Thanks to Lancaster House for making me aware of this interesting case from Saskatchewan. The United Food & Commercial Workers in Saskatchewan filed a complaint before the Sask. Labour Board, arguing that the decision of Wal-Mart to close a unionized store in Quebec had the effect of ‘intimidating’ workers in Saskatchewan. Section 11(1)(a) of Saskatchewan’s Trade Union Act makes it illegal for an employer ”to interfere with, restrain, intimidate, threaten, or coerce an employee in the exercise of any right conferred by this Act ….” The legality of the Quebec closure will be decided by the Supreme Court of Canada in January. The Union’s argument is that when Wal-Mart fires an entire unionized workforce to avoid having to deal with a union, it sends a chill over organizing in all Wal-Marts. The Labour Board refused to dismiss the case in a preliminary argument by Wal-Mart challenging the Board’s jurisdiction to deal with a case from another province. Here’s the decision. The Board has not yet ruled on whether the Quebec store closure did violate the Saskatechewan Code.
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.
If this interesting case gets litigated on its facts, I will be sure to post the decision.