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UNION MEMBERS INVOLVED IN A LABOUR DISPUTE WITH THEIR EMPLOYER CAN PEACEFULLY DISTRIBUTE LEAFLETS TO CONSUMERS AT SECONDARY SITES OF THE EMPLOYER

In UFCW, Local 1518, v. K-Mart, a decision of the Supreme Court of Canada released September 9, 1999, the union sought to peacefully engage in leafleting at secondary sites in order to encourage a consumer boycott. The Court held this was acceptable.

The Supreme Court of Canada commented on the importance of freedom of expression to unions and their members. For instance, the Court stated:

• "For employees, freedom of expression becomes not only an important but an essential component of labour relations. It is through free expression that vulnerable workers are able to enlist the support of the public in their quest for better conditions of work."

• "For workers, a form of expression which deals with their working conditions and treatment by their employer is a statement about their working environment. Thus is relates to their well-being and dignity in the workplace."

• "It is obvious that freedom of expression in the labour relations context is fundamentally important and essential for workers. In any labour dispute it is important that the public be aware of the issues."

In upholding the union’s right to engage in consumer leafleting, the Court distinguished leafleting from conventional picketing. The Court suggested that it may be reasonable to place restrictions on secondary picketing, given the "coercive component" ordinarily associated with picketing. In contrast, secondary consumer leafleting is acceptable because it is only meant to persuade members of the public through informed and rational disclosure. In the court’s view, this is the very essence of freedom of expression.

The Court noted that prohibitions on consumer leafleting would unduly shift the power balance in a labour dispute to employers, who are more likely to have the resources to purchase space in newspapers or billboards or purchase time for radio or television announcements.

The Supreme Court of Canada has now confirmed the right to consumer leafleting. However, the leafleting must be done carefully if it is to be legal. Guidelines follow:

What are acceptable secondary sites?

• Examples of acceptable secondary sites include other stores operated by the employer, other divisions operated by the employer, or other businesses that sell or distribute products made by the employer.

How must the leafleting be conducted?

• Leaflets can be handed out by a small number of people standing near the entrance to the secondary site.

• Leafleting must not involve a large number of people so as to create an atmosphere of intimidation.

• Leafleters must not block the entrance and must not impede consumers or suppliers from entering or leaving the premises.

• Leafleters must not prevent employees of the secondary sites from entering or leaving the premises.

• Leafleting must be done peacefully. There must be no physical or verbal intimidation or violence.

• Leafleters must not carry placards.

What can be said in the leaflets?

• Leaflets can accurately set out information such as:

• The nature of the union’s dispute with the primary employer;

• The union’s position in the labour dispute;

• The nature of the terms and conditions at the primary employer;

• The nature of alleged unfair labour practices conducted by the employer.

• Leaflets can ask consumers to boycott the employer and shop elsewhere.

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