Here’s the second installment of “Real Life Pleadings”. It involves the famous walmart-canada case in Windsor, which led to the first certified Walmart store in the world. If you recall, the OLRB certified the union even though the union lost the ballot because the employer had made threats and inferred that the store could close if the union was certified. As the union argued, Walmart planted the seed that the store would close, and then refused to deny this possibility when continually asked about it by employees. As a result, the OLRB found it was no longer possible to test the employee wishes through a vote.
The Mike Harris Conservative government thought it was ridiculous that the OLRB could certify a union when the union had not won a vote. The fact that the employer had destroyed the possibility of a fair vote by breaking the law was beside the point. So it passed the “Wal-Mart Bill” (Bill 31), which removed the power of the OLRB to order ‘remedial certification’ when employers interfere with fair votes, and limited the board’s power to ordering another vote. This set the scenario for such classics as Baron Metals, where the employer hired thugs to threaten to kill employees if the union won the vote. When the union lost the vote, the OLRB could only order another vote. Remind you of how votes are taken in a certain south African country?
That silly law was repealed by Liberal government, so remedial certification is once again permitted in Ontario (see s. 11 of the OLRA). But the Walmart case remains an important one in Canadian labour history, in terms of its treatment of employer speech rights and as a guide to how labour boards scrutinize employer behavior that can interfere with the free exercise of freedom of association by employees.
Here are the pleadings filed in that case:
- certification-unfair-complaint [The Union’s application for certification and its pleadings in the Unfair Labour Practice (s. 96 complaint)
- employer-response to the application for certification and a copy of the letter the employer sent to employees during the campaign. [Check out questions 1 and 2 and Wal-Mart’s answers]. Unfortunately, I haven’t got the Employer’s response to the s. 96 complaint.
