Walmart Stores, Inc., 368 NLRB No. 24
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NOTICE: This opinion is subject to formal revision before publication in the turned to work stoppages. There were four sets of strikes bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. in the record. First, in October 2012, more than 58 20570, of any typographical or other formal errors so that corrections can Walmart employees at certain locations in the Los Ange- be included in the bound volumes. les area went on strike. Second, on Black Friday in No- Walmart Stores, Inc. and The Organization United for vember 2012, there was a nationwide strike involving Respect at Walmart (Our Walmart). Cases 16– about 100 employees. Third, the Ride for Respect in late CA–096240, 16–CA–105873, 16–CA–108394, 16– May to early June 2013 involved 100 to 130 employees CA–113087, 16–CA–122578, 16–CA–124099, 21– striking for 5 to 6 days so that strikers could travel to the CA–105401, 26–CA–093558, and 13–CA–107343 Respondent’s annual shareholders’ meeting to demon- July 25, 2019 strate. Fourth, on Black Friday in November 2013, there DECISION AND ORDER was a nationwide strike involving an unspecified number of employees. At issue here, the Respondent disciplined BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL or discharged 54 employees who participated in the May- On January 21, 2016, Administrative Law Judge Geof- June 2013 Ride for Respect for violating its attendance frey Carter issued the attached decision. The Respondent policy. filed exceptions and a supporting brief, the General Coun- II. ANALYSIS sel and the Charging Party each filed an answering brief, and the Respondent filed reply briefs. In addition, the The Board has consistently held since the Supreme General Counsel and the Charging Party each filed cross- Court’s decision in Auto Workers Local 232 v. Wisconsin exceptions and a supporting brief, the Respondent filed Employment Relations Board (Briggs & Stratton), 336 answering briefs, and the General Counsel and the Charg- U.S. 245 (1949), that intermittent strikes are unprotected ing Party each filed a reply brief. by the Act. In other words, intermittent strikes are not un- The National Labor Relations Board has delegated its lawful, but employers do not contravene the Act by disci- authority in this proceeding to a three-member panel. plining participants in such strikes. The Board has considered the decision and the record in Simply put, an intermittent strike unprotected by the Act light of the exceptions1 and briefs and has decided to af- is a strike pursuant to “a plan to strike, return to work, and firm the judge’s rulings,2 findings, and conclusions only strike again.” Farley Candy Co., 300 NLRB 849, 849 to the extent consistent with this Decision and Order.3 (1990). In the rare case where there is direct evidence of The central issue in this case is whether a May-June a strategy to use a series of strikes in support of the same 2013 work stoppage, called the “Ride for Respect,” was goal, it is a straightforward matter to find the work stop- an intermittent strike unprotected by the National Labor pages unprotected. See Honolulu Rapid Transit Co., 110 Relations Act. If it was, the Respondent did not violate NLRB 1806, 1807–1811 (1954) (unprotected where union Section 8(a)(1) by disciplining and discharging employees admittedly designed scheme to strike only on weekends); who participated in the stoppage. The judge found that it Pacific Telephone & Telegraph Co., 107 NLRB 1547, was not an intermittent strike and accordingly held that the 1548–1550 (1954) (unprotected where “[CWA’s] an- Respondent violated Section 8(a)(1). We find that the nounced strategy consisted of a multiplicity of little ‘hit Ride for Respect was an intermittent strike and reverse the and run’ work stoppages deliberately calculated, in judge’s finding. CWA’s own words, to ‘harass the company into a state of confusion’”). I. FACTS This is one of those rare straightforward cases. There is OUR Walmart is a group for Walmart employees that direct evidence of a plan to strike, return to work, and the United Food and Commercial Workers Union strike again, repeatedly. All of the strikes here were in (UFCW) supported and helped form. OUR Walmart ini- support of the same goal of broadly improving Walmart tially employed various tactics to publicize its broad mes- employees’ wages, hours, benefits, and other working sage of improving Walmart employees’ wages, hours, conditions. The UFCW and OUR Walmart stipulated on benefits, and other working conditions, but it ultimately the record in this case that “[t]he UFCW and OUR 1 In the absence of exceptions, we adopt the judge’s findings that the 2 We agree with the judge’s decision to grant the Respondent’s mo- Respondent violated Sec. 8(a)(1) by threatening employee Josue Mata tion to enforce the terms of the parties’ protective order ensuring the con- on November 19, 2012, at its Wheatland, Texas store that employees fidentiality of certain documents produced at the hearing. who went on strike on Black Friday would be fired and that the Respond- 3 For the reasons stated in the judge’s decision, we adopt the judge’s ent did not violate Sec. 8(a)(1) by discharging employee Louis Callahan. findings that the Respondent did not violate Sec. 8(a)(1) by telling em- We include an Order and notice limited to remedying the unexcepted to ployees that their strike activity was “under review” or by discussing em- violation at the Wheatland store. ployees’ participation in strike activities during two televised interviews. 368 NLRB No. 24 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Walmart intend to continue planning and assisting not a pattern of intermittent stoppages),5 with Embossing Walmart workers in striking in a manner consistent with Printers, Inc., 268 NLRB 710, 722–724 (1984) (employer the strikes that the UFCW and OUR Walmart helped plan lawfully locked out employees who walked out to attend and assist Walmart workers hold in October and Novem- the third union meeting in about a week).6 Also, work ber 2012, June 2013, and November 2013,” effectively ad- stoppages responding to distinct employer actions or is- mitting a strategy to use a series of strikes in support of sues, even if close in time, are simply not pursuant to a the same goal. The Ride for Respect, the third strike un- plan to strike intermittently for the same goal and are dertaken pursuant to this strategy, was thus an unprotected therefore protected. Compare, e.g., WestPac Electric, intermittent strike, and the Respondent’s disciplining and Inc., 321 NLRB 1322, 1360 (1996) (three separate strikes discharging some of the participants pursuant to its attend- within 2 weeks were protected because strikes were not ance policy was lawful.4 “intentionally planned and coordinated”; “each strike had In finding the Ride for Respect was not an intermittent its distinct origins and motivating antecedent features”), strike, the judge incorrectly employed a multifactor anal- Chelsea Homes, Inc., 298 NLRB 813, 831 (1990) (pro- ysis. The judge failed to recognize that the ultimate in- tected where two stoppages were “unique to [their] facts quiry in every Board case on the subject, either explicitly and circumstances”),7 and City Dodge Center, Inc., 289 or implicitly, has been whether the work stoppage was NLRB 194, 194 fn. 2 (1988) (protected because actions pursuant to a strategy to use a series of strikes in support were “a series of reactions to steps taken by the Respond- of the same goal. In the absence of direct evidence, the ent,” not “a plan to strike, return to work, and strike Board has examined the surrounding circumstances to de- again”),8 with Swope Ridge Geriatric Center, 350 NLRB termine whether work stoppages were pursuant to a plan 64, 64 fn. 3 (2007) (two work stoppages a few weeks apart to strike, return to work, and strike again. For example, were unprotected where “the parties were unable to reach work stoppages that are frequent and short in duration are agreement on a wage increase . [and] the Union prof- more likely to be part of a strategy of intermittent stop- fered no alternative reason for its conduct. Thus, we find pages. Compare, e.g., Polytech, Inc., 195 NLRB 695, 696 that the strikes were part of the Union’s bargaining strat- (1972) (“[The] presumption that a single concerted refusal egy and, because the bargaining dispute continued with no to work overtime is a protected strike activity . should evident changed purpose, there was a reasonable basis for be deemed rebutted when and only when the evidence finding that the pattern would continue”). The judge here demonstrates that the stoppage is part of a plan or pattern misinterpreted the Board’s examination of such facts to be of intermittent action which is inconsistent with a genuine introducing factors of independent significance. It did not. strike or genuine performance by employees of the work If, as here, there is direct evidence that a strike was pursu- normally expected of them by the employer.”) and Rob- ant to a strategy to use a series of strikes in support of the ertson Industries, 216 NLRB 361, 362 (1975) (two work same goal, additional inquiry is simply unnecessary.9 stoppages, one in November and one in February, were 4 Some of the employees who participated in the Ride for Respect protected” and that if employees “participate[d] in future union-orches- had not participated in the earlier strikes. Although it was their first trated intermittent work stoppages,” the Respondent would treat their ab- strike, employees who participated in only the Ride for Respect associ- sences from work as unexcused.