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Why Nonunion Workers Have a Right to Strike in US, But Not in Canada

A recent decision of the American National Labor Relations Board in  a case called Greater Omaha Packing Co. presents an interesting fact scenario to demonstrate a key difference between Canadian and American labor law.  Our two models of labor law are similar.  The Canadian model of majority trade unionism was modelled after the American Wagner Act of 1935.  In many ways, the Canadian model is more favourable to union organizing, especially the rules on union certification.  However, in other ways, the American model provides much broader protections for workers who act collectively.  A key difference is that American law protects ‘concerted activities’ by workers, whereas Canadian laws protect only a narrow range of ‘trade union activities’.  We can see one important way that this difference plays out in the Greater Omaha Packing case.

Key Facts

In April 2012, a group of nonunion workers at a meat packing factory in Nebraska complained that the conveyor belts on which the meat NLRBcame to them was moving too quickly.  When management didn’t respond, the workers left their work stations and went to the cafeteria in protest.  A management representative came to the cafeteria and listened to their complaint, told them to return to work and that he would speak to them about the issues at the end of the shift.  At the end of the shift, the employees again complained about the speed of the line, and also raised issues about their wages.  A month later, after the issues hadn’t been addressed, the workers planned another work stoppage. However, about an hour before that planned strike was to take place, three  of the workers involved were called into the office and dismissed for different reasons.

The Case and NLRB Decision

A workers’ advocacy centre in Omaha called Heartland Workers Centre filed an unfair labor practice complaint on behalf of the fired workers, alleging that they were dismissed for protected concerted labor activity contrary to American labor law.   The three dismissals were ruled to be unlawful, since under American law, workers are entitled to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Section 7, NLRA).  A strike designed to pressure employers to improve working conditions is protected by this section, even if the workers are nonunion.   The NLRB did not believe the employer’s story about why the workers were dismissed, and ruled that the dismissals were retaliation for the concerted activities.  All of the workers were reinstated with full back pay.

How would this scenario be dealt with under Canadian Labour Law?

This outcome might seem odd to Canadians.  Note again that these are non-union workers who engaged in a strike to protest working conditions, and then threatened to do so a second time.  In Canada, non-union workers have no protected right to strike.  Ever.  The only legal strike in Canada is one that complies with the various requirements in labour relations legislation, which include:  collective bargaining, exhaustion of mandatory government conciliation, a successful strike vote, completion of a ‘waiting period’, and sometimes notice to the other party.   Only unionized workers can ever satisfy those requirements, and even then, only workers who are in a certified union that represents a majority of workers at a workplace.  Therefore, a strike such as the one that occurred in the Omaha Packing case would be unlawful anywhere in Canada.  Since the workers would be breaching their individual employment contracts by refusing to work in protest against poor working conditions, they could be dismissed by the employer, probably without notice, for cause (though the workers could try and fight for statutory (employment standards legislation) or common law notice)

This case demonstrates an important difference between American and Canadian labour laws.  American law protects “concerted employee activities”, whether by unionized or non unionized workers.  Canadian labour laws, on the other hand, protect only one type of concerted employee activity: trade union activity, and most of our legal rights (right to collective bargaining, duty to bargain in good faith, right to government conciliation, right to strike) are only available to workers represented by a majority trade union that has been legally recognized under the applicable labour laws.  Workers who attempt to act collectively to improve their working conditions through actions not involving a trade union have no statutory protections.  Canada recognizes a very narrow version of freedom of association that falls  far short of international labour standards.

Is it Time for Canadian Law to Expand to Protect Collective Activities?

I have been arguing that Canadian law should protect not just ‘trade union activities’, but freedom of association more generally.   After all, our Charter of Rights and Freedoms says that every Canadian should enjoy “freedom of association”.  In my proposed model, which I call Graduated Freedom of Association, the majority style model found in all Canadian labour relations statutes would continue to exist.  However, alongside that model should be a thinner model of freedom of association that guarantees all workers protection from reprisals for collective activities for their own aid, and a statutorily protected right to exercise the minimal Charter rights the Supreme Court of Canada said in Fraser and B.C. Health Services that all workers should possess.  That includes the right to make ‘collective representations’ to their employer and a reciprocal duty on the employer to engage in a “meaningful dialogue” about those representations.  These collective activities could be exercised through a trade union, or not.  For example, if workers wish to be represented by a worker centre, a religious organization, or a coalition of labour organizations, that should be their choice.

If you are interested in the model of Graduated Freedom of Association, you can find my Queens Law Journal paper discussing it here.  I will be discussing these issues in my Dalhousie Law School “Law Hour” on March 27 in Halifax.

Issues for Discussion

Do you think Canadian law should protect a right of nonunion workers to strike as a weapon to try and improve their working conditions?  

Or, do you think the Canadian model of restricting the legal right to strike to workers represented by a trade union that has majority support is a better system?

Do you that Canadian law should protect a broader “freedom  of workers to associate” than presently exists under our narrow model of ‘trade union’ rights?

Do you think a ‘minority union’ or other association that represents workers outside of the majority trade union model our laws presently recognize could be effective as a worker advocate?






5 Responses to Why Nonunion Workers Have a Right to Strike in US, But Not in Canada

  1. Tony Clark Reply

    March 17, 2014 at 3:33 pm

    Interesting stuff that could be very important with respect to the Vancouver Port strike by union and non-union truckers. The non-union truckers have shut down container shipping by refusing to work, the third such action since 1999. The federal government has not threatened charges probably because of the culture of non-union truckers (i.e. they’re not easily swayed by threats), as well as the fact that unionized truckers with Unifor have joined the action.

  2. Fernando Reis Reply

    March 17, 2014 at 8:15 pm

    With respect to a right to strike, I think we have to wait for the Supreme Court of Canada’s (SCC)decision in Saskatchewan. At present, there is only a statutory right to strike. If the SCC saw fit in Fraser to permit agricultural workers to associate outside the Wagner model, then perhaps a right to strike should also apply. Our model has its advantages in that workers (who are unionized) have access to a grievance and arbitration procedure. However, during the term of a collective agreement they cannot strike (or be locked-out). Under the American model, workers can engage in concerted activities without having to belong to a union or be involved in an organizing campaign. The case in Washington Aluminum illustrates this point. In that case, perhaps if the workers had inquired about the heat in the plant they would have found out the furnace was being repaired and there would have been no need to “strike”. They were fired but were reinstated by the NLRB. Also, my understanding is that, under the American model, if workers strike for monetary reasons, they can be permanently replaced. I believe our model is deficient in certain respects but the American model is not the answer. Just some of my thoughts. Thanks.

  3. Jody Reply

    March 19, 2014 at 12:43 am

    Speaking from a non-legally-literate perspective, it resonates with my sense of fairness that non-unionized employees should have some rights to strike or perform other collective actions. If only unionized employees have a right to act collectively, then we are left with a group of workers who enjoy significantly better protections under the law than another group of otherwise similar workers. I realize that, technically, all employees have the right to unionize – however the reality is that actually making this happen is very difficult and getting harder. Compounding that is the fact that the most vulnerable workers, who have the greatest need of access to collective action, are probably the least likely to be able to effectively organize under our current system.

    • Fernando Reis Reply

      March 20, 2014 at 12:11 am

      I agree Jody. It should be easier for workers to organize and engage in collective action and any right to strike should arise under the Charter and not under statute. Fernando.

  4. George Furminger Reply

    March 23, 2014 at 5:49 pm

    Maybe you could do a piece on the port strike.
    Harper is claiming he doesn’t have jurisdiction, that the province of BC must legislate the truckers back to work. Since when does the province have the right to order the feds to binding arbitration or force a contract on the port truckers on behalf of the federal government?
    Harper doesn’t want to create back to work legislation during election year, so tries to get the provincial government, that claims they have no jurisdiction, to do it for him. It’s like Harper is trying to unilaterally rewrite the BNA for the sake of votes on top of neglecting his responsibility.

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