The National Labor Relations Board (the "NLRB") announced yesterday that it has issued a complaint against Walmart, asserting that it had broken U.S. labor laws during the Black Friday strikes  of 2012 and 2013.  The complaint alleges that Walmart violated the National Labor Relations Act (the "Act") by issuing threats to or punishing employees who participated in the coordinated walkouts.  In particular, the general counsel for the NLRB accuses Walmart of illegally firing, disciplining, or otherwise coercing over 60 employees across 14 states for involving themselves in the strikes, which purportedly were organized to protest low wages and substandard working conditions.

The strike actions at issue in this complaint are somewhat unusual because the group acting ostensibly on the employees’ behalf, OUR Walmart, is not technically a union.  Instead, it is a grass-roots group made of up local activists, clergy members, and some former employees of the superstore, whose stated goal is to improve wages and benefits for Walmart employees.     

In the complaint, the Board mentions an internal Walmart memo that was allegedly read aloud to workers in February of last year, which warned employees that Walmart did not consider such "hit-and-run work stoppages" to be protected activity under the Act and "will not excuse [such strikes] in the future."  The complaint further references an incident in November of 2012 when a Walmart spokesperson appeared on CBS News.  In his appearance, David Tovar warned that there would be "consequences" for any Walmart employees who chose to take part in the labor stoppages.  Those comments were reportedly made known to employees in several states by store managers as well.  

Commenters have noted that the NLRB has been particularly aggressive recently, going so far as to insert itself into disputes that do not involve traditionally direct labor-management relationships: 

"The NLRB is being a little more assertive at protecting the collective rights of workers in non-union settings, something they haven’t traditionally done in their history," said Richard W. Hurd, a labor studies professor at Cornell University. "They’re trying to carve out a little more territory in a measured, reasonable way — not as a politically motivated stunt."

Walmart now has until the end of this month to respond to the Board’s complaint.  A spokeswoman for the company noted that the retailer has been engaged in discussions with NLRB officials since November of last year, when settlement talks were reportedly taking place.  However, those talks did not bear fruit, so a hearing date will be set in the near future.         

While the company will not be facing any financial penalties if found guilty of this myriad of unfair labor practice charges filed against it, Walmart could  potentially be forced to award back pay to employees or reinstate them, as the case may be.  Further, if any disciplinary actions against striking employees are found to be unfair labor practices, the company would likely have to rescind those actions.   

All employers ought to follow these developments closely, but particularly those in the food and retail sector impacted by recent campaigns of highly publicized job actions.  We will post updates as events warrant.