Part 5 Applications - Strikes, Lockouts and Picketing

The purpose of this Information Bulletin is to provide general information and guidance about Part 5 applications.  It is not a legal document and is subject to the provisions of the Labour Relations Code, the Labour Relations Regulation, the Labour Relations Board Rules and the published decisions of the Board.

Part 5 of Code; LRB Rules 27 and 31(2)

Part 5 of the Labour Relations Code governs strikes, lockouts and picketing.  Section 57 prohibits strikes or lockouts during the term of a collective agreement.  Section 67 states that there shall be no picketing, other than that permitted by the Code.  Section 139 of the Code gives the Board exclusive jurisdiction to decide such related questions as: 

·        whether an activity constitutes a strike, lockout or picketing,

 ·        whether a collective agreement is in full force and effect,

 ·        whether a person is bargaining collectively or has bargained collectively in good faith, and

 ·        whether a person is an ally and whether the Board will permit picketing of the ally. 

An application for a declaration that an activity constitutes an unlawful strike, lockout or picketing, and for a cease and desist order against such activity, is often referred to as a "Part 5" application.  The term also includes applications by trade unions under Section 65(4) of the Code to picket alternative locations and "allies" of a struck employer.  The replacement worker provisions of the Code are also contained in Part 5 (see Information Bulletin No. 18). 

Section 65(6) of the Code provides that where two or more employers carry on business at a common site, and one employer is involved in a legal strike or lockout, the Board may make an order restricting picketing.  The picketing shall be restricted in such a manner as to limit its effect to the employer involved in the strike or lockout, or an ally of that employer.  If it is impossible to limit the picketing without prohibiting picketing, the Board may regulate the picketing as it considers appropriate.  The employer involved in the dispute is normally not entitled to bring a common site application.

The Board has exclusive jurisdiction over picketing which arises from a collective bargaining dispute and affects a provincially regulated employer.  The Board does not have jurisdiction to address: 

·        picketing at an undertaking regulated under the Canada Labour Code,

·        picketing that emanates from a labour dispute under federal jurisdiction,

·        conduct that does not constitute picketing such as permissible consumer leafleting,

·        illegal conduct on a picket line,

·        picketing a federal employer as an ally of a provincial employer involved in a strike or lockout.

Consumer Leafletting

Consumer leafletting, where it is conducted peacefully, without placarding, barricading or impeding access, and without coercion, is not picketing.

A person alleging that activity prohibited by Part 5 of the Code is taking place must file an application with the Board, in accordance with Board Rule 27, specifying the sections of the Code breached, as well as the remedy sought.  

The application must include all material facts upon which the applicant relies, as well as the specific orders and declarations the applicant seeks.  It must also include the name of the applicant, the parties alleged to be violating Part 5, any other person who will be affected by the application, and their respective addresses and phone numbers.

In accordance with Board Rule 27, the application must:

 ·     state the date, time and location that the applicant wishes to appear before the Board to apply for the order it seeks, which will normally be at least twenty-four  hours after a copy of the complaint and a copy of Rule 27 have been served upon the respondent and any other interested party,

·        where a hearing is requested within twenty-four hours after service, the urgent circumstances which necessitate an expedited hearing of the application, and the nature of any anticipated or resulting harm.

 Rule 27(5) provides that a respondent may be required by the Board to file a written reply to a Part 5 application.  A respondent is rarely required to do so, however, because of the expedited time frames.

Strike and Lockout Votes

Rule 31(2) requires that applications challenging strike or lockout votes must be made within 5 days of the return of poll being filed, unless otherwise permitted by the Board.

Registry Contact 

Prior to filing, the applicant should phone the Board's Registry at (604) 660-1300 to advise of the application and its nature, and to seek confirmation of a hearing date, time and location.  A Vice-Chair is on duty on weekends and statutory holidays to deal with emergency situations and can be reached at the Board’s cellular phone number: (604) 644-3033.  Parties who anticipate the possibility of such a situation are asked, if at all possible, to contact the Registry in advance, during normal business hours. 

Documents must be served on all respondents at the same time as filing with the Board.  Applicants should confirm with the Registry when the documents have been served.

Attendance at Hearing

If a respondent does not attend the hearing, the applicant must be able to prove that the respondent was served with a copy of the application by affidavit or testimony of the server.  

Upon receipt of the application, Board personnel (e.g., the Registrar, Deputy Registrar or a Special Investigating Officer) will contact the parties by telephone.  If the Board schedules the hearing in accordance with the request in the application, no written notice of the hearing will be provided by the Board.  If the Board schedules the hearing at a time or place other than that requested, the Board will notify the parties by phone and/or in writing.

Informal

In an effort to resolve the dispute, an informal meeting of the parties with an officer of the Board will normally be held.  Such informal hearings are "without prejudice".  The majority of Part 5 applications are resolved through this process, which saves the parties time and money.  It also furthers the Board's objective of encouraging the parties to reach mutually acceptable solutions to their disputes.

Interim Orders 

The Board may issue interim orders to grant relief to a party pending final resolution of an application.  The conditions under which such orders will be issued are outlined in Information Bulletin No. 25 (Procedural Matters).

Hearing

When a solution is not found through the informal process, a Panel of the Board will proceed to hear and adjudicate the application.  If the Panel determines that there has been a violation of Part 5, an order may be issued, with or without reasons.  Again, the need for an expedited decision may determine the procedure which is followed.

Telephone Hearing

In circumstances where the usual procedure may be sufficiently timely, the Board may exercise its discretion  under  Board Rule 17(2) to hold a hearing by telephone conference.  When requesting a hearing by telephone conference, the applicant must establish a case of extreme urgency (e.g., irreparable harm to the applicant or serious injury to the public interest).  The specific procedures for telephone conferences are set out in Fletcher Challenge Canada Limited, BCLRB No. B303/94.

If the Board schedules a hearing by telephone conference, the Registry will prepare a Notice of Hearing which will be sent by facsimile to the applicant and must be served by the applicant along with its application and supporting documents. 

In accordance with Rule 10(1), the Registrar may require that a statutory declaration be filed with the Board prior to the telephone conference, and the panel may also require a statutory declaration to support any facts relied on during the conference call. 

Leading Cases

Fletcher Challenge Canada Limited (Crofton Pulp and Paper Division), BCLRB No. B218/93, 19 CLRBR (2d) 147 (refusal of overtime constituting strike action)

 Canadian Pacific Forest Products Limited (Gold River Pulp Mill),  BCLRB No. B45/94, (refusal of overtime constituting strike action)

 MacMillan Bloedel Limited (Powell River Division), BCLRB No. B80/94 (applicant for cease and desist order required to show union was responsible for picketing activity before union is named in the order)

 British Columbia Distillery Company Limited, BCLRB No. 24/75, [1975] 2 Can LRBR 183 (plant closure deemed unlawful lockout)

 Proform Products Corp., BCLRB No. 210/93, (closure not an unlawful lockout)

Westmin Resources Limited and Seahawk Ventures Ltd., BCLRB No. B41/94 (ally)

 Finlay Forest Industries Inc. and Fletcher Challenge Limited (McKenzie Wood Products Division), BCLRB No. B392/94 (extrication from ally designation)

 The Bay, BCLRB No. B102/95, 26 CLRBR (2d) 161 (application for ally declaration with respect to a federal undertaking)

 British Columbia Institute of Technology, BCLRB No. B62/95 (common site, ally)

 Board of School Trustees of School District No. 47 (Powell River), BCLRB No. B49/94 (right to picket work when transferred to new location)

 The Sovereign General Insurance Company, BCLRB No. B451/94, 25 Can. LRBR (2d) 161 (general law, common site picketing)

 Lynnwood Industrial Estates, BCLRB No. B61/96 (application by struck employer and common site picketing)

 Kmart Canada Limited, (1999), 176 DLR (4^th) 607 (SCC) (judicial review of BCLRB No. B270/94) (permissible consumer leafletting is not picketing)

 Westfair Foods, BCLRB No. B414/2000 (consumer leafletting)

 Fletcher Challenge Canada Limited (Mackenzie Pulp Division), BCLRB No. B303/94 (hearings by telephone conference)

Natural Glacial Waters Inc., BCLRB No. B329/2000 (requirement to bargain collectively before strike vote)

 Coca-Cola Bottling, BCLRB No. B285/2001 (picketing delivery sites; whether striking employees did enough work at site to picket there)

 Superior Poultry Processors, BCLRB No. B274/2000 (Board's discretion to direct longer strike notice for protection of perishable property)

Board decisions since January 1, 2000 are available without charge on the Internet at  www.lrb.bc.ca.

 Board decisions can also be purchased from:

Canada Law Book Inc.
240 Edward St.
Aurora, Ontario    L4G 3S9 

Telephone (toll free) 1-800-263-2037

LRB Staff provide general information and assistance to the public, but they cannot act as your representative or advisor.  For answers to specific concerns related to your situation, you should consult a lawyer or an advisor experienced in labour relations.  For general clarification, call the Board's Information Officer at 660-1300.