Wal-Mart Bid to Block ‘Black Friday’ Action Requires Retailer to Prove UFCW’s Objective

By Lawrence E. Dubé

The National Labor Relations Board’s acting general counsel is expected to act this week on an unfair labor practice charge Wal-Mart Stores Inc. filed Nov. 16, alleging that the United Food and Commercial Workers is responsible for a months-long campaign to picket the company’s stores for recognition in violation of federal labor law (United Food & Commercial Workers (Wal-Mart Stores Inc.), NLRB, No. 26-CP-93377, charge filed 11/6/12).

The company charged that UFCW and affiliates including the Organization United for Respect at Walmart (OUR Walmart) have already violated Section 8(b)(7)(C) of the National Labor Relations Act, which prohibits unions from engaging in recognitional picketing without filing a petition for a representation election within 30 days. Wal-Mart has asked NLRB to seek a federal court injunction to bar unlawful picketing.

OUR Walmart is urging nationwide strike action by the retailer’s employees on “Black Friday,” the traditional shopping day after Thanksgiving, but Wal-Mart may have a number of hurdles to cross before it can convince NLRB to intervene in the dispute.

Wal-Mart Charges ‘Continued Recognitional Picketing’

The company’s unfair labor practice charge named only UFCW, but it asserted in the body of the charge that for more than six months, the international union along with “its subsidiaries, affiliated organizations, and agents, including that labor organization known as ‘OURWalmart’ ,” has violated Section 8(b)(7)(C) of the act by picketing and threatening to picket the corporation’s headquarters office and its stores and facilities in various states.

Picketing, along with the use of “mass demonstrations, in-store ‘flash mobs,’ and trespass on Walmart property,” has been conducted without an NLRB representation petition being filed within a reasonable period of time, the company alleged.

The charge did not provide further detail on the international union’s alleged misconduct, but attorney Stephen D. Wheeless of Steptoe & Johnson in Phoenix sent a Nov. 16 letter to UFCW’s Assistant General Counsel Deborah J. Gaydos, asserting that the international union has engaged in “continued recognitional picketing” through OUR Walmart, which Wheeless described as a UFCW subsidiary.

Asserting that the international union has “orchestrated numerous pickets, mass demonstrations, flash mobs, and other confrontational activities both inside and outside Walmart facilities in support of its bargaining and recognition demands,” Wheeless wrote that UFCW has disrupted Walmart operations and “created an uncomfortable environment and undue stress on Walmart’s customers, including families with children.”

Retailer Acts in Advance of ‘Black Friday’

Contending that the union is planning “illegal, recognition-driven, and confrontational activity” on Black Friday, Wheeless warned in the letter “Walmart will hold the UFCW accountable for UFCW-orchestrated trespass actions” and “illegal interference with Walmart’s business.”

The letter also argued the NLRA “does not protect employees from the consequences that flow from participating in a common plan of intermittent work stoppages.”

Wal-Mart spokesman Dan Fogelman told BNA Nov. 19, “Over the last year, we have seen a number of exaggerated publicity campaigns aimed at generating headlines to mislead our customers and associates. We believe it is important to speak up for the 1.3 million associates who have expressed no interest in letting a handful of people, misled by the UFCW, purport to represent them.”

Fogelman said the company filed the unfair labor practice charge against UFCW “because we cannot allow the UFCW to continue to intentionally seek to create an environment that could directly and adversely impact our customers and associates. If they do, they will be held accountable.”

UFCW Sees Firm ‘Grasping at Straws’

UFCW released a statement Nov. 16 in response to the filing of the Section 8(b)(7)(C) charge. “Walmart is grasping at straws to try to stop a groundswell of voices from associates and their supporters who are protesting the company’s unlawful attempts to silence workers,” the union said. It asserted that the retailer’s employees “are exercising their freedom to speak out in protest of Walmart’s unfair actions against their coworkers.”

“Supporters like UFCW members, religious leaders, community members and other activists are taking action to support Walmart associates and demand the company listen to its workforce to improve working conditions,” the union said. It concluded, “There’s nothing in the law that gives an employer the right to silence workers and citizens.”

The union’s website contains a statement describing “Making Change at Walmart” as a “campaign challenging Walmart to help rebuild our economy and strengthen working families.”

Calling “Making Change” a “coalition of Walmart associates, union members, small business owners, religious leaders, women advocacy groups, multi-ethnic coalitions, elected officials, and ordinary citizens who believe that changing Walmart is vital for the future of our country,” the union said the coalition is “[a]nchored” by UFCW.

OUR Walmart has continued to plan for job actions on Friday, and has posted a pledge form asking Wal-Mart employees to promise “I will join OUR Walmart members across the country and will refuse to work on Black Friday in protest of Walmart’s continuous acts of retaliation against those of us who speak out for better pay, affordable healthcare, improved working conditions, fair schedules, more hours, and most of all, respect.”

NLRB Following Priority-Case Procedures

NLRB’s casehandling procedures require the agency to treat cases filed under Section 8(b)(7) of the act as “statutory priority” matters. The regional office handling such a case “should complete its investigation and make a decision” on a priority case charge within 72 hours. Wal-Mart filed its charge against UFCW in NLRB’s Region 26, which includes a regional office in Memphis, Tenn., and a resident office in Little Rock, Ark.

Statutory priority cases are not automatically submitted to NLRB’s Division of Advice, but the agency’s casehandling manual provides that the regional office should notify Advice and NLRB’s Division of Operations-Management about the filing of “significant cases, involving, for example, defense industries, large numbers of employees, or highly publicized disputes.”

If the NLRB regional director or Acting General Counsel Lafe E. Solomon decides the charge against UFCW has merit, NLRB procedures call for “promptly” filing a petition for federal court injunctive relief under Section 10(l) of the NLRA. Section 10(l) authorizes federal judges to issue “appropriate injunctive relief pending the final adjudication of the Board with respect to such matter.” An administrative complaint would be issued on behalf of the acting general counsel within five days of the injunction filing, and the unfair labor practice allegations would be heard by an NLRB administrative law judge and the board.

If, on the other hand, the regional director or acting general counsel decides that Wal-Mart’s charge does not warrant the issuance of a complaint against UFCW, the charge would be dismissed, absent withdrawal by Wal-Mart.

NLRB’s investigation of the Section 8(b)(7)(C) charge, and the evidence submitted by the company, UFCW, and witnesses, is not public information at present, but several issues are likely to be matters on which Wal-Mart will have to present evidence that convinces NLRB to intervene in “Black Friday” events or similar action.

UFCW Responsibility for Picketing

The company’s charge did not detail past incidents of picketing, or plans for future action, but much of the action the company cited has been conducted in the name of OUR Walmart.

Wal-Mart has cited language in UFCW’s last annual report, or LM-2 form, filed with the Labor Department that described OUR Walmart:

“The UFCW has a subsidiary organization maintained in Washington DC named the Organization United For Respect at Walmart whose purpose as stated in the by-laws will be the betterment of the conditions of the current and former associates at Wal-Mart Stores, Inc., within the meaning of Section 501(c)(5) of the Internal Revenue Code, and to make Wal-Mart a better corporate citizen. The financial transactions are included in the 12/31/11 filing of this LM2.”

The company argued in its letter to UFCW counsel that the international union is responsible for the acts of its subsidiary, but UFCW said in response to the Wal-Mart charge that OUR Walmart is more independent than the earlier DOL finding indicated.

Wal-Mart so far has filed a charge only against UFCW and not against OUR Walmart, so NLRB would need to determine that the international was legally responsible for actions by the smaller organization.

Unlawful Object of Picketing

Wal-Mart’s charge and letter to UFCW complained about a number of actions, including flash mobs and mass demonstrations, but Section 8(b)(7)(C) of the NLRA, the sole basis for the charge, prohibits only action by a union:

“to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, of forcing or requiring the employees of an employer to accept or select such labor organization … (C) where such picketing has been conducted without a petition under … this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing.”

Union picketing of an employer does not necessarily establish that the union has a recognitional or organizational purpose for its activity, even if the union has attempted to organize the employer’s workforce in the past.

UFCW and OUR Walmart web postings have criticized Wal-Mart for alleged retaliation against workers, abusive treatment of employees, and assertedly substandard or undesirable working conditions, but such postings may not support a Section 8(b)(7) charge.

In Local 32BJ, SEIU (U.S. Security Associates), NLRB Advice, No. 2-CP-81854 (2012), NLRB’s Division of Advice concluded that the acting general counsel should dismiss a Section 8(b)(7)(C) charge alleging that a mixed-guard/nonguard union unlawfully picketed for recognition. Although the union had been attempting to organize a security firm’s employees, the board concluded that the union’s picket signs demanded that the employer cease unfair labor practices, while the union distributed leaflets aimed at garnering public support rather than making appeals to the company’s employees.

Finding the union’s picketing did not have an organizational objective that would bring it within the prohibitions of Section 8(b)(7)(C), the Division of Advice concluded there was also a lack of evidence of “a proscribed recognitional object.” Finding the union had never directly requested recognition, the memorandum concluded that picketing “directed at the public as a means to pressure the Employer … to cease its alleged unfair labor practices” did not show the activity had a recognitional object, even where “the Union has an overall, long-term goal of organizing the employees.”

NLRB action on the Wal-Mart charge may depend in large part on the company’s ability to produce evidence showing that the union has engaged in activity with an object proscribed by Section 8(b)(7)(C).

By Lawrence E. Dubé

Text of the unfair labor practice charge is available at http://about.bloomberg.com/blaw2/files/2013/01/Walmart-8b7C-charge.pdf.

 Text of the company’s Nov. 16 letter to UFCW is available at http://about.bloomberg.com/blaw2/files/2013/01/ufcw.pdf.