and the Benefit of Advantage" (2001) 39 British Journal of Industrial Relations 207 at 208-213 for a detailed analysis of different streams of thought on the meaning of cooperation and partnership [Guest & Peccei]. 97
B. Cooperation at Work: What does it Offer?
Authors in Canada, the United States, and Britain are increasingly thinking about
4 cooperation in labour-management relations. One author even goes so far as to suggest that "The conflicts of interest characterizing owners and labor from the industrial revolution to the mid-twentieth century have been transformed... by a shift toward employment relations based on trust and partnership." She describes a number of dimensions of this change, including a greater emphasis on risk and profit sharing, a more open flow of information from employers to employees, a shrinking social gap between management and labour, and a greater concern among workers of virtually all income
For the United States, see Thomas A. Kochan & David B. Lipsky, Negotiations and Change: From the Workplace to Society (Ithaca, NY: Cornell ILR Press, 2003) [Kochan & Lipsky]; Bruce E. Kaufman, Richard A. Beaumont & Roy B. Helfgott, eds., Industrial Relations to Human Resources and Beyond (Armonk, NY: M.E. Sharpe, 2003) [Kaufman, Beaumont & Helfgott]. In Canada there has been only limited empirical attention to cooperative labour relations: see Derrick Hynes, "New Climate of Collaborative Labour Relations on the Horizon" (2001) 14:9 Canadian HR Reporter 9. Some authors have made arguments for greater emphasis on interest-based bargaining, or a more cooperative approach to the labour-management relationship generally: see Michel Grant, Shifting From Traditional to Mutual Gains Bargaining: Implementing Change in Canada (Kingston: IRC Press, Queen's University, 1997) [Grant]; Roy J. Adams, Industrial Relations under Liberal Democracy: North America in Comparative Perspective (Columbia, S.C.: University of South Carolina Press, 1993) [Roy Adams]. For two important normative works on labour management cooperation in Britain, see Hugh Collins, "Regulating the Employment Relation for Competitiveness" (2001) 30 Indus. L.J. 17; and Anthony Giddens, Where Now for New Labour (London: Fabian Society, Polity Press, 2002) [Giddens]. Denise M. Rousseau, "Changing Psychological Contracts: Implications for Human Resources Management and Industrial Relations" in Kochan & Lipsky, supra note 4, 37 at 49-50 [Rousseau]; see also Jon D. Wisman, "The Ignored Question of Workplace Democracy in Political Discourse" (1998) 6:6 Empowerment in Organizations 149 [Wisman]. 98 levels with market performance. What motivates such widespread interest in cooperation at work? What can cooperative models of labour relations offer to management and labour to change their existing preferences, respectively, for non-union and traditional union-management employee relations?
/. What does Cooperation at Work Offer for Employers?
Cooperation at work holds great appeal for employers. It offers an answer to labour-management conflict, and a means of increasing efficiency, productivity, and
7 competitiveness at work. It is receiving more attention now than ever because of competing tensions on employers resulting from changes in the economy and the labour
Rousseau, supra note 5 at 50-51. It is worth noting that even the Ontario Labour Relations Act reflects an emphasis on cooperation (Labour Relations Act, 1995, S.O. 1995, c.l, Sch. A [ONLRA]). The purposes of the Act are set out in section 2:
2. The following are the purposes of the Act: 1. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees. 2. To recognize the importance of workplace parties adapting to change. 3. To promote flexibility, productivity and employee involvement in the workplace. 4. To encourage communication between employers and employees in the workplace. 5. To recognize the importance of economic growth as the foundation for mutually beneficial relations amongst employers, employees and trade unions. 6. To encourage co-operative participation of employers and trade unions in resolving workplace issues. 7. To promote the expeditious resolution of workplace disputes. 7 As reflected in the objectives of the Framework of Fairness: CAW & Magna International, "Framework of Fairness Agreement" (15 October 2007), online: CAW- TCA Canada
1997 sought to reverse two decades of restrictive anti-union legislation without sacrificing economic stability and competitiveness. The result, dubbed "New Labour" and the "Third Way," involved a government emphasis on the principle of partnership as the core of the labour-management relationship. This has produced a wealth of debate
Katherine V.W. Stone, "The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law" (2001) 48 UCLA L. Rev. 519 at 549 [Stone]. 9 Much of the literature on cooperation in the United Kingdom is phrased in terms of 'labour-management partnership,' or 'social partnership.' This reflects the language adopted in government policy more than any substantive distinction from a North American model of cooperative labour relations. See Guest & Peccei, supra note 3 at 208-213 for a discussion of the various paradigms of cooperation and partnership at work. See Giddens, supra note 4. See Sandra Fredman, "The Ideology of New Labour Law" [Fredman] in Catherine Barnard, Simon Deakin & Gillian S. Morris, eds., The Future of Labour Law: Liber Amicorum Bob Hepple QC (Portland, OR: Hart Publishing, 2004) [Barnard, Deakin & Morris] 9; Phillip B Beaumont & Laurence C. Hunter, "Collective Bargaining and Human Resource Management in Britain: Can Partnership Square the Circle" in Kochan & Lipsky, supra note 4 at 171 et seq [Beaumont & Hunter]; William Brown & Sarah Oxenbridge, "Trade Unions and Collective Bargaining Law and the Future of Collectivism" in Barnard, Deakin & Morris, ibid. 63 at 72-73 [Brown & Oxenbridge, "Future"]. in industrial relations literature on the advantages and disadvantages of cooperation for unions, as well as numerous studies of the successes and failures of experiments in cooperative labour relations.
The drive for cooperation has as its intended outcomes increases in efficiency, productivity, and flexibility, all values prominent in the Framework of Fairness 12 Agreement's statement of principles. Arguments for greater productivity through
13 cooperation are hardly new (a fact which critics are quick to point out). Since the early parts of the twentieth century, a virtually unbroken line of thought in American industrial relations theory has argued in favour of the identification and emphasis of the common interests shared by both management and employees as the route to a more peaceful, 14 productive labour-management relationship. The roots of this reasoning may extend even further back in history, to the early welfare capitalists of the nineteenth century and beyond.
Concerns of these early cooperative labour relations theorists about productivity and efficiency arose from the harmful effects of industrial strife more than from any pressures of global competition. They rejected in many cases the idea of a fundamental
12 See Chapter II, Section D, above. 13 Fraser et al, supra note 1, refer to "MacKenzie King style company unionism." King was a well-known proponent of cooperative labour relations in the early parts of the twentieth century: see Bruce E. Kaufman, "Cooperation and Unity of Interest" in Kaufman, Beaumont & Helfgott, supra note 4, 115 at 143 [Kaufman]. 14 See generally Kaufman, ibid, and particularly at 128 et seq. 15 Ibid, at 132. 101 conflict of interest between workers and management. They focused instead on conflict and strife as preventable problems, and sought ways of aligning the interests of workers 17 and employers to reduce or eliminate the triggers for conflict in the system. The primary goal of these early theorists was to reduce militancy among employees - complacency was cooperation enough for them.
In the nineteenth century then, cooperation was touted as an answer to industrial strife. Align the interests of workers and management and the workers' reason to strike would vanish. What then do modern employers stand to gain from cooperation? This question is particularly pressing in cases such as the CAW/Magna Agreement, where the employer adopts a cooperative stance toward a union in a previously non-unionized workplace. Without existing union representation there is little risk of the workers striking, meaning that the modern drive for cooperation on the part of employers must be 18 more complex than a simple fear of industrial strife.
Some authors have identified two potentially competing tensions acting on firms
19 in the modern labour market. The first tension is driven by the pressures of increased global competition and rapid change in demand and in markets. These pressures have required certain responses, which Katherine Stone has described as "just-in-time
Kaufman quotes Charles Babbage in 1833 as decrying the harmful effects of the belief in a conflict of interest between workers and management, and advocating profit-sharing as a solution to align those interests: ibid, at 130. 17 Ibid, at 132. 18 Although reaching a voluntary agreement with a union which is willing to forego the use of the strike weapon may be useful in avoiding the certification of a more militant, aggressive union. See e.g. Stone, supra note 8. 20 production, just-in-time product design, and just-in-time workers." These responses require a flexible workforce and production capacity, as well as ever-increasing
efficiency in the workplace, and they make it very difficult to commit to broad-based
.21 long-term job security.
Many modern arguments for cooperation are framed as responses to these
22 pressures. Cooperation is proposed as the answer to the competitiveness problem. It is
argued that cooperation resolves the tension between the increasingly competitive
environment faced in a more globalized world, and inefficient and restrictive 'traditional'
23 models of labour relations. Cooperation from employees facilitates greater flexibility in production and work organization, while resistance from an adversarial, aggressive union can undermine it to the point of driving the firm into unprofitability or even into bankruptcy.
While a view of cooperation as complacency or subjection would be enough to allow employers to address this first modern tension, it is not sufficient to address the second. In many industries firms stand to benefit from cooperation not because it may reduce resistance to change, but because of the level of dedication and commitment at 24 work which a truly cooperative approach can engender among their employees. In many industries, particularly the value-added service and technology industries which form a growing part of Western economies, companies rely on the development and
20 Ibid. 21 Ibid. 22 Collins, supra note 4 at 18. 23 Beaumont & Hunter, supra note 11 at 174-175. 24 Stone, supra note 8 at 556. 25 implementation of their employees' human capital in order to remain competitive. In these industries, docile bodies warming seats on the assembly line are not enough - employers require that their employees "think... develop ideas [and] apply their skills and know-how to novel problems."
Traditional models of directing the workforce are not well-suited to encouraging employees to fully implement their particular skills and knowledge in the service of the
27 company's goals. Indeed, many of the traditional modes of directing the workforce arose out of attempts at "deskilling," or in other words explicit efforts to eliminate the role of the employee's skill and knowledge in the production process, and thereby to
28 break the craft unions' hold on industry. The success of this effort in turn gave rise to one of the fundamental assumptions of traditional authoritarian models of management, that all of the important knowledge was held by those in charge, who could tell the 29 workforce both what to do and how to do it in great detail. Both the motivation behind
25 Collins, supra note 4 at 23; Brian A. Langille, "Labour Policy in Canada - New Platform, New Paradigm" (2002) 28 Can. Pub. Pol'y 133 at 135 [Langille]. The concept of human capital is a well-developed one in human resources and organizational theory. It refers to a aggregate body of a worker's knowledge, skills and experience. (Langille, ibid.) Collins, supra note 4 at 23. 27 Wisman, supra note 5 at 152-53, noting that adversarial labour relations inhibit employer investment skills training for employees, which as Langille notes is essential for the success of an economy increasingly dependent on human capital: Langille, supra note 25 at 135. 28 See Stone, supra note 8 at 526-35 for a summary of the development of Taylorism and scientific management, and its role in "deskilling" the workforce. 29 Collins, supra note 4 at 23. This was the essential premise of Taylorist management practices, which involved breaking the tasks to be performed by workers down into minute "deskilled" components, carefully measured and standardized: See Stone, ibid, at 529-31. and the methods of authoritarian models of management break down under a human
capital paradigm. When a firm must rely on the specialized skills and knowledge of its
employees, and moreover must encourage them to continue to develop and apply that
human capital throughout their time with the company, it must allow them a degree of
30 discretion not contemplated by authoritarian management styles.
Cooperative labour relations, conceived as more than merely a complacent
workforce, offers a way for employers to harness the human capital of their employees,
and to generate the sort of commitment which is necessary for an enterprise which relies 31 on the knowledge and skill of its workers to thrive. It addresses at a corporate level
what Langille identified as the national problem of the "adequate and optimal utilization 32 and mobilization of... human capital." As we have seen, cooperation and commitment
from employees to the goals of the enterprise also facilitates greater flexibility, another
growing corporate goal in the modern economy. Clearly, employers have much to gain by pursuing a more cooperative approach to their employees.
2. What does Cooperation at Work Offer for Unions and Employees?
If labour-management cooperation offers such significant benefits for employers, the pressing question is, what does it have to offer the employees involved? If it offers no
30 Collins, ibid, at 23. 31 Ibid, at 23-24. Canadian employers on a whole may not yet have recognized the value of consultation and cooperative relationships with their employees. Kumar and Murray in 2002 reported only limited union success in seeking greater participation in the workplace: Pradeep Kumar & Gregor Murray, "Canadian Union Strategies in the Context of Change" (2002) 26:4 Labour Studies Journal 1 at 19. 32 Langille, supra note 25 at 135. benefit to employees, then there is little reason for unions to accept overtures of cooperation from management. As this section will show, cooperation at work has much to offer both employees and unions, although it may also carry significant risks.
Ultimately, the greatest benefit to employees offered by a genuinely cooperative paradigm for the labour-management relationship is the potential for more and broader
33 influence over the terms and conditions of their employment. As Freeman and Rogers
34 found, greater influence at work is desired by all segments of the workforce.
Obviously, traditional union organizing has the potential to expand employees' influence at work. However, the influence which employees are able to secure through traditional unionism is qualitatively and quantitatively different from that which may be available through labour-management cooperation.
The focus of traditional North American collective bargaining tends to emphasize 35 short term gains, over the long-term relationship between the parties. The adversarial paradigm discourages the employer from disclosing more information about the company and its future than absolutely necessarily, for fear of giving the union ammunition for greater demands. The union pushes for immediate, quantifiable gains to take back to their membership. This results in a focus on the detailed terms and conditions of employment
- for example wages, benefits, hours of work - rather than any debate over major
33 Despite the foregoing, this alone is not sufficient to warrant wholehearted approval of cooperative labour relations. In many situations there may be countervailing drawbacks to the particular form the cooperation takes which detract from the democratic value of the opportunities for participation they offer for employees. It is also necessary to consider whether the measures in question actually provide for meaningful opportunities for participation before applauding them, a task which must be left for Chapter III. 34 Freeman & Rogers, supra note 2 at 40 et seq. 35 Roy Adams, supra note 4 at 122-23. 106 decisions relating to the management of the company, even those which might affect the employees. On the other hand, the influence which employee representatives gain over the direction of the company under a genuinely cooperative regime may be very significant. Instead of being limited to "negotiating over the impact of [key strategic] decisions after they are made" by management, unions in a genuine partnership with management may have an opportunity from the outset to influence the direction those
37 decisions take.
Being brought into the decision making process in this way ideally involves substantial increases in disclosure and information sharing. This may allow unions to take to take a longer view of their members' future with the company, to plan better for long- term change, and to better communicate the benefits of this long-term focus to their 38 members. As a result, there may be less pressure on the union leadership to produce immediate quantifiable gains in bargaining. This shifting focus allows and requires union leaders to develop a whole new set of skills. Meaningful involvement in decision making necessitates a certain level of competence in areas traditionally reserved for management,
"from strategic planning to operations management and from organizational development
39 to financial analysis." Developing new skill sets in these areas can be difficult for unions, but the payoff is that they are able to speak to management in their own language,
Saul Rubinstein & Charles Heckscher, "Partnerships and Flexible Networks" in Kochan & Lipsky, supra note 4, 189 at 192. 37 Ibid. **Ibid. 39 Ibid, at 193. 40 and to take part effectively in decisions, making them less likely to be excluded. As the union is increasingly included in the process of strategic planning and decision making, the decisions which result will better reflect the interests of employees.
Perhaps most importantly, a genuine effort at cooperation may represent an easier path to attaining representation and a say in their working conditions for employees than traditional adversarial collective bargaining. While there is no question that there are enormous challenges for both sides in establishing and maintaining a cooperative relationship, the willingness of an employer to try removes one of the chief obstacles to the organization and representation of employees in the traditional North American
41 system. Management's resistance to traditional unionization is inextricably tied to the
North American culture of labour relations adversarialism, with its attendant specters of 42 inefficiency, conflict, and loss of control. With the minimization of adversarialism in the labour-management relationship through an emphasis on cooperation, management resistance to unionization can be eroded, allowing employees an opportunity to be represented without a tooth-and-nail fight with their employer. Neither the importance of this obstacle to representation, nor the value of its removal can be overstated.
In the late 1990s, American labour scholars Freeman and Rogers conducted a groundbreaking study on the preferences of workers in relation to their representation at
43 work. In perhaps the most interesting outcome of their study, the authors found that
American workers, including both existing union members and the unorganized, would
40 ma. 41 Roy Adams, supra note 4 at 61-62. 42 Ibid, at 56-57. 43 Freeman & Rogers, supra note 2. 108
44 overwhelmingly prefer a cooperative system of representation to an adversarial one. As the authors note: "Most workers believe that management must be on board for any workplace representation or participation system to work effectively. Management 45 cooperation implies real employee influence." The workers surveyed by Freeman and
Rogers tempered that desire for management cooperation with a clear preference for 46 independence in their ideal system of representation. By expressing a preference for cooperation, they were not indicating a desire for a management dominated facade of representation, but instead for a genuine cooperative system wherein employees have meaningful influence.
It seems that workers are, for the most part, unafraid of the potential dangers of a cooperative relationship between their representatives and management. Ultimately, they want more influence over the workplace, a greater say in decision making, and they recognize the value of independent representation in attaining that goal. However, they see no fundamental incompatibility between independent representation and labour- management cooperation. As Freeman and Rogers observe, this speaks to the most important benefit of cooperative labour relations, noted above: it removes the obstacle of
44 Ibid, at 56-60. 45 Ibid, at 59. 46 Ibid. This preference was manifested in four key dimensions: firstly, workers wanted a system where either they or management could raise issues for discussion; secondly, they wanted a system where decisions were agreed to by management and worker representatives, rather than made unilaterally; thirdly, they wanted disputes resolved by an independent process of arbitration; finally, they wanted their representatives to be elected rather than appointed by management (ibid). 109
employer reluctance from employees' path in the search for greater voice in the
workplace.
This also speaks to the important, but often overlooked distinction between the
politics of labour activists and the politics of most workers. Marxist and socialist writers
would like to believe that workers share a class consciousness, or a common 48 philosophical interest and militant political orientation. The Freeman and Rogers study
reflects a very different set of priorities on the part of workers. Rather than being
concerned with the defence of abstract socialist principles, workers seem to share a desire
for effective representation, and for the recognition of their interests and wishes by
management representatives. While workers desire change in their relationship with
management, it does not arise from a shared sense of injustice over their exploitation and
domination by management, as alleged by Kelly, and it fails to manifest as militant 49 resistance. Instead, it seems to reflect a pragmatic desire for a more democratic,
independent voice in the structures of workplace governance.
Employees stand to benefit from a genuinely cooperative paradigm of labour
relations. This is true both directly, through its capacity to offer more and broader
opportunities for participation in the governance of the workplace, and indirectly through
Ibid, at 63. 48 This is reflected in the work of Kelly, discussed at greater length below: John Kelly, Rethinking Industrial Relations: Mobilization, Collectivism and Long Waves (New York: Routledge, 1998) [Kelly]; it is also apparent in much of the criticism of the CAW/Magna Agreement, including that hosted at the Socialist Project's online archive of critical commentary on the Agreement: Socialist Project, "CAW.and Magna Agreement," online: Socialist Project
3. Pursuing the Benefits of Cooperation in the CA W/Magna Agreement
The joint press release from Buzz Hargrove and Frank Stronach in which the
Framework of Fairness was announced included the following statement:
we both agree that the best ace in Canada's automotive hand is our people. Our most valuable asset, as we find ways to evolve and survive, is the skill, the productivity and the work ethic of Canadian auto workers - matched with the knowledge and creativity of Canadian scientists, engineers and managers. If we are going to preserve this crucial industry in the face of globalization, a dollar at parity and climate change, then we need to leverage our "human advantage" to the greatest possible degree.
From the outset, the focus of both parties to the FFA has been on mobilizing the human capital of Magna's workers, or in other words on the chief benefit for employers of a cooperative labour relations paradigm. This is reflected in the early pages of the
Framework of Fairness. Both sides make specific commitments in order to further "the long-term success of the company and job security for employees." The Company commits, among other things, to "ensuring employees receive appropriate training to enhance their skills and capacities," and to "providing regular communication to
Frank Stronach & Buzz Hargrove, "For the sake of the auto industry, we've put aside our differences" Globe and Mail (17 October 2007), online: Globe and Mail
52 employees regarding issues impacting the industry and their division." The Union commits to "building higher employee morale," to "enhancing stronger employee participation and commitment in the Magna production process," and to "enhancing 53 transparency, credibility, and trust in labour relations policies and practices." Of course, these statements of intent would be of only limited relevance were they not substantiated in the workplace governance structures and procedures which the
Agreement creates.
The Agreement emphasizes joint problem solving and codetermination at a variety of levels. At the level of the individual division, members of the bargaining unit and management sit together on the Fairness Committee, which has a role in resolving grievances, and in offering joint labour-management review of policies and procedures at 54 the division. In addition to possible influence through policy reviews, the Fairness
Committee members facilitate communication between employees and management, promote employee involvement in the workplace, and "Facilitate employee ownership, responsibility and accountability in producing a better product for a better price." At
52 Ibid. 53 Ibid, at 3-4. 54 CAW & Magna International, "Framework of Fairness, National Agreement, and Windsor Modules Local Appendix" (7 November 2007) [unpublished, on file with author], Art. 4, s. 3, at 37 [National Agreement]. The power to review division policy arises from the description of one of the roles for the Fairness Committee offered in the Nationa Agreement: "Participate in the review of Division policies and procedures and provide feedback to Division management regarding such policies and procedures." (ibid.) The section goes on to state that while "[t]he FC cannot directly change Company policies or procedures or the provisions of the Framework of Fairness Agreement or this Agreement, .. .their recommendations may influence future management reviews or collective bargaining." (ibid.) 55 Ibid. 112 the company level, the Employee Relations Review Committee (ERRC), made up of three senior management and three senior union officials, has broad authority for guiding corporate policy. This includes both policy immediately applicable to labour relations and beyond, including "issues related to investment, production, employment,
57 technology, and the general state of labour relations." The ERRC also acts as the level at which collective bargaining takes place, though it convenes subcommittees to study
58 and discuss "plant-specific issues." The Agreement specifically states that the negotiations at both the ERRC and the subcommittees are to be guided by input from employees, Employee Advocates, and division management.
The joint effort at workplace governance represented in the Fairness Committees and the Employee Relations Review Committee offers access for employees to input on company policy and decision making at a level which would certainly not be available under a non-union system, and would probably also be unavailable under a traditional 59 system of labour relations. It offers employees a real opportunity to impact the course of company policy, and to shape both ongoing investment and production decisions as well as decisions made in the cyclical collective bargaining process.
Furthermore, the Agreement itself represents a significant benefit for Magna employees, as it eliminates the Company's opposition to independent representation. The
Agreement sets out a process for recognizing the CAW as representative of employees at
FFA, supra note 7 at 6. 57 Ibid. Ibid, at 7. 59 See supra note 36 and accompanying text, regarding the relatively narrow scope of the influence available to employees under the traditional North American collective bargaining paradigm. 113
previously unrepresented Magna Divisions. It commits the Company to ensuring that the
management of the division in question will cooperate in allowing the wishes of
employees to be freely expressed, and moreover that they will respect those wishes once
they are made clear.
The opportunity for representation and input into decision making also shapes the
way the employees view their work. As is reflected in the description of the Fairness
Committee's role, quoted above, these structures offer employees a reason to commit to
their work, and to view it as more than the performance of a task for a reward. The
Agreement's recognition of the Union as the legitimate representative of the employees,
and its implementation of that recognition lends legitimacy to the structures of workplace
governance created by the Agreement. Whereas under Magna's non-union human
resources system, the structures of employee involvement and consultation were
perceived to be gratuitously given and revocable by the Company, under the
CAW/Magna Agreement it represents a firm commitment on the part of the Company to
employee involvement and cooperative decisionmaking. This apparent sincerity may bolster the commitment of employees to the company and to their work. By involving
employees and the Union in problem-solving, in informed decision making in strategic matters, as well as in decisions over basic issues of the terms and conditions of work, the parties to the CAW/Magna Agreement seek to realize the potential benefits of
cooperation for both employers and employees outlined above.
National Agreement, supra note 54 at 37, quoted at supra note 55. See Chapter I, above, section B.2. 114
C. The Risks of Cooperation at Work
The literature on labour-management cooperation has offered a number of
cautions and criticisms, particularly in the United Kingdom where the institutionalization
of policies promoting cooperation has led to a remarkable breadth of scholarship on the
subject. The most basic complaint is that proponents of cooperation can point to relatively few examples of successful, enduring cooperative relationships between labour
and management. Other authors suggest that arguments for cooperation understate the
64 impact of both market and labour market conditions on the outcomes of cooperation.
Still others point to the vague and confused understandings of cooperation held by unions, workers, and employers, and wonder whether any useful consensus can be reached on the terms of a truly cooperative relationship.
Finally, the strongest warnings about the dangers of cooperation have come from
Marxist and socialist authors, who view the theory's diminished emphasis on labour militancy and conflict of interest as a threat to workers, unions, and the labour movement
See e.g. Guest & Peccei, supra note 3; Jean Jenkins, "Gambling Partners? The risky outcomes of workplace partnerships" (2007) 21 Work, Employment and Society 635; Nicolas Bacon & Paul Blyton, "Union Co-operation in a context of job insecurity: Negotiated Outcomes from Teamworking" (2006) 44 British Journal of Industrial Relations 215 [Bacon & Blyton]; Miguel Martinez Lucio & Mark Stuart, "Assessing the Principles of Partnership: Workplace trade Union Representatives' Attitudes and Experiences" (2002) 24 Employee Relations 305 [Martinez Lucio & Stuart]; Sarah Oxenbridge & William Brown, "The Two Faces of Partnership?" (2002) 24 Employee Relations 262 [Oxenbridge & Brown, "Faces"]; Peter Samuel, "Partnership Consultation and Employer Domination in Two British Life and Pension Firms" (2007) 21 Work, Employment and Society 459. Kelly, supra note 48 at 14; Beaumont & Hunter, supra note 11 at 173. 64 Bacon & Blyton, supra note 62 at 235. See, for example, Martinez Lucio & Stuart, supra note 62. 115
generally. This is, by far, the most important critique to explore for the purposes of this
analysis, mirroring as it does so much of the criticism leveled against the CAW/Magna
agreement. The arguments made by critics are useful insofar as they shine a light on the
important issue of management's sincerity in seeking a cooperative relationship with its
employees. They are unhelpful, however, in their exclusive focus on conflict, domination
and exploitation, and the inflexibility inherent that rigid ideological stance.
As this section will show, there are risks to cooperation, and a potential for
conflict which cannot be scrubbed away by even the most well-intentioned efforts to
align the interests of labour and management. These risks do not preclude a
cooperatively-acting union offering independent representation of the interests of
employees, however, and indeed such independent representation is essential to genuine
cooperation at work. The challenge facing parties who are sincere in their efforts to craft a cooperative partnership is to recognize and anticipate the sites of potential conflict between them, and to institutionalize structures to manage that conflict without undermining the broader cooperative tone of their relationship. Along with persistent dedication to the objective of cooperation, independent representation of the interests of both workers and management is essential to this task.
See, for example, Kelly, supra note 48; see also Frances Raday, "The Decline of Union Power - Structural Inevitability or Policy Choice?" in Joanne Conaghan, Richard Michael Fischl & Karl Klare, eds., Labour Law in an Era of Globalization (Oxford: Oxford University Press, 2002) 375. See Chapter II, Section E, above. /TO Sarah Oxenbridge & William Brown, "Achieving a new equilibrium? The stability of cooperative employer-union relationships" (2004) 35 Industrial Relations Journal 388 at 401 [Oxenbridge & Brown, "Equilibrium"]; Stephen J, Deery & Roderick D. Iverson, "Labour-Management Cooperation: Antecedents and Impact on Organizational Performance" (2005) 58 Indus. & Lab, Rel. Rev. 588 at 592 [Deery & Iverson]. 116
1. Is There Such a Thing as Genuine Cooperation?
Some authors suggest that, regardless of the outward appearance of management's motives, and regardless of any benefits which seem to flow from the establishment of a cooperative relationship, it will never be in the interests of workers to cooperate with their employers. Cooperation at work is labeled "a recipe for 'union 69 incorporation'," and the theory on which it is founded is claimed to be dominated by a management and human resources agenda.
One of the strongest rejections of cooperation at work has been offered by John 71 Kelly in Rethinking Industrial Relations. He suggests that literature on cooperative labour relations and theories of social partnership are dominated by employer-centric 72 ideals and values. He castigates cooperative theorists for failing to deal with, in his terms, "the malign face of employer power: actions such as the derecognition of unions 73 and victimization of union activists." Finally, and most importantly, he rejects the central argument of many works on social partnership and cooperative labour relations, namely that labour-management cooperation represents a mutually-beneficial response to
69 Beaumont & Hunter, supra note 11 at 173. 70 Kelly, supra note 48 at 14, but see the strong refutation of this claim in Thomas A. Kochan, "On the Paradigm Guiding Industrial Relations Theory and Research" (2000) 53 Indus. & Lab, Rel. Rev. 704 [Kochan, "Paradigm"]. 71 Kelly, ibid. 72 Ibid, at 14. 73 Ibid. 117 a sea change in labour relations which renders militancy and adversarialism on the part of
74 unions both unproductive and self-destructive.
Kelly casts the period from the mid-70s until the late 1990s (the time of writing of his argument) as a period of increasing antipathy toward unions on the part of 75 management and the state. Making the case for a general "growing tide of employer hostility" toward unions, he questions whether the adoption of a cooperative stance toward management is of any value, noting that "It is, after all, difficult for a union to construct a partnership with an employer who would prefer that the union simply did not exist." Ultimately, Kelly argues that cooperation is an ill-advised response to
77 inaccurate perceptions of the decline of worker collective action. According to Kelly, instead of declining, collective action may be on the verge of an upswing which will lead to a renewal of more radical, militant unionism, and the rejection of management efforts to maintain their dominance over workers through cooperative labour relations and social
78 partnership.
2. Questioning Exploitation and Domination
As Kelly states, mobilization theory is a modern branch of Marxism, with roots in its discourses of exploitation and domination. Mobilization theory suggests that collective action arises in response to a collective sense of injustice, which Marxism suggests arises
74 Ibid at 14-15. 75 Ibid, at 62-63. 76 Ibid. 63. 77 Ibid, at 126. 78 Ibid, at 130. 118
from the "inevitable exploitation and domination" of subordinate workers by "ruling
79 class" management. The exploitation and domination produces an unavoidable conflict of interest between the classes. This conflict of interest "lies at the heart of the capitalist
80 employment relationship." A sense of injustice arises when workers awaken to the
81 reality of their oppression.
Exploitation and Domination, the two pillars of Marxist thought in Kelly's work, require further exploration. Exploitation for Kelly refers to the employers' use of employees' capacity to work to produce value, in the form of their wage or salary, plus
82 surplus value, to cover "profit as well as interest, rent and dividends to shareholders."
Domination is less explicitly defined, but ultimately seems to be founded on the authoritarian structures of the employment relationship, the hierarchical command-and-
83 control model of directing the workplace. These two principles of domination and exploitation form the foundation of Kelly's critique of partnership and cooperation at work.
Kelly argues that the willingness of a cooperative employer to offer a greater degree of employee involvement in the direction of the workplace is not actually in the interests of the employees, because the employer only seeks to legitimize their
79 Ibid. 25. 80 Ibid. 81 Ibid. 64. 82 Ibid. 25. 83 Ibid. 119
84 domination. By offering employees the illusion of input on the terms and conditions of work, while retaining a firm grasp on the reins of power, the employers mask the 85 injustice of their domination, undermining the foundation for collective action. They will never grant the employees any real influence, and indeed they will seek to disperse and dilute avenues for independent employee action, including traditional adversarial collective bargaining.
Even among those authors generally opposed to cooperative labour relations, however, some present a view inconsistent with the bleak picture painted by Kelly. Some employers, they argue, engage in collective bargaining not because they are compelled to by the strength of their employees' union, but because they believe it to be an appropriate 87 way of guiding their relationship with their employees. Some even bargain out of a 88 belief in industrial democracy, or out of respect for their employees. A genuine interest in alternatives to authoritarian models of workplace governance on the part of even a few employers would seem to contradict Kelly's fundamental claim that management, as the ruling class, seeks only to maintain and legitimize its own domination. Similarly, the willingness of employers to explore options for profit sharing, bonuses based on performance, and other ways of dividing the profit generated by the labour of their workers would seem to undermine the exploitation thesis.
84 Ibid, at 62-63. 85 Ibid. Of. Ibid, at 64. 87 Brown & Oxenbridge, "Future," supra note 11 at 65. 88 Ibid. A genuine Marxist theorist could no doubt offer any number of arguments for the continued veiled presence of the "malign face of employer power" in actions which
89 ostensibly seem to undermine the basic tenets of domination and exploitation. It will always be possible to claim that efforts on the part of employers to become more socially responsible, to respect the rights of their workers and enhance their opportunities to participate in workplace governance are veiled efforts to maintain dominance.
The point is, however, that this focus of Marxist approaches to labour relations on a single motivation (domination) as animating management is singularly unhelpful in considering the risks and benefits of a cooperative approach to the labour-management relationship. It must be recognized that some conflict in the relationship is unavoidable.
Because workers and their employers are ultimately dividing a limited resource between 90 them, the interests of labour and management can never perfectly align. However, an exclusive focus on conflict suppresses the reality that a degree of cooperation is necessary for the healthy functioning of even a traditional North American collective
91 bargaining relationship, a fact which even Kelly acknowledges, albeit grudgingly.
Kelly's analysis, and Marxist and post-Marxist theories of labour relations more generally, do offer one valuable insight into the danger of cooperation. While Kelly may overstate the prevalence of the problem, it is indisputable that some employers have only a very limited form of cooperation in mind when they pursue such a relationship with
89 Kelly, supra note 48 at 14. 90 Ira B. Lobel, "Labor-Management Cooperation: A Critical View" (1992) 43 Labor L.J. 281 at 288 [Lobel], quoted in Bernard Adell et al, eds., Labour and Employment Law: Cases, Materials, and Commentary, 7th ed. (Toronto: Irwin Law, 2004), at 439 [Adell et al.]; see also Fredman, supra note 11 at 24. 91 Kelly, supra note 48 at 25. their employees. This raises the real issue which lies at the heart of most fears of
cooperation, and which undermines the parties' ability to build the trust necessary for a
successful cooperative relationship: the danger that the other side may not be entirely honest about its motives.
3. The Danger ofDisingenuousness
Cooperation is a broad concept. As we have seen, employees overwhelmingly want cooperative management. At the same time, management wants cooperative employees. This simplified image of the goals of labour and management in crafting their relationship masks the real danger of cooperation. Kelly's argument allows us to look past the simplified view of cooperation, to see the complexity of the possible motives animating each side. In considering a more sophisticated view of cooperation, the real risks of disingenuous overtures of cooperation become apparent.
From management's perspective, problems arise where union representatives use cooperation as a backdoor to a more traditional adversarial relationship. Management fears that it might agree to cooperate in the union's effort to establish systems of representation for its workers, only to have the union use that cooperation to build 92 support for an aggressively adversarial, short-termist campaign of negotiations. Thus, unless the union is sincere about wanting a cooperative relationship, the employer risks being trapped in precisely the inefficient, conflictual pattern of relations which it sought to avoid by resisting traditional unionism.
Kaufman, supra note 13 at 124-25. From the union and employees' perspective, the biggest danger is that management will exploit overtures of cooperation to pacify its employees and to 93 marginalize their representatives. In other words, they are concerned that management's view of cooperation encompasses only "management that smiles and says
94 nice words while it does what it wants." Management must be sincere in seeking genuine and mutual cooperation with its employees and their representatives, or the employees risk being trapped in a system of ineffectual representation and continued limits on their participation in workplace governance, all at least superficially legitimized by management's adoption of a "cooperative" approach to the employees.
It is difficult to set out any specific rules for the detection of an ulterior motive in negotiating the terms of a cooperative relationship. If an employer seeks to broker a hasty deal for a "cooperative" relationship with one union in the midst of an organizing campaign by another, some suspicion of management's motives on the part of the latter union would be understandable. On the other hand, if a union with a reputation for aggression and militancy wanted to negotiate a cooperative relationship with a resistant employer it had failed to organize in the past, some hesitancy on the part of the employer would similarly not be surprising.
Sandra Fredman suggests that this is precisely what has happened on an institutional scale with the shift to a policy of partnership under recent Labour Party governments in the United Kingdom: Fredman, supra note 11 at 24. She describes the goal of the policy changes, and their likely outcome, not as cooperative labour relations but as cooperative employees. She blames this questionable policy turn on an attempt to eliminate conflict completely from the employment relationship, a goal which may be ultimately impossible: ibid. 94 Freeman & Rogers, supra note 2 at 58. These examples underline one consistent point in the existing literature on the subject: a great deal of the difficulty in establishing a cooperative relationship must
95 eventually come down to trust. The existing impressions the parties have of one another will to a great extent determine the degree to which they are open to tentative exploration of a more cooperative relationship. These impressions are, of course, 96 predominantly dependent on the past course of their relationship. A positive history between the parties is likely to offer a stronger foundation for cooperation, while the relationship will probably be more difficult to build where the parties have had few or no prior dealings.
If predicting and detecting disingenuousness is difficult, then much depends on the ability of the parties to plan to prevent it. One way of achieving prevention may be through a high degree of formalization of the terms and processes of the cooperative relationship. If the framework of cooperation is structured from the outset of the relationship, it may be less susceptible to being captured by actors on either side who would misuse it. This will be reinforced by the institutionalization of mutually agreed- upon procedures for the independent resolution of any disputes which may arise.
The institutionalization of terms which will have this effect requires some equality of bargaining power in the parties' first negotiations toward the relationship. An independent union which enjoys strong support from its membership represents a credible partner for cooperation in a way that a weak one may not. An independent union
95 See Thomas A. Kochan, "Updating American Labour Law: Taking Advantage of a Window of Opportunity" (2007) 28 Comp. Lab. L. &Pol'y J. 101 at 120; Oxenbridge & Brown, "Faces," supra note 62 at 274. 96 Oxenbridge & Brown, "Faces," ibid, at 274; Guest & Peccei, supra note 3 at 231-32; Oxenbridge & Brown, "Equilibrium," supra note 68 at 401. 124 will also be better able to influence the development of the cooperative relationship, while a relatively weak union may be pushed into a less advantageous situation.
Any whiff of disingenuousness is likely to be sufficient to ruin the trust which is required to build a genuinely cooperative relationship. Indeed, in many cases suspicion on the part of labour, management, or both that the other side would abuse a cooperative regime may be enough to prevent such an experiment from ever getting off the ground. In some cases, suspicion can be overcome. In others the parties may never be able to successfully move past it to establish a functional cooperative relationship.
D. Cooperation and Independent Representation
While it has the potential to benefit both employees and employers, cooperation clearly carries considerable risks, the most prominent of which for the union is the potential erosion of their capacity to provide independent representation to their employees. How serious is this risk? As discussed above, some critics argue that the erosion of a union's independence is not a risk at all, but rather an inevitability. This section will argue that, on the contrary, cooperation at work is more than capable of coexisting with independent representation. Indeed, the presence of a union which is regarded by its members as strong, independent, and effective supports the development and maintenance of a cooperative relationship.
1. Can a Genuinely Independent Union Cooperate with Management?
What precisely does it mean for a union to be independent in representing its employees? Union independence is protected under traditional models of collective 125 bargaining through prohibitions in labour relations legislation against employer-
97 dominated unions. For example, in Ontario, one provision bars from certification any union in which the employer "has participated in its formation or administration or has 98 contributed financial or other support to it." In Nova Scotia, certification is denied to any union "the administration, management or policy of which is, in the opinion of the
Board, dominated or influenced by an employer, so that its fitness to represent employees
99 for the purpose of collective bargaining is impaired." These statutory protections tell us what labour boards view as a threat to union independence: management interference in the creation, internal organization and direction of the union, whether direct or indirect.
When it occurs, direct management interference in the formation or organization of a union may be readily apparent. In the past, examples have included overt. management support for a compliant union over an independent one, or support for an in- house "employee association" over an established union. Recent critics of cooperation are often more concerned about indirect interference, occurring when the leadership of the union becomes increasingly attuned to the interests of the employer. When this happens, the leadership of the union may fall out of touch with the membership, valuing
97 See, for example, ONLRA, supra note 6, s. 15; Trade Union Act, R.S.N.S. 1989, c. 475, s. 25(15) [NSTUA]; see also the prohibition on union membership for employees with managerial responsibilities, for example in ONLRA, ibid, s. l(3)(b). 98 For example, ONLRA, ibid., ss. 15, 53, 70. 99 NSTUA, supra note 97, s. 25(15). See the discussion in Chapter V, section B, below, for a further elaboration of the statutory regulation of union independence. For a more thorough discussion of the legal aspects of employer domination of trade unions, see Chapter V, Section B, below. their relationship with the employer more highly than the interests of their members.
Ultimately, this may lead to "representation" which is of little value to the represented employees.
Maintaining independence from this sort of influence is challenging. It can happen gradually, beneath the surface of an apparently functional and effective system of representation. Preventing it requires close attention on the part of the membership. The members must be ready to respond to any divergence between their interests or desires and those articulated by their union's leadership. In the first place, this requires members who are willing to take part in the union's democratic processes. Apathy on the part of
102 the membership will offer no help in maintaining the union's independence. Even assuming engaged, enthusiastic debate among the members, this requires protection for democracy in the union's internal processes of representation; there must be entrenched mechanisms for expressing the will of the membership, and for binding leaders to that .„ 103 will.
Union independence from indirect influence, in other words, depends on the presence of strong democratic structures within the union, and the active participation of the membership in those structures. Firmly institutionalized structures for discourse and
102 Motivating the shop-floor membership to participate in policy debates may be a greater practical problem for the union than protecting the space for those debates to take place. One author noted the pervasiveness of voter apathy in American national union elections, though he suggested this may have to do with alienation between the National leadership and the members: George Strauss, "What's Happening inside U.S. Unions: Democracy and Union Politics" (2000) 21:2 Journal of Labor Research 211, at 222-23. 103 The union's internal processes of representation must protect minority interests as well as articulating the will of the majority. This goes to the legitimacy of the union's representation, which as the next section will discuss, affects the union's capacity to remain independent: see below, Chapter IV, Section D. participation within the union may reveal and correct for management influence on
particular elements in leadership. On the other hand, the erosion of debate over policy
and direction within a union, authoritarian leadership structures, or limits on membership
participation in decision making within a union will make it more susceptible to
104 diminished influence in building a close relationship with management.
The CAW is entering the Agreement from a strong position, in this respect.
Leaving aside for the moment the rhetoric of the Agreement's critics, the CAW is a far
cry from a "company union." The Union is enormous - the largest in the private
sector in Canada. Its membership is incredibly diverse, extending far beyond the auto
107 parts industry from health care to the fisheries. It is also approaching the Agreement
108 from a history of resistance and strong, independent representation. The CAW may have a better chance of remaining independent even in a cooperative relationship as close
109 as that set out in the Agreement than a smaller or less experienced union.
104 The question of the importance of internal democracy for maintaining independent union representation will be canvassed thoroughly in Chapter IV, below. As they have been labeled in, for example, Fraser et al, supra note 1. See above, Chapter II, Section C, for a more comprehensive review of the origins and background of the CAW. 1 Oft See Chapter II, Section C, above. 107 ibu. mibic 109 The debate within the CAW was also lively, at least upon the announcement of the Agreement (See above, Chapter II, section E). Since the membership ratified the Agreement in December, however, things have quieted down (publicly, at least). It remains to be seen whether a fresh round of critical debate will appear as new developments arise in the relationship between the CAW and Magna. Finally, it is important to distinguish between independence and adversarialism.
While independence implies genuine and democratic representation of the wishes of the union's membership, it does not necessarily imply resistance to the employer's every move. Independence requires power on the ground, in the form of strong democratic membership organization backing up (and questioning) the actions of the leadership, but it does not require constant conflict with the employer. Independence requires that a union be capable of debating the decisions and policies of the employer and reaching its own conclusions about their advantages and disadvantages for the membership. It requires that the will of the membership be reflected in the actions of the unions, but it does not bar the union from building a cooperative relationship with a particular employer, if doing so accords with that will.
2. Is there a Place for Independent Representation in a Cooperative Relationship?
As was shown above, cooperation can be useful for employers in promoting commitment among employees to the objectives of the firm, in harnessing the full power of employees' knowledge and skills, and in promoting innovation and creativity in the performance of their jobs. Independent representation of the interests of employees is an important element in realizing these benefits of cooperation.
The type of cooperation required to engender commitment to the success of the firm is a far cry from mere complacency. Moreover, there is a decreasing value in complacent employees in an economy which relies more and more on knowledge-based,
See above, section B.l. 129 high-skilled work. Complacency offers few of the benefits of engaging and expanding
112 the human capital of the workforce, outlined above. Many of the fears about the corrosive effect of cooperation nonetheless remain founded on the belief that when
113 management says "cooperation" what it means is complacency.
If all management wants from employees is a lack of resistance to its agenda, then willingly allowing independent representation of their interests does seem counter intuitive. Independent representation may breed resistance to employer initiatives or militancy, while offering few benefits of its own for an employer seeking mere complacency. Where management seeks commitment, however, that objection is no longer available. There remains some risk of independent representation giving rise to greater militancy or resistance to employer direction, but establishing systems of independent employee representation and sharing power over some decisions also 114 promotes commitment among employees and the union to organizational goals. It may also offer distinct benefits for firm performance. The greater the good-faith
See Langille, supra note 25 at 135; see also Wisman, supra note 27. 112 au. 113 For example, the reference in Fraser et al, supra note 1, to "Mackenzie King-style 'company unionism'"; Kelly, supra note 48 at 61-62. 114 Kaufman, supra note 13 at 124. Ibid; Adrienne E. Eaton & Paula B. Voos, "Unions and Contemporary Innovations in Work Organization, Compensation, and Employee Participation" in Lawrence Mishel & Paula B. Voos, eds, Unions and Economic Competitiveness (Armonk, NY: M.E.Sharpe, 1991) 173 [Eaton & Voos]; Maryellen R. Kelley & Bennett Harrison "Unions, Technology, and Labor-Management Cooperation," in Mishel & Voos, Unions and Economic Competitiveness, ibid. 247 [Kelley & Harrison]. commitment of the employer to the representation system, and the broader the scope of authority shared, the more successful this strategy is likely to be.
This finding is supported in much of the British literature, both that which advocates cooperation at work and that which cautions of its hazards. The most successful cooperative relationships seem to be the ones which provide for a high degree
117 of employee participation in decision making, and those where the employer is
118 accepting or supportive of the union's right to represent the employees. In one study in particular, a strong correlation was found between perceptions of a healthy, cooperative work environment and a union which was respected by both management and employees as "a legitimate representative of the collective interests of its
119 membership." Contrary to what might be called the conventional wisdom, even
120 traditional unionism may offer benefits for firm efficiency and productivity.
Fears among employers about the compatibility of independent representation and cooperation mirror those outlined above, with respect to the potential for disingenuousness on the part of the union. Kaufman worries that unions born and bred in traditional collective bargaining may promote "an adversarial 'we versus them attitude,"
121 undermining the potential for building a long-term mutual-gains relationship.
Furthermore, he suggests that such unions may be driven to focus on short-term
Kaufman, Ibid. 117 See Guest & Peccei, supra note 3. 118 Oxenbridge & Brown, "Equilibrium," supra note 68 at 401. 119 Deery & Iverson, supra note 68 at 604-05. 120 See Eaton & Voos, supra note 115; Kelley & Harrison, supra note 115. 121 ma. 131 maximization of benefits for their members (which he describes as "trying to capture as much profit as possible without driving the firm into bankruptcy") which may further
122 undermine the spirit of cooperation.
These fears speak more to the culture of adversarialism common in traditional labour relations than to independent representation itself. The same practices which help build a functional cooperative relationship may ameliorate these concerns. Habits of full disclosure and broad information sharing between management and the employees' representatives may help to address the second point, of short-term interest maximization at the expense of long-term gains. Opening up the decision making processes, both in terms of disclosure of the factors and reasons influencing the decisions made, and in terms of the opportunities for participation by employees and their representatives may address in part the first concern, that traditional union representation might engender a particularly adversarial attitude in employees. On balance, these fears are far from insurmountable, and do not outweigh the potential gains in legitimacy, efficiency, and commitment from introducing and supporting a system of independent representation.
As the above discussion shows, cooperation is not necessarily corrosive to independent representation, and independent representation does not necessarily inhibit cooperation. The challenge for the parties, however, will be to reach a point in their relationship where independence and cooperation can exist in stability. Building a cooperative relationship, and building the trust needed for that relationship to succeed, will require efforts to overcome the legacy of the adversarialism which has characterized
122 Ibid. the last hundred and fifty years of labour relations in North America. To avoid falling back into the same adversarial patterns will require a sincere effort to manage and structure the unavoidable disputes which stem from the conflicts of interest inherent in the labour-management relationship. Institutionalizing and formalizing these structures is ultimately necessary for the survival of the cooperative labour-management relationship.
E. Containing Conflict to Build Cooperation
The labour-management relationship, like any other, necessarily involves a measure of both conflict and cooperation. No matter how well-intentioned the parties to the relationship, no matter how dedicated they may be to building a cooperative relationship, it is pure naivete to believe that conflict between them can ever be
124 completely suppressed. While the interests of labour and management overlap enough to offer a firm foundation for cooperation, always lurking in the background is the fact that a dollar spent on labour costs is a dollar less in profit. No cooperative project will ever completely eliminate this fact, and the tension which it engenders. The task for a cooperative model of labour relations is to find a way to overcome this conflict, to allow space for it to take place and to run its course while preserving the cooperative relationship as a whole.
Roy J. Adams, supra note 4 at 70. See Lobel, supra note 90. 133
. 1. Institutionalizing Structures for Conflict Resolution
Suppressing conflict entirely is impossible, but both the union and management must also recognize that conflict brings considerable destabilization to the relationship. If the resolution of conflict is left to ad hoc processes, the parties have no guarantee that their relationship will not disintegrate the first time they encounter a significant point of disagreement. The structure of their relationship must therefore anticipate those disagreements before they arise and provide for their resolution while maintaining stability in the broader terms of the relationship.
Little thought is required to come up with some critical points of disagreement in the labour-management relationship: organizing, collective bargaining, and grievance resolution offer immediate examples. Labour legislation addresses these same points of conflict, in its effort to promote industrial peace. The terms of labour legislation fail to go far enough in constraining conflict for the maintenance of a viable cooperative relationship, however. While economic conflict is closely restricted, the supervision of the Labour Board still offers a largely adversarial, adjudicative model of dispute
125 resolution. Moreover, bargaining under the legislative scheme is still understood to be structured primarily as a contest of economic power, rather than as an integrative search for a way of living together. The legislative structure for labour relations offers a means of resolving the conflicts between the parties, but does little to protect and sustain their relationship.
125 Although there is evidence of a growing interest among Labour Boards and policy makers in less adversarial methods, see for example the purposes of the legislation, as described supra note 6, and the inclusion of section 50 in the ONLRA, supra note 6, which explicitly authorizes consensual referral to mediation/arbitration. 1 Jfi Grant, supra note 4, quoted in Adell et al, supra note 90. 134
The parties to a cooperative relationship are driven to pursue their own structures for containing conflict in these particularly volatile areas. In the CAW/Magna
Agreement, the parties have attempted to formalize dispute resolution procedures in each of these areas from the outset of their relationship, and to entrench those procedures in an
Agreement controlled through high-level negotiations. The latter move is important where the Agreement is as broad as that between the CAW and Magna. The higher levels of leadership within each organization are less likely than those on the ground to succumb to the emotional effects of disagreement, and more likely to be able to pursue
127 the long-term stability of their relationship. Formalizing and institutionalizing the processes to be followed in the event of a dispute offers a stabilizing effect which counterbalances the impact of the unavoidable conflicts which may arise in the relationship.
Setting out a binding process for dispute resolution avoids actions by either side in the heat of a disagreement which undermine the trust between the parties. In the organizing phase of the CAW/Magna agreement, this has been achieved by excluding recourse to the Labour Board in favour of dispute resolution by a mutually agreed-upon, independent neutral, who can be restricted to enforcing the terms of the Agreement rather
128 than exclusively those of the Labour Relations Act. During the term of the National
Agreement, the parties have substituted a lengthy process of mediation and settlement
127 The implication of this is that some limits on the capacity of CAW members at Magna to democratically determine the course of their own representation may be required to stabilize the relationship between the Union and the Company, and to institutionalize the constraints on conflict described here. See below, Chapter IV, section D for a discussion of the impact of these limits on the Union's independence and on the legitimacy of its representation. 128 See FFA, supra note 7 at 22. 135 discussions for the traditional grievance process, while still retaining ultimate recourse to
129 independent arbitration. During the renegotiation of the Agreement, the parties have cast aside reliance on economic sanctions to advance their bargaining demands, arguably the most divisive and destabilizing form of labour-management conflict, in favour of the 130 binding referral of all disputes to interest arbitration. It is this last change, possibly the most important, which has attracted the most criticism from commentators on the
131 A + Agreement.
2. The Legitimacy of Limits on the Right to Strike
The legitimacy of agreed-upon limits on the use of economic sanctions is a distinct question from the wisdom of those same limits. The answer is relatively straightforward. The legitimacy of limits on strike action depends on the approval of those limits by the affected membership in an independent process of democratic
132 discourse. Provided that the membership of the union freely approves of the limits after a process of discourse as uninhibited as possible, there is no reason to question the legitimacy of the limits. As the process of approval departs from this model, however, for example through limits on the debate, on the availability of information, or on the
129 National Agreement, supra note 54 at 36-41. 130 Ibid, at 42. 131 See e.g. Fraser et al., supra note 1; see also Ken Neumann, "In remaking unionism, there are core principles to maintain" Globe and Mail (7 December 2007), online: Globe and Mail
133 diminished.
The structure of the CAW/Magna Agreement complicates an assessment of the
legitimacy of the revocation of the right to strike. Because the Agreement was negotiated before the CAW acquired bargaining rights for any significant number of Magna
employees, those employees are being presented with what amounts to a fait accompli when the CAW arrives to offer them representation - the no-strike clause has already been negotiated and implemented. The employees are offered a single vote, for or against 134 representation by the CAW under the National Agreement. Furthermore, the revocation of the right to strike is intended to be permanent. With the turnover of employees at the Company, the workers who initially voted to ratify the National
Agreement may not be the same ones who are later affected by the loss of the right to strike.
The latter issue may ultimately be more problematic than the former. Although
Magna employees make their decision with a single vote, it remains open to them to accept or reject the National Agreement and the CAW without penalty. The Union and the Company remain ostensibly committed to upholding the employees' freedom of choice, and employees will have an ample opportunity to discuss the representation 135 offered by the CAW before making their decision.
133 134 See ibid, at 108. FFA, supra note 7 at 22; see Chapter V, Section D.2.b.ii, below, regarding the legal validity of the combined representation/ratification vote. 135 Ma. 137
The problem of turnover is more significant. While turnover is an issue in any collective agreement, here where the revocation is intended to be permanent through subsequent rounds of bargaining and not open to renegotiation, it is not simply a matter of waiting for the open season and launching a decertification or displacement application. As Lewchuk and Wells note, employment at Magna has been relatively 137 secure to date, so day-to-day turnover may not be particularly high. Nonetheless, workers retire and workers die, and their replacements would continue to be bound by the revocation of the right to strike with no opportunity for democratic input of their own.
While the immediate legitimacy of the revocation may not be problematic, in the long run a crisis of legitimacy may arise which could destabilize the Agreement.
3. The Wisdom of Limits on the Right to Strike
Restricting the right to strike protects the cooperative elements of the
CAW/Magna Agreement from the divisive and destabilizing effect of a drawn-out contest of economic strength, while allowing disputes arising from the inherent conflicts of interest in the labour-management relationship the space to arise and be resolved. Critics attack the revocation of the right to strike, however, on the ground that it robs the CAW members at Magna of their only source of bargaining power in dealing with management,
See also Chapter V, Section C.4, below, regarding the complications posed by the bargaining unit definition in the CAW/Magna Agreement for employees seeking the decertification or displacement of the CAW. 137 Wayne Lewchuk & Don Wells, "When Corporations Substitute for Adversarial Unions: Labour Markets and Human Resource Management at Magna" (2006) 61 R.I. 639 at 649. 138
1 QQ leaving them to be represented by a "phony, defanged union." It is true that for employees, losing the capacity to strike means losing a significant source of bargaining power. What these arguments fail to recognize is that there are many sources and many forms of power in the bargaining process. The economic power of a union's ability and willingness to engage in labour action to force their position on management is only one of those. The diminished economic power brought about by agreeing to forego the use of economic sanctions may be amply compensated elsewhere in the parties' relationship.
Kelly makes a convincing argument for disengaging the concepts of economic sanctions and power: "unions may strike when they are weak; strong unions may not need to strike at all; ... and strikes emerge from the interaction between the parties and 139 will therefore reflect the power of the employer as well as that of the union."
Moreover, despite the exaltation of the strike as the ultimate (indeed, the only) tool of workers in bargaining, it must be remembered that strikes can just as easily be lost as won by the union. A particularly bitter strike may have a devastating effect not only on the employer's business, but on the lives and families of the workers as well. Agreement between the parties to forego the use of economic sanctions does not necessarily reflect the weakness of the union.
Kelly advocates a broader understanding of union power in the labour- management relationship. Drawing on mobilization theory, he argues for a view of power as extending beyond the capacity to take economic action and into the terrain dubbed 'the
138 Ed Broadbent, "No Place for Phony, Defanged Unions" Globe and Mail (30 October 2007), online: Socialist Project
Kelly's conception of power has much in common with Habermas' understanding of communicative power, or the "motivating force of good reasons", generated through 141 debate and argumentation. Communicative power implies far more than raw economic bargaining power, extending to include opportunities for rational influence on the 142 direction of the debate, and on the actions of the other parties. Opportunities for the parties to bring communicative power to bear on their relationship will be greater as the number of points of contact, consultation and debate between management and labour increases. Even beyond the application of communicative power, opportunities for horse trading or swapping concessions on various issues to reach agreement may arise as the parties increase the number of issues which are subject to codetermination or on which
143 the Union is consulted. The more areas in which the union is involved, the broader their potential influence.
Restricting the right to strike in the CAW/Magna Agreement involves not only the single act of replacing strikes with interest arbitration as a way of resolving bargaining
140 _ . . ,, Ibid, at 55. 141 Habermas, supra note 132 at 147. 143 This sort of bargaining is distinguished from communicative action, and called instead "strategic action" in Habermas' parlance: ibid, at 148. impasses. It must be viewed in the light of the entire framework for co-determination set
out in the Agreement. The Agreement institutionalizes numerous points of consultation between labour and management. Joint labour-management committees are incorporated
into the structures of workplace governance at every level, and the committees have a
144 broad mandate for negotiation and policy-making. The claimed goal for the process in
144 See above, section B.3; there is even recognition of the need for participation and input into decision making from employees included in the management rights clause in Article VII of the National Agreement: supra note 54, Art. 7, at 48: The parties are committed to providing Employees with the opportunity to have meaningful input into operational issues as well as other matters having an impact on their workplace.
Notwithstanding this commitment, the ultimate management of the Company and the direction of the workforce are the responsibility of the Company. The Union recognizes that the Company has the exclusive right to manage all aspects of its operations except where such rights are expressly modified by the terms of this Agreement.
While the second paragraph of the Article is relatively typical, the first represents an extremely unusual move, and a strong gesture from Magna of its commitment to cooperation and inclusive participation in decision making. Compare the ostensibly "cooperative" collective agreement between CAMI and the CAW, which contained a more typical (although strongly worded) detailed management rights clause with no role whatsoever acknowledged for the union:
The Union recognizes the right of CAMI to hire, promote, transfer, demote, and lay off employees and to suspend, discharge, or otherwise discipline employees for just cause subject to the right of the employee to lodge a grievance in the manner and to the extent herein provided.
The Union further recognizes the right of CAMI to operate and manage its business in all respects, to maintain order and efficiency in its plant, and to determine the location of its plant, the products to be manufactured, the scheduling of its production and its methods, processes, and means of manufacturing. The Union further acknowledges that CAMI has the right to make and alter, from time to time, rules and regulations to be observed by employees, which rules and regulations shall not be inconsistent with this agreement. (CAW Local 88 & CAMI Automotive Inc., "Collective Agreement Between CAMI Automotive Inc. and CAW Local 88" (17 141 each case is to jointly determine the course of the parties' relationship, and of numerous 145 aspects of the Company's business. Even as the Agreement restricts the economic power of CAW members at Magna, it opens up new avenues of influence for employees on the direction of the relationship between the Company and the Union, new opportunities for the employees' representatives to take communicative or strategic action on their behalf.
Studies of organizations which have had success in protecting workers without access to traditional forms of labour action are also instructive for a diverse view of power. In a recent article, Osterman considered the rise of community organizations as an 146 alternative to traditional unions. The organizations he described were not unions; they began as voluntary associations for the betterment of workers and communities in various 147 regions around the US. While they assumed representative functions, they had no access to the traditional union tools of strikes and other labour action - their focus was
September 2007 - 19 September 2010) [unpublished, on file with author] at 2-3.)
The differences between these two provisions reflect clearly the depth and sophistication of the cooperative project at Magna. CAMI's management rights provision betrays precisely how much power CAMI intended to preserve for itself in its "cooperative" relationship with the Union. The management rights clause in the National Agreement, on the other hand, is in keeping with the tone of the rest of the Agreement. 145 „„ . „ FFA, supra note 7 at 6. 146 Paul Osterman, "Community Organizing and Employee Representation" (2006) 44 British Journal of Industrial Relations 629 at 636-37 [Osterman]; see also Chris Rhomberg & Louise Simmons, "Beyond Strike Support: Labor-Community Alliances and Democratic Power in New Haven" (2005) 30:3 Labour Studies Journal 21 [Rhomberg & Simmons]. 147 Osterman, ibid, at 631. The organization which Osterman focuses on, the Industrial Areas Foundation (IAF), is an "organization of organizations," bringing together churches, schools, unions, and more diverse groups for the purposes of representation and political action: {ibid, at 630-31). 142 broader than traditional representation in a single workplace. Yet these organizations produced outcomes which were highly beneficial for workers: they established training programs and health clinics, influenced government and employer policy, and even succeeded in organizing groups of unorganized employees in the meatpacking
• A +~ 148 industry.
The network of organizations Osterman describes clearly has a substantial base of independent power, lending them significant clout even in areas of expertise normally associated with more traditional labour organizations. If this power does not come from the potential for labour action, where does it come from? Osterman identifies the primary source of the power as energetic participation on the parts of the individuals who belong 149 to the organizations which make up the broader network. Power is founded on the dedication, commitment, and participation of the ground-level membership, and manifests in the form of effective influence on governments of all levels, as well as employers. The group's power also manifests in a culture of resistance and adversarialism, which is to be expected from an organization founded to exert political pressure. It should be noted, however, that this culture of adversarialism did not prevent cooperation with government and business groups in the establishment of
148 Ibid, at 636. 149 Ibid, at 638. 150 Ibid. 151 Ibid, at 643-45. 143 training programs, cooperation which survived even serious conflict between the parties on unrelated issues.
Osterman's study offers concrete support for the argument that power is much more than just a factor of the economic pressure you can exert on your opponent. There is power in political influence, power in organizational strength, and most importantly, power in communication. As the opportunities for consultation, communication and debate between labour and management representatives are broadened, the sphere of discourse expands, and new issues are opened for debate which might not be available 153 under traditional adversarial bargaining. The CAW/Magna Agreement's limits on the economic power of the parties are counterbalanced with broader opportunities for the exercise of communicative power through these new avenues.
This should not be taken to mean that it will always be better for workers to relinquish the right to strike. Giving up the right to strike in the absence of the sort of comprehensive framework for cooperation described in the CAW/Magna Agreement may represent a serious blow to the bargaining power of workers, as critics of the Agreement suggest. In light of the structures set out in the Agreement, however, agreeing to forego economic sanctions represents an intelligible attempt to constrain the risk that conflict between the parties will undermine their efforts at cooperation.
Building a cooperative relationship requires that the parties institutionalize structures to allow the conflicts between them to arise and be resolved without harming
152 Ibid, at 640. 153 See Rhomberg & Simmons, supra note 146 at 39; for a fuller discussion of collective bargaining as discourse, see Porter Heffernan, "The Discourse of Collective Bargaining and Labour Rights in Canada and South Africa" (2008) [unpublished draft, on file with author]. the development of trust and mutual respect. The CAW/Magna Agreement represents a comprehensive attempt to do just that. To be effective, however, these constraints must bind not only the senior leadership of the Company and the Union, but also the members of each, from the workers and supervisors on the shop floor, to the division managers and union representatives in each plant. This sort of top-down control is in tension with the internal democracy identified above as vital to the independence of the union in a cooperative relationship. The balance between these competing forces in the
CAW/Magna Agreement will form the subject of the next chapter.
F. Conclusion
Cooperation at work both carries potential benefits and poses significant risks for employers, employees and unions. The CAW/Magna Agreement seeks to realize these benefits, while at the same time managing the risks to produce a stable and mutually beneficial labour-management relationship. One of the most significant risks of cooperation at work is the potential for a decline in the union's capacity to offer genuinely independent representation of its members. Guarding against this risk requires healthy institutions of democracy within the union to act as a check and balance on the cooption of the aims and values of the union's leadership to serve those of the Company.
Limits on these democratic processes within the Union may contribute to the erosion of the Union's independence and representativeness.
An important part of the Agreement is its effort to contain and manage conflict within the broader cooperative structure of the parties' relationship. This is achieved in the CAW/Magna Agreement through the formalization and institutionalization of well- 145 developed processes of dispute resolution, as well as agreed-upon limits on the avenues available to the parties to resolve conflicts which may arise between them. Unstructured democracy within either the Union or the Company may undermine these constraints, and maintaining the cooperative relationship may therefore require some limits on the scope of internal democracy in both.
As can be seen, the dynamic of cooperation and democracy is complex, to say the least. This tension requires a closer look at the definition and desirability of union democracy. A successful and genuinely cooperative model of labour relations will have to delicately balance the two competing forces described above. For reasons which will be explored in the next chapter, the CAW/Magna Agreement may have failed to draw this balance correctly. Chapter IV: Democratic Employee Representation under the CAW/Magna Agreement
A. Introduction
In the middle of the last century, Leiserson described union democracy as
encompassing three different dimensions: internal democracy, workplace democracy, and
social democracy. The internal dimension describes the union's own processes for 2 determining and representing the will of their members. The workplace dimension
describes the union's capacity to give a voice to that will in the governance of the 3 workplace. Finally, the social dimension describes the union's capacity to advance 4 social democratic causes in the broader political arena.
This Chapter is primarily concerned with the first of these dimensions of
democracy. The previous Chapter discussed at some length the Agreement's impact on
the capacity of the CAW to give a voice in the workplace to the will of its membership.
In the course of that discussion, a tension between internal democracy and cooperation
began to emerge: internal union democracy is necessary to maintain independent
representation, and it is thereby an asset to cooperation, while at the same time it is a
threat to the limits on conflict required to stabilize the cooperative relationship. The task
of this Chapter is to explore this tension, and the way it is handled in the CAW/Magna
William M. Leiserson, American Trade Union Democracy (Westport, CT: Greenwood Press, 1959) at 3-5 [Leiserson]; cited in Ann C. Frost, "Union Involvement in Workplace Decisionmaking: Implications for Union Democracy" (2000) 21:2 Journal of Labor Research 265 at 268 [Frost]. 2 Frost, ibid, at 268. 3 Ibid. 4 Ibid. 146 Agreement. Ultimately, this Chapter will ask whether the Agreement has struck the right balance of union democracy and cooperation, or whether it has missed the mark.
Before tackling this question, however, it is necessary to engage with union democracy more broadly. Is internal democracy a desirable element of union representation at all? In other words, is it worth worrying about whether the Agreement leaves sufficient room for the democratic representation of Magna employees, or is the question irrelevant? Ultimately, I will argue that democracy in the union's representation of its membership is crucially important. It is therefore not only relevant, but essential to ask whether the CAW/Magna Agreement leaves sufficient space for democracy to survive in the union's representative processes.
The first section of this Chapter will engage with the recent literature on union democracy, exploring the debate over whether or not internal democracy benefits unions.
While I will suggest that democracy is, in fact, good for a union that wishes to remain independent and representative, I will ultimately reject the entire debate as fundamentally misguided. I will suggest instead that the relevant question should always be whether democracy in unions is good for employees.
To answer this reformulated question, the second section of this Chapter will draw on a number of philosophical sources to demonstrate the connection between internal union democracy and healthy democracy in society more broadly. I will argue that the question of democracy in the union's representation parallels the question of the legitimacy of that representation. Undemocratic representation cannot be legitimate, and illegitimate representation cannot help but fall out of touch with the will and interests of the represented. After taking a closer theoretical look at what it means for representation to be both democratic and legitimate, the third section of this Chapter will critique the limits on democracy reflected in the terms of the CAW/Magna Agreement. While the limits on the opportunities of Magna employees to participate in the processes of their own representation can be explained from the perspective of building and maintaining the cooperative experiment between the Union and the Company, I will argue that they are nonetheless difficult to justify from a principled perspective. In addition, they are inconsistent with the CAW Constitution, a fact which both highlights how far the
Agreement strays from CAW past practices, and places the legal status of the limits in doubt. The Agreement has undermined the capacity of the Union to remain independent and planted the seeds of alienation and destabilization within the Union even as it tries to protect the parties from the destabilizing effects of conflict. Indeed, the limits on democracy in the CAW/Magna Agreement may lead to the corrosion of the very relationship they are intended to protect.
B. The Debate over Union Democracy
The debate over internal union democracy is now well over one hundred years old. At the turn of the twentieth century, the Webbs advocated unions as a democratic voice for workers in the labour-management relationship, while at the same time lamenting the gradual erosion of democracy within unions themselves. The debate
Bruce E. Kaufman, "The Early Institutionalists on Industrial Democracy and Union Democracy" (2000) 21:2 Journal of Labor Research 189. Sidney and Beatrice Webb, Industrial Democracy (London: Longmans Green, 1920) at xx, 20; Leiserson, supra note 1 at 54-55; Clyde W. Summers, "From Industrial 149 continued in the United States through the industrial democracy movement of the early twentieth century, and gained prominence during World War II as unions became a 7 political force of some significance.
The Canadian and American experiences diverged after World War II. In the
United States, concerns about the undemocratic and at times corrupt handling of unions' internal affairs led to the passing of the Landrum-Griffin Act in 1959, which imposed disclosure, reporting, and monitoring requirements on unions. In Canada, on the other hand, fewer concerns about corruption have led to less demand for legislative 9 intervention, and consequently to a more limited legislative regime. Continued concerns in the US with corrupt and repressive leadership in power in unions such as the
International Brotherhood of Teamsters, coupled with the declining fortunes of the labor movement in general have kept the debate over the value of democracy lively.
Normative arguments for and against internal union democracy are relatively straightforward. While arguments in favour of democracy focus on its value for employees and for unions, arguments against have tended to focus exclusively on its impact on the union. Proponents of union democracy argue that it promotes
Democracy to Union Democracy" (2000) 21:1 Journal of Labor Research 3 at 4 [Summers]. 7 Robert Bruno, "Democratic Goods: Teamster Reform and Bargaining Outcomes" (2000) 21:1 Journal of Labor Research 83 [Bruno]. The Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq. [Landrum-Griffin Act]; Brian Petruska, "Choosing Competition: A Proposal to Modify Article XX of the AFL-CIO Constitution" (2003) 21 Hofstra Lab. & Empl. L.J. 1 at 16 [Petruska]. 9 Michael Lynk, "Union Democracy and the Law in Canada" (2000) 21:1 Journal of Labor Research 37 at 38-39 [Lynk]. See, for example Bruno, supra note 7. responsiveness in the union leadership. They argue that democratic procedures can act
12 as a check on corruption within the union. They argue that democracy can enhance the commitment of the membership to the union, boosting militancy and solidarity, and
13 developing new leadership. Some even offer principled, rather than pragmatic justifications for democracy, pointing to the intrinsic importance of maintaining democratic practices within a body a chief purpose of which is to introduce an element of 14 democracy to the labour-management relationship.
On the other side, opponents of union democracy offer a pragmatic view of the realities of the modern labour-relations climate. The argument is essentially that unions cannot afford democracy. Unions are compared to nations under siege from all sides, perpetually in a "state of war with employers." In an argument reminiscent of the debate over democracy and human rights in developing countries, it is suggested that unions need solidarity, discipline, and sacrifice from their members in order to protect and advance their interests in better economic conditions, or in a greater say in the terms
Bruno, supra note 7 at 84. 12 Petruska, supra note 8 at 16; George Strauss, "What's Happening inside U.S. Unions: Democracy and Union Politics" (2000) 21:2 Journal of Labor Research 211 [Strauss]. This is an argument which motivated the drafters of the Landrum-Griffin Act, supra note 8. The Acf s disclosure and reporting requirements are all targeted to protect and promote open democratic procedures in unions. Strauss, ibid; Petruska, ibid, at 24-25. 14 Strauss, ibid; Summers, supra note 6 at 4-7. Strauss, ibid, at 212. 1 Steve Fraser, "Is Democracy Good for Unions?" (1998) 45:3 Dissent 33, at 36, 38 [Fraserl. 151
17 and conditions under which they work. Fraser observes that: "some trade union leaders... don't care a rat's ass for union democracy; indeed consider it an actual hindrance where a state of undeclared war against employers demands discipline, secrecy, and decisive action by small groups of outsiders less susceptible to daily 18 intimidation." Internal democracy undermines the ability of the union to take effective
19 action in furthering the interests of its members. The focus on the interests of the union over those of the employees is justified by arguing that the fact of representation offers a better chance at gaining some influence on the terms and conditions at work than is 20 attainable through democratic internal union procedures.
Much of the debate over internal union democracy misses a fundamental point.
Unions exist solely and completely to represent the interests of their members. The question must always be, therefore, whether democracy is or is not in the interests of those members, not whether it is or is not good for the union. Arguments for limits on the capacity of union members to formulate and articulate a sense of their own interests, in the name of protecting the union's effectiveness in representing those interests display a 21 deeply problematic view of the role of unions. It affords them a status as independent
17 Petruska, supra note 8 at 28. 18 Fraser, supra note 16 at 38. 19 Ibid, at 36. 20 Z&K*at38. 21 There are counter-arguments to be made which challenge the innate capacity of workers to articulate, or even to comprehend their own best-interests. Marxist theorists, for example, might argue that the role of the union leadership is to sweep aside the false consciousness of the workers it represents, and to show them what is in their own interests. The problem with such arguments is that there is simply no one better able than the workers affected to determine the interests and needs of those workers. To suggest 152 entities, and a capacity to independently determine and represent the interests and wishes of their members which is wholly undeserved. It takes our view of labour organizations down an extremely dangerous path toward self-serving unions with little or no conception of their members' needs, interests or desires. This is a destination which must be avoided at all costs.
In the context of a cooperative relationship, restricting a union's democratic processes exposes it to the full risk of subversion by the employer. An undemocratic union led by aggressive, militant, committed activists will have enough trouble staying in touch with the interests of its membership. Where the union is in a close partnership with management, the potential for the interests of the company and the employees to blur too closely in the eyes of the union grows with the decline in membership control over the leaders' actions declines.
Democratic processes of representation are essential to maintaining the alignment between the will of the represented and the actions of their representatives. The most common response to this claim, aside from the pragmatic arguments based on the effectiveness of the union, outlined above, is that democratic processes are difficult to
otherwise is a remarkably presumptuous exercise in paternalism, which exposes the workers to exactly the risk outlined here, of disconnected, authoritarian representation. Of course, not all workers will share the same interests in common; in any given workplace there may be any number of diverging and sometimes conflicting interests, and free union democracy will not be as simple a task as identifying and articulating the single common interest. There must be protections in place to ensure that minority interests are not drowned out in the chorus of the majority. However, this is not ultimately an objection to union democracy. The authoritarian imposition of a common interest on the membership of a union is far more likely to exclude minority interests than an open process of discussion leading to the formation and articulation of a political will to guide the union leadership. The distinct issue of protecting space in that process for the articulation of minority interests will be addressed below. 153
22 maintain in the context of a union. This is simply inadequate. Democracy is difficult, often painful, and sometimes inefficient as a way of handling political relations, yet it has persisted in the face of repeated challenges as the most highly valued model of government in the western world. There are strong, principled reasons why democracy is vital to a healthy, open society, reasons which are equally applicable in the context of the collective representation of employees. The task of the next section will be to unearth and apply these reasons.
C. Union Democracy, Political Democracy, and Freedom Building
1. Justifying Union Democracy
In contrast to some of the objections to union democracy outlined above, it is possible to view the establishment of democratic processes of representation within a union as a desirable end in and of itself, rather than merely as a means to more effective 23 representation or bargaining. Justice Mclntyre in Reference Re: Public Service
Employee Relations Act quoted a particularly apt passage from Alexis de Tocqueville's
Democracy in America:
... [individuals] cannot belong to these associations for any length of time without finding out how order is maintained among a large number of men and by what contrivance they are made to advance, harmoniously and methodically, to the same object. Thus they learn to surrender their own
22 This argument is often founded on Robert Michels' "Iron Law of Oligarchy," described in his book Political Parties, Trans, by Eden and Cedar Paul (Kitchener: Batoche Books, 2.001). See e.g. Frost, supra note 1 at 268. Michels' theory essentially states that organizations have a natural and inevitable tendency to become increasingly corrupt and autocratic as they develop. As Frost notes, its application in the labour context has focused on ways to avoid this phenomenon (Frost, ibid). 23 Petruska, supra note 8 at 29. will to that of all the rest and to make their own exertions subordinate to the common impulse, things which it is not less necessary to know in civil 24 than in political associations.
The experience of participating in the collective process of opinion and will-formation within the union, and resolving differences with other members is a training ground for
25 participation in political and social democracy.
A similar sentiment is expressed in the democratic theory of Jiirgen Habermas, who advocates an expansion of sites of public discourse and debate in the name of building a stronger, more inclusive culture of deliberative democracy. Habermas views the political process as dependent on a flourishing civil society for the generation of 27 public opinion and will, which it requires to produce legitimate outcomes. Labour organizations, and the labour movement more generally, represent an important site of participation in civil society - one of many which in a crisis of legitimacy for political 28 action has the capacity to act as a check on the exercise of political power. Limits on the unhindered participation in these sites threaten the capacity of the public to respond to illegitimate acts on the part of the government. Participation in voluntary associations
24 Alexis De Tocqueville, Democracy in America, vol. 2, Phillips Bradley, ed. (New York: Alfred A. Knopf, Inc., 1945) at 116; quoted in Reference Re: Public Service Employees Relations Act, [1987] 1 S.C.R. 313 at 396-97 [PSERA]. 25 PSERA, ibid, at 397. This argument is frequently raised in support of workplace democracy, although some authors suggest that there seems to be "little empirical support" for its basic premise: Janice R. Foley and Michael Polanyi, "Workplace Democracy: Why Bother?" (2006) 27 Economic and Industrial Democracy 173 at 176. Jiirgen Habermas, Between Facts and Norms, William Rehg, trans. (Cambridge, MA: MIT Press, 1998) at 373-74 [Habermas]. 27 Ibid, at 368. 28 Ibid, at 383-84. both advances citizens' capacity for social and political participation and makes up an
essential component of that participation, in the form of a source of countervailing public power.
This theme is also apparent in the work of Amartya Sen, who identifies a strong
link between political freedoms and participation on the one hand, and social and 29 economic development on the other. Sen articulates a broad view of the importance of
freedoms, including the freedom to participate in the political process and in public life,
as building blocks which expand the capacity of citizens to lead the kind of lives they 30 have reason to value. He describes freedom as the "principal determinant of individual
initiative and social effectiveness. Greater freedom enhances the ability of people to help 31 themselves and also to influence the world...". In maintaining political freedoms, Sen identifies the vital importance of allowing the process of public will-formation to take place, allowing citizens to participate in discussion and debate, in selecting values and 32 priorities rather than having those values imposed on them. In a move mirroring the discussion in the preceding section, Sen emphasizes that these values and priorities must be exposed to public comment and criticism to ensure the responsiveness of the 33 government and its leaders to the needs and will of the governed. Participation in
29 See also Brian Langille, "Labour Policy in Canada - New Platform, New Paradigm'' (2002) 28 Can. Pub. Pol'y 133, wherein the author takes the first steps toward reimagining union representation in the context of Sen's theory of freedoms. 30 Amartya Sen, Development as Freedom (New York: Anchor Books, 1999) at 18 [Sen]. 31 Ibid. 32 Ibid, at 30. 33 Ibid, at 123. discourses in the public sphere is for Sen an important element of this process of criticism.
Following Sen and Habermas, the question of representation for the individual labour union is ultimately one of legitimacy. The sole, ultimate responsibility of the union is to represent the interests and the will of its membership. In order to fulfill that responsibility, that representation must be legitimate. In other words, the union must represent the actual interests of the members as they themselves define them, not a set of priorities imposed on the membership from above. The fundamental problem with the union defining and imposing a set of interests on its membership is that there is no
34 essential guarantee that it will be correct in doing so. Regardless of whether or not it happens to be correct in a particular case, without the full and free participation of the membership in formulating the policy and strategy of the union, the positions it adopts and the initiatives it pursues cannot be legitimate.
What is meant by democracy in the context of union representation? A common theme in much of the literature on union democracy is the close association between 35 democracy and the electoral process. This obviously fails to capture the full meaning of democratic participation as understood by Sen and Habermas, above, and it similarly fails to take into account the realities of union organization. As one author notes, while it is possible to equate the process of union representation with the political process, one
This is in addition to the more abstract principled problem of placing limits on the capacity of union members for self-determination. 35 See e.g. Fraser, supra note 16, but see Petruska, supra note 8 at 30, and Summers, supra note 6 at 10. should not lose sight of the differences between the two. Unions often amount to a
"one-party state," where the incumbent leadership has a firm grasp on the reins of power, 37 and faces little real competition in formal elections. In evaluating the democratic potential of the union representative process, "the test is not whether the union follows the forms of democratic process, but whether those processes provide the substance of 38 meaningful participation and fairness." Democracy in the union entails not just the right to vote in an election, but protections for the capacity and opportunity to participate in the articulation of the membership's interests, in order to set the union's policy and guide its leadership.
Of course, the members' articulation of their own interests will rarely be a simple
39 task. The interests of the membership will never be a single entity, capable of easy definition. The process of debate leading to the articulation of a policy platform for the union's leadership will necessarily involve a process of balancing competing and sometimes conflicting majority and minority interests. A simple "majority rule" approach to union democracy will be inadequate from this perspective: it may well result in the smothering of minority interests. Moreover it represents a simplistic model of the process of discourse within the union.
There are some external mechanisms for guaranteeing that union representation does not discriminate unfairly against minority interests. The duty of fair representation
(DFR), incorporated in the labour legislation of both Ontario and Nova Scotia, prohibits
3^ Summers, ibid, at 9. 37 Ibid. 38 Ibid. 39 See also supra, note 21. 158 discrimination in the administration of the collective agreement, and to some extent in
40 bargaining. While this protection may be invaluable for ensuring that no union member is offered a lower standard of representation in his or her relationship with the employer for discriminatory reasons, as Lynk notes this provision has been held not to apply to
41 political processes within the union. If there is some suggestion that the process of union democracy is having the sort of discriminatory effect outlined above, this may found an argument for greater legislative intervention into union internal affairs. It does not, however, found an argument for restrictions on the freedom of members to participate in the formation and articulation of policy within the union. Indeed, removing barriers to participation in the union's internal discourse is an important part of preventing the repression of minority interests, not a contributing factor in that repression.
Just as Sen and Habermas observed the importance of public debate and participation in processes of opinion-formation to the vitality and legitimacy of a political democracy, so too is participation by the membership in the union's process of opinion and will formation essential to the vibrancy and legitimacy of the representation it offers.
Protecting the opportunities for that participation is of the utmost importance, particularly
40 Labour Relations Act, 1995, S.O. 1995, c. 1, sch. A, s. 74 [ONLRA]; Trade Union Act, R.S.N.S. 1989, c. 475, s. 54A; see also Lynk, supra note 9, at 49; see Chapter V, Section E, below, for a further discussion of the application of the duty of fair representation to the CAW/Magna Agreement. 41 Lynk, ibid; citing Feldsted and Garwood-Filberts, [1997] C.P.S.S.R.B. No. 117 (QL), at para. 32 [Feldsted]. In that case, a number of PSAC members alleged that their regional vice-president had violated the duty of fair representation in s. 10(2) of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, by misusing union funds to finance a court action against them. The Board held that it had no jurisdiction to hear the claim, as the DFR was not applicable to the union's internal affairs {Feldsted, ibid, at para. 32). 159
in the cooperative context. If the union's representation ceases to reflect the full and
unhindered participation of the membership, its legitimacy is put at risk. The priorities of
the union elites in bargaining must be set somehow, if not through the participation of the
members in the processes of internal democracy, then according to the interests of the
elites themselves, or more dangerously, according to the priorities of management. If this
occurs, the union ceases to be the representative of its members in any meaningful sense
of the term.
2. Evaluating Union Democracy
Focusing exclusively on empirical measures such as the number of contested
elections, or the turnover of incumbent presidents is insufficient to evaluate the health
42 and security of a union's internal democracy. Instead, the focus should be on the
measures taken to protect the capacity and opportunity for the membership to participate
in shaping the articulation of their will for representation by the union. This entails
opportunities to participate in policy debates, to discuss the union's bargaining strategy,
and to comment on and evaluate the performance of the leadership, as well as more
concrete measures such as the ability of members to express their dissatisfaction with
individual leaders in a vote.
The requirement that union representation be legitimate rests on this understanding of democracy within the union. The processes of representation which take place within the union may be understood as an effort at a rational process of opinion and will-formation, with the goal of producing a position or a statement of interests to adopt
42 Ibid. on behalf of the employees in participating in collective bargaining. For the position which the union adopts in bargaining to be legitimate, and for it to be viewed as such by the employees, it must be capable of meeting with the assent of the employees in discourses carried out under conditions which assure the greatest possible degree of
44 freedom to exchange and receive information and arguments. This means, in essence, that the conditions under which the union representation processes take place must seek to guarantee the greatest degree of access possible by the membership to the opportunity and the capacity to take part in the sort of democratic processes outlined above: participation in policy-forming, commenting on and criticizing the positions adopted by
45 the leadership, open discussion of bargaining goals and strategies.
Limits on the ability of the membership to take part in these processes, which shape the union's articulation of its members' interests and which inform the policy and approach that the union will take to those interests in its relationship with management, are corrosive to the legitimacy of the representation offered by the union. As discussed above, if the legitimacy of the union's representation is undermined, its capacity to fulfill its ultimate purpose of representing the will of its membership is put at risk. The union
See generally Porter Heffernan, "Collective Bargaining as Discourse in the Labour Rights Jurisprudence of Canada and South Africa" (2008) unpublished, on file with author. 44 Habermas, supra note 26 at 107-08. 45 Ibid, at 119-20; of course, guaranteeing the union membership the opportunity to participate in formulating the union's policy and strategic direction offers no guarantee that the membership will exercise that opportunity. Participation in the political process takes energy and commitment, and building that commitment may be a distinct task for a union from protecting the opportunity to participate. As was discussed in Chapter II, the CAW may be at an advantage in this respect, given its history of militancy and grass roots activism: see Chapter II, Section C, above. 161
runs the risk of gaining an independent life of its own, and thereby becoming a self-
serving creature of the interests of its elites.
D. Democracy and the CAW under the CAW/Magna Agreement
1. An Apparent Concern for Democracy
This section will attempt to answer the question of whether the Agreement leaves
sufficient room for the CAW to implement and maintain democratic processes in its
representation of Magna employees. A close review of the Agreement reveals a number
of significant limits placed on the capacity and opportunity of CAW members employed
at Magna to participate in the processes of representation within the Union. These limits
can be explained as efforts to protect the cooperative relationship between the CAW and
Magna, but they nonetheless threaten the position of the CAW as an independent representative of Magna's employees, and undermine its capacity to represent the will of its members.
As was discussed at length in Chapter II, the Agreement is ostensibly concerned with the democratic participation of Magna employees in the governance of the workplace. In the preamble, it is noted that the Agreement "will combine the best features of union representation with Magna's established culture of workplace democracy and 46 fair treatment." The "Founding Principles" on which the agreement is said to rest include both "participatory democracy" and the "open and transparent sharing of
CAW & Magna International, "Framework of Fairness Agreement" (15 October 2007), online: CAW-TCA Canada
47 information and communication." The Union and Company affirm that their goal is to
"work together to provide a fulfilling work environment where employees are able to participate, through an Open-Door Process, in the decision-making that affects their 48 lives." At least in the early parts of the Agreement, there is a clear emphasis on the participation and involvement of the employees in workplace governance.
There is a similar concern for democratic participation reflected in the language of the CAW Constitution. The emphasis the Constitution places on the importance of democracy is made clear by the CAW-Canada Democratic Practices Code, incorporated 49 as an addendum to the Constitution. It also manifests throughout the preceding Articles
47 Ibid, at 4. 48 „ . , , Ibid, at 5. 49 CAW, "CAW Constitution" (1985, as am. 16 August 2006), online: CAW-TCA Canada
CAW-Canada is proud of its democratic heritage. Its constitution is designed to ensure all members have their full democratic rights, both as individuals and through their elected representatives, to express themselves freely and to participate at all levels in the decisions governing the Union. Moreover, individual rights are protected against infringement or abuse, for members may appeal decisions concerning the administration of the Union to the Local Union, the National Executive Board and the Constitutional Convention; and members have the right to submit appeals to the Union's Public Review Board, which comprises citizens with national reputations outside the labour movement, whose decisions are final and binding. The democratic principles that have always governed the National Union and its Locals are[:] 1. Each member is entitled to share equally in governing the Union. Each member has full freedom of speech and the right to participate in the democratic decisions of the Union. Subject to reasonable 163 of the Constitution. The CAW Constitution is in turn brought into the FFA as a point of reference by the opening words of the "Founding Principles" section of the FFA, noted above: "Magna and the CAW are fully committed to building a working relationship based on the values reflected in the Magna Employees' Charter, the Magna Corporate
Constitution, and the CAW Constitution..."50
While the emphasis on democracy in these two important documents should theoretically be enough to drive the creation of a profoundly democratic structure for workplace representation, the Agreement does not quite live up to that promise.
Interestingly, the manifestations of employee participation in the Agreement do not necessarily envision the participation taking place through the mechanisms of union representation. Indeed, some aspects of the Agreement's statement of principles seem to reflect a desire to distance the union from the participation of the employees in decision
rules and regulations, each member has the right to run for office, to nominate and to vote in free, fair and honest elections. In a democratic union, as in a democratic society, all members have rights, but they also must accept corresponding obligations. All members have the right freely to criticize the policies and personalities of Union officials; however, this does not include the right to undermine the Union as an institution, to vilify other members of the Union and its elected officials, to carry on activities with complete disregard of the rights of other members and the interests of the Union, to subvert the Union in collective bargaining, or to advocate or engage in dual unionism. 2. Membership meetings will be held regularly, with proper notice of time and place. They will be conducted in an atmosphere of fairness. 3. All Union rules and laws must be fairly and uniformly applied. Disciplinary procedures, including adequate notice, full rights of the accused and the right to appeal, will be fair and give full due process to each member. 4. Each Local Union will maintain adequate safeguards so that all its operations are conducted democratically and fairly. No corruption, discrimination or anti-democratic procedure will ever be permitted, (ibid). 50 FFA, supra note 46 at 4. making. When the Company and the Union each undertake to fulfill certain roles in pursuit of the "success of the Company and job security for employees," the closest the
Union's role comes to representing the interests of the employees is its commitment to provide "a check and balance for the interests of employees in Magna's Fair Enterprise system," and to enhance "stronger employee participation and commitment in the Magna production process, to improve quality and productivity, and build a better product for a better price." Similarly, the commitment to the participation of employees outlined
52 above specifically identifies the "Open-Door Process" as the path to that participation.
The Open-Door Process, as outlined in the Agreement, is primarily an informal mode of problem solving and concern resolution, and one which envisions virtually no role for union representation.
In the Concern Resolution Process, the trend continues. Fairness Committee (FC) members, the only directly-elected employee representatives, are not to represent the 53 employees or the union in fulfilling their role, but rather to act as impartial neutrals.
Furthermore, in the early steps of the process, including the Open-Door phase, the employee is expected to "take ownership for pursuing the resolution of any concern they
54 may have." Indeed, this is described as "Fundamental to [the] principle of employee
CAW Constitution, supra note 49 at 3. Ibid, at 5. 53 Ibid, at 10. See also Section 2, below. 54 Ibid, at 9. participation." The Employee Advocate only takes over as the formal representative of
the employee past the Hotline phase of the Process.
While it might be expected that a collective agreement would have little to say
about the union's internal representation of its members, the terms of the Agreement go
beyond mere silence. Taken as a whole, they seem to found a sort of institutionalized
isolation for employees, a separation between the union-management and the employee-
management relationship. The impact this will have on employee participation and
interest in the processes of representation within the Union remains to be seen.
Generally speaking, there are bigger problems for employees who want an
opportunity to take part in the discourses of representation within the Union. The
CAW/Magna Agreement has a great deal to say about the structure and process of the
Union's representation of Magna employees. Provisions are included in the Agreement
which are rare in a conventional collective agreement. These include a detailed
description of the process by which the employees' representative (the Employee
57 Advocate) in each division is selected, as well as a description of the structure and role
55 Ibid. The relationship between increased employee involvement in the management of the workplace and their attitudes toward their union is not entirely clear, but the evidence seems to suggest that the relationship benefits where employee participation in workplace decision-making is through the union, while it is harmed where the union is marginalized in or resists the employee participation: Frost, supra note 1 at 267-68. 57 CAW & Magna International, "Framework of Fairness, National Agreement, and Windsor Modules Local Appendix" (7 November 2007) [unpublished, on file with author], Art. 3, at 34-35 [National Agreement]. 166
58 of the CAW Local to be chartered to represent Magna employees. These details paint a problematic picture for democracy in the CAW at Magna.
2. The Limits on Participation
The broad strokes of the CAW/Magna Agreement are described in Chapter II. It is worth considering again some of the specific details here in light of the issues set out above. Elections provide a helpful starting point, since they are such an obvious (if often insufficient) hallmark of democracy. The only direct elections in which the CAW members at Magna take part are the elections of those Fairness Committee members drawn from the bargaining unit. As highlighted above, the Agreement stipulates that
59 these members are not elected to represent employees but to act as neutral facilitators.
Whether this will be borne out in practice remains to be seen; it might be wishful thinking on Magna's part. Workers seem likely to elect those they see as leaders to the Fairness
Committee, and the FC members therefore may have a much more significant representative role in the workplace than is described for them in the Agreement.
Regardless of the Fairness Committee's role in practice, however, they also play an important role in selecting the Employee Advocates, the only representatives of the employees officially recognized as such by the Company.
Employee Advocates are selected through what is described as a "consultative approach." When a position becomes available, interested employees put themselves
58 FFA, supra note 46 at 4. 59 Ibid, at 10. 60 Ibid, at 18. forward for consideration. Their names are submitted to a panel of four employee
members of the Fairness Committee, three of whom interview the candidates, consider
the applications and rank them according to a mutually agreed-upon set of criteria. The
fourth member totals the scores, and submits the top three ranking candidates to the
CAW National Assistant to the President (CAW National AP). The CAW National AP
conducts another series of interviews, and chooses "the candidate who best meets the
qualifications and expectations of the position." That candidate becomes the Employee
Advocate for the division in question. At first glance, this process seems far removed
from a democratic electoral structure.
There are several aspects of this process which require further comment. After
electing the Fairness Committee Members, the first input that employees have in the
selection of their Advocate occurs eighteen months after that selection, when a survey 64 evaluating the EA's performance is carried out. Their only opportunity to remove the
EA comes three years after the appointment, in the form of a secret ballot vote of
employees for or against retaining the EA. With the exception of this vote, the only way the Employee Advocate can be removed is in "extenuating circumstances, such as a
61 Ibid. 62 Ibid. /TO Whether the process is, in fact, sufficient to satisfy a requirement that workplace representatives be elected will be explored in more detail in Subsection a, below. National Agreement, supra note 57; in fairness, the text of the Agreement reads "An Employee Advocate evaluation survey shall be completed during the first 18 months following the Employee Advocate's initial appointment and each 36 months thereafter" {ibid., Art. 3, s. 2(h), at 35). 65 Ibid. failure to perform his duties or a breach of confidentiality or ethics." The discretion to determine whether such circumstances exist rests solely with the CAW National AP. In other words, both the appointment and the dismissal of the Employee Advocate is ultimately in the hands of a CAW National AP, who is hired by the National President, rather than elected.
In addition to describing the EA selection process in detail, the Framework of
Fairness also includes a description of the structure and role of the CAW Local which is
/TO to be chartered to represent Magna Employees. That description is worth reproducing in full: 2. Amalgamated CAW Local Union Structure and Activities The National Executive Board of the CAW shall charter an amalgamated CAW local union for all Magna Divisions (the "Magna Local"), including the transition of those divisions currently represented by the Union.
An Executive Council for this amalgamated local union will be constituted, consisting of the EA from each of the CAW-represented Divisions of Magna.
Members of the Executive Council will elect the amalgamated local's executive (the "Local Officers"), and will hold regular meetings in accordance with the CAW's National Constitution. Any Local Officers elected to a full time role within the Magna Local, shall have their EA role backfilled in accordance with the established EA selection process.
Members of the Executive Council will help to coordinate and promote the CAW's broader activities (including coordinating participation in CAW educational programs, responding to member inquiries, and 69 promoting other CAW initiatives) within their respective Divisions.
66 „ . , _ ... Ibid., s. 2(i). Ibid. FFA, supra note 46 at 5, 6, 16-18. Ibid, at 6. As can be seen from the above passage, the Executive Council of the Local is to 70 be made up of the Employee Advocate of each division covered by the Agreement.
71 This Council elects the Officers of the Local, including the President. At first glance, this seems potentially problematic. The final paragraph quoted above makes it clear that the FFA is not referring solely to a Council to be created for collective bargaining purposes, but rather one which will serve the typical functions of the governing body of the local union: administering the relationship between the members and their union, and coordinating the union's activities distinct from its bargaining role. The inclusion of a provision of this nature in the collective agreement is virtually unprecedented.
The intent of this portion of the FFA is not immediately obvious. On its face, the inclusion of a section such as that reproduced above would seem to be intended to 72 supplant the model for the Joint Council of an Amalgamated Local Union. That model requires that the members of the Joint Council be directly elected. As discussed above, however, the FFA expressly states that it is founded on the values set out in the CAW
Constitution, suggesting that it must be interpreted in accordance with that Constitution.
As will be discussed below, whether the terms of the FFA accord with the CAW
Constitution, and more broadly therefore whether the passage quoted above supplants that Constitution, or merely restates it, may turn on the interpretation of the Constitution 73 which one adopts.
70 Ibid. 71 Ibid. The FFA refers to the CAW Constitution as governing these elections (ibid.) 72 Described in the CAW Constitution, discussed in subsection a, below. 73 See infra, note 110 and text accompanying. It is also worth noting that bargaining is to be carried out primarily through the
CAW National Union. The President is the only representative of the Loeal to sit on the
Employee Relations Review Committee (ERRC), which serves as the bargaining 74 committee for the CAW/Magna Agreement. The other members of the ERRC include the CAW National AP, and a senior National Representative appointed to serve the Local
Union.
This structure places some obvious limits on the participation of Magna employees in the selection of their representative: the selection process is primarily closed, with the final decision resting in the hands of the CAW National AP. It also places some less obvious limits on democracy in the Magna Local. The CAW National
AP's discretion to remove an EA from office may have a chilling effect on the capacity of the EAs to represent their membership. The election of the officers of the Local Union from the pool of Employee Advocates has the potential to distance Local leadership from the interests and wishes of the membership. Finally, the National Union's domination of bargaining may limit the extent to which issues of concern to the represented employees make it to the bargaining table. Taken together, these measures represent a significant break with past practices in the CAW, and serious limits on the scope of union democracy at Magna.
74 Ibid. 75 Ibid. 171
a. A Deviation from the Norm?
The legal regulation of these issues might offer some insight into common practice in labour relations, however the legal regulation of union internal matters is
extremely limited in Canada. With the exception of the Duty of Fair Representation,
labour legislation has little to say about the way unions structure their internal affairs, including the relationship between the national and local unions, and the means of
selecting the union's representatives and officers. Michael Lynk argues that this limited legal intervention into trade union internal affairs is a result of a labour movement less afflicted by the problems of corruption, dishonesty, and fraud which have plagued
77 numerous large American unions. Regardless of the reasons, however, he observes that the result has been that "on the questions of union elections, union administration, internal discipline, and the freedoms of speech and dissent, the Canadian legislation is largely silent, leaving these matters to be self-regulated by union constitutions, with the 78 courts acting as the primary body of legal supervision." The courts have been almost as tight-lipped as the legislatures on the issues of elections and national-local relations.The courts have intervened to regulate the structure and process of union elections, but have not articulated any general requirement that union representatives be freely elected.
Indeed, the case law has been relatively light on any sort of principled commentary on the
See Chapter V, Section E, below for a discussion of the Duty of Fair Representation in the CAW/Magna context. One further exception to this general statement is the regulation of trusteeships in the Construction industry in Ontario: see Lynk, supra note 9. Section 149(2) of the ONLRA prevents an international parent union in the Construction industry from removing a local officer without satisfying the labour relations board that just cause for the removal exists: ibid; ONLRA, supra note 40, s. 149(2). 77 Lynk, supra note 9 at 38. value of elections for union representation. Instead, the courts have based their decisions almost exclusively on compliance with the terms of the union's own constitution.
In Howard v. Parrinton, a number of irregularities in a close election for two full- time positions in a local of the United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada led the defeated candidates to apply to the court for an injunction restraining the winners from taking 79 office. The irregularities included votes by a number of members who were ineligible to vote under the union's constitution, and a lack of notice of the election (and a
80 consequent inability to vote) by a number of members who were eligible to do so. The court restricted its decision to these breaches of the constitution rather than engaging in any extended discussion of principle, noting, however, that "a trade union is not a social club and that the issues determined by a trade union affect very directly a member's
81 livelihood." Ultimately, the Court ordered that a new vote be carried out, in accordance
82 with the constitution.
This view of the constitution as the first and only reference in the case of union
83 elections was affirmed in the case of Marshall v. Landry. In that case, the vice president and president of a small union had volunteered to serve until the next convention could be held, and had subsequently failed to call a convention to elect their
79 [1971] 3 O.R. 659 [Howard v. Parrinton]. 80 Ibid, at 660 Ibid, at 662. 82 Ibid, at 665. (1985)67N.B.R. (2d) 435. replacements. The court observed that "the affairs of the Union are being conducted
with little concern for or recognition of the principles of democracy," and ordered that a
convention be called immediately to hold a vote to fill the offices, in accordance with the 85 terms of the Constitution. The Court issued this order even as it noted that "Without
meaning disrespect to the person or persons who drafted the constitution of [the union] I
am unable to understand just how the organization is intended to function." The willingness of the court to hold the parties to even a constitution it acknowledges to be unintelligible is a strong statement on the primacy of the union constitution in the legal regulation of union elections.
The CAW Constitution therefore offers both a point of reference for the legal regulation of the election of CAW representatives, and a guide to the Union's own practice outside of Magna. Despite the primacy of the CAW Constitution's role in the regulation of the Union's internal affairs, it leaves much open to interpretation. It is difficult to predict which competing interpretation a court would choose were it confronted with allegations that the Union violated its Constitution, making it vital to consider the terms of the Constitution from many angles. Even adopting this open perspective, however, it is still apparent that the Agreement may pose some significant constitutional problems for the CAW.
As was noted above, the Agreement provides for the selection of an Employee
Advocate from each covered division, who will together form the Executive Council of
Ibid, at 436-37. Ibid, at 436,442. Ibid, at 437. the Magna Local, which will subsequently elect the Officers of the Local from its own
87 ranks. The CAW Constitution poses two potential problems for this process. First is
88 Article 27 of the Constitution, which governs amalgamated local unions. The creation of an Executive Council from the Employee Advocates of each division would seem inconsistent with Section 2, which reads:
Any two or more units of an Amalgamated Local Union may request the National Executive Board to set up a Joint Council in their Local Union. The National Executive Board will, without delay, investigate if a Joint Council is practical. If the board decides it is, the Local Union will, without delay, set up a Joint Council. Members of the Joint Council will be elected by secret ballot using the procedures set out in Article 34 Section 5, whether they are elected directly to the council or are members 89 because of another elected position they hold.
Article 34, section 5 provides a detailed set of guidelines for the election of local union
90 officers. While it is left to the Local to establish election procedures, it is stated that they must be by secret ballot, must allow votes only for nominated candidates, and that 91 an officer may be elected only by receiving a majority of votes. The FFA explicitly states that the officers of the Magna Local will be elected, creating no apparent
92 inconsistency with these terms. If Article 27 applies to the "Executive Council,"
87 FFA, supra note 46 at 6. 88 CAW Constitution, supra note 49, Art. 27, at 83. 89 Ibid., Art. 27, s. 2, at 83, emphasis added. 90 Ibid, Art. 34, s. 5, at 97. 91 Ibid. 92 FFA, supra note 46 at 6. however, appointing the EAs to form the Council would seem to be a violation of these provisions.
While the FFA itself describes the Magna Local as an "amalgamated local 93 union," There is obviously a difference in terminology between the phrase 'joint council,' used in the Constitution and 'executive council,' used in the FFA. It is possible that the difference arises from the virtually unique nature of the Magna Local. Article 27 contemplates large amalgamated locals made up of a number of distinct bargaining units.
The Magna Local, on the other hand, is made up of a number of geographically widespread divisions composing a single bargaining unit. Whether this difference is critical is difficult to predict.
A second potential Constitutional problem is even more pressing for the FFA.
While literature from the CAW indicates that the Union has workplaces where the representatives are appointed rather than elected, explicit authorization for such a 96 structure cannot be found in the Constitution. Instead, Article 41, titled "Elected
Workplace Representatives," states that "[a]ll Stewards, Committeepersons and other
97 workplace representatives are to be elected for three-year terms." As the Employee
Advocates are the only workplace representatives officially recognized as such under the
CAW/Magna Agreement, there is little reason to believe that they would not be covered
Ibid, at 4. 96 See CAW, "Membership Presentation on the Magna Agreement" (7 December 2007) online: CAW-TCA Canada
98 inconsistent with the Constitution. Whether or not this is the case, however, may depend on the definition of "elected" which satisfies the Constitution.
Article 41 of the CAW Constitution does not specify a procedure which must be followed for the election of workplace representatives. Conceivably, then, there might be competing interpretations of what precisely constitutes an election. As was described above, the members of the Fairness Committee who select the top three candidates for the position of Employee Advocate are themselves directly elected by the workers. While the
FC members are not officially recognized worker representatives, it is difficult to imagine the elected members not falling into an unofficial leadership and representation role, merely by virtue of having been elected to their FC position by their peers. If members of the Fairness Committee can be viewed as unofficial representatives, then perhaps the definition of "election" can be stretched far enough to conceive of the EA selection process as a sort of "indirect election," whereby the workers elect their delegates, in the form of Fairness Committee members, who then "elect" the EA, albeit in a system of ranking more complicated than a simple vote.
This interpretation of election seems to be the one which the CAW prefers. In a presentation to the membership in December 2007, the Union pointed to the election of the Fairness Committee as offering the primary vehicle for employee input into the
The subsequent section makes representatives subject to recall votes initiated by the membership; while this is not explicitly prohibited in the Agreement, it seems potentially inconsistent with the Agreement's provisions vesting authority to recall the EA in the CAW National AP. The two provisions may be able to coexist, however, ibid., Art. 41, s. 2, at 112. selection of the Employee Advocates. In order for this structure to be interpreted to accord with the CAW Constitution, however, the role of the CAW National AP must be downplayed, something the aforementioned presentation is quick to do. The presentation portrays the role of the CAW National AP as limited to merely ratifying the ranking of the top three candidates established by the Fairness Committee panel, rather 102 than exercising any discretion to choose among those three candidates. Compare this with the terms of the CAW/Magna Agreement, which states that:
"[t]he FC member who conducted the tally shall send the combined scores of the top three (3) candidates, along with the interview checklists, to the Assistant to the President of the CAW (the "CAW AP"). The CAW AP shall conduct interviews of the candidates and select the candidate who 103 best meets the qualifications and expectations of the position."
Similarly, the presentation suggests that employees will have an opportunity to vote in a referendum on the EA's performance "[a]fter they have performed their duties for a while," and that the EA will be removed and replaced through the same selection process 104 if they are not approved by a 65% majority. Again, compare this with the terms of the
CAW/Magna Agreement, which stipulate that:
[a]n Employee Advocate evaluation survey shall be completed during the first 18 months following the Employee Advocate's initial appointment and each 36 months thereafter. A secret ballot vote on the Employee Advocate's performance shall be completed each 36 months, commencing
CAW Presentation, supra note 96, at 18.
102 md. 103 National Agreement, supra note 56, Art. 3, s. 2, at 35. 104 CAW Presentation, supra note 96, at 18. 178
18 months following the first evaluation survey, or sooner if mutually , , . 105 agreed upon by the parties.
It is difficult to reconcile the claims of the CAW in the December 2007 presentation with the terms of the CAW/Magna Agreement.
These somewhat generous interpretations of the terms of the CAW/Magna
Agreement are necessary for the EA selection process to be viewed as satisfying the requirements of Article 41 of the CAW Constitution. Are they realizable in practice?
Certainly the CAW National AP may view his or her discretion as being fettered by the
CAW Constitution, regardless of how broadly it may be framed in the Agreement. As this is a matter on which the Company has no input, the CAW National AP could adhere to the stricter standard outlined in the presentation, above, without complaint from the
Company. The question of the ratification vote is more problematic, however, as the
Agreement sets a specific timeline, and makes it subject to change only by mutual agreement. While the Agreement itself states that it is founded on the values in the
CAW Constitution, it may be difficult to convince Magna that this requires that the EA be subject to an immediate ratification vote to legitimize his or her selection.
Even assuming that the interpretation of the Agreement that the CAW offered in its December 2007 presentation is the one ultimately realized in practice, it still requires a number of shaky logical leaps to be seen to conform to the requirements of Article 41. To briefly summarize: one must first presume that the Fairness Committee members are elected delegates, or representatives of the workers for the purpose of the EA selection, even though they are expressly denied any representative role in the Framework of
National Agreement, supra note 56, Art. 3, s. 2, at 35. 106 _ .,. , See ibid, and text accompanying. 107 Fairness. It must be presumed that the FC delegates will rank the EA candidates in accordance with the wishes of their "constituents", namely, the workers on their shift and in their department. It must be presumed that the role of the CAW National AP is a mere formal confirmation of the choice of the division's FC panel. Finally, it must be presumed that the Company will agree to move up the referendum on the EA's performance to offer an immediate (or at least a prompt) opportunity to ratify the EA.
When all of these presumptions are compounded, the result is a thin and shaky interpretation of the Agreement, which still seems to be an awkward fit with the 108 understanding of "elected" implicit in Article 41 of the Constitution.
Even if this interpretation of the Agreement and Article 41 of the Constitution is accepted, Article 27 may continue to pose problems for the Agreement. As set out above, it offers more specific details as to the procedure which will be required to elect Joint 109 Council representatives in an amalgamated local union. These procedural requirements apply regardless of "whether they are elected directly to the council or are members because of another elected position they hold." While the "indirect election" may simply be an awkward fit with Article 41, it clearly fails to fit the requirements of
Article 27. Given the Agreement's clear intention that the Executive Council is to serve as the governing body of the CAW Magna Local, for both collective bargaining and
107 FFA, supra note 46 at 10. Of all the leaps, this may be the most reasonable, as discussed above. 108 For example, the inclusion of provisions for a recall vote in Article 41 suggest a higher degree of worker participation in the electoral process than is anticipated by the "indirect election" process described in the CAW's interpretation of the Agreement. 109 See supra note 88 and text accompanying. CAW Constitution, supra note 49, Art. 27, at 83. 180
internal union purposes, this apparent inconsistency with Article 27 is a serious
problem.
This last issue to address is the broader relationship between the CAW National
Union and the chartered Magna Local Union. The most significant problems in that
relationship are the appointment and recall of the Employee Advocates. While the CAW
Constitution does address bargaining, there is no requirement that the local union have
full control of the process. Instead, the Constitution requires only that the local union
must approve the negotiations before they take place, and that the resulting agreement 112 must be ratified by the local membership. Both of these requirements are satisfied in
the CAW/Magna Agreement. However, it may be significant that the only Local
representative with a role in bargaining is the President, potentially elected in violation of
the Constitution through the process outlined above.
The CAW National AP's discretion to recall an EA once appointed may be
113 problematic, in light of Article 41, as mentioned above. It may also not be quite as
unfettered as it appears in the Agreement. The courts have proven willing in the past to
intervene in order to protect local officers and representatives from removal where there
has been a breach of either the provisions of the union's constitution, or the rules of
See supra note 69 and text accompanying. 112 CAW Constitution, supra note 49, Art. 19, s. 3(a), at 55-56. For another example of CAW bargaining led by the National Union, one need turn only to negotiations toward a national agreement with the so-called "Big Three:" Ford, General Motors, and Chrysler. 113 See supra, note 98. 181
114 natural justice. It seems likely that a court would require the CAW National AP to
show cause before upholding the dismissal of the EA.
Regardless of whether or not there are problems with the broader relationship
between the CAW National and the Magna Local, there is a significant potential
inconsistency between the terms of the CAW/Magna Agreement relating to the
appointment of Employee Advocates and the provisions of the CAW Constitution
relating to both the governance of amalgamated local unions and the election of worker
representatives. This inconsistency is important in several respects. First, it suggests that the appointment process is a significant deviation from standard practice, and is not in
fact as commonplace as the Union made it sound in its promotion of the Agreement.
Second, it may place the CAW National in the unenviable position of having to choose between adherence to the Agreement, or to their Constitution.
If the leadership chooses the Agreement over the Constitution, dissatisfied members may be able to take them before the courts, either seeking an injunction to prevent the appointment of Council members (and therefore, Employee Advocates) by the CAW National AP, or even seeking damages for the decision to do so. As noted above, the courts in the past have been clear that unions are to abide by the terms of their constitutions in their conduct of elections. While the courts have yet to deal with a case such as this, an agreement to appoint representatives in the face of a provision requiring
114 Lynk, supra note 9 at 44-45, describing the case of Taylor v. Atkinson (1984), 6 C.C.E.L. 112, which "involved a local Steelworker president whose executive removed him following an intense period of internal factional infighting. The Ontario High Court found that the union had breached a number of constitutional safeguards, as well as violating the rules of due process." CAW Presentation, supra note 96. 182 their election is as significant a breach of the Constitution as those at issue in Howard v. _ . 116
Pamnton.
Of course, the Union might adopt the interpretation of the Constitution outlined above, suggesting that the Agreement presents no inconsistency with the terms of the
Constitution. There is no guarantee that a court would accept this interpretation, however.
Its flaws are fully canvassed above. If a court were to reject the Union's interpretation of the selection process, and of the requirements of Article 41, then the court would be faced with an opportunity to change the direction of the relationship between the Union and the
Company. The Union's possible deviation from the terms of its own Constitution is certainly problematic, but it is questionable which is the greater evil: breaching the
Constitution, or inviting judicial intervention in an experiment so vulnerable in its infancy that the parties have attempted to exclude even the expertise of the Labour
Relations Board from its regulation. Moreover, the legal situation of actions in Ontario courts against a union and its leadership is uncertain since the decision in Berry v. 117 Pulley. That case held that the union itself may be sued for breaching its constitution, and that it was inappropriate to sue the other members on the previously-accepted "web
118 of contracts" theory. The Court failed to address the Ontario Rights of Labour Act,
119 however, which expressly denies legal status to a trade union. On one interpretation,
116 o Supra note 79. 117 [2002] 2 S.C.R. 493 [Berry v. Pulley]. 118 This legal fiction held that a union constitution was essentially a contract between each member and all others, and that the other members could therefore be sued directly for a breach of the constitution. It was designed to escape the early common law's denial of legal status to unions {Berry v. Pulley, ibid, at paras. 34-41). 119 R.S.O. 1990, c. R33, s. 3(2) [Rights of Labour Act]. 183 at least, unions certified in Ontario cannot be sued for breaches of their constitution by virtue of the Rights of Labour Act, while their leadership cannot be sued for the union's 120 breaches by virtue of Berry v. Pulley. The entire situation rests on unstable legal terrain, making it even more difficult to predict how the courts would respond to an application by CAW members alleging that the Union has breached its constitution by promising to create a local union in violation of the above sections.
It is hard to imagine what the CAW can do to address this problem. If it adopts the interpretation set out above, as the December 2007 presentation suggests is the case, then the probable answer is that it will do relatively little. To secure the constitutionality of the Agreement, the leadership could seek changes to the CAW Constitution at the next
Constitutional Convention, explicitly rendering the sort of "indirect election" process described here satisfactory under Articles 41 and 27. That convention, however, remains 121 over a year away. Reworking the EA selection process to accord with the Constitution would seem to be even more difficult. Negotiating amendments to make explicit the limits on the CAW National AP's discretion and, more importantly, to shorten the timeline for the first ratification vote would be helpful, but even this may not be enough to satisfy a court that the Agreement is in compliance with the CAW Constitution. No
See George Adams, Canadian Labour Law, 2n Ed., looseleaf (Aurora: Canada Law Book, 1993) at 14-49; he notes that the Ontario Court of Appeal addressed this issue shortly after Berry v. Pulley, but that they failed to resolve it: Professional Institute of the Public Service of Canada v. Canada (Attorney General) (2002), 222 D.L.R. (4th) 438 (Ont. C.A.). In that case, the appellant unions were not certified under Ontario law, but were rather federal public service unions, which derived their legal status from the Public Service Staff Relations Act {ibid, at para. 31). As a result, the court did not have to decide the conflict between the Rights of Labour Act and Berry v. Pulley, suggesting instead that the former be revised in light of the latter {ibid, at para. 45). 121 The CAW Constitution states that the next Constitutional Convention will not be held until August, 2009: CAW Constitution, supra note 49, Art. 9, s. 1, at 12. 184 easy solution suggests itself for the leadership of the CAW. The potential inconsistencies between the Constitution and the CAW/Magna Agreement give rise to a significant risk of dissatisfied members of the CAW destabilizing the Agreement by forcing its interpretation before the courts.
b. Principled Objections
Independent of its inconsistencies with the CAW Constitution, the structure of representation set out in the Agreement remains deeply problematic. The appointment process offers little to no opportunity for involvement on the part of the membership who will be represented by the Employee Advocate, beyond the initial election of the Fairness
Committee members. There is no room for consultation of or submissions from the
Advocate's constituency at either the Fairness Committee or the CAW National AP levels of the process. There is no ratification vote provided for the membership to approve or reject the appointment (unless one accepts the CAW's assertion that the referendum required in the Agreement will be held on a shorter timeline than the 36 months it describes). The Advocate instead is selected in a process which is essentially closed from start to finish, and in which an unelected member of the Union elite has the final say.
It is difficult to view this process as a part of a legitimate system of employee representation. Legitimacy would require that everyone affected have the greatest possible opportunity for participation in the decision making process. As is set out above, this legitimacy is an essential part of maintaining representation that is responsive to the interests and the will of the represented. In the present case, it is difficult to say with 185 certainty that the Employee Advocate's representation will be responsive to the wishes of the represented employees. The EA seems more likely to respond to the needs and wishes of the National Union, as embodied in the CAW National AP. Without only a limited opportunity for the employees to regularly comment on the quality of service they are receiving, and effectively no opportunity to participate in setting policy and bargaining goals, and in shaping the EA's actions and priorities, however, there is little to maintain a connection between representative and represented. The closed selection process, coupled with the infrequent opportunities for comment on the EA's performance may contribute to the alienation of Magna workers, and dissatisfaction with the representation afforded by the CAW.
c. The Toliticization' and Free Speech Problem
One final potential limit on the capacity of CAW members at Magna to take part in the discourse of their own representation is contained in an appendix to the National
Agreement. In a memo titled "Letter Regarding Depoliticization of the Work
Environment" (the Letter), the parties agree that "activities in a division that politicize or polarize the workplace" may "disrupt the operations and create a negative work environment... and lessen the democratic involvement of employees in workplace 123 issues." Space is preserved for an employee to continue to "communicate with his or her co-workers on issues of interest, provided that such activities do not disrupt the
124 efficient operation of the division." While this does not explicitly limit criticisms of
123 National Agreement, supra note 57 at 91. 124 ibu,. the union, what exactly constitutes an activity which polarizes or politicizes the workplace is left undefined. This may leave significant space for restrictions on the capacity of Magna employees to debate issues of the Union's internal representative processes. It is also worth noting that the restriction is limited neither to working hours, nor to the shop floor.
On top of the extremely limited direct or formal participation of employees in selecting the Employee Advocate, this provision might be relied upon to limit the capacity of employees to informally debate or criticize the performance of the EA.
Conceivably, vigorous criticism of an unpopular stance or move by an Employee
Advocate could be suppressed as "politicizing the workplace," or heated debate could be 125 discouraged as "creating a negative work environment."
It may be helpful to compare the terms of the Letter to standard practice in labour relations. Arbitral jurisprudence regarding the discipline of employees for conduct and comments in the workplace offers one window on the generally accepted norms.
Generally speaking, arbitrators will tolerate a broad range of conduct in the workplace, but will uphold discipline for conduct which harasses or threatens another employee, or
1 0f\ which constitutes insolence or defiance of management directions.
In Metropolitan Toronto (Municipality), an arbitral board upheld penalties of two written warnings and one suspension against three grievors involved in circulating a letter which alleged that "management has recruited one of the workers to act as an informer;
125 Md. 10ft See Donald J.M. Brown and David Beatty, Canadian Labour Arbitration, 4th Ed., looseleaf (Aurora, ON: Canada Law Book, 2006) at para. 7:3660. 187
127 to report on what he sees and hears among the workers." Management based the decision to discipline the grievors on its harassment policy, and the arbitral board for the most part upheld the discipline on the grounds that "the intentional spreading of hurtful mistruths about fellow employees, or making untrue statements recklessly in the sense of not knowing or caring whether they are true or not, can open an employee to
128 discipline." In the same breath, however, the Chair noted that "[a]bsent exceptional circumstances, an employer will not have just cause to discipline an employee for
129 providing factually correct information to other employees." Obviously, this case dealt with criticism of management rather than criticism of coworkers or union representatives, but the arbitrator's statements are nonetheless informative.
Cases of criticism of management and coworkers and inflammatory statements further expand the range of unacceptable conduct from employees. In one case, an arbitrator found discipline for posting the dictionary definition of "scab" on the
130 employees' bulletin board during contract negotiations to be unwarranted. This decision was based in part on the grounds that there was no evidence that any employee was harassed or intimidated by the posting, and on the finding that the employer had
127 Metropolitan Toronto (Man.) v. C.U.P.E. Local 79 (1998), 51 C.L.A.S. 260 at para. 34. 128 Ibid, at para. 133. The suspension was reduced in length from three days to one, on the finding that its length was influenced partly by the grievor's position as shop steward (ibid, at para. 154). 129 Ibid, at para. 133. 130 Boeing Canada Technology Ltd. andC.A.W., Loc. 2169 (Hoeppner) (Re) (1997), 62 L.A.C. (4th) 395 at 417. 188
131 tolerated such conduct in the past. The arbitrator emphasized, however, that it was
open to the employer to remove postings it found "objectionable" from the bulletin board,
and to produce and promulgate reasonable policies on such information, provided that 132 they were not inconsistent with the collective agreement. In yet another case, the
grievor placed a picture of his employer's PR representative on a bulletin board next to a
picture of a donkey, along with the words "company PR man... we know what PR is 133 short for." The arbitrator upheld the dismissal of the grievor, citing his prior
disciplinary record and the irreparable harm done to the employment relationship by his 134 "deliberate and preconceived slurs on the credibility and authority of management."
Cases involving discipline for criticism of the actions of union representatives are
more difficult to find, which should not come as a surprise in light of the adversarial
labour relations climate common in Canada. Nonetheless, the cases above show that even
in the absence of such a broad prohibition on "polarizing" the workplace, there are outer
limits to the behavior that an arbitrator will tolerate at the workplace. Moreover,
management is allowed significant latitude in defining conduct that will and will not be
considered acceptable. Perhaps the letter will only be applied to prevent the sort of
131 Ibid, at 418. 132 Ibid, at 420; the arbitrator made reference to "the well-known KVP tests," governing the unilateral introduction of new rules by the employer, which authorize such rules even if not agreed to by the union as long as they: 1) are not inconsistent with the collective agreement; 2) are reasonable; 3) are "clear and unequivocal"; 4) are brought to the employees' attention before being enforced; 5) are described to be justification for discharge before discharge is applied for their breach; and 6) are consistently enforced: Re Lumber & Sawmill Workers' Union, Local 2537, AndKvp Co. Ltd. (1965), 16 L.A.C. 73 at 85. 133 Highland Valley Copper and U.S. W.A., Loc. 7619 (Marcus) (Re) (1999), 82 L.A.C. (4th) 310 at 311. 134 Ibid, at 324, 320. 189
conflict and dysfunction addressed in the arbitral jurisprudence outlined above, and not
applied to limit internal union policy debate and criticism of the EA's actions. In such a
case, it would seem to be a reasonable limit on conduct which has the potential to
seriously undermine the work environment at Magna, and the relationship between the
Company and the Union. Depending on how it is presented to employees and enforced in practice, however, such a broad and vague limit on the freedom of communication of
employees may have a chilling effect on the willingness and enthusiasm of employees to participate in vigorous debate and discussion over aspects of their Union's representation of their interests. In combination with the strict limits on opportunities for formal participation in the union's representative processes, this chilling effect might seriously limit the opportunities for democracy in the CAW at Magna.
These limits on the ability of employees to affect the course of their own representation, taken as a whole, represent a threat to the legitimacy of that representation. The classical hallmark of democracy, voting to elect your own representative, is almost absent, in probable opposition to the CAW Constitution and the
Union's own common practices reflected therein. This alone may not be enough to render the selection processes illegitimate - they could be legitimized by providing formal opportunities for employee input and participation, or even by providing for immediate 135 ratification votes on the appointment of the EA. Neither of these measures are explicitly adopted in the Agreement, however, and debate over the union's representation
See supra note 36 and accompanying text, regarding the inappropriateness of elections as the sole measure of union democracy. may be further circumscribed, ostensibly over fears of "polarizing the workplace."
These are major limits on the capacity of the CAW to offer democratic representation of its members at Magna, limits which are in tension with the CAW's own espoused values.
3. Limits on Democracy to Constrain Conflict
It is important to understand why the parties have decided to incorporate these limits into their Agreement. The previous Chapter emphasized the importance of containing and structuring conflict between the parties in order to sustain a cooperative relationship. This goal for the limits on democracy is not set out in so many words in the
Agreement, but it is nonetheless apparent in the language of the preamble, in the letter on the politicization of the workplace, and in the emphasis on cooperation and joint problem-solving throughout the Agreement. In every case, the focus of the parties is on promoting and preserving this fragile experiment in cooperation. The emphasis is on keeping everyone "on message," to borrow a phrase from politics. The fear which is readily apparent behind the mutual assurances of a cooperative focus is that one of the parties (or one of its constituent elements) will lose faith in the project, and pursue a return to an adversarial relationship.
Of course, there is little risk of representatives of the Company changing direction in this way. As long as the corporate leadership stays focused on cooperation, the individual divisions have little choice but to fall in line. The same cannot be said, however, for the Union. While the Company is structured in a fairly tight command-and- control hierarchy, the Union is (ostensibly at least) the manifestation of the will of its
National Agreement, supra note 57 at 91. 191 membership. As is apparent from the debate which resulted from the announcement of the FFA, that membership might pull the Union in dozen different directions. A faction within the Union is more likely to lose faith in the cooperative project and attempt a withdrawal than one within the company.
As was discussed in the previous Chapter, both sides need assurances of sincerity from the other in order for labour-management cooperation to succeed. The cooperative project rests uneasily on the foundation of over a hundred years of consistently 137 adversarial labour relations in Canada, a backdrop which takes a toll on the trust between the parties. To enter a cooperative relationship with the Union, the Company seeks some sort of guarantee that it will not open the door to the collective representation of the employees, only to face a militant adversarial faction representing some portion of its employees in the coming years. The Union can only offer that kind of guarantee if it places restrictions on its internal democracy.
The Agreement speaks to the selection of Local Union representatives in order to allow the National Union to offer the Company some guarantees of the good behavior of its Local. If the Agreement provided for direct elections, it might be possible for the dissatisfied membership of a particular plant to elect militant representatives, who would press strongly for greater gains in bargaining at the expense of the parties' strategic
A pattern for the labour-management relationship which is institutionalized to a significant extent in labour relations legislation throughout the country: see Chapter III, section E.l, above. 192 management of their relationship, or who might even consider breaking the strike ban to
138 force those gains from the Company.
From the National Union's perspective, the Framework of Fairness Agreement is the fruit of over two years of bargaining, and more than ten years' prior effort at
organizing Magna's Integram Seating plant in Windsor. The result is an opportunity to offer union representation to over 18,000 employees of Magna who in all likelihood would otherwise never have access to it. The Agreement remains vulnerable, however, and a particularly aggressive stance by a segment of the Local, or even by the Local as a whole could set the relationship between the Company and the Union back years, to the days when the Union had to fight for every inch of Integram. Limits on internal democracy such as the closely circumscribed electoral and representative processes may seem to be a small price to pay for maintaining the gains made at Magna over the last two decades.
Curiously, another author has also pointed to the CAW's willingness to restrict 139 the scope of its internal democracy, but in the pursuit of a very different goal. In 2000,
Frost noted that the CAW had adopted a strategy of resistance to formalized partnerships or cooperation with employers, to statements of a mutual orientation toward competitiveness, and to strategies of employee involvement in workplace decision-
138 See Chapter V, Section D.2.b, below: it is questionable whether this would be legal within the bargaining unit structure established by the Agreement. Of course, there is no guarantee that a militant sect within a particular division would not attempt to take action outside the law, and this is equally true even in light of the restrictions institutionalized by the Agreement. Neither the Union nor the Company is in any position to offer guarantees against this sort of behavior. Instead it is up to the formalized dispute resolution processes to preserve the tone and stability of the parties' relationship in such a case. 139 Frost, supra note 1. 140 making. The author described how the CAW resisted pressures for decentralization and greater integration with individual employers by defining the interests of its members 141 m ways the Union felt able to represent. Rather than allowing total freedom in the debate over Union policy and strategy, which might generate unmanageable internal tension as the Union moved in conflicting directions, the Union limited the discussion to directions it believed itself to be capable of handling, all with the intention of 142 "preserv[ing] the viability and strength of the union in the long term."
It is interesting that the CAW now seems to be pursuing a similar strategy, but with the opposite goal. Rather than limiting internal democracy to avoid pressure from the membership to assume a more cooperative relationship with a particular employer, the CAW is limiting its internal democracy to avoid resistance from the membership to a cooperative relationship still in its infancy. Contrary to what the Union might expect, however, these limits may eventually offer more harm than benefit for the relationship, and even for the union itself.
4. Limits on Democracy which Corrode Cooperation
As outlined above, democratic participation by the membership in the Union's processes of representation presents an important means of maintaining a connection between the will of the members and the actions of the leadership. Without protected opportunities for participation in shaping the direction taken by the Union in bargaining,
140 Ibid, at 280. 141 Ibid, at 282. 142 Ibid. 194 without an opportunity to freely discuss, criticize, and respond to the positions adopted by the Union's leadership, it is all too easy for elites within the Union to fall out of touch with the interests of the membership. This is so even where the Union begins by seeking only what it believes is best for the members, for instance better pay, more influence over their terms and conditions of work, and so on.
The potential for employees who are dissatisfied with the inconsistencies between the Agreement and the CAW Constitution to bring their concerns before the courts has already been addressed. The attention of the courts to the terms of the Agreement could be enormously destabilizing. In accepting provisions in the Agreement which stand in potential inconsistency with the terms of the Union's Constitution, the CAW leadership may have placed the Agreement in greater danger than if they had set out from the start to negotiate the election of Employee Advocates.
Moreover, faced with a growing sense of divergence between their wishes and the actions of the Union leadership, Magna employees may experience a sense of alienation from the Union. Even without restrictions on the members' participation, there is already a risk of alienation in the CAW at Magna. Strauss notes that participation by the membership tends to be more vigorous in the local union, where the members know the leaders and can see the immediate impact of their actions, than in a national or
143 international union where the leadership may appear quite distant. However, the
Magna Local anticipated in the Framework of Fairness Agreement is enormous. At
Strauss, supra note 12 at 214. 144 18,000 members, it would rival the largest existing CAW Local in size. It is also
potentially very widespread, covering plants all over Ontario as well as one in Nova
145 Scotia. This alone will make maintaining interest in and commitment to the Union
difficult, and it will be made no easier by the relatively limited presence of the Union on 146 the shop floor. With alienation may come a drop in the members' commitment to the
Union, further declines in participation, and possibly even dissatisfaction and efforts at
decertification.
This may be a bigger threat from the Union's point of view than any risk of
employer influence arising from the cooperative relationship between the two. The
alienation resulting from a growing divergence between the interests of the Union and the membership may pose just as serious a risk to the stability of the cooperative labour- management relationship as allowing the employees a real, democratic chance to participate in the Union's representative processes, a chance to exert some of the influence over decisions that matter in their lives promised in the Framework of 147 Fairness. Excluding employees from decision making within the Union, and closely circumscribing their participation in the representative processes, may do more harm than good to the Union's goal of building a stronger, closer relationship between the Union, the Company, and its employees.
144 Local 222, based in Oshawa, has over 20,000 members. It represents workers at a GM assembly plant and a number of feeder plants: Frost, supra note 1 at 278. 145 But see Chapter V, Section C, below, regarding the legality of the interprovincial bargaining unit contemplated by the Agreement. 146 Only one Employee Advocate will be appointed for each division: see Chapter II, Section D, above. 147 FFA, supra note 46 at 5. 196
Excluding employees from opportunities to participate in the internal governance
148 of the Union may also do serious harm to the Union's capacity to remain independent.
The Union's sole and ultimate goal must be the representation of the interests of the employees. In adopting a cooperative stance to management, there is a risk that that goal will be undermined, that the Union's pursuit of the interests of its members will become blurred with its pursuit of the Company's interests. Open and free participation in the debates within the Union, free critique of Union policy and strategy represents the best means of guarding against this risk. Placing restrictions on the capacity of the membership to participate in this sort of activity exacerbates the risk that the Union will slide away from its membership and toward management, difficult to imagine as that may be for such a large and well-established union as the CAW.
What could be done to open up the participatory process? Direct elections of
Employee Advocates would obviously serve to both make the Local more independent and offer some much-needed democratic legitimacy to its decisions, while at the same time alleviating the tension between the Agreement and the CAW Constitution. Direct elections of representatives may be a tough sell for the Company however, and there may be other, more palatable ways to bring democracy to the process. Incorporating institutionalized procedures for employee input and consultation in the EA selection process would be one. For example, at the Fairness Committee phase of the selection process, the FC might be made to sit as a panel for an hour or two and hear comments from the workforce about the nominees, comments which could be passed along to the
CAW National AP.
148 The independence of the Union is critical to retaining the statutory authority to act as the representative of the employees. See Chapter V, Section B, below. 197
One aspect of the CAW's own interpretation of the Agreement, a ratification vote immediately after the appointment of the new Employee Advocate is a clear step toward greater legitimacy.. Thirty-six months is too long for the employees to wait before having a direct say in whether they approve or disapprove of their chosen representative. An immediate ratification vote would allow the employees to veto an appointment by the
CAW National AP which they found simply unacceptable, and would lend more electoral legitimacy to the process of "indirect election" by Fairness Committee delegates. Some degree of control would be retained by the CAW National AP over the process, however, as he would still have two other qualified candidates to choose from. This would also enhance the legitimacy of the Executive Council of the Local Union, and their election of the Local's officers. As it is, the election of the Local President by a body of essentially appointed representatives seems a pale shadow of real democracy.
The survey carried out in the first eighteen months to review the effectiveness of and satisfaction with the actions of the Employee Advocate is a positive feature of the
Agreement, and allows the CAW National AP to exercise informed discretion in deciding whether reason exists to remove an unpopular EA. Its usefulness is diminished, however, by an apparent lack of any ability on the part of the employees to take action on their own initiative until another eighteen months have passed and a secret ballot vote is held.
However, Article 41 of the CAW Constitution may offer an independent source of power for employees to initiate a recall vote at any time to remove the Employee Advocate from 149 office. The Fairness Committee would be available, of course, to supervise the vote and to ensure that it is not used inappropriately (for example, for discriminatory
CAW Constitution, supra note 49, Art. 41, s. 2, at 112. 198
purposes). Since the Constitution would probably allow the employees to take this action
independently of the CAW/Magna Agreement, and since its explicit incorporation would
enhance the appearance of democratic legitimacy in the Agreement, there would seem to
be little reason to refrain from incorporating it.
E. Conclusion
In light of the potential inconsistencies between the CAW/Magna Agreement and
the CAW Constitution, these relatively simple changes may go a long way toward
bringing legitimacy, and the appearance thereof to the system of representation outlined
in the Agreement. They would also take a significant step toward protecting the viability
and sustainability of the labour-management relationship established therein. They may
not go far enough to completely satisfy the requirements of the CAW Constitution,
however, leaving the Agreement at continuing risk of destabilization through legal action by dissatisfied CAW members.
Without some change, the regime established by the Agreement potentially places both the independence of the Union and the stability of the parties' relationship at risk.
There is no reason to doubt that the Union is entering this Agreement with the best of
intentions: to improve working conditions and the quality of life for Magna employees, to
offer them a voice in the workplace, and to act as a check on authoritarian management
control. Those intentions notwithstanding, the absence of concrete guarantees of internal union democracy affords the membership no way of ensuring that the Union will continue to represent their interests, rather than gradually preferring those of the
Company, or elite interests within the Union itself. 199
Addressing these problems may not be sufficient to save the Agreement, however.
The focus of the next chapter will be on the further legal challenges the Agreement is likely to face. While the democratic and constitutional problems with the Agreement have the potential to undermine its objectives in the long term, the discrepancies between its provisions and labour law norms may be of far more pressing importance. Chapter V: Law, the Labour Relations Board, and the CAW/Magna Agreement
A. Introduction
The CAW/Magna Agreement is a unique animal in Canadian labour relations.
The objective of this Chapter is to discuss the legal problems the Agreement is likely to encounter as a result of its originality. This will require a divided perspective on those problems. In each case, the problem arises from a basic tension or incompatibility between the structure of the Agreement, and the structure of the Ontario Labour
Relations Act, 1995 or its interpretation by the Labour Relations Board/ In certain cases, that tension is best approached from the perspective of the parties to the CAW/Magna
Agreement. In others, it is best viewed from the perspective of the workers at Magna.
Finally, in some cases, the tension is best viewed from a public policy perspective.
Considering the challenges the Agreement will pose from these distinct perspectives will help to illustrate two basic points.
First, as was suggested in the previous Chapter, tensions between the existing structures of labour law and the CAW/Magna Agreement will subject that Agreement to a potentially destabilizing trial by fire. The scope and controversial nature of the
Agreement suggest that it may face legal challenge as it grows. If the parties are able to adapt and sustain the Agreement in response to these challenges, however, it may emerge stronger and more beneficial for all involved. Second, the Agreement in certain key respects represents a radical departure from traditional labour law norms. As will become
Labour Relations Act, 1995, S.O. 1995, c. 1, sch. A [ONLRA]; given the Agreement's prospective coverage of a Cape Breton plant, it will also be necessary to consider the impact of differences in the labour laws of Ontario and Nova Scotia, as reflected in the Trade Union Act, R.S.N.S. 1989, c. 435 [NSTUA]. 200 201 apparent, the challenges faced by the Agreement may offer an opportunity for the Ontario
Labour Relations Board to reexamine some of its own long-standing policies to better address changing labour relations practice in the province.
Four broad categories of legal problems will be explored in this Chapter. The first section will explore problems arising from the prohibition on employer support for unions, and from challenges to the independence of the Union. The second section will consider issues relating to the virtually unprecedented size and definition of the bargaining unit in the Agreement, and to the limits that definition may place on the
Magna employees' ability to freely choose their representatives. The third section will explore problems arising from what might be termed the Agreement's 'voluntarism', or its efforts to opt out of the structures of the Labour Relations Act and pursue its own legal regulation of the relationship between the parties. The final section will explore problems relating to the Union's representation of its members in the Concern Resolution Process.
B. Independent Representation and Employer Domination
The first legal issue to arise in the CAW's organization of Magna workers returns in one sense to the topic of Chapter III. In issue is the freedom of Magna employees to choose their representative without interference from their employer. Employer interference in this choice is commonly envisioned as efforts to discourage employees from joining a union or from participating in its activities, in an attempt to remain "union free". Obviously this sort of interference is not in issue in the CAW/Magna Agreement.
However, a show of support by an employer for one union over another can represent just as serious a threat to the freedom of choice of the employees, as is recognized by the 202
Ontario Labour Relations Act. The Agreement requires a certain level of support from
Magna management for the organizing efforts of the CAW. While this support may not be particularly problematic where the CAW is unopposed in organizing, it is far more likely to be so where the CAW faces competition from a rival union.
1. The Statutory Prohibition on Support
The Act places three distinct limits on the relationship between an employer and a 3 union which is seeking to represent its employees. The first is set out in section 15, which prohibits the Labour Relations Board from certifying a union as representative "if any employer or any employers' organization has participated in its formation or 4 administration or has contributed financial or other support to it..." Because the CAW under the Framework of Fairness will be voluntarily recognized rather than certified by the Board, this section has little application to the present case. The second limit offers recourse to the Board to "any person" who alleges a breach of the following similar provision: "No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees
2 ONLRA, ibid, ss. 15,70. 3 See also David J. Doorey, "Neutrality Agreements: Bargaining for Representation in the Shadow of the State" (2006) 13 C.L.E.LJ. 41, online: Social Sciences Research Network
Act in section 53 states that "[a]n agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act if an employer or employers' organization participated in the formation or administration of the trade union or contributed financial or other support to 7 the trade union." The last two sections are the most important for the purposes of the
CAW/Magna Agreement.
How would the question of employer interference come before the Labour Board in the present case? Any person may apply to the Board for relief alleging that the 8 employer has committed an unfair labour practice in violation of section 70. The specific relief the Board could offer in the context of open employer support for the
Union is not set out in the statute. However, allegations of employer support for the
Union prior to the representation vote might be sufficient to support a section 66 9 application for termination of the Union's bargaining rights. Although such an application would stand little chance of success on its own, allegations of a breach of sections 70 and 53 might encourage a closer look by the Board.
The issue might also arise in an application for certification by a competing union.
The bargaining unit definition included in the National Agreement places limits on the
Ibid, s. 70, emphasis added. The following arguments likely apply equally to both jurisdictions, except where expressly stated otherwise. 7 Ibid, s. 53. 8 Ibid, s. 96. 9 Ibid., s. 66 allows applications to terminate bargaining rights arising from voluntary recognition on the grounds that the union was not at the time of the recognition entitled to represent the employees. See Section C.2, below, for a longer discussion of the availability of this section to CAW members. 204 ability of another union to displace the CAW in individual divisions, as will be discussed below. If the National Agreement is determined by the Board not to be a collective agreement by virtue of Magna's show of support for the CAW, then that bargaining unit is irrelevant, and a competing union can define the unit as it wishes on a certification application. Moreover, a competing union is not limited to the open seasons set out in the
Act in making its application if the existing Agreement is not a valid collective agreement in the eyes of the Board. The question of what constitutes employer support for the union is important, not only for the viability of the CAW/Magna Agreement, but also for cooperative experiments in labour relations generally.
2. Neutrality and Interference
There is a fine line between employer neutrality and illegitimate employer support for union. Voluntarily-ordered models of labour relations must always walk this line to some extent, but the CAW/Magna Agreement treads particularly close to the precipice.
The comprehensive cooperative framework in the Agreement makes it unlikely that
Magna's support for the CAW will be challenged until the Agreement reaches a crisis point: a challenge from dissatisfied employees, or from a third-party union. Such a crisis will put the terms of the Agreement to the test.
David Doorey describes the legal uncertainty faced by parties to neutrality agreements, and his comments could just as easily be applied to voluntary recognition agreements:
See Section C.2, below. These provisions [ss. 15, 53, and 70] communicate an ambiguous message to the parties about the utility of neutrality agreements. Is neutrality by an employer unlawful interference or participation? What about providing an employee list, giving a union access to employer property, or agreeing to forgo a representation election in favour of a voluntary card-check process? Applied literally, these provisions could preclude employers from agreeing to any of the terms usually found in neutrality agreements that make organizing easier.
Doorey's interpretation of these provisions would be extreme: the purpose of the
statutory provisions is of course not to prohibit the execution of voluntary agreements
between unions and employers, nor to inhibit cooperation in labour relations. The Ontario
Labour Relations Board in one frequently cited passage explained the reasoning behind
the prohibitions on employer support:
The spirit of the legislation and the cases before this Board which have invoked that spirit resulted because of the potential for a conflict of interest with respect to certain issues in collective bargaining. That is not to say that co-operative and harmonious relationships do not exist between employers and trade unions. But it does consider that on occasion there 12 will be issues where relationships must be maintained at arm['s] length.
It may be most helpful to set out the possible breaches of the prohibitions on employer
support revealed by the CAW/Magna Agreement, before considering in more detail the
Doorey, "Neutrality," supra note 3 at 46. 12 Ontario Hydro, [1971] O.L.R.B. Rep. Aug. 501, at 504 [Ontario Hydro (1971)]; see also George Adams, Canadian Labour Law, 2nd Ed., looseleaf (Aurora: Canada Law Book, 1993), at 10-17 [George Adams]. The issue in Ontario Hydro (1971) was whether an association representing professional engineers at Ontario Hydro was a trade union within the meaning of the Labour Relations Act, at the time it negotiated a letter of understanding providing for voluntary recognition from the employer: Ontario Hydro (1971), ibid, at 503-04. Ultimately the Board decided the case on the grounds that the association represented both employees and members of management, and so presented the sort of potential conflict of interest contemplated by the prohibitions on employer support in the Act: Ibid, at 504. precedent from the Ontario Board interpreting ' employer support" and its implications
for the Agreement.
Several of the actions that the CAW/Magna Agreement requires of the Company prior to the taking of the representation vote pose some risk of being viewed as
illegitimate employer support for the Union. First, the management of the organizing
division is required to provide to the union a list of all employees at the division who are 13 potentially covered by the "prospective bargaining unit." This list is to include "each
14 employee's full name, date of hire, classification, and department." Second, the
management of the division is required to provide access to employees on company property to "a reasonable number of Union representatives," to communicate about the union and the vote, for seven working days prior to the vote. The FFA stipulates that
"Such access must not disrupt the efficient operations of the division," and that
conversations between employees and organizers are to take place only in non-working areas of the plant, and on non-work time.
Third, the Company is required to appear with the Union before a gathering of employees at the division targeted for organization in order to affirm its support for the
13 CAW & Magna International, "Framework of Fairness Agreement" (15 October 2007), online: CAW-TCA Canada
18 negative employer interference in union organizing. All three of these areas vary from adversarial labour relations norms. In all three, however, the Labour Relations Board is unlikely to find that the actions required of Magna constitute unlawful employer interference with the Union except in cases where the CAW faces competition from a third-party union and Magna refuses to extend the benefits of the Agreement to both. In
Since this is potentially the most risky requirement in the Agreement, it is worth reproducing its terms in full:
The Company shall provide the Union access for a meeting with its employees on the Company's premises during work time, immediately prior to the mutually agreed upon time of the Vote. The Company will introduce the Union at the meeting and communicate to employees that they have a constructive and positive relationship. The Company shall also advise employees that a National Agreement exists, in which both parties are committed to the success and growth of the facility. The parties will communicate to employees their strong support for the principles and values expressed in the Framework of Fairness Agreement and the National Agreement (the "Agreements") and will outline how employees may choose to be represented by the Union under the terms of the Agreements. The parties will also confirm their commitment to respect the democratic right of employees to choose through a Vote, whether or not to be represented by the Union under the terms of the Agreements... The parties agree that a mutually agreeable period of time will be allotted to allow a full discussion of the issues, including explanation of the terms of the Agreements, and adequate time for questions and answers. (Ibid)
18 See e.g. David J. Doorey, "The Medium and the 'Anti-Union' Message: Forced Listening and Captive Audience Meetings in Canadian Labour Law" (2008) 29 Comp. Lab. L. & Pol'y J. 79 [Doorey, "Medium"], where the author defines a captive audience meeting as "an assembly of workers at the behest of their employer, usually occurring during working hours, and with the express purpose of requiring employees to listen to the employer's opinions. They involve the unusual practice of'forced listening,' whereby leaving may have negative implications for their employment security." (Ibid at 79-80). The analogy between captive audience meetings and the meetings required by the Framework of Fairness Agreement is not the strongest, as the discussion in subsection B.2.c will show. 208 such a case, Magna support for the CAW in the forms discussed here begins to look like a restriction on the free choice of employees, an appearance which is lacking where the
CAW is organizing without competition.
a. The Employee List
Obviously supplying a list of the names and positions of employees in the prospective bargaining unit assists the Union in its efforts to organize those employees.
The question is whether this assistance is sufficient to constitute unlawful support under the Act. The short answer is that the mere provision of a list of employees on its own is not viewed by the Ontario Board as sufficient to constitute unlawful interference. In
Continuous Mining Systems, the employer gave the organizing union, the United
Steelworkers of America (USWA-Canada) a list of not only the names of its employees, 19 but also of their addresses and phone numbers. A group of employees dissatisfied with the certification of the USWA-Canada alleged that this constituted unlawful support for the union by the employer and consequently invalidated the Union's certification, under
20 then-section 13 (now section 15). The Board observed that it had traditionally adopted a purposive approach to interpreting the prohibition on employer "support" contained in
, , 21 the Act.
The Board in CMS distinguished an earlier decision, in which it had found the provision of a list of employees including names and addresses to be unlawful support,
19 Continuous Mining Systems, Limited, [1990] O.L.R.B. Rep. April 404 at para. 3 [CMS], cited in Doorey, "Neutrality," supra note 3 at 20-21. 20 CMS, ibid, at para. 5. 21 „ . , Ibid, at para. 7. 209
22 on the basis of this purposive approach. In that case, the Board pointed out, the list had been offered in the context of competing certification applications, and a long history of management animosity toward unions and collective bargaining generally; in other words it was a part of a strategy to secure the very sort of "sweet-heart deal" the Act attempts to
23 24 prohibit. In the case at hand, the Board found no evidence of anything of the sort.
While the Board cannot be taken to have validated the provision of employee lists in all circumstances, they clearly hold that providing such a list will not, on its own, be enough 25 to constitute unlawful support for the Union. In the case of the CAW/Magna Agreement^ the only requirement is that the Company provide a list of employees and their job titles, not their addresses or personal contact information. This is even less information than was in issue in Continuous Mining Systems. It seems unlikely that this would be enough on its own to convince the Board that the Company is offering unlawful support to the CAW. As will be explained, this answer may differ where the CAW is facing competition from a third-party union.
b. The Access to Employees
The second requirement, that management of the targeted division provide access to employees for seven working days before the representation vote, has also been found by the Ontario Board not to constitute unlawful interference with the union. In Nova
22 Ibid, at paras. 9-10, distinguishing Tri-Canada Inc., [1981] OLRB Rep. Oct. 1509. 23 CMS, ibid, at para. 11. Ibid, at para. 12. 25 See also, Doorey, "Neutrality," supra note 3 at 46; George Adams, supra note 12 at 7- 65. Scotia, the law is even clearer: the Trade Union Act m its prohibition on union solicitation on employer property includes a specific exception for solicitation which occurs with the consent of the employer. While there is no statutory equivalent in
Ontario, the case law makes the Board's position clear. One leading case on access to 27 employees on company property is Coca-Cola. In that case, the CAW was competing with the United Food and Commercial Workers (UFCW) in a displacement application 28 following the prior intermingling of several bargaining units represented by each union.
The CAW won the vote by a significant margin, and the UFCW applied to set aside the vote and deny certification on the basis of support allegedly offered by the employer
29 contrary to sections 15 and 70.
The support complained of by the UFCW amounted to "tacitly permitting organizing by one union on its premises against the incumbent union... failing to stop
CAW-Canada supporters from soliciting support from workers in the workplace cafeteria and other sites at work for some hours on November 7 and on the date of the
0f\ NSTUA, supra note 1, s. 54(d), which reads:
54 No trade union and no person acting on behalf of a trade union shall... (d) except with the consent of the employer of an employee, attempt, at an employee's place of employment during the working hours of the employee, to persuade the employee to become, to refrain from becoming or to cease to be a member of a trade union (emphasis added).
27 Coca-Cola Bottling Co., [2004] O.L.R.B. Rep. (January/February) 23 [Coca-Cola], cited in Doorey, "Neutrality," supra note 3 at 47. 28 Ibid, at para. 3. 29 Ibid, at paras. 13-14. 211
30 representation vote..." Even in the presence of a competing union, the Board found
that merely allowing union representatives access to the employees, even if it was 31 intentional, was not sufficient to constitute unlawful support for a union. The tolerance
of union organizing activity on company property was not enough "to suggest the CAW- 32 Canada will not owe its sole allegiance to the employees it seeks to represent." The
Board did acknowledge, however, that the employer will be held to a higher standard of
neutrality where multiple unions are competing for the affections of its employees, rather 33 than where of a single union seeks certification. In light of the clear statement in Coca- Cola, and the statutory tolerance in Nova Scotia for union access to employees, the access provisions of the CAW/Magna Agreement do not seem particularly problematic in the absence of a competing organizing drive.
c. The 'Captive Audience' Meeting
The third show of support for the Union by the Company offers a convenient vehicle to consider what would happen in the event of a competing organizing drive to that run by the CAW. The meetings mandated by the Agreement between management, union representatives and employees clearly represent a show of management support for 34 the union. The question remains, how far may the Company go in expressing its
30 Ibid, at paras. 15, 18. 31 Ibid, at para. 32. 32 Ibid, at para. 34. 33 Ibid, at para. 30. 34 Much may turn on what precisely is said at these meetings, and how, making it difficult to assess the potential for a violation of the Act relying only on the text of the 212 approval of the Union without crossing the boundary into unlawful interference with its employees' choice? Two distinct inquiries are relevant in answering this question. Firstly, what measure of overt support for the union is the Board generally willing to accept from an employer in an organizing drive, and how does the script set out for division management in the CAW/Magna Agreement compare? Secondly, how is the Board's tolerance for employer support affected by a competing organizing drive by another union?
The second question is in many ways easier to answer than the first. The outer limits of the support which an employer can offer a union without running afoul of the
Act have been tested primarily in cases involving competing unions, for obvious reasons.
Some actions which will be a clear violation under any circumstances can nonetheless be 35 drawn from those cases. For example, the employer may not actively seek out a union for its employees, and then assist them in arranging the meeting. The case law
relevant provision of the Agreement. Unfortunately, we must work with what information is available. 35 For a comprehensive review of the cases on employer interference, see, George Adams, supra note 12 at 10-16 et seq. Coons Heating & Sheet Metal Limited, [1978] OLRB Rep. June 525 [Coons Heating]; see also Covertite Eastern Ltd. and CLACLoc. 52 (Re), [1996] O.L.R.B. Rep. May/June 386 [Covertite'], cited in George Adams, ibid, at 10-17. Coons Heating involved a construction industry employer who needed to be unionized in order to secure a contract on which he had submitted the winning bid (Coons Heating, ibid, at 526). He conferred with his five employees, who suggested he consult the Sheet Metal Workers Union (SMWU) or the Christian Labour Association of Canada (CLAC) (ibid). After calling both, the employer met with a CLAC representative, and passed the representative's contact information on to his employees, encouraging them to move quickly so that they did not lose the contract: (ibid, at 527). The CLAC filed an application for certification, and shortly thereafter the USWU made contact with the employees an after some discussions launched an application alleging employer interference in the certification of CLAC (ibid, at 529). The Board found that the employer's actions in attempting to organize his own employees were improper, but also criticized both CLAC and the 213
suggests, however, that the Board will tolerate quite a wide range of actions on the part of
the employer, so long as those actions do not reflect a preference for one union over
another. In Upper Canadian Furniture Ltd., for example, while explicit employer support
for an in-house employee association in the face of an organizing drive was found to be
an unfair labour practice, the Board held it to be curable by ordering another vote, with
the employer offering the union the same benefits and support it had extended to the
37 employee association.
In the context contemplated in the Agreement, of a gradual, unopposed
organization of Magna divisions by the CAW, it seems difficult to ascribe to the
statements required from division management an impact similar to the above violations
of the Act. The only explicitly pro-union statement the Agreement requires is the
assertion that the Company and the Union "have a constructive and positive
SMWU for working through the employer rather than directly with the employees {ibid. at 530). In Covertite, the employer was already organized by the SMWU, but faced difficulties in winning bids on new contracts (Covertite, ibid, at 387). An employee sought out the CLAC because of rumours of lower wage rates and more flexible classifications, and set up a meeting between CLAC representatives and the employees (ibid, at 388). The employer subsequently made it clear that it supported this move, and further supported representation by the CLAC (ibid, at 396). The Board held this to be sufficient to constitute unlawful interference (ibid). 37 Upper Canadian Furniture Ltd., [1981] 3 Can. L.R.B.R. 286 [Upper Canadian Furniture]. In this case, the employer was approached by a group of employees with concerns about an organization drive by the International Woodworkers of America (ibid. at 287). The Employer assisted in setting up a plant "steering committee," allowed the committee to meet with employees without loss of pay, and putting the committee in touch with labour relations consultants (ibid, at 288-89). The Woodworkers subsequently lost a certification vote. The Board held that the employer's actions constituted unlawful influence under the Act, but that they could be remedied by requiring a vote after allowing the Woodworkers essentially the same benefits as had been offered the plant "steering committee" (ibid, at 297-98). relationship." Without some comparison to another union, this is hardly likely to influence the choice of employees. The remaining statements which the Agreement requires amount essentially to statements of fact:
• "The Company shall also advise employees that a National Agreement exists, in which both parties are committed to the success and growth of the facility..."; • "The parties will communicate to employees their strong support for the principles and values expressed in the Framework of Fairness Agreement and the National Agreement (the 'Agreements')..." • "and will outline how employees may choose to be represented by the Union under the terms of the Agreements." • "The parties will also confirm their commitment to respect the democratic right of employees to choose through a Vote, whether or not to be 39 represented by the Union under the terms of the Agreements."
Innocuous as these statements may seem where the CAW is unopposed, a change in circumstances changes their tone completely. Where another union is competing for the hearts and minds of the employees, these statements seem to represent an unqualified management endorsement of the CAW over the competing union.
In the not-unimaginable event that the CAW targets for organization a division at which another union has begun organizing, the Company will have to be extremely careful in its approach to the situation. Even offering the list of employees and tolerating union organizers on company property become potentially problematic in a situation where there are two competing unions involved, should Magna extend the benefits to one
40 union and not the other. The Company runs the risk of having its agreement with the
FFA, supra note 13 at 21. Ibid. Doorey, "Neutrality," supra note 3 at 47-48. 215
CAW declared by the Board to be unenforceable as a collective agreement should it show any preference for the CAW, or any animosity toward a competing union in a situation of 41 competition. Because of the structure of the National Agreement, the entirety of the relationship between the parties would be potentially at stake, not merely their relationship at the affected division. The Company would be taking a serious risk by following the CAW/Magna Agreement protocol for the CAW and not allowing the competing union to access the same advantages. The case law reveals that the test for unlawful support would be much stricter in the case of a competition between unions than 42 in the case of a straightforward organizing campaign by the CAW.
Considering the content of the declarations the Agreement requires of Magna is not enough to gauge the potential impact of the meeting prior to the representation vote where another union is in competition with the CAW for the affections of Magna's 43 employees. The mere fact of the meeting may have what Doorey has elsewhere
44 referred to as a "signaling effect." Regardless of what the Magna representatives say at the meeting, the fact of their appearance next to the CAW representatives reflects a preference for the CAW over the competing union which the Board will almost certainly find problematic.
See Central Park Lodges, Ltd. (2002), 86 C.L.R.B.R. (2d) 1 (Ont.) for an example of what happens when an agreement is declared invalid under s. 53. In that case, the CAW was the beneficiary of the declaration in a competition with the Canadian Health Care Workers Union. 42 Coca-Cola, supra note 27 at para. 30. 43 Doorey, "Medium," supra note 18 at 86. 44 Doorey, "Neutrality," supra note 3 at 48. 216
The potential for this sort of meeting to interfere with the free choice of
employees as to their representation has been recognized by the Federal Board (then the
Canada Labour Relations Board, now the Canada Industrial Relations Board), leading it
to prohibit "captive audience meetings" entirely in response to union organizing
45 campaigns. While the approach of the Canada Board has been followed neither in
Ontario nor in Nova Scotia, it nonetheless illustrates the potent impact a captive audience
meeting may have on an employee's freedom of choice.
Where the CAW is organizing a Magna division without competition, the parallel
which can be drawn between anti-union captive audience meetings and the meeting prior
to the vote required by the Framework of Fairness is limited. Doorey objects to the
former primarily on the ground that they send "an extremely potent signal to employees
that is quite distinct from the content of the speech. It is a message about where power in
the employment relationship rests, about the limits of a union's power... and about the
state's opinion of this imbalance of power and communicative access in the
46 workplace." Obviously, where the union and employer address the employees together,
the imbalance of power and the asymmetric communication is lacking. Any influence the meeting may have on the choice of employees is limited in such circumstances: from
Magna's perspective, the representation vote is a win-win situation. It would be difficult
for any reasonable employee to conclude that their employer would punish them for not joining the union, absent language far stronger than that found in the Agreement.
Moreover, the content of the message seems calculated to address any distortion of the
45 Doorey, "Medium," supra note 18 at 86-87, citing Bank of Montreal (1985), 10 C.L.R.B.R. (NS) 129. 46 Doorey, "Medium," ibid, at 80. 217 employees' free choice of whether or not to be represented arising from its form. The parties jointly affirm their commitment to the democratic process, and their intention to
47 respect the employees' choice.
As has been mentioned already, however, the meeting would carry the full force of a captive audience meeting in light of a competing organization drive. Magna has essentially two choices if faced with a competing drive situation. Firstly, they could offer the benefits of the CAW/Magna Agreement, outlined above, to the competing union as well. This option is well-supported by the case law as a way of curing employer
48 interference in an organizing campaign. Magna is unlikely to look favourably upon this option, however. The competing union would be accessing the benefits of the Agreement without agreeing to any of the concessions Magna extracted from the CAW in return. The second path would be to stay out of the contest completely, to remain silent and neutral in the purest sense of the term, and to allow the unions to fight out the contest through the normal certification procedures at the Labour Board. If the CAW wins the certification, then the parties could negotiate the absorption of the certified unit back into the unit 49 covered by the National Agreement. If the CAW loses, then Magna will be left dealing with an isolated plant, organized under another union.
FFA, supra note 13 at 21. 48 See, e.g., Upper Canadian Furniture, supra note 37 at 297-98. It should also be noted that this option would truly reflect a commitment by the Company to the free choice of its employees as to their representative. It would be interesting to see how the FFA rhetoric held up under the pressure of a competing organizing drive. 49 See infra note 59. As will be discussed in the next section, below, the structure of the bargaining unit anticipated in the CAW/Magna Agreement might pose a problem for a competing union seeking certification for a single plant, even following the ordinary Labour Relations Board procedures. The CAW might be able to argue that given the 218
This is, no doubt, far from a pleasant prospect for Magna. The alternative, however, of extending the benefits of the FFA only to the CAW and hoping for the best before the Labour Relations Board runs a serious risk for the Company. A particularly enthusiastic panel of the Board might be able to invalidate the entire National Agreement under the terms of section 53, given that it covers every division including that where the competing drives took place. Obviously this would be disastrous for Magna and the
CAW, and even a small risk of such a finding by the Board might be enough to convince
Magna that leveling the playing field in one way or another for all competing unions would be in its best interests.
C. Bargaining Unit Issues
In the absence of the total meltdown of the Agreement, the opportunities for the
CAW to be displaced or removed once it has acquired bargaining rights for a particular division are very limited. The structure of the bargaining unit is such that anyone challenging the CAW's bargaining authority, whether a competing union or a dissatisfied group of employees, would have to challenge the Union's representation of all Magna employees, rather than merely its status at a particular division. As will be discussed, this means that the CAW is likely to stay put permanently once it gains representative status, bargaining structure in the Agreement, the only appropriate unit for which the competing union should be certified would be one of all Magna plants covered by the Agreement. This might be a dangerous argument to make, however, as it would open up the Agreement in its entirety to the scrutiny of the Labour Relations Board. ONLRA, supra note 1, s. 53. This would be a strained interpretation of the determination to be made under s. 53, in light of the limited potential for influence at the divisions where no competing drive took place. Furthermore, one would hope that the Board would be responsive to the fact that the CAW is not a new construct of Magna, but rather a large, well-established union with a history of strong and aggressive representation of its membership's interests: see Chapter II, Section C, above. which may give some Magna employees facing a representation vote cause to think carefully about their choice.
1. Jurisdiction
One preliminary issue is an apparent jurisdictional problem with the bargaining unit as defined in the CAW/Magna agreement. In Article I, Section I of the National
Agreement, the bargaining unit is defined as including all employees of all covered divisions. A frequently-asked-questions document prepared by the CAW for distribution on their website indicates that of the forty-five divisions which may vote to
52 join the agreement, forty-four are in Ontario and one is in Nova Scotia. Should the
Nova Scotia division vote to join the GAW, the Agreement could potentially cover a bargaining unit spanning locations in two provinces.
The territorial limits on the jurisdiction of provincial labour boards are long- settled. It is clear from the jurisprudence that a labour board of one province cannot take jurisdiction over employees in another so as to create an interprovincial bargaining unit.
The leading authority on the matter is the decision of the Supreme Court of Canada in
53 Eastern Bakeries. In that case, the union applied for a certification of delivery drivers
With the exception of "office and clerical employees, engineering and technical employees, managerial employees, nurses, supplemental employees, guards, supervisors or any other category of person otherwise excluded by the Ontario Labour Relations Act...": FFA, supra note 13 at 32. 52 CAW, "FAQ" online: CAW-TCA Canada
The New Brunswick Labour Relations Board can have no jurisdiction over persons residing and working outside that province so as to declare that they are part of the membership of a unit of the company's employees residing and working in New Brunswick. The fact of proximity in the present instance does not distinguish it from the case where employees of a company in Toronto may do work similar to that of other employees of the same company in the same category residing and working in Montreal. Such latter employees could not be included by an order of the Ontario Labour Relations Board under similar legislation in Ontario for the 54 purpose of declaring a bargaining unit.
The principle expressed in Eastern, Bakeries has since been approved of and applied in cases before the labour relations boards of several provinces, including that of Ontario.
Exceptions have been made only where there are employees who live and work primarily in one province, but whose work occasionally takes them across borders into another, for example, delivery drivers. As this is clearly not the case on the facts at hand, there is no reason to believe that the Eastern Bakeries provision would not be applied in the present case.
If the Cape Breton plant were to vote in favour of representation, they would have to be formed into a distinct bargaining unit, as neither the Ontario Board nor that of Nova
54 Ibid, at 78. 55 See e.g. Lloydminster School Division #99 (1990), 9 C.L.R.B.R. (2d) 28 (Sask.); MacLeans Magazine (1983), 1 C.L.R.B.R. (NS) 289 (Ont); Sheet Metal Contractors' Association, [1986] Alta. L.R.B.R. 291. 56 See, e.g., Humpty Dumpty Foods, [1979] 2 C.L.R.B.R. 207 (Ont). 221
Scotia would have jurisdiction to recognize or rule on a unit including plants in both provinces. Nonetheless, the Union and the Company could agree to operate the Cape
Breton bargaining unit in tandem with the larger Ontario unit in order to implement the structure contemplated in the FFA. In the eyes of the Labour Boards, however, the Cape
Breton plant would be a distinct bargaining unit, with all that entails for certification and 57 decertification applications, as will be outlined below.
But could employees at the CB plant be represented by the same Magna Local of the CAW? For practical reasons, few examples can be found of interprovincial local unions. The complications which result from dealing with multiple different labour boards in different provinces are a poor fit with the standard geographically-limited small locals common in Canadian unions. No legal obstacle exists, however, to organizing a company-wide local which represents bargaining units in several provinces.
2. Appropriateness
Even excluding the problematic Cape Breton plant, the CAW/Magna Agreement still contemplates a company-wide bargaining unit potentially covering more than forty plants across Southern Ontario. This unconventional model of organization raises several interesting legal questions. The first is whether this bargaining unit would be found to be appropriate by the Ontario Labour Relations Board. Because the CAW/Magna
57 As will become apparent in the discussion which follows, a separate bargaining unit in Nova Scotia could become a thorn in the side of the Company as the Agreement develops. The company-wide bargaining unit offers the Agreement's best defense against legal challenge, and the isolated Nova Scotia bargaining unit would consequently be far more vulnerable. The possibility of a Nova Scotia bargaining unit covering at least one plant (and possibly more, should Magna expand its Nova Scotia operations) complicates the analysis of the legal position of the Agreement. Where Nova Scotia law raises distinct issues from the law of Ontario, the differences will be noted. Agreement contemplates a process of voluntary recognition rather than Board certification, the issue of the appropriateness of the bargaining unit might not come before the Board at the outset of the Agreement. The Board is given the authority to 58 determine the unit "appropriate" for bargaining on an application for certification. In the absence of a termination application under section 66 of the Act, however, the Board has little authority to reevaluate a bargaining unit agreed-upon by the Union and the
Employer.
That being said, if it had the opportunity to rule on the matter, would the Board accept a company-wide unit as appropriate for collective bargaining? The Board certainly has no general objection in principle to company-wide or geographically-based bargaining units. As Adams notes:
multi-location determinations involve a balancing of: (a) the promotion and securing of collective bargaining for employees who desire this procedure as a means of determining terms and conditions of employment; (b) the assurance of an individual's freedom to join a trade union of his or her choice; and (c) the creation and maintenance of sound and viable bargaining structures.
58 ONLRA, supra note 1, s. 9(1). 59 Even where bargaining rights were acquired by certification, once an agreement is negotiated, the bargaining unit defined therein supercedes that found 'appropriate' by the Board: Graphics Centre Ontario Inc., [1977] O.L.R.B. Rep. June 379 [Graphics Centre]. 6 See National Trust, [1986] O.L.R.B. Rep. Feb. 250 [National Trust (No. 1)]; Cineplex Odeon [1994] O.L.R.B. Rep. July 824; Famous Players Inc., [1994] O.L.R.B. Rep. November 1527 [Famous Players]. George Adams, supra note 12 at 7-15 - 7-16. 223
The Board has readily certified multi-location units in the past, predominantly on a geographic basis (most often municipality-wide units). It is worth noting, however, that the Board's openness to multi-location bargaining units has not often been demonstrated in the case of industrial employers. The cases cited in example above all involve service-industry employers, and manufacturing and industrial work often takes place under very different circumstances, including "separate local supervision, minimal staff interchange, lack of social contact with other plants and independent managerial authority
64 over matters that bear most directly on the employees." The fact of the agreement between the CAW and Magna as to the appropriate bargaining unit would urge the Board to find it "sound and viable" for bargaining, however. This might override any reluctance on the part of the Board to certify a company-wide industrial unit, particularly if the
CAW/Magna Agreement had been functioning effectively for some time.
Regardless of any agreement between the Union and the Company, the wishes of the employees remain paramount. Where a union applies for certification of a broad-
Ibid. at 7-16. 63 Ibid, at 7-19. 64 Ibid. Of course, the wishes of the employer are always a significant factor, particularly so in Nova Scotia where a statutory amendment in the late 1970s expressly placed priority on those wishes. The amendment arose from an organizing drive which took place at one of two Michelin plants in Nova Scotia: United Rubber, Cork, Linoleum and Plastic Workers of America, Local 1028 and Michelin Tires (Canada) Limited, [1979] Can. L.R.B.R. 429. The Board held that a single plant would be appropriate for collective bargaining, although the union failed to garner enough support for certification. In response to threats from Michelin that they would close the plants and pull out of Nova Scotia, the Legislature overruled the Labour Relations Board in a section which came to be known as the Michelin Amendment, now NSTUA, supra note 1, s. 26. This section allowed an employer operating interdependent manufacturing locations to apply to the Board for an order that the only appropriate unit was an all-location unit: NSTUA, ibid., s. 26(2); see also Brian Langille, "The Michelin Amendment in Context" (1981) 6 Dal. L.J. 523 [Langille, "Michelin"]. 224 based bargaining unit, the Board's principal concern, as articulated in the National Trust cases, seems to be that employees of single divisions or worksites not be swept up against their will. The Framework of Fairness protects employees from this risk by requiring a representation vote before the accretion of each separate division to the bargaining unit.
The model set out in the Framework of Fairness reflects the model preferred by the
British Columbia Labour Relations Board, and adopted by the Ontario Board in the cases of National Trust and Famous Players. This model offers a pattern for the gradual organization of employers with multiple worksites. The Ontario Board in National
Trust stated that this model represented "recognition that the individual-branch approach to certification was a departure from standard notions of what would constitute for everyone a more viable form of bargaining structure, and an attempt to move back toward 69 more comprehensive, broader-based collective bargaining." The principle resulted from an application by a union for the certification of a single-location unit, opposed by the employer on the grounds that the only appropriate unit for bargaining would be one covering all of its locations. The British Columbia Board granted certification for the single location, subject to the limitation that future certifications of the same union for other locations would result in the enlargement of the existing bargaining unit, rather than
National Trust (No. I), ibid; National Trust, [1988] O.L.R.B. Rep. Feb. 168 [National Trust (No. 2)]. FFA, supra note 13 at 21-22. National Trust (No. I), supra note 60; Famous Players, supra note 60; see also Langille, "Michelin," supra note 64. /TO Amon Investments Ltd., [1978] B.C.L.R.B. No. 39/78 [Amon Investments]. 69 National Trust (No. 1), supra note 60 at para. 29. the creation of new units. The FFA model follows this pattern, providing for the
negotiation of a National Agreement which initially covers only one worksite, but which
will expand to cover others as they vote to be represented by the CAW and join the
71 bargaining unit covered by the National Agreement. This protects the right of
employees at each division to choose whether or not to be represented by the union, and
avoids the specter of distinct communities of employees being swept into bargaining
against their will.
The Board is in any event unlikely to have an opportunity to rule at the outset of
the FFA process on the appropriateness of the bargaining unit agreed-upon by Magna and
the CAW. The FFA is constructed so as to exclude the Labour Relations Board from
every possible aspect of the organizing and representation process. The bargaining unit
question is therefore only likely to come up in a contested application outside the
structure of the FFA. This contested application is most likely to take one of two forms: a
raid by a third-party union from outside the Agreement, or a decertification application by dissatisfied employees at a particular worksite. Because of the cooperative, non-
adversarial nature of the relationship established by the FFA, either such application is
Amon Investments, supra note 68 at 21. This approach has also been followed in Nova Scotia. In VON, the Nova Scotia Board accepted the union's application for a single- county regional unit and rejected the employer's assertion that only an tri-county unit would be appropriate for collective bargaining: Re: VON - Nova Scotia — Digby County (11 March 2003), Nova Scotia Labour Relations Board, Decision #5046 at para. 34. The Board emphasized that it would remain open to the other locations to apply for certification, and for the employer and union to merge them into a single bargaining unit if they did so (ibid, at para. 23). 71 See CAW & Magna International, "Framework of Fairness, National Agreement, and Windsor Modules Local Appendix" (7 November 2007) [unpublished, on file with author], Art. 1, s. 3 at 32 [National Agreement]. The only worksite covered by the agreement at the present time is the Windsor Modules site, which accepted the agreement in mid-November. likely to face stiff opposition from both the Company and the Union. The structure of the
bargaining unit raises important problems for both types of application. Both applications
would also face issues of timeliness. The automatic renewal of the National Agreement
will be addressed later with the revocation of the right to strike, but the question of the
inclusion of so-called "open seasons" in the National Agreement is of immediate
importance.
3. Timeliness
The "open season" of a collective agreement refers to the period during which a
competing union may apply to displace, or the employees may apply to remove the
existing bargaining agent. This period is defined by statute. The parties have placed no
explicit limits on the open season in the National Agreement, although they have
72 attempted to limit it indirectly. In Ontario, section 7 of the Labour Relations Act, 1995
73 governs the open season for certification applications. The Act makes the open season
See below. 73 ONLRA, supra note 1, s. 7. For convenience, the relevant subsections are reproduced here: 7. (1) Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may apply at any time to the Board for certification as bargaining agent of the employees in the unit.
(2) Where a trade union has been certified as bargaining agent of the employees of an employer in a bargaining unit and has not entered into a collective agreement with the employer and no declaration has been made by the Board that the trade union no longer represents the employees in the bargaining unit, another trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit determined in the certificate only after the expiration of one year from the date of the certificate.
(3) Where an employer and a trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the employees in a defined bargaining unit and the agreement is in writing signed by the parties and the parties have not entered into a collective agreement and the Board has not made a declaration under section 66, another trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the recognition agreement only after the expiration of one year from the date that the recognition agreement was entered into.
(4) Where a collective agreement is for a term of not more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last three months of its operation.
(5) Where a collective agreement is for a term of more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the 34th month of its operation and before the commencement of the 37th month of its operation and during the three- month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last three months of its operation, as the case may be.
(6) Where a collective agreement referred to in subsection (4) or (5) provides that it will continue to operate for a further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement during the further term or successive terms only during the last three months of each year that it so continues to operate, or after the commencement of the last three months of its operation, as the case may be. (ONLRA, ibid, ss. 7(l)-7(6).)
In Nova Scotia, the open season is described in similar terms:
23 (1) A trade union claiming to have as members in good standing not less than forty per cent of the employees of one or more employers in a 228 conditional on the term of the agreement in question; for agreements of three years' 74 duration or less, the open season is the last three months of the agreement. For agreements of more than three years' duration, the open season is the last three months of
75 the third year and of every subsequent year. Finally, where the agreement contains a provision for automatic renewal, the open season is as defined in the previous sections,
unit appropriate for collective bargaining may, subject to the rules of the Board and in accordance with this Section, make application to the Board to be certified as bargaining agent of the employees in the unit.
(2) Where no collective agreement is in force and no bargaining agent has been certified under this Act for the unit, the application may be made at any time'.
(3) Where no collective agreement is in force but a bargaining agent has been certified under this Act for the unit, the application may be made after the expiry of twelve months from the date of certification of the bargaining agent, but not before, except with the consent of the Board.
(4) Where a collective agreement relating to the unit is in force and is for a term of not more than three years, the application may be made only after the commencement of the last three months of its operation.
(5) Where a collective agreement relating to the unit is in force and is for a term of more than three years, the application may be made only
(a) after the commencement of the thirty-fourth month of its operation and before the commencement of the thirty-seventh month of its operation;
(b) during the three month period immediately preceding the end of each year that the collective agreement continues to operate after the third year of its operation; or
(c) after the commencement of the last three months of its operation. (NSTUA, supra note 1, ss. 23(l)-23(5)).
ONLRA, ibid., s. 7(4). Ibid., s. 7(5). 7n plus the last three months of each year after the renewal. The same open season is 77 adopted for decertification applications.
To understand the limits the parties have attempted to place on the open season, a further clarification is necessary. The time frames set out in the ONLRA and the NSTUA represent only the start of the open seasons. The statutory open season begins in the last three months of a three year collective agreement, and the parties enter negotiations toward the renewal of the agreement. If those negotiations are completed before the prior agreement expires, a new agreement is signed and comes into force, terminating the open season. If the parties fail to reach agreement before the old agreement expires, however, the open season continues until a new agreement is reached, even as the terms and
78 conditions of employment under the old contract are preserved by the statutory freeze.
A third-party union remains free while bargaining continues to apply for certification, and the employees to apply to revoke the certification of their representative.
In the CAW/Magna Agreement, the parties have attempted to limit the open season to the term expressly stated in the legislation through the automatic renewal of the 79 Agreement where bargaining has not concluded by the time the Agreement expires.
Ibid., s. 7(6). The first two provisions of the Ontario Act are mirrored in the Nova Scotia legislation: see NSTUA, supra note 1, ss. 23(4), 23(5). The renewal provision is unique among the three to the Ontario Act, however, as can be seen above. Under Nova Scotia law, the open season in renewal terms would be the same as in the first term: the last three months of the agreement if less than three years' duration, last three months of the third year and every subsequent year if longer (see supra, note 73). 77 ONLRA, ibid, s. 63(2). 78 The "statutory freeze" operates to prevent the employer from altering the terms or conditions of employment after notice to bargain has been given. See ONLRA, ibid., s. 86, NSTUA, supra note 1, s. 35(b). 79 The provisions are discussed in more detail in Chapter II, Section D, above. 230
Given the arbitration provisions in the Agreement, in the absence of the automatic renewal clause, the open season would continue until the arbitrator handed down a new decision. In other words, the automatic renewal provision has the effect of cutting the open season short through the imposition of an artificial new agreement before the parties have negotiated a genuine renewal.
Is this arrangement legally problematic? An open attempt to restrict the statutory
80 open seasons would probably be rejected by the Labour Relations Board. There is an argument to be made on that basis that this veiled attempt to restrict the statutory rights of third parties is just as invalid. However, in Ontario at least, the legislation contemplates
Q1 automatic renewal provisions. It could be argued that this reflects a statutory tolerance for indirect limits on the length of the open season. On the other hand, the language of the statute contemplates a renewal resulting from a failure to give notice to bargain from both 82 parties to the agreement. In such a case, the renewal would result in a genuine agreement, rather than an artificial holdover in contemplation of arbitration as in the
CAW/Magna Agreement. Unfortunately, there is no case law from the Ontario Labour
Relations Board interpreting the varieties of automatic renewal covered by section 7(6).
At the very least, the automatic renewal provision would seem to rest in a legal grey 83 area.
See section D, below for a discussion of the legality of contracting out of the ONLRA. 81 See ONLRA, supra note 1, s. 7(6). 82 Ibid; obviously this argument would carry no water in Nova Scotia, where the NSTUA makes no provision for the automatic renewal of collective agreements: NSTUA, supra note 1. 83 Other potential problems with the provision will be dealt with in Section D.2.b, below. 231
4. Displacement and Decertification
The bargaining structure set out in the CAW/Magna Agreement may pose an even more significant obstacle to employees wishing to reconsider their representation by the
CAW than the issues of timeliness discussed above. That structure is relevant both in the case of a displacement application, where another union is seeking certification for a group of CAW-represented Magna employees, and in a decertification application, where those employees are seeking to revoke their authorization of the CAW as their exclusive bargaining agent. Even if the Labour Relations Board is not able to address the appropriateness of the bargaining unit in the early years of the agreement, as it expands to cover more divisions, it may be forced to do so in the later stages of its life, as the agreement faces challenges from within and from outside.
Certification and decertification applications in Ontario are governed by the 84 Labour Relations Act, 1995. The Act attempts to draw a balance between the competing goals of stability in labour relations, and the employees' capacity for self- determination. While some power for employees to change or opt out of representation is essential to the latter, each type of application has the potential to polarize the workplace, and destabilize the labour-management relationship. As a result, the Act places fairly strict limits on the circumstances under which displacement and decertification applications can take place, and on the circumstances under which they will be granted.
In both cases, the application must be made within the acceptable timeframes (the "open
ONLRA, supra note 1, ss. 7, 63, 66. 85 season", as described above). Further, the applicant in both cases must demonstrate a forty-percent threshold level of support among employees for the application.
In calculating that threshold level of support, and in carrying out the vote to determine majority support if the forty-percent threshold is met, the structure of the bargaining unit is of critical importance. In a bargaining unit composed of all employees of one employer at a single worksite, the test is straightforward: if the competing union, or the employees seeking to terminate the union's bargaining rights can show that forty percent of the employees in the unit support the application, this will be enough to convince the Labour Relations Board to hold a vote to determine whether majority
87 support for the application exists. The threshold prevents nuisance applications from forcing votes and destabilizing an otherwise functioning bargaining relationship. In a bargaining unit of the size contemplated in the Framework of Fairness, however, there seems to be a real danger of both the threshold requirement and the unit-wide vote leading to a tyranny of the majority. If the majority of employees, or for the sake of argument every last employee at a covered division, decides that they no longer want to be represented by the CAW, can they apply to the Board to displace the CAW or terminate their bargaining rights, or must they gather the support of forty percent of the employees of all covered divisions? That might be a virtually impossible task; the employees' only contact with other divisions is likely to be through the CAW Local
Union, the representatives of which are appointed and removable by the National
Ibid, ss. 7(3-6), 63(2). 86 Ibid, ss. 8(2), 63(5). %1 Ibid. Union. There would seem to be a significant risk of exactly the situation which the
Labour Board in National Trust feared: a group of employees being swept along in 89 representation to which they would not have consented, given the choice.
This problem will require the Labour Board, in the event of a displacement or decertification application, to confront the question of the appropriateness of a company- wide bargaining unit. The Board's power to do so may be closely circumscribed, however. Exploring those limits will require a closer analysis of the Board's procedures and policy in displacement and decertification applications.
a. Displacement
The Ontario Labour Relations Act, 1995 describes the process for determining the bargaining unit (and voting constituency) in certification applications generally, a process which is equally applicable in displacement applications. Firstly, a description of the 90 bargaining unit applied for is included in the application for certification. If the employer disagrees with that description of the bargaining unit, it must submit its own 91 description within two days of receiving notice of the application. The Board must order a representation vote if forty percent of the employees in the proposed unit appear 92 to be members in the union at the time of the application. In determining whether this forty percent threshold has been met, the Board may only rely on information provided
National Agreement, supra note 71, Art. 3, s. 2, at 34-35. 89 National Trust (No. 2), supra note 65. 90 ONLRA, supra note 1, s. 7(13). 91 Ibid., s. 7(14). 92 Ibid., s. 8(2). 234
93 by the applicant. However, it may take into account the employer's description of the
bargaining unit in determining the constituency of employees eligible to take part in the 94 representation vote. The representation vote must take place within five business days,
and the Board may not hold a hearing before the vote to determine the bargaining unit or 95 the voting constituency.
After the vote takes place, the Board may seal the ballot box and hold a hearing to 96 resolve disputes over the certification application. If the employer disagrees with the
union's description of the bargaining unit, or its estimation of the number of employees
97 therein, the disagreement is resolved after the representation vote, not before. The Act
sets out a detailed process for resolving a disagreement over the definition of the
bargaining unit. The Board must first decide whether the bargaining unit proposed by the 98 applicant "could be appropriate for collective bargaining." The Board only has the power to determine an appropriate unit if it finds that the unit applied for could not be
.99 appropriate.
It is easy to see how a displacement application in a division covered by the
CAW/Magna Agreement could rapidly encounter difficulty, even when considering only the rules set out in the Act itself. When the precedent of the Labour Board on
93 Ibid., s. 8(3). 94 Ibid., s. 8(1 )(b). 95 Ibid, ss. 8(5), 8(4). 96 Ibid, ss. 8(7), 8(8). 91 Ibid, ss. 8.1(1), 8.1(4). 9S Ibid.,s. 8.1(5)(3). " Ibid, ss. 8.1(5)(5),9(1). 235 displacement applications is considered, the outcome becomes even more uncertain. In a recent decision, the Board split on the question of bargaining unit definition, with the minority member observing that "in my view, the applicant in a displacement application must take the bargaining unit as it exists. Otherwise we are just asking for problems with gerrymandering." This same sentiment is reflected in what has been described as the
Ontario Board's "longstanding policy of generally only permitting a displacing union to represent the same bargaining unit of employees which is represented by an incumbent union." That policy remains strong, and presents a significant obstacle to a union seeking certification for a limited number of Magna divisions covered by the Agreement.
In Ontario Hydro the Board explained the reasoning behind the policy, and set out a general test to be applied where the applicant seeks certification for a more limited unit than is represented by the incumbent union:
Where parties have established the viability of a bargaining unit through actual bargaining and where the history of such bargaining has been relatively satisfactory, this Board ought not to encourage fragmentation. Moreover, in these cases, the Board is not dealing with employees who are unrepresented by a trade union. Thus, more concern can be given to the most viable unit from a collective bargaining viewpoint without the risk of impeding the initial organization of employees attempting to engage in bargaining. But the principle cannot be without its exceptions. Section 48
National Grocers, [2004] O.L.R.D. No. 924 (QL), 2004 CanLII 27494. The majority accepted the bargaining unit applied for, "[w]ithout making any finding as to the appropriate bargaining unit in this matter," on the grounds that the difference between the unit applied for and the existing unit was negligible {ibid, at paras. 10-11). Even this slight relaxing of the requirement was enough to discomfit the dissenting member. Sobeyslnc, [2002] OLRB Rep. September/October 915 at para. 1 [Sobeys]. This same principle is accepted in the jurisprudence of the Nova Scotia Board: see I.M.P. Group Limited and IMP Aerospace Employees Association, (20 June 1979), Nova Scotia Labour Relations Board, Decision #2550, wherein the NS Board rejected an application for the displacement of a single location of a larger unit on the grounds that "[t]he Board will not balkanize an existing unit unless there are compelling reasons to do so" (ibid.). of the Act clearly envisages displacement applications which are less extensive than preexisting bargaining units. While there is a strong presumption in favour of the incumbent trade union's bargaining unit, the board is willing to entertain evidence and submissions on why the status quo ought not to be maintained. The incumbent trade union may clearly have failed to represent a distinct and cohesive group adequately, a problem that has sometimes reared its head in the relationship of skilled and unskilled employees. This problem of unsatisfactory representation may be combined with a capacity in the employer to tolerate somewhat greater fragmentation, particularly if the smaller unit sought can meet the 102 principles of appropriateness generally applied to certification cases.
At issue in that case was an application which sought to hive off Ontario Hydro's nuclear 103 generating stations from the existing province-wide bargaining unit. The applicant relied on the distinctive nature of the operations at the nuclear facilities, and problems 104 with the representation by the incumbent union. Even then, the Board noted that the applicant's chances of success "cannot be characterized as substantial." The Board in general seems reluctant to deviate from this policy except in very limited circumstances.
The Board in Canadian Red Cross offered some insight into the principles it pursues with the policy of requiring the displacing union to take the bargaining unit as it is defined by the incumbent:
(a) that those employees who are in the incumbent's bargaining unit be the employees who determine whether the incumbent is displaced;
102 Ontario Hydro, [1980] O.L.R.B. Rep. June 882, emphasis added [Ontario Hydro (1980)]; see also The Canadian Red Cross Society, [1994] O.L.R.B. Rep. December 1694 [Canadian Red Cross (No. 1)]. 103 Sobeys, supra note 101 at para 45. The points raised in the case stand despite the fact that labour relations in Ontario's nuclear power generating stations was later found to be a matter for federal jurisdiction (Ontario Hydro v. Ontario, [1993] 3 S.C.R. 327). 104 Ontario Hydro (1980), supra note 102. Ibid. (b) that there should be, as a general principle, avoidance of fragmentation of an existing bargaining structure; and (c) that there should be certainty and predictability in the processing of representation applications. Should the Board readily depart from the "general rule" this certainty (which is of significant labour relations value) would be lost.
Of all three principles, only the first could reasonably be said to be furthered by the certification of a single Magna division separately from the company-wide bargaining unit. The other two principles weigh heavily against the Board's displacing certification of one division: it would lead to substantial fragmentation in bargaining, and might potentially undermine the (presumably still functioning) structures agreed-upon by the
CAW and Magna, and ratified by the membership of each covered division.
The case of Simcoe (County) is even more directly applicable to the Framework 107 of Fairness. In that case, the incumbent union represented a unit made up of three separate nursing homes. The applicant sought to represent a smaller bargaining unit made up of the employees of only one of those sites. The Board rejected the unit applied for as not appropriate for collective bargaining:
The factors the Board considers in displacement situations are different than those it considers when a trade union is seeking to represent employees who were not previously represented. In a displacement situation such as this, the Board assumes that the existing bargaining unit has proven to be the appropriate one. The Board is particularly reluctant to consider a request to deviate from its practice when an applicant is seeking to carve out a smaller bargaining unit from a larger one. The Board really only considers making an exception to its longstanding practice in situations in which members of a group claiming to be a "craft" argue that their interests are not being recognized in a composite unit. Even in those
Canadian Red Cross (No. 1), supra note 102 at para. 20. 107 Simcoe (County), [2002] O.L.R.D. No. 2380 (QL) [Simcoe]. 238
cases, the Board is reluctant to permit a bargaining unit to be fragmented by carving out a group of employees.
The decisions in Simcoe, Canadian Red Cross and Ontario Hydro, among others, suggest that a union seeking to displace the CAW as representative at a single Magna division or a limited few will face an uphill battle before the Board. The union's task will be all the more difficult in light of the united front they will face from both the CAW and Magna.
In light of the unwaveringly firm stance the Board takes on bargaining unit definition in displacement applications, it is highly unlikely that they would be willing to certify a rival union for a unit of one or even a few Magna divisions. It is more likely that they would require a rival union to attain the support of a majority of company-wide bargaining unit before displacing the CAW. To convince the Board to rule otherwise, the competing union would have to fit itself into the exceptions hinted at in Ontario Hydro.
The Board in Bestview Holdings, and later in Canadian Red Cross offered some hints as to what might be required to do so: "Such reasons might include inadequacy of representation by the incumbent union or collective bargaining difficulties generated by
109 the established structure." Given the complex and integrated company-wide bargaining structure laid out in the National Agreement, it seems unlikely that a competing union will be able to convince the Board to certify a division separately on the basis of "collective bargaining difficulties." It is, of course, impossible to predict from
108 7AV7 • 1 Ibid, at para. 3. 109 Bestview Holdings Limited, [1983] OLRB Rep. Feb. 185; Canadian Red Cross (No. 1), supra note 102 at para. 25. But see the discussion below at text accompanying note 126, regarding the approach of the British Columbia Board in the White Spot line of cases. the outset of the Agreement the quality of representation the CAW will offer. However, barring horrifically poor representation of a distinct, identifiable group within the unit, such as a craft, ox perhaps a single division, it is unlikely that a displacing union will be able to tip the scales against the Board's regular presumption. Consequently, a displacement application by a raiding union probably will not offer a viable exit point for
Magna employees at a single division who are unhappy with the CAW's representation.
b. Decertification
The more direct means of exit for dissatisfied CAW members at Magna is to apply to the Labour Relations Board for the termination of the bargaining rights afforded to the CAW. The Ontario Labour Relations Act, 1995 offers two distinct means for employees to do so. The first, embodied in section 66, envisions a situation where the employees allege that the bargaining rights were obtained through a voluntary recognition agreement which does not reflect the wishes of the employees. The application is limited to the first year of the recognition agreement. While the
CAW/Magna Agreement allows the CAW to secure bargaining rights without Board certification, it would be extremely difficult for employees to argue that the Agreement does not reflect their wishes in light of the representation/ratification vote held at each division. The section 66 application also refers to "the employees in the bargaining unit," 112 raising the same problem of bargaining unit definition set out above.
ONLRA, supra note 1, s. 66(1). 112 ibid. 240
There is only one situation in which section 66 may be of some use to dissatisfied
Magna employees. As outlined in the conclusion to the last section, section 53 of the Act allows the Board to invalidate a voluntary recognition agreement on the grounds that it
113 arose out of unlawful employer support for the Union. If the dissatisfied employees could show that the actions of the Company in the organizing phase of the FFA constitute unlawful support for the CAW, they may be able to rely on this argument to terminate the bargaining rights of the CAW at all covered divisions through application under section
66. As was discussed above, however, it is highly unlikely that an application alleging employer domination would be successful in the absence of competition from a third- party union. As a result, this section is unlikely to be of use to dissatisfied Magna employees.
The more conventional route for decertification applications is set out in section
63 of the Act. Section 63 provides first that employees may apply to terminate the bargaining rights of their representative if bargaining fails to produce a collective
114 agreement within one year. More importantly, it also provides that any employee in the bargaining unit may apply during the open seasons described above "for a declaration that the trade union no longer represents the employees in the bargaining unit." The procedure described essentially mirrors the certification procedure outlined above: the application must include evidence of the wishes of the employees in the bargaining
Ibid., s. 53. Ibid., s. 63(1). Ibid, s. 63(2). 241
1 1 A unit; that evidence must disclose a threshold of support of at least forty percent for the 117 application; the Board is to hold a representation vote in the bargaining unit within
118 five days of the application; if the vote discloses that more than fifty percent of the employees support the application, the Board declares that the union "no longer 119 represents the employees in the bargaining unit."
The problem posed by the CAW/Magna Agreement for this relatively straightforward process is raised again by the reference to "employees in the bargaining 120 unit." On the face of the Act, it would seem that employees seeking to terminate the bargaining rights of the CAW would only be able to apply to do so if they could muster the support of forty percent of the covered Magna employees, rather than forty percent of the employees of their own division. This poses the same risk outlined above of a geographically distinct minority of employees being swept along in representation which they no longer desire.
An exhaustive search of the relevant databases and commentary was unsuccessful in locating any case where the Ontario Board has considered the question of termination applications relating to a single location in a multi-location unit. It is possible that the issue has yet to arise before the Board, although that seems unlikely, or simply that the wording of section 63 is sufficiently clear on the matter of the support required for the termination application that it has thus far gone unchallenged. In either event, the Board
116 Ibid.,s. 63(4). 111 Ibid, s. 63(5). 118 Ibid, s. 63(9). 119 Ibid,s. 63(14). 120 Ibid, s. 63(1). 242 will have to deal with the issue in the future, given its expressed desire to move to broader-based bargaining.
The Board's precedent on the bargaining unit in termination cases more generally offers little reason to believe the Board would deviate from a strict reading of section 122 63. In Francis H. V.A. C. Services, the Board stood firm on the literal wording of section 63(2) of the Act, holding that a termination application must be brought and
123 decided by the employees in the bargaining unit. Although the case did not involve the hiving off of a smaller unit for termination from the bargaining unit as defined in the collective agreement, its adherence to the literal text of the statute is informative.
Similarly, in Graphics Centre Ontario, the Board held that the parties are free to define the bargaining unit as they wish in negotiating the collective agreement, and that once they have done so that is the bargaining unit which is relevant for deciding a termination application.
The Ontario Labour Relations Board has expressed interest in encouraging the 125 proliferation of broader-based bargaining. If it follows such a course, the question of the bargaining unit in termination applications will become increasingly important, if the
Board wishes to aivoid the problem of employees being dragged along in representation
(or termination) against their wishes. The British Columbia Board, with its much longer-
121 See e.g. National Trust (No. 1), supra note 60; Famous Players, supra note 60. 122 ONLRA, supra note 1 s. 63(2). 123 Francis H. V.A.C. Services Ltd., [1998] O.L.R.B. Rep. November/December 958. 124 Graphics Centre, supra note 59, cited in Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Local 1688, [1993] O.L.R.D. No. 4998 (QL). 125 National Trust, No. 1, supra note 60 and accompanying text. standing policy of encouraging broad-based bargaining, has recently faced a similar challenge to its stance on partial decertifications. That stance, which arose in Westar
127 Timber Ltd., was essentially that applications for the decertification of a part of an existing bargaining unit could not be brought under the section of the British Columbia 128 Labour Code which provides for the termination of bargaining rights. Instead, the
B.C. Board required that they be brought pursuant to the sections authorizing the Board 129 to reconsider or vary its past decisions. The Board found in that section the power to vary an existing bargaining unit to exclude a particular group of employees on the basis 130 of its prior jurisprudence on the section. It placed close limits on the conditions under which it will grant such a request for partial decertification, however, suggesting that the determination is essentially the same as that made on certification as to the 131 appropriateness oi the bargaining unit. In addition, the Board imposed an onus on the
1 >yr George Adams, supra note 12 at 7-7, citing White Spot Ltd. (Re) (1999), 55 C.L.R.B.R. (2d) 184 (B.C.) [White Spot (No. I)]; reconsidered in Certain Employees (Re) (2001) 65 C.L.R.B.R. (2d) 161 (B.C.) [White Spot (No. 2)]. 127 (1987) 14 C.L.R.B.R. (NS) 360 [Westar]. i OS Ibid, at 367; then s. 52(2), Labour Code, R.S.B.C. 1979, c. 212 [B.C. Code]. 129 Westar, ibid; then B.C. Code, ibid., s. 36. 130 Westar, ibid, at 367-70. 131 Ibid, at 371. The Board set out the factors it would consider in the determination as follows: the issue in applications of this nature is one of the appropriateness of the bargaining unit, and more particularly, whether the existing unit continues to be appropriate. Starting from the point of view of respect for the existing bargaining unit, the Board will consider in such applications the usual factors it considers in any appropriate bargaining unit determination: administrative efficiency and convenience in bargaining, industrial stability, lateral mobility of employees, common framework of 244 applicant employees to show some changed circumstances from the time of the original
132 certification which warranted a variation of that finding.
In the White Spot cases, the Board was asked to revisit the policy articulated in
Westar, on a number of grounds. The Board convened a seven-member panel, and heard representations from a wide variety of interested parties, including labour federations,
133 unions, and business representatives. The outcome was the abandonment of the
"changed circumstances" requirement from Westar. The Board's comments are remarkably relevant to the CAW/Magna Agreement:
In our view, given that the Board is now more likely than ever to create large, diverse bargaining units which may present a daunting, if not impossible, challenge to decertify as a whole, it is important to have a policy which permits partial decertification in appropriate circumstances. It is even less appropriate now to have a policy which treats the certification description as a "property right, immune to changes in the industrial relations landscape", in the words of the White Spot 1989 original panel. Experience has shown that the changed circumstances test has had something close to this effect. In our view, it was clearly not , , , 134 intended to do so.
In articulating a replacement test for the "changed circumstances" standard, the Board described its desire to "strike a balance between collective bargaining and industrial
employment conditions, community of interest amongst employees, geography, bargaining history, the structure of bargaining units generally in the particular industry, employee wishes, and so forth... It should be emphasized that the wishes of the applicant employees, albeit a factor, is not the determinative factor (ibid).
132 Ibid. 133 See White Spot (No. 2), supra note 126. 134 Ibid, at para. 78. 135 stability considerations and 'employee wishes'". The Board continued to base the partial decertification application on the reconsideration provisions of the Labour Code but ultimately articulated the following policy with respect to its consideration of such applications:
the Board will consider whether the impact of allowing the application on the remaining employees and the collective bargaining relationship as a whole, or either, should outweigh the wishes of the applicant employees. Where relevant, the Board will also consider other matters such as the timing or context of the application, any allegations of improper interference, whether it is a disguised raid application, and the difficulty of 1 'If. decertifying the unit as a whole.
Differences in the legislative regimes and the Board jurisprudence of the two provinces 137 would make the direct adoption of the B.C. approach difficult for the Ontario Board.
135 Ibid, at para. 88. 136 r7 . , -, - Ibid, at para. 113. 137 The British Columbia Labour Relations Code provides the authority to the Board to reconsider its past decisions {Labour Relations Code, R.S.B.C. 1996, c. 244, s. 141), but it also provides the Board with further, broader authority to vary a certification: "142. The board, on application by any party or on its own motion, may vary or cancel the certification of a trade union or the accreditation of an employers' organization." (ibid., s. 142). The Ontario Labour Relations Act at one point provided similar broad and explicit powers to the Ontario Board to reshape the bargaining unit on application, but those powers were eliminated in the statutory turmoil arising from successive New Democratic and Conservative governments in the 1990s: George Adams, supra note 12 at 7-15, n. 59a, citing Labour Relations Act, R.S.O. 1990, c. L.2, s. 7 (rep. & sub. 1992, c. 21, s. 8, rep. 1995, c. 1, s. 1(2)). While the British Columbia Board in Westar had authority from its variance provision to alter the bargaining unit, the Ontario Board must now rely on its reconsideration provision to do so under the current legislation. That reconsideration provision has been restrictively interpreted. The Board's approach has been to limit its hearing of reconsideration applications to situations where the applicant adduces new evidence, if the evidence could not reasonably have been led at the prior hearing: George Adams, ibid, at 5-29, citing Imperial Tobacco Products (Ontario) Ltd., [1975] 1 Can. L.R.B.R. 21 (Ont). The Holding of the Board in Imperial Tobacco has been consistently upheld in its decisions since, in the interest of promoting the finality and certainty of its The principles articulated in White Spot (No. 2) will nonetheless be helpful if the Ontario
Board has cause to revisit its policy on partial decertification. In the absence of an explicit interpretation of section 63 of the Act to allow partial decertifications, however, there is little reason to believe an application to terminate the bargaining rights of any group smaller than the entire bargaining unit would succeed.
The important lesson for Magna employees from the Board's jurisprudence on displacement and decertification applications is that they may want to give very careful consideration to how they vote in the representation votes under the Framework of
Fairness. This is not to suggest that the CAW will offer anything less than earnest and dedicated representation to the employees for whom it acquires bargaining rights. Rather, the point is that it will be very difficult for the employees to change their mind at a later date once they have voted in favour of representation. The bargaining unit will expand through the accretion of new divisions, in a voluntary mirror of the British Columbia
Board's "Amon Principle," described above, allowing employees at each division an opportunity to make the collective decision whether or not to be represented. The Ontario
Board seems, however, extremely unlikely to allow it to shrink the same way.
D. Voluntarism Issues
The third set of legal problems with the CAW/Magna Agreement relates broadly to the Agreement's attempt to create a voluntary system of labour relations operating in decisions: see a review of the jurisprudence in Rogers Broadcasting Ltd., [2000] O.L.R.B. Rep. March/April 384, 59 C.L.R.B.R. (2d) 24; citing Georgian Industries Inc. [1992] OLRB Rep. April 459, K-Mart Canada Limited (Peterborough), [1981] O.L.R.B. Rep. Feb. 185, The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. September 549, inter alia. It will be difficult to argue for a broad power to reshape the bargaining unit arising from the Ontario reconsideration provision. 247
138 parallel to the Labour Relations Act, 1995. Although this raises a number of distinct issues, they are unified by the broader question of how far the Labour Relations Board and labour policy makers are willing to go in allowing unions and employers to define the conditions under which their relationship will be structured.
The first question which must be asked is whether the Framework of Fairness and the National Agreement meet the definition of a voluntary recognition agreement as set out in the Act and interpreted by the Board. The first section explored one of the limits on such agreements, in the form of the prohibition on agreements arising from employer
139 support for the union. This section will explore some of the other limits the Board places on voluntary recognitions.
The next issue is whether the agreement of the Company and the Union to opt out of the certification and complaint process of the Labour Relations Board is legally valid, and more importantly, whether it is legally binding on the employees who may vote to become members of the bargaining unit. An important facet of the Agreement is its creation of a set of dispute resolution processes which are intended to completely supplant the legislated processes of the Labour Relations Board. Will this be accepted by the Board, or will it be viewed as pushing the boundaries of the Board's tolerance for voluntarism too far?
The closely-related final question is the validity of the Agreement's revocation of the right to strike, and of the means by which it is carried out. The Agreement creates a fairly sophisticated structure to impose final-offer selection as the resolution mechanism
138 Or, as Doorey colourfully describes it, operating "in the shadow of the state": Doorey, "Neutrality," supra note 3. 139 ONLRA, supra note 1, s. 53. 248 for disputes which arise during the renegotiation of the National Agreement. This section will explore the ways in which that structure may come into tension with the Board's past precedent on interest arbitration and the right to strike, and will try to shed some light on the question of whether the structure is legally valid or enforceable.
1. Reaching a Voluntary Recognition
Voluntary recognition agreements are contemplated by the Ontario Labour
Relations Act, 1995. The Act affords voluntarily recognized unions many of the same rights as certified unions. Section 7(3) protects voluntarily-recognized unions from attacks on their bargaining rights by competing unions for one year after the agreement is
140 reached. Section 16 states that a union shall issue notice to bargain to the employer after either certification or voluntary recognition, which imposes on both parties the duty 141 to bargain set out in section 17. Similarly, issuing a notice to bargain opens up to the
142 parties access to the conciliation provisions of the Act. Access to the conciliation
143 provisions is a prerequisite for a legal strike or lockout.
140 Ibid., s. 7(3). 141 Ibid., ss. 16, 17. 142 The Minister shall appoint a conciliation officer on request where notice is issued under s. 16, and where the parties have entered a voluntary recognition agreement, the Minister may appoint a conciliation officer on request {ibid., ss. 18(1), 18(3)). Adams suggests that this means that the Minister may decline to appoint a conciliator for voluntarily recognized unions: George Adams, supra note 12 at 7-73.1 would argue instead that s. 18(3) (when read with s. 18(2) which authorizes the minister to appoint a conciliator where no notice has been given by the parties have bargained nonetheless) dispenses with the requirement of written notice to bargain as a prerequisite to the appointment of a conciliation officer in the case of a voluntary recognition agreement which has been reduced to writing. 143 See ONLRA, ibid., s. 79(2), see also George Adams, ibid, at 7-73. 249
The shape that a voluntary recognition agreement may take is not set out
explicitly in the Act. It may nonetheless be inferred from some of the definitions offered
for its necessary components. The union which is a party to the agreement must be an
144 "organization of employees." It must be "formed for purposes that include the 145 regulation of relations between employees and employers." It must have a "validly
146 established constitution setting out its purposes." These are fairly minimal requirements as can be seen, easily met by the CAW in the present case.
The Agreement must be in writing, must be between an employer and a trade union, and must "contain... provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade 147 union or the employees..." In order for the agreement to be recognized as a collective
agreement, no employer may have "participated in the formation or administration of the
148 trade union or contributed financial or other support to the trade union." The Act also requires that no collective agreement discriminate against anyone contrary to the Charter 149 or human rights legislation.
144 ONLRA, ibid, s. 1, "trade union". 145 aid. 146 Ibid. This is implicit in the reference to the purposes of the organization m the definition of "trade union": George Adams, supra note 12 at 6-40. 147 ONLRA, ibid., s. 1, "collective agreement". 148 Ibid., s. 53; see below. 149 Ibid., s. 54; Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11. This statutory requirement is supported and complemented by the case of Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157 [Parry Sound], which held that a collective agreement incorporates not only its express terms, The Act also places certain procedural limits on voluntary recognition 153 agreements. As Adams points out, the chief danger with which the drafters were concerned was the potential for unrepresentative unions to be recognized by the employer 154 as a way of stalling or undermining another union's organizing drive. Because a voluntarily recognized union need not go through the certification procedures in the Act, they are not exposed to the test for employer domination in section 15. They may nonetheless be challenged under a parallel test. Where an employee or group of employees allege that the union was not entitled to represent them at the time an agreement was entered, they may apply under section 66 for a revocation of the union's
157 bargaining rights. One significant ground on which the employees can allege that the union was not representative is by showing that it fails the test for employer domination
158 or influence in section 53. The Board has broad powers to determine whether the union was entitled to represent the employees at the time the agreement was entered: it
"may make such inquiry, require the production of such evidence and the doing of such
but also the statutory rights of employees under human rights legislation, as well as all other employment-related statutes. These terms will be incorporated into a collective agreement, whether reached by certification or by voluntary recognition, and regardless of any attempts on the part of the parties to contract out of them. 153 Most of these limits have been addressed already, but it is helpful to review and summarize them here. 154 George Adams, supra note 12 at 7-71. ONLRA, supra note 1, s. 15. Ibid., ss. 53, 66. 157 As discussed above in Section C.2. 158 ONLRA, supra note 1, s. 53. 251
159 things, or hold such representation votes, as it considers appropriate." Moreover, when
an employee makes an application under section 66, the onus is on the union and the
employer to establish to the Board's satisfaction that the union was entitled to represent
160 the employees.
The issue of employer domination in the CAW/Magna Agreement was discussed at length in Section B, above. As that section concluded, in the absence of a competing organization drive, the provisions of the Agreement are not sufficient to raise concerns of restrictions on employees' freedom of choice resulting from Company support for the
Union. In the absence of such concerns, the Board is likely to be satisfied of the Union's entitlement to represent employees by the requirement in the Agreement for a representation vote as a condition of the employer's recognition of the Union.
One issue which has arisen primarily in the construction industry is the timing of the voluntary recognition agreement. In a series of cases, the Ontario Board held that where an employer and a union had reached a collective agreement before the employer had any employees, in other words, before there were any members in the bargaining unit recognized, this agreement was invalid as arising from unlawful employer support for the union. If this holding were applicable to the CAW/Magna Agreement, it might pose a problem. An argument could be made that the Agreement was bargained in the abstract between the Union and the employer before any of the covered employees had authorized
159 Ibid., s. 66(2); see also George Adams, supra note 12 at 7-72. 160 Ibid, s. 66(3). FFA, supra note 13 at 21. Sunrise Paving and Construction Co. Ltd. 72 C.L.L.C. 1J16,060; C. Strauss (1973) Limited, [ 1975] O.L.R.B. Rep. July, 581. the union to bargain on their behalf. This line of reasoning was rejected, however, in
Nicholls-Radtke & Associates Limited. This nonetheless raises some interesting
questions about the bargaining authority of an as-yet unrepresentative union which will be addressed further below, in light of the agreement to forego the right to strike.
For the moment, however, it appears that the CAW/Magna Agreement meets the relatively thin requirements for a voluntary recognition agreement set by the Board.
Certainly it is a far broader and more expansive voluntary recognition than is common in the manufacturing sector. However, it meets the procedural requirements of the Act.
Furthermore, it addresses the concerns reflected in the Act that a voluntary recognition not be used to install an unrepresentative union as bargaining agent for employees by requiring that the employees vote in favour of the union at each division before that division joins the bargaining unit.
2. Voluntarism in Action
Meeting the standards in the Act for a valid voluntary recognition agreement is not the most difficult test the CAW/Magna Agreement will face. One more difficult question is whether the agreement to opt out of existing Board procedures and labour relations norms is legally valid. This question has three dimensions. The first addresses the agreement during the organizing of new divisions to refrain from application or
[1982] O.L.R.B. Rep. July 1028, cited in George Adams, supra note 12 at 15-23— 15-24. The question in Nicholls-Radtke was whether an employer signing an agreement with a union and then hiring from their hiring hall constituted unlawful support for the union. The Board rejected this argument, holding that it preferred a "practical and purposive" interpretation of the Act, "having regard to the common and sensible methods used by employers and trade unions in the construction industry to create bargaining rights without resorting to the certification procedures under the Act" {ibid, at para. 13). 253
164 complaint to the Labour Relations Board. The second addresses the agreement to forego reliance on work stoppages in renegotiating the collective agreement, and the associated agreement on the appropriate punishment for employees who participate in such stoppages. The third addresses the concern resolution process the parties have crafted as a replacement for traditional grievance arbitration. The first two questions will be answered in this section, while the third is better left for the next.
a. Opting Out of Recourse to the Labour Board
The waiver in the CAW/Magna Agreement of the right to complain to the Labour
Relations Board seems primarily intended to keep the process of organizing and the determination of representativeness flowing in the tracks established in the Agreement. It is given in the following terms:
3) Establishment of Majority Status In determining whether majority status has been met, the parties agree to the following:
iii) The parties waive their right to file an application or complaint with the Ontario Labour Relations Board (the "OLRB") in response to a . . 167 request for recognition.
This provision must be read in concordance with the following sections, which establish a voluntary procedure for resolving any disputes which might arise during the course of determining majority-status. While the waiver is broadly-framed, the sections of the Act it
164 See FFA, supra note 13 at 22. See National Agreement, supra note 71, Art. 2, at 33. Ibid., Art. 4, at 36-41. i fin FFA, supra note 13 at 21-22, emphasis added. 254 is intended to capture are relatively narrow. In essence, it is intended to supplant the certification system in the Labour Relations Act with the recognition structures set out in the Agreement.
There is nothing in the Act which speaks directly to the capacity of the parties to waive their rights to complain of unfair labour practices, or to bring applications under the Act. Section 11 and 11.1, the sections most relevant to the waiver in the Framework of Fairness, govern complaints by the employer or the union of contraventions of the Act by the other as a result of which it is likely that "the true wishes of the employees in the
1 f& bargaining unit were not likely reflected in a representation vote." Section 11 governs 169 contraventions by the employer, and allows only the union to apply for relief. Section
11.1, on the other hand, governs contraventions by the union, and allows applications by 170 any "interested person." Both relate directly to certification applications, and make available to the board the remedies of a new vote, dismissal of the application, or certification without a vote. The more general route to complain to the Board of a
171 contravention of the Act is set out in section 96. The Board is authorized by that
172 section to investigate and remedy the complaint of any person.
In many of the cases where the Ontario Board has approved of 'waivers' of the right to complain by parties during a certification application, the 'waivers' in question
168 ONLRA, supra note 1, ss. ll(l)(a), 11.1(1). 169 Ibid.,s. 11(2). 170 Ibid, s. 11.1(2). Ill Ibid, s. 96. 172 Ibid, s. 97. 255
173 could more accurately be described as settlement agreements. The Board promotes such agreements as a way of settling outstanding issues between the parties after the vote,
174 but before the ballot box is opened and the votes are counted. This sort of settlement agreement has little in common with an anticipatory waiver of statutory rights, however.
The latter more precisely describes the waiver in the Agreement, and is legally a far more problematic creature. Culliton Brothers is often cited for the proposition that estoppel or waiver cannot be raised to prevent a party having recourse to the Labour Relations
175 Act. In that case the employer argued that the union should be estopped from asserting its bargaining rights on the basis of a long period of delay in bargaining. The Board held that it was not prepared to find the union estopped, on the grounds that the bargaining rights arose from the operation of a public statute, and "[i]t is well established that the doctrine of estoppel cannot be evoked to prevent the operation of a public statute."
The Ontario Board has had occasion to revisit this holding in several recent cases.
In the first, the employer alleged that the union had promised not to seek certification under the Labour Relations Act after the employer had hired a number of its 177 members. The employer argued that the union should therefore be estopped from
173 See e.g. Mews Chevrolet Ltd., [2006] OLRB Rep. March/April 186 at para. 20; Bermay Corporation, [1980] OLRB Rep. Feb. 166; Canadian Red Cross Society, [1994] OLRB Rep. Nov. 1592. 174 Komtech, Inc., [2000] O.L.R.B. Rep. May/June 503 at para. 35. 175 Culliton Brothers Limited, [1982] O.L.R.B. Rep. March 357 [Culliton Brothers']. Ibid, at para. 21. 177 Alcan Aluminium Ltd., [1997] OLRB Rep. June 305 [Alcan]. 178 seeking certification as the representative of its employees. The Board held that estoppel was not made out on the facts, because there existed no legal relationship 179 between the parties at the time the promise was allegedly made. The Board went on to hold that even if there had been such a relationship, estoppel would have no application 180 on the facts of the case. They viewed the question as being somewhat more complex than is reflected in the holding in Culliton Brothers, rejecting the conclusion that:
equitable doctrines such as estoppel or waiver do not apply to any part of the Labour Relations Act, 1995. It is well-established, for example, that the unlawful strike and unlawful lock-out provisions cannot be contracted out of and are therefore not subject to estoppel or waiver... On the other hand... notwithstanding that section 56 provides that a collective agreement is binding on the employer, trade union and employees in the bargaining unit defined in the collective agreement, a party may be estopped from enforcing a right or obligation under the collective 181 agreement in appropriate circumstances.
In the second case, one union sought to rely on estoppel to prevent another from seeking
182 certification. The Board rejected this argument, holding that "an application for certification is by definition a species of public right which may not be waived. This is principally because an application for certification involves the rights of employees to be
18^ represented by a trade union or to change the trade union which represents them."
178 Ibid, at para. 70. 179 Ibid, at para. 73. 180 „ . , Ibid, at para. 15. Ibid, at para. 76. 182 Ontario Power Generation Inc., [2001] O.L.R.D. No. 1943 (QL) [Ontario Power Generation]. Ibid, at para. 13. 257
This holding would seem to cast serious doubt on whether the waiver provision in the
CAW/Magna Agreement could be applied to prevent the CAW from seeking certification before the Labour Board. The question of whether it can be applied to prevent complaints about unfair labour practices, or irregularities in the representation vote may be distinct, however.
In the third case, estoppel was raised as a defence to the application of certain provisions of a provincial collective agreement. The Board reviewed the holdings in
Culliton Brothers and Ontario Power Generation, and concluded that:
[w]e accept that generally the doctrine of estoppel cannot apply against the application of the Act itself, particularly, as counsel for the GPMC argues, when public values, public policy considerations are at stake. One cannot waive fundamental rights one has under the Act, e.g. to organize a trade union, to apply for certification, etc. But the principle that estoppel does not apply to the operation of a public statute, where a public value is at stake, does not necessarily entail that estoppel cannot apply to an agreement concluded pursuant to the Act, including a collective agreement and a provincial agreement.
The Board policy coming out of these cases seems to be that the general rule in Culliton
Brothers stands firm. For the most part, the ONLRA applies and the statutory rights of the parties continue to be available regardless of any agreement to waive them. While the
Board seems open to limiting the rule in Culliton Brothers, it has yet to clearly define the scope of any exception to the rule. The cases which have found such an exception have generally involved the application of estoppel to some part of a collective agreement made under the Act, rather than to any portion of the act itself, or right thereunder.
Jacobs Catalytic Industrial Services Ltd., [2007] O.L.R.B. Rep. November/December 1043 at para. 89. 258
This does not bode well for the legal enforceability of the waiver in the
CAW/Magna Agreement. The Board is very unlikely to enforce the waiver to prevent an application for certification, and unlikely also to enforce it to bar an unfair labour practice complaint. It should be noted, however, that the symbolic importance of the waiver far outweighs its legal strength. The waiver is entered only as an integral component of the voluntary system of dispute resolution adopted to protect the structures of the recognition process agreed-upon by the parties. As was discussed in Chapter III, above, the adoption of voluntary systems of dispute resolution such as this is vital to the ability of a cooperative model of labour relations to survive conflict between the parties. A decision by either the CAW or the Company to bypass that dispute resolution system in favour of a complaint to the Board would probably mark the death of the cooperative experiment between the parties. Unless the parties' relationship deteriorates to the point of failure, the waiver remains important in principle even if unenforceable.
While the waiver may be of symbolic importance to the parties, it should be noted that it in no way prevents Magna's employees from complaining to the Board during an organizing drive. This is true whether or not the Board accepted the waiver as legally enforceable between the Union and the Company. Privity of contract would in any event dictate that the parties could waive only their own rights, and not those of the employees the union seeks to represent. It would therefore remain open to an employee, despite the waiver, to complain to the Board under section 96 of any contravention of the Act, by the
, ^ 185 Union or the Company.
ONLRA, supra note 1, ss. 11.1(1), 96(1), 97. 259
b. Abandoning the Right to Strike
Closely related to the parties' waiver of their right to complain to the Board is the
agreement in the CAW/Magna Agreement that neither party will have recourse to the
strike and lockout weapons, either during the life of the Agreement, or during its
renegotiation. The clause itself and the unique means of executing it dwell in a legal grey
area which is worth exploring. The no-strike clause also directly engages the issue of
bargaining on behalf of employees who have yet to authorize the union as their
bargaining agent. Finally, like the waiver issue before it, this provision of the FFA also
raises the question of how much voluntary ordering of their affairs the Board will tolerate
from the parties to the labour-management relationship.
The means by which the no-strike clause is implemented are set out in some detail
in Chapter II, but it may be helpful to briefly review the relevant provisions here. The
primary prohibition on strikes and lockouts is contained in Article 2 of the National
Agreement, which states in part: "Neither of the parties shall utilize any economic
sanction to force its position on the other party over any issue. Further, no Employee or
group of Employees shall individually or through concerted action, take part in any
activity that impedes the operation of the business, except as otherwise authorized by this
Agreement." This prohibition is supported by the threat of immediate dismissal for
187 any employee participating in "such unauthorized activity." This Article serves a
double purpose. Firstly, it satisfies the requirement in section 46 of the ONLRA that every
collective agreement contain a provision banning strikes and lockouts during the life of
National Agreement, supra note 71, Art. 2, s. 1, at 33. 188 the agreement. Secondly, it provides the foundation for the scheme of interest arbitration.
That scheme is described in the provisions relating to the term of the National
Agreement. The Agreement is stated to be for a term of three years, with either party able 189 to give notice to bargain within the last ninety days of that term. If the parties are unable to reach a tentative agreement by the expiry date of the Agreement in force, that
190 Agreement is automatically renewed for a further term of three years. The Agreement directs any outstanding issues to final offer selection in the following terms:
[notwithstanding the automatic renewal referenced above, the parties hereby irrevocably agree that all other matters upon which they cannot reach agreement by the expiry date shall be referred to the Neutral for a final and binding determination. The Neutral will render a decision by choosing between the respective final offers of the Company and the 191 Union on all outstanding matters presented by each party.
The section places limits on the jurisdiction of that Neutral, essentially restricting him or her to dealing with the details but not the superstructure of the relationship between the
192 parties, including in particular the referral and renewal clauses outlined above.
Finally, the Agreement includes what might be termed an insurance clause, which states that:
188 ONLRA, supra note 1, s. 46. 189 National Agreement, supra note 71, Art. 5, s. 1, at 42. 190 Ibid., Art. 5, s. 3, at 42. 191 au. 192 ma. The parties agree that if, during the organizing phase of the FFA, the Neutral or any court or tribunal finds any part of Section 3 to be void, unenforceable or otherwise changes Section 3 in any way without the mutual agreement of the parties, such Neutral, court or tribunal, as the case may be, shall be required to amend Section 1 to include a collective 193 agreement term often (10) years from the date of such decision.
i. Can the Parties Permanently Revoke the Rights to Strike and to Lockout?
The Labour Relations Act, 1995 offers what seems at first to be a straightforward answer to this question. In section 40, the Act states that "Despite any other provision of this Act, the parties may at any time following the giving of notice of desire to bargain under section 16 or 59, irrevocably agree in writing to refer all matters remaining in dispute between them to an arbitrator or a board of arbitration for final and binding
194 determination." The practical reality of the Board's treatment of voluntary interest arbitration clauses is, of course, not so simple.
As one case comments, "The right of parties to agree to arbitration as a way to settle a renewal collective agreement has been a somewhat thorny issue in Ontario labour
195 law." The issue is not whether the parties to a collective agreement can send the outstanding issues in dispute to an arbitrator during the course of negotiations, that much is clearly stated by section 40 of the Act. The problematic question is the inclusion in the
Ibid., Art. 5, s. 4, at 42. ONLRA, supra note 1, s. 40(1). Canadian Niagara Hotels Inc., [2006] O.L.R.D. No. 2480 (QL) at para. 10. collective agreement of provisions for the automatic referral of outstanding issues in 196 future negotiations to arbitration.
The Supreme Court has weighed in on this problem more than once. In its first case on the matter, the Court was confronted with two apparently inconsistent provisions in a collective agreement, one which stated that the agreement would be renewed from year to year unless either party gave timely notice to bargain, and one which stated that the agreement would continue in effect until a new agreement had been negotiated and
197 signed. In characterizing the latter as a mere "bridging provision," operating to maintain the terms of the collective agreement in effect during the negotiation and conciliation phase of collective bargaining, the Court raised the issue of a permanent collective agreement, suggesting that if it took consensus on a new agreement in order to dislodge the old, collective bargaining as it is commonly understood would not be 198 possible at all. This fear has continued to haunt subsequent decisions on both provisions for the renewal of an agreement and those for referral of the agreement to interest arbitration.
Justice Estey, for the majority, quoted with approval the dissenting decision of a board member in the case at first instance, where the member stated:
I do not believe that it was the intention of the Legislature to permit a collective agreement to be fashioned which would perpetually foreclose the right to strike and lockout. Accordingly, I believe that any tenable interpretation of the contract language which will preserve the statutory
196 mid. 197 Bradburn v. Wentworth Arms Hotel Limited, [1979] 1 S.C.R. 846 [Bradburn]. 198 Ibid, at 861. 263
right to stake in the post-conciliation period, is to be preferred to an 199 interpretation which will negate that right.
Neither the majority nor the minority in Bradburn offered a clear statement on whether a permanent revocation of the right to strike was legally valid. Chief Justice Laskin came closest, when he suggested that "The board majority's position appears to me to mean that by agreeing on article 13.02 the parties have contracted out of The Labour Relations Act.
This to me is inadmissible." Almost thirty years after the decision in Bradburn, the legality of agreements to permanently forego the right to strike and lockout remains in question. The Board in the very recent case of Cornwall (City) stated its opinion that
"there may be some doubt given the provisions of the Labour Relations Act, whether such an agreement can even be binding," and cited the case of Grey-Owen Sound Health 201 Unit. The Board in Cornwall (understandably, if somewhat frustratingly) declined to 202 delve into the issue any further.
In the case of Grey-Owen Sound, the parties had reached an impasse in bargaining, largely over the union's demand for the unilateral right to submit any 203 outstanding issues to arbitration in future rounds of negotiation. Upon reaching impasse, the parties agreed to submit the outstanding issues to arbitration under then-
199 Ibid, at 863. 200 Ibid, at 854. 201 Cornwall (City), [2007] OLRB Rep. January/February 198 at para. 44 [Cornwall]; Re Grey-Owen Sound Health Unit and Ontario Nurses Association (1979), 24 O.R. (2d) 510 (Ont. C.A.) [Grey-Owen Sound]. Cornwall, ibid. 203 Grey-Owen Sound, supra note 201 at 511. 204 section 34(c) of the Labour Relations Act. The arbitration board, over the employer's strenuous objections, inserted a clause in the collective agreement which purported to grant just such a unilateral right to either party upon giving notice to bargain, and purported to do so under 34c, turning a procedure statutorily available only by agreement 205 into one available unilaterally. The Ontario Court of Appeal split three ways on the issue of whether the arbitration board had the power to insert such a clause into the collective agreement. A close analysis of the points of disagreement between the members of the court is necessary to reach some conclusion on the legality of the provisions of the CAW/Magna Agreement.
Justice Wilson was of the opinion that the Labour Relations Act provided a complete and exclusive scheme for collective bargaining, and that it was not open to the parties to deviate from that scheme in reaching a collective agreement. She held that the board did not have the jurisdiction to insert such a clause in the collective agreement:
In my view the consensual reference contemplated by s. 34c is a consensual reference of matters which the parties have attempted unsuccessfully to negotiate. This seems to me to be clear from the use of the words "all matters remaining in dispute between them". I do not think the parties can agree under s. 34c to avoid their obligations to negotiate in good faith in an attempt to reach a new collective agreement.. .How then can the parties divest each other in futuro of the statutory bargaining procedure and compel each other to submit to compulsory arbitration? 207 And if the parties cannot do it, how can the board?
204 Now ONLRA, supra note 1, s. 40(1). 205 Grey-Owen Sound, supra note 201, at 511-12. 206 Ibid, at 515. 207 Ibid, at 517-18. Justice Wilson went on to conclude that while it was certainly open to the parties to the collective agreement, pursuant to then-section 34c, to agree to waive their right to strike or lockout in relation to an outstanding dispute, it was not open to them to waive those rights "in vacuum," or in other words to agree in perpetuity to refer unresolved disputes , . . 208 to arbitration.
Justice Brooke, who was in the minority in his disposition of the case, disagreed with Justice Wilson's conception of the Act as a complete code for collective bargaining:
I do not agree that the Act contains a complete statutory scheme which must be resorted to when collective bargaining does not end in a collective agreement... By definition a collective agreement may contain provisions respecting the rights, duties, obligations of the parties and they can put off right to strike and lock out in favour of final and binding arbitration... there is nothing to prohibit the union from putting off its right to strike or the employer from putting off its right to lock out in favour of arbitration... nothing in the Act prohibits a present agreement for future interest arbitration of matters in dispute following bargaining in such circumstances, nor when the parties fail to agree in negotiation for future 209 collective agreement, because this fulfils the object of the Act.
Justice Brooke nonetheless agreed that the arbitration board was wrong to couch its
210 compulsory arbitration clause in statutory terms. He suggested that it could have stood independent of section 34c of the Act, and that the board should have treated it as
211 suchv..
Justice Arnup, completing the three-way split, restricted his ruling to the board's jurisdiction, holding that "the employer did not agree to submit to arbitration the question
208 Ibid, at 518. 209 Ibid, at 524-25. 210 Ibid, at 526. 211 Ibid. whether there should be compulsory arbitration in the future with regard to all
outstanding disputes between the parties. Their agreement was confined to the next
212 ensuing agreement, and only to that." Justice Arnup ruled that the board had exceeded
its jurisdiction in deciding that all future agreements could be determined by arbitration,
213 and explicitly declined to rule on the wisdom or legality of the clause itself.
The three competing decisions in Grey-Owen Sound represent three completely
different approaches to the question of permanent compulsory interest arbitration provisions. The Supreme Court had an opportunity in Ontario Nurses' Association v. 214 Haldimand-Norfolk (Region) Health Unit to resolve these competing interpretations.
Justice Estey for the majority declined, however, to directly address the rulings in Grey-
215 Owen Sound, instead distinguishing the case on its facts. In the course of doing so, the court commented on the holding in Bradburn, and muddied the water a little further for
91 f\ the purposes of the CAW/Magna agreement.
The main issue in Haldimand was whether an arbitration board appointed pursuant to a clause in a collective agreement could reinsert such a clause in the
217 agreement its decision imposed on the parties. Relying in part on Bradburn, the Court of Appeal ruled that it could not, as this would lead to a permanent imposition of the interest arbitration clause, which in the words of Justice Estey of the Supreme Court
212 Ibid, at 528. 213 Ibid, at 529. 214 [1983] 2 S.C.R. 6 [Haldimand]. 215 „ , „, Ibid, at 26. 216 Ibid, at 22-23. 217 Ibid, at 9. 267
"would have the effect of withdrawing the rights of the parties to recourse to free
218 collective bargaining and conciliation under the labour relations statute." Justice Estey
held the considerations in Bradburn to be irrelevant, concluding that where an arbitration
board duplicates a clause requiring interest arbitration, this does not necessarily send the
collective agreement down a path "which would inexorably lead to a perpetual agreement 219 to mandatorily arbitrate a succeeding collective agreement." Justice Estey left
unanswered the question of the legality of an agreement which did purport to do just that.
Haldimand dodged the question of the legal validity of a perpetual revocation of
the right to strike by stating that the inclusion of such a revocation in one collective
agreement does not necessarily mandate its inclusion in every subsequent agreement. One
can hardly imagine a better test case than the CAW/Magna Agreement to finally bring this issue before the court. The Agreement is perfectly unequivocal about its intent for the revocation of the rights to strike and to lockout to be permanent. It takes them out of the hands of the arbitrator by expressly excluding them from the scope of the "issues
220 outstanding" on which the arbitrator may rule. Moreover, by ensconcing that revocation in the Framework of Fairness, it takes it out of the scope of negotiation 221 entirely, making it alterable only by "mutual agreement."
In a frequently-cited passage, the majority of the Supreme Court in Bradburn stated that:
218 „ , Ibid, at 22nn . 219 Ibid, at 23 220 National Agreement, supra note 71, Art. 5, s. 3, at 43. 221 FFA, supra note 13 at 13. It would take the clearest possible language in my view to drive a court to an interpretation which would find the parties voluntarily stripping themselves of the opportunity to call to their aid the provisions of the statute to change a collective agreement, and to substitute for those proceedings so traditional now in the labour relations of our community, a permanent agreement continuing until both parties agree upon a 222 replacement agreement.
While the Court in that passage was addressing "the spectre of a 'perpetual collective
223 agreement,'" the holding was taken up in Haldimand to suggest that language of this sort would be required of any agreement which sought to permanently revoke the right to
224 strike or to lockout. The CAW/Magna Agreement is clearly intended to address this holding, by framing the revocation of the rights to strike and lockout in unquestionably clear terms.
The problem with this is that legality of such a clause, independent of its clarity and certainty, was left unresolved by Grey-Owen Sound and the cases which followed it.
The implication of Haldimand was that the legality of the provision in that case was only saved by the fact that it could later be removed from the collective agreement by 225 negotiation or by arbitration, should one party desire that it be so. By contrast, in the
222 Bradburn, supra note 197 at 861; see also the comments of Chief Justice Laskin, quoted at supra note 200 and accompanying text. 223 George Adams, supra note 12 at 12-25. 224 Haldimand, supra note 214 at 23. 225 The Court quoted with approval a passage from an arbitration by then-Chairman Adams, where he stated "For the general reasons outlined above we believe that in such situations provisions of this kind should not be continued without the express consent of both parties. Free collective bargaining is too important to be done away with inadvertently... Provisions of this kind no matter how long they have been in an agreement do not mean the parties have agreed to the system of interest arbitration forever." Re York Regional Board of Health and Ontario Nurses' Association (1978), 18 L.A.C. (2d) 255 at 264-65; cited in Haldimand, supra note 214 at 21. 269
CAW/Magna Agreement, the provision is removable only by agreement between both parties, and can be altered neither through collective bargaining, nor through arbitration.
It seems to fit Chief Justice Laskin's concerns about contracting out of the terms of the
ONLRA226
The Agreement itself contemplates legal problems with the permanent compulsory arbitration provision, as is apparent through what is described above as the 227 "insurance clause." That clause purports to require that any "neutral, court or tribunal" which finds the automatic referral clause invalid must also extend the term of the 228 Agreement by ten years in the same decision. The legality of this clause is shaky, at best. The authority of the party to bind their own mutually-selected Neutral is clear. The
Neutral draws his or her authority solely from the arbitration clause of the Agreement, and is bound by any limits the parties place on that jurisdiction, and any requirements they impose in the terms of reference. The operation of this section on a mutually- selected Neutral would border on irrelevance, however, since the Neutral would have exceeded his or her clearly-delineated jurisdiction by ruling on the validity of the 229 reference provisions in the first place.
00 f\ Bradburn, supra note 197 at 854. If Chief Justice Laskin's conception of the permanent revocation of the right to strike as constituting and attempt to contract out of the ONLRA is accurate, then this may engage the Culliton Brothers line of cases discussed in the last section. This may offer support for an argument that the revocation of the right to strike/lockout in the CAW/Magna Agreement is simply too firm to be legally enforceable. As discussed below, however, such an argument suffers from practical problems beyond the realm of the law. 227 Supra note 193. 228 wid. 229 As set out in the agreement, the jurisdiction of the Neutral appointed to resolve any outstanding issues is restricted to the details in the later sections of the agreement. 270
It is extremely doubtful whether the parties have any capacity to bind a court or
the Labour Board through the terms of their Agreement. The Labour Board "has
exclusive jurisdiction to exercise the powers conferred upon it by or under [the Labour
Relations Act] and to determine all questions of fact or law that arise in any matter before 230 it," as do the courts. The parties may not by agreement bind the discretion of either
body. The best that they can hope for is to convince the court or the tribunal to give effect
to their intention as expressed in the insurance clause. Given the logic in Bradburn and
Grey-Owen Sound, however, it seems unlikely that a court or tribunal which found a
permanent revocation of the right to strike and lockout to be contrary to the Labour
Relations Act would give effect to a ten-year renewal of the agreement, particularly in
light of the changed circumstances which would be required for the question to come
before the Board or the court in the first place.
The clause in the Agreement providing for its automatic renewal also bears some
specific mention. Although Adams characterizes automatic renewal agreements as raising
"serious labour relations problems relating to the timeliness of strikes and lockouts, the
timeliness of certification applications, and the spectre of a 'perpetual collective
agreement'," these problems all relate primarily to agreements to renew the collective
231 agreement for an unspecified term. This is the sort of renewal prohibited by
Jurisdiction is explicitly denied to the Neutral to deal with the first few Articles of the agreement, including the compulsory arbitration provision: National Agreement, supra note 71, Art. 5, s. 3, at 42. 230 ONLRA, supra note 1, s. 114(1). 231 George Adams, supra note 12 at 12-14.1; with the exception of the first fear, which is in any event irrelevant in the context of the CAW/Magna agreement. 271
232 Bradburn. The renewal clause in the Agreement faces legal problems of its own,
233 relating to the limits it imposes on the Agreement's open season. While the Board's opinion of the legality of the Agreement's automatic renewal provision is uncertain, a declaration of the provision's invalidity might have significant consequences.
If the Board found the Automatic Renewal provision invalid, this might put the prohibition on economic sanctions at risk. As discussed above, the prohibition is supported by the fact that the parties are never able to reach a legal strike/lockout position
- the automatic renewal ensures they are always covered by the strike ban incorporated in the Agreement. A declaration that the Automatic Renewal provision is illegal would remove one obstacle from the parties' path to the legal use of economic sanctions. It is unlikely that this would be enough to bring the Agreement crashing down, however. At most, the invalidity of the automatic renewal provision might consequently lead to a closer scrutiny by the Board of the permanent agreement to refer any disputes to arbitration, both to assess its own validity, and in order to determine whether or not it 234 satisfies the requirements of section 40 or whether it operates independently.
Ultimately, however, the question may be mostly abstract. The revocation of the right to strike will only come before the Board should one of the parties initiate a strike or a lockout. As was discussed in Section B, above, the definition of the bargaining unit in the Agreement ensures that a strike could only be taken at a company level. For the CAW to strike in the face of the Agreement's clear revocation of that right, it would probably
Ibid, at 12-25. 233 See section C.2, above. 234 Which would in turn require a reexamination of the holdings in Grey-Owen Sound, supra note 201. herald the end of the cooperative experiment, regardless of whether the revocation provision was eventually found lawful or unlawful. The Agreement's continued viability depends on the mutual voluntary observance of its broader structure, even as disagreements may arise over its details. A strike by the CAW, legal or illegal, would probably be fatal to the spirit, if not the letter of the agreement.
ii. Is the Ratification/Representation Vote Enough to Validate this Bargain?
The question of the sufficiency of the ratification/representation vote has implications beyond the Union's revocation of the right to strike. The no-strike clause merely captures a particularly vivid and emotional example of what such bargaining can mean for the employees. The main issue is whether the combination representation/ratification vote is enough to validate the union's bargaining on behalf of the employees.
There is some authority in Ontario for the proposition that a union cannot make a valid collective agreement "unless it is entitled to represent employees in the bargaining
235 unit at the time the collective agreement is entered into." The parties to the
CAW/Magna Agreement avoid this issue entirely, however, by virtue of the prior certification of the Union at the Windsor Modules plant. At the time the National
Agreement was signed, the CAW had won a representation vote at Windsor Modules,
George Adams, supra note 12 at 12-8, citing Algoma Maintenance Ltd., [1971] O.L.R.B. Rep. Dec. 815; Vernon Nursing Home Services Ltd., [1983] O.L.R.B. Rep. Sept. 1598; see also ONLRA, supra note 1, s. 66. 273 and had authority to bargain on behalf of the employees there. This avoids the
237 problem of bargaining for an empty unit.
On its own, the combination representation/ratification vote is not problematic. A ratification vote is recognized by the Ontario Board as a means for a voluntarily recognized union to establish to the Board's satisfaction that it is representative of the 238 employees for whom it is recognized. The Ontario Board has held that a successful ratification vote, if held at or around the time to agreement was signed, will constitute evidence of the union's entitlement to represent the employees, under section 66 of the 239 Act. If "the time the agreement was signed" can be taken in the special circumstances of a company-wide bargaining unit to mean the time the agreement was extended to cover the employees in question, then this holding would seem to offer Board support for a combined representation/ratification vote.
It is true that when employees are asked to vote to be represented by the CAW and to ratify that National Agreement, they are presented with an already-finalized revocation of the right to strike. However, the employees who would not have authorized the CAW to negotiate an agreement which included limits on the right to strike are free to vote against the ratification of the agreement. If the vote is carried out and supervised according to the provisions of the Framework of Fairness, the employees will have a full
Socialist Project Labour Committee, "Windsor Modules: The CAW/Magna Agreement Delivers, or Does it?" The Bullet (18 November 2007), online: Socialist Project
The overarching question behind all of these issues, and a major factor in the decisions the Labour Relations Board is likely to reach on the legal validity of the
Agreement, is the Board's tolerance for voluntarism in the form of private ordering of the labour-managment relationship. Doorey recognizes the importance of this issue for the future of neutrality agreements, and it is equally applicable to any labour-management 240 relationship structured by voluntary negotiations. Pointing to the room for voluntary 241 recognition agreements under the Labour Relations Act, Doorey suggests that the state through both Legislature and Labour Relations Board may be willing to tolerate a relatively high degree of private ordering. The outer limits of this tolerance are difficult to judge, however, making the CAW/Magna Agreement a fascinating test case.
E. The Concern Resolution Process
The remaining legal issues arising in the CAW/Magna Agreement relate to the union's representation of its members in the "concern resolution process" which supplants the typical grievance process. The Concern Resolution Process raises two closely related questions. First, is it sufficient as a process of independent arbitration to satisfy the requirements of the Labour Relations Act! Second, what will the duty of fair
Doorey, "Neutrality," supra note 3 at 55-56. For example, in ONLRA, supra note 1, ss. 18(3), 66. representation (DFR) require of the Process, dominated as it is by integrative, informal problem solving mechanisms?
/. "Final and Binding Settlement by Arbitration "
The requirement that all collective agreements contain a method for resolving disputes is imposed by section 48(1) of the Act, which states that "Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question
242 as to whether a matter is arbitrable." The Act authorizes the Board to modify the arbitration provisions of any collective agreement should it find them not sufficient to
243 meet the standard in section 48(1). The issue at hand is whether or not the concern resolution process in the CAW/Magna Agreement meets that standard.
There is, surprisingly, relatively little precedent from the Ontario Board on what satisfies the requirements of section 48(1). The decision most directly applicable to the present case is the recent decision of the Ontario Court of Appeal in Vernon v. General
244 Motors. The issue in Vernon arose out of a dispute over retirement benefits. The collective agreement between the CAW and General Motors at the time provided for arbitration of disputes arising for the master agreement, but also provided a distinct
242 Ibid., s. 48(1); the parallel provision in the NSTUA is not so strict, requiring "a provision for the final settlement without stoppage of work, by arbitration or otherwise...": NSTUA, supra note 1, s. 42(1). 243 ONLRA, ibid, s. 48(3). 244 Vernon v. General Motors of Canada Ltd., (2005) 250 D.L.R. (4th) 259, leave to appeal refused 274 D.L.R. (4th) vi [Vernon]. procedure for the resolution of disputes arising from the "Supplemental Agreement" on 245 pensions and retirement benefits. This procedure provided, in lieu of full arbitration, that disputes over benefits could be taken in writing to a seven person board, made up of three representatives of the union and three of the company, as well as an impartial chair
246 chosen by the parties. Vernon brought a class action against General Motors over entitlement to early retirement benefits. General Motors argued the class action was barred under Weber as the supplemental agreement on retirement benefits was within the
247 exclusive jurisdiction of the arbitrator. Vernon argued that the dispute resolution process for the supplemental agreement did not meet the requirements of section 48(1) of the Labour Relations Act, which he suggested was a precondition to the application of
248 Weber, and that he was therefore entitled to bring his claim before the courts. The
Ontario Court of Appeal disagreed:
As I have said, the flaw in this submission is its implicit assumption that every collective agreement must contain only one arbitration mechanism • the standard process - to satisfy s. 48(1). However, it seems to me that a company and a union are free to negotiate different internal resolution mechanisms for different kinds of disputes under their collective agreement, each of which may satisfy s. 48(1). These different mechanisms may be needed to meet a variety of objectives in the collective bargaining process.
Here, these two sophisticated parties have negotiated a simplified and expeditious procedure to resolve disputes over pension and retirement benefits. I have no reason to think that this procedure runs afoul of s. 48(1). Natural justice does not always require an oral hearing. For these disputes over benefits, GM and CAW have agreed that a written hearing
245 _. . Ibid, at para. 18. 246 _ . . Ibid, at para. 19. 247 Ibid, at para 8; citing Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 at para. 67. 248 rr Vernon, ibid, at para. 17. will satisfy the requirements of procedural fairness... In my opinion, the decision of the seven-person board amounts to a "final and binding 249 settlement by arbitration," as the Act requires.
The decision in Vernon suggests that the relative lack of case law from the Labour
Relations Board on section 48(1) may be indicative of a relatively high tolerance on the
part of the Board for variation from the standard grievance arbitration process. Some
standards are still evident from the decision, however.
First of all, as stated in the Act, the agreed-upon method must provide for the 250 "final and binding settlement of disputes." It seems reasonable to assume that a
process resulting in anything less than a final and binding decision will not be acceptable
to the Board. This should not, however, be taken to mean that every level of the
grievance process must produce a final and binding decision. This standard is only
applied to the final step in the process. Arbitration is a measure of last resort even in the
traditional grievance process. The early stages of any grievance process involve attempts
to resolve the problem informally, through discussions and negotiations between the union and management at an escalating level, and arbitration is used only where these
discussions fail to resolve the problem. The availability of arbitration in some form would
seem to be the ultimate test, and reliance on other procedures at other steps in the process will not render the process in violation of section 48(1).
The second condition is that whatever mode of problem solving the parties choose, it must comport with the requirements of natural justice and procedural fairness in order to satisfy section 48(1). As Adams notes, "Where an alternative is used to the
249 Ibid, at paras. 20-22. 250 ONLRA, supra note 1, s. 48(1); NSTUA, supra note 1, s. 42(1). 278 traditional method of arbitration, the duty of procedural fairness still applies but its content is to be shaped by what logically and sensibly is implied by the nature and usual 251 characteristics of the agreed-upon method itself." The content of the duty of procedural fairness depends on the nature of the dispute resolution process in issue.
The Concern Resolution Process set out in the Framework of Fairness culminates in traditional arbitration. As a result, it is unlikely to give rise to a section 48(1) problem.
What may cause a problem, however, is access to that arbitration for employees dissatisfied with the handling of their concern at the earlier stages in the process. In order to reach arbitration, a grievance must go through no less than three, and as many as five
252 prior levels of problem solving, each of which must be unsuccessful. While the process is set out in detail in Chapter II, it may be helpful to briefly review. The early 253 levels are primarily informal, and driven by the concerned employees themselves. The employee first may approach anyone in management, from their supervisor to the 254 Division General Manager in pursuing a resolution to their problem. If they are 255 unsatisfied, they may go to the Fairness Committee for a formal hearing. If they remain unsatisfied, they may contact the "Hotline," an independent group of Magna employees who are empowered to investigate and resolve complaints. The employee
251 George Adams, supra note 12 at 12-11. 252 National Agreement, supra note 71, Art. 4, at 36-41. 253 Ibid., Art. 4, ss. 1, 2, at 36-37. 254 Ibid., Art. 4, s. I,at36. 255 Ibid, Art. 4, s. 2, 4, at 37-38. Ibid., Art. 4, s. 5 at 39. may also skip the first two steps and contact the Hotline directly with his or her 257 concerns.
If the employee remains unsatisfied, the responsibility for pursuing the grievance shifts to the Employee Advocate, who may take it before the "Concern Resolution
Subcommittee" (CRSC) of the "Employee Relations Review Committee" (ERRC). The
CRSC is composed of two company and two union representatives, including the General
Manager of the division involved, and the Employee Advocate who is representing the
258 concerned employee. They meet and attempt to resolve the problem through negotiations and discussions. If they cannot resolve the issue, then either the representative of the CAW National union (not, in other words, the Employee Advocate), 259 or the Division General Manager may appeal to the ERRC.
The ERRC is made up of three CAW representatives, and three Magna representatives. The Union representatives are all designated by the office of the
Assistant to the National President. The Company representatives are all from senior management, including two from "Global Human Resources" and one "Senior Operating
Executive." They attempt to negotiate a resolution to the issue without sending it to arbitration. If they cannot, then either the CAW Assistant to the National President or
257 Ibid. 258 Ibid., Art. 4, s.6, a t 40. 259 Ibid. 260 Ibid., Art. 4, s.7, a t 40. 261 Ibid. 262 Ibid. 263 Ibid. 280 the Magna Executive Vice President, Global Human Resources is able to send the dispute
264 to arbitration. The structure of that arbitration, as set out in the National Agreement, is fairly typical.
As can be seen, the CAW/Magna Agreement does provide for a process leading to final and binding arbitration. The problematic issue is not whether such a process is in place, but whether the employee with a grievance will be able to access it, in other words whether a concern will be moved along through the steps of the process until it reaches arbitration, rather than stalled at the first level to take the grievance out of the hands of the individual employee. The answer to this question is not to be found in the Board's jurisprudence on section 48(1), but rather in the duty of fair representation. The only way a grievance will be moved through the process is if the various representatives of the local and national union who are involved are willing to pursue it to the best possible resolution in the circumstances. They must be willing to put their duty to represent individual members first, even where that may cause friction in their relationship with the company. The number of stages in the process, and the degree of high-level control involved means that the duty of fair representation will potentially be doing a significant amount of work in the CAW/Magna Agreement.
2. The Duty of Fair Representation
The duty of fair representation (DFR) is imposed on the Union by section 74 of the Labour Relations Act, which reads:
264 Ibid., Art. 4, s. 8, at 41. Of course, even under a traditional grievance process, the union and not the employee has carriage of the grievance beyond the most informal level. 281
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the , 266 case may be.
The "three-fold test" that representation may not be arbitrary, discriminatory, or in bad faith, was adopted by the drafters of section 74 directly from the American jurisprudence in which the duty had its inception. This test will be applied to both the substance of decisions made by the union in representing members of the bargaining unit, and the process by which those decisions are made. In Ontario, the duty applies to the union's representation of bargaining unit members both during the life of the collective
269 agreement, and during collective bargaining. There is voluminous jurisprudence from
Canadian Labour Relations Boards, including the Ontario Board interpreting the precise content of the three elements of the duty.
The prohibition against "bad faith" can be seen to impose a relatively minimal set of requirements on the union in representing the members of the bargaining unit. All that it requires, according to the Ontario Board, is "that an individual employee's bargaining
ONLRA, supra note 1, s. 74; the parallel provision in Nova Scotia is in NSTUA, supra note 1, s. 54A(3), which reads: "No trade union and no person acting on behalf of a trade union shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in a bargaining unit for which that trade union is the bargaining agent with respect to the employee's rights under a collective agreement." George Adams, supra note 12 at 13-7; see Vaca v. Sipes, 386 U.S. 171 (1967). Mauri Ahokas (1983), 3 Can. L.R.B.R. (NS) 14 (Ont.) at 43; see also George Adams, ibid, at 13-16. 269 Toronto District School Board and OSSTF (Re) (2002), 85 C.L.R.B.R. (2d) 198 (Ont.). 282
270 agent will act honestly and free of any personal animosity toward him." The Ontario
Board has defined the prohibition on discrimination to require that the union not make
"distinctions between employees and groups of employees on bases which have no 271 relevance to legitimate collective bargaining concerns." This definition takes the duty beyond discrimination on the bases of grounds prohibited in human rights legislation and into grounds such as favouritism. Finally, the prohibition on arbitrariness is the most 272 difficult to define precisely. In Ontario, the Board has interpreted arbitrariness to include "conduct which is superficial, capricious, cursory, grossly negligent, implausible 273 or flagrant," but not "honest mistakes or errors in judgment." In another case, the
Board stated that the duty "requires the exclusive bargaining agent to put 'its mind' to the merits of a grievance and attempt to engage in a process of rational decision-making that 274 cannot be branded as implausible or capricious." This is the broadest and most flexible element of the three, and the most likely to restrict the behavior of the Union in the present case.
In the context of the concern resolution process under the CAW/Magna
Agreement, we are most concerned with what the duty requires of the union in processing a grievance. The unique cooperative structure of the Concern Resolution Process makes attentiveness to the duty of fair representation of the utmost importance for the Union.
270 Susan G. Bartlett, [1983] O.L.R.B. Rep. Dec. 2067, at 2076 [Bartlett]; cited in George Adams, supra note 12 at 13-16.2. 271 Bartlett, ibid. 272 George Adams, supra note 12 at 13-21 — 13-22, see also Walter Prinesdomu et ah, [ 1975] 2 Can. L.R.B.R. 310 (Ont.) at 315 [Prinesdomu]. 273 Stanley Dwyer, [1982] O.L.R.B. Rep. Oct. 1417 at 1432 [Dwyer]. 274 Prinesdomu, supra note 272 at 316. 283
Some guidance can be found from the existing Board precedent for how the Union should
carry itself in working with the Company to resolve concerns through the process set out
in the Act.
The fear, in brief, is that the Union will put its relationship with the Company
ahead of its representation of concerned employees/The CAW/Magna Agreement does not stipulate how involved or informed employees are to be in the carriage of their own
concerns. It does not state whether the meetings of the CRSC or the ERRC are to be open
or closed. It sets out no opportunity for input or feedback from concerned employees on the "resolution" of their complaint. It also sets no standards for the Union representatives in making the decision whether or not to pursue an issue to the next stage in the process.275 Taken as a whole in combination with the tone of the Agreement, these factors give rise to a fear that the rights of employees may fall completely out of the process in favour of an exclusive focus on maintaining the relationship between the Company and the Union.
There is no "automatic right" on the part of an employee to have his or her grievance pursued to arbitration, "so long as the decision is not taken in bad faith or
97^* tainted by discriminatory considerations." The decision to proceed to the next level of the Concern Resolution Process, whether it is being made by representatives of the local or national Union, must still be founded on "the merits of the grievance," and a "process
275 Of course, even an ordinary collective agreement is unlikely to spell out these details. Given the unique tone of the CAW/Magna Agreement, however, some comment on these issues might be hoped for in order to assuage the fears that the interests of the employees may become a second priority to the Union's relationship with the Company. George Adams, supra note 12 at 13-17, citing Roe and USWA, Loc. 5595 (Re) (1986), 14 C.L.R.B.R. (NS) 239 (Ont); see also Liebman and YUSA (Re), 87 C.L.L.C. 16,046 (Ont. L.R.B.). 284 of rational decision making," and not on fears about what pursuing the grievance might 277 do to the Union's relationship with the Company. That said, the Board has held that a union may consider the interests of other employees in the bargaining unit when deciding whether to pursue a grievance, which may allow some room for balancing long-term interests of the bargaining unit with the short-term interests of the individual concerned
278 employee. How far the Board will allow this balancing to go is difficult to say.
It may be difficult for an employee who complains about a breach of the Duty of
Fair Representation in the decision not to advance a grievance to offer a basis for the complaint if he or she is not included in the decision-making process. Excluding an employee from settlement discussions with the employer has been found not to violate 279 the duty in Ontario, in the absence of any dishonesty or malice. This would seem to suggest that the employee need not be present at the CRSC and ERRC meetings for the duty to be satisfied. However, it is probably necessary to disclose to the employee all that goes on at those meetings, and to be honest and open about the reasons for any decision
280 made by union officials. It may even be preferable for the union to follow that course: as Adams notes, "Productive settlement discussions often proceed better when those
277 Prinesdomu, supra note 272. 278 Kenneth Hughes, [1974] 1 Can L.R.B.R. 326 (Ont); Prinesdomu, supra note 272. 279 Dwyer, supra note 273; see also Borg Westermann, [1984] O.L.R.B. Rep. Feb. 286. 280 Reginald Walker, 81 C.L.L.C. 16,073 (Ont. L.R.B.); Crewdson andlBEW, Loc. 1541 (Re), 93 C.L.L.C. 16, 014. See also Joseph Pap, [1974] 1 Can. L.R.B.R. 74 where a breach of the DFR was found where the union decided not to pursue a grievance at a meeting of which the grievor was not informed; cited in George Adams, supra note 12 at 13-40. 285
281 emotionally involved are kept informed but at a distance." While the CAW/Magna
Agreement does not require that a record be kept of CRSC and ERRC concern resolution meetings, it may be prudent for the Union to do so in order to protect itself from DFR
complaints.
In deciding whether or not to settle a grievance, the DFR does not require that the 282 affected employee agree with the decision. As above, what is required is that the
Union puts its mind to the merits of the grievance, and reaches a reasoned decision. In the case of the CAW/Magna Agreement, the efforts of the CRSC and the ERRC to "resolve" a grievance may succeed even if the employee concerned does not necessarily agree with the resolution. What would seem to be required is an open process of decision making, carried out in good faith, with the concerned employee kept reasonably well-informed of the proceedings. Given that the cooperative orientation of the Concern Resolution
Process may raise more significant concerns for employees of the independence of their representatives, it would seem to be incumbent upon the CAW to take extra care to ensure that proper records are kept of the reasons for decisions not to pursue a concern any further, and that employees are kept fully informed as the process progresses.
One final issue bears mention. Concerns over discharge are subject to a distinct process under the CAW/Magna Agreement. Ordinarily, they must be brought to the
Hotline as the first step, from which they are taken to the CRSC and the ERRC, and arbitration, as would any other grievance. The discharged employee can also apply for a
"vote on reinstatement."In doing so, the employee agrees to the following waiver:
George Adams, supra note 12 at 13-18.1 Catherine Syme, [1983] O.L.R.B. Rep. May 775. The Parties acknowledge that the Reinstatement Vote is final and binding in nature. Upon applying for a Reinstatement Vote, the employee agrees to waive all further rights to pursue the matter through the Concern Resolution Process set out in the National Agreement, and further waives and releases both the Company and the Union from any and all further claims, actions, complaints or demands arising in relation to the individual's employment or the termination of such employment, that may be brought in any court of competent jurisdiction, including any claims under the Ontario Labour Relations Act, Ontario Human Rights Code, the 283 Ontario Employment Standards Act or at common law.
The employee essentially relinquishes the right to have the discharge addressed through
the normal concern resolution process, as well as indemnifying the Union against any
claim for a breach of the DFR, in favour of a peer review of the reasons for his discharge,
284 followed by a final and binding vote on his reinstatement. The waiver is important, as
is the fact that the vote is available on request rather than taken as a mandatory part of the
discharge concern resolution process. The Ontario Labour Board has sharply criticized a union in the past for holding what it described as a "popularity contest" in lieu of
fulfilling its duty of fair representation, by voting at a meeting on whether or not to
285 pursue the grievance. However, the waiver seems clearly contrary to Parry Sound,,
suggesting that the final and binding vote on reinstatement may, in reality, be neither
final nor binding.
There is relatively little discussion in the Ontario case law of the different issues which arise for the DFR in the context of atypical grievance procedures. Given the broad
283 National Agreement, supra note 71, at 75. 284 Ibid, at 77. 285 Alvin Plummer, [1983] O.L.R.B. Rep. November 1920 at 1930. 286 _ 1 Ar\ See supra note 149. 287 nature of the DFR, and its application in Ontario throughout the representation process, the Board is likely to apply a similar standard to the Union even in light of the unique structure of the CAW/Magna Agreement. This means that the CAW must model its representation of employees in the Concern Resolution Process on the representation it would offer under any other collective agreement. It must place the interests of the members of the bargaining unit it represents ahead of its relationship with the Company, and must refrain from making decisions which are discriminatory or arbitrary in their process or outcome. In light of the relatively thin commentary in the CAW/Magna
Agreement on the standards and process for CRSC and ERRC discussions and decision making, it will be extremely important for the Union to make a careful record of the reasoning at such meetings. The Board will not hesitate to apply the DFR to the Union's actions at the CRSC and ERRC. The Union must therefore approach the task of representing the interests of its members under the CAW/Magna Agreement with as much commitment and dedication as it would under any other collective agreement.
The willingness of the Board to sanction the Union for failures to fulfill the DFR may prove essential to the smooth operation of the Concern Resolution Process set out in the CAW/Magna Agreement. There are numerous opportunities in the lengthy process for the interests of the concerned employee to fall by the wayside in favour of the interests of the cooperative experiment between the Union and the Company, and it is essential that the Board be willing to intervene where this occurs. If the Union places the interests of its members first in the Concern Resolution Process, as it would in an ordinary grievance process, there may be no reason for the Board to intervene, however. 288
F. Conclusion
Many aspects of the CAW/Magna Agreement tread a fine line between acceptable and unacceptable under Labour Board jurisprudence. In some areas, such as the automatic renewal provisions and the waiver of the parties' right to complain to the
Board, it probably crosses that line into illegality. In others, such as the support it requires from the Company for the Union, it may not, but the parties must nonetheless remain attentive to the possibility that changing circumstances will render the terms of the
Agreement illegal, for example a representation vote where an organizing drive by a competing union is underway.
In some respects, the Agreement has the potential to push the Labour Relations
Board to address failings in its own jurisprudence. The definition of the bargaining unit agreed-upon by the parties, for example, represents one of the most important elements of the Agreement, effectively insulating it from decertification or displacement applications or challenges to the no-strike clause on any but the largest scale. If large-scale voluntary agreements proliferate, the Ontario Board-(and that of Nova Scotia) will have to reassess its policy of not allowing partial decertification or displacement applications. The tension between the need for stability in a large-scale cooperative model of labour relations and the importance of the employees' right of self-determination will provide a new set of concerns for the Board to consider in formulating its bargaining unit policy.
Similarly, the unequivocal permanent revocation of the right to strike will require the Board to confront its wavering jurisprudence and decide to what extent the parties to a voluntarily-structured labour-management relationship will be permitted to contract out of the provisions of the Labour Relations Act. There is a strong argument to be made that 289 the various attempts to do so in the CAW/Magna Agreement, including the no-strike clause, the waiver of the right to complain to the Board, and the provision for the automatic renewal of the Agreement are to varying degrees illegal under the law as it stands now. If agreements on the model of the CAW/Magna Agreement spread, the
Board would be well-advised to consider articulating a clear policy on the extent to which the Act is alterable by contract.
The latter issue may not come before the Board without a conscious effort to articulate a policy in the face of the changing practical needs of the labour relations community. While there is a significant chance of the Agreement being challenged in a displacement or decertification application, the number of obstacles placed in the
Agreement to a legal strike or lockout makes it very unlikely that the Board will have the opportunity to comment on the parties' attempt to contract out of the Act.
On a final note, the symbolic importance of the parties' efforts to contract out of the Act cannot be emphasized enough. Whether or not the parties' waiver of their own rights to apply or complain to the Board, or their revocation of the right to strike or lockout would be accepted by the Board may ultimately be of little practical relevance for the CAW and Magna. The commitment to the stability and long-term durability of the cooperative relationship that those two provisions represent may ultimately be far more important to the parties' relationship than their legal enforceability. Chapter VI: Conclusion
A. The Successes and Failures of the Agreement
The discussion in the last four Chapters has painted a picture of an Agreement which is neither an unqualified success, nor the dismal sell-out portrayed by its critics.
Instead the CAW/Magna Agreement is a unique and remarkably comprehensive attempt to craft a stable, cooperative labour-management relationship, and to equip that relationship with the tools it needs to endure through disagreement and conflict, and through changes in the labour market and in the broader economy. It is an attempt to build a lasting partnership on the limited foundations of a few short years of experience as collective bargaining partners at traditionally-organized worksites.
As a cooperative model of labour relations, the Agreement will face challenges from the day to day conflicts between workers and management, and from actions by dissatisfied actors on either side who would hope to undermine cooperation. The two years of negotiations leading to the Agreement leave the parties heavily invested in its success, and the measures they have taken to protect it reflect that commitment. They have, however, avoided trying to exclude conflict from their relationship entirely, recognizing that there will always be issues on which labour and management are necessarily at odds. Instead, they have attempted to protect the cooperative tone of their relationship from disruption at the hands of this inevitable conflict.
The Agreement entrenches formal and informal mechanisms for dispute resolution, including the prohibition on economic sanctions in favour of interest arbitration and the lengthy Concern Resolution Process, both controversial in the commentary on the Agreement. Despite this controversy, the recognition by the parties
290 291 that these measures must be institutionalized and secured from later erosion in the heat of a conflict represents one of the great successes of the Agreement. Without the security of such reliable guarantees of the cooperative resolution of conflict, it is all too easy for the most ambitious experiments in cooperation to collapse under the weight of the parties' diverging short-term interests, particularly in times of economic misfortune.
The Agreement's greatest weakness arises from a similar effort to insulate it from the effects of conflict. The negotiations which resulted in the Agreement took place at a very high level - the upper echelons of management within Magna, and the highest leadership within the CAW - and those actors have taken steps to restrict for themselves the task of charting the course of the Agreement. The leaders of both the union and management are far removed from the on-the-ground conflicts in the workplace, less likely to succumb to individual disagreements and more likely to be able to take a strategic view of the parties' relationship. Because of the long-term foresight required of the parties to a cooperative agreement, this may contribute to the Agreement's stability.
Any gains in stability will come at a cost, however. Restricting control over the terms of the Agreement to the highest echelons in the Union and the Company has been accomplished through restrictions on the participation of employees in setting those terms, one of the very goals the Agreement was intended to advance. In the name of protecting the Agreement from cooption and erosion at the hands of those who might disagree with its founding principles, it restricts the practice of democracy within the
Union's internal representative processes. The restrictions on democracy within the union may contribute to a loss of independence on the part of Union leadership, to the eventual 292
alienation of Magna's employees from the Union, and to the destabilization of the very
Agreement they are intended to protect.
Instability may also arise from the tension between the Agreement and the
structures of conventional labour law. The Agreement in many respects dwells in the grey
areas of the existing labour law, which may expose it to legal challenges to its structure
and terms. However, the Agreement may also provide the impetus for the Ontario Labour
Board (and possibly that of Nova Scotia as well) to revisit some of its less well-defined policies, which may ultimately produce a clearer legal foundation for the voluntary
ordering of the labour-management relationship, whether explicitly cooperative or
otherwise.
B. Where Now for the CAW/Magna Agreement?
The future is uncertain for the CAW/Magna Agreement. Buzz Hargrove has announced that his present term as CAW President will be his last, and Frank Stronach is far from a young man. If these two figures, in many ways the driving forces behind the
Agreement, are to disappear from the scene, it is impossible to say whether their replacements will continue to pursue it with the same enthusiasm.
With the workers of two Magna plants having signed on so far, the organizing 2 phase of the Agreement would seem to be progressing according to plan. However, as
1 John Gray, "His Way or the Highway" (30 May 2008) Globe and Mail, online: Globe and Mail,
had been successful in keeping worker interest in unionization low, and this may limit 3 their interest in the CAW even with an endorsement from their employer. While
organizing at the first plant to vote on representation and ratification concurrently was
successful, the reaction of workers at other Magna plants to the CAW remains to be seen.
On the other hand, if the successors to the leadership of both the Union and the
Company remain committed to the Agreement, and the employees are interested in
representation by the CAW, the Agreement may spread as divisions are organized until it
reaches something approaching its potential coverage of 18,000 workers. Presuming it
survives the potential legal challenges identified in the last Chapter, it is likely to be very
durable once adopted.
But regardless of the future for the Agreement itself, the fact remains that it has
made a significant splash in the Canadian labour relations community. The attention
which it has attracted may well draw imitators, particularly if the model set out in the
Agreement turns out to be a functional and healthy model for labour relations. This begs the question of whether the basic model set out in the Agreement is relevant or
appropriate for application in other sectors, or whether its usefulness is limited to the
industrial and manufacturing sector? As was briefly discussed in Chapter I, the ratified the National Agreement: Socialist Project Labour Committee, "Windsor Modules: The CAW/Magna Agreement Delivers, or Does it?" (18 November 2007) online: Socialist Project,
personal and business services sectors are growing in importance. If the Agreement's
utility is limited to the labour market conditions prevalent in the manufacturing industry,
then the likelihood of its uptake by other actors in the labour relations community will be
diminished, as will its capacity to influence legislative and policy development.
More research needs to be done to offer a concrete opinion of the Agreement's
applicability to the service, resource or construction sectors, but at first glance there
would seem to be no obstacle to extending it beyond manufacturing. Certainly adopting
the Agreement in any other sector would require some modifications to its basic
structures, for example the selection process and responsibilities of the Fairness
Committee and Employee Advocates as the employer's corporate organization moved
away from permanent locations, employing full-time long-term employees. The
Agreement's broad-based organization, however, which deals with so much of the
labour-management relationship at the corporate rather than the worksite level, would
seem to be an almost ideal fit for a decentralized employer. It could offer benefits, for
example, in food or building services, or for a company which relies extensively on home
workers, or other off-site employees.
More research is required, however, in this and other areas. While an assessment
of the terms of the Agreement such as that carried out here is an important preliminary
step, the true measure of the Agreement's worth can only be taken as it is applied in practice. Close attention must be paid to the issues raised in the foregoing Chapters as more Magna divisions vote to join the CAW under the Agreement. The analysis presented here can offer only theories. The Agreement's growth and evolution will reveal 295 its true impact on labour law and policy, on union democracy, and on the future of voluntary models of cooperative labour relations in Canada. 296
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Parry Sound (District) Social Services Administration Board v. O.P.S.E. U, Local 324, [2003] 2 S.C.R. 157.
Professional Institute of the Public Service of Canada v. Canada (Attorney General) (2002), 222 D.L.R. (4th) 438 (Ont. C.A.).
Re Grey-Owen Sound Health Unit and Ontario Nurses Association (1979), 24 O.R. (2d) 510 (Ont. C A.).
Re Lumber & Sawmill Workers' Union, Local 2537, AndKvp Co. Ltd. (1965), 16 LA.C. 73.
Re VON - Nova Scotia - Digby County (27 March 2003), Nova Scotia Labour Relations Board, Decision #5046.
Re York Regional Board of Health and Ontario Nurses' Association (1978), 18 LA.C. (2d) 255.
Reference Re: Public Service Employees Relations Act, [1987] 1 S.C.R. 313.
Reginald Walker, 81 C.L.L.C. 16,073 (Ont. L.R.B.). 300
Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Local 1688, [1993] O.L.R.D. No. 4998 (QL).
Roe and USWA, Loc. 5595 (Re) (1986), 14 C.L.R.B.R. (NS) 239 (Ont).
Rogers Broadcasting Ltd., [2000] O.L.R.B. Rep. March/April 384, 59 C.L.R.B.R. (2d) 24.
Sheet Metal Contractors' Association, [1986] Alta. L.R.B.R. 291.
Simcoe (County), [2002] O.L.R.D. No. 2380 (QL).
Sobeyslnc, [2002] O.L.R.B. Rep. September/October 915.
Stanley Dwyer, [1982] O.L.R.B. Rep. October 1417.
Sunrise Paving and Construction Co. Ltd. 72 C.L.L.C. If 16,060 (Ont. L.R.B.).
Susan G. Bartlett, [1983] O.L.R.B. Rep. December 2067.
Taylor v. Atkinson (1984), 6 C.C.E.L. 112 (Ont. H.C.J.).
Toronto District School Board and OSSTF (Re) (2002), 85 C.L.R.B.R. (2d) 198 (Ont.).
Tri-Canada Inc., [1981] O.L.R.B. Rep. October 1509.
United Rubber, Cork, Linoleum and Plastic Workers of America, Local 1028 and Michelin Tires (Canada) Limited, [1979] Can. L.R.B.R. 429 (N.S.).
Upper Canadian Furniture Ltd., [1981] 3 Can. L.R.B.R. 286 (Ont.).
Vaca v. Sipes, 386 U.S. 171 (1967).
Vernon Nursing Home Services Ltd., [1983] O.L.R.B. Rep. September 1598.
Vernon v. General Motors of Canada Ltd., (2005) 250 D.L.R. (4th) 259, leave to appeal refused 274 D.L.R. (4th) vi.
Walter Prinesdomu et al, [1975] 2 Can. L.R.B.R. 310 (Ont.).
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.
Westar Timber Ltd. (1987), 14 C.L.R.B.R. (NS) 360 (B.C.).
White Spot Ltd. (Re) (1999), 55 C.L.R.B.R. (2d) 184 (B.C.). COLLECTIVE AGREEMENTS
CAW & Intier Automotive Systems. "Collective Agreement between Integram Windsor Seating/Innovatech Seating Systems and CAW" (6 November 2004 - 7 November 2007) [unpublished, on file with author].
CAW & Magna International. "Framework of Fairness Agreement" (15 October 2007), online: CAW-TCA Canada
CAW & Magna International. "Framework of Fairness, National Agreement, and Windsor Modules Local Appendix" (7 November 2007) [unpublished, on file with author].
CAW & Magna-Intier Automotive Systems. "Collective Agreement between Mississauga Seating Systems and CAW" (15 December 2005 - 15 December 2008) [unpublished, on file with author].
CAW Local 1001 & Freightliner CDA. "Collective Agreement Between Sterling Trucks, St. Thomas and CAW Local 1001" (27 March 2006 - 27 March 2009) [unpublished, on file with author].
CAW Local 88 & CAMI Automotive Inc. "Collective Agreement Between CAMI Automotive Inc. and CAW Local 88" (23 January 1989 - 14 September 1992) [unpublished, on file with author].
CAW Local 88 & CAMI Automotive Inc. "Collective Agreement Between CAMI Automotive Inc. and CAW Local 88" (17 September 2007 - 19 September 2010) [unpublished, on file with author].
SECONDARY MATERIAL: MONOGRAPHS
Adams, George. Canadian Labour Law, 2n Ed., looseleaf (Aurora: Canada Law Book, 1993).
Adams, Roy J. Industrial Relations under Liberal Democracy: North America in Comparative Perspective (Columbia, S.C.: University of South Carolina Press, 1993).
Adell, Bernard et ah, eds., Labour and Employment Law: Cases, Materials, and Commentary, 7th ed. (Toronto: Irwin Law, 2004).
Brown, Donald J.M. & David Beatty. Canadian Labour Arbitration, 4th Ed. (Aurora, ON: Canada Law Book, 2006). 302
Chaison, Gary N. Union Mergers in Hard Times: The View from Five Countries (Ithaca, NY: Cornell University Press, 1996).
De Tocqueville, Alexis. Democracy in America, vol. 2, Phillips Bradley, ed. (New York: Alfred A. Knopf, Inc., 1945).
Freeman, Richard B. & Joel Rogers. What Workers Want (New York: Russel Sage, 1999).
Grant, Michel. Shifting From Traditional to Mutual Gains Bargaining: Implementing Change in Canada (Kingston: IRC Press, Queen's University, 1997).
Habermas, Jiirgen. Between Facts and Norms, Trans, by William Rehg (Cambridge, MA: MIT Press, 1999).
Kaufman, Bruce E., Richard A. Beaumont & Roy B. Helfgott, eds. Industrial Relations to Human Resources and Beyond (Armonk, NY: M.E. Sharpe, 2003).
Kelly, John. Rethinking Industrial Relations: Mobilization, Collectivism and Long Waves (New York: Routledge, 1998).
Kochan, Thomas A. & David B. Lipsky. Negotiations and Change: From the Workplace to Society (Ithaca, NY: Cornell ILR Press, 2003).
Leiserson, William M. American Trade Union Democracy (Westport, CT: Greenwood Press, 1959).
Michels, Robert. Political Parties, Trans, by Eden and Cedar Paul (Kitchener: Batoche Books, 2001).
Sen, Amartya. Development as Freedom (New York: Anchor Books, 1999).
Webb, Sidney and Beatrice. Industrial Democracy (London: Longmans Green, 1920).
SECONDARY MATERIAL: NEWSPAPER ARTICLES
Adams, Roy J. "A Tale of Two Contracts" Straight Goods (12 November 2007), online: Straightgoods.ca
Allen, Bruce. "On and After the Magna Vote" New Socialist (29 December 2007), online: New Socialist < http://www.newsocialist.org/index.php?id=1485> (last accessed: 12 June 2008). 303
Anonymous, "Alta. Leader Backs CAW; union faces own strike" (23 October 2000) 13:18 Canadian HR Reporter 16.
Anonymous, "CAW and SEIU make up" (18 June 2001) 14:12 Canadian HR Reporter 5.
Anonymous. "Magna Deal Approved but Local 222 Voices Opposition" Toronto Star (8 December 2007), online: Torstar Network
Armstrong, Tim. "Time for Change" Financial Post (1 November 2007), online: National Post
Broadbent, Ed. "No Place for Phony, Defanged Unions" Globe and Mail (30 October 2007), online: Socialist Project
Canada News Wire, "CAW's support of liberals drive voters to conservatives" Canada News Wire (18 January 2006) (Proquest).
CBC Newsworld. "CLC Ready to Impose Sanctions on CAW" (27 June 2000) CBC Newsworld, online: Hartford-HWP World History Archives
Diebel, Linda. "No Reason to Vote NDP, Hargrove Says" Toronto Star (5 October 2007), online: Star Online
Fraser, Wayne, et al. "The Magna Sell Out" (23 November 2007) Financial Post, online: National Post
Intini, John. "The Buzz Fracture" Macleans Online (8 February 2006), online: Macleans, ca
Keenan, Greg. "CAW Breaks Through in Magna Battle" Globe and Mail (11 September 2002) B01, B02. 304
--. "CAW Signs off on Magna Deal" Globe and Mail (7 December 2007), online: Globe and Mail
—. "CAW strikes deal at Magna unit" Globe and Mail (11 December 2002), online: Globe and Mail
—. "Cracks form in Magna's Union Deal" Globe and Mail (29 October 2007), online: Globe and Mail
—. "Magna Unit Plans Major Ont. Expansion" Globe and Mail (25 April 2002) B01, B12.
—. "United Steelworkers gain Toehold at Dofasco" Globe and Mail (19 March 2008), online: Globe and Mail
Levitt, Howard. "Family Day and Other Grievances" National Post (12 December 2007), online: Lang Michener LLP
Livingston, Gillian. "New Democrats Unmoved by CAW decision to End Traditional Support of NDP" Canadian Press (24 April 2006) (Proquest).
Lupsig-Mumme, Carla. quoted in Anonymous. "York Professor Says the CAW- Magna Deal is Bad for Workers" The Y-File (30 October 2007), online: York University
Neumann, Ken. "In remaking unionism, there are core principles to maintain" Globe and Mail (7 December 2007), online: Globe and Mail
Powell, Naomi. "United Steelworkers abandon Dofasco In-House Campaign" Hamilton Spectator (27 March 2008), online: thespec.com
Sachelli, Sarah. "Integram Workers Accept Contract" Windsor Star (10 March 2008), online: Windsor Star
SEIU, "SEIU leadership vote to leave U.S. Based union and Merge with CAW" (20 February 2000) online: Hartford-HWP World History Archives
Steele, John. "Auto Workers Union Ratifies No Strike Deal" (14 January 2008), online: The Militant
Stronach, Frank & Buzz Hargrove. "For the sake of the auto industry, we've put aside our differences" Globe and Mail (17 October 2007), online: Globe and Mail
Van Alphen, Tony. "CAW Gains Foothold at Magna" Toronto Star (13 February 2001)D01,D14.
—. "CAW, Magna Negotiate Contract" Toronto Star (9 November 2001) E01, E03.
—. "Magna sets aside challenges to union" Toronto Star (17 January 2001) E03.
—. "Magna Workers Proud of New Contract" Toronto Star (13 November 2001) C03.
—. "New Magna Plant Innovatech gains union recognition" Toronto Star (24 April 2002) El 2.
—. "Union Scores victory at Magna Plant in Windsor" Toronto Star (16 January 2001) E01, Ell.
Van Praet, Nicolas. "How Stronach Learned to Sing Union Song" National Post (16 October 2007), online: Financial Post
—. "What's the Strategy Behind Magna's Union Deal?" Financial Post (19 October 2007), online: FP Posted
Watson, Thomas. "Frank's Future: Magna's Partnership" Canadian Business (21 May 2007), online: Canadian Business Online
Wheeler, Glenn. "Labour's Bad Day" Now Magazine 19 (August 31- September 6 2000), online: Now On
White, Bob. "Unions have to innovate to better serve workers" Toronto Star (30 October 2007), online: The Star Online
SECONDARY MATERIAL: SCHOLARLY ARTICLES
Bacon, Nicolas & Paul Blyton. "Union Co-operation in a context of job insecurity: Negotiated Outcomes from Teamworking" (2006) 44 British Journal of Industrial Relations 215.
Brown, William & Sarah Oxenbridge. "Trade Unions and Collective Bargaining Law and the Future of Collectivism" in Catherine Barnard, Simon Deakin & Gillian S. Morris, eds., The Future of Labour Law: Liber Amicorum Bob Hepple QC (Portland, OR: Hart Publishing, 2004) 63.
Brudney, James J. "Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms" (2005) 90 Iowa L. Rev. 819.
Bruno, Robert. "Democratic Goods: Teamster Reform and Bargaining Outcomes" (2000) 21:1 Journal of Labor Research 83.
Collins, Hugh. "Regulating the Employment Relation for Competitiveness" (2001) 30 Indus. L.J. 17.
Deery, Stephen J. & Roderick D. Iverson. "Labour-Management Cooperation: Antecedents and Impact on Organizational Performance" (2005) 58 Indus. & Lab, Rel. Rev. 588.
Doorey, David J. "Neutrality Agreements: Bargaining for Representation in the Shadow of the State" (2006) 13 C.L.E.L.J. 41, online: Social Science Research Network
—. "The Medium and the 'Anti-Union' Message: Forced Listening and Captive Audience Meetings in Canadian Labour Law" (2008) 29 Comp. Lab. L. & Pol'y J. 79. 307
Eaton, Adrienne E. & Paula B. Voos. "Unions and Contemporary Innovations in Work Organization, Compensation, and Employee Participation" in Lawrence Mishel & Paula B. Voos, eds, Unions and Economic Competitiveness (Armonk, NY: M.E. Sharpe, 1991) 173.
Eaton, Jonathan & Anil Verma. "Does 'Fighting Back' Make a Difference? The Case of the Canadian Auto Workers Union" (2006) 27:2 Journal of Labor Research 187
Foley, Janice R. and Michael Polanyi. "Workplace Democracy: Why Bother?" (2006) 27 Economic and Industrial Democracy 173.
Fraser, Steve. "Is Democracy Good for Unions?" (1998) 45:3 Dissent 33.
Fredman, Sandra. "The Ideology of New Labour Law" in Catherine Barnard, Simon Deakin & Gillian S. Morris, eds., The Future of Labour Law: Liber Amicorum Bob Hepple QC (Portland, OR: Hart Publishing, 2004) 9.
Frost, Ann C. "Union Involvement in Workplace Decisionmaking: Implications for Union Democracy" (2000) 21:2 Journal of Labor Research 265.
Guest, David E. & Ricardo Peccei. "Partnership at Work: Mutuality and the Benefit of Advantage" (2001) 39 British Journal of Industrial Relations 207.
Gunderson, Morley. "Ten Key Ingredients of Labour Policy for the New World of Work" (2002) 23 Can. Pub. Pol'y 117.
Guzick, William J. "Employer Neutrality Agreements: Union Organizing Under a Nonadversarial Model of Labor Relations" (1984) 6 Indus. Rel. L.J. 421.
Heffernan, Porter. "Collective Bargaining as Discourse in the Labour Rights Jurisprudence of Canada and South Africa" (2008) [unpublished, on file with author].
Hynes, Derrick. "New Climate of Collaborative Labour Relations on the Horizon" (2001) 14:9 Canadian HR Reporter 9.
Jenkins, Jean. "Gambling Partners? The risky outcomes of workplace partnerships" (2007) 21 Work, Employment and Society 635.
Kaufman, Bruce E. "The Early Institutionalists on Industrial Democracy and Union Democracy" (2000) 21:2 Journal of Labor Research 189.
Kelley, Maryellen R. & Bennett Harrison. "Unions, Technology, and Labor- Management Cooperation," in Lawrence Mishel & Paula B. Voos, eds, Unions and Economic Competitiveness (Armonk, NY: M.E.Sharpe, 1991) 274.
Kochan, Thomas A. "On the Paradigm Guiding Industrial Relations Theory and Research" (2000) 53 Indus. & Lab, Rel. Rev. 704. 308
—. "Updating American Labour Law: Taking Advantage of a Window of Opportunity" (2007) 28 Comp. Lab. L. &Pol'y J. 101.
Kumar, Pradeep & Gregor Murray. "Canadian Union Strategies in the Context of Change" (2002) 26:4 Labour Studies Journal 1.
Langille, Brian A. "Labour Policy in Canada - New Platform, New Paradigm" (2002) 28 Can. Pub. Pol'y 133.
—. "The Michelin Amendment in Context" (1981) 6 Dal. L.J. 523.
Lewchuk, Wayne & Don Wells. "When Corporations Substitute for Adversarial Unions: Labour Markets and Human Resource Management at Magna" (2006) 61 R.I. 639.
Lobel, Ira B. "Labor-Management Cooperation: A Critical View" (1992) 43 Labor L.J. 281.
Lynk, Michael. "Union Democracy and the Law in Canada" (2000) 21:1 Journal of Labor Research 37.
Martinez Lucio, Miguel & Mark Stuart. "Assessing the Principles of Partnership: Workplace trade Union Representatives' Attitudes and Experiences" (2002) 24 Employee Relations 305.
Osterman, Paul. "Community Organizing and Employee Representation" (2006) 44 British Journal of Industrial Relations 629.
Oxenbridge, Sarah & William Brown. "Achieving a new equilibrium? The stability of cooperative employer-union relationships" (2004) 35 Industrial Relations Journal 388.
—. "The Two Faces of Partnership?" (2002) 24 Employee Relations 262.
Petruska, Brian. "Choosing Competition: A Proposal to Modify Article XX of the AFL-CIO Constitution" (2003) 21 Hofstra Lab. & Empl. L.J. 1.
Raday, Frances. "The Decline of Union Power - Structural Inevitability or Policy Choice?" in Joanne Conaghan, Richard Michael Fischl & Karl Klare, eds., Labour Law in an Era of Globalization (Oxford: Oxford University Press, 2002) 375.
Rhomberg, Chris & Louise Simmons. "Beyond Strike Support: Labor-Community Alliances and Democratic Power in New Haven" (2005) 30:3 Labour Studies Journal 21. 309
Robinson, Ian. "Neoliberal Restructuring Promotes Social Unionism," in Bruce Nissen, ed. Unions in a Globalized Environment: Changing Borders, Organizations Boundaries and Social Roles (Armonk, NY: M.E. Sharpe, 2002) 189.
Rousseau, Denise M. "Changing Psychological Contracts: Implications for Human Resources Management and Industrial Relations" in Thomas A. Kochan & David B. Lipsky, Negotiations and Change: From the Workplace to Society (Ithaca, NY: Cornell ELR Press, 2003) 37.
Rubinstein, Saul & Charles Heckscher. "Partnerships and Flexible Networks" in Thomas A. Kochan & David B. Lipsky, Negotiations and Change: From the Workplace to Society (Ithaca, NY: Cornell ILR Press, 2003) 189.
Samuel, Peter. "Partnership Consultation and Employer Domination in Two British Life and Pension Firms" (2007) 21 Work, Employment and Society 459.
Stone, Katherine V.W. "The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law" (2001) 48 UCLA L. Rev. 519.
Strauss, George. "What's Happening inside U.S. Unions: Democracy and Union Politics" (2000) 21:2 Journal of Labor Research 211.
Summers, Clyde W. "From Industrial Democracy to Union Democracy" (2000) 21:1 Journal of Labor Research 3.
Trudeau, Gilles. "Changing Employment Relationships and the Unintentional Evolution of Canadian Labour Relations Policy" (2002) 23 Can. Pub. Pol'y 149.
Wisman, Jon D. "The Ignored Question of Workplace Democracy in Political Discourse" (1998) 6:6 Empowerment in Organizations 149.
SECONDARY MATERIAL: OTHER
Akyeampong, Ernest. "Study: The Labour Movement in Transition" The Daily (31 August 2004), online: Statscan
—. "Unionization" Perspectives on Labour and Income (August 2006), online: Statscan
Bickerton, Geoff. "Dissent and Democracy" (2008) 42:1 Canadian Dimension 6. 310
—. "First FFA Collective Agreement Restricts Workers Democratic Rights" The Bullet (26 November 2007) online: Socialist Project
—. "Magna-CAW Framework of Fairness Agreement is an Affront to Union Democracy" (24 October 2007), online: Socialist Project,
Buckley, Chris. "Letter to Buzz Hargrove" (25 October 2007), online: Socialist Project
CAW. "CAW Constitution" (1985, as am. 16 August 2006), online: CAW-TCA Canada
—. "FAQ," online: CAW-TCA Canada
—. "Glossary" (15 October 2007) online: CAW-TCA Canada
—. "Membership Presentation" (7 December 2007) online: CAW-TCA Canada
—. "Sector Profile: Independent Auto Parts" (2006) online: CAW-TCA Canada
—. "Sector Profile: Major Auto" (2006) online: CAW-TCA Canada
—. "Sector Profile: Overall Canadian Economy" (2006), online: CAW-TCA Canada
—. "Speaking Notes," online: CAW-TCA Canada
—. "Welcome to CAW-TCA Canada" online: CAW-TCA Canada < http://www.caw.ca/> (last accessed: 14 February 2008).
—. "Who We Are" online: CAW-TCA Canada
CAW Local 222. "Welcome to CAW Local 222" online: CAW-TCA Local 222,
CAW Local 444. "Integram Innovatech Bargaining Update" (8 February 2008), online: CAW Local 444
CAW Local 4451. "Welcome to CAW Local 4451" online: CAW-TCA Local 4451
Casey, Jeff. "Letter to Buzz Hargrove" (29 October 2007), online: Socialist Project
Dealy, Wayne. "Democracy, Solidarity and the Framework of Fairness" (3 December 2007), online: Socialist Project
Doorey, David J. "Another Twist on Neutrality Agreements" (12 May 2008), online: Doorey's Workplace Law Blog
Gindin, Sam. "Separation from the UAW," online: CAW-TCA Canada
—. "The Canadian Auto Workers: The Birth and Transformation of a Union" (1995), online: CAW-TCA Canada
—. "The CAW and Magna: Disorganizing the Working Class" The Bullet (19 October 2007), online: Socialist Project
—. "Toward a New Politics? After the CAW-NDP Divorce" The Bullet (27 July 2006), online: Socialist Project
—. "What if Magna builds an Assembly Plant?" (2 November 2007), online: Socialist Project
Hargrove, Buzz. "Speech of CAW President Buzz Hargrove to CAW Council, Sheraton Centre, Toronto, December 13-14 2003" (14 December 2003), online: CAW-TCA Canada
Magna International. "About Magna - Our Culture" (2008), online: Magna International
—. "About Magna - Our Founder" (2008), online: Magna International
—. "About Magna - Our Global Structure" (2008), online: Magna International
—. "Annual Information Form 2006" (2006), online: Magna International
—. "Annual Information Form 2007" (2007), online: Magna International
—. "Corporate Constitution" (2005), online: Magna International
—. "Employee's Charter" (2007), online: Magna International
—. "Fact Sheet" (2008), online: Magna International
—. "Shareholder Report 2006" (22 March 2007), online: Magna International
—. "Third Quarter Report 2007" (2 November 2007), online: Magna International
Rosenfeld, Herman. "Magna is not CAMI" (6 November 2007), online: Socialist Project
SEIU. "SEIU-Local 1 Canada," online: SEIU-Local 1 Canada
Socialist Project. "CAW and Magna Agreement," online: Socialist Project
Wilson, Gord. "Letter to Buzz Hargrove" (18 October 2007), online: Socialist Project