Northern Exposure

Quebec closing may have ramifications in Saskatchewan – Wal-Mart revisited

by Karen Sargeant

As many of you will know from earlier blog entries, Wal-Mart’s entry into Canada has been rife with union complaints. Beginning in the 1990s when employees at a Windsor, Ontario, store were automatically certified under relatively new certification provisions, employees and unions have filed numerous unfair labor practice complaints. The most recent of these complaints to be dealt with comes out of Saskatchewan.

What’s interesting about the development in Saskatchewan is that it involves a store in another province — Quebec.

In April 2005, Wal-Mart closed a store in Jonquiere, Quebec, and 190 employees lost their jobs. At the time, the union had won certification rights but no collective agreement had been negotiated or imposed. Wal-Mart insisted that the closure of the store was due to lack of business. Several employees complained to the Quebec Labour Relations Board. The Supreme Court of Canada is scheduled to hear the employees’ appeal in January 2009.

At the time of the Quebec closing, the United Food and Commercial Workers (UFCW) had filed applications for certification at two stores in Saskatchewan — Weyburn and North Battleford — and an application for successorship at Wal-Mart’s Moose Jaw store. All of the applications were pending at the time of the Quebec closure.

When the Quebec store closed, the UFCW filed an unfair labor practice complaint against Wal-Mart, claiming that the Quebec closing violated Saskatchewan’s Trade Union Act. The UFCW alleged that the Quebec closing intended to intimidate employees not only in Quebec, but also everywhere attempts were being made to organize, including in Weyburn, North Battleford, and Moose Jaw.

In response, Wal-Mart made a preliminary argument that the Saskatchewan Labour Relations Board had no jurisdiction to hear and determine the unfair labor practice complaint because it is based on the closure of a store outside Saskatchewan. In a surprising decision in October, the Saskatchewan Labour Relations Board said that it does have such jurisdiction.

In deciding that it has jurisdiction to hear the UFCW’s unfair labor practice complaint, the Saskatchewan Labour Relations Board said that “the fact that the actions of Wal-Mart upon which the allegations are based were committed outside the geographic confines of Saskatchewan does not mean that they cannot constitute [a] violation of the restriction on intimidation of its employees in the province. It is not tenable to say that an employer with its head office elsewhere cannot by acts committed at or by that office, intimidate its employees in a different province.”

In making its decision, the Saskatchewan Labour Relations Board drew a distinction between the Quebec closure itself and the potential intimidation of employees in Saskatchewan as a result of the closure. “The closure in Quebec is merely the means by which intimidation was achieved,” the Saskatchewan Labour Relations Board said.

Wal-Mart also argued that it could not be responsible for the acts, statement, and conclusions of others such as newspaper editorials or the UFCW’s statements. In response, the Saskatchewan Labour Relations Board said that it was not the media’s actions in reporting the closure that was the alleged unfair labor practice: “While Wal-Mart certainly does not have control over what the media reports, it is disingenuous for it to intimate that it could not reasonably have known that the closure of [the Quebec store] following closely on unionization would be reported across the country.”

Finally, Wal-mart argued that even if the Saskatchewan Labour Relations Board heard the unfair labor practice complaint, there would be no practical remedy that it could award. Without going into details, the Saskatchewan Labour Relations Board simply said that while it could not order Wal-Mart to reverse the Quebec closure, “there is certainly other relief available that the Board could award.” It did not expand on what that relief could be.

So where does this leave Wal-Mart now? Wal-Mart will now have to argue the case on the merits. Wal-Mart will have to prove to the Saskatchewan Board that the Quebec closure did not have an antiunion motive that might affect its Saskatchewan employees. It would seem they may have to show that the Quebec closure was not done, in whole or in part, to interfere with, restrain, intimidate, threaten, or coerce any of the Saskatchewan employees.

We will keep you posted on the ultimate decision.