Walmart announced in February that it was increasing its starting hourly wage to $9, which took effect earlier in April, and would be increasing the starting wage to $10 next year. But there is no sign that the wage increase is giving Walmart relief from organized labor groups.
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.
Retaliatory renovations? Walmart is fighting another battle with some overlap to the intermittent strike dispute. On April 13, Walmart announced that it was closing five stores in four states for up to six months to make major plumbing repairs and other in-store changes to improve the customer experience. As a result, approximately some 2,200 employees were given “immediate” layoff notices, with 60 days of layoff pay and some unspecified possibilities of transfer to other stores. The UFCW and its Our Walmart campaign group were blind-sided by the announcement. The UFCW announcedon April 20 that it was filing unfair labor practice charges with the NLRB and asking the NLRB to seek a Section 10(j) injunction to prevent the closings and order reinstatement or transfer of the affected employees. The UFCW claims the closings are in retaliation for the Our Walmart protests. According to news reports, one of the stores being closed is in Pico Rivera, California. Pico Rivera is near Los Angeles, where the Our Walmart group claims to be strong and where its first protest action occurred in 2012.