Written by David Doorey, York University
You may have heard that more than 800 professors at Memorial University in Newfoundland and Labrador are on strike. The strikers have set up picket lines around campus. I was recently made aware of a direction by the University to non-striking employees that they are not permitted to “join the picket line” on their “paid lunch hours”.
The language is somewhat vague, but I’m told that it means that Memorial employees are prohibited from joining their striking coworkers on the picket line during their lunch break. This just seems wrong, right? What business is it of my employer what I do on my lunch break, as long as I’m not breaking the law or otherwise doing something that undermines my ability to perform my job?
Let’s walk through this scenario.
Firstly, I’m uncertain whether the employees affected by this prohibition are unionized, non-union, or both. I’ve been told on Twitter that it’s both. Secondly, I have not seen any collective agreements (of unionized employees) or employment contracts (of non-union employees). Therefore, for all I know there is a clause in the contracts that expressly prohibits employees from joining a picket line on their lunch break. If that is the case, then we are just dealing with a question of contract interpretation and application.
But let’s assume that the contracts do not expressly deal with this situation. There is no clause prohibiting employees on their lunch from walking over to a lawful picket line and joining with their Memorial colleagues as they walk in circles with picket signs. The question then becomes, on what basis can the employer prohibit employees from doing this?
[Here is my quick take with the usual warning THAT THIS IS NOT LEGAL ADVICE. This is a discussion board for labour law students. If you are a Memorial employee affected by this unusual order from your employer, I recommend speaking to your union reps and/or a lawyer before joining the picket line!]
For unionized workers covered by a collective agreement (that does not include an expressed prohibition on this behaviour), a rule introduced by the employer threatening discipline against employees who spend their lunch on a lawful picket line would almost certainly be struck down as unreasonable. I’m no expert on NFLD labour arbitration, but even I know that arbitrators there, like everyone else in Canada, apply the “KVP Test” for reasonable employer rules. The KVP test prohibits an employer from introducing a rule the union has not agreed to unless the rule is “reasonable” and based on some legitimate employer interest. For example, in this case from St. John’s called Molson Coors Canada (2015), the arbitrator ruled that the KVP Test applies to any rule the breach of which could lead to discipline of an employee.
I cannot begin to imagine how a rule prohibiting employees from joining their friends on a lawful picket line during their non-working lunch break could satisfy the KVP Test. Also, if Memorial were to discipline a unionized employee for breach of the rule, that discipline would also certainly not meet the test for “just cause”. Therefore, absent specific collective agreement language, hard to see how Memorial can stop unionized employees from walking out to the picket line on their lunches. Right?
For non-union employees of Memorial, the situation is trickier. The KVP Test does not apply to non-union workers. As strange as it may sound, non-union employers in Canada do not have to be ‘reasonable’ when they introduce rules; in fact, non-union employers are free to act unreasonably, as long as they do not violate the contract or a statute. Non-union employers can also fire people for no reason at all, as long as they provide notice of termination. So for a non-union employee, there is a risk of ignoring the rule and joining the picket line. Unless some statutory rule protects the right of non-union employees to spend their lunch break on someone else’s picket line. The only statutes that come to mind that might deal with that situation are the Labour Relations Act and the Labour Standards Act.
I looked quickly at the Labour Standards Act and didn’t see anything that protects the right of an employee to join a picket line on their lunch break. The more interesting questions arise under the Labour Relations Act.
The issue with the LRA is near and dear to my heart. The question is whether the statute protects a right of workers to act collectively, including in support of co-workers who are on strike. Look first at s. 23 of the LRA , which is pretty typical of Canadian labour legislation. It prohibits employers from interfering in the selection, formation, or administration of a trade union. Can that apply to non-union employees participating in supportive picketing on behalf of other unionized employees? Not an easy fit.
How about sections 24 and 25? Those sections prohibit an employer from discriminating against an employee because they are a union member or because they are ‘exercising rights under this Act’. Now we come to the heart of the matter. Does the Labour Relations Act protect a right of non-union employees to join with other striking employees who are trying to improve their working conditions? Section 5 explains the “rights of employees”. It says this:
Ah, now that is interesting. So, if our non-union Memorial employee is a member of the faculty union which is on strike, then maybe Section 5 protects their right to join the picket line on her lunch break. Does MUNFA permit non-faculty to become “members”? Maybe they should, special members for the purposes of solidarity picketing! But what if the non-union employee is just that, not a union member. Is it enough that this person is participating in ‘A UNION’S’ activities (lawful picketing), even though the person is not a member of THAT union?
These are all interesting arguments. However, if I may be so bold, there is an obvious solution to this particular problem–the problem of an unreasonable employer trying to control what employees do on their lunch break. All we need is a new section added to Canadian labour relations legislation that protects a fundamental right of workers to act collectively, or as I’ve called it elsewhere, a “right to associate”. If we had such a right, then there would be no question that employees could not be fired for hooking up with coworkers on a picket line during their non-working hours. Such a right exists in the United States, hardly a bastion of socialist statutory overreach in workers’ rights. The NLRA protects a right to concerted activity generally, not just “trade union activities” as in Canada. It’s pretty bizarre to speak of Canadians having a Constitutionally protected freedom to associate if Memorial employees can be terminated or disciplined for spending their non-working time supporting lawfully striking coworkers!
I have been advocating a right to associate for a long time (see my articles from 2013 on Graduate Freedom of Association and more recently from 2021, Reflecting Back on the Future of Labour Law. This situation at Memorial is just the latest example of why such a law is needed.
We should note, finally, that the fact that workers are being “paid” over their lunch break is neither here nor there. The fact that the employer pays people to not work over lunch does not make the employer the master of the employee’s domain during non-working time. That’s nonsense.