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When a political protest turns into a picket line

British Columbia is well known for its active unions, particularly in the public sector. It is in that sector that political protests against government policy have tend to germinate.
 
The right to freedom of expression (which includes the right to engage in political protests) is enshrined in the Charter of Rights and Freedoms but occasionally these so-called political protests take on the characteristics of a picket line. That’s when they can become illegal and, in the unionized context at least, can lead to claims for damages.
 
It is a complex and confusing issue, and B.C.’s Labour Relations Board must periodically wrestle with the dividing line between allowable political protests and illegal picketing.
 
One example relates to the province-wide protest initiated in 2004 by the B.C. Federation of Labour. Hospital Employees’ Union (HEU) members had been ordered back to work pursuant to the provincial government’s Bill 37 (which also imposed a new collective agreement). The HEU’s members defied the legislation for several days.
 
In the intervening period, Federation of Labour declared their “Co-ordinated Job Action Plan”. This plan comprised a series of planned political protests by union members at public and private work locations around the province.
 
One such protest occurred at the Canadian Forest Products Ltd. (Canfor) mill near Prince George. The protest started out in a civil and legal fashion and initially wasn’t regarded as a threat by Canfor’s management. The protesters carried placards bearing slogans such as “Justice Now!”, “BILL 37 NO!” and “STANDING OUR GROUND FOR HEALTH CARE”.
 
Later in the day, however, the protest took on the characteristics of a picket line in that certain HEU representatives utilized it to convince Canfor’s own unionized workers not to cross the line. An entire evening shift of workers refused to enter the mill and the ensuing shutdown cost Canfor a reported $1.4 million.
 
Canfor filed an application with the Board for a declaration that the HEU and its members had engaged in illegal picketing, contrary to the B.C. Labour Relations Code. The decision in that case was released recently by the Labour Relations Board.
 
It is important to understand that the picketing took place after the date on which the HEU members had been ordered back to work pursuant to Bill 37. That meant that any picket line formed by HEU members would be illegal.
 
In a lengthy (81 pages!) decision the Board determined that what had started out as a legal political protest later turned into an illegal picket line. It issued its declaration that certain HEU members picketed Canfor’s mill contrary to the provisions of the Code.
 
It’s the analysis of what distinguishes a political protest from picketing that is important. On that topic generally, the Board referred to the Supreme Court of Canada’s 1999 decision involving KMart Canada Ltd. and the United Food and Commercial Workers. In that case, the Court drew a distinction between leafleting and picketing.
 
The Court indicated that free speech initiatives such as leafleting (to which a political protest using placards is strongly analogous) attempt to rationally persuade consumers to take their business elsewhere. Picketing, on the other hand, uses coercion and a sense of obedience to the picket line to impede access to an enterprise. This coercion or sense of obedience to the picket line is referred to in labour circles as the “signal effect” of picketing.
 
In the Canfor instance, the Board found that displaying placards (bearing political messages) at the Canfor facility was not prohibited under the Code as long as this conduct did not convey the “signal effect” associated with picketing. At least initially, the demonstration at Canfor was a pure political protest with a persuasive purpose and did not impede access to the mill or attempt to convince Canfor’s employees not to report for work.
 
However, certain HEU officials then declared the demonstration had become an “official picket line” and that union members were expected to respect the line. Union representatives intercepted workers arriving for their shift. This resulted in the shutdown of the mill and the reported financial loss suffered by Canfor.
 
The Board found this conduct was sufficient to turn what had been a permissible political protest into an illegal picket line. It stated that, “even though the wording of the signs may not have materially changed, the message conveyed by the group’s presence did”. The demonstration took on the characteristics of the “signal effect” of picketing, eliciting an automatic response (a refusal to cross the line) from Canfor’s unionized workers.
 
Following prior cases, such as the Supreme Court of Canada’s KMart decision, the Board affirmed the rule that political protests are permissible for persuasive purposes. But when the demonstration takes on the characteristics of a picket line, and produces the “signal effect”, a contravention of the law has likely occurred.
 
There can be a very fine line separating a political protest from a picket line. It’s certain this won’t be the last time B.C.’s public sector unions test that line.