Retail giant Wal-Mart has again struck out in an attempt to prevent the unionization of one of its Quebec stores, this time failing in its application for judicial review of a decision by the Quebec Labour Relations Commission certifying a union at the store in St-Hyacinthe, east of Montreal.

In an April 6 decision, Quebec Superior Court Judge Nicole Morneau rejected Wal-Mart’s contention that the Commission had failed to consider the evidence when it decided to exclude from the bargaining unit eight employees that the company wanted included. Wal-Mart claimed that the issue was crucial, because if these eight additional employees had been among those eligible to sign union cards, the United Food and Commercial Workers union would have fallen short of the majority needed to obtain bargaining rights.

Commission defines bargaining unit

Wal-Mart had asked the Labour Relations Commission to include in the definition of the bargaining unit all 208 hourly-paid employees, excluding only the store manager, the assistant managers of the store, the night maintenance manager, the personnel manager and anyone automatically excluded by law. In addition to these agreed exclusions, the union also wanted to exclude department managers, office employees, auto repair shop employees, maintenance managers, special services managers, the head customer service manager, and security employees.

In a January 14, 2005 decision, the Commission denied the union many of the exclusions it had proposed, adding four office employees and 20 department managers to the bargaining unit. However, it excluded the seven auto repair shop workers and the head customer service manager. It rejected the employer’s contention that the auto repair workers were indistinguishable from other store employees, and that the head customer service manager was like the five other customer service managers who supervised the cashiers, with no additional management duties beyond coordinating the breaks of the five managers.

With regard to the auto repair shop employees, Commissioner Jacques Vignola found that “there is little mobility between the technicians and the rest of the [employee] group. The automobile technicians can be excluded without difficulty from the requested bargaining unit, without affecting its appropriate nature. They work under different conditions, in a different environment, in a separate location, and their exclusion in no way threatens industrial peace.” As for the head customer service manager, Vignola determined that “the customer service managers consider the head manager their superior, with much more power…[This manager] provides the link between the assistant manager of the store and the cashiers, resolves more complex problems, assigns the cashiers…[and] evaluates their performance.”

In its application for judicial review, Wal-Mart claimed that Vignola disregarded the evidence in coming to these conclusions, and it maintained that the eight excluded employees comprised the margin of difference between acceptance and rejection of the union.

Commission’s decision upheld by court

In dismissing the application for judicial review, Judge Morneau ruled that the Commission’s decision was not patently unreasonable, the standard of review that both parties acknowledged was applicable. Morneau relied heavily on the earlier February 17 decision of Quebec Superior Court Judge Diane Marcelin in Compagnie Wal-Mart du Canada v. Commission des relations du travail, [2006] J.Q. 1472, in which Wal-Mart had likewise applied for judicial review of the Commission’s decision to exclude auto repair shop workers from the bargaining unit at its store in Gatineau. Morneau repeated Judge Marcelin’s quotation from the Supreme Court of Canada’s decision in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, in which the Court held that “[t]he primary criterion is the mutuality of interest of employees in the proposed bargaining unit. This mutuality of interest is to be determined in light of the similarity of duties performed by the employees, the similarity of wages or methods of computing compensation applicable to employees, the similarity of skills and qualifications, the interdependence or interchangeability of functions and the transfer of employees from one employment category to another.”

The judge in the St-Hyacinthe case quoted Marcelin’s finding in the Gatineau case that, while there were some similarities between the circumstances of the auto shop workers and those of other employees in the store, “it remains that there are differences, including the location of work, the nature of the work which is different, and the lack of interchangeability among the repair shop and store employees.” Morneau emphasized Marcelin’s conclusion: “Would I have differently assessed the evidence submitted? Perhaps, but I do not need to pronounce on that because I am hearing not an appeal but an application for judicial review…[The Commission’s decision] is not patently unreasonable.”

Noting the similarity between the two cases, Judge Morneau dismissed the application for judicial review of the Commission’s decision with regard to the St-Hyacinthe store, ruling that “here as in the twin case pleaded before Judge Marcelin, one cannot conclude that the decision of the Commission is unreasonable. There is no basis for intervening.”