In the recent decision of Vancouver Shipyards Co. Ltd. v Construction, Maintenance and Allied Workers Bargaining Council, Local 506, 2022 BCLRB 146 [VSY v Poly-Party Unions], the Labour Board (the “Board”) reconsidered its previous decision to allow provincially regulated union members to refuse to cross a federally regulated picket line. Harris & Company was successful in overturning that decision on the basis that it was inconsistent with elements of the Labour Relations Code (the “Code”).
Vancouver Shipyards Co. (“VSY”) is a provincially regulated corporation that designs and constructs sea vessels. Its shipyard operations are located on land owned by Seaspan ULC (“Seaspan”), which is a federally regulated corporation that provides marine transportation services. Employees of both companies access their workplaces through a common driveway.
The Canadian Merchant Service Guild (the “Guild”) is the certified bargaining agent for Seaspan and was engaged in a strike during which they set up a picket line by the shared driveway outside VSY and Seaspan.
VSY’s employees are represented by a poly-party council of unions (the “Poly-Party Unions”). During the Guild’s strike, VSY employees who were members of the Poly-Party Unions were refusing to cross the Guild picket line to attend at work. About 900 members of the Poly-Party Unions refused to cross the picket line or report for work at VSY despite the existence of active collective agreements between themselves and VSY.
The Original Decision
VSY applied to the Board under Section 133 of the Code alleging that the Poly-Party Unions were engaged in an illegal strike by having its members refuse to cross the Guild picket line to attend at work. There is an exception in the Code which provides that it is not an illegal strike when employees refuse to work because of “picketing that is permitted under this Code” (the “Phrase”). VSY’s position was that the Phrase referred to picketing that was regulated or expressly allowed by the Code (the British Columbia Labour Relations Code). The picketing at issue was established by Seaspan employees who were federally regulated under the Canada Labour Code. As such, VSY took the position that VSY employees were engaging in an illegal strike by refusing to cross the federal picket line.
In response, the Poly-Party Unions argued that the Phrase had to be read contextually in light of the Board’s approach to uphold the rights of unions to respect legal picket lines. Furthermore, they argued that a broad definition should be adopted in light of Charter values that protect the freedom of association.
The original panel of the Board found that the fundamental issue in dispute was the interpretation of the Phrase. To this end, the Board preferred the Poly-Party Unions’ approach. It determined that the question did not turn on federal or provincial jurisdiction, and instead, held that the Code intended to create an exception to the definition of strike for honouring all picket lines, regardless of whether they were provincially or federally regulated.
Appeal and Reconsideration
VSY applied for reconsideration of the Board’s original decision (the “Original Decision”) under section 141 of the Code on the basis that it was inconsistent with principles expressed or implied in the Code.
Interpretation of “Picketing That is Permitted Under this Code”
VSY argued that the Board in the Original Decision erred in its interpretation of the Phrase. Specifically, VSY argued that there was no ambiguity in the Phrase in that it was clear that the intention of the legislature was to only create an exception in the definition of strike for picketing that was provincially regulated. To find otherwise was a jurisdictional overreach. Furthermore, VSY argued that the Original Decision erred in applying Charter values because the phrase was clear and unambiguous.
The Reconsideration Decision
The Board agreed with VSY’s submissions and overturned the Original Decision. Of note, the Board found that “adopting the interpretation of the Phrase advocated by the Poly-Party Unions would potentially allow mid-contract work stoppages which the Board has no power to restrain or to control” (at para 88). This would lead to situations where the withdrawal of labour would not constitute an unlawful strike when done in support of political protests, boycotts, or labour disputes from other jurisdictions.
Furthermore, the Board found that the history of the Code did not support one interpretation over another. As such, the correct approach was “to determine the meaning of the Phrase by reference to the words chosen by the Legislature, in their grammatical and ordinary sense, when read harmoniously with the scheme and objects of the Code” (at para 108).
In this regard, both VSY’s and the Poly-Party Union’s interpretation were possible in their grammatical sense. However, the Board found that only VSY’s interpretation could be read harmoniously with the scheme and objects of the Code. Specifically, the Code contains various provisions regulating picketing, leading the Board to conclude that “the Employer’s interpretation of the picketing exception – that “permitted” means expressly allowed – fits more harmoniously with these sections” (at para 119).
Since there was no ambiguity in the Phrase when considered harmoniously with the Code, the Board found that it did not need to engage in a Charter values analysis. Thus, VSY’s application for reconsideration was allowed.
VSY v Poly Party Unions confirms that provincially-regulated unionized employees cannot refuse to work in order to respect a picket line unless that picket line is properly regulated by the Code. This is a significant decision for unionized employers who operate in close proximity to other unionized workplaces, and who may be impacted by third-party labour disputes. This decision helpfully clarifies that provincially regulated employers in British Columbia will have a remedy at the Board if its own employees refuse to work by honouring picket lines which are not “permitted under the Code”.