0144-97-U United Steelworkers of America, Applicant v. Wal-Mart Canada Inc., Responding Party.

1017-97-U United Steelworkers of America, Applicant v. Wal-Mart Canada Inc., Responding Party.

1865-97-U Wal-Mart Canada Inc., Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America; and Mr. Roger Falconer, National Education Director of the United Steelworker of America, Responding Parties.

2336-97-U United Steelworkers of America, Applicant v. Wal-Mart Canada Inc., Responding Party.

3623-97-U Patricia Scotland, Pamela Girard, Marilyn Farrell, Margaret Cadarian, Marlene Needle, Applicants v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Responding Party v. Wal-Mart Canada Inc., Intervenor.

3840-97-U Andy Forsyth, Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Responding Party v. Wal-Mart Canada Inc., Intervenor.

3841-97-U Kris Rock, Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Responding Party v. Wal-Mart Canada Inc., Intervenor.

4062-97-M Wal-Mart Canada Inc., Applicant v. Patricia Scotland, Pamela Girard, Marilyn Farrell, Margaret Cadarian, Marlene Needle and Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Responding Parties.

4063-97-U Wal-Mart Canada Inc., Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Responding Party.

4161-97-U Retail Wholesale Canada, Canadian Service Sector Division of United Steelworker of America, Local 1000, Applicants v. Wal-Mart Canada Inc., Responding Party.

4168-97-M Retail Wholesale Canada, Canadian Service Sector Division of United Steelworker of America, Local 1000, Applicants v. Wal-Mart Canada Inc., Responding Party.

4447-97-M Retail Wholesale Canada, Canadian Service Sector Division of United Steelworker of America, Local 1000, Applicants v. Wal-Mart Canada Inc., Responding Party.

4785-97-U Wal-Mart Canada Inc., Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Responding Party.

0475-98-R Patricia Scotland, Applicant, v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Local 1000, Responding Party, v. Wal-Mart Canada Inc., Intervenor

0808-98-M Wal-Mart Canada Inc., Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Local 1000, Responding Party.

1138-98-U Wal-Mart Canada Inc., Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Responding Party.

2981-98-R Marlene Needle Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworker of America, Local 1000, Responding Party v. Wal-Mart Canada Inc., Intervenor.

0680-99-R Jean Morrow, Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Responding Party v. Wal-Mart Canada Inc., Intervenor.

2399-99-R CAW Local 1000 of National Automobile, Aerospace, Transportation and General Worker’ Union of Canada (CAW-Canada), Applicant v. Wal-Mart Canada Inc., Responding Party.

BEFORE: R. O. MacDowell, Chair.

APPEARANCES: James K. A. Hayes and Jeffrey M. Andrew for CAW Local 1000 of National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada); Stewart Saxe, William R. Watson and M. Lisa Kirby for Wal-Mart Canada Inc.; George King and Kimberly Michaelis for the individual employees.

DECISION OF THE BOARD; April 19, 2000

Introduction

1. For some months now, the Board has had before it a number of related proceedings involving: the union, Wal-Mart, and various groupings of Wal-Mart employees. The details of those proceedings need not be set out here. It suffices to say that all of these cases have now been fully and finally resolved, in accordance with the settlement document reproduced below.

2. However, the settlement itself is somewhat complex; so in order to put the parties’ agreement in context, it may be useful to sketch in some background.

3. To make that narrative easier to follow, I will refer throughout simply to “the union” - even though the identity and affiliation of the union have changed while these proceedings were pending before the Board (i.e. a union organization that started out as a “division” of the United Steelworkers of America, has now become a “division” of the Canadian Autoworkers Union – that is why the “CAW” name appears in the settlement document).

Some Background

4. The story begins in the spring of 1996, when the union organized a group of employees working at the Wal-Mart store, on Lauzon Road, in Windsor, Ontario. In the shadow of that organizing campaign, the union applied to the Board for certification as the employees’ exclusive bargaining agent. After a lengthy proceeding, the Board issued a certificate, dated February 10, 1997. A subsequent judicial review was dismissed.

5. Following certification, the union and Wal-Mart met and bargained in good faith, with a view to concluding a collective agreement. The bargaining consumed several months - which is not so unusual in “first contract situations”- and was ultimately successful. In mid-December 1997, the parties arrived at a mutually satisfactory memorandum of settlement. There were no allegations of bad faith bargaining, and no application to the Board to impose a first agreement under section 43 of the Act.

6. On December 17, 1997 the union and Wal-Mart executed a formal document incorporating their agreed-upon “draft collective agreement”. A ratification vote was held on December 17, 1997. However, as it turned out, there was a legal dispute about whether the memorandum had been properly converted into a binding collective agreement.

7. Once again, there were protracted proceedings before the Board and ongoing litigation in court. In the meantime, there was continuing uncertainty about whether the “bargain” struck in December 1997, was a valid collective agreement. There was also continuing friction in the workplace between those employees who supported the union and those employees who did not.

8. The bargaining parties did make some progress in developing their relationship. As noted, after several months of bargaining, the union and the employer successfully negotiated a memorandum of settlement. The employer recognized the union as the employees’ bargaining agent, and the union made active efforts to represent those employees. Stewards were appointed to deal with employee concerns. Grievances were filed and sometimes settled. Health and safety questions were addressed jointly, as contemplated by the Occupational Health and Safety Act. And so on.

9. Nevertheless, the work force remained divided, and by the end of 1998, the parties had become enmeshed in layers of litigation. There were a number of unfair labour practice complaints involving the union, the employer and one or more employees. There were grievances alleging a breach of the collective agreement, that the union wanted to take to arbitration, but which remained “on hold” pending a determination of the validity of that collective agreement. There was a Ministerial reference concerning the Minister’s power to appoint an arbitrator under what might, or might not, be a binding collective agreement within the meaning of the Labour Relations Act. There were three separate applications, in which employees sought to terminate the union’s bargaining rights. And there was the ongoing challenge – in court and at the Board – to the ratification vote held in December 1997.

10. Not to put too fine a point on it: the situation was fraught with legal and labour relations problems; and in the result, the term of the proposed collective agreement expired before it could be determined whether it was valid in the first place. Moreover, the union faced the difficult prospect of a further round of bargaining, with its bargaining position and bargaining rights under a cloud.

11. The number of related proceedings is illustrated by the number of Board file numbers listed above. I do not propose to dwell on any of those proceedings here. It suffices to say that, taken together, they represent a complex and difficult piece of litigation, that could only be resolved by many days of hearing - at considerable cost to the parties and the public. And, of course, the outcome of such litigation would necessarily be uncertain until all of the evidence was in.

12. In the circumstances the parties began to explore an alternative to litigation. They began to “talk settlement”.

The invitation to mediate and eventual settlement

13. In late fall 1999, the parties approached the Board for assistance in resolving their dispute. The invitation to mediate was recorded in a decision of the Board dated November 9, 1999. In that decision, the Board summarized the situation this way:

14. All parties agree that litigation of this kind is time consuming and expensive.

15. All parties agree that such litigation is undesirable if there is any other way of resolving the dispute.

16. All parties also agree that a settlement that they reach on their own, would be better than a result imposed upon them by a third party.

17. With that in mind, all parties have agreed to invite the Chair of the Board and Vice-Chair Pamela Chapman to meet with them (and their lawyers) in an effort to find a resolution of this dispute.

18. There was a mutual desire to explore settlement options. Indeed, there was an real appetite for a settlement. A settlement was obviously in the parties’ interests. A settlement made labour relations sense. But it remained to be seen whether a settlement was actually possible.

19. In accordance with the agreement of the parties, the Board had a number of meetings with counsel, and, occasionally, with their clients. The parties also discussed matters, at some length, between themselves. And eventually, the parties were able to resolve all of the matters in dispute between them.

20. The parties have reached what might be described as a “global settlement” of all aspects of the dispute. That settlement was reduced to writing and reads as follows:

MINUTES OF SETTLEMENT

BETWEEN:

Retail Wholesale Canada/CAW Division, a Division of the National Automobile, Aerospace, Transportation and General Workers Union of Canada and its Local Unions, including without limitation CAW Local 1000 of National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)

(“the Union”)

• and -

Wal-Mart Canada Inc.

(“the Employer”)

• and-

Patricia Scotland, Marlene Needle, Marilyn Farrell, Pam Girard, Margaret Cadarian, Kris Rock, Andy Forsyth, and Jean Morrow, together with such other individual Associates as are represented by the McTague Law Firm, in connection with any of the matters addressed by these Minutes of Settlement

(“the Individual Employees”)

RECITALS

• The United Steelworkers of America, was certified by the Ontario Labour Relations Board (“OLRB” or “the Board”) by a Decision, dated February 10, 1997, in OLRB File No. 0387-96-R, as the bargaining agent for certain employees of the Employer (hereinafter referred to as “the bargaining unit members” or “Associates”) at its store located at 1950 Lauzon Road, Windsor, Ontario (hereinafter referred to as “the workplace”) following which bargaining rights were assigned to Retail Wholesale Canada Canadian Service Sector Division of the United Steelworkers of America Local 1000 (hereinafter referred to as “the Predecessor Union”).

• The Predecessor Union and the Employer met and bargained in good faith between March 17, 1997 and December 17, 1997.

• On December 17, 1997, the Employer and the Predecessor Union executed a Memorandum of Settlement (“the Memorandum of Settlement”) which incorporated “the Draft Collective Agreement” which was the subject of a vote on or about December 22, 1997.

• Issues arose concerning the December 22, 1997 vote and had earlier arisen, which issues led to complicated and lengthy proceedings before the OLRB, and which matters were estimated by the parties to those proceedings to require 100 or more days of hearing before the OLRB.

• Several complaints arose concerning alleged violations of the Draft Collective Agreement (hereinafter referred to as “the grievances”).

• In order to resolve all outstanding issues between them, including, without limitation, matters now before the Board and the Courts as well as all issues in respect of the outstanding grievances, the Union, the Employer and the Individual Employees (hereinafter referred to as “the Parties”) hereby enter these Minutes of Settlement.

NOW THEREFORE, in consideration of the mutual agreements, commitments and undertakings set forth herein, the Parties agree as follows:

Recitals form part of Minutes of Settlement

1. The Parties acknowledge and agree that the recitals set forth above are true and correct and form an integral part of these Minutes of Settlement.

Definitions

2. The Parties agree that for all purposes of, and wherever referred to in, these Minutes of Settlement “the Employer” shall be defined to mean and include Wal-Mart Canada Inc., and all of its subsidiaries and their respective successor organizations, and all of its and their respective agents, associates, directors, officers, owners, shareholders and employees, save and except bargaining unit members, and all of its and their respective administrators, assigns, dependents, estates, executors and heirs.

Except where otherwise specified, the Parties agree that for all purposes of, and wherever referred to in, these Minutes of Settlement “the Union” shall be defined to mean and include the Union and all of its current and future local unions and all of its and their respective agents, associates, directors, officers, and employees, and all of its and their respective successors, affiliates, administrators, assigns, dependents, estates, executors and heirs.

Except where otherwise specified, the Parties agree that for all purposes of, and wherever referred to in, these Minutes of Settlement “the Individual Employees” shall be defined to mean and include those persons named in the style of cause in these Minutes of Settlement, and their respective administrators, assigns, dependents, estates, executors and heirs.

Successor Union Status

3. The Employer acknowledges that CAW Local 1000 of National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) is the successor union, at the workplace, to Retail, Wholesale Canada Canadian Service Sector Division of United Steelworkers of America, Local 1000 pursuant to the provisions of s. 68 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sch.A, as amended, (“the OLRA”), and the Employer hereby withdraws its objections to the Board so declaring in Board File No. 2399-99-R.

Withdrawal of Board Files

4. The Parties agree that they shall not file, re-file, commence, continue, pursue or lodge any application, legal action, claim, complaint, legal proceeding of any nature whatsoever with respect to any of the facts and circumstances giving rise to any of the OLRB files referenced in these Minutes of Settlement. Furthermore, these matters and any of the facts alleged therein shall not be referenced, relied on, or otherwise incorporated by the Parties in any future application, action, claim, complaint or legal proceeding of any nature whatsoever in which the Union and the Employer are involved, except for the purposes of enforcement of these Minutes of Settlement.

The Union hereby withdraws with prejudice the following Board files:

0144-97-U, 1017-97-U, 2336-97-U, 4161-97-U, 4168-97-M

and 4447-97-M.

The Employer hereby withdraws with prejudice the following Board files:

1865-97-U, 4062-97-M, 4063-97-U, 4785-97-U and 1138-98-U.

The Individual Employees hereby withdraw with prejudice the following Board files:

3623-97-U; 3840-97-U; 3841-97-U; 0475-98-R; 2981-98-R; and 0680-99-R

Withdrawal of Grievances

5. The Union, in its own right and on behalf of all applicable bargaining unit members, hereby withdraws with prejudice, any and all grievances and requests for arbitration filed by the Predecessor Union, the Union or any bargaining unit member, pursuant to the terms of the Draft Collective Agreement or otherwise, and/or arising between February 10, 1997 and the effective date hereof.

Request that Ministerial Reference be Withdrawn

6. Having regard for the withdrawal of all requests for arbitration referenced in Section 5 above, the Parties hereby request that, in a decision to be issued forthwith, the Board, by order, declare that the Ministerial Reference set forth in Board File No. 0808-98-M is therefore moot.

Release by the Union

7. The Union, in its own right, and on behalf of all bargaining unit members, hereby releases and forever discharges the Employer and the Individual Employees of and from any and all actions, applications, causes of action, claims, complaints, demands, grievances and other legal proceedings, of any nature whatsoever, whether arising pursuant to the provisions of the OLRA, at common law, at civil law, pursuant to any contract or agreement, or otherwise, arising out of the relationship between the Parties, or any of them, at the workplace, and existing prior to the execution of these Minutes of Settlement by all Parties, and whether or not then known, including, without limitation, all matters arising out of or in respect of applications before the OLRB filed by the Union or the Predecessor Union between February 10, 1997 and the execution hereof by all Parties and all matters arising out of or in respect of grievances under the Draft Collective Agreement filed, by the Predecessor Union, the Union or any bargaining unit members, between February 10, 1997 and the execution hereof by all Parties and all matters arising out of or in respect of union dues deductions and remittances and wage adjustments pursuant to the Draft Collective Agreement or otherwise, other than a claim for the enforcement of a term of these Minutes of Settlement.

The Parties understand and agree that the release by the Union on behalf of all bargaining unit members is not intended to release individual associate claims, if any, arising under either the Workplace Safety & Insurance Act or the Human Rights Code.

Release by the Employer

8. The Employer hereby releases and forever discharges the Union, of and from any and all actions, applications, causes of action, claims, complaints, demands, grievances, and other legal proceedings, of any nature whatsoever, whether arising pursuant to the provisions of the OLRA, at common law, at civil law, pursuant to any contract or agreement, or otherwise, arising out of the relationship between the Parties, or any of them, at the workplace, and existing prior to the execution of these Minutes of Settlement by all Parties, and whether or not then known, including, without limitation, all matters arising out of or in respect of applications before the OLRB filed by the Employer between February 10, 1997 and the execution hereof by all Parties, other than a claim for the enforcement of a term of these Minutes of Settlement.

Release by Individual Employees

9. The Individual Employees hereby release and forever discharge the Union and the Employer of and from any and all actions, applications, causes of action, claims, complaints, demands, grievances and other legal proceedings, of any nature whatsoever, whether arising pursuant to the provisions of the OLRA, at common law, at civil law, pursuant to any contract or agreement, or otherwise, arising out of the relationship between the Parties, or any of them, at the workplace, and existing prior to the execution of these Minutes of Settlement by all Parties, and whether or not then known, including, without limitation, all matters arising out of or in respect of applications before the OLRB filed by the Individual Employees between February 10, 1997 and the execution hereof by all Parties and all matters arising out of or in respect of grievances or potential grievances under the Draft Collective Agreement which were filed or which could have been filed between February 10, 1997 and the execution hereof by all Parties and all matters arising out of or in respect of union dues deductions and remittances and wage adjustments pursuant to the Draft Collective Agreement or otherwise, other than a claim for the enforcement of a term of these Minutes of Settlement.

No Third Party Claim

10. Each of the Parties hereby agrees not to commence or maintain any action, application, cause of action, claim, complaint, demand, grievance or other proceeding arising out of or in any way related to their relationship at the workplace, against any entity, organization or person in which any claim could arise against any other Party hereto.

Abandonment of Representation Rights

11. The Union hereby abandons its representation rights in relation to the applicable bargaining unit as set forth in the OLRB Decision dated February 10, 1997 in Board File No. 0387-96-R. Further, the Parties hereby request that the Board confirm the abandonment of bargaining rights by the Union and confirm that the Union no longer represents the Associates in a decision of the Board to be issued forthwith.

Status of the Draft Collective Agreement

12. The Parties acknowledge that neither the Board nor the Courts have previously ruled on the enforceability of the Draft Collective Agreement.

Environment on a Going Forward Basis

13. The Individual Employees agree that they will make no public comment whatsoever with respect to the settlement of the Board files and grievances referenced herein other than to confirm that all differences have been resolved to their satisfaction and to indicate that the Board has issued a decision recording the settlement terms, which decision speaks for itself.

No Admission of Liability

14. The execution of these Minutes of Settlement shall not constitute an admission of liability on the part of any Party, and the terms of these Minutes of Settlement shall not constitute a precedent as between the Parties, or otherwise.

Independent Legal Advice

15. Each Party to these Minutes of Settlement has obtained independent legal advice in connection with the execution of these Minutes of Settlement.

Governing Law

16. These Minutes of Settlement shall be governed by, and interpreted in accordance with, the laws of the Province of Ontario, as applicable, as they exist on the Effective Date of these Minutes of Settlement.

Legal Authority to Bind Parties

17. Each of the Parties covenants and agrees that the individual who has executed these Minutes of Settlement on its behalf was duly authorized to do so and to legally bind that Party.

No Challenge to Minutes of Settlement

18. The Employer, the Union, in its own right and on behalf of all bargaining unit members, and the Individual Employees shall not, directly or indirectly, in any fashion whatsoever acquiesce in, assist with, commence, condone, file, support, or otherwise undertake, any action, application, cause of action, claim, complaint, grievance or other legal proceeding of any nature whatsoever, whether arising at common law, at civil law, by contract, by statute, including without limitation any application or complaint under the OLRA, any application for judicial review or otherwise, that includes any challenge to the legal validity or enforceability of any provision of these Minutes of Settlement, or of any part thereof, or to any Board Orders or Decisions contemplated by these Minutes of Settlement, or any part thereof, except any Board Order or Decision with respect to the enforcement of a term of these Minutes of Settlement.

Section 96(7) of the OLRA

19. The Parties agree that these Minutes of Settlement shall constitute a settlement within the meaning of Section 96(7) of the OLRA and shall be binding on the Parties and enforceable as such. Further, the Parties agree that these Minutes of Settlement shall be incorporated into, and form part of, the subsequent decision of the OLRB confirming this settlement.

Further Steps

20. The Parties agree, either individually or jointly, as applicable, to take all further steps as may be necessary, including, without limitation, the execution and filing of further documents in order to give effect to these Minutes of Settlement.

Effective Date of Minutes of Settlement

21. These Minutes of Settlement shall only become effective as of and from the date of the OLRB Decision incorporating same, in toto, into a Board Decision and related Orders.

IN WITNESS WHEREOF the Union has caused these Minutes of Settlement to be executed by the Union or on its behalf, in the City of Port Elgin, Ontario, this 18th day of April, 2000;

Retail Wholesale Canada/CAW Division, a Division of the National Automobile, Aerospace, Transportation and General Workers Union of Canada and its Local Unions, including, without limitation, CAW Local 1000 of National Automobile, Transportation and General Workers Union of Canada (CAW-Canada)

per: “Tom Collins” Witness: “signature”

IN WITNESS WHEREOF the Individual Employees have caused these Minutes of Settlement to be executed on their behalf, in the City of Windsor, Ontario, this 17th day of April, 2000;

Individual Employees

per: “George W King” Witness: “signature”

IN WITNESS WHEREOF the Employer has caused these Minutes of Settlement to be executed by the Employer or on its behalf, in the City of Mississauga, Ontario, this 18th day of April, 2000;

Wal-Mart Canada Inc.:

per: “Robert Wasserman” Witness: “signature”

17. In accordance with the agreement of the parties, the terms of settlement are being incorporated into a decision of the Board, which, I understand, will be posted in the workplace or otherwise made available to anyone who might be interested in the outcome described above.

Disposition

18. Having regard to the material before it in Board File No. 2399-99-R and to the agreement of the parties, and pursuant to section 68 of the Act, the Board hereby declares that the CAW Local 1000 of National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) has acquired the rights, privileges and duties of its predecessor, Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 1000, by reason of a merger, amalgamation, or transfer of jurisdiction.

19. Having regard to the agreement of the parties and pursuant to section 63(17) of the Act, the Board declares that CAW Local 1000 of the National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) no longer represents the employees of Wal-Mart Canada Inc. for whom it has heretofore been the bargaining agent.

20. The applications in Board file numbers 0144-97-U, 1017-97-U, 2336-97-U, 4161-97-U, 4168-97-M, 4447-97-M, 1865-97-U, 4062-97-M, 4063-97-U, 4785-97-U, 1138-98-U, 3623-97-U, 3840-97-U, 3841-97-U, 0475-98-R, 2981-98-R and 0680-99-R are hereby withdrawn by leave of the Board

21. The Board hereby advises the Minister of Labour that the union has withdrawn all of its requests for the appointment of arbitrators pursuant to sections 48 or 49 of the Act, and that the reference to the Board pursuant to section 115 of the Act on May 28, 1998 (Board file 0808-98-M) therefore appears to be moot.

Concluding Observations

22. The settlement recorded above brings to an end what everyone agrees has been a long and difficult case – a case, moreover, in which, with the benefit of hindsight, everyone can now identify things which could, and perhaps should, have been done differently. No doubt the outcome is not equally satisfactory from everyone’s point of view. No settlement ever is. But the resolution to which the parties have agreed reflects labour relations realities, and will facilitate a return to normalcy in this troubled work place. It will provide employees with a period of stability, during which they can repair the rifts which have been caused by the way in which events have unfolded. And there is no doubt that a period of relative calm is in everyone’s interest.

“R. O. MacDowell”

for the Board