The charter ‘strikes’ again

Supreme Court legalizes secondary picketing

Background

In a landmark decision of the Supreme Court of Canada, the status of labour expression was elevated to rival that of non-labour expression, deeming it worthy of equal protection under the Canadian Charter of Rights and Freedoms.

Wading through the quagmire of 40 years of common law, the court in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. found secondary picketing is legal unless it involves tortious or criminal conduct.

The case: R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.

The dispute involved employees of a bottling plant and delivery facility in Saskatchewan and their employer, Pepsi-Cola. Negotiations broke down during collective bargaining and Pepsi locked out its employees. The workers, in a legal strike position, walked out and protested by blocking entrances, disabling trucks, threatening management and overrunning the facility. Pepsi obtained an interim injunction and regained control of its facilities.

The conflict grew bitter as union members continued to interfere with deliveries, discouraged management and substitute workers from working and attempted to dissuade customers from doing business with Pepsi. These protests soon spread to secondary locations where union members picketed retail outlets, preventing delivery and dissuading store staff from accepting delivery of Pepsi products. Union members also targeted the substitute workforce by carrying placards in front of a hotel where some of them were staying and congregated outside the homes of management, chanting slogans, screaming insults and uttering threats.

Pepsi went back to court and was granted a new injunction which not only prevented the union from its earlier acts of trespass, intimidation and nuisance but also restrained it from engaging in picketing at secondary locations. The union appealed, claiming the part of the order prohibiting picketing at secondary locations ran counter to the Charter of Rights and breached the strikers’ rights to freedom of expression and association.

The Saskatchewan Court of Appeal agreed with the union in part. While it found the union’s activity of congregating at the residences of Pepsi employees to be tortious acts, it found the picketing at secondary locations to be peaceful and informational in nature and permissible under the law. The court reasoned it could only restrain secondary picketing if it was accompanied by a specific tort such as trespass, nuisance, intimidation, breach of contract or defamation.

Since the picketing in this instance was aimed at dissuading others from dealing with Pepsi and did not affect anyone’s use or enjoyment of their property, the union was allowed to engage in peaceful picketing at secondary locations. Pepsi appealed to the Supreme Court of Canada.

The Supreme Court conducted a thorough analysis of the case law and upheld the decision of the appeal court, finding secondary picketing to be generally lawful. It disapproved of the 1963 decision in Herses of Woodstock Ltd. v. Goldstein, holding the obiter comments had misinformed the law for more than 40 years with its “illegal per se” doctrine. The Supreme Court held the common law should be guided by the charter and labour speech is no less important than free speech in other arenas.

Thus the decision in Herses could not withstand charter scrutiny because it operated under the premise that protection from economic harm is more important than the right to free expression during a labour dispute. To clarify the law the court proposed the wrongful action model as the best approach to the issue of legality of secondary picketing.

This model conforms best to charter methodology since it begins with the proposition that secondary picketing is prima facie legal and focuses on the character of the activity. Incursions upon free expression will be permitted only when justified, as in the case where the conduct is coercive or harmful and results in tortious or criminal activities. The rationale for prohibiting picketing targets the behaviours and consequences of the activities themselves rather than their location.

Picketing which breaches criminal law or results in trespass, nuisance, intimidation, defamation or misrepresentation will be impermissible regardless of where the picketing occurs.

For more information see:

R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. [2002] SCC 8. File No.: 27060.

Herses of Woodstock Ltd. v. Goldstein, [1963] 2 O.R. 81, C.A.

Secondary picketing: A necessary evil?

Right to labour expression more important than preventing economic harm to employers

The aim of picketing is to exert economic pressure on an employer in an effort to resolve disputes. The economic harm to an employer resulting from a labour dispute is accepted by society as a legitimate price to pay to encourage the resolution of conflict between employers and unions. While there is general societal acceptance of picketing an employer, the issue of picketing and thereby causing economic harm to an innocent third party is much more controversial.

The decision in Herses espoused a doctrine that elevated the economic protection of third parties from the effects of labour disputes as the paramount concern of the law. The court justified the doctrine that picketing of secondary location was “illegal per se” by reasoning the economic benefit of trade was more important to the community at large than the right to labour expression since only a limited class of people benefited from the right of secondary picketing.

In Pepsi-Cola the Supreme Court of Canada found this view of labour expression to be totally impractical and irreconcilable with the fundamental values of modern Canadian society.

The court refuted the notion that innocent third parties should be completely insulated from economic harm arising from a labour conflict. Instead the court proposed third parties should only be protected from undue suffering caused by criminal or tortuous acts.

Since labour disputes never operate in a vacuum, some economic harm to third parties is expected as a necessary cost of resolving industrial conflict.

While the Supreme Court has clarified the common law in this area and introduced a uniform methodology for assessing the legality of secondary picketing, the practical implications of this decision may not be so clear. With regards to innocent third parties the court has not set any boundaries.

Anyone, no matter how far removed from a labour dispute, could be a target for peaceful secondary picketing. The court has assumed limited resources and numbers will prevent secondary picketing from spreading to those having little ability to pressure the primary employer.

But the wrongful-action approach provides potential for secondary picketing to occur where third parties have a tenuous link to the primary employer. The court has not quantified the extent of economic harm that is acceptable as a cost of labour disputes.

While the courts will prohibit secondary picketing where criminal or other tortuous conduct occurs, there is no protection for the business losses an innocent third party would incur from a peaceful picket.

What if the dispute is long and protracted? Is having an innocent third party go out of business an acceptable price of the labour relations process?

Tips for employers

Secondary picketing can be prohibited only if it involves criminal activity or an independent actionable tort, such as nuisance, intimidation , defamation, misrepresentation, trespass and inducing breach of contract.

A party can successfully initiate injunction proceedings only where it has been subjected to a tort or a crime and not just where it has been the target of secondary picketing. A secondary picketed party must initiate injunction proceedings for itself. But a primary employer can initiate injunction proceedings where it has been subjected to intimidation through the secondary picket.

The legalization of secondary picketing has come about as a result of a change to the common law. This change greatly expands the picketing rights of federally regulated unions and in provinces without legislation governing picketing rights. But the clarification is by no means a restriction on legislative intervention and, in fact, secondary picketing has been regulated by statute in some provinces like British Columbia and Alberta. Legislatures are free to develop their own policies with respect to secondary picketing as long as they respect the charter value of freedom of expression and can justify its limitation.

Obviously if a business is being subjected to picketing, it should consult legal counsel. Whether legal action in the form of seeking an injunction prohibiting the picketing will be successful will depend on the behaviour of the picketers and the terms of the legislation in the particular province.

This in-depth look at employment contracts was provided by Heena Mistry. She can be reached at [email protected].



Related articles

Secondary picketing at private residences OK, says Alberta court

To read the full story, login below.

Not a subscriber?

Start your subscription today!