Employment Law Daily Divided NLRB finds ‘Ride for Respect’ by Walmart employees was intermittent strike unprotected by NLRA
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Tuesday, July 30, 2019

Divided NLRB finds ‘Ride for Respect’ by Walmart employees was intermittent strike unprotected by NLRA

By Ronald Miller, J.D.

Intermittent strikes are not protected by the NLRA, so employers do not violate the Act by disciplining participants in such strikes.

A “Ride for Respect,” in which 100 to 130 Walmart employees went on strike for five or six days to travel to Walmart’s annual shareholders’ meeting in order to demonstrate, was an intermittent strike unprotected by the NLRA, ruled a divided three-member panel of the NLRB. The Ride for Respect was part of a plan to strike, return to work, and strike again, repeatedly, under a strategy in support of broadly improving Walmart employees’ wage, hours, benefits, and other working conditions. Accordingly, the Ride for Respect was an intermittent strike, and Walmart did not violate Section 8(a)(1) of the Act by disciplining and discharging employees who participated in the work stoppage. Member McFerran filed a separate opinion dissenting in part (Walmart Stores, Inc., July 25, 2019).

Work stoppages. OUR Walmart is a group for Walmart employees that the United Food and Commercial Workers (UFCW) Union supported and helped to form. It employed various tactics to publicize its message of improving Walmart employees’ wages, hours, benefits, and other working conditions, but it ultimately turned to work stoppages.

OUR Walmart conducted a set of four strikes. First, in October 2012, more than 58 Walmart employees at certain locations in the Los Angeles area went on strike. Second, on Black Friday in November 2012, there was a nationwide strike involving over 100 employees. Third came the Ride for Respect in late May and early June 2013. Fourth, on Black Friday in November 2013, there was a nationwide strike involving an unspecified number of employees.

At issue here: Walmart’s discipline or discharge of 54 employees who participated in the May-June 2013 Ride for Respect. The event involved 100-130 employees striking for fire or six days in order to travel to Walmart’s annual shareholders’ meeting to demonstrate. Walmart terminated the workers for violating its attendance policy.

Intermittent strikes. Intermittent strikes are not protected by the NLRA, so employers do not contravene the Act by disciplining participants in such strikes. The central issue in this case, then, was whether the Ride for Respect was an intermittent strike.

An intermittent strike is “a plan to strike, return to work, and strike again.” Here, there was direct evidence of a plan to strike, return to work, and strike again, repeatedly. All of the strikes were in support of the same goal of broadly improving Walmart employees’ wage, hours, benefits, and other working conditions. The UFCW and OUR Walmart stipulated that they intended to continue planning and assisting Walmart employees in striking in a manner consistent with the prior strikes, effectively admitting a strategy to use a series of strikes in support of the same goal. Thus, the Ride for Respect was an unprotected intermittent strike, and Walmart lawfully disciplined and discharged some of the participants pursuant to its attendance policy.

Multifactor analysis. In finding that the Ride for Respect was not an intermittent strike, the administrative law judge had incorrectly employed a multifactor analysis. The ALJ failed to recognize that the ultimate inquiry in every Board case on the subject, either explicitly or implicitly, had been whether the work stoppage was pursuant to a strategy to use a series of strikes in support of the same goal, the Board explained.

In the absence of direct evidence, the Board has examined the surrounding circumstances to determine whether the work stoppages were pursuant to a plan to strike, return to work, and strike again. Work stoppages that are frequent and short in duration are more likely to be part of a strategy of intermittent stoppages. On the other hand, work stoppages responding to distinct employer actions or issues, even if close in time, are simply not pursuant to a plan to strike intermittently for the same goal and are therefore protected. However, if as here there is direct evidence that a strike was pursuant to a strategy to use a series of strikes in support of the same goal, additional inquiry is simply unnecessary, the majority said.

Partial dissent. Member McFerran argued that the Board majority imposes a new standard that sharply cuts back on the right of American workers to protest their job conditions by striking. While McFerran acknowledged that the Board has long treated certain strike tactics as outside the protection of the Act, she argued that this case did not involve such tactics. In her view, this ruling took a legitimate protest by unrepresented workers unsatisfied with working conditions and classified it as an unprotected “intermittent” strike, even though it was buffered by months of strike inactivity.

According to the dissent, the Ride to Respect had a wholly different character than the kinds of intermittent strikes found unprotected in the past. According to McFerran, the Board majority here sharply reduces the scope of protected strike conduct.

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