Ten years ago, David Doorey, associate professor of Work Law at York University, concluded an article on unionism in retail by observing that “since the Collective Bargaining model we use in Canada was never designed to facilitate Collective Bargaining in the private sector, we should not expect Collective Bargaining to ever flourish in that sector.”
Nowhere has Doorey’s prediction that “different models are needed” been more quantitatively established than in Statistic Canada’s latest demonstration of a steadfast decline in private sector union density.
That decline has led unions, workers, and legal experts like Doorey to question what a different model might look like. One under-discussed option would be for legislators to introduce an analogue to the United States National Labor Relation Act’s (NLRA) seventh section which, in plain language, protects collective employee activism at work—including collective action from non-unionized workers. There is no equivalent protection for non-union workers in any jurisdiction of Canada’s labour legislation.
But while labour relations experts build the case for legislative reform, workers and unions can do more than sit idly by and wait. By creatively pressing sections of the labour code designed to prevent employers from retaliating against workers in the course of unionizing, workers and unions can provoke a re-evaluation of the status of concerted activity.
Why does concerted activity matter?
In the absence of a collective agreement
Single-employer enterprises drew strength from the labour relations scheme in the 1940s, but not so for today’s service sector unions.
As Doorey illustrates, the Canadian labour relations model, which forces unions to follow a formal certification procedure and adhere to one of the world’s most regulated collective bargaining processes, has led to a market in which employers are able to prevent most efforts at improving conditions through a trade union.
Section 7 of the American NLRA provides an alternative, allowing workers to circumvent the long, drawn-out process of certifying a union through an election and negotiating a collective bargaining agreement. Section 7 entitles any two or more workers to take action together to improve their working conditions—even without union certification and without a collective bargaining agreement.
If having to pass numerous bureaucratic hurdles to get “permission to bargain” produces ineffective unions, then directly engaging in the concerted activity protected by Section 7, such as the right to strike, is part of the answer.
During the life of a contract
Even when workers succeed in jumping through the hoops to certify a union and conclude a collective agreement, the Canadian model offers one of the most highly circumscribed rights to strike in the Global North. The Canadian model prohibits unionized workers from exercising nearly any means to pressure their employers for the duration of a collective agreement. It is only during the period in between contracts that workers are legally allowed to take collective action.
If the right to strike enabled through our model of collective bargaining isn’t worth the effort it takes to get it, then the model will continue to wither—along with the working and living conditions of the working majority.
Legislative fixes to the Canadian labour relations system should, then, include protections on the right to collective action during the course of a collective agreement. This would include matching the United States in legalizing strikes motivated by, for example, an employer’s unfair labour practices, even if they take place during the period where a collective agreement is in effect.
As a factor of labour relations
As a consequence of the Canadian system, many unions fail to adequately emphasize the kind of issues-centered concerted activity that builds and exercises the solidarity muscle among the base. This leaves a huge gap in membership preparedness when confronted with the realities of hard bargaining.
What we can see from south of the border is that when workers deliberately engage in a planned and persistent application of concerted activity in the process of forming a union, they have higher and more durable degrees of participation and support among members. Concerted activity in the union formation phase leads to these benefits by creating more frequent occasions for members to increase their sense of solidarity.
Jury-rigging Section 7 in Canada
Workers and unions may not have access to any formal Section 7 equivalent in Canada, but that doesn’t mean the only option is to sit around and wait for legislative change or lobby for it. The rough and dirty way to jury-rig a Canadian equivalent of Section 7—one that would inevitably be different in important ways, but accomplish similar goals—is to creatively press the sections of the labour code designed to prevent employers from messing with people in the course of establishing trade unions and participating in their activities.
For instance, have a look at Quebec’s labour code, sections 12-15.They include expressions such as the following (emphasis mine):
No employer, or person acting for an employer or an association of employers, shall in any manner seek to dominate, hinder… the formation or the activities of any association of employees…
No person shall use intimidation or threats to induce anyone to … refrain from becoming or cease to be a member of an association of employees or an employers’ association.
No employer nor any person acting for an employer or an employers’ association may refuse to employ any person because that person exercises a right arising from this Code, or endeavour by intimidation, discrimination or reprisals, threat of dismissal or other threat, or by the imposition of a sanction or by any other means, to compel an employee to refrain from or to cease exercising a right arising from this Code.
This section shall not have the effect of preventing an employer from suspending, dismissing or transferring an employee for a good and sufficient reason, proof whereof shall devolve upon the said employer.
This is broad, sweeping language that restricts employer action against people forming and participating in trade union activities. The burden of proof is on the employer to show sufficient evidence that an action against an employee was not retribution for actions taken in the course of forming a trade union and participating in its activities.
By pushing those sections of the labour code to their broadest interpretations and creating legal precedents at labour boards, workers and unions could create a de facto protection for the right to collective action.
The question, which the legislation does not totally answer, is what constitutes protected activities in the course of forming an association. Say that workers who are in the process of forming a union but are not-yet certified make a deliberate and planned visit to the employer’s office by workers off the shop floor to deliver a union message or a set of demands. This type of action is called a “march on the boss,” and it’s a tactic that workers engage in regularly. In the U.S., such an action would theoretically be protected by Section 7. If an employer retaliates against workers in the process of forming a union for such an action, would the labour board intervene on their behalf?
Unionization efforts at several Quebec enterprises, including Red Bee Media, and Keywords Studios, have shown that the labour board can be incited to step in when workers face retaliation for concerted activity in the union formation phase, up to and including ordering fired workers to be reinstated.
A recent ruling by the Quebec labour board signalled the door is open for this approach. At Zeppelin Bar and Grill, workers presented their boss with a list of demands to be met within 48 hours before walking off the job, but not before announcing they had chosen to unionize.
After the employer missed the deadline, the union—as yet uncertified— created a picket line. The employer responded by firing the workers, whereupon the union filed a complaint alleging a violation for sections 12-15 of the Quebec Labour Code.
In this case, the labour board ordered the employer to rescind the terminations and compensate the workers for lost wages.
Here is the sequence of steps:
(1) Workers participate in some concerted activity → (2) Employer takes an anti-worker action → (3) File complaint about contravention of articles 12-15 → (4) Utilize aid of Board Agent to negotiate significant financial settlements or re-instatement causing → (5) A discouraging effect on target employer, and signalling effect on other employers.
Utilizing the labour code in this manner will not yield results as far reaching as an overhaul of the overall framework, but the results are roughly equivalent—and in many cases more expedient—than those reached by workers using the American National Labor Relation Board.
Where to from here?
As Brishen Rogers and Simon Archer noted in their careful and illuminating study of the subject, introducing a new protection for concerted activity into the Canadian system may plug important gaps while remaining fundamentally compatible with its principles.
In addition to building consensus among policy-makers and forming constituencies ready to vote for a change in the law, unions can open up new tactics on the judicial front by provoking the labour boards of the nation to re-evaluate what the right to form and participate in trade union activity really means in today’s economy.