Despite failing in a legal dispute this summer, the United Food and Commercial Workers shows no sign of backing off its ongoing smear campaign against Walmart.
For years, the union has been using loopholes in labor law in an attempt to strong-arm Walmart into taking the secret ballot away from its employees, the better to organize the retail giant’s workers.
The National Labor Relations Board recently vindicated Walmart after its six-year legal battle with Organization United for Respect at Walmart, known as OUR Walmart, a group supported by the United Food and Commercial Workers and founded by its former president, Joseph Hansen.
In 2013, OUR Walmart organized several work stoppages, making sure they took place during critical corporate events to attract negative media attention and harm the company. These stoppages are different from a typical strike, which is protected under the law. They were called intermittent strikes by the National Labor Relations Board, which describes these events as “‘hit and run’ work stoppages deliberately calculated … to harass the company into a state of confusion.”
The board said that one work stoppage conducted by OUR Walmart was “one of those rare straightforward cases” in which there is “direct evidence of a strategy to use a series of strikes” that are not protected by federal law. It ruled that the company acted lawfully when it disciplined the employees involved for missing work.
That the United Food and Commercial Workers used a strategy of harassment was made clear by its choice to strike only on key days, such as Black Friday and the annual shareholders meeting. The organizers of these media events planned this strategy and likely knew or should have known they would lose the case when OUR Walmart first filed the charges.
But winning in court doesn’t matter to these groups, because the intermittent strikes are more effective than traditional strikes in pressuring employers. Similarly, the charges the union brought against Walmart were meant to garner media attention and create legal headaches that could have all gone away … for a price.
That price is a “neutrality” agreement, which takes away workers’ right to a secret ballot in a union organizing election. Such an agreement removes the final barrier for unions to proceed through a card check or petition scheme to lock itself in as the monopoly bargaining agent for a company’s employees. Card check elections remove privacy from the union organizing process and allow unions to pressure, coerce, and deceive employees into voting for unionization.
Groups such as OUR Walmart, and others with innocuous names like Wake-Up Walmart and Making Change at Walmart, can be very persuasive. They currently are not bound by the restrictions placed on traditional labor groups; they are free to pursue other creative means to achieve their goals of causing confusion and creating public pressure.
For example, OUR Walmart first got its notoriety in 2012 when it started organizing Black Friday protests to embarrass the company and deter sales on its busiest, and arguably most profitable, day of the year. Walmart publicly dismissed the group’s influence and recognized its actions as manufactured outrage. The United Food and Commercial Workers continued this charade for five or six years before the protests finally fizzled out.
These pressure tactics are so important to a union because a card check election can only happen if an employer agrees. But a bill in Congress could make card check much easier for unions and take away employer choice.
If passed, the Protecting the Right to Organize Act of 2019 would mandate card check if a union suggests that an employer interfered with an election and the employer can’t provide evidence to the contrary. In short, it makes the employer guilty until proven innocent.
It’s difficult to say how far the United Food and Commercial Workers will go to wreak havoc on Walmart, but we know it won’t stop until a card check ballot, resulting in unionization, is implemented. These tactics are the union’s only play here, since most Walmart employees simply don’t want to unionize. If they did, the United Food and Commercial Workers could just try for a secret ballot election. That’s the only fact that matters in this feud, and it’s the one thing that union executives can’t contend with.
F. Vincent Vernuccio is a senior fellow at the Mackinac Center for Public Policy, a research and educational institute located in Midland, Michigan.
