‘Not Necessary’ to Decide Merits in Walmart Black Friday Case, NLRB Says

Both sides claimed victory in a ruling by the National Labor Relations Board (NLRB) last week on an unfair labor practice charge filed by Walmart against the United Food and Commercial Workers Union (UFCW) last fall (CED Nov 20 p1). The UFCW used controversial Black Friday work hours as a rallying cry for a nationwide walk-off of Walmart employees in protest of wages, hours, benefits and overall working conditions. Walmart, in response, filed a complaint with the NLRB, seeking an injunction to prevent workers from striking on Black Friday.

The NLRB said “based on specific commitments made by the UFCW, it is not necessary to decide the merits of an unfair labor practice charge” in the case. In Walmart’s charge, the retailer alleged that the UFCW, through its subsidiaries Making Change for Walmart and OUR Walmart, violated the National Labor Relations Act by picketing at Walmart stores for more than 30 days with intent of seeking recognition for the union, without filing a petition for an election. The UFCW contended that the Black Friday and other protests at Walmart stores weren’t intended to gain union recognition but to help employees in their efforts to have the employer commit to certain labor rights and standards, the NLRB said.

Under the NLRB ruling, the charge will be held in abeyance and dismissed in six months as long as the union complies with commitments it has made. Those commitments include disavowing any recognitional or organization object; publishing such a disclaimer on the Making Change for Walmart and OUR Walmart websites; promising not to engage in picketing or confrontational conduct that’s the “functional equivalent of picketing” for 60 days, and notifying supporting organizations of the commitments, according to an advice memorandum issued by the NLRB.

The UFCW called the NLRB ruling “a big win for us,” in a statement. “We have clarified OUR Walmart’s purpose, which is to bring Associates together to support each other and to call on Walmart to publicly commit to make needed changes in labor rights and conditions, but we are not aiming to have Walmart recognize or bargain with us as the representative of Associates,” it said. The UFCW acknowledged it committed to “not engage in picketing or the ‘functional equivalent thereof,'” which, it said, “legally refers to a very specific type of activity but does not prohibit all activity at the store.” Reiterating its position that the ruling was a triumph for the union, the UFCW said, “Walmart did not win their argument against our actions and after this 60-day period we can resume full scope of activity provided we are clear on our purpose."

Walmart, for its part, also applauded the efforts of the NLRB in its investigation and said, “Many of the union’s demonstrations and pickets used before Black Friday were illegal.” In a statement, David Tovar, vice president of communications for Walmart U.S., noted that as part of the agreement, the UFCW says in its letter to the NLRB that it has no intent to force or require Walmart to recognize or bargain with UFCW or OUR Walmart as the representative of its employees. He added that the unfair labor practice charge against the union will remain in place for “several months as part of this settlement to hold the UFCW accountable should it violate the agreement during that time."

Tovar called the ruling “good news for our associates, who have asked us to stand up to this conduct because they understand better than anyone the opportunities Walmart offers.” He said Walmart promotes about 170,000 people annually to jobs with more responsibility and higher pay and that more than 250,000 associates have been with the company for more than 10 years. “Our associates can now move forward knowing that the UFCW must stop its illegal and disruptive activities,” Tovar said.