The hollowing out of corporate canada: Implications for transnational labor law, policy and practice

Buffalo Law Review

Volumn 57, Issue 3, 2009, Pages 781-801

  Arthurs, Harry ^a  

^a YORK UNIVERSITY   (Canada)

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EID: 70349639186     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (64)

1. David H. Blake, Multi-National Corporation, International Union and International Collective Bargaining: A Case Study of the Political, Social and Economic Implications of the 1967 U. A. W.-Chrysler Agreement, in Transnational Industrial Relations 137 (Hans Günter ed., 1972).
2. Harry W. Arthurs, The Hollowing Out of Corporate Canada?, in Globalizing Institutions: Case Studies in Regulation and Innovation 29 (Jane Jenson & Boaventura de Sousa Santos eds., 2000).
3. See, e.g., Michael Grant & Michael Bloom, Conference Board of Canada, "Hollowing Out"-Myth and Reality (2008);
4. David Cavett-Goodwin, The Hollowing Out of Corporate Canada-Quantitative vs. Qualitative Analysis (Sept. 008) (unpublished M. A. thesis, Carleton University) (on file with author).
5. See, e.g., Desmond Beckstead & W. Mark Brown, Statistics Canada, Head Office Employment in Canada, 1999 to 2005 (2006);
6. John R. Baldwin & W. Mark Brown, Foreign Multinationals and Head Office Employment in Canadian Manufacturing Firms (Statistics Canada, Economic Analysis Research Paper Series Catalogue No. 11F0027MIE, No. 034, 2005);
7. John R. Baldwin & Wulong Gu, Global Links: Multinationals, Foreign Ownership and Productivity Growth in Canadian Manufacturing (Statistics Canada, The Economy in Transition Series Catalogue No. 11-622-MIE, No. 009, 2005).
8. For example, the Council of Canadians has shown no interest in the issue. However, other nationalists have taken it up. See Mel HURTIG, THE Vanishing Country: Is It Too Late to Save Canada? (2003);
9. Mel Watkins, Hollowing Out, Can. DIMENSIONS, Jan. -Feb. 2008, availableat http://canadiandimension.com/articles/2008/01/ll/1526.
10. Harry W. Arthurs, Constitutionalizing Neo-Conservatism and Regional Economic Integration: TINA x 2, in ROOM TO MANOEUVRE? GLOBALIZATION AND POLICY Convergence 17 (Tom Courchene ed., 1999);
11. Daniel Schwanen, Constitutionalizing Neo-Conservatism and Regional Economic Integration: Comments, in Room to Manoeuvre? Globalization and Policy Convergence, supra, at 75.
12. North American Free Trade Agreement, U. S.-Can. -Mex., Dec. 17, 1992, 32 I. L. M. 289 (1993);
13. Canada-United States: Free-Trade Agreement, U. S.-Can., Dec. 22, 1987-Jan. 2, 1988, 271. L. M. 281.
14. The United States is Canada's primary export market, accounting for 78.97% of total Canadian exports in 2007, as opposed to the 2.84% accounted for by the United Kingdom, Canada's second highest export destination. The United States is also Canada's leading import source, with 54.21% of total imports originating in the United States in 2007, compared with 9.41% from China, the second highest import contributor. See Trade Data Online, http://www.ic.gc.ca/ sc-mrkti/tdst/tdo/tdo.php#tag (last visited Apr. 12, 2009).
15. For instance, MacMillan Bloedel was purchased by Weyerhaeuser in 1999, Eaton's was sold to U. S. Sears, Roebuck and Co. in 2000, the Hudson's Bay Company was sold to Jerry Zucker, A U. S. investor, in 2006, and Stelco, the steel giant, was acquired by U. S. Steel in 2007.
16. For example, Cerberus, an American financial institution played a leading role in the recent abortive takeover of BCE Enterprises, Canada's leading telecommunications company. Jacquie McNish et al., Cerberus Woos Shaw, CanWest in Bid for BCE, Globe & Mail, May 18, 2007, at B1. Airlines, banks, newspapers, and television companies have been sheltered by various means from American control.
17. See generally Arthurs, supra note 2.
18. See Isaiah A. Litvak, The Marginalization of Corporate Canada, Behind HEADLINES, Winter 2000-2001, at 1;
19. Isaiah A. Litvak, U. S. Multinationals: Repositioning the Canadian Subsidiary, 3 Bus. C ONTEMP. WORLD 111 (1990).
20. Several years ago I wrote the distinguished CEO of a Canadian bank congratulating him on his speech expressing great concern about the consequences of hollowing out and proposing that his bank should either provide funds to support research on the subject or undertake such research through its own research department. "More research" he replied, "would just confuse matters." By contrast, for an exemplary effort to develop such evidence
21. see Jacques Belanger et al., Employment Practices in Multinational Companies in Canada: Building Organizational Capabilities & Institutions for Innovation (2006).
22. Some of these hypotheses about corporate governance have been explored in greater detail in Harry W. Arthurs & Claire Mummé, From Governance to Political Economy: Insights from a Study of Relations Between Corporations and Workers, 45 OSGOODE HALL L. J. 439 (2007).
23. See generally H. W. Arthurs, Labour Law Without the State?, 46 U. Toronto L. J. 1 (1996).
24. H. W. Arthurs, Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields, 12 Can. J. L. & Soc'Y 219, 222 (1998).
25. See Harry Arthurs, Fed. Lab. Standards Rev., Fairnessat Work: Federal Labour Standards for the 21st Century 251-66 (2006), availableat http://www.hrsdc.gc.ca/eng/labour/employment-standards/fls/pdfyfinal-report.pdf.
26. The debate in the literature on high performance workplace systems is captured in BéLANGER ET AL., supra note 13, at 41-44.
27. I have reviewed the historical evidence in H. W. Arthurs, National Traditions in Labor Law Scholarship: The Canadian Case, 23 COMP. Lab. L. & POL'Y J. 645 (2002).
28. See, e.g., Roy J. Adams, Labour Left Out: Canada's Failure to Protect and Promote Collective Bargaining as a Human Right (2006);
29. James Gross, Worker Rights as Human Rights: Wagner Act Values and Moral Choices, 4 U. PENN. J. Lab. & Emp. L. 479 (2002);
30. Patrick Macklem, The Right to Bargain Collectively in International Law: Workers' Right, Human Right, International Right?, in LABOUR RIGHTS AS HUMAN RIGHTS 61, 61-84 (2005).
31. See Macklem, supra note 20.
32. See Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of Self-Regulation, 105 Colum. L. Rev. 319 (2005);
33. Charles Sabel et al., Ratcheting Labor Standards: Regulation for Continuous Improvement in the Global Workplace, (Feb. 23, 2000), http://www2.law.columbia.edu/sabel/papers/ratchPO.html.
34. (Pubitemid 38726990) James Atleson, The Voyage of the Neptune Jade: The Perils and Promises of Transnational Labor Solidarity, 52 BUFF. L. Rev. 85 (2004).
35. See Harry W. Arthurs, Private Ordering and Workers' Rights in the Global Economy: Corporate Codes of Conduct as a Regime of Labour Market Regulation, in Labour Law in AN Era of Globalization (Joanne Conaghan et al. eds., 2001), reprinted in ETHICS CODES, CORPORATIONS AND THE CHALLENGES OF Globalization (Wesley Cragg ed., 2005).
36. See Arthurs, supra note 2.
37. Statistics Canada, CANSIM, tb1.282-0008, Labour Force Survey Estimates (LFS), by North American Industry Classification System (NAICS), http://estat.statcan. ca (search "E-STAT" for "282-0008"; then narrow fields to "Ontario," "Employment," "Manufacturing," "Both sexes," "15 years and over," "1988" to "1993").
38. An analysis of Canada's labour force statistics by Erin Weir of the Progressive Economics Forum puts Ontario manufacturing job loss between November 2002 and November 2008at 250, 800 jobs-a decline of 22.5%. Posting of Erin Weir to The Progressive Economics Forum, Ontario's Manufacturing Crisis, http://www.progressive-economics.ca/2008/12/11/ontariomanufacturing-crisis/(Dec. 11, 2008). Indeed, from November 2007 to May 2008, employment dropped by 8.3% in this sector.
39. See STATISTICS CANADA, supra note 26, at tbl. 282-0088. Andrew Jackson suggests that in November 2008 alone, Ontario lost 42, 000 manufacturing jobs. Posting of Andrew Jackson to The Progressive Economics Forum, Ontario Falls Off a Cliff, http://www.progressive-economics.ca/2008/12/05/ontario-falls-off-a- cliff/(Dec. 5, 2008);
40. see also CENSUS SNAPSHOT: CANADA'S CHANGING LABOUR FORCE, 2006 CENSUS, CANADIAN Soc. Trends, (2008), availableat http://www.statcan. gc.ca/pub/ll-008-x/2008001/article/10575-eng.pdf.
41. The practice is not frequent, but for two well-documented instances see Brian Langille, The Michelin Amendment in Context, 6 DALHOUSIE L. J. 523, 524-42 (1981), and
42. Eric Tucker, Wal-Mart and the Remaking of Ontario Labour Law, Int'l UNION RTS., vol. 2, issue 2, 2005, at 10.
43. Harry Arthurs, Who's Afraid of Globalization? Reflections on the Future of Labour Law, in GLOBALIZATION AND THE FUTURE OF LABOUR Law 51, 58 (John D. R. Craig & S. Michael Lynk eds., 2006).
44. It is by no means unknown for foreign-based TNCs to send executives or lawyers from their head office to Canada to deal with labor disputes over the heads of local management. See, e.g., United Steelworkers of Am. v. Radio Shack, [1980] 1 Can. L. R. B. R. 99;
45. United Steelworkers of Am. v. Wal-Mart Can. Inc., [1997] O. L. R. B. Jan. -Feb. 141 (Can.).
46. See BELANGER ET AL., supra note 13, at 46-48.
47. See, e.g., John Logan, How "Anti-Union" Laws Saved Canadian Labour: Certification and Striker Replacements in Post-War Industrial Relations, 57 RELATIONS IndusTRIELLES/INDUS. REL. 129 (2002) (Can.).
48. But see Ishak Saporta & Bryan Lincoln, Managers' and Workers'At titudes Toward Unions in the U. S. and Canada, 50 RELATIONS INDUSTRIELLES/INDUS. REL. 550 (1995) (Can.). 33.
49. See Roy J. Adams et al., Discipline and Discharge in Canada and the United States, 41 Lab. L. J. 596 (1990);
50. Randall Scott Echlin, From Master and Servant to Bardal and Beyond: 200 Years of Employment Law in Ontario, 1807-2007, ADVOCATES' Soc'Y J., Winter 2007, at 11;
51. Jay M. Feinman, The Development of the Employmentat Will Rule, 20 AM. J. LEGAL HIST. 118, 118-35 (1976).
52. For a study of the role played by labor lawyers in advising their TNC clients in Canada and other countries, see Harry Arthurs, The Role of Global Law Firms in Constructing or Obstructing a Transitional Regime of Labour Law, in Rules and Networks: The Legal Culture of Global Business TRANSACTIONS 273 (Richard P. Appelbaum et al. eds., 2001) (this author notes that "Transitional" should be "Transnational"). For a different perspective
53. see Susan Bisom-Rapp, Exceeding our Boundaries: Transnational Employment Law Practice and the Export of American Lawyering Styles to the Global Worksite, 25 COMP. LAB. L. & POL'Y J. 257 (2004).
54. For matters relating to the implementation of the Agreement Concerning Automotive Products, see 19 U. S. C. § 2011 (2006).
55. See also Pradeep KUMAR & John Holmes, Change, but in What Direction? Divergent Union Responses to Work Restructuring in the Integrated North American Auto Industry (1993);
56. Pradeep Kumar & John Holmes, Continuity and Change: Evolving Human Resource Policies and Practices in the Canadian Automobile Industry, Queen's Papers Indus. Rel. [Q. P. I. R.] 1 (1996) (Can.).
57. See ARTHURS, supra note 17. For a review of the literature
58. see Bernard Adell, On Paradigms and Platforms: Approaches to Regulating Labour Standards in the New Economy (2006) (unpublished study) (on file with author).
59. Compare Michele Campolieti et al., Labor Law Reform and the Role of Delay in Union Organizing: Empirical Evidence from Canada, 61 INDUS. & LAB. REL. Rev. 32 (2007)
60. with Rafael Gely & Timothy D. Chandler, Card Check Recognition: New House Rules for Union Organizing?, 35 FORDHAM Urb. L. J. 247 (2008)
61. and Meghan Brooke Phillips, Using the Employee Free Choice Act as Duct Tape: How Both Active and Passive Deregulation of Labor Law Make the EFCA an Improper Mechanism for Remedying Working Class Americans' Problems, 111 W. Va. L. Rev. 219 (2008)
62. and James Gray Pope et al., The Employee Free Choice Act and a Long-Term Strategy for Winning Workers' Rights, 11 J. LAB. & Soc'Y 125 (2008).
63. See Daniel Drache, Defiant Publics: The Unprecedented Reach of the Global Citizen (2008).
64. Atleson, supra note 23.