I noted last month the ongoing attempts by Wal-Mart in Weyburn Saskatchewan to avoid a labour board order certifying the UFCW as the representative of its employees. Wal-Mart had stalled the process so long that by the time the Labour Board finally issued its order certifying the union, the law governing how unions are certified had been changed by an anti-union government. Thus, even though the union satisfied the legal requirements in place when it applied to represent the workers in 2004, by the time the Board got around to issuing its decision in 2008 (!), the rules had changed. Wal-Mart argued that the new rules should apply, which required that the union win a vote, presumably to be held some 5 years after the union’s organizing campaign.
What wasn’t clear to me from the material I saw at the time was that Wal-Mart was also arguing that the decision ordering certification in 2008 was invalid because the adjudicator in the case had been terminated by the government prior to the date of the decision. Neo-conservative governments in Canada like to do this: when they get elected, they just fire decision-makers who they think do not share their opinions. Labour Boards are favorite targets. Mike Harris in Ontario did the same thing, firing several labour board adjudicators mid-term. This completely undermines the independence of the tribunal, but that’s another story.
Wal-Mart went to court arguing that the labour board’s decision certifying the union should be stayed (put on hold) until Wal-Mart gets an opportunity to argue before the courts whether the Board decision should be voided on the basis that the decision-maker had been dismissed by the government before the release of his decision. So there is an issue about whether cases that were pending before the dismissed chair of the board could be released, or whether brand new hearings needed to be held in all undecided cases the Chair had presided over.
Wal-Mart won the argument to stay the order.
It managed to convince the motions judge that it would suffer ‘irreparable harm’ if forced to comply with the Board’s order, because it would need to give the union information about the companies’ policies as part of the collective bargaining process. If Wal-Mart ultimately won the case, and the Board’s decision was quashed, the union would still have that information. The court doesn’t explain why the information involved–like HR policies and existing wage levels–is so valuable that it would cause Wal-Mart irreparable harm if it gets out. We are to just assume that to be self-evident, I guess. The court simply concludes: “It is clear however that it is Wal-Mart’s rights that are affected when disclosure of its employer policies are sought.”
The Board dismisses the argument of the union that it too would suffer irreparable harm if Wal-Mart is permitted to stall the bargaining even longer. Recall that the union proved majority support of the workers 5 years earlier, and Wal-Mart had stalled the process ever since. The court said only: “There is no certainty of irreparable harm to the Union. To not stay will cause irreparable harm to Wal-Mart.”
So there you have it. Way to go Wal-Mart. It managed to find another way to avoid dealing with the union its employees selected to represent them, at least for a few more months until the case is heard on its merits. This fiasco in Saskatchewan, in which an employer is able to avoid collective bargaining for years by paying lawyers to devise delay arguments is a common feature of American labour law, and is what Obama is trying to put an end to south of the border.
