Pending NLRB Complaint Against Wal-Mart Poses Risk to All Employers

On January 14, 2014, the National Labor Relations Board (NLRB) filed a complaint against Wal-Mart Stores, accusing the big-box retailer of retaliation by firing, disciplining and otherwise threatening its non-union workers who have engaged in a series of sporadic, short-term strikes over the last two years. Traditionally, strikes have been run on an ongoing basis until a certain goal was achieved by the striking parties; for instance, receipt of higher wages or improved working conditions. It is clear that both union and non-union employees have well-established rights to strike. However, over the past two years, 100 Wal-Mart employees have sporadically engaged in a series of short-term strikes where employees have walked off the job during critical business time periods (such as Black Friday), returning for their next shift. This tactic bears little, if any, resemblance to traditional striking methods which typically allow the employer to keep operating during a prolonged strike by scheduling its non-union supervisors and employees to cover the work or hire replacements.

Wal-Mart has argued that the sporadic, short-term strikes, which have been organized by a worker advocacy group called Our Walmart (a close affiliate with the United Food and Commercial Workers International Union), are more akin to absenteeism than traditional strikes. Wal-Mart also contends that the sporadic, short-term striking tactic is not “protected activity” under the National Labor Relations Act (NLRA) because the employees’ striking methods were for the sole purpose of causing harm and unpredictability to Wal-Mart’s operations. As such, Wal-Mart argues that it was well within its rights to discipline the participating workers for their absenteeism, camouflaged as striking activity.

The “Our Walmart” group, on the other hand, argued (and the NLRB has agreed) that Wal-Mart’s employees have a federally-protected right to strike regardless of the length, sporadic nature, or strategic purpose of their striking actions. In fact, the NLRB’s position appears to be that all employees, union and non-union, can schedule sporadic, short-term absences during critical business periods, and the employees cannot be disciplined for that conduct.

The key issue in this case will be whether the deliberate frequency and business-disruption strategy utilized by Wal-Mart’s employees is “protected activity” covered by the NLRA. The pending complaint implies an attempt by the NLRB to expand its jurisdiction into the non-union private sector. The NLRB may also be using this case as a tool to promote union organization, given that union membership in the private sector is at an all-time low.

If the NLRB is ultimately successful in its complaint against Wal-Mart, it will have far-reaching implications for private sector employers of all sizes. For small businesses, allowing this type of sporadic, short-term striking could mean that a few organized employees could temporarily shut down all business operations during your peak business times. Should you be the target of this kind of work stoppage, we recommend you confer with your employment attorney before taking any adverse action against your employees.

For questions about union activity, strikes, or any other employment law issue, please contact any of our employment attorneys at LightGabler.