Update: The powerful head of the German Volkswagen union has said he will urge VW not to invest any more in antiunion, southern US Right to Work states where politicians and special interests threaten workers who try to unionize. This is another reason for VW to move its plants to Canada, assuming that Canada’s own Republican style antiunion politicians like Tim Hudak and Stephen Harper can be silenced.
A letter from a Canadian labour law professor to Volkswagen:
I’ve been following with interest the crazy story about the workers at your factory in Tennessee. They are voting this week on whether to support the United Auto Workers as their representative. Although you have taken the high road and agreed to let your employees make this decision without making threats, your employees have nevertheless be
subjected to threats, lies, and innuendo from Republican politicians and the many anti-union special interests groups funded by wealthy American aristocrats. These groups are insane with anger at your “unAmerican” response to a unionization campaign. Not one firing, not even a threat to fire everyone if they for the union! Very unAmerican indeed.
I was amazed at that nutty Republican Senator for Tennessee who has sought to play the role of the typical American corporation, by telling anyone who will listen that VW will pull future investments in the state if the workers support the UAW. The fact that you claim that is nonsense hasn’t deterred him. He’s also threatened that the state will stop its subsidies to VW if the workers exercise what you and I thought was their legally protected right to unionize. As a German, this must seem almost cartoonish to you.
You’d think that the gibberish being spewed by the wealthy class in the South would be somewhat more muted given that Tennessee is one of the poor sister ‘right to work’ states. None of the workers affected can be made to join the union or even pay union dues at your factory, even if the UAW wins the vote. But that’s not enough to satisfy the antiunion forces down there. Their actions have made clear that they don’t actually believe that workers should be able to choose collective voice. It’s unimaginable to them that any worker would so choose. I confess that it was disappointing that a company like VW would set up in a place like Tennessee in the first place. But that’s the past. Let’s talk about the future.
Why Volkswagen Should Come to Canada
You and I know that works council in Germany have worked wonderfully, and helped sustain high wage German manufacturing through the recession. In Europe, you give information to the worker councils, engage in productive dialogue and consultation over a whole range of important business decisions. You know that workers actually are pretty smart and have ideas about how to improve productivity and efficiency, and that talking to them through an institutional collective mechanism makes good business sense. So it makes perfect sense to me that you would want to implement a comparable system of collective voice in North America.
But here I have to tell you that you chose the wrong country in which to establish your North American factory. You should be in Canada, where our laws are far more conducive to what you have in mind. Let me explain, since the North American model is so foreign to the rest of the world.
While the German model is based on the sensible assumption that workers should have a collective voice in matters that affect them at the workplace, this idea is heresy in the US model. Certainly, Republicans (and their starry-eyed Canadian devotees like Ontario Conservative Party leader Tim Hudak–more on him below) reject the idea whole-heartedly. In Canada and the US, there are only two ways that workers can acquire a collective voice in the workplace:
(1) by organizing into a majority trade union that wins legal recognition rights (through certification or voluntary recognition) under labor relations legislation and thereby the right to engage in formal collective bargaining, or (2) if the employer voluntarily establishes some form of worker collective association and agrees to consult or bargain with it.
However, there are important differences in how American and Canadian labor laws deal with these two scenarios.
Firstly, the process through which a union becomes certified to represent workers in the two countries is different. The “Canadian model” tends to be less drawn out and therefore less hostile than the American model. In some Canadian jurisdictions (i.e. Federal, Quebec, Newfoundland & Labrador, Manitoba, and the Ontario construction sector), workers can prove majority support by collecting union membership cards on behalf of some majority of workers. In others (most of the rest), a vote is required, but that vote occurs fairly quickly. In Saskatchewan, a right-wing government recently introduced a vote model more in line with the American system that does not require a quick vote.
The American model permits employers to stall and delay for months and months before a vote is held, and we know empirically that delay works against workers who want a union. Sadly, studies show that American employers regularly engage in illegal threats and dismissals to discourage workers from supporting collective voice. Canadian laws tend to have stronger punishments for illegal threats by employers, including the right to certify a union as a remedy.
So, if your factory was in Ontario, for example, the campaign and certification vote could all take place in a matter of days rather than months. The Republicans and interest groups who’ve been calling you all sorts of names in Tennessee for not actively campaigning and threatening your own employees would have far less opportunity to distribute their propaganda here. That would be good, right?
Secondly, in the US, it is illegal for an employer to create an employee association or works council. Period. You know this, and that’s why you are open to the idea of the UAW winning certification in Tennessee. You need the union to win so that you can bargain the creation of a works council. This makes perfect sense within the legal model you find yourself governed by in the USA. But–and this is very important–in Canada, you could just create a works council if you like, even if your workers aren’t unionized. Did you know that?
That’s right. Section 8(a)(2) of the American National Labor Relations Act prohibits an employer from “dominating or interfering with the formation or administration of a labor organization“. Although the original purpose of this section was to prohibit sham ‘company unions’, it has been interpreted broadly to prohibit any sort of nonunion employee association or employee council developed with the employer’s consent and assistance. American labor law scholars have long argued that this law should be relaxed in order to permit experiments with various forms of employee representation outside of formal, traditional collective bargaining. Yet the restriction remains. This throws up a road block for your desire to have a works council, and has embroiled you in this ridiculous mess in Tennessee.
But you could have avoided all of this fuss by simply putting your factory in Canada. In my home province of Ontario, we have loads of skilled autoworkers who’d love to work for VW! And there is no legal obstacle to you creating the works council you want, either. In Canada, there is nothing unlawful per se about a company creating an employee association or a works council on its own. In fact, many companies have created nonunion employee associations in various forms. True, this is often done as an HRM tactic to discourage workers from joining a ‘real’ union. However, that is not illegal in Canada, unless you create the council specifically as a tactic to defeat an organizing campaign that has already begun. Your non-union works council also couldn’t bar a real union from trying to organize your workers, but that is true in Germany too, so this shouldn’t be a problem for you.
Nor is their any law here prohibiting you from voluntarily recognizing a real union and bargaining a works council with it. I’m sure our main auto union, Unifor, would be open to that prospect. In fact, it already bargained a similar type arrangement with Magna a few years ago.
So, you see what I mean? Canada’s labour law model is far more conducive to your ambitions of installing German style works councils than the American model. You could just set up a factory here and install your works council, or work with one of our unions to achieve the goals you are trying to achieve in Tennessee, but with far less hassle, conflict, and controvesy. We have lots of skilled auto workers, a great infrastructure, a publicly funded health system, low taxes, and a falling dollar, which saves you lots of money. It’s colder here, for sure, but heck, you’re from Germany, and anyways, they have snow in Tennessee today! I’m sure you won’t miss NASCAR.
[I should warn you, though, that we do have our own version of the crazy Republicans here in
Ontario, who think workers should not have collective voice in the workplace. They are called the “Progressive Conservatives” (I know, ‘progressive’, funny huh?), and they are led by a guy named Tim Hudak who thinks that the nasty, divisive, oppressive American system of labor relations is to die for. He may not even want you here if you don’t hate unions and collective worker voice. But he is a very unpopular opposition leader who has a history of imploding during election campaigns, so I wouldn’t worry about him. Last night, his party got smoked in a by-election in his own neighbourhood by a NDP candidate who is a former union leader!]
Anyways, I hope I have been able to persuade you that you’d be better off in Canada. Give our politicians a call, and I’m sure they will offer you all sorts of incentives and benefits to come here. Indeed, as you know, our governments have already been trying to lure you to Canada–but I bet a Conservative politician wouldn’t tell you that our labour laws are far superior for your interests than Tennessee’s. So I thought I’d add that point. And then, please try your experiment with a Canadian version of a German works council. Us academics would fully support you in that initiative.
Cheers, from Toronto,
Dr. David Doorey, Professor of Canadian Labour Law