Canada’s newest giant discount retailer Target is in hot water south of the border. The retailer committed a long list of violations of American labor laws in its efforts to discourage workers in New York from unionizing.
Here is the decision of the NLRB finding Target violated labour laws. Most of the facts and findings are set out in the decision at the end of the NLRB ruling (the Administrative Law Judge’s ruling, which are confirmed by the NLRB).
How Did Target Violate U.S. Law?
Most striking to me about Target’s unlawful conduct is its similarity to the illegal behaviour of Walmart years ago in Windsor, Ontario. Almost like the two companies are playing by the same playbook. In the Walmart case, the remedy was union certification, because the Board ruled that another vote would not overcome the threat of the store closure Walmart had planted. In the US, there is no power to certify the union as a remedy, no matter how egregious the illegal conduct. I’ll explain the NRLB’s remedy against Target below.
Target’s actions in New York are arguably worse that Walmart’s in Windsor, since it also pulled employees from their regular jobs and forced them to sit through multiple viewings of antiunion propaganda videos. In the U.S., forced watching of antiunion propaganda is not illegal per se. Thankfully, not many Canadian companies have tried this distasteful tactic, but at least one in B.C. did, and was found to have violated B.C. labour laws. In Canada, forced videos at work may be considered ‘undue influence’, and therefore unlawful. I don’t know if Target is doing this here. I discussed this in an earlier post.
Briefly, here’s what Target did that was illegal under American law. Think about which of these activities would violate Canadian labour laws:
– made threats in writing and orally that a reasonable employee would assume meant that Target could possibly close the store if workers exercised their legally protected right to unionize. Target didn’t come out and say that the store would close, but managers refused to say it would not close, and made repetitive comments about how other retailers closed when unionized.
– suggested that collective bargaining could lead to a strike, and that if there was a strike, the company could possibly close the store
– banned union organizing anywhere on company property, even during non-working time.
– banned the wearing of union badges, bracelets, and logos at work, even though employees were permitted to wear items with other insignia
– made comments to a union supporter that “you never know what could happen” as a result of supporting a union, which was an ‘unspecified threat’.
– asked employees if they were soliciting union support during non-working time
Target was ordered to revise its handbook across the entirety of the U.S. to specify that the no solicitation policy did not apply to union organizing during non-working time.
It was also ordered not to: ban the wearing of union “buttons or other union insignia while at work”, ’threat to close its store in the event that the employees select the union’, interrogate employees about whether they support the union, or threaten to discipline employees for engaging in union activities.
Target was also ordered to send a letter to each employee that informs them that Target has broken the law, and that it will not do so again. The letter advises employee of their legal rights to join unions or not to do so, without employer interference.
Finally, the Board set aside the results of the original union certification vote, which the union had lost 87-137. It ordered a new vote to be held.
Labour Relations Delayed is Labour Relations Denied…
Note the time line here. The union applied for certification in May 2011. This NLRB decision was issued April 26, 2013. At some point in future, the second vote will be held. Almost certainly, a large number of the original employees who voted will no longer be employed at this store by the time of the second vote, some 2 years later. This is low wage, low skill retail work, with high turnover.
This is one of the big complaints about the American model. An employer can effectively prevent employees from exercising their freedom of association by breaking the law and then just using lawyers to drag out litigation for as long as possible. By threatening to close the store and fire people if the union wins the vote, Target dramatically improved the odds that the union would lose the first vote. Even though it was pretty clear (to anyone that knows labor law) that Target would be found to have broken the law, it matters little to Target. The NLRB has no effective remedial power to deal with an employer that is prepared to break the law to prevent their employees from voting for unionization.
Would Target’s Behaviour Have Been Unlawful in Canada?
I don’t think there can be any doubt that were these facts to have taken place in Canada, Target would have broken Canadian laws as well. The facts are very similar to the Walmart case, where the OLRB ruled Walmart violated the law in several respects. Certainly, an employer cannot so obviously draw an inference between voting for unionization and the possibility of a store closure and mass terminations.
The main difference in Canada is that there is in many jurisdictions the power for labour boards to certify the union as a remedy for a threat of a store closure rather than order a second vote. Unions virtually never win a second vote after an employer has threatened to fire everyone if the union wins. As Canadian labour boards have long noted, those threats do not suddenly disappear from an employees’ mind just because a labour board has ruled that the employer was wrong to make the threat.
This is one of the laws that neoliberal governments like to abolish. Mike Harris’ Conservatives abolished this law in Ontario after Walmart was certified at Windsor. this opened the doors to cases like Baron Metal, where a Brampton employer hired violent gang members to wander the factory threatening the lives of workers who voted for the union. Oh, the good old days. The McGuinty Liberals put it back (it’s now Section 11 of the OLRA).
Questions for Discussion
Do you think Target will approach their response to a union organizing drive in Canada differently because of our different laws?
Do you think that a labour board should have the power to certify a union as a remedy when an employer has threatened to fire employees if the union wins a vote? What other remedies should be ordered in that situation?
Assuming that Target behaved similarly in Ontario, and was found in violation of the OLRA, and remedial certification was ordered, do you think this would ensure that the union is actually able to bargain a first collective agreement?