Get Up, Stand Up…Stand Up for your Rights in the Front of the Store, says NLRB

By: Deborah Kick

At 6 a.m. on November 21, 2012, at a Walmart in Richmond, California, six employees stopped working and gathered at the “customer service area near the front of the store.”[1] Their purpose was to protest. Walmart issued disciplinary warnings to the six workers involved in the protest.[2] The National Labor Relations Board (hereinafter “NLRB”) said these warnings were “unlawful … discipline,” though it did concede that the protest caused some inconvenience for shoppers.[3] I agree with the NLRB’s ruling.

The employees at issue were specifically protesting against an “abusive” supervisor of the store, Art Van Riper.[4] The protest was largely the follow-up of a complaint letter sent by workers to management of the store. The letter discussed Van Riper, and additionally “demanded permanent jobs for temporary workers for a store remodeling project.”[5] The complaint about the Van Riper was in regards to him supposedly “placing a rope on a store counter” where a black employee was working and saying to the employee that he would like to “put the rope around your neck.”[6]

The protest, contained to the customer service area of the store, involved, as mentioned, six employees, but also included “non-employee protestors.”[7] The protestors conducted their protest, which included a banner which read “Stand Up, Live Better, ForRespect.org, Our Walmart, Organization United for Respect at Walmart.”[8] The employees returned to work later that day, after having officially stopping working at 7 a.m.,[9] but the store “issued [the employees] with disciplinary coaching that could lead to their termination in the event of future infractions.”[10]
The NLRB, in a 2-1 decision, did not find the discipline appropriate. The administrative judge writing the decision, relying on a previous decision which outlined “a 10-factor test involving QuietFlex Manufacturing Co.”[11][12]  “found that the employee work stoppage was protected” under the National Labor Relations Act and “that [Walmart’s] discipline therefore violated Section 8(a)(1) of the Act.”[13] More specifically, the judge declared “the employees did not lose the protection of the Act because their protest was peaceful and largely confined to a small, partially enclosed customer waiting area near the front … and they promptly complied with directions to return to the customer waiting area or to clock out and leave the store.”[14] The dissenting judge felt the protest should have been held outside the store.[15]

On Wednesday, September 7, Walmart “filed a petition … with the D.C. Circuit” to appeal the decision.[16] Walmart “didn’t make any legal arguments in its one-page petition,” but will likely give substantive reasons for its appeal in mid-October, which is when “substantive documents … including the statement of issues to be raised, are … due.”[17] In a statement to Law360, a spokesperson for Walmart proclaimed the protest interfered with the “welcoming and comfortable store experience” that customers should have when shopping at Walmart.[18]

I believe the NLRB’s ruling was correct. The employees, containing their protest to a small portion of a “large, multi-story department store,”[19] did not terribly interfere with shoppers’ shopping experiences. Rather, they were peacefully and respectfully exercising their right to express an opinion on their supervisor’s behavior, and commenting on what should happen to temporary workers. From a legal standpoint, as their actions did not remove them from protected by the National Labor Relations Act, and on a more generally did not physically harm anyone or actually stop anyone from shopping in the store, there is nothing illegal about their actions. I am interested to see the results of the appeal.

[1] Mike Aldax, Labor board rules in favor of Walmart workers who protested inside Richmond store, Richmond Stand. (Sept. 7, 2016), http://richmondstandard.com/2016/09/labor-board-rules-in-favor-of-walmart-workers-who-protested-inside-richmond-store/.

[2] Matthew Bultman, Wal-Mart Appeals NLRB Ruling On In-Store Protest, LAW360 (Sept. 9, 2016, 3:50 PM),  http://www.law360.com/employment/articles/838316/wal-mart-appeals-nlrb-ruling-on-in-store-protest.

[3] See Aldax, supra note 2.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See Bultman, supra note 3.

[10] See Aldax, supra note 2.

[11] See Bultman, supra note 3.

[12] In Re Quietflex Mfg. Co., L.P., 344 N.L.R.B 1055, 1056–57 (2005).

[13] Wal-Mart Stores, Inc., 364 N.L.R.B. 118 (2016).

[14] Id.

[15] See Alpex, supra note 2.

[16] See Bultman, supra note 3.

[17] Id.

[18] Id.

[19] See 364 N.L.R.B. 118, supra note 14.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: