UFCW Local in Canada files charges against Wal-Mart

The United Food and Commercial Workers, (UFCW), Local 1518 has filed Unfair Labour
Practice charges against Wal Mart Canada at the BC Labour Relations Board. The charges
arise from an organizing campaign the union has underway at the Wal Mart store in
Quesnel.
"Wal Mart Canada has no more respect for the labour laws of the province than it does
for its employees right to join a trade union," said Local 1518 President Brooke Sundin.
"The labour laws governing a worker's right to belong to a union, as slanted as they are
in favour of the employer, are intended to provide a level playing field for both the
employer and the union. But a level playing field is not good enough for Wal Mart so it
just ignores the law," he said.
"What we are asking the Labour Relations Board to do is to compel Wal Mart to simply
abide by the law, nothing more and nothing less," says Sundin. "The Wal Mart
employees in Quesnel have the right to decide if they want to belong to a union free of
coercion and intimidation from Wal Mart managers. We intend to see that their rights are
upheld."
The Union's organizing campaign in Quesnel is part of a broader province wide effort by
UFCW Local 1518 to organize Wal Mart employees. "We have seen an increase in calls
from Wal Mart employees working in other stores in BC looking for union representation
over the past several months," says Sundin. "Clearly a growing number of Wal Mart
workers are not happy working for Wal Mart in spite of what the American retailing giant
would like its customers to believe", he said.
The Union says the move by Wal Mart employees to unionize is occurring all over North
America and at the company's operations in Europe as well. "The union representing Wal
Mart workers in Germany called for a strike against 95 of the company's stores this past
weekend, and UFCW Locals all across the United States are organizing Wal Mart stores,"
says Sundin.
ST. PAUL - United Food & Commercial Workers Local 789 filed charges against
Walmart Wednesday, alleging the world's largest retailer violated the National
Labor Relations Act by engaging in unfair labor practices at its St. Paul store.

Workers at the Midway store and many other locations in Minnesota and other
states are engaged in a union organizing campaign.

The complaint, filed with the National Labor Relations Board, states that on or
about June 11 and following, employer representatives conducted captive
audience meetings with workers. They claimed they could easily acquire a list of
authorization card signers at any time and that union supporters would not
continue to be employed by Walmart, the complaint says.

On or about June 11 and following, assistant store managers interrogated

employees regarding their union support and whether or not they had signed a
card. Also during that time, store managers from other Wal-Mart locations
interrogated employees regarding their union support and whether or not they
had signed a card, the complaint alleges.

Wal-Mart Wins on Narrow Grounds in Quebec Store Closure Case

By Richard Dunlop
In a 6-3 decision, the Supreme Court of Canada dismissed the appeal of Mr. Plourde who had
filed a complaint under the Quebec Labour Code (“Code”) claiming reinstatement to
employment he claimed he lost due to the unionization of his Wal-Mart workplace.
On April 2, 2004, the United Food and Commercial Workers, Local 503 was certified to
represent the employees at a Wal-Mart store in Jonquiere, Quebec. Mr. Plourde’s complaint
was in response to Wal-Mart’s April 29, 2005 closure of that store. Wal-Mart announced the
closure the same day that the Quebec Minister of Labour and Employment appointed an
arbitrator to resolve the outstanding differences between the parties in collective bargaining.
The majority
The decision’s impact on labour relations outside of Quebec may be limited because the
majority’s dismissal of the appeal is narrowly focused on the interpretation of ss. 15 and 17
of the Code. However, labour legislation in each Atlantic province contains similar
provisions:
15. Where an employer or a person acting for an employer or an employers’ association
dismisses, suspends or transfers an employee, practises discrimination or takes reprisals
against him or imposes any other sanction upon him because the employee exercises a right
arising from this Code, the Commission may
(a) order the employer or a person acting for an employer or an employers’ association to
reinstate such employee in his employment, within eight days of the service of the decision,
with all his rights and privileges, and to pay him as an indemnity the equivalent of the salary
and other benefits of which he was deprived due to dismissal, suspension or transfer.
17. If it is shown to the satisfaction of the Commission that the employee exercised a right
arising from this Code, there is a simple presumption in his favour that the sanction was
imposed on him or the action was taken against him because he exercised such right, and the
burden of proof is upon the employer that he resorted to the sanction or action against the
employee for good and sufficient reason.
The majority defined the issues as to whether the “procedural vehicle” offered by ss. 15 – 17
of the Code is available to employees in circumstances where a workplace no longer exists,
and in particular, whether an employee in such circumstances has the benefit of the s. 17
presumption that the loss of job was a sanction imposed for an unlawful motive. The reason
behind the closure of the workplace is a “more remote question which is not to be determined
on a Section 15 application”.
The “bottom line” from the majority’s perspective is not whether employees have a remedy
against an employer who closes its workplace due to anti-union motives, but whether
employees of a closed workplace can bring their claim within ss.15-17 so as to obtain the
considerable advantage of a statutory presumption that the dismissals were due to the
employees’ exercise of their collective bargaining rights.
By electing to proceed under ss.15 – 17, not ss. 12 – 14, Mr. Plourde was “confronted” with
longstanding Quebec jurisprudence addressing re-instatement issues, including a case which
held that a business closure itself is ‘good and sufficient reason’ to justify the dismissal “even
if the closure is based on socially reprehensible considerations.” In other words, the closure
of a business is a full defence to a s. 15 complaint and employees may not make use of the s.
17 presumption in such circumstances.
The majority, however, made clear that an employer cannot close a workplace without
adverse financial consequences if, pursuant to ss. 12-14, a complainant can prove the
existence of anti-union misconduct on a balance of probabilities:
12. No employer, or person acting for an employer or an association of employers, shall in
any manner seek to dominate, hinder or finance the formation or the activities of any
association of employees, or to participate therein.
...
13. No person shall use intimidation or threats to induce anyone to become, refrain from
becoming or cease to be a member of an association of employees or an employers’
association.

14. No employer nor any person acting for an employer or an employers’ association may
refuse to employ any person because that person exercises a right arising from this Code, or
endeavour by intimidation, discrimination or reprisals, threat of dismissal or other threat, or
by the imposition of a sanction or by any other means, to compel an employee to refrain from
or to cease exercising a right arising from this Code.
This section shall not have the effect of preventing an employer from suspending, dismissing
or transferring an employee for a good and sufficient reason, proof whereof shall devolve
upon the said employer.
Labour legislation in each Atlantic Province contains similar provisions.
Although the majority dismissed the interveners’ references to “labour law and practice
outside Quebec”, it cited with approval Canada Industrial Labour Relations Board decisions
which held that, although there was no legal limitation on the employer’s decision to close its
business, other relief under the Canada Labour Code could be awarded in respect of
associated unfair labour practices.
The majority dismissed claims that the Code’s interpretation should be developed to reflect
“Charter values” because “the entire Code is the embodiment and legislative vehicle to
implement freedom of association in the Quebec workplace.” It also noted:
The Code must be read as a whole. It cannot be correct that the Constitution requires that
every provision, (including s. 17), must be interpreted to favour the union and the employees.
Care must be taken not only to avoid upsetting the balance the legislature has struck in the
Code taken as a whole, but not to hand to one side (labour) a lopsided advantage because
employees bargain through their union (and can thereby invoke freedom of association)
whereas employers, for the most part, bargain individually.
The dissent
In the dissenting Justices’ opinion, the issue is “not whether an employer has a right to close a
business, a proposition no one challenged… nor is it whether an employer can be required to
open a business. It is whether a remedy should exist under ss. 15-17 when the motive for
closing is anti-union”.
Justice Abella, who wrote on behalf of the dissenting Justices, concluded that the s. 17
presumption should be applied to a closure of a business. It struck Justice Abella “as oddly
tautological to conclude that a business closing is a good enough reason for closing a
business.” In her view, the effect of such flawed reasoning is that under the Code, an
employer’s conduct can be scrutinized for anti-union motives in the context of a single
employee being dismissed, but not if all employees are dismissed. Justice Abella noted the
closure of a business “can in fact be the most severe form of reprisal for union activity. To
close a business in order to avoid a union is to dismiss employees because they have engaged
in union activity.”
Justice Abella emphasized the importance of the s. 17 presumption in labour law:
The presumption under s. 17 is one of the most vaunted equity tools in modern labour law
and is, arguably, as conceptually and analytically significant for employees seeking
protection from anti-union conduct as is the presumption of innocence in criminal law.
What this means to you
The decision may have limited effect on labour law in Atlantic Canada due to the majority’s
narrow definition of the issues and dismissal of references to labour law and practice outside
of Quebec. The decision does, however, signal that at least a majority of the Supreme Court
of Canada Justices are willing to interpret labour relations legislation in a more employer
friendly way.
On a practical note, employers should expect that unions will draft unfair labour practice
complaints in a broad manner that, at the very least, captures the Atlantic Provinces’
equivalent of the Code’s ss. 12 – 14 and ss. 15-17 so as to ensure that their members do not
suffer the same fate as Mr. Plourde. The majority suggested that, in this case, a s. 12
complaint was logical and that it would have potentially provided the unions and employees
with a broad remedy.
The Supreme Court made no finding as to whether the closure was in fact motivated by anti-
union reasons or animus.