Alberta v UFCW local 401: Picketing is legitimate expression

Posted by on Nov 27, 2013 in Court Decisions, News, Union Rights
The Supreme Court of Canada recognizes the importance of public-oriented education and pressure tactics during a legal strike.

It seems like it has been a long time since we’ve seen a clear statement of law defending union rights. The Supreme Court of Canada (SCC) surprised this month with Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 – a unanimous decision quashing Alberta’s Personal Information Protection Act (PIPA), and unequivocally reaffirming the legitimate expression purpose of picketing during a legal strike.

The decision stems from a long and bitter strike of workers at the Palace Casino in West Edmonton Mall. The Union (UFCW) video-recorded and photographed the picketline, posting images on their website (www.casinoscabs.ca) of people crossing the line. The employer had (as is common) hired a security company to similarly record the picketline, and the UFCW posted signs indicating that if you crossed the line, you could expect that your image might appear on the website.

A number of individuals who found themselves on the scab site made a complaint to the Alberta Information and Privacy Commissioner under PIPA, which limits and governs the collection of personal information by organizations. An adjudicator concluded that the UFCW’s collection of information was for an expressive purpose – to dissuade people from crossing the picketline – but that there was no provision of PIPA authorizing the collection of information for this purpose. The Union took this decision to court, arguing that by preventing them from collecting and using this information from their own legal picketline, PIPA violated their freedom of expression rights under the Canadian Charter of Rights and Freedoms. The case wound its way to Canada’s top court.

The SCC found that for a union, recording their lawful picketline, collecting and disclosing information about those crossing is inherently expressive, and that it serves several legitimate purposes: ensuring the safety of members; deterring people from crossing; persuading the public not to do business with the employer and to support the union; making the public aware of the union’s issues; and educating the public about labour conditions generally.

Since PIPA made this legitimate expression illegal, it did indeed infringe unions’ freedom of expression rights. In Canadian law however, this is not enough to make legislation unconstitutional. The government may demonstrate that their objective in creating the law was important enough that it justifies the infringement of rights (permitted by s.1 of the Charter). The Court concluded (at para 37 of the decision) that the infringement was “disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picketline.” The Alberta government had requested that, if this aspect of PIPA was found to be unconstitutional, the entire statute should be struck down, so that they could start from scratch. That is exactly what the Court did, giving the government one year to craft something constitutional.

As a movement, in recent decades, we have become accustomed to seeing our rights chipped away and our traditional means of applying pressure restricted. Prohibitions on blocking traffic in and out during a strike, limitations to secondary picketing, and the widespread use of replacement workers, all undermine the only real power a union has to leverage in a fundamentally imbalanced dispute. This decision, if nothing else, reiterates a commitment to acknowledge that imbalance, and to protect the economic sanction, public persuasion, and broader educational purposes of the picketline.

According to the SCC, the Canadian government’s commitment to recognize the right of workers to associate and bargain collectively includes the right to “legitimately exert economic sanctions in order to facilitate resolution of the dispute in their favour” (para 34). “Within the labour context,” wrote Justices Abella and Cromwell (at para 35),

picketing represents a particularly crucial form of expression with strong historical roots. Strikes and picketlines have been used by Canadian unions to exert economic pressure and bargain with employers for over a century […] The use of picketlines is an invaluable tool in the economic arsenal of workers in the collective bargaining process.

Of course, the SCC fails to mention that the “historical roots” of picketing lie not in expression, but in literal physical blockade – arguably a more effective tool that we no longer have in any legally-sanctioned arsenal. But the importance of economic sanctions and the legitimacy of taking the struggle into the public realm have been unequivocally recognized in this ruling. Drawing on the Pepsi-Cola decision, which legalized otherwise lawful secondary picketing, the Court exceeded my expectations by recognizing the public importance of picketing: “the free flow of expression by unions and their members during a labour dispute plays an important role in bringing issues relating to labour conditions into the public arena for discussion and debate” (at para 33). While this is likely to confound conservatives, (who have no understanding of, or appreciation for, the importance of picketlines,) it’s a foundational principle for unionists.

“The effectiveness of picketlines”, wrote Justices Abella and Cromwell, “is dependent on the ability of the union to try to convince the public not to cross the picketline and do business with the employer” (at para 36). Again, this is Unionism 101, but completely foreign to contemporary neo-liberal thinking, which imagines all labour disputes as private contract negotiations between equal corporate entities. Despite its technical framing as a dispute between privacy and expression interests, this decision is a blow to employers whose interests lie in hampering the union’s ability to effectively dissuade people doing business with the employer.

In the present economic and political epoch, unions face a tremendous challenge just in continuing to exist. The increasing resort to back-to-work legislation, final offer selection binding arbitration, legislated contracts, and the threat of crippling fines have made it almost impossible to apply effective pressure on the employer by legal or illegal means. As a result, we are in a position of reliance on new, creative, “outside the box” tactics. Inasmuch as we are interested in legal legitimacy, the decision in Alberta v UFCW gives us a new basis for arguing the legality of public-oriented campaigns – for both economic pressure and broader educational purposes.