The Quebec Superior Court recently upheld an arbitration award against Wal-Mart regarding the closure of its store in the town of Jonquière in 2005. That closure is now also affecting Wal-Mart elsewhere in Canada. The Saskatchewan Court of Appeal recently indicated that Wal-Mart’s actions in Quebec possibly could be perceived as an intimidation tactic against Saskatchewan employees. Here is an update of the cases.
Facts
In February 2005, after the Jonquière workers had voted to become the first unionized Wal-Mart store in North America, the company announced it was closing the store. It did so on April 29, 2005. About 190 employees were laid off.
Those events resulted in the filing of many complaints by the employees’ union. The most famous decision was issued by the Supreme Court of Canada in 2009: Plourde v. Wal-Mart Canada Corporation.
Supreme Court’s ruling: Can an employer close down its store?
Plourde lost because he based his complaint on sections of Quebec’s Labour Code that provide for the remedy of reinstatement. The Supreme Court ruled that Wal-Mart had the right to permanently close its store. Reinstatement thus could not be awarded.
Despite this favorable outcome for Wal-Mart, the Supreme Court’s decision left the door open for complaints based on other parts of Quebec’s Labour Code. The Supreme Court clearly indicated that employees could claim damages or other remedies if they’re able to prove that the store was closed for anti-union reasons. Consequently, even though an employer can’t be forced to remain in business, it may expose itself to adverse financial consequences if its purpose is anti-union. See our December 2009 bulletin about this ruling
Decision made under the normal course of business?
The union also filed a complaint under section 59 of the Labour Code following the Jonquière store closure. That section essentially prohibits an employer from unilaterally changing the conditions of employment once a union has applied for certification until bargaining reaches an impasse.
The union was successful in convincing the arbitrator that Wal-Mart’s laying off of its employees constituted a modification of their conditions of employment. To overcome that, the retailer had to prove that the closure decision was made in the normal course of business. But Wal-Mart chose to not divulge information about the reasons behind the closure. (See our November 2009 bulletin.)
The arbitrator’s decision against Wal-Mart was upheld by Quebec’s Superior Court. It stated that the company failed in its defense because it hadn’t explained the specific reasons behind its store closing.
The parties are now returning to the arbitrator for a ruling regarding the employees’ and union’s remedies.
In a Wal-Mart near you
Meanwhile, the ghost of Jonquière still haunts other landscapes. This time, it’s 1,500 miles away in Saskatchewan.
The union organizing Wal-Mart’s employees in Weyburn, Saskatchewan, filed an unfair labor practice charge against Wal-Mart with that province’s Labour Relations Board. In its application, the union contended that Wal-Mart’s decision to close its store in Jonquière was intended to intimidate employees who were attempting to unionize stores in Saskatchewan. Wal-Mart attempted to have the union’s application summarily dismissed. It argued the Saskatchewan Board doesn’t have jurisdiction to inquire into the company’s conduct in Quebec.
The Board rejected Wal-Mart’s argument. It said the real issue wasn’t the closure of the Jonquière store but the alleged intimidation of employees in Saskatchewan. Actions committed in Quebec could amount to unfair labor practices toward employees in another province. With only the union’s allegations at hand at this stage of the proceedings, the Board concluded that it had jurisdiction to hear the matter.
That ruling was appealed to the Saskatchewan Court of Appeal. The court found that it was premature for it to intervene at this stage in the Board’s proceedings. Evidence concerning the union’s allegations hadn’t yet been presented. According to the appeal court, Wal-Mart could seek judicial review later, once the final decision is issued. Such a challenge might still include a challenge regarding the Board’s jurisdiction.
Lessons for employers
The Quebec case confirms that employers there can’t be obligated to keep their establishments open. But there can be adverse consequences depending on the reasons for the closure. Quebec courts may now seek to punish employers who close up shop for anti-union reasons.
Furthermore, employers across Canada will want to watch the developments of the Saskatchewan case. How far afield can one look for evidence of an attempt to threaten or intimidate employees who wish to unionize?
The big question that employers will definitely want answered is whether or not actions in another province or territory can constitute intimidation of employees seeking unionization in their home province.
The decision should also be taken a step farther. Walmart should be required to pay 1% above the COLA of Canada per year during the contest , to each employee, for the duration until the judgement. This would stop corporate filth from entering the country to pilfer from its citizens.
The UFCW performed every step in the procedure and would have accepted a union loss, had it happened. Walmart won the first round in Jonquière, the Quebec union town, only to be defeated 3 months later by the very same union. After the first union defeat, the managers stood at the entry of the store and laughed and cursed the union organizers as they left the premises, which was clearly observed by the store employees, which showed their distaste of the incident in 90 days. After Walmarts loss, they closed the store down [Took their toys and went home]. It only demonstrates the class they have.
Unfortunately, Walmart feels there is only one set of rules that apply, and it’s their set. Walmart has been fortunate in the United States begining its reign in right-to-work states, and branching out in short distances, eventually becoming a corporate monster consumed by greed, when they could alter their modus operandi and do so much good for people and towns