On April 29, 2004, the Provincial Government passed “back-to-work” legislation to end a labour dispute between the Hospital Employee Union (HEU) and health care employers. The following day, two HEU employees joined a protest group outside a pulp mill in Prince George. The protest began as an “information picket”, with the protestors wearing placards that criticized the legislation. They later announced, though, that the protest was an “official picket line”. As a result, unionized employees at the mill failed to report for work and the mill shut down.
The mill owner applied to the Labour Relations Board for a declaration that the two employees violated the illegal picketing prohibition in Part 5 of the Labour Relations Code by picketing after the back-to-work legislation was passed. The HEU argued that the conduct was a political protest, which is not prohibited by the Code, rather than picketing.
The Board applied the “signal effect” test to determine whether a protest is “picketing” or a “political protest”. If protestors are careful to ensure that their conduct does not signal others to refuse to cross the line, the conduct is a political protest. If, on the other hand, protestors do send that signal, the conduct is picketing. Applying the “signal effect” test, the Board ruled that the mill protestors were engaging in political protest before the “official picket line” announcement. After that announcement, the Board said, they were picketing in violation of the Code.
This decision complicates analysis of picketing in BC. Prior to this decision, the Board used the “bright line” approach to determine whether activity was picketing under the Code. Now, though, when protestors say that they are engaged in a political protest, the Board may have to apply both the “bright line” test to determine if the conduct is picketing and the “signal effect” test to determine if it is political protest.
Canadian Forest Products Ltd. -and- Hospital Employees’ Union and Dean Broessler and Ennia Cundy -and- The AG of BC -and- The Communication, Energy and Paperworkers Union, Local No. 603, BCLRB No. 312/2006, December 29, 2006 (Saunders)