If your employees don’t have a union and they stop working, can you discipline them? In a recent decision, an Administrative Law Judge for the National Labor Relations Board said not if it is a true strike and not just an intermittent work stoppage. The case arose from the activities of a group called Organization United for Respect at Walmart (OUR Walmart) that is working with Walmart employees and others to advocate for improved working conditions for Walmart employees. OUR Walmart is backed by the United Food and Commercial Workers International Union but neither organization is a collective bargaining representative for Walmart employees (who are not unionized). In 2012 and 2013 (you can read the ALJ’s opinion if you want the details), OUR Walmart coordinated a set of strikes lasting 1-3 days, during which some Walmart employees missed work and some traveled to Walmart’s annual shareholders meeting to protest.

Walmart did not discipline anyone for participating in these strikes but did count the absences against employees under the attendance policy. As a result, some employees were disciplined and some were terminated. OUR Walmart filed unfair labor practice charges, claiming the discipline violated Section 8(a)(1) of the National Labor Relations Act (NLRA). Walmart responded that the strikes were hit-and-run intermittent work stoppages that were not protected.

As a quick reminder, Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Although many people think the NLRA only applies to employees in unionized settings, these rights are not dependent on having a union. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

In a 100+ page opinion, the ALJ said the strikes were protected under the NLRA, not intermittent work stoppages. He ordered Walmart to expunge disciplinary actions and put terminated employees back to work with back pay. The legal analysis for why the strikes were protected is incredibly fact specific, so if you are dealing with such activity, be careful. If one person refuses to work, it might be insubordination. If two or more stop work—especially if they are arguably complaining about working conditions– you may have a protected strike on your hands.