Here’s the sorted story. In 2004, a majority of Wal-Mart employees in Weyburn, Saskatchewan signed union membership cards indicating they wished to be represented by the United Food and Commercial Union. That should have been the end of it, the union should have been certified,and collective bargaining should have started in 2004. The law at the time was that majority support for the union is established by union cards. However, this is Wal-Mart, which has a long history of not respecting labour laws. So, as it always does, it set out to prevent the employees’ wishes to engage in collective bargaining. It made a huge number of legal arguments–including that the UFCW is a company-dominated union (!)–and successfully delayed implementation of the decision certifying the union for 4 years!
But even then Wal-Mart wasn’t done with the legal delays. It then challenged the Board’s decision on the basis that the decision-maker had been fired by the new anti-union government of the Saskatchewan Party, which was elected in the middle of this process, in 2007. After being elected, the government fired the Chair and Vice-Chair of the Labour Board and replaced them with a friend of the Party with virtually now experience in labour law. The government also changed the law to require a certification vote, rather than union membership cards, as the process for certifying a union. Wal-Mart argued that the law in place in 2008 (mandatory vote) should apply, and not the law in place in 2004 (card-check) when the union actually applied for certification. In other words, Wal-Mart argued it should benefit from its delays by having the union start all over.
Amazingly, the Saskatchewan Queens’ Bench (the lower court) bought this argument, as I described last May. However, last week, the Saskatchewan Court of Appeal quashed that decision. Here is the Court of Appeal decision. And here is the story in the Leader-Post.
The case was pretty interesting, because it turned on whether the change from a card-check to a mandatory vote model for determining majority union support was a merely “procedural” change, or whether the change affected “acquired”, “accrued”, or “accruing” rights. The lower court had ruled the method for determining certification was merely procedural, and that procedural changes take effect immediately upon passage of a new law.
Hearing Wal-Mart argue that the method for determining whether a union should be certified is merely procedural is beautifully ironic considering that Wal-Mart and its anti-union corporate friends in North America have spent millions of dollars lobbying governments to address this very issue, while crying that the future of North American capitalism hangs in the balance.
The Court of Appeal ruled that the shift from card-check to mandatory ballots is not merely procedural. Moreover, even if the move from card-check to ballot could be considered “procedural”, the new model still would not apply here, because the arguments had already be made and completed under the old law. When all that is left if for the decision to be released, the old law governs.
In the result, the union’s certification is now valid, based on the cards signed in 2004. Of course, Wal-Mart will now try and appeal to the Supreme Court of Canada, for the third time since these poor employees asked their employer 6 years ago to bargain with them collectively.
Do you think that the union cards signed in 2004 should still count so as to require Wal-Mart to bargain with the UFCW?
