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Wal-Mart v. UFCW: What Goes Around

Written by Wanda Pasz Wednesday, 05 August 2009

When it comes to shameless hypocrisy the leaders of the Canadian UFCW are always trying to push out the boundaries of the known universe. Last week they took things to a whole new level. In a whiny media release, they advised the world that they are being dragged up the courthouse steps by their arch enemies at Wal-Mart Corporation on account of their use of Wal-Mart logos, slogans, color schemes and other "indicia" on www.walmartworkersofcanada.ca, a UFCW-operated web site. Should we be outraged? Not a chance.

From an excerpt of the Wal-Mart Statement of Claim posted alongside the whiny media release it would appear that Wal-Mart is claiming that the graphics and format of the UFCW's site are a violation of the Canadian Trade Marks Act and are "deprecating the value of the goodwill" of the those trademarks and suggest a "sponsorship, connection, association or affiliation" between the UFCW and Wal-Mart. By way of remedy Wal-Mart demands that the UFCW stop using the word "Wal-Mart" either "alone or with other words...in a color scheme of blue, white and gold" and refrain from using "circular shapes" on the web site.

All of this has got UFCW Canada's Head Windbag Wayne Hanley foaming at the chops. "This injunction request is an over the top assault on effective freedom of speech," said Koala Boy in a posting on the besieged site. "It's a kneejerk response by Walmart to the idea of its employees trying to understand their options as workers, and trying to share experiences with other 'associates"..."Walmart's response to the success of www.walmartworkerscanada.ca is just another outrageous example of how the largest retailer in the history of the world will use its bottomless legal budget to manipulate the collective bargaining process and do just about anything to discourage its 'associates' from joining the union."

Well, every dog must have his day. Speaking of outrageous assaults on free speech by big organizations using their bottomless legal budgets, it seems like it was only yesterday that we received, at the Members for Democracy web site - formerly located at www.ufcw.net - a bundle of censor-happy joy from UFCW Canada's bottomless legal team, claiming that...

The Defendants' use of the UFCW's name and acronym in connection with the MFD Website...was and is calculated to cause and is likely to cause confusion between the MFD Website and the websites operated by the UFCW and its affiliated locals. In so doing, the Defendants, and each of them, are passing off on the goodwill of the UFCW and its affiliated locals, and are passing off the MFD Website as and for a website operated by the UFCW and its affiliated locals or as being authorized, sanctioned or affiliated with the UFCW and its affiliated locals.

UFCW Canada demanded that we stop using the acronym "UFCW" and that we further:

(a)...immediately change the URL for the MFD Website to a URL which does not contain the UFCW's name, or acronym, or any similar variations thereof,

(b)...immediately remove from the MFD Website any reference to an affiliation with UFCW Local 1518, including all references to the UFCW or any locals of the UFCW in the meta tags associated with the MFD Website,

(c)...immediately delete from the MFD Website any reference to the UFCW which might indicate an affiliation with or other association with the UFCW, including the words "United Food and Commercial Workers Union" or the acronym "UFCW",

(d)...immediately delete and cease publication, and refrain from any future publication, of any defamatory material regarding the UFCW, its various locals, or the executive members and employees of the UFCW and its locals.

The much aggrieved UFCW demanded...

A permanent injunction restraining the Defendants, and each of them, by themselves, or by their servants, agents or otherwise, from using the United Food and Commercial Workers Union's name or acronym in connection with the MFD Website or any website without the approval and consent of the United Food and Commercial Workers union, and in particular, from using the URL "www.ufcw.net" or any similar URL or the United Food and Commercial Workers union's name, or the name of any United Food and Commercial Workers Union local in the meta tags for the MFD Website or any other website without the approval and consent of the United Food and Commercial Workers Union...and...

General damages, special or increased costs and such further and other relief as the Honourable Court may deem just.

If granted, this injunction would prohibit MFD from using the acronym "UFCW" in any context, including in the text of articles, commentaries or in the online forum. This was pretty scary. If the UFCW got its way, we'd be prohibited from every saying another word about them. But then again, they must have thought they had a good shot at this kind of ruling since we were unrepresented and at a huge disadvantage when it came to jumping through the flaming hoops of the law.

Fortunately, the Honourable Court wasn't especially impressed with what the judge would call the UFCW's "unsustainably broad" desired remedy. While we lost our beloved URL (Canadian tort law doesn't favour defendants in these types of proceedings) we did get a reasonable period of time to move to a new home and an order to pay a grand total of one hundred dollars in damages, which we did with much fanfare. We figured we did OK considering that we hadn't even spoken to a lawyer.

There's no hypocrite like an old hypocrite. The UFCW Canadian chapter's assault on a small union reform web site was neither the beginning nor the end of it's campaign to censor and muzzle its critics. Let's take a trip down memory lane to see how North America's largest retail union uses its bottomless legal budget to put the smackdown on its members, former employees and assorted other humans to keep them from embarrassing its officials by posting shocking truths about them on the Internet.

The fun began in August of 2001 when the UFCW filed a suit against William Gammert, a part-time grocery clerk at an Extra Foods store in Vancouver and a member in good standing of UFCW Local 777. Two years earlier Gammert had set up a small protest site called William's Web which was critical of undemocratic practices within Local 777. Expressing his views about the union's undemocratic practices, Gammert put a creative spin on the acronym UFCW. He also posted the UFCW Constitution which was not available to members online and very difficult to get a hold off offline.

The UFCW sued Gammert. They claimed that his posting the UFCW constitution violated copyright law. They alleged that the colourful play on their acronym was defamatory, that comments on the site about Local 777's President Whitlock and Business Agent, Dean Patriquin were defamatory and that the two had been "seriously injured in their character, credit and reputation" and had "suffered distress and embarrassment" as a result. They demanded damages in an unspecified amount, an injunction prohibiting Gammert from publishing anything that the UFCW considered defamatory and ordering him to remove the constitution from his web site. In a letter to Gammert, the lawyer representing the UFCW asserted that "my client objects to the publication of its Constitution on your website" and goes on to state that Gammert's web site "...is clearly in breach of the copyright which [UFCW] holds in that document." Gammert decided that he would fight; "they have known about the site for 2 years and have just decided to do something now" he told MFD, "the people own the Constitution, not UFCW Executives."

In March 2002 the UFCW dragged Gammert into court. They were not looking to commence a trial but rather to obtain an interim injunction silencing Gammert until such time as the lawsuit was decided. With no trial date set and none likely to be set possibly for years, the injunction would have had the effect of silencing Gammert possibly for years without the UFCWs allegations ever being decided.

The UFCW got a rude awakening. On March 1st, Bill Gammert walked into a Vancouver courtroom alone and unrepresented. Upon hearing him out, the judge had harsh words for the UFCW and ordered the union to post its Constitution on its Canadian web site. The ruling was a first of its kind in North America. The UFCW complied with the ruling but did not withdraw its lawsuit against Gammert. (For the full story about Gammert and the UFCW see Our Brother's Rights).

While the UFCW was busy sending its high-priced legal team after Bill Gammert, it was also suing Hugh Finnamore, a former UFCW representative - an insider with UFCW Local 777 who worked closely with Canadian Director Cliff Evans and whose praises Evans once sang in the media. Finnamore was fired in 1995 after blowing the whistle on suspicious transactions connected with the Local 777s training and education fund. Several years later he began writing about his experiences on the inside. He wrote a number of opinion pieces that appeared in the mainstream and alternative media and was interviewed on radio and television.

In its lawsuit against Finnamore (who was also unrepresented), the UFCW accused him of violating a 1995 settlement agreement which they claimed was supposed to silence him forever. They accused him of defamation and asked the court to impose a permanent gag order forbidding him from ever talking about the UFCW again.

Late in 2005, a judge dismissed the lawsuit or at least the portion that dealt with the settlement agreement. The UFCW never did withdraw its defamation allegations although, to this day, it has never pursued them or specified what exactly Finnamore had said about them that wasn't true or fair comment. (More about the outcome of the Finnamore case).

In addition, during the period 2001-2002, the UFCW also filed lawsuits against a number of Toronto activists including this Socialist group which posted a troubling story about the behaviour of a bunch of Toronto-area UFCW officials. The UFCW "goons" in the article had turned up at a meeting at which a UFCW member named Steve Giuliano was going to speak about union democracy.

The UFCW also sued Giuliano - for publishing an article titled "Concession Bargaining UFCW-Style". It is believed that the lawsuit was eventually settled on terms that included Giuliano never speaking ill of the UFCW again.

Still another lawsuit was filed by the UFCW against the Confederation des Syndicats Nationaux, a Quebec-based labour federation which had also had also published some unkind words about the UFCW. The lawsuit was settled in the fall of 2003 just before the commencement of the trial and just after the UFCW learned that the aforementioned Finnamore would be appearing as a witness for the defendants.

And when they're not filing lawsuits, they're threatening to file them - which can be just as effective and less costly (not that that's ever been a concern for a big outfit with a bottomless legal budget). Both the publisher (Rogers Communications) and the author of this expose about a certain troubled UFCW pension plan, were threatened with lawsuits.

So don't bleed for the Canadian UFCW in its current legal drama with Wal-Mart. This censor-happy union - which has the gall to call itself "a Voice for Working America" - has fallen victim to tactics that its leaders have ruthlessly employed for years in their own assaults on the free speech rights of a lot of people who don't have a bottomless legal fund. Wal-Mart v. UFCW is just another skirmish in an ongoing war between two greedy tribes.

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