Employees awaiting collective agreement are entitled to distribute leaflets: arbitrator

Store suspended employees who handed out leaflets asking customers to stay away during negotiations for new collective agreement

The British Columbia Arbitration Board has ruled a supermarket’s unionized employees are free to distribute leaflets that urge the public to shop elsewhere, even though the employees are not involved in a legal strike or lockout but merely awaiting a new collective agreement.

In 2006, several employees of Extra Food Store in Squamish, B.C., operated by Westfair Foods Ltd., were given suspensions after they handed out leaflets to members of the public at the store’s entrance. At the time, the United Food and Commercial Workers Union was negotiating a collective agreement with the store. The leaflets’ main message was to ask people to shop elsewhere until a new collective agreement was signed.

Although none of the union workers wore sandwich boards or placards and they did not prevent anyone from entering the store, the employer wrote to its employees on at least three occasions. One letter stated, “Despite what your union may be telling you, you do not have the right to disseminate information that is damaging to our store unless we are involved in a legal strike or lockout.”

During the leafleting campaign, some members of the public turned away from entering the store and its level of sales decreased significantly.

The store gave several employees a one-day suspension for distributing leaflets in their off-duty hours. Two of those employees continued to hand out leaflets after their one-day suspensions and were subsequently given five-day suspensions. Several others continued to distribute leaflets after the June 15 warning letter but had not yet been given suspensions or other discipline.

The store felt employees couldn’t intentionally cause harm to the employer while a collective agreement is in force because it would “violate an employee’s duty of fidelity.” However, the board referred to the Supreme Court of Canada case K Mart Canada Ltd. v. U.F.C.W., Local 1518, which states leafleting activity “if properly conducted is not illegal at common law. Leafleting is of fundamental importance for workers and has a very real social value.”

“The essential question to be determined is whether, absent a strike or lockout, the off-duty employees were lawfully entitled to engage in leafleting which contained a message urging the public to shop elsewhere pending the formation of a new collective agreement,” the board said. “In my view, the (Labour Relations) Code is sufficient to dispose of this issue.”

The board ordered the suspended employees who suffered wage loss to be reinstated and compensated for their lost pay. See Westfair Foods Ltd. v. U.F.C.W., Local 1518, 2006 CarswellBC 3370 (B.C. Arb. Bd.).

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