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Proquest Dissertations DEMOCRACY IN A COOPERATIVE LABOUR RELATIONS PARADIGM? THE CAW, MAGNA, AND THE FRAMEWORK OF FAIRNESS by Porter Heffernan Submitted in partial fulfillment of the requirements for the degree of Master of Laws at Dalhousie University Halifax, Nova Scotia August 2008 © Copyright by Porter Heffernan, 2008 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-44082-7 Our file Notre reference ISBN: 978-0-494-44082-7 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada DALHOUSIE UNIVERSITY To comply with the Canadian Privacy Act the National Library of Canada has requested that the following pages be removed from this copy of the thesis: Preliminary Pages Examiners Signature Page (pii) Dalhousie Library Copyright Agreement (piii) 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
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