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 came 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?