[co-author: Tracey O'Brien]

Key Points

• Direct evidence of a plan to engage in repeated strikes to achieve a common goal establishes that such strikes are unprotected, intermittent strikes.
• Only in the absence of direct evidence will the Board consider extenuating circumstances to evaluate whether multiple strikes constitute protected activity.

On July 25, 2019, a majority of the NLRB (Board) decided in Walmart Stores, Inc, and The Organization United for Respect at Walmart (Our Walmart), that direct evidence of a plan to conduct a series of strikes by striking, returning to work, and striking again, repeatedly in support of the same goal establishes the existence of an unprotected, intermittent strike. The Board decision overturned the ALJ’s opinion and concluded that Walmart’s discipline of workers for participation in at least one of four intermittent strikes over a two-year period was lawful and did not result in a §8(a)(1) violation of the NLRA for infringement of employees’ §7 right to engage in concerted activities.

Background relating to the strikes at Walmart

OUR Walmart is a group founded by Walmart workers with the assistance of the union, UFCW, to organize workers and to induce Walmart to make changes in their employment practices and working conditions. The UFCW represents workers in a variety of retail settings but was not the union representative for Walmart workers. Nonetheless, the union assisted Walmart employees with their OUR Walmart engagement strategy of conducting four strikes which occurred in October 2012, November 2012, May to June 2013, and November 2013 for the stated purpose of improving employee’s wages, hours, benefits, and other working conditions.

In May to June 2013, OUR Walmart planned a coordinated set of strikes among various Walmart stores, referred to as the “Ride for Respect,” in which approximately 100 to 130, out of the 1.3 million Walmart employees, travelled to Bentonville, Arkansas for approximately six days during the annual Walmart shareholders’ meeting to protest working conditions. As a result of their participation in the strike, 54 Walmart workers were either disciplined or discharged under the Walmart attendance policy. Walmart contended the strikes were intermittent work stoppages and not protected under §7 of the NLRA. On the issue of the May-June 2013 strikes, the ALJ found that Ride for Respect was not an intermittent strike, and the discipline and discharge of the employees for unexcused absences during their participation in the Ride for Respect violated §8(a)(1) of the NLRA.

In reaching his conclusion, the ALJ acknowledged that OUR Walmart engaged in four strikes to advance the same goal as part of the “Making Change at Walmart” campaign and that the parties entered into a stipulation that OUR Walmart intended to continue planning similar strikes in the future. As such, the ALJ concluded that Walmart employees “had engaged in a pattern of recurring strikes and have demonstrated their intent to engage in recurring strikes in the future.” Despite his finding, the ALJ also considered five factors to determine whether the May-June 2013 strike was part of that plan and constituted an intermittent strike. In his analysis, the ALJ concluded that the Ride for Respect did not constitute an intermittent strike because it was not brief, was not scheduled close in time to the other strikes and like the other strikes, was not used to exert economic pressure on Walmart during collective bargaining negotiations. The majority of the Board disagreed.

What is an intermittent strike?

At the outset, the majority characterized the case as a “rare straight forward case” with “direct evidence of an intermittent strike.” The Board defined an intermittent strike as a plan to strike, return to work, and strike again, repeatedly.” The direct evidence establishing the existence of the intermittent strike was the union’s and OUR Walmart’s stipulation that they intended to plan future strikes similar to the four strikes in 2012-2013. According to the majority, an inquiry into the circumstances surrounding work stoppages is only proper in the absence of direct evidence of a plan to conduct a series of strikes. No such inquiry into the circumstances was necessary in light of the parties’ stipulation that they planned to engage in a series of future strikes to achieve a common, unchanging goal.

The crucial factor for the majority was OUR Walmart’s plan to use repeated strikes in pursuit of a common goal without any intervening event that precipitated the decision to engage in a subsequent strike. A protected strike necessitates that employees withhold their labor services while negotiating their demands with the employer until their demands are either satisfied or rejected. A plan to engage in random, intermittent, brief strikes was characterized as comparable to economic, ambush warfare and not sanctioned by Congress or protected under the NLRA. The Board also flatly denied that the repeated strikes must reach a certain threshold of disruption to be regarded as unprotected, intermittent strikes and clarified that a new decision to strike would not constitute an intermittent strike, if supported by new developments warranting a new strike.

What this means to you

The Board’s decision in the Walmart case provides some clarity on the issue of whether work stoppages are protected or unprotected activity. The test is whether the work stoppages are part of plan to achieve a common goal and the decision to strike is unaffected by new circumstances. While the parties’ stipulation provided that proof in this case, undoubtedly, future cases that lack such direct evidence will require the more familiar analysis of factors to determine the protected status of work stoppages.