Written by David Doorey
Non-union workers employed by giant U.S. corporations including Whole Foods, Amazon, and Instacart have engaged in a series of strikes this week to protest dangerous working conditions and low pay during the #COVID19 epidemic.
What is striking from a Canadian perspective is that these strikes are probably legal, protected by the right to engage in “concerted activities for mutual aid and benefit” found in Section 7 of the National Labor Relations Act. It is striking because non-union workers in Canada never have a legally protected right to strike. Not ever. Canadian workers have an individual right to refuse unsafe work, but that can be a treacherous right to exercise in practice and, in any event, that right certainly does not apply to the full scope of the protests in the U.S., which includes demands for “double hazard pay” among other things.
So when Amazon terminated New York strike organizer Chris Smalls this week, it may have violated the NLRA.Amazon says Smalls was terminated for other reasons, but employers always say that when they fire labour agitators and organizers. If Smalls files a Section 7 complaint and wins, the NLRB could reinstate him. It’s true that the practical effectiveness of NLRA section 7 does not always match its potential owing to delay and an enfeebled NLRB that is not always interested in protecting labour leaders, especially during this Trump era. However, the Section 7 right of employees to organize and act collectively, including to strike, even when they are non-union may be the most important labour law right in practice today south of the border, where private sector union density sits near 5 percent.
If non-union employees of Whole Foods in Toronto or Vancouver joined in the “sick out” protest this week, an action involving a coordinated campaign to have employees call in sick in protest as part of campaign for higher wages, they would be in fundamental breach of their employment contracts. This would be grounds for termination. Collective bargaining legislation would not even be in play (unless a striker argued that they were a union member and the termination was for that reason and not because they refused to report to work). The only legal question would be whether the employee was entitled to termination pay under employment standards legislation or common law.
Canadian governments adopted the basic structure of the U.S. NLRAcollective bargaining model (the “Wagner Model”) back in the 1940s. However, variations were introduced to create a distinctly Canadian version of the Wagner Model. Differences in the protection of the right to strike were among the most important. The Canadian model provides greater protections than the NLRAfor legal strikers; in the U.S., strikers can be “permanently replaced” by strike-breaking workers, whereas Canadian law generally protects the right of a lawful striker to return to their job once the strike is over. However, in exchange for that greater level of protection for lawful strikers, Canadian law much more tightly regulates the circumstances in which a strike is lawful. In Canada, non-union workers can neverlawfully strike, any strike during a collective agreement is unlawful in Canada, and even in the case of unionized workers without a collective agreement, there are other legal preconditions to a lawful strike that must be satisfied (mandatory government conciliation, strike votes, waiting period, and so forth).
An important difference between the two collective bargaining models is that the U.S. model builds up from an individual right to engage in concerted activities whereas the Canadian model protects a tightly regulated system of trade union rights. This difference becomes stark when we observe mass national strikes by non-union workers in the U.S. to protest working conditions. Canadian workers in similar circumstances may also decide to protest and walk off the job, and that action may even produce positive results (Canadian history is as full of successful unlawful strikes as it is with unsuccessful lawful strikes). The difference is that the Canadian workers would be acting without any legal safety net.
I argued in a paper published in 2013that to make real the Charter protected “freedom to associate” for the millions of Canadian workers who would never be able to access majority trade union collective bargaining in the Wagner Model mold, our laws should at least guarantee a “right to engage in concerted activities” similar to the right protected by NLRA section 7. I was projecting forward to a time when private sector union density in this country might fall to near 10 percent (it’s at about 15% now). With 85-90 percent of private sector workers in Canada being non-union, a legally protected right to protest alongside one’s coworkers will take on greater urgency. This is what has happened in the U.S. over the past two decades. Many of the most creative and successful worker resistance campaigns have involved non-union workers exercising their section 7 rights to concerted activity.
In a new paper to be published this summer in the University of Toronto Law Journal, I build on this argument and argue that a “right to engage in concerted activity” will eventually arrive in Canada. To demonstrate the problem, I discuss two Ontario cases in which non-union workers were terminated for raising collective concerns about working conditions but without any union involvement (Burton v. Aronovitch McCauley Rollo LLPand Alagano v. Miniworld Management (North York Infant Nursery and Preschool)). InBurton, a legal clerk was fired for raising an issue about pay on behalf of herself and her coworkers. In Algano, it was a daycare worker who was fired for doing the same, and then her coworkers were also fired for striking to protest the termination.
All of these dismissals would violate NLRA section 7. For the termination of Burton and Alagano to be covered by the Ontario Labour Relations Actit would take a broad, purposive interpretation of the meaning of “trade union activities” in the unfair labour practice provisions, one that captures spontaneous collective action in the absence of a union. Even that broad interpretation would not save the workers fired for striking.
The COVID19 epidemic has highlighted the absence of a general right to engage in collective protest at work in Canada. There have been reports of workers threatening to stop working for fear of contracting COVID. An action like that would be unlawful unless the workers can somehow bring their collective work refusal within the right to refuse unsafe work in occupational health and safety legislation. But the right to refuse is a poor legal vehicle to protect collective action.
In my forthcoming paper, I argue that a “right to engage in concerted activities” could come to Canadian labour law through a variety of routes. These include the Supreme Court effectively reading in such a right in a Dunmore–like underinclusive Charter case. Imagine for example that a labour board rules that existing labour relations legislation does not protect employees like Burton and Alagano because the legislation only protects workers engaging in “trade union activities”, of which there was none. Given that the right to make collective representations without reprisals is protected by the Charter, is our statutory model not under-inclusive in failing to protect workers, like these two women, who are fired simply for expressing collective concerns to their employer? If so, a Charter remedy could include reading in a right to engage in collective activities. Or maybe the Court would rule, similar to its approach in Fraser, that read purposively, the existing protections against reprisals for “trade union activities” already protect an NLRA section 7like right to engage in “concerted activities”. How the newly recognized Charter right to strike would fit into this equation is an intriguing question.
Alternatively, a right to engage in concerted activities might be legislated. This was the recommendation of a recent federal task force on modernizing labour standards (see recommendation 25). In this context, the new right would be intended to thickenlabour rights by providing an additional tool to enable collective worker voice while preserving the thicker Wagner Model of majority collective bargaining. This was what I had in mind in my earlier piece, and what Brishen Rogers and Simon Archer argued a few years later in their article.
However, it is also possible to imagine a conservative government introducing a right to engage in collective activities as part of movement to weakencollective labour rights. This might seem counter-intuitive, but one need only consider the situation in the U.S. where section 7 already protects a broad right of non-union workers to engage in concerted activities to improve working conditions, and yet there is almost universal agreement within the global labour law community that the legal model governing the rights of U.S. workers is as poor as any in the western world. A right to engage in concerted activities could be introduced alongside other reforms designed to dismantle the Wagner Model. A move like that, which does not replace the Wagner Model with a new robust model of, say, sectoral bargaining, would simply drag Canadian labour law down closer to the U.S. model.
I don’t know a single person who believes that Canadian workers would be better off under the U.S. system of work laws. The devil, as always, will be in the details.
David Doorey, “What Recent Strikes in U.S. at Whole Foods, Amazon Disclose About Canadian Labour Law” Canadian Law of Work Forum (April 1 2020): http://lawofwork.ca/?p=12181