Update January 24 - Online Edition, Posted at 3:38 PM EST

Top court allows secondary pickets

Striking workers have the right to peacefully picket secondary locations in order to put pressure on their employer, the Supreme Court of Canada ruled Thursday.

“We can find no persuasive reason to deprive union members of an expressive right at common law that is available to all members of the public,” the court said in a 9-0 ruling.

Trade unionists immediately cheered the ruling as a major breakthrough.

“It is a very dramatic ruling,” said John Baigent, a lawyer who represented the Canadian Labour Congress in the case. “Since 1963, picketing had been illegal under common law.”

Secondary picketing typically targets stores or distributors which carry products made by the company undergoing a labour dispute. The underlying purpose is to persuade these businesses or consumers to cease dealing with the company involved.

Thursday’s ruling involved a bitter strike against a Saskatchewan-based Pepsi-Cola Canada Ltd. plant.

The union at the plant - the Retail, Wholesale and Department Store Union, local 558 - had challenged an injunction preventing it from picketing a local hotel where replacement workers were staying as well as outside the home of some managers.

The ruling immediately affects provinces such as Ontario and Saskatchewan, where no legislative regime governs secondary picketing. The common law prohibitions on secondary picketing in these provinces were overruled.

David Sheriff-Scott, a lawyer for the Canadian Civil Liberties Association, said Thursday that the ruling will be extremely useful in striking down legislation regimes in those provinces - such as B. C. - which do have a statutory framework.

He said the courts are unlikely to allow one form of conduct that is not permitted in another. “This case has totally abolished the concept of secondary picketing,” Mr. Sheriff-Scott said.

The ruling stresses that attempts by the Saskatchewan union local to picket the homes of Pepsi managers or replacement workers were intended to intimidate - and were therefore not acceptable.

However, it also states that in general, secondary picketing does not exist as a subtle form of intimidation intended to signal to workers at secondary locations that they had better support a strike or face unpleasant consequences.

By saying this, the Supreme Court has eliminated “the last shackle of the post-war perception” that the labour movement is an aggressive, belligerent force, Mr. Sheriff-Scott said.

“The perception by some people that this decision will produce an avalanche of activity is fatuous,” he added. “Give the people in the labour movement some credit. They are not going to do things to alienate the public.”

Supreme Court rules 9-0 to allow secondary pickets

Kirk Makin
Justice Reporter

Friday, January 25, 2002 – Print Edition, Page A8

Striking workers have the right to peacefully picket secondary locations in order to put pressure on their employers, the Supreme Court of Canada ruled yesterday.

The court said a 40-year-old prohibition on secondary picketing was so rigidly pro-business that it was badly out of step with the constitutional guarantee of free expression.

“We can find no persuasive reason to deprive union members of an expressive right at common law that is available to all members of the public,” it said.

“In our opinion, a blanket prohibition is too blunt a tool with which to handle such a vital freedom.”

In its 9-0 judgment, the court lavishly praised the “free flow of ideas” that takes place when unions and their members can debate labour conditions in the public realm. Free speech in the labour world is fundamental not only to workers, it said, but to a democratic society.

“Picketing, however defined, always involves expressive action,” wrote Chief Justice Beverley McLachlin and Mr. Justice Louis LeBel.

“As such, it engages one of the highest constitutional values: freedom of expression.”

The ruling immediately affects picketing in provinces such as Ontario and Saskatchewan, which have no legislative regime to govern secondary picketing and have relied on common-law rulings made by the courts.

Trade unionists cheered the ruling yesterday as a major breakthrough.

“It is a very dramatic ruling,” said John Baigent, a lawyer who represented the Canadian Labour Congress in the case. “Since 1963, picketing had been illegal under common law.”

David Sheriff-Scott, a lawyer for the Canadian Civil Liberties Association, said the court eliminated “the last shackle of a postwar perception,” namely, that strikers are an inherently belligerent force which is bent on intimidating others.

“The perception by some people that this decision will now produce an avalanche of picketing activity is fatuous,” Mr. Sheriff-Scott added. “Give the people in the labour movement some credit. They are not going to do anything to alienate the public.”

Yesterday’s ruling involved a bitter, violent strike and lockout pitting Pepsi-Cola Canada Ltd. plants in Saskatchewan against members of the Retail, Wholesale and Department Store Union, local 558.

Secondary picketing typically targets stores or distributors in the hope of persuading them and their customers to cease dealing with the company involved in the labour dispute.

As part of its job action, the union at Pepsi had picketed retail outlets and placarded a local hotel where replacement workers stayed. They also paraded outside the home of some managers, yelling insults and uttering threats.

It took pains to emphasize that injunctions against secondary picketing may be justified in some situations, especially where the prospect of illegal conduct is high.

The ruling stresses that since attempts by the Saskatchewan union local to picket the homes of Pepsi managers or replacement workers were intended to intimidate, they were not acceptable.