BCLRB’s Wal-Mart & UFCW Decision Deals with Extensive Employee Use of LabourWatch

John Mortimer
President, Canadian LabourWatch Association

The BC Labour Relations Board recently dealt with a number of unfair labour practice complaints from an organizing campaign in Wal-Mart Canada Corp. v. U.F.C.W. International Union, Local 1518, BCLRB No. B156/2003. Some of the complaints related to the distribution of LabourWatch materials to employees, by a Wal-Mart employee who was opposed to the Union’s organizing efforts.

The decision was written by the same Vice-Chair who wrote the first and only other decision anywhere in Canada dealing with LabourWatch we are aware of.

Although the decision received some media coverage, the media (and UFCW press release) did not focus or comment on the LabourWatch aspect of the decision. This 221 paragraph decision, (43 pages), has 53 paragraphs related directly or indirectly to LabourWatch in the Background and Analysis/ Decision sections. Although the Board found some unfair labour practices, there was no finding that the distribution of the LabourWatch materials themselves by the employee violated the Labour Code.

This decision documents at length an employee’s use of downloaded site materials in an organizing campaign. The materials were:

• FAQ’s – Frequently Asked Questions
• Cancellation of a Union Card, forms and instructions.

The employee also prepared her own 5 FAQ’s and concluding paragraphs which she appended to the LabourWatch materials. She made and distributed a number of copies to other employees. The Store Manager testified that he learned about LabourWatch in his management training and that he told her to not distribute her materials in the workplace.

The UFCW argued that the employee who distributed the LabourWatch and her own materials did so on behalf of Wal-Mart and that the total package was one-sided and anti-union.

The Board did not find the employee to be acting or seen to be acting on behalf of Wal-Mart. It was decided that she distributed the combined materials in the workplace on work time and that Wal-Mart did not stop her and intentionally turned a blind eye to her activities.

The Board also indicated that the combined materials handed out by the employee (the package contained LabourWatch material and her own material) to be anti-union.

When finding the materials were anti-union, the Board sometimes, but did not always, clearly separate the materials downloaded from the LabourWatch website from the employee’s own materials. Therefore, the Board’s finding cannot be interpreted as a finding that the LabourWatch material itself was anti-union.

Ultimately, the Board found that the employer had violated the Code during the organizing campaign on a basis unrelated to the LabourWatch materials. The unlawful employer influence found by the Board was based on the finding that Wal-Mart created and promoted a negative image of the Union organizer in order to divert employee’s focus from the real issues. This is the heart of a long decision about a very involved set of events.

In spite of the Board’s finding of unfair labour practices, the Board did not grant the UFCW’s requested remedial certification, nor did they order the Union requested vote. There were two main reasons why a remedial certification or vote were not ordered by the Board in this case:

• The Union only signed up 30 out of a bargaining unit of 168 and only contacted 65 employees.
• The unlawful employer influence found in the case was not so wrong as to fall in the category of cases that that would result in a remedial certification. No employees were dismissed or threatened with closure of the business.

The Board ordered Wal-Mart to read the 3 paragraph Summary section at employee meetings with the UFCW present. LabourWatch is not mentioned in this Summary. The Board ordered that the UFCW be allowed to meet with employees for 30 minutes of Company paid time, without management present. The Board also ordered that the full text of the Decision be posted and made available to employees.

It is important to note the decision dealt with these events which largely occurred before employer free speech was expanded under BC’s Labour Code. Under the new Code, everyone has greater latitude in expressing their reasonably held opinions.

On our website you can find the Decision, this summary, the 53 paragraphs that specifically mention LabourWatch or are related to the distribution of both the LabourWatch materials and the employee’s own materials.