It looks like a spate of walkouts Wal-Mart workers have planned for Black Friday will go on. The Bentonville (Ark.)-based company had accused the workers of illegal picketing last Friday, making a rare complaint to the National Labor Relations Board. The company asked the board to issue an injunction to stop the strikes in their tracks. While the NLRB usually takes months to issue a decision, officials said they made this case a high priority.
The NLRB weighed in on Tuesday afternoon, with a statement that isn’t going to make either party particularly pleased. Citing the complexity of the case at hand, the NLRB decided to put off a decision until after Thanksgiving. “The legal issues—including questions about what constitutes picketing and whether the activity was aimed at gaining recognition for the union—are complex,” NLRB spokeswoman Nancy Cleeland said in a statement. “The Memphis Office expects to complete its investigation tomorrow (Wednesday). Because of the complexity of the case, it will then be sent to the NLRB Division of Advice in Washington, D.C., for further analysis. Under these circumstances, the Office of General Counsel does not expect to make a decision before Thursday on whether or not to seek an injunction to stop the activity.”
Forty-two Wal-Mart workers protesting low wages and high costs of health insurance walked out earlier this month in Southern California and Seattle, according to a union-backed coalition of Wal-Mart workers that goes by the name OUR Walmart. The NLRB’s nondecision in effect allows the strikes to continue at least until Friday morning. But it doesn’t give the workers sure footing going forward. And so, minutes after the NLRB issued its nondecision, OUR Walmart filed a counter charge with the NRLB. The workers, who are backed by the United Food and Commercial Workers union, alleged that Wal-Mart management threatened workers to attempt to deter them from the strike.
Wal-Mart had alleged to the NLRB that the Black Friday walkouts were a pretense for a longer campaign by the United Food and Commercial Workers to unionize the Wal-Mart employees. Under the National Labor Relations Act, a union seeking recognition can picket for a maximum of 30 days. After that, it must end the picketing and take a formal unionization vote. The company says protests have gone over the 30-day limit.
Angela B. Cornell, director of the Labor Law Clinic at Cornell Law School, says those claims will be extremely hard for Wal-Mart to prove. For one, workers are allowed to walk off the job. Also, the workers have taken pains to demonstrate that the motives for the walkouts are related to working conditions, not to union organizing. Some workers have alleged that Wal-Mart managers retaliated against them when they complained about working conditions. Pickets have taken place across the country, and the motives for them appear to be somewhat different across stores.
But the connection between OUR Walmart and the UFCW is still murky, Cornell says. If Wal-Mart can show that the UFCW is pulling all the strings, and can prove the goal of the picketing that began in October was to unionize, they just might have a case. “If Wal-Mart can show that OUR Walmart is the alter ego of the UFCW, they’ve moved their case forward,” Cornell says. “But I don’t think it would get them that far.”