Defeat in original representation vote and high employee turnover hurt union’s bid for second vote
The Battle of Wal-Mart
The news in labour relations and employment law circles has been full of accounts of Wal-Mart’s battles against unionization of its workforce at various stores across Canada and the United States. In 2004, a union tried to organize the employees at a Windsor store. This began a lengthy battle involving litigation, accusations of unfair labour practices and a fight in a parking lot.
A six-year battle between Wal-Mart and a union over an acrimonious organizing campaign that featured an assault and accusations on both sides of unfair labour practices has been put to bed by the Ontario Labour Relations Board.
The United Food and Commercial Workers of Canada (UFCW) had a history over several years of trying to unionize the workforce of Wal-Mart stores, first in the U.S. and then in Canada. This led to various instances of litigation before labour boards and courts, as Wal-Mart preferred to run its stores without union involvement.
In the 1990s and early 2000s, several Wal-Mart stores in Canada faced unionizing campaigns. During these campaigns, Wal-Mart communicated information about them and the viability of unions at its stores to employees in stores all across Canada.
Union attempted organizing at Windsor store
In 2004, UFCW began an organizing campaign for a Wal-Mart store in Windsor, Ont., after some employees contacted the union and about 50 applied for membership. The company continued to provide communications to employees about the campaigns elsewhere in Canada, including the certification of UFCW for a Wal-Mart in Jonquière, Que., where Wal-Mart questioned whether it was economically viable. On Feb. 9, 2005 — one month before the March 8 representation vote by employees at the Windsor store — the Jonquière store closed.
In February and March 2005, UFCW claimed Wal-Mart management at the Windsor store made various questionable actions during the organizing drive. The union claimed the company supported employees who opposed unionization, disrupted a press conference the day after the certification application was filed and a manager said to an employee “If I hear that word union I am going to bat upside someone’s head.”
The certification application was officially filed on March 1, 2005, and the Ontario Labour Relations Board set the representation vote by employees for March 8. On March 3, a national representative of UFCW and a Wal-Mart employee who opposed unionization got into a fight in the Windsor store’s parking lot. The union representative was arrested and charged and the incident was well-publicized in the media. Wal-Mart then filed an unfair labour practice complaint against UFCW. The same day, UFCW filed an unfair labour practice complaint of its own, claiming Wal-Mart had made anti-union communications to its employees before the certification process began and allowed employees to disrupt the press conference, among other practices that threatened the certification process.
UFCW argued the altercation in the parking lot was “an isolated act of alleged violence” and the representative had been relieved of his duties afterwards, then later resigned. It characterized the incident as a “one off” between two individuals and a matter for the courts, while it had a policy of not condoning, promoting or encouraging violence. It also claimed the closing of the Jonquière store had a “chilling” and intimidating effect on the organizing campaign in Windsor and asked for a second representation vote for Windsor employees.
The representation vote went ahead on March 8 and employees overwhelming voted against the union.
Lengthy legal battle followed vote
In May 2006, the former union representative was convicted of assault. It also came to light that he had another assault conviction in 2003 from another incident arising out of his position with UFCW with another employer. Wal-Mart also learned that he became employed with another local of UFCW after he resigned. Wal-Mart argued UFCW misrepresented these facts in its response to its unfair labour practice complaint when UFCW called it isolated and a “one off.” UFCW had to have known of the previous assault conviction and therefore misled the company and the board when it stated it had a policy of not encouraging violence, said Wal-Mart. As a result, there was no purpose to hearing UFCW’s complaint or ordering a second representation vote when the union was defeated so definitively in the first vote.
A lengthy process of mediation and hearings began, but despite numerous attempts to reach a settlement, the two sides were unable to do so. Finally, on Feb. 8, 2010, the board struck parts of both complaints, narrowing the issues down to the liabilities from the parking lot scuffle for UFCW and Wal-Mart’s communications in relation to organizing at other stores.
The board referred to two cases stemming from the closing of the Jonquière store in which the Supreme Court of Canada ruled Wal-Mart had proved the closing was “a real and definitive business closure” and there was no possibility of reinstatement of the employees who lost their jobs because of the closing. The court could not find the store was closed because of anti-union animus. Without such a finding, the board couldn’t assume Wal-Mart used it to intimidate the Windsor employees.
The board also noted that in the six years since the complaints were filed, about two-thirds of the employees at the Windsor store had changed and were different from when UFCW originally filed the application for certification.
“Leaving aside the UFCW’s assertion that the high turnover is common place in the retail industry, the fact remains that approximately two-thirds of the bargaining unit will be affected by relief that the UFCW seeks with respect to incidents completely unconnected to and long before their employment at the Windsor store,” said the board.
However, the board disagreed with Wal-Mart’s argument that UFCW misrepresented the facts regarding the assault. Given the representative’s previous conviction was one-and-one-half years before the one in the Wal-Mart parking lot and in an unrelated matter, it was possible UFCW’s characterization of the incident as a “one off” was correct. In addition, the UFCW local that hired him after his resignation was a separate entity from the local involved with the Windsor Wal-Mart. In addition, the board found that, regardless of the intention of the assault, it hurt the union because the evidence showed the assault was a main reason why UFCW lost the representation vote.
No purpose in pursuingcomplaints: Board
The board found that since the majority of the bargaining unit had changed since the unionization campaign, UFCW lost the representation vote by a large margin, and the closing of the Jonquière store did not have an improper “chilling” effect on the organizing drive, there was no reason to pursue the unfair labour practice complaints of either UFCW or Wal-Mart and it was time to close the case, particularly since employees at the store had been covered by a statutory freeze on their working terms and conditions since the complaints were filed in 2004. It was unlikely that UFCW would win a second representation vote, said the board.
The board noted Wal-Mart conducted “an aggressive campaign” to make it clear to employees that it wanted to remain union-free. However, there was no coercion or threats that deprived employees of freedom to express their views, including its referral to organizing drives of other stores. It also pointed out there was a lot of media coverage of these situations and Wal-Mart could not be held responsible for what was distributed by the media.
The board dismissed UFCW’s unfair labour practice complaint and, since the representation vote results stood, Wal-Mart’s complaint as well.
For more information see:
•U.F.C.W. v. Wal-Mart Canada Corp., 2011 CarswellOnt 6988 (Ont. Lab. Rel. Bd.).
-------------------------------
Putting things to bed
SOME of the board’s comments in closing the six-year labour dispute between UFCW and Wal-Mart:
•“In the unique circumstances of this case, where the UFCW knowingly sought a representation vote in highly contentious and volatile circumstances, then alleges what it characterizes as serious unfair labour practices, it cannot immunize itself from (or ask the board to ignore) the substantially altered labour relations landscape which, amongst other factors, includes a bargaining unit that is two-thirds different. This is particularly so when the board is assessing the labour relations purpose (and the nature and utility of any remedy that might flow) of commencing litigation, six years later, seeking a second representation vote in that bargaining unit.”
