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The Strange Case of Wal-Mart and the National Labor Relations Board

For the first time in its half-century history, Wal-Mart is facing the prospect of significant labor strife. Wal-Mart workers throughout the country have been participating in short strikes and other workplace actions for the past two months. They are demanding higher wages, better benefits, more full time work, and respect on the job. And for the first time in five decades, Wal-Mart is deeply concerned, fearing these actions will escalate to something beyond its control. In many ways, however, they already have – the protesting Wal-Mart workers have attracted support from a wide variety of women, immigrant, civil rights and community organizations, as well as tens of thousands of allies on social media.

In addition to responding the way it has always responded to worker protests – asserting that it offers attractive positions, despite overwhelming evidence to the contrary, and that the overwhelming majority of its associates have no interest in union membership – Wal-Mart has also responded in another, more surprising, way: last Friday, it filed a complaint with the National Labor Relations Board (NLRB) accusing the United Food and Commercial Workers (UFCW) of violating labor law by orchestrating workplace protests for more than 30 days without petitioning for a NLRB election to represent the workers.  Wal-Mart wants the labor board to seek an injunction in federal court to block the worker protests on Friday.

It seems unlikely that Wal-Mart will get support for an injunction from the board – the protests are not about union recognition, but about respect on the job, and the protesting employees are not a union “subsidiary” as Wal-Mart contends — and it is almost impossible that it will get one before Friday. But senior management in Bentonville likely has another reason for going to the board: by filing the charge, Wal-Mart is sending a clear warning to employees thinking of participating in Friday’s action. And if employees had any lingering doubts about the company’s determination to squash the growing protests, a Wal-Mart spokesperson warned workers on national television news on Tuesday that “there could be consequences” if they fail to turn up for work on Friday – a statement that may well constitute an illegal threat under the National Labor Relations Act.  According to employees, local mangers have been holding meetings with groups of employees to reinforce the message that workers who participate in protests will face “consequences.” In response, the organization representing employees, United for Respect at Walmart (OUR Walmart), has filed a changed with the board, which could rule that senior management is attempting to intimidate employees from participating in a legally protected activity.

It is deeply ironic that Wal-Mart is now turning to the NLRB to prevent its employees for taking action to protest against poor conditions and management retaliation for speaking up. Wal-Mart is certainly no stranger to the labor board. According to the respected international organization Human Rights Watch, “Wal-Mart has repeatedly used tactics that run afoul of US law and directly infringe on workers’ right to freedom of association.”

So what is Wal-Mart’s record before the board? Between 2000-2005, NLRB regional directors issued 39 complaints accusing the retail giant of unlawful anti-union behavior. These complaints involved 101 separate incidents of anti-union conduct at dozens of Wal-Mart stores across the country. The allegations of unlawful conduct included discriminatory hiring, firing, disciplining, and policy application; “unit packing” and worker transfers to dilute union support; illegally addressing worker concerns to undermine union activity; workplace changes motivated by an anti-union animus; illegally soliciting and remedying grievances; threatening benefit loss if workers choose to organize; interrogating workers about union activity; illegal no-talking rules; discriminatory
application of solicitation rules; discrimination against union hand-billers; discrimination against pro-union workers; and illegal no-solicitation rules, including bans on union insignia, bans on
discussing unions, and the confiscation of union literature. The number of NLRB complaints against Wal-Mart declined after 2005 only because efforts by employees to organize at the workplace also declined – in other words, the unlawful anti-union behavior had the intended effect.

Many of the NLRB complaints – mostly dealt with by the Bush NLRB, which was certainly no friend of unions — were eventually resolved by settlements that required the company to remedy the alleged violations and post notices in its stores promising not to engage in any further unfair labor practices charged. Unfortunately, this penalty that acts as no deterrent against unlawful behavior by powerful corporations such as Wal-Mart.

After years of intimidating employees who have tried to speak up against low wages and poor conditions, Wal-Mart has now turned to the NLRB and courts to prevent its associates from taking a stance for respect at the workplace. But this time round, as the company clearly understands, the ongoing protests will not be so easy to crush. This time the “consequences” might just backfire on the bully of Bentonville.

John Logan is Professor and Director of Labor and Employment Studies at San Francisco State University.

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