B.C. ruling places limits on picketing activity; Alberta ruling takes more permissive tone
Two recent court decisions that touch on picket line behaviour are cause for some concern, says Doug O’Halloran, president of United Food and Commercial Workers Union (UFCW) Local 401 in Alberta, a union involved in one of the cases.
The UFCW’s case centred on striking workers outside Palace Casino at the West Edmonton Mall. The union posted signs stating the video may be posted on the website www.casinoscabs.ca. Several people, including employees and members of the public, complained to the privacy commissioner that their privacy had been invaded.
The Alberta Court of Appeal allowed the union to continue videotaping on the picket line after a lower court told it to stop. The court held that prohibiting videotaping caused a “significant stifling of expression” and it deemed the province’s privacy legislation “heavy handed” and unconstitutional.
Although the appeal ultimately favoured the union, O’Halloran says he’s concerned whenever issues around picket line protocol make their way into the courts.
“Judges don’t live in the real world where you’re on a picket line,” he says, noting the dangers posed to picketers from vehicles or people pushing through the line. “Anytime there’s a decision by the courts you have to be concerned because it’s a slippery slope to the next decision.”
Alberta’s privacy commissioner, Jill Clayton, has since announced she will apply to the Supreme Court of Canada for leave to challenge the appeal court ruling.
Meanwhile, the B.C. Court of Appeal has turned down an application by Teamsters Local 31 to overturn an injunction sought by Great Canadian Railtour, operator of the Rocky Mountaineer train.
The injunction prohibits union members from harassing replacement workers, unlawfully watching employees, or following employees, customers or suppliers. Unionized workers at the Rocky Mountain tourist attraction have been locked out by the the company for one year.
One Railtour employee alleged picketers yelled, “Scabs,” and, “you’re taking our jobs,” as she and four other employees disembarked from a train in North Vancouver. The incident made her feel, “uneasy and intimidated,” she said.
The union was also accused of following buses carrying replacement workers, which it acknowledged doing, so “the union could attend and educate the replacement workers about the union’s issues with the employer and the lockout.” The intention was not to intimidate, harass or threaten people on the bus, according to the Teamsters.
Decisions such as this can be “very damaging” because they remove a union’s ability to affect change on the picket line, O’Halloran says.
“It’s not Sunday school. If you cross a picket line, you should be prepared to accept some form of verbal abuse,” he says. “What are you supposed to do? Are you supposed to smile and offer them a doughnut?”
Although the Alberta decision favoured the charter right to freedom of expression, the nature of picket lines is changing, O’Halloran says. He accuses employers of using videotape to find reasons to seek injunctions and shut down picket lines.
“It’s now uncommon to have a strike without some kind of injunction,” he says, noting the public is also more aggressive toward striking workers in some cases.
These two cases are actually more different than similar, according to Michael Lynk, a labour law expert at Western University in London, Ont. One deals with privacy, the other with harassment, he says, adding they should not be interpreted too deeply.
“It’s interesting that we’re getting these cases at a time when we’re at an historic low in strikes,” he says, pointing out the past few years have seen the lowest number of person days lost to industrial disputes since 1945. “We’re not generating as many cases, so I’m not sure if we’ve yet seen any real changes in attitude.”
The courts are struggling to find a balance between freedom of expression and individual rights, something that has always been a challenge but has intensified with the growth of technology, Lynk says.
The lesson for unions in these two decisions is to have a well-planned picketing protocol in place before a strike to avoid going to court, O’Halloran says.
“A lot of the time it’s the personal beliefs of the judges that are behind their decisions,” he says. “Everybody should be concerned when these decisions happen.”
