Walmart Lawfully Disciplined and Fired Protesters

​Walmart didn't violate the National Labor Relations Act (NLRA) when it disciplined or fired employees for breaking its attendance policy when they left work for nearly a week to protest at the retail giant's annual shareholders' meeting in 2013. 

The walkout was not protected because it was one of a series of protests, rather than a bona fide strike, the National Labor Relations Board (NLRB) decided July 25.

Walmart has about 1.3 million employees at more than 4,000 stores, and none of its stores are unionized. In 2010, some of its employees, with help from the United Food and Commercial Workers International Union, formed the Organization United for Respect at Walmart (OUR Walmart). OUR Walmart sought increased wages, more predictable scheduling, expanded health care access and freedom from retaliation for Walmart workers, noted NLRB member Lauren McFerran in her dissent.

Workers staged a series of short-lived walkouts from 2012 to 2013. For example, on Black Friday in November 2012, often the biggest shopping day of the year and when many are off work for the Thanksgiving holiday, about 100 Walmart employees walked off the job. From late May to early June 2013, about 100 workers walked off the job for five to six days to travel to the shareholders' meeting and demonstrate; 54 were disciplined or fired. There was another walkout involving an unspecified number of employees on Black Friday 2013.

Walmart did not violate the NLRA when it read talking points to protesters stating that it did not believe "these hit-and-run work stoppages are protected" and that if employees "participate[d] in future union-orchestrated work stoppages," the company would consider their work absences unexcused. The talking points accurately described unprotected walkouts, the board ruled.

While Walmart did have a "personal discussion," its lowest-level warning, with one employee about her unexcused absences that included a day on which she protested and wasn't scheduled to work, that was a mistake without discriminatory intent and not unlawful, the board ruled.
The NLRB also upheld Walmart's verbal warnings for two workers who protested for four days a few weeks before the protest at the shareholders' meeting. The board reasoned that the discipline was warranted because the workers went on strike and returned to work with the plan to strike again a few weeks later. The NLRA prohibits such "intermittent strikes," according to the board.

The dissent claimed that the board's decision "sharply cuts back on the right of American workers—including those who lack unions—to protest their job conditions by striking," McFerran wrote. She went on to say that the board classified the walkouts as "an unprotected 'intermittent' strike—even though it was buffered by months of strike inactivity, a tiny percentage of the workforce participated, and no serious difficulties for store operations resulted."

But the NLRB said in the majority opinion that it was simply following existing board opinions, which set out "the principle that plans to strike, return to work and strike again are not protected genuine strikes."

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

Replacement of Striking Workers

Phillip Wilson, president and general counsel of the Labor Relations Institute in Broken Arrow, Okla., said the board's decision was a "rational way to treat this intermittent strike behavior, which is becoming increasingly a strategy exploited by unions." He said the idea behind the walkouts is "you can pick and choose your battles by withholding labor when it's most damaging to employers and most likely to get attention in the press without employees risking anything in return."

That's not the way the NLRA is supposed to work, he said. The law is written so that if a union exercises an economic "weapon," such as a strike, the employer can continue to operate its business by replacing workers.

In an unfair labor practices strike, the replacement workers can only be temporary until the strike ends. Unfair labor practice strikes occur when, for example, someone is fired for union activity and an unfair labor practices charge is filed.

With economic strikes, the strikers may be permanently replaced, though the strikers aren't fired but put on a preferential rehiring list. If permanent replacements leave, strikers are brought back first, Wilson explained.

Prior to the NLRB's decision, a walkout would rob an employer of the chance to replace workers because it is over quickly, Wilson noted. The recent decision restores the balance that the NLRA was intended to create, he said.

The decision is significant partly because a growing number of workers are activists, according to Mark Keenan, an attorney with Barnes & Thornburg in Atlanta. 

Employee-Relations Concerns

But Jim Gray, president of Jim Gray Consultants in Charleston, S.C., said, "You do not want to get in the position where people walk off." The only way to avoid walkouts is good employee relations, he noted.

However, Kory Lundberg, a Walmart spokesman, said, "We're pleased that the NLRB has reaffirmed the law, which for decades has said this type of activity is not protected. Our position from the beginning is that we acted lawfully and respectfully, and this decision shows that the board agreed."