Amid the countless charges of misconduct flung back and forth between Wal-Mart Canada and the United Food and Commercial Workers Union of Canada, a fresh set of allegations has recently emerged that, if true, show employees received funding and instructions to push back a union drive.
The allegations, filed by the union in an unfair labour practice complaint before the Ontario Labour Relations Board, centre on a 1996-1997 certification drive at a Wal-Mart store in Windsor, which resulted in a remedial certification granted because the board found the company had engaged in unfair labour practices. (Union representation ended within the year amid further lawsuits filed by a number of employees against the union, including allegations that the ratification vote on the collective agreement was fraudulent.)
During that drive by the United Steelworkers of America, the UFCW now alleges, two employees were introduced to an agent, identified only as “Dave,” who funded and instructed them in their campaign against the union.
The union complaint was filed early this month at the Ontario Labour Relations Board, just as a renewed attempt to organize the Windsor store was underway. The attempt failed at the ballot box on March 8 when a secret ballot vote resulted in a majority of store employees saying no to union representation. On the same day the union complaint was filed, Wal-Mart Canada submitted complaints that the union used physical intimidation in this latest union drive. The allegation stems from a parking lot beating of a Wal-Mart worker by a union representative.
None of the allegations have been proven. Hearings have been scheduled for this week at the board regarding both sets of complaints.
“If the allegations made here are correct, that Dave was an agent either hired or paid or instructed by Wal-Mart, then there’s just no question that they would be found as an unfair labour practice — if true,” said Peter Israel, management-side lawyer at Goodman Carr in Toronto.
“It would be interference in the formation or non-formation of a union. It would be so over the top it wouldn’t even be funny, in terms of an unfair labour practice. But proving it may be a different matter.”
Dave, according to the UFCW complaint, was a private investigator allegedly introduced to two anti-union associates by a support manager and a store manager. He allegedly told one worker that he would help the employees get rid of the Steelworkers.
One of the two employees, Marlene Needle, was allegedly told by the support manager that she had been selected as the contact person for employees who were opposed to the union drive. Also, the store manager allegedly told her that she would soon receive a telephone call about organizing against the certification vote. Shortly after, she received a phone call from Dave.
Dave stayed in touch with Needle through telephone calls and faxes, the latter sent through a fax machine that Needle received in the mail the day after she told Dave she didn’t own a fax machine, states the complaint. Dave allegedly provided Needle with “ideas for petitions, copies of petitions, notification of upcoming labour board hearing dates, meetings, notification of union meetings, and instructions as to what actions Needle should take in the anti-union campaign.”
On one occasion, Dave asked Needle to look into the cost of chartering a bus to Toronto to take employees to a demonstration before the labour board. When Needle said her co-workers would not be able to afford it, Dave allegedly told her to watch her mailbox. She received about $900 in cash over a number of occasions, all delivered to her door in white envelopes, the union alleges.
The complaint states that Needle, who recently quit her job at Wal-Mart, was under the impression that the store manager knew of her anti-union activities. When she expressed concern that workers would be disciplined for taking the day off to go picket in Toronto, the store manager allegedly assured her no one would be disciplined, and that they should phone in to say they were taking a day off for “personal reasons.” When she was subpoenaed to appear before the labour relations board in one of the hearings, the store manager asked her to meet with a Wal-Mart lawyer to prepare for her testimony.
The union is alleging that Dave has also been involved in this recent second attempt to certify the Windsor store. According to the union’s complaint, an employee has recently come forward saying she has been contacted by “a man named ‘Dave’ who wanted to help keep any union from organizing the store.”
Andrew Pelletier, spokesperson for Wal-Mart Canada, said the company has no knowledge of and no relationship with this Dave person. Employees who organize to push back certification attempts do so on their own, he added. “When the union has associates rejecting them and publicly criticizing them and saying they don’t want to be represented by them, where does that leave the union? The only option is to convince people and mislead people into thinking that Wal-Mart is somehow behind it.”
Much of the case rests on whether a link can be made between Dave and Wal-Mart, said Israel of Goodman Carr.
“I don’t know what the results would be if Dave was just some guy who hated unions, who had somehow found out about this and just wanted to help out some employees. If he wasn’t an agent of the employer then he hasn’t done anything wrong. If he was, that would obviously be a different story.”
Labour-side lawyer Bernie Fishbein isn’t surprised to see the allegation. “Allegations that an employer will infiltrate and support opponents of unionization are not unusual,” said Fishbein, managing partner of Koskie Minsky. “There are some interesting legal issues in this case as well. The closing of the store in Jonquière is already the subject of complaints in Quebec,” he said, referring to a Quebec store that was certified in August and that Wal-Mart has announced will close next month.
“Can an unfair labour practice committed in another province be the subject of an unfair labour practice in this province because of the chilling effect? That’s a pretty novel concept. And that’s what the union is arguing.”
The Steelworkers achieved certification in Windsor in 1997, when the labour relations board found the company guilty of unfair labour practices based upon complaints not related to this latest allegation. Drawing on remedial power available to it at the time, the board ordered an automatic certification of the store.
Shortly after, the Conservative government striped the board of this power. The current Liberal government has introduced a bill that would restore the remedy to be used in the most extreme circumstances.
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