Distributing leaflets to people and picketing are longstanding forms of employee expression, commonly to protest or draw attention to employment disputes. Primary picketing is attending at a place of business or employment with an object of persuasion, usually to dissuade others from entering or doing business at that place. Secondary picketing is doing the same at a different location or business – such as at a supplier, subsidiary, head office, retail outlet or customer location – in order to bring pressure on the employer.
Usually picketing involves the physical presence of employees, some of them near the entrance to the targeted premises. They communicate or display information relating to the labour dispute, all for the apparent purpose of attempting to persuade others not to support the employer.
All three involve freedom of expression as an essential component of labour relations enabling workers to enlist public support in their pursuit of better work conditions. In this article, we look at how the law regulates leafleting and primary and secondary picketing.
History of Picketing Law
Judges have determined whether picketing was lawful based on physical and perceptual criteria. The picketing had to be lawfully conducted and the objective had to be to persuade someone in a position to give support.
It follows that secondary picketing was illegal because it failed the second element. In Hersees v. Goldstein  2 O.R. 81 (C.A.), the labour dispute was between Deacon Brothers Sportswear and the union. Hersees was a third-party retailer that sold clothing manufactured by Deacon Brothers. The union insisted Hersees cancel its clothing orders from Deacon Brothers or it would be picketed. When Hersees refused, the union picketed it. The judge denounced this attempt to “induce breach of contract,” saying:
… the right, if there be such a right, of the respondents to engage in secondary picketing … must give way to appellant’s right to trade; the former … is exercised for the benefit of a particular class only while the latter is a right far more fundamental and of far greater importance … as one which in its exercise affects and is for the benefit of the community at large. If the law is to serve its purpose … the interests of the community at large must be held to transcend those of the individual or a particular group of individuals.
As recently as 1986, the Supreme Court of Canada said in Dolphin Delivery Ltd. 1986 CanLII 5 (SCC):
“It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, a legislative weapon to be employed in a labour dispute by the employees against their employer, it should not be permitted to harm others.”
The Kmart Decision  2 SCR 1083 http://canlii.ca/t/1fqn5
This case approved secondary picketing if it constituted mere leafleting. In 1992, eleven Kmart stores operated in British Columbia. The employees at two stores were represented by a union, which was not certified at the other nine store locations. A lockout was ongoing at the two stores, the primary employer, during the busy Christmas season. Union members went to the other stores which were not part of the labour dispute, the secondary sites, and distributed leaflets.
Groups of up to twelve employees stood mostly within eight feet from the store entrances. They handed out different leaflets to prospective Kmart customers describing their employer’s alleged unfair practices and urging customers to boycott these stores.
The Supreme Court of Canada concluded that B.C.’s legislation prohibiting leafleting to customers at secondary sites inexcusably violated the freedom of expression in the Charter of Rights and struck down these prohibitions (at p. 631):
“Consumer leafleting is very different from the picket line. It seeks to persuade members of the public to take a certain course of action. It does so through informed and rational discourse which is the very essence of freedom of expression. Leafleting does not trigger the “signal” effect [not to cross] inherent in picket lines and it certainly does not have the same coercive component. It does not in any significantly manner impede access to or egress from premises. Although the enterprise which is the subject of the leaflet may experience some loss of revenue, that may very well result from the public being informed and persuaded by the leaflets not to support the enterprise. Consequently, the leafleting activity if properly conducted is not illegal at common law.”
This characterization and decision could be criticized in several ways. In most labour disputes, leafleting and picketing are indivisible physical and emotional flashpoints of the parties’ conflict. The fine legal distinction between leafleting and picketing, and their purposes and impacts, will be lost on the customer. The greater the impact annoyed employees can make on the employer’s overall business operations, the greater the attention and concessionary favour they can expect to receive. However, on what basis should an outside private dispute wrest control from an owner over its own property?
One might also question the Supreme Court’s over-emphasis on the peacefulness of leafleting and its understatement of the degree to which leafleting impedes access to private property. The Kmart case represented a major reversal of the traditional law against secondary picketing, on freedom of expression grounds.
The Pepsi Decision R.W.D.S.U., Local 558 v. Pepsi-Cola Canada  1 SCR 156 http://canlii.ca/t/51tz
Three years later, in the Pepsi case, the Supreme Court of Canada came full circle and permitted all forms of protest and picketing during a labour dispute. Here the union went on strike against Pepsi-Cola Canada Beverages in Saskatchewan. The union members picketed secondary retail outlets to prevent delivery of the employer’s products and to dissuade store staff from accepting delivery. They picketed a hotel where replacement workers were staying and engaged in intimidating conduct at managers’ homes.
The Court this time concluded that secondary picketing is generally lawful except where it involves tortious or criminal conduct. This “wrongful action approach” strikes the new balance between traditional common law rights and Charter values. The character and effects of the picketing are now more important than the location.
Governments can still regulate labour disputes and set appropriate limits for secondary picketing within the broad parameters of the Charter. For example, the Alberta Labour Relations Code section 84(2) and (3) empowers the Labour Relations Board to “determine whether any premises are the place of employment” as well as “declare what number of persons may [picket], determine the location and time of [picketing] and make any other declarations that the Board considers advisable.”
Remedies for Illegal Picketing
Criminal behaviour on the picket line is handled by local law enforcement. Tortious acts while picketing can be brought to the Labour Relations Board, typically in the form of cease and desist applications and directives to stop the wrongful picketing behaviour.
In one Alberta example, a dispute arose between the parties and intense picketing ensued. Picketers were targeting trucks entering and leaving the plant. The Board issued a directive prohibiting:
- placing impediments on or near the roadway leading to and from the employer’s premises;
- threatening, striking, hitting, vandalizing, throwing objects at or otherwise interfering with the passage of vehicles, goods and equipment and persons to and from the employer’s premises; and
- engaging in any activities that cause vehicles, goods and equipment, or persons to have to stop when attempting to enter and leave the employer’s premises.
Employers typically request the Board to intervene to stop picketing on private property, verbal and physical harassment of people entering or exiting the business, unduly delaying or obstructing traffic flow in or out of a site, vandalism and other crimes, and intimidating non-striking employees to respect the picket line.
The common law historically deemed secondary picketing illegal until the Pepsi case in 2002 when it was protected as a constitutional right. Criminal and tortious behaviour remain illegal picketing activities. They are dealt with by local law enforcement (criminal) or applications to provincial labour relations boards (tortious). Picketing continues to be an important legal exercise of free expression by employees.