Written by Thoby King, 3L, University of Toronto Law School
On May 1st, non-unionized workers walked off the job at Amazon, Instacart, Whole Foods and other companies in the United States. Deemed essential workers, the strikers demanded higher pay and safer conditions amid the COVID-19 pandemic. The strikes followed a series of similar actions at many of the same companies in the first weeks of the crisis.
The protests did not shut down business or win collective agreements. But they did attract the attention of consumers, workers and politicians to the workers’ cause, and to the possibility of organizing at massive, anti-union companies, where formal collective bargaining is often out of reach.
The May Day strikes are a reminder that labour action is possible even without formal union representation. This lesson is not exactly radical from the standpoint of the international labour movement, which has long understood that worker power exists without legal designation. But it may come as a surprise to some in Canada, where labour action has generally remained within the domain of certified bargaining unions, rather than grass-roots, direct-action campaigns.
The strikes are the latest in a series of broad-based labour initiatives in America’s non-unionized workplaces. The most famous is the Fight for $15, led by the SEIU, which mounted strikes by fast food workers, winning minimum wage hikes in several cities and states. Other examples include OUR Walmart, another union-led campaign that held small strikes at Walmarts across America in 2012 and ’13, as well as the New York Taxi Workers Alliance, which emerged out of a 1996 strike by cab drivers, deemed independent contractors.
This blossoming of alternative, non-bargaining labour collectives, given the label “alt-labour,” dates back roughly to the early ‘90s. Some writers have credited the alt-labour phenomenon with bringing new vitality to the American labour movement.In many vulnerable sectors, it represents the only available means of collective empowerment.
Meanwhile, Canada has seen far fewer alternative labour initiatives receiving far less funding or attention than their American counterparts. A number of workers centers and immigrant workers’ organizations exist here, such as Justicia for Migrant Workers and Peel Region’s Warehouse Workers Centre.
In addition, Ontario and British Columbia have both seen versions of the Fight for $15 (or the Fight for $15 and Fairness in Ontario). These union-led campaigns have mounted demonstrations and done some impressive grass-roots organizing, particularly in Ontario. But they have not become a phenomenon like the American original, and notably have not used the same aggressive strike tactics.
True enough, conditions in Canada are not what they are in the United States. Canadian workers have not generally seen wages as low as many Americans, or governments as pro-business.
But it isn’t as if Canadian labour has no need for alternative approaches. Rates of private sector unionism, plummeting for decades, are now roughly equal to America’s in the 1980s, while workers in many sectors experience precarity and fissuring similar to the United States. In 2017, Ontario’s Changing Workplaces Review noted the need for structural labour law reforms targeting fast food and other under-unionized sectors.
Why, then, has American-style alt-labour not come to Canada?
The reasons may be many, including economic and cultural differences. But one factor is inescapable: Canadian law, compared to the American regime, constricts the power of non-unionized workers more tightly and offers less protection for workplace activism. The result is that the actions of the May Day strikers and the original Fight for $15 are generally impossible or illegal for workers north of the border.
The biggest problem for alternative labour action in Canada is the strike ban. Canadian labour law, unlike American law, prohibits striking completely outside of the certified bargaining context. This ban alone renders illegal the May Day strikes, as well as the political strikes of the American Fight for $15. Not only could Canadian employers have fired the strikers, but the labour boards themselves could, at a certain point, step in to put a stop to the unlicensed labour actions and reprimand any union that gave support, orders backed by criminal sanction.
The second legal barrier to alternative labour action in Canada is the lack of generalized protection for labour action as such. In the United states, the Fight for $15 and similar initiatives have found refuge in section 7 of the National Labour Relations Act. That provision shields workers, unionized or not, from being terminated or otherwise punished for “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”In effect, this provision offers what one labour scholar has called a “labour bill of rights.”
No such provision exists under Canadian law. Here, reprisal provisions do not protect concerted worker actions per se, but only “union activity.” For example, section 5 of Ontario’s LRA, similar to other Canadian labour statutes, protects those who “join a trade union… and … participate in its lawful activities.”
The result appears to be that members of alternative, non-union collectives in Canada are totally exposed. Such has been the contention of multiple Canadian labour scholars, including David Doorey on this blog and elsewhere.
It may be that Canadian reprisal protections are broader than they appear, potentially protecting “unions” that aren’t of the conventional sort, a possibility Professor Doorey has considered more recently. Indeed, the Supreme Court’s labour jurisprudence under section 2(d) of the Charter, freedom of association, might point toward this broader, pro-labour interpretation of OLRA section 5 and like provisions.
Such a reading would empower alternative organizing, though the strike – an essential part of American alt-labour – remains clearly out of reach. But whatever the potential of the Canadian reprisal protections, it is unsurprising that Canadian workers have not attempted widely or systematically to mobilize around a right that looks so flimsy.
Alt-labour initiatives like the May Day strikes cut against the orthodoxy of North American “Wagner model” labour law, which treats the majority vote as a prerequisite for collective protection, and sees labour power as a contractarian bundle of rights, won by certification and held by a bargaining unit. America’s NLRA is itself built around this majoritarian framework. But in Canada, with no (explicit) “concerted activities” protection and no uncertified striking, the bundle is bound particularly tight – maybe so tight that it strangles the potential of robust labour alternatives.
Canadian law needs to change if it is to provide any protection in under-unionized sectors. Part of this change can happen from the top down, restructuring labour regulation for greater coverage and broader-based power. But the question of bottom-up empowerment through on-the-ground rights should not be left out of reform conversation. Actions like the May Day strikes and the Fight for $15 make clear that worker-led alternatives have a role to play under the Wagner model. These actions require legal protection that is both flexible and accessible.
Canada’s current certification-or-bust approach is untenable, leaving out a growing majority of workers. If our labour law is to have any meaning for those in precarious, fissured jobs, we must loosen the labour law bundle of rights and make collective action possible where certification is not.
Thoby King, “May Day Strikes Remind Us That Alternative Labour Action is Possible” (May 28 2020): https://lawofwork.ca/?p=12565
Ibid. Justice for Janitors’ 1990 Los Angeles campaign was an early model for future alt-labour efforts: Stephen Lerner & Jono Shaffer, “25 Years Later: Lessons From the Organizers of Justice for Janitors”, The Nation(11 June 2015).
See for example Daniel J Galvin, “From Labour Law to Employment Law: The Changing Politics of Workers’ Rights” (2019) 33 S Am Pol Development 50 at 81. Galvin credits movements like the Fight for $15 with articulating “a new politics of workers’ rights” at 85.
Andrew Jackson & Mark P Thomas, Work and Labour in Canada: Critical Issues, 3rded (Toronto: Canadian Scholars’ Press Inc, 2017) at 242-245.
See David Doorey, “David Beatty’s Redemption and Other Thoughts on the Future of Labour Law” (2020) [forthcoming] at 10.
SeeOntario Labour Relations Act, RSO 1995, c 1 Sched A s 79 [hereinafter OLRA].
National Labour Relations Act, 29 USC. §§ 151-169 (1935) s 7. The provision acts in conjunction with section 8(a)(1), which prohibits employer actions that interfere with, restrain, or coerce employees in the exercise of’ section 7 rights. See also National Labour Relations Board, “Interfereing with Employee Rights (Section 7 & 8(a)(1). For the Fight for $15’s reliance on the provision, see Kate Andrias, “The New Labour Law” (2016) 126:1 YLJ at 51.
Charles J Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace(Ithaca: ILR Press, 2005) at 99.
OLRA,supra note 8 at s 5.
David Doorey, “Graduated Freedom of Association: Worker Voice Beyond the Wagner Model” (2012) 38:2 Queen’s LJ 516 at 525-7. See also Alison Braley-Rattai, “Harnessing the Possibilities of Minority Unionism in Canada” (2013) 38:4 Lab Stud J 321 at 331; Brad Walchuk, “The Pitfalls of Embracing Minority Unionism” (2016) J Workplace Rs 1at 5.
Doorey,supra note 6.