LCBO employees are in a legal strike position as of June 24th! WineOnline.ca will still be able to fulfil all of your Ontario wine needs even during an LCBO strike, but we wanted to ensure we gave you ample time to stock up on all your favourite imports in case the strike occurs. Order today to ensure that you are not left out in the cold without your favourite wines!
The internet can make for interesting strikes. The goal of a strike would be to put pressure on the employer to resolve the bargaining dispute. However, Ontario law permits employers to continue to operate during a strike. As I understand it, Wine On-Line is an independent company licensed to sell and distribute LCBO products on the internet. I don’t know how the company operates–whether it has a distribution factory or is just a marketing and order-taking operation. Whether it has unionized employees. Do Wine On-Line orders get shipped through LCBO operations/distribution systems that will be affected by the strike, directly from wine producers, or through a Wine On-Line distribution factory? I don’t know. If anyone else does, please post a comment.
Presumably, though, if the LCBO is struck and no LCBO stores are open during the strike, and Wine On-Line continues to receive wine and wine orders, it could get pretty busy for the company this summer. And if the LCBO can keep shipping out huge volumes of wine to its customers during the strike through an internet intermediary, this could weaken the impact of the strike and the consumer backlash that could put pressure on the parties to end the strike. Neither of these possibilities are good news for the potential strikers.
Wine On-Line appears to use Canada Post to deliver its orders. How will the unionized Canada Post workers react to the requirement to deliver the wine. This is something like a “hot cargo” situation, in which we have seen in the past unionized workers refuse to deliver product that undermines striking workers. If Canada Post workers refused to deliver the wine, it would be an illegal strike by them, since any concerted effort to slow productions is treated as a strike. But it wouldn’t be the first time that unionized workers have struck in support of other striking workers.
In any event, if there is a strike, we might see picket lines set up wherever the wine destined for Wine On-Line customers is shipped from. Now, imagine that the LCBO employees set up picket lines in front of Wine On-Line’s offices and/or some distribution centre used by Wine On-Line. Would that picket line be lawful? In Pepsi-Cola Canada, the Supreme Court of Canada ruled that labour picketing is lawful, wherever it takes place, unless the manner in which it is conducted is otherwise unlawful (tortuous, criminal). So the striking Pepsi workers were permitted to picket retail stores selling Pepsi products.
One answer not directly addressed in Pepsi was the effect of statutory language like section 83 of the Ontario Labour Relations Act, which says any act that could cause someone to engage in an illegal strike is unlawful. That language has been interpreted to include picketing, since it could cause someone not to pass the picket line and report to work–like a Wine On-Line employee, for example. However, section 83(2) creates an exception when the picketing is “in connection with a lawful strike“. Historically, the labour board did not include ‘secondary picketing’ in this exception, except when the target was an “ally” of the struck employer. It’s possible–though not obvious–that Wine On-Line could be found to be an ‘ally’ of the LCBO in a strike, if it enables the LCBO to continue to serve its customers by means of internet orders. But it is also unclear whether the ban on secondary picketing which is the effect of section 83 is still lawful after Pepsi, since it does appear to place significant emphasis on the location and target of the picketing, rather than the manner of the picketing. Were Wine On-Line to become a busy service during an LCBO strike, it is possible some of these issues could arise.
If any of you labour lawyers or LCBO staff have any insights into these issues, please share them by leaving a comment.