Chopping Unions

The 23rd of January marked the first anniversary of the so-called Mackie decision, a Canada Industrial Relations Board ruling that allows a Teamsters local to collectively bargain for about 200 drivers working for Mackie Moving Systems of Oshawa, Ont. The group includes owner-operators, drivers from outside agencies, and drivers employed by owner-operators, hauling extra-provincially for Mackie’s general freight division on General Motors lanes.

The certification order and the reasons for the decision apply only to certain aspects of Mackie’s business, but they say a lot about the legal exposure facing businesses that use “independent” contractors. In essence, the CIRB says that if you exert day-to-day control over a contract worker — determine his hours, issue him a company ID badge, train him when he needs it, discipline him when he screws up, and otherwise treat him like he’s on the payroll — he is in all likelihood economically dependent on you. That makes him a de facto “employee” under the Canada Labour Code, and able to be represented by a union.

We covered this story last year (House of Union Cards, March), but it’s worth rehashing for a couple of reasons (I’ll e-mail you the 83-page CIRB rationale for the decision if you want).

First, the CIRB has been hearing final arguments on a similar petition by contract drivers at Verspeeten Cartage, an Ingersoll, Ont., trucking company that also hauls for General Motors. The ruling should be released in the coming months, and you can bet it will parallel the Mackie decision. The circumstances are comparable, and indeed, the reasons for the Verspeeten decision will be written by CIRB chair and Mackie author J. Paul Lordon.

Second, we’re living in the sort of dank business climate where organized labour thrives. People are nervous about their jobs. Revenues may be up, but so is the Canadian dollar, insurance premiums, and the price of new iron. The final tab for complying with security measures for cross-border work is still anyone’s guess, and with war in Iraq seeming inevitable, the cost of diesel fuel is at an unprecedented high.

An owner-operator who bought a truck to gain a sense of control over the course of his life is learning that, in fact, he has little with respect to his income, his costs, or his future. He’s confronting the harsh reality that his contract is one that can come and go according to the changing needs of the fleet and its customers. He’s feeling dependent as hell, no different than the agency driver who, if he’s been to four annual company picnics, desperately wants to see a fifth.

When Canadian trucking companies want to dump capacity, owner-operators and agency drivers are the first to get the heave-ho. That’s business. And don’t think that unions like the Teamsters and Canadian Auto Workers aren’t paying attention.

Think about it. When production workers strike a car plant, vehicles still get made because the company can always scrape up enough non-union managers to at least keep the lines moving. But when a union can control the freight at the door, a strike inside the plant will shut the building down completely. For labour unions, organizing truck drivers is another opportunity to increase the intensity of pressure on manufacturers, just like the old days.

In your office, the Mackie decision and the Verspeeten hearings should add volume and momentum to discussions about the dependent nature of the owner-operators and agency drivers you use with respect to labour law.

“These issues of control and dependence stack up like weights on a teeter-totter,” says Fred von Veh, a partner and senior member of the employment and labour law group at the Toronto office of Bennett Jones. “No one thing will tip the balance, but every item counts. Yes, every driver may for practical reasons be part of the same dispatch process, but do your agency drivers have to wear the same uniform as the rest of your employees, or eat in the same lunchroom?”

There’s one more significant thing about Jan. 23: because the anniversary date passed without a collective agreement between Mackie and the Teamsters, the window is open for an application to decertify. To date, one hasn’t been filed-partly because there are so few agency drivers still around to sign it. Most are long gone from Mackie, the result of lost lanes and, one hopes, more enlightened HR practices.