Retail giant claims Saskatchewan's labour law violates company's Charter rights
This summer’s certification of a Wal-Mart Canada store in Jonquière, Que., may have grabbed international attention, but more significant changes may be afoot if the company succeeds in a legal proceeding in Saskatchewan.
The world’s largest employer, already known for breaking new ground in retail practices, is out to change one of the most central tenets in labour relations: the prohibition against employer interference during union drives.
Wal-Mart claims that Saskatchewan’s Trade Union Act violates the company’s right to expression as protected by the Canadian Charter of Rights and Freedoms. The disputed section gives the provincial labour board the power to reject or dismiss any employee application if it is made “in whole or in part on the advice of, or as a result of influence or interference or intimidation by, the employer or employer’s agent.”
The charter challenge is for now on hold as the disputing parties continue with a certification application before the Saskatchewan Labour Relations Board. But Andrew Pelletier, spokesperson for Wal-Mart Canada, said he hopes the challenge “will eventually lead to labour law reform in other jurisdictions in Canada.”
In the company’s view, not being able to answer employee concerns about joining a union goes against the company’s culture of open communication, said Pelletier.
“What typically happens is employees will come to their managers in the store and ask them basic questions. The questions they ask have to do with union dues, with strike action, with seniority rights and how joining a union will impact that.” Not allowing the employer to answer those questions, said Pelletier, “puts our employees in a position where they have to make a decision without an informed choice.”
But the union argues the company has many opportunities to make clear its views that employees have no need for union representation in Wal-Mart.
“Most labour boards recognize that the employer has a captive audience. They are able to communicate to employees every day of the week, every hour,” said Michael Forman, of UFCW Canada.
And even when the company couches its views about unions in terms that a court would find neutral, said Forman, “the psychological impact on the employee is far from neutral.”
Jon Hamovitch, Wal-Mart Canada’s vice-president of human resources from 1995 to 1997, said a “strong preference” that there not be third-party representation is one of the core tenets behind employee-management relations at Wal-Mart.
There’s “a fundamental belief that you’re abdicating your responsibility as a store manager if in fact you need third-party representation,” he said. The other central tenet is an “open door policy” that allows workers to bring any concerns “all the way up to, and including, the CEO” and expect a reasonably prompt answer.
Both tenets, said Hamovitch, are demonstrated “through daily meetings, through ongoing and regular communications to store managers and through store managers, and frankly, through posters on the walls and all kinds of communication vehicles.”
It’s in keeping with this culture of open communication that managers sought to speak with workers during an attempted certification in Windsor, Ont., when Hamovitch was the vice-president of HR.
“The intent was to be helpful and let people know that the organization wanted to resolve their issues and hear from them,” said Hamovitch. When managers spoke to employees about the organizing attempt, “it wasn’t anyone trying to sniff out who was and wasn’t supportive of the union.”
But a couple of labour relations boards in Canada have ruled that Wal-Mart takes employer communication too far during a union drive. The Ontario Labour Relations Board in 1997 examined company practices during that certification attempt in Windsor and found Wal-Mart at fault for interference. Using remedies available at the time, the board ordered an automatic certification.
According to the facts put before the board, when the company heard of the organizing attempt by the United Steelworkers of America, the district manager arrived the next day, attended the morning meeting, and after the meeting circulated throughout the store asking people why they wanted a union.
A couple of days later, an employee asked to speak at a morning meeting and warned her colleagues that a union “will only cause discontentment in our store” and “Wal-Mart will not put up with this.”
When the union filed an application for certification the following week, a group of regional managers arrived at the store and approached employees to see if they had questions about the union drive. They also invited employees to submit anonymous, written questions. The answers to the questions were then made available for employees.
To the first question, “There is an overwhelming concern that if the store unionizes, Wal-Mart will close the store. Is this true?” the company replied: “It would be inappropriate for your company to comment on what it will or will not do if the store is unionized.”
In refusing to answer the question about store closure, the board ruled, “the company was intentionally fuelling employee concerns.”
The board also found fault with the company for allowing an employee to “make a speech containing the subtle threats to job security” and then failing to distance itself from those comments.
Further, the tactic of having “four managers repeatedly engaging employees in a conversation about the union goes beyond mere assistance to employees based on a concern that their questions be answered, and becomes an extremely effective tactic of intimidation or undue influence,” the board also wrote.
“This repeated and persistent personal contact initiated by the employer and not requested by the employees was clearly designed to identify the union supporters” as well as communicate the company’s message.
In a more recent case, Wal-Mart was found to have engaged in unfair labour practices during a union drive in Quesnel, B.C. Part of the reason was the company had allowed employees to distribute anti-union literature at the store.
The B.C. labour relations board also found the company at fault for allowing an employee to make false allegations about the motives and conduct of a former employee who was spearheading the union drive on behalf of the UFCW Local 1518. Those allegations included claims that the union had given David Noble, the organizer, a new car and $100 for every union card signed. An employee also said she found union material in her house and alleged that Noble had broken into her house while she was sleeping, a claim that the RCMP concluded had not occurred.
In allowing such allegations to circulate, the board found, the company had painted the organizer as a person engaged in inappropriate conduct and motivated by a personal grudge. As an organizer’s credibility is important, unfairly discrediting an organizer amounted to interference, the board found.
As a remedy, the board ordered Wal-Mart to allow the union to have a half-hour meeting with every shift on employer time without management’s presence. The board’s decision was to be read out to every shift without commentary by managers or union representatives.
The world’s largest employer, already known for breaking new ground in retail practices, is out to change one of the most central tenets in labour relations: the prohibition against employer interference during union drives.
Wal-Mart claims that Saskatchewan’s Trade Union Act violates the company’s right to expression as protected by the Canadian Charter of Rights and Freedoms. The disputed section gives the provincial labour board the power to reject or dismiss any employee application if it is made “in whole or in part on the advice of, or as a result of influence or interference or intimidation by, the employer or employer’s agent.”
The charter challenge is for now on hold as the disputing parties continue with a certification application before the Saskatchewan Labour Relations Board. But Andrew Pelletier, spokesperson for Wal-Mart Canada, said he hopes the challenge “will eventually lead to labour law reform in other jurisdictions in Canada.”
In the company’s view, not being able to answer employee concerns about joining a union goes against the company’s culture of open communication, said Pelletier.
“What typically happens is employees will come to their managers in the store and ask them basic questions. The questions they ask have to do with union dues, with strike action, with seniority rights and how joining a union will impact that.” Not allowing the employer to answer those questions, said Pelletier, “puts our employees in a position where they have to make a decision without an informed choice.”
But the union argues the company has many opportunities to make clear its views that employees have no need for union representation in Wal-Mart.
“Most labour boards recognize that the employer has a captive audience. They are able to communicate to employees every day of the week, every hour,” said Michael Forman, of UFCW Canada.
And even when the company couches its views about unions in terms that a court would find neutral, said Forman, “the psychological impact on the employee is far from neutral.”
Jon Hamovitch, Wal-Mart Canada’s vice-president of human resources from 1995 to 1997, said a “strong preference” that there not be third-party representation is one of the core tenets behind employee-management relations at Wal-Mart.
There’s “a fundamental belief that you’re abdicating your responsibility as a store manager if in fact you need third-party representation,” he said. The other central tenet is an “open door policy” that allows workers to bring any concerns “all the way up to, and including, the CEO” and expect a reasonably prompt answer.
Both tenets, said Hamovitch, are demonstrated “through daily meetings, through ongoing and regular communications to store managers and through store managers, and frankly, through posters on the walls and all kinds of communication vehicles.”
It’s in keeping with this culture of open communication that managers sought to speak with workers during an attempted certification in Windsor, Ont., when Hamovitch was the vice-president of HR.
“The intent was to be helpful and let people know that the organization wanted to resolve their issues and hear from them,” said Hamovitch. When managers spoke to employees about the organizing attempt, “it wasn’t anyone trying to sniff out who was and wasn’t supportive of the union.”
But a couple of labour relations boards in Canada have ruled that Wal-Mart takes employer communication too far during a union drive. The Ontario Labour Relations Board in 1997 examined company practices during that certification attempt in Windsor and found Wal-Mart at fault for interference. Using remedies available at the time, the board ordered an automatic certification.
According to the facts put before the board, when the company heard of the organizing attempt by the United Steelworkers of America, the district manager arrived the next day, attended the morning meeting, and after the meeting circulated throughout the store asking people why they wanted a union.
A couple of days later, an employee asked to speak at a morning meeting and warned her colleagues that a union “will only cause discontentment in our store” and “Wal-Mart will not put up with this.”
When the union filed an application for certification the following week, a group of regional managers arrived at the store and approached employees to see if they had questions about the union drive. They also invited employees to submit anonymous, written questions. The answers to the questions were then made available for employees.
To the first question, “There is an overwhelming concern that if the store unionizes, Wal-Mart will close the store. Is this true?” the company replied: “It would be inappropriate for your company to comment on what it will or will not do if the store is unionized.”
In refusing to answer the question about store closure, the board ruled, “the company was intentionally fuelling employee concerns.”
The board also found fault with the company for allowing an employee to “make a speech containing the subtle threats to job security” and then failing to distance itself from those comments.
Further, the tactic of having “four managers repeatedly engaging employees in a conversation about the union goes beyond mere assistance to employees based on a concern that their questions be answered, and becomes an extremely effective tactic of intimidation or undue influence,” the board also wrote.
“This repeated and persistent personal contact initiated by the employer and not requested by the employees was clearly designed to identify the union supporters” as well as communicate the company’s message.
In a more recent case, Wal-Mart was found to have engaged in unfair labour practices during a union drive in Quesnel, B.C. Part of the reason was the company had allowed employees to distribute anti-union literature at the store.
The B.C. labour relations board also found the company at fault for allowing an employee to make false allegations about the motives and conduct of a former employee who was spearheading the union drive on behalf of the UFCW Local 1518. Those allegations included claims that the union had given David Noble, the organizer, a new car and $100 for every union card signed. An employee also said she found union material in her house and alleged that Noble had broken into her house while she was sleeping, a claim that the RCMP concluded had not occurred.
In allowing such allegations to circulate, the board found, the company had painted the organizer as a person engaged in inappropriate conduct and motivated by a personal grudge. As an organizer’s credibility is important, unfairly discrediting an organizer amounted to interference, the board found.
As a remedy, the board ordered Wal-Mart to allow the union to have a half-hour meeting with every shift on employer time without management’s presence. The board’s decision was to be read out to every shift without commentary by managers or union representatives.
