The United Food and Commercial Workers Union (UFCW) dof Canada won two important victories this past week against the world’s largest retailer.
A Court of Appeal in Weyburn, Saskatchewan has upheld a decision to certify a union at a Wal-Mart in Weyburn. In a unanimous decision the Saskatchewan Court of Appeal upheld the certification of the UFCW Canada Local 1400 bargaining unit at the Weyburn store. After nearly two years of waiting for court action, Wal-Mart has lost its bid to keep the union out of the Weyburn store.
Weyburn is a city with a population of nearly 10,000 people. It is located 46 miles north of the American border at Fortuna, North Dakota. It lies at the juncture of several major highways including the east-west TransCanada and major routes into Canada’s north and Alaska. It is known as “the Opportunity City,” and organized labor has finally won the opportunity it had been fighting for since 2004.
In 2004, the UFCW filed a certification application with the Saskatchewan Labor Relations Board on behalf of the employees at the Weyburn store. At the time, Canada’s The Trade Union Act allowed the Board to make a certification order based “on the strength of documentary evidence of employee support for a union.” In other words, a simple tally of cards checked by workers asking for a union. The Saskatchewan Board decided in favor of certifying the union as the bargaining agent in 2005, but the order was not released until December of 2008. But just over half a year earlier, Canada’s Trade Union Act had been amended to require an employee vote by secret ballot before a certification order could be made.
The amended Trade Union Act requires an employee vote prior to certification in all circumstances. No such vote was required under the old Trade Union Act, at least in relation to a bargaining unit where there was no existing certification order. Wal-Mart argued that the The Board did not take the amendment into consideration when making its decision, and that the Board should order a vote to determine employee support.
The Labor Board had ruled that the employees had “an acquired or accrued right” to rely upon the card evidence of support filed with their application for certification and that this right was not affected by the subsequent change to the legislation.
But Wal-Mart won that round of appeal, and the Labor Board’s ruling was overturned. The UFCW then appealed to the Saskatchewan Court of Appeal. On October 15, 2010, the lower court ruling was voided by the Saskatchewan Court of Appeal. The Appeals judge rejected Wal-Mart’s argument that the amended Trade Union Act should be applied to the Weyburn case. “In this case, the evidence had been presented to the Board and all of the legal arguments had been made by December of 2005,” the judge wrote. “The New Section did not come into force until May of 2008. Accordingly, even if the New Section could be described as being purely procedural in nature, there is no presumption that it applied to the hearing in issue here. Matters before the Board had been wrapped up long before the amendments came into force.”
The Court concluded that the 2008 amendment to the law “should not be read as applying to certification applications filed and argued before the date it came into force.” As a result, the UFCW Local 1400 has been certified as the bargaining agent for the Wal-Mart workers in the Weyburn store.
“This is a victory for workers rights and the principle that no company is above the law,” said Norm Neault, the president of UFCW Canada Local 1400. “Wal-Mart has done everything it could to prevent the workers from getting a collective agreement. It has even prevented us from communicating with the workers at the store. But the time for stalling is over. Let’s get back to the bargaining table and start talking.”
The UFCW says a series of Wal-Mart legal maneuvers has stalled the process until 2008, including a failed bid by Wal-Mart to get the Supreme Court of Canada intervene. “The Supreme Court has said ‘No’ to them. The Court of Appeal has said now said ‘No” to them, and ‘Yes’ to the rights of the Weyburn workers to bargain collectively,” said Neault. “We look forward to the opportunity to get these members an agreement, and hope that Wal-Mart’s history of thwarting the process isn’t repeated again.”
The UFCW also prevailed in a labor battle that was won two days before the Weyburn decision. In another province, Quebec, the Superior Court confirmed an arbitrator’s decision that Wal-Mart had acted illegally when it shut down a store in Jonquiere, Quebec shortly after workers there formed a union.
On October 13th, the Quebec Superior Court determined that Wal-Mart had acted illegally in shutting down its store in Jonquiere, and throwing 190 employees out of work. Wal-Mart shut down the Jonquiere store on April 29, 2005.
On November 28, 2009, Sprawl-Busters reported that the Supreme Court of Canada said that Wal-Mart had the right to shut down their store in Jonquiere. This store was only open for four years before Wal-Mart shut it down shortly after the “associates” voted to unionize. The UFCW Local 503 challenged the closure in court, and the Canadian Supreme Court ruled 6-3 that the retailer had the right to lock up the store.
In their decision, the court said it “endorsed the view that no legislation obliges an employer to remain in business… the closure did not constitute an unfair labor practice aimed at hindering the union or the employees from exercising rights under the labor code.”
After the decision, Wal-Mart told the media that it did not want to shut down the store. “The situation in Jonquiere was an unfortunate situation,” a Wal-Mart spokesman said. “I think most people know that Wal-Mart tried to keep the store open.” The retailer claimed that it closed the store because of lacklusters sales — a charge the union has challenged.
But that was not the final word on Jonquiere. “This is a very good decision that get the Jonquiere workers a lot closer to a just settelement, said a spokesman for UFCW National President Wayne Hanley. “The decision is also a big step forward for all workers in Quebec, because going forward employers will have to explain why they are closing a business — which might make some companies think twice about putting people out of work for reasons that undermine labor rights and hurt working families.”
The Superior Court ruling in the Jonquiere case could still be appealed by Wal-Mart to the Quebec Court of Appeals. If the Appeals Court does not give Wal-Mart a hearing, then Wal-Mart and its former workers will meet with an arbitrator to work out an agreement to compensate the workers who lost their jobs at Jonquiere.
The UFCW in Canada describes itself as the “largest and most progressive private-sector union in Canada. The union has been battling with Wal-Mart Canada for more than a decade.
Progress has been painfully slow, but the UFCW has been able to reach certain milestones. A Wal-Mart store in Gatineau, Quebec now has a union contract, and a second store in Saint-Hyacinthe, Quebec also has a union contract in force. In Saskatchewan, the same province as the Weyburn store, applications are pending before the Labor Board for Wal-Mart stores in Moose Jaw and North Battleford.
The Weyburn decision may have value limited to that store only, because the Appeals court decision says that the requirement for an employee vote, added to The Trade Union Act in 2008, did not govern the determination of the Union’s certification application — but only in cases that occurred before May of 2008.
The amendment to the Trade Union Act in Canada is clearly a step backwards for attempts to organize workers at Wal-Mart stores in Canada, because it now requires a secret vote — a process that Wal-Mart in the United States and Canada has devised many strategies to delay or thwart.
Meanwhile, the American version of a “card check” legislation, the Employee Free Choice Act (EFCA), has been mired by corporate opposition to the bill.
In January of 2010, AFL-CIO President Richard Trumka predicted that the Employee Free Choice Act would pass in the first quarter of 2010. The Republican Party has opposed the “majority sign-up” provision in EFCA, in which 50 percent of workers signing cards is enough to trigger an election for the creation of a union.
In the media, it had been widely reported that EFCA was being held by the White House until after health care reform legislation was passed. The Affordable Care Act is now law, but there is no EFCA on the horizon as we head into mid-term elections.
For more information on these union victories in Canada, email: [email protected] or go to their website at www.ufcw.ca