Walmart takes legal action against Black Friday employee protests

November 21, 2012

Low wage guaranteeIn just a few days is “Black Friday” – the day after Thanksgiving and one of the most significant shopping days of the year.

One of the reasons for this is because of the substantial bargains offered by retailers, who often will only offer these special deals during a small period time, typically very early on Friday morning.

Recently, however, many retailers began opening their stores on Thanksgiving evening

When Walmart announced plans earlier this month to move its opening from 10:00 p.m. Thanksgiving evening (last year’s opening) to 8:00 p.m. Thanksgiving evening, a group of Walmart workers announced plans to stage a walkout during the sale.

This labor demonstration isn’t the only one that Walmart has had to contend with recently.

For the past several months, employees of the retail giant have staged protests outside of many stores across the country.

These labor demonstrations have not escaped Walmart’s attention, which is known for its ardently anti-organized labor policies.

In response to this latest threatened labor action, Walmart has filed an unfair labor practice charge against the United Food and Commercial Workers International Union (UFCW) with the National Labor Relations Board (NLRB).

According to Walmart, the UFCW is responsible for these demonstrations through its “subsidiaries, affiliated organizations, and agents, including that labor organization known as “OURWalmart.”

OURWalmart (Organization United for Respect at Walmart) has indeed played a leading role in organizing these demonstrations (along with another, similar organization, “Making Change at Walmart”).

How much either of these organizations’ involvement in these demonstrations was independent of UFCW is still unanswered.

Why is that important?

The section of the National Labor Relations Act cited by Walmart that the UFCW is allegedly in violation of is Section 8(b)(7)(C) (A.K.A. 29 U.S.C. § 158(b)(7)(C)).

That section prohibits the picketing of any employer by a labor organization where the object of the picketing is to force the employer to bargain with the labor organization (without filing a petition to do so with the NLRB).

So, if OURWalmart turns out to have been pretty cozy with the UFCW in planning and executing these demonstrations, it may not look good for the labor organizations.

But that isn’t the end of the story.

The object of the demonstration must have been to force Walmart to bargain with UFCW.

There is little or no mention of UFCW or any other major labor union in any of the messages or stated aims of OURWalmart or Making Change at Walmart.

Regardless, there is some kind of connection between the UFCW and OURWalmart; according to a 2011 filing with the Labor Department, OURWalmart is a subsidiary of UFCW.

Will the groups’ connection on paper be enough to sustain Walmarts’ complaint?

Perhaps, but it doesn’t seem likely without there being some substantive evidence that the point of these protests was to get the UFCW into Walmart.

After all, it’s fairly defensible to claim that, by helping Walmart workers achieve higher pay and better working conditions – even without their being unionized – the UFCW benefits because it will be easier for unionized businesses to compete against Walmart.

It’s probable that Walmart expected that this claim wouldn’t solve its recent labor relations woes, but I don’t think that was the point.

Instead, it was meant as a threat to back off or expect worse.

Whether this legal action or the implied threat are successful remains to be seen.

(On a side note, Walmart was unsuccessful in another legal action against OURWalmart through UFCW for using the domain name “walmartat50.com” a few months back.)

Nevertheless, it seems that there will still be a new addition in Walmart stores this Black Friday: protesting employees.

Shameless marketing plug: If you want to get some great Black Friday deals without risking the disgruntled employees, you can check out the Westlaw Store, which is having its own Black Friday sale on Friday from 10 a.m. to 3 p.m., and all day on Monday.