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20 Canadian Lab. & Emp. L.J. 141 (2017)
Protecting Concerted Action outside the Union Context

handle is hein.journals/canlemj20 and id is 147 raw text is: Protecting Concerted Action Outside the Union Context Brishen Rogers* & Simon Archer** Canada's labour laws do not adequately protect non-union forms of concerted action - a problematic gap in the legislation, given the increase in alternative models of collective organizing. This article proposes the adoption in Canada of broader protections similar to those found in the United States, where section 7 of the National Labor Relations Act extends protection to concerted action by employees regardless of whether they are unionized or even seeking to unionize. Beginning with a comparison of the current legislative schemes in the two countries, the authors argue that because the limitations to concerted action in Canadian labour law are similar to those in the U.S., the proposal is unlikely to disturb settled law beyond its intent. The positive impacts of adopting section 7-like protection in Canada are canvassed, which include encouraging stronger employee voice, allowing for increased realization of the constitutional guar- antee of freedom of association, and enabling experimentation with non-union forms of collective representation. These changes would help to balance work- place power dynamics, and allow workers more flexibility in choosing how to advocate for themselves. 1. INTRODUCTION A recent article in the New York Times described low-wage workers' efforts to collectively address grievances with management without seeking union representation. For example, with the assist- ance of the non-union migrant rights collective Somos un Pueblo Unido,' a group of restaurant workers whose employment had been * Associate Professor, Temple University Beasley School of Law. Email: brog- ers@temple.edu. This essay draws on earlier research of mine that was supported by the Roosevelt Institute's Future of Work Initiative. ** Co-Director, Comparative Research in Law and Political Economy, Osgoode Hall Law School, York University, and Koskie Minsky LLP. Email: sarcher@ osgoode.yorku.ca, sarcher@kmlaw.ca. The research assistance of David Gruber is gratefully acknowledged, as are comments from Sara Slinn and Harry Arthurs, Osgoode Hall Law School; Stephanie Ross, York University; Pierre Brun of Melangon Marceau Grenier et Sciortino s.q.r.l.; Graham Cox, Canadian Union of Public Employees; and Deena Ladd of the Workers' Action Centre, Toronto. 1 This might be loosely translated as we are a people united.

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