Secondary picketing at private residences OK

Alberta court refuses to ban secondary picketing, but places restrictions on what picketers can do in long-simmering dispute with Telus

What happens when picketers show up at a private residence of a manager or a worker who has crossed the picket line?

In 2002 the Supreme Court of Canada had a chance to implement an outright ban on picketing at private residences in a case involving Pepsi workers in Saskatchewan — but it didn’t.

Now, in a case involving Telus workers, an Alberta court has ruled that striking union workers have the right to picket at private residences — including those of managers and union members who continue to work through the labour dispute — though it did slap some restrictions on what picketers can and can’t do.

Telus has been involved in a long simmering labour dispute with the Telecommunications Workers Union (TWU) and workers have been without a contract for years. Things boiled over in the summer when Telus attempted to impose a new contract on unionized workers.

In September Telus took the union to court in an attempt to block it from picketing at the homes of employees. Between Aug. 23 and Sept. 8 the homes of 10 Telus employees were picketed.

All of the picketing involved a group of picketers wearing signs and walking on the sidewalk in front of the employee’s homes. The signs read “TWU locked out” and “Telus scab lives here.”

The duration of the picketing varied from about 15 minutes to two hours. One of the instances included picketers chanting “scab” and another involved shouting by the picketers for about 15 minutes.

The picketers also yelled profanities and said things like: “You’re stealing my job.” Some of the picketing started very early in the morning — in one case at 5:20 a.m.

In four of the incidents, picketers wrote words like scab, shame and “Telus scab lives here” on the sidewalk and the road in front of the employees’ homes. In three incidents, picketers planted signs on the lawn, which they took with them when they left.

Why secondary picketing is legal

Justice Hughes of the Alberta Court of Queen’s Bench said the Supreme Court of Canada had the opportunity to ban secondary picketing in 2002 when it handed down its decision in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.

In considering the legality of secondary picketing, the Supreme Court examined three possible options: an absolute ban; a ban except for “allied” enterprises; and allowing it unless the secondary picketing involves tortious or criminal conduct.

The high court’s basic reasoning in choosing the latter was simple: In keeping with the spirit of the Canadian Charter or Rights and Freedoms free expression is protected unless its curtailment is justified. Therefore, secondary picketing is legal and will only be curtailed or prohibited where doing so is justified in the interest of protecting third parties.

“The circumstances and issues in Pepsi-Cola provided the Supreme Court with a clear opportunity to state unequivocally that residential picketing is illegal,” said Justice Hughes. “It rejected that approach and instead found that the conduct must be otherwise unlawful in order to (justify) an injunction.”

Some picketing crossed the line

Justice Hughes did differentiate between picketing an employer or a secondary place of business and picketing a private residence. Telus said the residential character of the neighbourhoods lowered the threshold of acceptable interference, and the court agreed.

Following the Supreme Court of Canada’s reasoning in Pepsi-Cola, the Alberta court said it is not the location but rather the nature of the conduct it has to take into account.

“The fact that picketing occurs at a private residence adds a contextual dimension to the analysis of the character of the impugned conduct,” said Justice Hughes. “In other words, conduct that may be considered innocuous if it occurs at the employer’s premises may take on a more offensive character if it occurs at a private residence.”

And while most of the activities by the picketers did not cross the line, the court said some of it was over the top.

“Shouting, swearing, hanging over a fence, horn-honking, staking signs into lawns and picketing at 5:20 a.m. all amount to private nuisance,” said Justice Hughes. “There was also some more serious activities such as egging people’s homes or telephoning their house and speaking to a child.”

For the last two incidents there was no evidence a TWU member was responsible but the court said it was prepared to draw such an inference for the purposes of this case.

The three torts

Telus relied on three torts in its case against the union: intimidation, inducing a breach of contract and interference with economic relations.

Intimidation. For there to be intimidation, three elements have to be present: a threat, an unlawful act and submission to the threat.

The court said there was no intimidation because all employees that experienced picketing at their homes continued to work and therefore they did not submit to any threat.

Breach of contract. For inducing breach of contract, the union would have to know of the contract and intend to procure its breach. It would have to, by direct means, committed an act which is wrongful in itself or by indirect means which are unlawful. And the interference with the contract had to be a necessary consequence of the wrongful act.

Telus didn’t submit any contracts for the employees who were the targets of picketing, and no evidence was led about what the terms of the contracts might be, the court said. While there was an unlawful act — in the form of trespassing at some of the residences by planting signs on the lawn — there was no evidence the performance of a contract had been hindered by the picketing.

“Everyone continued to work,” said Justice Hughes. “It is not enough to say that one employee did not leave for work at their usual time or that another employee came home from work during the day.”

Interference with economic relations. This tort requires that the union intended to injure Telus, that the union interfered with the company’s business by illegal or unlawful means and as a result the company suffered economic loss. The court said the union was guilty of the first part, since the picketing was in some measure directed against Telus. And while there was some trespassing and private nuisance by the picketing, which could be illegal or unlawful, there was no evidence it interfered with the company’s business.

Therefore the court ruled against an injunction banning all secondary picketing of private residences. But it did put some restrictions in place.

Picketing restrictions

While Telus did not prove its case, individual workers who sought an injunction against protests at their homes could very well be successful, the court said. Since that kind of court action would cause the workers, Telus and the union to expend additional resources to litigate the same issues addressed in this case, Justice Hughes decided to lay some ground rules for picketing at private residences:

•residential picketing of the homes of all Telus employees is limited to the hours of 9 a.m. to 4 p.m.;

•there is to be no contact with children of the Telus employees when picketing occurs as stated above;

•picketers must be at least five feet on either side of any entrance or exit to the residence of any Telus employee picketed;

•there will be no excessive noise, shouting or swearing;

•picketing will be limited to no more than four picketers; and

•no trespassing, including no littering.

Any breach of the ground rules would result in “strong repercussions,” the court said. It also noted that the union had conceded its membership should not be trespassing or making excessive noise.

For more information see:

Telus Communications Inc. v. T.W.U., 2005 CarswellAlta 1436, 2005 ABQB 719 (Alta. Q.B.)

What the picketers did to Telus employees

A sampling of evidence filed by Telus outlining the activity of picketers:

•A worker’s wife called from the neighbours saying she was scared of picketers on the street. The picketers wrote in chalk in front of his home: “Telus scab lives here” about five times with arrows pointing to his home. A brochure was left on his son’s car. The worker started work at 7:50 a.m. but he left at 10 a.m. to check on his family and property.

•At 5:20 a.m., one worker observed four picketers outside his home wearing signs. They honked a horn and he heard a car door slam. He left for work at 6:55 a.m. and there were nine more picketers. One picketer was hanging over his fence and looking into his backyard.

But in no cases were there any threats of physical violence or an attempt to block employees, or any family members, from coming or going from their homes.

For the complete list of evidence filed by Telus outlining the activity of the secondary picketers, see Evidence filed by Telus in secondary picketing case.

Related articles

In the March 5, 2003, issue of Canadian Employment Law Today, Henna Mistry took an in-depth look at the Supreme Court's decision that legalized secondary picketing. To view that article, click on the link below.

The charter ‘strikes’ again: The Supreme Court legalizes secondary picketing

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