Important expansions to the law of picketing in BC

The Labour Relations Board just released two decisions on COPE 378's applications for picketing. One was granted and the other was refused, but both represent significant expansions to the law of picketing in BC.

The context for these decisions is the BCAA lockout: BCAA moved the operations of its fleet of tow trucks and service trucks out of the building where the locked-out workers normally work so that those operations would not be affected by the picket line. BCAA has also instructed its fleet drivers to perform some duties normally performed by the locked out dispatchers.

In the first (BCLRB No B143/2015), the Union applied under section 65(4)(a) of the Code to picket at the building where the fleet operations have been moved. Board jurisprudence has held fairly consistently that s 65(4)(a) only permits picketing at places where bargaining unit work has been moved - not where any work that would have been affected by picketing has moved - even though the provision itself doesn't say that.

We argued on behalf of the Union that that restriction was unduly narrow and interfered with workers' Charter-protected right to picket, both as free expression (s 2(b)) and free association (s 2(d)) in a manner inconsistent with section 1 and the Oakes test.

The Board didn't go with us on the Charter argument, but did find that section 65(4)(a) did not have to be interpreted to say that only locations where bargaining unit work was being performed could be picketed. The Board found that it had, and was justified in exercising, discretion to permit picketing as requested by the Union.

In the second (BCLRB No B144/2015), the Union applied again under section 65(4)(a) to picket at the trucks, wherever they may be, again making the argument that restrictions on the Charter-protected activity of picketing must be minimal and proportional, in line with s 1 and the Oakes test.

This time the Board did accept that they had to apply a Charter analysis, but found that the safety concerns raised by some of the potential picketing locations that could be opened up by such an order outweighed the interests of the workers to their freedom of expression and association in picketing. 

Though we were unsuccessful - so far - in getting permission for the Union to picket at the trucks, the fact that the Board is shifting its jurisprudence towards applying the Charter analysis is a very significant development. The Board has historically understood its role as balancing multiple competing interests: the Union, the Employer, third parties. In the wake of our movement's recent victories at the Supreme Court of Canada, that role must shift to accommodate the fact that in a labour dispute, unions and their members have Charter protected rights to free expression and association; employers and third parties do not have Charter-protected rights to freedom from inconvenience or economic harm. Rather than balancing equally weighted interests, the law must maximally protect constitutional rights, within the bounds of section 1 of the Charter.

The decisions aren't posted on the LRB website just yet but as soon as they are we'll link them here. And if you can't wait that long, email us and we'll send you a copy!