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Sept. 2 — Workers who engaged in a “relatively small, brief, peaceful and confined” work stoppage at a Wal-Mart store were unlawfully disciplined for their conduct, a divided National Labor Relations Board held ( Wal-Mart Stores, Inc. , 2016 BL 286376, 364 N.L.R.B. No. 118, 8/27/16 [released 9/1/16]).
The decision shows the board’s conviction that peaceful strikes may be protected by federal law even when they occur on an employer’s premises in view of customers.
Chairman Mark Gaston Pearce and Member Kent Y. Hirozawa wrote in a decision released Sept. 1 that the board has a 10-factor test for balancing the protest rights of employees and the property rights of employers in such situations, and nearly every factor favored protection for the employees under the National Labor Relations Act.
Dissenting, Member Philip A. Miscimarra described the protest as a “modern day sit-down strike” and argued that NLRB precedent developed in industrial facilities shouldn’t be applied to work stoppages in the presence of customers on a retail sales floor.
Six employees received “disciplinary coachings” or warnings from Wal-Mart after they engaged in a November 2012 work stoppage at the company’s Richmond, Calif., store.
According to the board majority, the employees stopped working about 30 minutes before the store opened to the public at 6 a.m. They assembled in the customer service area near the store entrance. Store officials offered to meet with the employees individually, but they insisted on meeting as a group.
When the store opened, four nonemployee protesters entered and joined the six employees. Pearce and Hirozawa said the group displayed a banner, eight to 10 feet long, reading “Stand Up, Live Better, ForRespect.org, OUR Walmart, Organization United for Respect at Walmart.”
The protesters held the banner in front of the customer service desk, but later moved it behind the desk. The board said that “none of the limited number of customers who entered the store during the protest sought assistance at the open and accessible service desk.”
The board said that by 6:52 a.m., the six employees had clocked out and all of the protesters left the store.
The employees later offered to return to work and were allowed to do so. However, Wal-Mart issued them disciplinary coachings that were to remain active for a year and could influence the severity of any other disciplinary action by the company.
Pearce and Hirozawa said the work stoppage should be analyzed under “the well-settled legal principles” that the board established in Quietflex Manufacturing Co., 344 N.L.R.B. 1055, 177 LRRM 1215 (2005):
(1) the reason the employees have stopped working;(2) whether the work stoppage was peaceful;(3) whether the work stoppage interfered with production or deprived the employer access to its property;(4) whether employees had adequate opportunity to present grievances to management;(5) whether employees were given any warning that they must leave the premises or face discharge;(6) the duration of the work stoppage;(7) whether employees were represented or had an established grievance procedure;(8) whether employees remained on the premises beyond their shift;(9) whether employees attempted to seize the employer’s property; and(10) the reason for which employees were ultimately discharged [disciplined].
Pearce and Hirozawa said nearly every factor favored a finding that the work stoppage was protected.
The board majority said the peaceful protest was undertaken to address “pressing problems” that included abusive treatment by a supervisor. The job action caused “little to no disruption” of Walmart’s ability to serve customers, and the protest group immediately left when asked to do so by police, the board found.
The majority said Miscimarra’s dissent was “essentially grounded on the economic harm that the work stoppage inflicted” on the employer, but board precedent has recognized that the right of employees to withdraw their services is an economic weapon they may use to improve their terms of employment.
“Having considered all the factors,” the majority said, the employees were protected by the NLRA and the disciplinary coachings were unlawful.
Miscimarra wrote that the NLRB recognized in G.T.A. Enterprises, Inc. d/b/aRestaurant Horikawa, 260 N.L.R.B. 197, 109 LRRM 1145 (1982), that it may be appropriate to apply different standards for union activity conducted on the premises of an employer where customers are present.
The dissent said the Wal-Mart action was governed by the “disruption or interference” standard in Restaurant Horikawa.
Miscimarra wrote, “I believe the Quietflex factors do not appropriately apply here,” but he said even if they were applicable, he would find the work stoppage inside the Wal-Mart store was unprotected and the disciplinary action was lawful.
To contact the reporter on this story: Lawrence E. Dubé in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Text of the opinion is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_WalMart_Stores_Inc_364_NLRB_No_118_2016_BL_28.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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