It’s a Wal-Mart theme this week. So follow along: In 2004 (!), a majority of employees of a Wal-Mart store in Weyburn, Saskatchewan told the Labour Relations Board that it wanted the UFCW to represent them in collective bargaining. Under the law in place then, that was sufficient for the union to be legally recognized as the employees’ representative. In a normal case, the union would have been certified by the labour board, collective bargaining would have commenced in 2004, long ago concluded, and the second round of bargaining would have started and maybe even concluded.
But this is Wal-Mart, who as we know, is often not bothered by such frivolities as the need to respect the laws of the jurisdictions in which it operates. So rather than get down to bargaining, Wal-Mart spent over four years paying lawyers huge bucks to find ways to delay the bargaining. Predictably, the legal arguments of Wal-Mart failed, but winning is rarely the objective, nor is it expected. Rather, the objective is to delay the process so long that the union supporters get fed up and leave. That is why we say in labour law that, “labour relations delayed is labour relations denied”. The money the company paid its lawyers has no doubt far surpassed whatever increase in labour costs the union would have been able to obtain in first agreement bargaining. The crazy thing is that Saskatchewan law permitted the certification to be delayed this long. Sounds like the American way.
In any event, the delay was longer than a political term, and during the interim, the right-wing Saskatchewan party was elected and changed the law (in May 2008) to appease companies like Wal-Mart. (The same thing happened in Ontario in 1995, when the Harris Tories changed the labour laws after Wal-Mart’s attempt to defeat an organizing campaign by threatening to close the store if the union won was unsuccessful)
The new law requires the union win a vote, rather than obtain the support of workers in written documents. Wal-Mart is now arguing that that law should apply retroactively to the union’s 2004 application. Presumably, that would mean that the union’s certification, obtained properly under the law in place at the time, would be dismissed because it does not comply with the law in place nearly five years later. And the reason that this is even an issue is because Wal-Mart dragged the proceedings out that long. So Wal-Mart hopes to benefit from its own recalcitrance.
The Labour Board dismissed Wal-Mart’s argument last week, and upheld the order recognizing the union under the law in place in 2004. Wal-Mart argued a judicial review of that decision in court yesterday. Hopefully, the court will show some common sense, and put an end to this nonsense. Of course, I’m sure Wal-Mart will try and take this all the way to the Supreme Court if this permits it to avoid complying with the order to bargain, though I can’t imagine it would get leave from that court (but who knows). And if the union’s certification is upheld, Wal-Mart may simply revert to its other favorite strategy and just fire everyone and close the store. This is the weakness of law when a company like Wal-Mart feels no shame in refusing to play by the rules.