Economic Sanctions Picketing Chapter 9, pp'924, 93059

1
Economic Sanctions PicketingChapter 9,
pp.9-24, 9-30--59

• Lecture Outline
• 1. Purpose of picketing
• 2. Distinctive feature of BC Code exclusive
  jurisdiction of Board to regulate picketing
• 3. Tactics leaf-letting versus picketing- s.64
• 4. Regulation of the Location of Picketing
• Picketing and the Charter
• Impact on BC Code

2
1. Purpose of Picketing

• Historically picketing is the primary tactic used
  by workers who are on strike.
• Picketing is designed to publicize the strike and
  to persuade people to support the strikes by not
  doing business with employers against whom
  workers are non strike or employers who have
  locked out workers
• Picketing audience people in general,
  consumers, other workers who work for the
  employer, other workers who work for employers
  who are doing business with struck employers, and
  other employers.
• Tension informational solidarity tactics
  permitted but intimidating and coercive tactics
  are prohibited

3
2. Distinctive Feature of the BC Code

• A distinctive feature of the BC Code is that the
  Board has exclusive jurisdiction to regulate
  picketing. In other common law jurisdictions,
  the courts regulate picketing through the
  application of the nominate torts.
• The courts were seen as anti-worker because of
  their willingness to issue injunctions against
  workers who they found to have committed a
  nominate tort. A nominate tort is a tort that
  interferes with economic interests.
• Definition of picketing s.1 see p. 9-24 -means
• Elements
• 1) location -- attending at or near a persons
  place of business etc
• 2) purpose persuading a person not

4
Definition of picketing s.1 see p. 9-24 -mea

• Elements 1) location -- attending at or near a
  persons place of business etc2) purpose
  persuading a person not to
• (a) enter that place of business, etc
• (b) deal or handle that persons products, or
• (c) do business with that person
• and a similar act at such a place that has an
  equivalent purpose.
• In Criminal Code and historically picketing
  described as watching and besetting.

5
Exclusive Jurisdiction of the Board

• S.66 ousts the jurisdiction of the court to use
  the common law to restrict picketing
• See BC v. Gateway 2007 BCCA
• The BCCA provided a narrow definition of petty
  trespass in s.66. Petty trespass only pertains
  to minor trespass. The Court still has
  jurisdiction to regulate trespass. This is an
  important case as it reinstates the power of the
  Board to regulate picketing and leaf-letting.

6
Statutory provisions relating to picketing

• Sections 64, 65, 66, 67, 136, 137, 138, 139

7
3. Tactics leaf-letting or picketing

• S.64 a trade union may at any time and in a
  manner that does not constitute picketing
  communicate information to a person, express
  sympathy or support for a person as to the
  matters or things affecting or relating to terms
  or conditions of employment or work done or to be
  done by that person
• What is the distinction between picketing and
  leaf-letting?

8
Canada Safeway, 1987 BC p.9-24

• Note the Canada Safeway case is out of date as
  the SCC has specifically permitted informational
  leaf-letting at secondary sites (K-Mart at
  p.9-48) and has rejected the signaling effect of
  picket lines ( Pepsi-Cola at p.9-54)
• Signally effect notion developed and promoted
  by Weiler once people see picket lines they
  refuse to cross. Contentious empirical
  assumption.

9
Distinction between picketing and Leaf-letting

• Picketing placards, at entrance and egress of
  building, more than just information also
  presents physically barrier
• Leaf-letting distribution of pamphlets, not at
  egress and entrance, fewer people, not attempt to
  create a barrier

10
4. Regulation of the Location of Picketing

• The legality of picketing in BC, unlike other
  jurisdictions in Canada, continues to turn on the
  location of picketing. The Primary/secondary site
  distinction was rejected by SCC in Pepsi (2002)
  and thus no longer is relevant to the common law
  regulation of picketing.
• In BC, it is prima facie lawful for workers to
  picket at the struck place of work, which is
  known as the primary site.
• Sites other than the primary place or work are
  known as secondary sties. Secondary picketing in
  BC is prima facie unlawful subject to the
  exceptions in the Code. These exceptions are
  transferred work and ally situations, both of
  which are subject to the restrictions on common
  site picketing.

11
Broader questions re picketing in BC

• The regulation of picketing was transferred from
  the courts and common law torts to Board and
  Labour Code in 1973 because courts were
  considered anti-union. Does the Boards
  decisions regarding lawful picketing differ that
  much from the courts?
• Is the Labour Codes distinction between primary
  and secondary site picketing justifiable after
  Pepsi?

12
Primary Site Picketing pp.9-31--33

• S.65 This is the key provision regulating
  picketing in the BC code
• S.65(3) permits picketing at the site where
  workers are lawfully on strike or locked out.
• Questions
• Who can picket? look at s.63(3)
• Who can strike?

13
Lafarge Canada, BC 1988, pp.9-31--33

• This case sets out the requirements of s.65(3)
  lawful primary site picketing
• Context employer used replacement workers.
  This strike led to ban on replacements workers.
• Lafarge operated two division (cement and
  concrete). The concrete division is both a
  customer and deliverer of materials to cement.
• The er argued that the union was in breach of s.
  65 by picketing at the cement silo in Comox.

14
Lafarge cont

• The concrete division goes on strike. A concrete
  division employee dirves to the cement silo and
  does some work at that site.
• The cement division employees picket the Comox
  silo.
• Er argues that the Comox silo was not a primary
  location under s.65(3) and alternatively, that if
  it were, it was a common site situation and
  pursuant to s.,65(5) the unions pickets should
  be restricted.
• The union conceded that the two division were
  separate employers under s.65(6) and thus the
  common site provision (s.65(5) applied.

15
Lafarge cont

• Criteria for permissible primary site picketing
  under s.65(3)
• Member of bargaining unit that is on strike
  performs work at the location
• The work is under the control and direction of
  the employer (what about independent
  contractors?
• The word in an integral and substantial part of
  the employers operation AND
• The site or place is a site or place of a lawful
  strike.
• All 4 criteria must be fulfilled for s.65(3).

16
Lafarge cont

• Application to facts
• The Comox silo is a site or place where a member
  of the trade union performs work. Any work,
  regardless of its significance fulfills first
  criterion. Bulk truck driver attends work
  regularly at this location.
• Under control or direction means that the person
  is an employee of the struck employer.
• Is the work an integral and substantial art of
  the employers operation? 9-33- the trade union
  must show that the work is not fleeting nor
  fortuitous but rather a permanent and on-going
  presence. The truck is a significant investment
  (big truck) and the driver regularly attends on
  an ongoing basis at the site.
• In vast majority of cases the site or place that
  satisfies the first 3 criteria would
  automatically satisfy the 4th.
• Conclusion Comox is a site or place of lawful
  strike/lockout because one members of striking
  concrete division is regularly employed on an
  ongoing basis at the cement silo.

17
Exceptions to illegal secondary picketing

• Picketing of other sites, known, as secondary
  sites, are prima facie illegal unless the site
  falls into an exception. The exceptions are
• Transferred work site
• Ally site

18
Exceptions of unlawful secondary picketing

• Transferred work site
• S. 65(4) trade union must make an application
  and Board can permit picketing at a site or place
  to which a struck or locked out employer has been
  transferred.
• NB subject to restrictions on common site
  picketing (common site is a site at which 2 or
  more employers perform work) in s.65(6)
• Need board permission to picket.
• Less frequently used since the ban on
  replacements workers in s.68 introduced in 1996.

19
Exception to unlawful secondary picketing

• Ally site, pp.9-34--39
• S.65(1),(2), and(4)
• Who is an ally? s.65(1)
• Person who in combination , in concert, or with
  a common understanding assists the employer in a
  lockout or in resisting a lawful strike.
• What is the presumption? s.65(2)
• If the person performs work, supplies goods or
  furnishes services of a nature that would,
  except for the lockout or strike , be performed
  etc by the employer that person is presumed to be
  an ally.
• Requirement for Board permission s.65(4) to
  permit picketing
• Exception re common site picketing s.65(4)

20
Hiram Walker 1978 BC , 9-35--39

• Employees of Hiram Walker on legal strike.
• Several weeks before the strike began, the Brach
  purchased 138,000 cases of alcohol from Hiram
  Walker on favourable terms.
• One month into the strike the UAW objected to
  Teamster members from delivering alcohol from
  struck location to the Branch.
• Teamsters told Hiram Walker that they would
  picket the storage facility.
• Is the storage facility an ally?
• NB employers can predict the timing of a strike
  or lockout and thus can make contingency plans in
  advance of the industrial action.

21
Hiram Walker cont

• Principle immunize third parties form the
  effects of industrial action.
• Exception third parties who are allies of
  struck or locked out employer.
• Definition of ally s.65(3), (4)
• Not a hard and fast rule because it would capture
  a range of suppliers. Eg. Seagrams would be
  treated as ally of Hiram Walker even though in
  competition.
• Problem with reasoning Seagrams and Hiram Walker
  may compete for market share but may collude for
  industrial relations purposes.
• S.65(4(is neither sufficient (see above) nor
  necessary condition for ally. For example, Hiram
  Walker could hire replacement workers firm to
  provide delivery that was typically performed by
  another firm that employed unionized workers.
  The delivery firm is not s struck employer. .
  Note this would not be permissible under s.68.

22
Hiram Walkers cont

• Not every form of assistance to struck or locked
  out employer by a third party renders the third
  party an ally a party who simply continues
  on-going business relationship is not an ally.
  Rationale legislative intent.
• Only if a third party engages in unusual action
  in the course of a strike, markedly changing its
  normal manner of doing business in order to avoid
  the impact f the unions lawful strike and
  picketing can that person be described as an
  ally.

23
Hiram Walkers cont

• Issue in this case stockpiling before strike
• Board - Stockpiling could be ally.
• Is it ally in this case?
• Look at the actions form a practical,
  industrial relations point of view.
• Hiram Walker making revenue (booze sold) while
  lessening expenses (does not pay striking
  workers.
• Hiram Walkers maintaining brand identification
  during long strike.
• Note minimizes evidence of Acting General manner
  of Liquor branch that Branch has own concerns
  about selling Hiram Walkers products. -
  minimal advantage to Brach maximum benefit to
  Hiram Walkers.

24
Hiram Walkers cont

• Touchstone of ally 9-38, 3rd para
• objective fact that assistance is being provided
  to a struck employer , which the union may
  legitimately try to cut off through a picket line
  (or, perhaps, a hot declaration.)
• Ally must be allowed self-defence -- some
  voluntary act must be able to resist helping
  struck or locked out employer. If cannot, not
  ally.
• Application to case

25
Common site picketing pp. 9-39 -- 45

• Statute -- s. 65
• (1) definition
• (a) site on which there are 2 or more
  employers, and
• (b) one of employers is a struck or locked out
  employer or ally of such
• The board may on an application (by whom?) or
  own motion may make an order permitting picketing
  against the struck employer (s.65(3)) or ally
  (s.65(4)).
• However, in cases of common site picketing the
  board must (s.65(7)) restrict the picketing so it
  only affects the struck employer or its allies
  unless it is not possible to do so witho9ut
  prohibiting picketing, and then the board must
  regulate the picketing.
• Key the site must be shared with a neutral
  employer. Typically situations constructions
  sites, industrial parks, shopping malls, office
  complexes.

26
Interpretation of common site picketing p.9-40

• See discussion at 9-40
• Leading case Sovereign General Insurance BCLRB
  1994
• The Board considers 2 questions
• Should the neutral employer be immunized by a
  total ban
• 2. How should picketing be regulated to immunize
  or minimize impact on neutral
• The board has broad discretion to immunize the
  neutral, which it can do by restricting picketing
  to particular locations. Or it can regulate the
  picketing via temporal restrictions.

27
Kelowna International Regatta, 1986 BC Board 9-41

• This case is out of date regarding the question
  of whether picketing at a common site should be
  banned because the legislation at the time this
  case contained the modifier reasonably before
  restrict.
• However, it is still useful regarding the
  question of regulating picketing.

28
Kelowna International Regatta,cont

• Facts Employer locked out its employees and
  members of 2 of the locked out unions picketed at
  the city parks, where they regularly worked. The
  effect of cont picketing would lead to the
  demise of the annual Regatta, which was organized
  by a neutral employer, but held at a common site
  with the locked out employer.
• Relevant factors
• - union has a right to picket at site
• Regatta continues to do business with locked out
  employer
• Relationship between neutral and locked out
  employer here the Regatta cannot be considered
  uninvolved 3rd party because the city has
  provided the regatta with financial aid and the
  citys employees assist the regatta
• Industry or sector public, municipal sector
  very different from private sector. Analogizes
  picketing of regatta to garbage strike not a
  question of profits but a question of public
  pressure

29
Separate division, pp.9-45--46

• Statute s. 65(8)
• Separate division of corporation if they are
  treated as separate and distinct operations must
  be treated as separate employer.
• Effect enables employers to minimize disruption.
  
• Key regarding common site. See Canada Lafarge as
  an example.
• 2 factors Board considers 1)common control and
  direction 2) are they run in an autonomous
  fashion
• Look at the list of factors on p.9-46 that the
  Board considers in making this determination.
  These factors are similar to the factors that the
  Board looks at in determining whether
  corporations are associated or related employers
  under s.378.Interpretation.

30
The Charter and the Legal Regulation of Picketing

• Dolphin Delivery
• Does the Charter apply?
• Is the right to picket or strike protected?
• If so, if the restriction demonstrably justified

31
Charter Application

• Dolphin Delivery (1986)
• Charter does not apply to common-law based
  private action, even where that ends in a court
  order, such as an injunction
• However, judiciary ought to apply and develop
  common law principles in a manner that is
  consistent with Charter values
• Hill v. Church of Scientology (1995)
• Charter values should be weighed against general
  principles that underlie common law
• Far-reaching changes to common law should be left
  to legislature
• Party alleging inconsistency bears onus of
  proving common law fails to comply with Charter
  values and that, when Charter values and common
  law principles weighed, common law should be
  changed

32
RWDSU v. Pepsi

• Whats new in a POST
• 
  

33
The Joy of Pepsi?

• Test for application of Charter to common law in
  context of private litigation remains as stated
  in Hill
• But case establishes precedent for judicial
  alteration of common law rules
• Result arguably narrows the significance of
  Dolphin Delivery

34
Are Restrictions on Picketing Demonstrably
Justified Infringement?

• Dolphin Delivery (secondary picketing)
• Picketing is protected form of expression, but
• Social cost of industrial conflict is great may
  tolerated but only as inevitable corollary to
  collective bargaining process reasonable to
  restrain picketing so that it will not escalate
  beyond the parties it should not be permitted to
  harm others
• BCGEU (1988) (primary site picketing)
• Picketing much more than simple exercise of
  workers freedom of expression ipso facto
  impedes access Signal effect Pavlovian
  response
• UFCW v. Kmart (1999) (secondary site activity)
• Picket lines are formidable barrier coercive
  effect rather than persuasive force may be
  applied to employer but may not be permissible
  against neutral party
• Leafleting is sharply distinguished from
  picketing and is permitted at secondary sites,
  provided not otherwise tortious

35
Pepsi The Tort of a New Generation?

• Contrary to earlier decisions that seemingly
  denied the need to assess the competing value of
  picketing and third-party rights, Pepsi puts this
  exercise front and centre because of its more
  positive assessment of role of picketing
• Strike activity legitimate in industrial
  pluralism, par. 25
• As expressive action engages one of the highest
  constitutional values, par. 32
• Redresses imbalance in employment relation, par.
  34
• Reinforces important role played by unions in
  social debate, par. 35
• But must weigh competing value of protecting
  innocent third parties against undue harm, par. 45

36
Pepsi On balance, the tort of secondary
picketing is unjustified infringement of freedom
of expression

• Picketing is Charter protected, curtailment must
  be justified, par. 67
• Primary/secondary distinction puts undue emphasis
  on location and hard to operationalize, par.
  75-79
• Protection of economic harm is important value,
  but not pre-eminent, par. 72 right to trade is
  not fundamental, para. 89
• Unequal treatment Hersees tort applies only in
  labour context, par. 80
• Wrongful action approach will provide adequate
  protection against undue economic harm, par. 92,
  103
• Reassessment of the signal effect of picketing,
  par. 93-100

37
Uncertain Areas After Pepsi

• Can legislatures ban secondary picketing (eg. BC
  Labour Code)? par.86
• Can other torts be challenged as inconsistent
  with Charter values? Can new torts be developed
  to protect third party interests in the absence
  of a tort of secondary picketing? par. 106 -07

38
BC Code, Picketing and the Charter

• Overwaitea, 9-56
• Distinction between leafletting and picketing
• Extremely long term collective agreements at
  grocery warehouse. Warehouse initially owned by
  Overwaitae but sold to an independent employer
  (Loman), which became successor employer under BC
  Code (s.35)
• The union became aware of decision to close
  warehouse, which would put the employees out of
  work.
• The union leafletted at Overwaitae to publicize
  the plight of the warehouse employees. Because
  of peace obligation during long collective
  agreement the union could not strike the
  Warehouse

39
Overwaitae cont

• Overwaitae conceded that according to K-Mart the
  union had the right to leaflet however,
  Overwaitae argued that the actins went beyond
  leafletting and tat the unions were picketing.
• Overwaitae focused on banners, placards.
• Union argued, relying on Pepsi, that is was not
  obvious why a consumer boycott message was
  constitutionally protected but a placard bearing
  the same message as a leaflet was not so long as
  the behaviour was not coercive or intimidating

40
Overwaitae

• The reconsideration panel rejects the approach of
  the original panel which was to consider the
  message and manner of picketing against the
  guidelines in Kmart and Pepsi.
• Reasons for rejecting this approach
• Difficult evidentiary requirements and judgment
  calls about whether signally effect is present
  and this will result in uncertainty and prolonged
  litigation
• Therefore adopts a simple and straightforward
  test in line with legislative intent of the Code,
  and the Charter decision.
• In these decisions, according to the Board, the
  Court allowed for continued statutory regulation
  of conventional picketing so long as protective
  leafletting activity permitted.
• Has the Charter expanded the scope of expressive
  activites available to employees in BC?

41
Overwaitae. 9-59

• S.65 and s.57 of Coe permit regulation of
  conventional picketing at secondary sires and so
  long as these provision are not constitutionally
  challenged the Board does not (and should not)
  consider whether the intention or legislative
  objective of regulating all forms of conventional
  picketing at secondary sites would survive a
  Charter challenge.
• Rather than relying on signally effect (NB which
  was specifically questioned in Pepsi) to
  determine whether activity is conventional
  picketing the Board adopts a bright line
  approach.
• Bright line leafletting permitted picketing at
  secondary sites or where there is not a lawful
  strike, is not permitted.
• Conventional picketing
• - not leafletting
• - not unattended banners or signs\but is wearing
  placards and signs.

42
Pepsi in BC

• Has the Board simply ignored Pepsi?