So, the inevitable has now happened. Another union–the United Steelworkers–has tried to organize a Magna operation.
Recall that Magna entered into a much-hyped preferential organizing agreement with the CAW last year the parties called the “framework of fairness”. That agreement confered on the CAW a variety of organizing aids, including employee lists, access to the workplace for the purpose of organizing, a union ‘captive audience meeting’, and the verbal support of the employer. The USWA has not requested equal treatment to that given the CAW, presumably because their strategy has involved emphasizing that they have not entered into the sort of cozy arrangement described in the Framework of Fairness. I have no idea if the Steelworkers have attained the necessary 40 percent support to obtain a ballot, but regardless, a vote will be held this coming week (because the Board holds the vote, and sorts out afterwards whether there was a legal right to the vote).
I have noted before that the Magna-CAW arrangement sits uneasily with Canadian labour laws that prevent employers from providing ‘any support’ to a union trying to organize their employees, and that prohibit employers from interfering or participating in the ‘selection’ of a union by the employees (see s. 15 and s. 70 of the OLRA).
The issue is whether Magna can give preferential organizing rights to the CAW and not, say, the United Steelworkers. Reading the Act literally, it’s hard to imagine how Magna is not giving “other support” to the CAW if, for example, it refused a Steelworker request for the same access rights to its employees it gives the CAW. It will be tempting for Magna during the next few days prior to the vote to tell employees that they would be better off supporting the CAW and the Framework of Fairness model, and that supporting the USWA would be a mistake. Would this then amount to unlawful interference in the ‘selection’ of a union?
I think it could. In a case involving Coca-Cola, the OLRB ruled that the employer had not provided unlawful support to the CAW by permitting employees who supported the CAW to organize during working hours, while the same possibility was not afforded rival UFWC organizers.
Here’s what the Board said about s. 15 and s. 70:
The Board may not certify a union when it has received employer financial or “other” support. There is no allegation of financial support of the CAW-Canada by the employer. The allegation is that the employer gave the CAW-Canada “other support”, such as is proscribed in s. 70 and s. 15 of the Act. [The UFCW] says that permitting access to CAW-Canada supporters to the staff canteen and other areas … was the “other support”.
32. In some contexts, these facts could lead to the conclusion that, prima facie, an employer has provided other support to a union in its organizing campaign. However, the context in which the events occurs is important. In this case, the main allegations by the [UFCW] are that employees were allowed to circulate in the workplace undeterred, expressing their preference for the CAW-Canada, and having employees sign cards in support. The employer is not accused of having its managers, or supervisors, or any person associated with it, participate in, or encourage, the CAW-Canada’s organizing drive. The contest for employee support was between two very sophisticated, large unions, whose independence from employers is unquestionable.
In that case, the OLBR ruled that ‘other support’ had not been provided the CAW. But it might be different if the employer expressly encourages employees to reject one union because it has already entered into a cozy relationship with another. Let’s watch how Magna manages this situation. Stay tuned.