Walmart's Ridiculous Response: "One Day Walkouts Are Not Legal Strikes"

A bitter legal fight pitting some of America’s coldest capitalists against tough-minded Walmart workers staging day-long walkouts and the National Labor Relations Board is setting the stage for what modern labor protests will look like.

Last November, the National Labor Relations Board announced that it would prosecute Walmart for widespread violations of workers’ rights stemming from Walmart’s firing or disciplining more than 117 employees who took part in part in day-long protests seeking better wages in 2012 and 2013. The organizers, OUR Walmart, or The Organization United for Respect at Walmart, had filed five complaints at the labor board saying that Walmart violated federal law by retaliating against protesting employees.

The Walmart protests are similar to the daylong walkouts by fast food workers last year who are seeking raises to $15 an hour, paid sick days and better benefits. Unlike the 20th   century’s open-ended mass labor actions, these protests are updating what a strike is today—especially at nationwide corporate employers who are stridently anti-union.  

Walmart is the nation’s largest retailer and a non-union workplace with 1.3 million employees. Its legal response filed in late January said that even though OURWalmart was backed by the United Food and Commercial Workers International Union, it “does not represent any Walmart employee.” Moreover, “simply by invoking the ‘strike’ word” does not mean the protesters are entitled to legal protections.

“WalMart does not believe Congress created intermittent strike leave to serve as a prop for union campaign messaging at the expense of customer service, operational efficiency, and the co-workers who have to cover for employees who intermittently come and go from their scheduled shifts at a union’s bidding,” WalMart Attorney Steven Wheeless wrote, requesting “the [NLRB] complaint be dismissed in its entirety.”

In other words, Walmart is trying to legally define what a strike is so it does not include its protesting workers. But experts like Lance Compa, lecturer and law professor at Cornell University’s School of Industrial and Labor Relations, said the issues are not as simple as Walmart’s attoneys contend.

“Employees unrepresented by a union are covered by the NLRA [National Labor Relations Act] and can file unfair labor practice charges, and the union can assist them,” he said. “The NLRA does not define a strike. The NLRB and the courts take a common-sense approach. Basically, you know it when you see it. I would say it’s a collective work stoppage to express protest or to exert economic pressure on an employer to achieve goals desired by the workers. But that’s my formulation… Each case is decided on its own unique set of facts. So the Walmart case is wide open and will be sharply litigated.”

John Logan, San Francisco State University’s Director of Labor and Employment Studies, said the first issue is whether the one-day walk outs are legally strikes.

“To find against the workers, the Court would essentially need to conclude that Walmart, not the employees, is the victim here,” he said. “Considering what are really efforts by a group of scrappy workers to call attention to poverty wages and discriminatory practices by our biggest company, it would take a pretty right-wing judge to do so. Moreover, it would violate the spirit of the law to deny recourse to protest to workers at companies where unionization is currently beyond reach.”

Walmart’s response to the lawsuits, that these walkouts do not fall under the definition of a strike, seems like a stretch, Logan said. “A factor here is that this is a nationwide company with facilities all over the country. The intermittent strike rules all appear to involve intermittent strikes at the same place.”

 “If Walmart wins the case, it will be a setback, but not necessarily a fatal one,” Compa said. “In fact, whatever the source of the final decision (most likely a federal circuit court of appeals 3 or 4 years from now), it will serve as a new blueprint for what can be done and what can’t be done by both the losing side and the winning side.”

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