Weeks into a wave of historic strikes, and days before a planned Black Friday showdown, Walmart has filed a National Labor Relations Board charge alleging that the pickets are illegal and asking for a judge to shut them down. Walmart is no stranger to the NLRB: labor groups have filed numerous charges there accusing the retail giant of punishing or threatening activist workers, including dozens over the past few months. But this charge is the first one filed by the company in a decade. It will pose a decision for a judge and, even sooner, for the Labor Board’s Obama-appointed acting general counsel, who’s been a lightning rod for past Republican attacks.
The National Labor Relations Board, created by the 1935 National Labor Relations Act, is tasked with enforcing and interpreting private sector labor law. Walmart’s charge, filed Thursday night and reported by Reuters Friday evening, sets two processes in motion. The first, which could take months, is the full investigation and resolution of the allegation, beginning with fact-finding by board agents based in Walmart’s backyard (NLRB Region 26, which covers Arkansas and three other states). The second, which could advance as soon as this week, is the decision whether to grant an injunction restricting strikes against Walmart while the investigation proceeds. Experts say NLRB Acting General Counsel Lafe Solomon would have final say over whether the board seeks the injunction; if it does, a district court judge will decide whether to grant it.
Reached over e-mail, Walmart Director of National Media Relations Kory Lundberg said that the company filed the charge in part because “many of our associates have urged us to do something about the UFCW’s latest round of publicity stunts…” In an e-mailed statement, Dallas OUR Walmart member Colby Harris called Walmart’s charge “baseless,” and said, “Walmart is doing everything in its power to attempt to silence our voice.”
While the NLRB is most often criticized by conservatives, its swiftest and strongest remedies are devoted to restricting unions. Federal law requires the NLRB to prioritize employers’ allegations of illegal picketing over other charges, and to request an injunction to stop the picketing if it finds “reasonable cause” to believe such allegations are correct, and expects to issue a complaint (the equivalent of an indictment). So injunctions restricting picketing are often granted within a few days of workers’ going on strike (in contrast, workers who allege they were fired for their union activism often wait for months, injunction-less, to find out whether they’ll get their jobs back). Experts say that, if Walmart has strong enough evidence, an injunction could potentially be issued in time to block Black Friday pickets. But that’s a very big “if.”
Walmart’s charge alleges that the United Food & Commercial Workers (UFCW) union is responsible for illegal “representational” picketing – that is, strikes designed to win union recognition from Walmart. Labor law generally forbids unions from engaging in representational pickets for more than thirty days (the US Supreme Court does not apply the same First Amendment protections to labor picketing as it does to “God Hates Fags” pickets at funerals).