Provincial union employees must cross federal picket lines or risk the consequences

Authors: Graham Christie, Catrina Thompson

A group of provincially regulated unions’ refusal to cross a picket line of federally regulated workers constituted an illegal strike, according to a recent decision from the British Columbia Labour Relations Board (the “Board”).

This case involved unionized employees of Vancouver Shipyards Co. Ltd. (“Shipyards”), a provincially regulated shipbuilding operation, represented by several different unions (the “Poly-Party Unions”). The Poly-Party Unions members refused to cross a picket line at the entrance to Shipyards organized by members of the federally regulated Canadian Merchant Service Guild (the “Guild”).

Shipyards asserted that the Poly-Party Unions and their members engaged in an illegal strike by refusing to work. The Poly-Party Unions relied on the exception in the definition of “strike” in Section 1 of the Labour Relations Code, RSBC 1996, c-244 (the “Code”), where concerted refusal to work “occurs as a direct result of and for no other reason than picketing that is permitted under this Code.”

The original decision by the Board on this matter hinged on the interpretation of the phrase “picketing that is permitted under this Code” (the “Phrase”). The Board found the Phrase to be  ambiguous, requiring it to defer to Charter values in aid of its interpretation. As honouring a picket line has been found to be a Charter-protected activity, the Board decided in favour of the Poly-Party Unions.

Reinterpreting the Code

Shipyards applied for leave for reconsideration of the Board’s original decision. During this, two interpretations of the Phrase were presented to the Board: (1) the Phrase refers to picketing that meets the Code’s prerequisites; or (2) the Phrase refers to picketing that is not expressly prohibited under the Code.

The Board noted that both interpretations “give rise to significant labour relations policy concerns.” Specifically, if the Board were to adopt the Poly-Party Unions definition and treat all picketing not expressly prohibited by the Code as permissible, it would be “powerless” to regulate work stoppages arising from provincially regulated employees honouring picket lines that are not regulated by the Code.

In contrast, the Board noted that accepting the Shipyards interpretation that picketing only includes strikes that meet the pre-requisites of the Code “may upset the longstanding and widely held understanding in the labour relations community in British Columbia that honouring a picket line does not, in an of itself, constitute a strike.”

Although the Board mentioned the right to honour picket lines is fundamental to a trade union under the Code, the Board’s ultimate task was interpretive and not legislative. The Board then dove into its interpretive analysis.

The Phrase appears in Sections 1 and 66 of the Code. The Board accepted that Section 66 is intended to apply specifically to conduct regulated by the Code. In both instances, the Phrase includes the term “permitted,” which the Board interpreted in its literal sense. The Board was therefore persuaded that the Phrase was unambiguous, making Shipyard’s interpretation correct.

The Shipyards application for reconsideration was allowed and the original decision was cancelled. Flowing from this, the Poly-Party Unions members’ refusal to cross the Guild’s picket lines ultimately constituted an illegal strike.

This decision has implications for any provincially regulated union members in British Columbia who are confronted with a picket line of federally regulated workers. A refusal to cross the picket line could amount to an illegal strike. The lawyers in the MLT Aikins Labour & Employment group have wide-ranging experience advising unionized and non-unionized employers in B.C. Contact us to learn more about what this decision could mean for your organization.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.