Wal-Marts sophisticated and aggressive strategy to defeat union formation is almost always successful. Human Rights Watch has uncovered only one case since Wal-Marts inception in 1962 in which workers at a US store have organized. On February 17, 2000, meat cutters at the Jacksonville , Texas, Wal-Mart voted seven to three in favor of a union.600 That case illustrates how Wal-Mart responds when it fails to prevent worker organizing and the tactics the company implements to continue to stifle union activity.
Illegal Refusal to Bargain: Jacksonville, Texas
Less than a week after the meat cutters at the Jacksonville, Texas, Wal-Mart organized in February 2000, Wal-Mart began announcing that all Wal-Mart stores serviced by the Temple, Texas, distribution center, including the Jacksonville store, would phase in pre-cut, pre-packaged, case-ready meat and be selling only case-ready meat by August 2000.601 When the switch was completed, the affected stores meat cutting departments would be eliminated and meat cutters would be reclassified as sales associates in the new meat and deli departments. The move would destroy the Jacksonville meat cutters bargaining unit.
Wal-Mart also refused to recognize or negotiate with the meat cutters union, denied them information they had requested for bargaining purposes, and refused to bargain over the decision to switch to case-ready meat or the impact that that switch would have on the meat cutters.602 The union responded by filing unfair labor practice charges against Wal-Mart on behalf of the meat cutters, claiming the company had acted illegally. In addition to the charges addressing Wal-Marts refusal to recognize and bargain with the union, the union also charged that the switch to case-ready meat itself was illegal because it interfered with workers right to organize and deterred Wal-Mart workers across the country from organizing. The union also alleged that Wal-Mart illegally accelerated the switch to target stores where organizing drives were underway.
The NLRB general counsel found merit to the charges, but the NLRB administrative law judge hearing the case only partially agreed. The judge held that Wal-Mart legally closed the meat department and was not obliged to bargain with workers over the decision to close because the company had decided to move to case-ready meat long before union organizing at the Jacksonville store began and did not speed up the move to target stores with union activity.603 The judge found that the company had acted illegally, however, when it failed to recognize and negotiate a contract with the union, share requested information with them, and bargain over the impact of the switch to case-ready meat.604
Both sides appealed. On September 28, 2006, roughly 6.5 years after the Jacksonville meat cutters formed a union and over three years after the NLRB administrative law judges decision in the case, the five-member NLRB ruled on the appeals. The Board narrowed the judges ruling against Wal-Mart. The NLRB held that the company was required to negotiate over the effects of the switch to case-ready meat and provide the union the information it had requested but reversed the ruling that Wal-Mart illegally failed to recognize and bargain a collective agreement with the union.605
The union has appealed to the District of Columbia Circuit Court, and Wal-Mart has filed a motion for reconsideration with the NLRB.606 The litigation continues, and Wal-Mart has yet to negotiate with the union. As the UFCW executive vice president and organizing director observed with frustration, In [Jacksonville] Texas, we did everything right, but we [still] didnt get a contract.607
Illegal Store Closure: Jonquiere, Quebec, Canada
On August 2, 2004, the Quebec Labor Commission certified UFCW Local 503 as the bargaining representative for the workers at the Jonquiere, Quebec, Canada, Wal-Mart store.608 Less than nine months later, the store was closed. The store was not the first nor the last at which Wal-Mart workers in Canada successfully organized, but the closure marked the first and only time that Wal-Mart has shut any of its Canadian stores since entering the country in 1994.609
In October 2004, before collective bargaining had even begun but after union formation, Wal-Mart issued a public statement that [t]he Jonquiere store is not meeting its business plan, and the company is concerned about the economic viability of the store.610 Contract talks nonetheless began roughly two weeks later and lasted for about three months.611 On February 1, 2005, however, the union broke off negotiations and requested binding first-contract arbitration, as permitted by the Quebec Labor Code.612 The Minister of Labor granted the unions request on February 9. That same day, Wal-Mart announced that it would close the Jonquiere store on May 6, 2005.613 The store closed on April 29, 2005, one week early.614
The union described the closing as anti-union interference and intimidation that was certain to have a negative effect on organization campaigns at other [Wal-Mart] establishments.615 Wal-Mart disagreed.616 Vice president of corporate affairs for Wal-Mart Canada Corporation Andrew Pelletier explained, [W]eve been unable to reach an agreement with the union that in our view will allow the store to operate efficiently and profitably. . . . In our view, the union demands failed to appreciate the fragile conditions of the store.617 Pelletier told Human Rights Watch:
Pelletier added, If it were just about shutting the store [to eliminate the union], we could have shut when the union became certified.619 Instead, the company announced store closure only after attempting to convince the union to agree to a contract that would allow the store to be viable.620 Nonetheless, the store closure announcement also came immediately after Wal-Mart learned that the company and the union would be required to submit to binding first-contract arbitration, which could yield a labor contract with terms and conditions running counter to the companys business model.
Jonquiere workers who lost their jobs when the store closed filed seventy-nine complaints against Wal-Mart with the Quebec Labor Relations Commission, arguing that the store closure was illegal because it was done to interfere with the employees right of association.621 The commission began by hearing four of the seventy-nine complaints.622 On September 15, 2005, it upheld three of the four, finding that Wal-Mart failed to show a just and sufficient cause for the dismissal of the workers.623 Explaining the ruling, Pelletier told Human Rights Watch, The Labor Commission ruled that the closure of the store was retaliation against unionization.624 Wal-Mart appealed, but on July 13, 2006, the Quebec Superior Court upheld the Labor Relations Commission decision.625 Wal-Mart appealed again. Pelletier explained, We are appealing . . . because we did not close the store in retaliation.626
Many Wal-Mart workers across the United States with whom Human Rights Watch spoke were aware that Wal-Mart closed its Jonquiere store and believed the company did so because the workers had formed a union. This widely shared belief among US workers, regardless of the companys true motivation for the store closure, shows the far-reaching effects of Wal-Marts success in creating an intimidatingly anti-union work environment. And worker interpretations about what happened in Jonquiere in turn have further stymied organizing efforts at US stores.
A Las Vegas, Nevada, Sams Club worker commented to Human Rights Watch, Look at what they did in Canada. Just for spite, they could close down the whole store.627 Another Las Vegas Sams Club employee recounted, Every morning [we would] have information meetings. . . . They forced every area to go. . . . Associates would bash the union. [They were] under the impression that [the company would] close the club, and apparently [theyve] done it in Canada. . . . Management would stand back and not get involved and let it happen.628
Similarly, when Human Rights Watch asked an Aiken, South Carolina, Wal-Mart worker why workers at her store did not attempt to organize again after their failed efforts in 2001, she replied, I think because everyone is scared, and with the union going into that store in Canada and it closing, that didnt help either.629 A department manager at the Aiken store added:
Three Wal-Mart workers in Colorado had similar thoughts. One noted, They said the reason the [Jonquiere] store closed was not because of the union but because the store was not showing a profit. . . . We didnt believe them. . . . We thought it closed because of the union.631 Another worker added, They said the store was unprofitable, but I was just thinking, It was Wal-Mart. I doubt it was unprofitable. . . . The associates thought it was because of the union.632 A third worker noted, In our anti-union meetings only for TLE, someone, an associate, asked what happened to the store in Quebec. The response was that the store was not profitable. . . . We suspect [it was] because of the union.633
600 Decision and Order, Wal-Mart Stores, Inc., and UFCW Local 455 and Wal-Mart Stores, Inc., and UFCW Local 540 , NLRB Div. of Judges, Case Nos. 16-CA-20391, 16-CA-20603, 16-CA-20827, 16-RC-10181 (June 10, 2003).
601 Memorandum from Barry Kearney, NLRB Associate General Counsel, to Curtis Wells, NLRB Regional Director, Cases 16-CA-20298, 16-CA-20321, January 19, 2001, p. 8. The NLRB found that the final decision to switch to case-ready meat in the stores serviced by the Temple, Texas, distribution center was made in January 2000. Ibid.
602 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 16-CA-20391, et al. (June 10, 2003).
603 Ibid. According to the NLRB, Wal-Mart began to consider the switch to case-ready meat as early as 1996, explicitly announced its intention to move in 1997, initiated a pilot program using case-ready meat in five of its Arkansas stores in 1999, and ultimately agreed with Iowa Beef Processors in December 1999 to expand its shift to case-ready meat using several southern distribution centers, including the Temple, Texas center. Memorandum from Kearney, January 19, 2001, pp. 2, 4, 7-8.
604 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 16-CA-20391, et al. (June 10, 2003).
605 Decision and Order, Wal-Mart Stores, Inc., and UFCW Local 455 and Wal-Mart Stores, Inc., and UFCW Local 540,348 NLRB No. 16 (2006).
606 Petition for Review, UFCW Local 540 v. NLRB (D.C. Cir., October 24, 2006); Human Rights Watch telephone interview, Diane Bridge, NLRB, Washington, DC, November 7, 2006.
607 Human Rights Watch telephone interview with Bill McDonough, October 30, 2006.
608 Decision, Sylvie Bourgeois, Johanne Desbiens, Ingrid Ratté, Claudine Beaumont, Jean-François Pedneault v. Wal-Mart Canada Corp., Case Nos. CQ-2002-1178, CQ-2002-1184, CQ-2002-1192, CQ-2002-1201, CQ-2002-1337, Quebec Labor Commission (September 15, 2005), para. 5. The certification was granted after a majority of workers signed union membership cards. Ibid.
609 Human Rights Watch telephone interview with Andrew Pelletier, vice president of corporate affairs, Wal-Mart Canada Corp., Mississauga, Ontario, Canada, November 6, 2006.
610 Wal-Mart Canada Corp., Wal-Mart Canada issues statement regarding union situation in Jonquiere, Quebec, CNW Group, October 13, 2004.
611 Decision, Michel Boutin, Chantal Lafrance, Liliane Boudreault, Johanne Desbiens, Sylvie Lavoie, Gaétan Piourde, Lyne Couturier, Arav Benyounès, Matthieu Allard, UFCW Local 501, UFCW Local 503, UFCW Local 486 v. Wal-Mart Canada, Inc., Case Nos. AM-2000-3489, AM-2000-4281, AM-2000-5260, AM-2000-5656, AM-2000-5657, AQ-2000-3381, Quebec Labor Commission (May 11, 2005), paras. 7, 9; see also, Human Rights Watch telephone interview with Andrew Pelletier, November 6, 2006. Pelletier told Human Rights Watch that Wal-Mart Canada kick-started bargaining by call[ing] the union to the table to begin the process, which he described as a highly unusual situation that he thought would prove our desire to reach an agreement. Human Rights Watch telephone interview with Andrew Pelletier, November 6, 2006.
612 Decision, Michel Boutin, et al., v. Wal-Mart Canada, Inc., Case Nos. AM-2000-3489, et al., Quebec Labor Commission (May 11, 2005), paras. 7, 9.
613 Ibid., paras. 7, 8, 18, 23; Adam Geller, Canadian Wal-Mart Seeking Union to Close, Associated Press, February 9, 2005; Sylvie Bourgeois, et al., v. Wal-Mart Canada Corp., Case Nos. CQ-2002-1178, et al., Quebec Labor Commission (September 15, 2005), paras. 30, 50.
614 Decision, Michel Boutin, et al., v. Wal-Mart Canada, Inc., Case Nos. AM-2000-3489, et al., Quebec Labor Commission (May 11, 2005), para. 23.
615Ibid., para. 33.
616 See, e.g., Wal-Mart Canada Corp., Hoovers Company Profiles, September 28, 2005; Geller, Canadian Wal-Mart Seeking Union to Close, Associated Press; Frederic Tomesco, Wal-Mart surprised by loss in labour ruling: Quebec agency says retailer failed to show it closed Jonquiere store for non-unionization reasons, Montreal Gazette, September 17, 2005; Frederic Tomesco, Wal-Mart fails to show closing wasnt anti-union: Retailer could be compelled to compensate Quebec workers, Ottawa Citizen, September 17, 2005.
617 Geller, Canadian Wal-Mart Seeking Union to Close, Associated Press.
618 Human Rights Watch telephone interview with Andrew Pelletier, November 6, 2006. Pelletier elaborated, In a nutshell, in order for us to accommodate the union demand, we would have had to hire between thirty and fifty new people in that store. [This] was already a store that was very well-staffed and was struggling economically, and we couldnt get the union to budge on those demands. Ibid.
621 Sylvie Bourgeois, et al., v. Wal-Mart Canada Corp., Case Nos. CQ-2002-1178, et al., Quebec Labor Commission (September 15, 2005), para. 32.
622 Ibid., paras. 2-4.
623 The commission ruled that because Wal-Mart remained the lessee of its Jonquiere premises and failed to take any steps to sublet or otherwise reduce the financial burden of the lease, the company was keeping a door open to resume operations. As a result, the commission found that Wal-Mart failed to carry its burden of demonstrating that the closure of the business had the real, true or permanent nature required by applicable jurisprudence to constitute the other just and sufficient cause [for the workers dismissal] provided in article 17 of the [Labor] Code. Ibid., paras. 56-61. Nevertheless, Pelletier told Human Rights Watch that the company has no intention of opening the store again. Human Rights Watch telephone interview with Andrew Pelletier, November 6, 2006.
624 Human Rights Watch telephone interview with Andrew Pelletier, November 10, 2006.
625 Wal-Mart appeals to labour board, court in dispute with union, Canadian Press, October 19, 2005; Wal-Mart Canada Appeals Labor Board Rulings, Womens Wear Daily, October 21, 2005; Wal-Mart Canada Corp., v. Quebec Labor Commission, Case No. 500-17-027848-053, Quebec Superior Court (July 13, 2006); see also, Jan Ravensbergen, Jonquiere store closing dogs Wal-Mart: Retailer weighs appeal of Superior Court ruling backing provincial labour relations board, The Montreal Gazette, July 24, 2006.
626 Human Rights Watch telephone interview with Andrew Pelletier, November 10, 2006.
627 Human Rights Watch interview with Fran Gempler, March 24, 2005.
628 Human Rights Watch interview with Marsha Wardingly, March 23, 2005.
629 Human Rights Watch interview with Pat Quinn, June 13, 2005.
630 Human Rights Watch interview with Liz Boyd, June 15, 2005.
631 Human Rights Watch interview with Christine Stroup, July 18, 2005.
632 Human Rights Watch interview with Steve Stockburger, July 19, 2005.
633 Human Rights Watch interview with Henry Irwin (a pseudonym), Wal-Mart TLE worker speaking on condition of anonymity, Greeley, Colorado, July 19, 2005.