Walmart Moves for ‘Alternative Resolution’ in Labor Dispute (1)

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By Hassan A. Kanu

Walmart Inc. sees a chance to resolve a long-running fight with labor organizations, thanks to changes at the National Labor Relations Board.

A Walmart lawyer contacted NLRB General Counsel Peter Robb (R) in February, seeking to “discuss a potential alternative resolution” to a case with potentially major implications, according to emails obtained by Bloomberg Law. The litigation involves questions about union-affiliated workers’ groups and the limits of peaceful worker strikes on a job site.

The move came around the same time that McDonald’s also started settlement talks in another major labor case involving the NLRB. The company initiated talks with agency lawyers in January about resolving unfair labor practice charges by workers at franchisee restaurants, according to a court filing.

The outreach by McDonald’s and Walmart suggests that large corporations could see a new opportunity to broach settlement talks with a Trump administration NLRB that’s expected to be more business friendly. In Walmart’s case, that meant directly contacting a political appointee at the helm of an agency.

Walmart confirmed to Bloomberg Law that Steptoe & Johnson partner Steven Wheeless reached out to Robb to talk about settling the case. Robb responded to Wheeless by asking him to send a letter or email “explaining the issue and why a discussion would be helpful.”

An NLRB spokesperson didn’t respond to Bloomberg Law’s request for comment.

The labor board ruled in August 2016 in favor of six Walmart workers and OUR Walmart, a group associated with the United Food and Commercial Workers International Union that has organized protests at company stores across the U.S. The board said the workers were unlawfully punished for a “relatively small, brief, peaceful and confined” work stoppage protesting alleged mistreatment by a supervisor and intimidation from management over their efforts to unionize.

That decision is currently on appeal at the U.S. Court of Appeals for the Ninth Circuit. Oral arguments in the case are scheduled for next month.

Lawyers for the workers and OUR Walmart didn’t respond to Bloomberg Law’s request for comment. It’s not clear whether they have been included in any settlement talks.

Role Change on Appeal

Former NLRB general counsel Ronald Meisburg told Bloomberg Law March 9 that it’s not particularly unusual for lawyers in a pending case at the board to contact the general counsel or his senior staff directly and to do so without necessarily looping in opposing counsel. Meisburg said the policy of his own office, and he believes other general counsels, was to contact the other party to notify it of the meeting and then present opposing lawyers with the same opportunity for a discussion.

But Meisburg also said he couldn’t recall having any such meetings after a case had already been decided and was on appeal in a federal court.

The general counsel largely acts as an independent prosecutor, including by arguing cases before NLRB administrative law judges and the five-member board. In federal appeals of board decisions, however, the general counsel is tasked with defending the decision, even if he didn’t originally agree with the ruling.

After he was confirmed for the job in 2017, Robb identified the issue in the case—on-site strikes—as one of several on which he would like to revisit.

Walmart Cites Customer Disruption

An alternative resolution to the case could mean that the company might drop its appeal in exchange for scaled back remedies, according to Democratic congressional aides monitoring the litigation.

“We continue to believe our customers and associates have a right to a welcoming and comfortable store experience and that no customers or associates should be prevented from shopping or working inside our stores because of a group demonstration,” Kory Lundberg, a Walmart spokesperson, told Bloomberg Law March 9. “We have been actively engaged with the NLRB on this case and will continue to do so until its conclusion.”

Walmart’s communications with the NLRB were disclosed in response to a congressional inquiry.

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