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Wal-Mart challenges NLRB complaint, says law not a ‘prop’ for unions

Plenty of eyes are watching the outcome of a formal complaint by the National Labor Relations Board against the nation's largest private employer, Wal-Mart Stores Inc. But, the retail juggernaut is standing its ground and challenging the validity of the compliant filed last month.

The retailer said it acted within its rights to discipline workers who failed to adhere to the company's attendance policy, according Wal-Mart' recent response filing reviewed by The City Wire.

The complaint alleged three violations of NLRB rules.
• During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests.

• At stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington, Walmart unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.

• At stores in California, Florida, Missouri and Texas, Walmart unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.

Wal-Mart denied the allegations in the filing. In the response, Wal-Mart argued the "intermittent job actions" described in the original complaint was difficult to distinguish from absenteeism. The retailer said it warned employees two and three times for missing scheduled work days and employees were repeatedly told the company would enforce its attendance policies.

Wal-Mart claims the walkouts were orchestrated by advocacy groups, supported and publicized by the United Food & Commercial International Workers Union. The "strikes" taking place at Wal-Mart were not traditional in the sense that workers walk off the job, while their union delegates negotiate for higher wages, better working conditions or some other demand. In the Wal-Mart incidents the workers protest at designated stores or outside the home office for a short time period.

Experts said while workers typically do have the right to strike, it is unclear if the walkouts at Wal-Mart fit the criteria and are covered by the 1935 National Labor Relations Act. 

"Walmart does not believe Congress created intermittent strike leave to serve as a prop for union campaign messaging at the expense of customer service, operational efficiency and the co-workers who have to cover for employees," the company noted in the Jan. 27 response.

The retailer claimed the strikes are intended to disrupt staffing and customer service. Wal-Mart also argued that it never gets notice from Our Walmart about which employees will strike or which stores or departments will be affected. The retailer claims these tactics are not protected by law.

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Some legal experts have said the NLRB is moving into uncharted territory exploring the intermittent-strike issue with this case.

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