WASHINGTON (CN) – Wal-Mart improperly punished workers who participated in strikes against the company in 2013, and must offer to reinstate 16 fired employees, a National Labor Relations Board Judge ruled.
The retail giant fired or issued formal warnings to 55 employees who missed work to take part in the Ride for Respect, a week-job action outside the company’s Bentonville, Ark. headquarters, demanding improvements in their working conditions.
As punishment for violating the National Labor Relations Act, Wal-Mart must give back pay to 16 former employees and offer them full reinstatement to the positions they held, Administrative Law Judge Geoffrey Carter announced on Thursday.
The company must also hold meetings at 29 stores to inform employees of their right to strike, Carter said.
The Organization United for Respect at Wal-Mart (OUR Wal-Mart), the organization that helped plan and carry out the strikes, first filed charges against Wal-Mart over working conditions in November 2012.
It also provided notice of its members’ intention to strike, and claimed Wal-Mart had already made statements intended to intimidate workers who planned to participate in the Ride for Respect and other job actions.
The organization closed by contending that workers who did choose to strike should be protected from discipline under the National Labor Relations Act.
In its defense, Wal-Mart claimed the strikes were “hit-and-run,” irregular work stoppages and therefore the company could punish employees who racked up unexcused absences while participating in them, according to Carter’s decision.
Intermittent work stoppages defined as generally short, reoccurring protests with the same root cause – are not protected under the National Labor Relations Act.
The Ride for Respect strikers planned to speak out against low pay, unpredictable work schedules, expensive health plans, and Wal-Mart’s past retaliation against protestors, according to a strike letter reproduced in the decision.
Wal-Mart was aware of the strikes nearly a month before they began and duly prepared for how it would respond to the actions.
According to Carter’s decision, Wal-Mart put together a list of employees who might strike, preparing “talking points” for its managers to use with their employees, and instructed other workers on how to respond to potential strikers.
Workers across the country participated in so-called Ride for Respect strikes in early June 2013, but the main event was set in Bentonville, where OUR Wal-Mart set up protests across from company headquarters, outside of the home of Wal-Mart founder Sam Walton’s son and in front of Walton’s original five and dime store, according to the decision.
After the strikes, Wal-Mart instructed its managers to simply say “I don’t know” to strikers who asked if they would be fired for missing work, the decision said.
But later Wal-Mart handed down punishments for employees who missed work to attend the strikes. The company counted each missed shift as a “no call/no show” under its discipline policy, meaning any employee who logged three or more missed days for strikes would be fired, Carter found.
Even employees who notified the store of their upcoming absences received discipline, though just in the form of “coaching” on Wal-Mart’s attendance policy, the 111-page decision states.
Carter ruled against Wal-Mart in determining the Ride for Respect strikes were protected under the law because they were not random, brief occurrences but required the strikers to stay out of work for a significant amount of time, unlike like traditional “hit-and-run” strike.
“The Ride for Respect strikes, however, were different, because associates who participated in those strikes typically were on strike for at least a full week,” Carter wrote. “Ride for Respect strikers therefore took on more risk as strikers, since they forewent wages for a longer period of time and faced a higher risk of being replaced due to their extended absences from the workplace.”
Carter also determined it didn’t matter whether the employees told Wal-Mart they planned to go on strike – the NRLB protects their right to strike even without such notice. Wal-Mart had argued in briefs that it did not get sufficient warning some of its workers were going on strike, the decision said.
Wal-Mart also argued some of the strikers it disciplined did not actually participate in the strikes, either because they attended “non-work related events” while on strike, or because they simply stayed home or attended to other personal matters while out of work, according to the decision.
“In short, Wal-Mart faults some discriminatees for doing too much while on strike, and faults other discriminatees for doing too little,” Carter wrote.
But Carter didn’t buy Wal-Mart’s claims, and held the workers went on strike simply by withholding their work.
All of these determinations, coupled with the particular facts of each employee’s discipline, led Carter to determine Wal-Mart violated the National Labor Relations Act.
Making Change at Wal-Mart, an organization that supported OUR Wal-Mart and the Ride for Respect, hailed Carter’s decision in a statement Thursday.
“Today’s decision proves beyond doubt that Wal-Mart unlawfully fired, threatened, and disciplined hard-working employees simply for speaking out,” said Jess Levin, communications director for the organization. “Not only is this a huge victory for those workers, and Wal-Mart workers everywhere who continue to stand up for better working conditions, but it sends a message to Wal-Mart that its workers cannot be silenced. We will continue to fight to change Wal-Mart for the better.”
Wal-Mart took the opposite stance and indicated its intention to defend against the decision.
“We disagree with the Administrative Law Judge’s recommended findings and we will pursue all of our options to defend the company because we believe our actions were legal and justified,” said Wal-Mart spokeswoman Erica Jones in an emailed statement. “We are focused on providing our hard working associates more opportunity for success and career growth by raising wages, providing new training, education and expanded benefit options.”
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