Nov 21, 2012

Strange Bedfellows: Walmart Seeks Protection at the NLRB

You have to wonder if they even knew what the place was called.

This week, Walmart finally fired back at the recent onslaught of union-backed protests that have popped up across the country. Until now, many of us thought that the smattering of employee walk-outs, flashmob-style popup protests, and other signs of employee dissatisfaction were like flies on an elephant. Well, it looks like one of them finally found the behemoth’s soft underbelly: that’s right – Black Friday.

From Reuters:

Wal-Mart Stores Inc is taking its first legal step to stop months of protests and rallies outside Walmart stores, targeting the union that it says is behind such actions.
The move comes just a week before what is expected to be the largest organized action against the world’s largest retailer, as a small group of Walmart workers prepare to strike on Black Friday, typically the busiest shopping day of the year.

Man, that is ballsy. Walking out on Walmart on Black Friday is like pouring pigs blood on the crazy girl at prom.

Walmart’s employees aren’t just organically organizing, or course. There’s a union supporting their efforts. Which means that Walmart’s gotta call a federal agency that they have tried their damndest to stay as far away from as possible:

Wal-Mart filed an unfair labor practice charge against the United Food and Commercial Workers International Union, or UFCW, asking the National Labor Relations Board to halt what the retailer says are unlawful attempts to disrupt its business.

Whaaaaaaaa? The NLRB? That same agency that works to ensure companies don’t disenfranchise their employee’s efforts to organize and all that?

The same one. As the Board itself has spent the past year or two reminding us, the National Labor Relations Act doesn’t just apply to unionized workplaces. While the current Board would likely rather focus on the protections it offers to workers, WalMart’s unfair labor practice charge showcases that employers, too, can seek the agency’s protection.

Walmart’s charge falls under Section 8(b)(7)(c) of the NLRA, which says a labor union can’t picketing a non-union employer for very long – 30 days, max – without filing a petition to be recognized as the workers’ union of record. The idea here is that unions shouldn’t be allowed to use public protests  to cripple a business into recognizing a union as a bargaining representative.  It’s called “recognitional picketing” – and Walmart says that’s what the UFCW is doing by staging one-after-another protests, walkouts, flash mobs, etc. all around the country.

The key question is: why now? The obvious answer is that Black Friday walkouts was a bridge too far,  and to be sure, if they create chaos, Walmart probably does itself a favor by being able to show its investors that it tried to keep the workers on the floor. But the truth is, any labor attorney could tell you that the combination of the parties involved and the issues involved meant there wasn’t going to be an answer by Friday. Just to get started, the Board would have to answer questions about how to define “picketing”; when to start measuring the 30-days; and what level of union involvement makes the strikes union-controlled. Indeed, Walmart and the NLRB have both since confirmed that there will not be a ruling by Friday. So, why file?

The answer, I think, is that the union’s force has finally caught up with Walmart. It can no longer ignore the push that the American labor movement has made against it. That doesn’t mean it will fall to unionization. To the contrary, I think this is the first sign that the organization fight over Walmart’s workers may finally be beginning.

Here’s the ULP statement by Walmart. Here’s the letter they sent to the UFCW. (Both courtesy of Reuters.)


Nov 5, 2012
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Do I Have to Give My Employees Time Off to Vote?

B.H. Anderson - Portland, Me. to Portland, Ore. (LOC)

So, tomorrow is finally election day.

And in an effort to cut off any last-minute desperate calls from employers, I figured I’d answer this question in a blog post. Just a note: my practice is primarily in Illinois, which means this post is geared toward Illinois, and I’m throwing in Indiana because so many Chicago businesses have employees across the border. If you have questions about any other state, here’s a link to a state-by-state chart of Voting Leave laws.


For Illinois employers, the state’s election law provides that employees must be given two hours paid time off to vote if:

  1. They will be working within 2 hours of when the polls either open or close; and
  2. They request permission prior to election day (e.g. – today)

If an employee meeting those criteria asks for time off today, they obviously cannot be retaliated against in any way (including a loss of income, according to the law).

But – and this is a really important but – you, the employer, get to decide when the employee can take off. So you have the ability to tailor employee leave to minimize the effect on the business. Take advantage of that.


For workers in Indiana, the answer is no. There is no voter leave law in Indiana. If you want to be nice, be nice.

Oh, and don’t forget to go vote yourself. Small business are the engines/backbones/linchpins/cornerstones/Higgs bosons of the economy and all. Let me know if you have any additional questions.

Oct 4, 2012

The NLRB Is Screwing Everything Up For Everybody. Seriously.

I’m warning you now – this is going to be a long one.

I tried to stay out of it. I really did.

When I first heard that the National Labor Relations Board was targeting non-union companies for restricting employees’ social media activities, my ears piqued, for sure, but I decided to wait. See, I’m trying my best to be an Employment Law pragmatist, especially when it comes to the NLRB. I was taught by some great professors and mentors back when I was in law school that things at the Board change with the seasons, and sometimes unions are on top. It sucks, but you live with it, and focus your clients’ attention on how to avoid labor issues in the first place.

Rule #1 for being a good labor lawyer is you leave your politics at the door.

So, when the Board decided to make employers put up a new poster, it seemed like an odd move, but I figured: “That’s ok. They’re just catching up to nearly every other federal or state agency.” Advise clients. Move on.

And when the Acting General Counsel started issuing these crazy reports on how social media policies were invalid because they restricted the rights of workers to complain about their working conditions, I thought: “Well, that’s just the General Counsel – the Acting General Counsel, even. He contradicts himself in a bunch of places, and he doesn’t make the rules, anyway. This all feels like an overblown PR campaign. Let’s wait and see what the Board has to say about it.”

Well, the Board’s finally issued some opinions, and I’m ripping the duct tape off my mouth. It is now abundantly clear that the NLRB isn’t just interested in cases where employers discipline workers for discussing/complaining about the terms and conditions of their work, or other true attempts to silence or separate workers. No, the Board is after any piece of paper it can find that could, potentially, in some arguable way, have something to do with whatever it thinks is “protected concerted activity”.

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A Lahey | Eavenson Blog

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