Walmart Challenges the National Labor Relations Board

Wal-Mart Stores Inc. told the National Labor Relations Board that it was within its rights when it disciplined workers for taking part in short strikes, setting up a legal test of a phenomenon that is reshaping relations between companies and labor.

In a filing last week that responded to a complaint brought by the labor board, Wal-Mart argued those intermittent job actions are hard to distinguish from absenteeism and it was defending its legitimate business interests when it warned strikers it would enforce its policies about being away from work.

Workers generally have a well-established right to strike whether part of a union or not. The twist in the dispute between the labor board and Wal-Mart is that the actions by the discount retailer's employees don't look much like traditional strikes.

The strikes at Wal-Mart—along with similar walkouts at other companies—were guided by advocacy groups that organize over the Internet and specialize in sporadic, short-term protests and social-media campaigns to make their points.

Whether those actions are covered by the 1935 National Labor Relations Act is less clear, labor lawyers say. As such, the outcome of the case could have broad implications for companies confronting the new wave of nonunion protesters employing the shorter strikes.

"The NLRB is using this case to try to stretch the concept of protected strikes," said Steven Wheeless, a Phoenix lawyer representing Wal-Mart against the federal agency. "We're in the beta-testing phase right now on a new union strategy that has far-reaching consequences."

The labor board monitors compliance with federal labor law and can act to prevent or redress unfair labor practices. Its decision to press a case against Wal-Mart thrusts it into another potentially high-profile corporate fight, following a dispute with Boeing Co. over a factory-siting decision three years ago. The NLRB later dropped its complaint against Boeing after the company reached a new contract with the union involved.

Traditional strikes typically run until a specific objective such as higher wages or better benefits is achieved. But employers have become quicker to hire replacement workers when their employees walk off the job, and the deep recession and sluggish recovery have raised the risks for workers on long walkouts. In response, workers have gravitated toward so-called intermittent strikes: sporadic, but repeated actions in which workers walk out for a relatively short time and then return to work.

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