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Walmart Workers Legally Strike in U.S., But Strike Would Be Illegal in Canada

Have you noticed the stories this week about a series of strikes hitting Walmart stores in the U.S. This Huffington Post story explains that as of yesterday, there were strikes at 28 stores spanning some 12 States. The workers are protesting what they claim are lousy working conditions and crappy pay. These are nonunion workers, although in the background is an organization called OUR Walmart, which has support and backing of the UFCW union.

These Strikes Would Be Illegal in Canada

For Canadians, what’s interesting about this story is that the strikes are perfectly legal in the U.S.  In contrast, were Walmart workers to go on strike in Canada, they would breaking the law, and subject to discipline, including dismissal.  Few democratic, capitalist nations in the world have more narrow a right to strike than Canada, and the scope of that right that remains is being eroded even further by recent legislative interventions banning strikes by public and private sector workers alike.

Walmart Workers in the U.S. Have Staged a Series of Strikes This Week

“I make $8.90 an hour and I’ve worked at Walmart for three years,” said Colby Harris, 22, of Dallas. “Everyone at my store lives from check to check and borrows money from each other just to make it through the week.” The six heirs to Walmart founder Sam Walton, meanwhile, are worth $89.5 billion, or as much as the bottom 41.5 percent of Americans combined.”

Look at the main section of the American legislation that protects freedom of association of workers.  It’s Section 7 of the NLRA:

Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3)

That section protects the right of workers to engage in “concerted activities” designed to improve their working conditions, including striking.  Section 8 then makes it unlawful for an employer to punish an employee for engaging in associational activities.

In Canada, our labour legislation is crafted more narrowly.  Firstly, it protects only ‘trade union’ association, and not freedom of association more broadly.  Section 5 of the Ontario Labour Relations Act is our equivalent to Section 7 of the NLRA.  Look how it is worded:  ”Every person is free to join a trade union of the person’s own choice and to participate in its lawful activities.”  Can you see the difference between the two sections?

Standard Canadian labour law protects only one type of employee association:  trade unionism.   The UFCW is playing a background role in these Walmart strikes in the U.S., but even if it were not, the workers would still be protected, since Section 7 is concerned with employee association in a broad sense, and not just ‘trade union’ association.  That’s not true here.  If a bunch of nonunion workers come together and demand a raise in Ontario, but without forming or contacting a trade union, the Labour Relations Act doesn’t protect them.  The could be fired for their audacity.

Secondly, in Canada, nonunion workers can never lawfully strike.  Ever.  If Canadian Walmart workers here did what the Americans are doing, they’d be violating their contracts and could be dismissed as a result.  If a union organizer was working in the background, organizing the strike, the union organizer would likely be committing the tort of inducing breach of an employment contract, exposing the organizer to damages and possibly a contempt of court order.  Only unionized workers can strike here, and then only after the union has hoped through a series of legislative loopholes.

Should Canada’s Laws Expand to Protect a Broader Scope of Freedom of Association?

I have argued in a recent article that, in light of recent pronouncements by the Supreme Court of Canada on the substance of the Charter’s guarantee of ‘freedom of association’, it is time for governments here to expand the scope of labour legislation to protect not just ‘trade union’ activity, but freedom of association more generally.

This would mean moving our legislative language in  the direction of Section 7 of the NLRA, so that workers are protected whenever they engage in collective activities that relate to working conditions, whether or not a trade union is involved.  Also, the law should ensure that workers have at least the right to make collective representations to their employer, who should be required to engage in meaningful dialogue about those representations, regardless of whether the workers are represented by a majority trade union.  Workers represented by a certified union would still have all of the rights and responsibilities imposed by the current Labour Relations Act, but under the new model, workers who associate otherwise then through a majority, certified trade union, would have a least the rights the SCC says are guaranteed by the Charter.

I call this model Graduated Freedom of Association.  If you’re interested in reading about this idea, and what I suggest it would mean in practice, check out my draft paper, which is available here.

Questions for Discussion

1.   Do you think workers should be entitled to strike when they are unhappy with their working conditions, or should they “just quit”?

2.   In the U.S., nonunion workers can join together and lawfully strike.  Nonunion workers can never lawfully strike under Canadian law as it now stands.  Which model do you think is more appropriate?

3.   The American model protects the right of workers to join together and engage in collective activities (whether or not through a majority trade union).  Canadian laws only protect the ‘right to join a trade union’.  Do you think this difference matters in practice?  Which model is better?



3 Responses to Walmart Workers Legally Strike in U.S., But Strike Would Be Illegal in Canada

  1. Don Jordan Reply

    October 10, 2012 at 12:38 pm

    It’s easy to “cherry pick” one element of a “model” as being a “better” approach than the one used in another “model” on the same issue. However, such an approach is not helpful from a comparative perspective. What would be more interesting would be to compare the two approaches to collective bargaining, Canadian and American, as integrated wholes. I suspect it would be an easy call to prefer Canada’s overall approach. For example , US labour law does not legislatively guarantee a dispute resolution system for tefmiations of employment under a collective agreement –the historic quid pro quo for employees surrendering an unbridled rigt to strike.

  2. Dennis Buchanan Reply

    October 10, 2012 at 3:32 pm

    Don, is there some reason that we couldn’t import the American model of protecting associational activities, sans-trade union, without removing the mandatory arbitration language from labour relations statutes?

    Certainly there would be logistical concerns and practical differences integrating a specific American policy in a Canadian context, but to a large extent real policy progress results from looking at alternative models, integrating what works, and rejecting what doesn’t. Looking at alternative models from an “all or nothing” perspective is quite limiting.

    It’s an interesting concept, and I’ll have to make time to read the draft paper – I recently had occasion to ponder why trying to organize a trade union to negotiate better working conditions incurs reprisal protection (and probably has to be protected under the Charter), but collectively trying to negotiate better working conditions is not.

    • Doorey Reply

      October 10, 2012 at 6:35 pm

      Thanks Don and Dennis. I think Don is right that you can’t just pick parts of a legal model and assume that you could implement them with success into a different model, and I don’t ever suggest you can. That’s the same reason why arguments to abolish the Rand Formula “because that’s what they do in the Southern U.S.” is silly, yet it is popular with people who would prefer unions to lose stable financing of course. Rand ‘abolishists’ want to cherry pick a particularly regressive part of the American model, but would never consider the expanded scope of associational rights or strike rights under the US model. In my paper, I don’t discuss the right to strike beyond assuming that it would continue to be legal only for certified unions, unless the SCC recognizes a free standing right to strike. My point is that you can make a strong argument that all Canadian workers should have the effective ability to exercise at the very least those rights that the SCC has said are guaranteed by the Charter. That means being able to associate without reprisals, into a trade union or some other employee or advocacy association, and to make collective representations to the employer, which would then have an obligation to engage in meaningful dialogue about them. So I consider extending the Agricultural Employees Protection Act model to all workers (with some modifications) to operate alongside the fuller version of association in standard labour relations codes. Could some workers, unions, and advocacy organizations put that to any use in giving workers more voice outside of majority, exclusive collective bargaining? Maybe. Anyhow, that’s the debate my paper engages. Thanks again for all of your thoughtful comments.

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