Dubious Methods

The UFCW’s random strikes against Walmart might be illegal.

Can Walmart workers have it both ways? A labor “tactic du jour” is intermittent one-day strikes. Historically, employees can work or strike, but they can’t lawfully do both: so-called “intermittent” strikes have not been legally protected. But one-day protests have been the hallmark of a campaign by Our Walmart, which is affiliated with and funded by the United Food and Commercial Workers union (one-day protests are also a hallmark of the “Fight for $15” and affiliated campaigns against retailers and fast food chains). Walmart allegedly warned its would-be strikers in advance of their walkouts that it considered their activity to be “unprotected,” and then disciplined or discharged some of the employees for attendance policy violations. Not surprisingly, Walmart is now defending against an NLRB complaint. According to Walmart (and prior case law), the workers have a right to strike, but they don’t have the right to intermittently strike and “come back” to disrupt the business. On the other hand, Our Walmart and the Board General Counsel apparently contend that the walkouts are protected Section 7 activity, regardless of length and frequency, thus setting up a test case before the Board in somewhat uncharted waters. Unions and worker centers like the tactic because it can, as a practical matter, effectively prevent the replacement of economic strikers. The current NLRB majority will no doubt be receptive to the union argument, as its effort to increase the power of organized labor has been anything but intermittent. How a federal circuit court will view the tactic is less clear.

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