Thursday, December 4, 2008
David Doorey writes that the Saskatchewan Labour Board is considering a case in which the UFCW argued that Wal-mart's closure of a unionized store in Quebec amounts to intimidation under the Saskatchewan legislation, because it effects how Saskatchewan Walmart workers feel about the risk of joining the union. I think the UFCW may have difficulty winning on the merits, but the argument survived a preliminary objection.
Presumably, if behavior of an employer in another province can intimidate workers, than so too can behavior in other countries, such as the U.S. But the argument might be weaker in that instance if there is little media attention of the events occurring in the other jurisdiction. How the employees learn of the employer’s behavior elsewhere may be relevant. Note also that the Sask. Board does not intend to decide if the store closure in Quebec was legal or illegal. Rather, it is only asking whether closing a store, or threatening to close a store, to avoid a union satisfies the test of intimidation in Saskatchewan.
I was on the legal team of the United Steelworkers in the case that led to the first ever unionized Wal-Mart, at Windsor, Ontario. Marie Kelly was lead counsel, and did an excellent job convincing the labour board that Wal-Mart had committed numerous illegal acts during the organizing campaigns. I recall that we kept a well-marked version of the Sam Walton biography on the table during cross-examinations, which included a variety of comments about how Walton and Wal-Mart is determined to keep unions out. Wal-Mart’s much publicized anti-union philosophy certainly adds credibility to the argument that Wal-mart’s decisions to mass terminate employees who support unions is intended to be a warning to all other Wal-Mart employees. Intent to intimidate is not a requirement in the Saskatchewan legislation, so Wal-Mart’s objective will not be directly relevant.
This all reminds me of the Darlington line of cases from the States which says that an employer can completely go out of business in response to unionization without violating labor law, but may not partially close one of its facilities if it seeks to chill employees at other facilities (sometimes in other states) from exercising their Section 7 rights.
So, although this legal theory might seem far-fetched at first glance, it is not at all unheard of for similar theories to be successful in the United States.