Labor Law Blog Essay

On Constructing a Stronger Right to Strike Through Comparative Labor Law

In one of the most cited labor law articles of all time, Professor Paul Weiler described contemporary American labor law as “an elegant tombstone for a dying institution.”  That article was published in 1983, when private sector union density in the United States had fallen to about 15 percent, down from more than 40 percent in the 1950s. To halt the freefall in collective bargaining coverage, Weiler looked to comparative law and his home country of Canada. His thesis was that Canadian-inspired tweaks to the National Labor Relations Act (NLRA) — the “Wagner Act model” — could restore the promise of freedom of association in the United States. This idea that Canadian labor law provided a roadmap for reforming American labor law proved highly influential in the decades that followed.

Comparative law scholarship has long cautioned against a naïve belief that labor laws can be transplanted across national borders. In important respects, the case of collective bargaining law in the United States and Canada has proven the exception to the rule, owing to the close historical ties between the two countries’ industrial relations systems. Yet, even when national legal models share a similar DNA, they can evolve in substantially different ways. The legal treatment of strikes provides a cogent example. On a cursory look, the approach to strikes under Canadian and U.S. versions of the Wagner Act model may look similar, with just a few minor differences, enabling a relatively straightforward comparison and the possibility for cross-border experimentation in labor law reform. However, on closer inspection, there are significant differences in the architecture of the legal models. Strike law is comprised of a complex web of legal rules developed over time that function as an integrated system.

Therefore, caution is warranted regarding recent debates in both countries around strengthening the right to strike that draw from the other country’s labor law model. There is risk in cherry-picking rules without a deep understanding of how those rules fit within the broader integrated system and of features of the foreign model that steer a reform agenda in different, and perhaps unhelpful and unexpected directions.

Canadian governments imported U.S. Wagner-style labor legislation during World War II to restrain rising worker militancy threatening essential wartime production. However, as Weiler explained, despite their shared roots, the models also differed in important respects, including especially in their treatment of strikes.

Section 13 of the NLRA provides that “Nothing” in the Act “shall be construed so as either to interfere with or impede or diminish in any way the right to strike.” However, shortly after the Act’s passage, the Supreme Court held in NLRB v. Mackay Radio & Telegraph Co. that employers have the right to permanently replace striking workers. As I have explained elsewhere, Canadian governments responded to concerns that the Mackay doctrine would be imported into Canadian labor law by legislating a right of strikers to return to their jobs following a lawful strike.

Weiler argued that the NLRA should be reformed to align with the Canadian model, removing the right of U.S. employers to permanently replace strikers. To achieve this, he recommended importing an Ontario law that guarantees striking workers a right to return to their jobs within six months of a work stoppage even if that means dislodging newly hired replacements. This seemingly straightforward change would alter the balance of power when workers strike and eliminate the burdensome distinction in U.S. labor law, unparalleled in Canadian law, between “economic” strikes (during which permanent replacements are permitted) and “unfair labor practice” strikes (when permanent replacements are not permitted).

However, Weiler’s proposal was deceptively complex. The preexisting legal architecture of the NLRA right to strike would remain mostly untouched, supplemented by a new rule banning permanent replacements. Weiler was cherry-picking from Canadian law. By proposing to substitute the “permanent replacement” doctrine under the NLRA with a Canadian inspired alternative, Weiler aimed to construct a legal right to strike in the United States that was not equal to that which is protected under Canadian labor law, but that was superior to the laws protecting strikers in both countries.

To elaborate on this point, it is necessary to dig deeper into the respective approaches to strike law in the two countries. The fact that the Canadian Wagner model was adopted primarily as a strike suppression strategy is evident in three crucial modifications made to the NLRA model that limit the scope of the right to strike. The first two concern when workers can strike. Firstly, unlike under the NLRA, all strikes during the term of a collective agreement are prohibited in the Canadian model. Secondly, a precondition for a lawful strike is exhaustion of mandatory government conciliation followed by an extended “cooling off” period and a successful strike mandate from affected workers.

The third change concerns which workers can lawfully strike. Rather than adopt the language of NLRA Section 7, which protected the right to “self-organization” and the right of employees to engage in “concerted activities for…mutual aid and protection,” Canadian governments opted to protect a narrower right to “join [a] trade union” and to “participate in its lawful activities.” This distinction between protection of “concerted activities” in the NLRA and of “trade union activities” in Canada was not considered significant at the time. However, in practice, the different language set the legal treatment of strikes in the two countries down distinct trajectories.

In 1962, the Supreme Court ruled in NLRB v. Washington Aluminum Co. that NLRA Section 7 protects a right to strike of both unionized and non-unionized workers, regardless of whether the workers had acted through a trade union. In this sense, the NLRA protects a right to associate writ large. In contrast, Canadian labor law is concerned exclusively with just one form of association: trade unionism. Non-union workers have no protected right to strike in Canada and no right to associate at all unless they act through the vehicle of a trade union. Consequently, non-union workers in Canada can be terminated simply for discussing their working conditions with one another or for raising collective concerns with their employers.

In sum, Canadian labor law more tightly prescribes both which workers can lawfully strike (only workers represented by a majority trade union that has been certified by a labor board or voluntarily recognized by an employer) and when workers can strike (never during a collective agreement and only after the union has satisfied various statutory preconditions). However, for the relatively few unionized workers whose union satisfies the preconditions for a lawful strike, the Canadian Wagner model evolved to provide superior job protections to the NLRA, guaranteeing lawful strikers a right to return to their jobs and effectively prohibiting permanent replacements.

This historical context shaped Weiler’s ideas for reform of strike law under the NLRA.  His proposal was to leave in place the broad Section 7 “right to engage in concerted activity for mutual aid and protection,” and its subsequently broad interpretation, but to then graft onto it the superior job rights protections for lawful unionized strikers under Canadian law. In today’s terms, Weiler’s proposal to prohibit permanent replacements under the NLRA would take protections for just 15 percent of private sector workers in Canada (those who are unionized) and apply them to all U.S. employees covered by the NLRA. Weiler understood that, as the reach of Wagner-style collective bargaining declined, the importance of a protected right to strike outside of majority-trade unionism would become essential. Thus, he also argued for mandatory Employee Participation Committees in workplaces with at least 25 employees and noted that those committees could organize non-union strikes, with the non-unionized workers enjoying the same prohibition on permanent replacements.

More recently, a 2015 decision of the Supreme Court of Canada recognizing that a right to strike is guaranteed by the Constitution has spotlighted a paradox in Canadian labor law: while workers enjoy a theoretical constitutional right to strike, 85 percent of private sector workers (those who are not unionized) can be terminated for striking. This paradox will create pressure for Canada to address the complete absence of any protections for strikers outside of formal, majority trade unionism. In this endeavour, it will be natural to look south to NLRA Section 7 for inspiration. This exercise would flip Weiler’s argument on its head to consider how Canadian labor law could learn from U.S. law.

The statutory right to strike thus consists of two types of rules: (1) rules about who can legally strike and in what circumstances (“scope rules”); and (2) rules governing job rights of strikers when the strike ends (“job rights rules”). The NLRA protects a more expansive right to strike than Canadian labor law in terms of scope rules, whereas the Canadian model provides superior job rights rules. To strengthen the right to strike in the United States, Weiler advocated importing Canada’s job rights rules while preserving the NLRA’s broader scope rules. Conversely, if Canada wanted to expand the right to strike, it could preserve existing job rights rules and import aspects of the NLRA approach to scope rules. This would require the unprecedented move of introducing a freestanding right to associate and to act collectively, modeled after NLRA Section 7, that encompasses a right of non-unionized workers to strike.

That step would move the Canadian model towards Weiler’s vision for the revised NLRA that merged aspects of U.S. and Canadian labor law. Since a strike by non-union workers would presumably now be a “lawful strike” in Canada, existing rules that protect lawful strikers from employer reprisals would apply. Job rights rules would similarly apply to both unionized and non-unionized strikers since those laws also protect “lawful” strikers. However, as with Weiler’s proposal to inject a simple Canadian rule into the preexisting NLRA model, the proposal for Canada to introduce a “right to engage in concerted activity” is complex when one considers how the new rule would fit into the existing legal architecture of Canadian strike law.

Consider that the introduction of a new standalone “right to engage in concerted activity” in Canada would result in non-union workers having a broader right to strike than unionized workers. This is because the trade-offs for superior job rights rules in Canada are more restrictive scope rules. For example, unionized workers cannot strike during a collective agreement in Canada. Would the new right to strike for non-union workers similarly prohibit strikes during the term of an individual employment contract? Since most non-union employees in Canada work pursuant to indefinite term contracts terminable only with notice, a rule prohibiting mid-contract strikes would effectively abolish the right to strike for most non-union workers. Similarly, unionized workers can only strike after their union has exhausted mandatory conciliation, waited out a mandatory “cooling off” period, and obtained majority support in a strike vote. Would these preconditions be required of non-unionized strikers as well?

Weiler was not much concerned with these sorts of “in-the-weeds” questions, because his proposal was to extend Canadian job rights rules to all U.S. employees without the associated burden of Canada’s more restrictive scope rules. However, when asking how Canada could import a U.S.-style “right to concerted activities,” the situation becomes more complicated. Canadian politicians, unions, and employers will surely notice a new American-inspired right to strike for non-unionized workers that has been decoupled from Canada’s historical restraints on strikes. This awareness will provoke a deeper dive into U.S. strike law, including how that law permits permanent replacements of “economic” strikers, union and non-union alike. Supporters of an expanded right to strike in Canada may not wish to open that door.

This is a cautionary tale about cherry-picking rules from foreign legal models, even when those models share common origins. Canadian strike law better protects unionized strikers at the expense of providing virtually no rights to associate (or strike) for the 85 percent of private sector workers who are not unionized and probably never will be. U.S. law provides more expansive rights to associate and strike for both unionized and non-union employees, but at the expense of offering little substantive job rights protection for economic strikers.

We could debate which model is superior, but collapsing private sector union coverage rates in both countries suggests neither is without major pitfalls. There may be an ideal reform package that merges the best qualities of the NLRA’s expanded scope rules and the greater protections in Canada’s job rights rules into a consolidated Wagner-model strike law for both countries. This is what Weiler had in mind in his influential comparative law reform scholarship, even as he discussed comparative law reform at a high level of generality.

However, proposals for a strike law model that draw on comparative labor law need to be advanced with a clear eye on the historical interactions and trade-offs between scope rules and job protection rules in the two countries. Otherwise, improvements made on one side of the ledger might come at the expense of erosions on the other side, with consequences that are unexpectedly regressive.