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Wal-Mart saga: Union appeals ruling

Ongoing legal issues between the United Food and Commercial Workers (UFCW) Local 1400 and the Wal-Mart Canada store in Weyburn will appear at the Queen Bench's court on Thursday, Aug. 11.

Ongoing legal issues between the United Food and Commercial Workers (UFCW) Local 1400 and the Wal-Mart Canada store in Weyburn will appear at the Queen Bench's court on Thursday, Aug. 11.

The Queen's Bench will review a decision released by the Saskatchewan Labour Relations Board on June 23, that had dismissed several unfair labour practices claimed by the union, and determined that the ballot box of decertification votes taken by the board in December, 2010 should be unsealed and counted.

Since the UFCW appealed the Labour Board's decision, the ballot box will remain sealed until the Saskatchewan Queen's Bench makes its judgment.

"We are disappointed that there is another delay in the count of the decertification ballots," said Andrew Pelletier, director of corporate affairs for Wal-Mart Canada. "These votes are the voices of the associates, and we are hopeful that they will be counted after Aug. 11."

Unfair labour practices alleged by the UFCW included that communications were posted by Wal-Mart in the workplace in 2004 that represented a violation of the Trade Union Act, that a store was closed in Quebec to intimidate employees in Saskatchewan from supporting the union, that communications posted by Wal-Mart in the workplace were intended to intimidate employees, that Wal-Mart failed to comply with the union security obligations by not providing union membership application forms to new employees, and that the rescission application was encouraged and assisted by communication from Wal-Mart.

All these issues were consolidated for hearing by the Board in December, 2010. They heard evidence on the applications in Regina on March 23 to 25.

The Board ruled that "in our opinion, the 2004 communications posted by the employer in the workplace do not give rise to a violation of the Act. These communications are too old for the board to reasonably conclude that they could have any significant residual impact in terms of influencing the current employees in the workplace."

"We were not satisfied that there was a real and substantial connection between the events occurring in Quebec and the alleged violation of the Act in this province," noted the ruling by the Labour Board. "The allegation is now too old to form the basis of a violation under the Act, and the impugned conduct of the employer occurred outside of Saskatchewan."

The UFCW has been working since 2004 to represent employees at the Weyburn Wal-Mart. They claimed a certification order by the Labour Board in December, 2009, that was vacated by the Saskatchewan Court of Queen's Bench in June 2009, and restored by the Saskatchewan Court of Appeal in October, 2010. That same month the UFCW filed an application seeking assistance to the Labour Board toward the conclusion of a first collective agreement, and an agent was appointed to meet with both parties.

A rescission application was filed with the board also in October, 2010, but it came two weeks after the union had filed its assistance application. The Labour Board directed a pre-hearing vote in December, 2010 to capture the wishes of the affected employees, and directed that the ballot box be sealed until the issues in dispute between the parties were resolved.

Gordon Button, employee of Weyburn Wal-Mart, testified at the hearing, as the named applicant on the recession application. He testified that he was not present when the union commenced its organizing drive in 2004, nor did he have any direct knowledge with respect to the union's certification application before the board at that time.

Button testified that other employees complained that the union had harassed them and misled them during the organizing drive. When asked why he had agreed to bring the rescission application, he stated proudly, "I have a big mouth. I'm not afraid to stand up and talk, (and) I'm not easily intimidated."

The rescission application was received by the Labour Board during the prescribed "open period" in a workplace, where there is no collective agreement in existence.

With respect to the allegation by the UFCW of interference by Wal-Mart to the rescission application, Button denied that he was assisted or intimidated or influenced in any way by the employer. "Simply put, Mr. Button believed that employees in the workplace served a chance to vote (by secret ballot) on whether or not they wanted to be presented by a trade union," as decided by the Labour Board.

"Mr. Button appeared to the board as an assertive, confident and honest individual; a person with strongly-held belief and opinions," stated the Board ruling. "Furthermore, Mr. Button was no stranger to a unionized workplace, having served in various functions with his former trade union. We are satisfied that Mr. Button was a person entitled to bring a rescission application and that he did so for his own independent reasons."

Thus the union's application that the rescission application be dismissed or delayed on the basis of employer interference was dismissed by the Labour Board in their ruling.

The Wal-Mart store in Weyburn remains under certification by UFCW, with parties working with a Labour Board agent on a collective agreement, as it is not tied to the unfair labour practices issue. The agent was appointed in February, and it should be resolved in August.

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