February 11, 2013

The NLRB Is Pro-Union? What Makes You Say That?

In recent years, the NLRB has earned a reputation for issuing pro-union decisions.  Whether this is fair is an open question – but the NLRB’s January 30, 2013 Advice Memorandum concerning Wal-Mart’s unfair labor practices charge against the United Food & Commercial Workers International Union (“UFCW”) will only strengthen this perception.  In November 2012, Wal-Mart had filed the charge against the UFCW alleging that the union, and its subsidiary groups OUR Wal-Mart and Making Change for Wal-Mart (actually called “Making Change at Wal-Mart), had violated the National Labor Relations Act (“the Act”) by picketing in front of many Wal-Mart stores for more than 30 days without filing a petition to be recognized as the employees’ bargaining representative or to organize a bargaining unit.  Such conduct would constitute a serious violation of the Act.

While the NLRB was considering this charge, the UFCW contacted the NLRB’s Office of General Counsel and claimed that it was not the union’s intent to try to organize Wal-Mart’s workers collectively; rather, its intent was to “help [Wal-Mart]’s employees as individuals or groups in their dealings with [Wal-Mart] over labor rights and standards…” (in spite of the fact that the UFCW has been engaged in a nationwide, multi-year campaign to unionize Wal-Mart workers!).  In making this statement to the NLRB, UFCW admitted that OUR Wal-Mart and Making Change at Wal-Mart were its creations and that it had in fact organized the illegal picketing outside Wal-Mart stores.  In spite of these admissions, the NLRB accepted UFCW’s explanation on its face, as well as several weak commitments from the union promises to put a disclaimer on OUR Wal-Mart and Making Change at Wal-Mart’s websites that those organizations did not have any organizational objectives, not to engage in any further picketing or similar activity for 60 days, and to mail a notice to the members of its subsidiaries that there was no organizational objective.  In exchange for these promises, the NLRB’s Office of General Counsel directed the Regional Office processing the charge to hold the charge in abeyance and dismiss the charge, once the UFCW and its subsidiaries fulfilled their commitments.

That the NLRB’s punishment was ineffective is best exemplified by a posting on Making Change at Wal-Mart’s website.  In that posting, which is actually made in the name of its sister organization OUR Wal-Mart, the group says:

In the resolution, OUR Walmart agreed to refrain from “picketing” or other actions that can be construed as “picketing” for a 60 day period.  This does not affect or limit OUR Walmart members’ and supporter’s ability to otherwise protest, demonstrate against or strike because of Walmart’s unfair practices and poor record on labor rights and standards or otherwise help Walmart employees as individuals or groups in their dealings with Walmart over such issues and their efforts to have Walmart publically commit to adhering to labor rights and standards.

The groups will not picket for 60 days, but may otherwise protest, demonstrate or strike during that time period?  Had an employer made written such a post, it likely would have received some nasty correspondence from the NLRB.  No word on whether the Board has contacted Making Change at Wal-Mart about its post.


Category: NLRB,