{"id":87874,"date":"2023-09-14T12:25:55","date_gmt":"2023-09-14T16:25:55","guid":{"rendered":"https:\/\/brocku.ca\/brock-news\/?p=87874"},"modified":"2024-09-01T09:54:29","modified_gmt":"2024-09-01T13:54:29","slug":"opinion-alison-braley-rattai-and-larry-savage-discuss-how-the-law-regulates-picket-lines","status":"publish","type":"post","link":"https:\/\/brocku.ca\/brock-news\/2023\/09\/opinion-alison-braley-rattai-and-larry-savage-discuss-how-the-law-regulates-picket-lines\/","title":{"rendered":"OPINION: Alison Braley-Rattai and Larry Savage discuss how the law regulates picket lines"},"content":{"rendered":"

This article written by Alison Braley-Rattai, Associate Professor of Labour Studies at Brock University, and Larry Savage, Professor of Labour Studies at Brock University, originally appeared in The Conversation<\/a>. <\/em><\/p>\n

Picket lines are often the most visible feature of a labour dispute. And with the\u00a0recent uptick in strike action across the country\u00a0\u2014 from port workers in British Columbia to grocery chain employees in Toronto \u2014 Canadians have been more likely than usual to encounter one.<\/p>\n

Picket lines are meant to disrupt business as usual, rally support and communicate a message \u2014 all in an effort to increase pressure on employers to reach a negotiated settlement.<\/p>\n

While picketing is a legal expressive activity, how the right to picket squares with property rights and civil rights is not straightforward.<\/p>\n

The common view is that while picketers may carry signs, they may not \u2014 or at least, should not \u2014 prevent others from crossing picket lines. The reality is more complicated.<\/p>\n

Legal context<\/strong><\/p>\n

Picketing is almost exclusively regulated by courts. Historically, courts did\u00a0not look kindly upon picketing\u00a0and police forces were only too eager to enforce injunctions (court orders) or engage in other efforts to dismantle picket lines.<\/p>\n

Today, courts are less keen to use the blunt instrument of an injunction to limit picketing. Intervening too quickly in a labour dispute is now seen as unfairly helping one side, namely employers. This shift in approach was heavily influenced by the connection the Supreme Court of Canada has drawn between picketing and freedom of expression.<\/p>\n

According to the Supreme Court, picketing \u201calways involves expressive action,\u201d which is protected under the guarantee of freedom of expression in the Charter of Rights and Freedoms. As such, the court ruled that picketing may only be limited to prevent \u201cwrongful acts.\u201d<\/p>\n

Courts will consider criminal acts like violence and damage to property as reasons to limit picketing. But wrongful actions also include things like trespassing and nuisance (interfering with others\u2019 lawful right to enter and exit).<\/p>\n

Since the main function of a picket line is to discourage others from crossing, delaying others in order to provide the union an opportunity to convey its message is key.<\/p>\n

So, how do courts find the right balance between the expressive rights of picketers and the property and civil rights of others \u2014 all while ensuring the general safety of everyone involved? Some inconvenience to employers and the public is an essential part of the equation.<\/p>\n

Striking a balance<\/strong><\/p>\n

Because the outcomes of judicial interventions are uncertain, employers and unions can benefit from negotiating non-binding picketing protocols in advance of any dispute.<\/p>\n

Where they exist, protocols govern how picket lines will operate. For example, an employer may allow picketers to come onto private property to avoid creating dangerous traffic or public safety conditions. Or the parties may agree that people attempting to cross a picket line will be delayed a given amount of time, thereby allowing the union to communicate its message.<\/p>\n

In fact, a refusal to even discuss a protocol in advance\u00a0may work against the refusing party\u00a0if a request for an injunction is later filed.<\/p>\n

While the role of local police in labour disputes varies, it is now common for them to formally take a neutral stance and play no more than a mediating role with regard to public safety. While police are expected to keep the peace, they\u00a0are not normally authorized to intervene on behalf of either party\u00a0engaged in the dispute.<\/p>\n

When injunctions are issued, police do intervene to uphold court orders. But workers are generally still permitted to delay traffic, often with the proviso that\u00a0anyone who doesn\u2019t want to hear the union\u2019s message may proceed at will.<\/p>\n

Additionally, in issuing an injunction a judge may set further rules, for example, on the number of picketers or where they are permitted to picket.<\/p>\n

The same balancing principles apply to\u00a0secondary picketing\u00a0(picketing against a third party to increase pressure on the struck employer).<\/p>\n

For example, an\u00a0injunction recently granted against Unifor,\u00a0the union representing striking Metro grocery workers in the Toronto area, restricted picketing workers from blockading the company\u2019s distribution centres.<\/p>\n

Yet the order still permitted picketers some\u00a0leeway to continue stopping vehicles\u00a0for a prescribed amount of time.\u00a0The workers recently ratified a new collective agreement after their month-long strike.<\/p>\n

Emotions can run high<\/strong><\/p>\n

Strikes may be inconvenient for the public. For striking workers, they can be highly emotional affairs. If a strike drags on or becomes particularly heated, negotiated protocols and even injunctions\u00a0may be ignored out of frustration, anger or a sense of urgency.<\/p>\n

Besides the legal questions at play, union members also stress moral arguments for respecting picket lines. A refusal to do so can\u00a0feel like a betrayal, especially when those crossing the line are from within union ranks.<\/p>\n

That\u2019s because crossing a picket line almost inevitably weakens the union\u2019s bargaining position, and, ironically, may help to prolong the dispute by alleviating pressure on the employer to come to a negotiated settlement.<\/p>\n

\u201cNaming and shaming\u201d replacement workers \u2014 known as scabs \u2014 also\u00a0enjoys some constitutional protection.<\/p>\n

In short, the politics of picket lines can be complex, especially for members of the public encountering them for the first time.<\/p>\n

No one wants a strike or lockout; they are stressful and full of uncertainty. While labour stoppages are typically used as a last resort to overcome a bargaining impasse, they can become lightning rods for unions, employers and members of the public.<\/p>\n

Recognizing, however, that competing rights are at play is key to understanding how the law aims to uphold civil and property rights without jeopardizing workers\u2019 freedom of expression.<\/p>\n

\"The<\/p>\n","protected":false},"excerpt":{"rendered":"

Alison Braley-Rattai, Associate Professor of Labour Studies at Brock University, and Larry Savage, Professor of Labour Studies at Brock University, wrote a piece published in The Conversation about the politics of picketing as well as the legal rights of those taking part.<\/p>\n","protected":false},"author":1,"featured_media":87875,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[7,6,38],"tags":[7114,110,522,4358,5512],"_links":{"self":[{"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/posts\/87874"}],"collection":[{"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/comments?post=87874"}],"version-history":[{"count":4,"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/posts\/87874\/revisions"}],"predecessor-version":[{"id":87881,"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/posts\/87874\/revisions\/87881"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/media\/87875"}],"wp:attachment":[{"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/media?parent=87874"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/categories?post=87874"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/brocku.ca\/brock-news\/wp-json\/wp\/v2\/tags?post=87874"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}