Extending Mike Zimmer’s Cross-border Comparative Work: The Role Of Property Rights In U.S. And Canadian Labo(u)r Law

This article, part of a symposium in memory of the late Professor Michael Zimmer, examines the different role played by property rights in the United States and Canadian labor law. Although Canadian labor relations statutes are generally modeled on the U.S. National Labor Relations Act, they have evolved in significantly different ways. The article traces these differences to differences in each jurisdiction’s view of employer property rights. These different views are not surprising considering that the U.S. Constitution expressly protects property rights while the Canadian Charter of Rights and Freedoms does not. In the U.S., the NLRA has been viewed as built on a foundation of respect for employer property rights. Consequently, the law has largely taken the employer’s exercise of its property rights as a given and has applied the statute to the results of that exercise. For example, the law takes as a given who the employer has decided to admit to its property in determining who, if anyone, has the right to solicit workers to engage in concerted activity for mutual aid and protection on employer property. This respect for employer unilateralism receives much less weight in Canada. The article demonstrates how the different approaches to employer property rights result in different approaches to union access to workers on employer property, the scope of mandatory bargaining, successorship and statutory coverage of independent contractors. The article then focuses on different levels of policing of the collective bargaining process in the two jurisdictions and on the rejection in the U.S. of the Canadian model of subjecting negotiations for an initial collective bargaining agreement to arbitration when negotiations have broken down. It shows how closer labor board scrutiny of bargaining proposals found in Canada flows from the two countries’ different approaches to employer property rights and how the U.S. rejection of compelled first contract arbitration was a natural result of the role of property rights in U.S. labor law.