The National Labor Relations Board’s (“NLRB”) Associate General Counsel issued an Advice Memorandum, dated February 1, 2014, clearing Wal-Mart Stores, Inc. (“Wal-Mart”) in case numbers 12-CA-105798, 12-CA-105847, and 12-CA-109743 of charges that Wal-Mart violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by disciplining and discharging two employees for engaging in protected activity and by unlawfully surveilling the Organization United for Respect (“OUR”) Wal-Mart’s in-store demonstration.
The NLRB Advice Memorandum concluded that “although a [prima facie] case could be made that the employees’ protected activity was a motivating factor” in Wal-Mart’s decision “to take action” against the employees, the charges should be dismissed, absent withdrawal. That was based on Wal-Mart’s ability to show a Wright Line defense, that it would have disciplined and discharged the employees in the absence of protected activity. Furthermore, the Associate General Counsel concluded that Wal-Mart did not engage in unlawful surveillance.
The facts that led to the unfair labor practice charges involved two employees (Associate 1 and Associate 2) at two Wal-Mart stores in St. Cloud, Florida and Orlando, Florida. The OUR Wal-Mart is a national organization, whose stated goal is:
To educate Wal-Mart’s employees about workplace rights; and
To help them improve their working conditions at Wal-Mart.
OUR Wal-Mart has had numerous rallies and demonstrations at Wal-Mart’s corporate headquarters and retail stores nationwide.
Wal-Mart maintains a progressive discipline policy entitled, “Coaching for Improvement Policy.” Under that policy, an employee may only receive one of each of three written coaching levels (first, second, and third) in any 12 month period. If an employee’s unacceptable job performance or conduct warrants a level of coaching and the employee has already received a third written level of coaching within the 12 month period, the employee is subject to termination.
The policy also states that an employee may be immediately terminated, “if [his or her] unacceptable conduct is found to be serious.” Examples of “serious” misconduct include “intentional failure to follow Wal-Mart policy and theft, fraud, or abuse of an associate benefit or other action involving financial integrity issues.”
Associate 1 Termination
Associate 1, a Wal-Mart employee at Wal-Mart’s St. Cloud’s Florida store, was a member of OUR Wal-Mart since early 2012, but Wal-Mart did not become aware of her involvement until late November, 2012, when she went on strike and picketed outside her store. On April 24, 2013, Associate 1 participated in a demonstration at Wal-Mart’s Kissimmee, Florida store with 20 or more other individuals. When Associate 1 returned to work a few days later, none of her supervisors said anything to her about her participation at the Kissimmee store demonstration.
Shortly after the Kissimmee store demonstration, Associate 1 met with her store managers. They told her that during the course of disciplinary investigation of a different employee, Wal-Mart noticed via the store security video tape that Associate 1 and a 2nd employee were taking extended breaks. The managers told her that her breaks were anywhere from 3 to 20 minutes beyond the permitted 15 minutes break time, and that her extended break time added up to about 295 minutes over 12 shifts.
Associate 1 acknowledged that she knew she was only allowed to take 15 minute breaks, but claimed that she was not aware that she had taken longer breaks. Following this meeting, a store manager spoke to an “Employer Advisory Service” advisor, who handles time theft investigations for Wal-Mart. The advisor recommended that Wal-Mart terminate Associate 1, because she admitted knowing about the policy and repeatedly violated it without a reasonable explanation. Associate 1 was terminated on May 18, 2013 for time theft (violating the company’s break policy).
Wal-Mart provided the General Counsel with the surveillance video tapes, which establish that on at least 19 occasions over the course of a month Associate 1 remained in the break room for longer than 15 minutes.
Wal-Mart also provided evidence that it terminated the second employee on May 15, 2013. Wal-Mart provided copies of the Exit Interview Forms of other employees, showing they were discharged for various dishonest acts, most of which involved theft of time (i.e. falsifying time records) and theft of merchandise. These violations did not require any coaching steps prior to termination. Two additional employees from another Florida store were also discharged for taking extended breaks after Associate 1 and the 2nd employee were discharged.
Associate 2 Termination
Associate 2 worked at Wal-Mart’s Orlando, Florida store and joined OUR Wal-Mart in October, 2012. However, she did not engage in any activity until November 21, 2012, when she participated in a demonstration at Associate 1’s store; and then again, two days later when she participated in a one-day strike at her own store.
In January 2012, Associate 2 cut her finger and received a first level coaching for failing to use proper safety procedure by unplugging a deli-slicer before cleaning it. Wal-Mart provided evidence that another employee was terminated for the same violation.
On December 5, 2012, Associate 2 was issued a 2nd level coaching for failure to complete her assigned tasks on December 5, which consisted of filling the deli-service case and filling the sales floor. Wal-Mart provided evidence that around the same time another employee who failed to complete her work assignments was issued a 3rd level coaching and subsequently terminated.
On January 30, 2013, Associate 2 was issued a 3rd level coaching for violating the employer’s dress code by wearing dangling earrings. Associate 2 later learned that on January 29th, another employee was verbally warned to remove her dangling earrings, but was not given a coaching or written warning. Wal-Mart provided a copy of its dress code policy that states that food handlers may wear only single stud earrings.
On May 25, 2013, Associate 2 failed to comply with Walmart’s policy on food contamination safety and its prohibition on personal belongings in the work space when she left her handbag on the shelf of a table where salads and sandwiches are made. Another employee also had a bag on the shelf, and she received a 1st level coaching because she had no prior discipline.
On May 28, 2013, Associate 2 notified Wal-Mart that she was going on strike. From May 28 through June 11, she participated in OUR Wal-Mart’s “Ride for Respect” strike in Bentonville, Arkansas during Wal-Mart’s annual stockholder’s meeting.
On June 21, 2013, Associate 2 was called into the store manager’s office and told that she was being discharged over her May 25th violation. Her discharge form designated the reasons for her discharge as “Misconduct with Coachings,” because she engaged in misconduct while on the last step of the progressive disciplinary process. Wal-Mart provided evidence of other employees who were discharged when they engaged in similar misconduct while on their last step of the disciplinary process.
As to the surveillance charges, Wal-Mart presented evidence that employees were videotaped by a cellphone of the OUR Wal-Mart’s group of employees at an in-store demonstration, which violated Wal-Mart’s cease and desist/no trespass letters to OUT Wal-Mart and its parent organization, the UFCWU (United Food & Commercial Workers Union) instructing that non-employees of Wal-Mart shall not enter onto or in Wal-Mart property to engage in any demonstrations.
Wal-Mart’s claim that OUR Wal-Mart, the UFCWU and their representatives disregarded the letters and trespassed more than 15 times in 2012 and early 2013 sometimes requiring police assistance before OUR Wal-Mart left the property.
In March 2013, Wal-Mart filed a Florida state trespass lawsuit seeking injunctive relief against OUR Wal-Mart and the UFCWU for multiple in-store demonstrations, blocking ingress and egress, and other trespass violations.
Wal-Mart gave evidence that it did not see Associate 1 or any other current employees participating in the demonstration, that none of the demonstrators identified themselves as employees, and that none of the store managers knew Associate 1.
Wal-Mart also presented evidence that the demonstrators blocked access to the grocery registers that stopped customers, while the demonstrators huddled in a group and loudly chanted and shouted profanities at Wal-Mart. The Regional Manager attempted to take a cell phone photo of this demonstration, but the camera did not work so he put it away. Wal-Mart claimed that the photos were relevant to the ongoing state trespass litigation against OUR Wal-Mart.
Associate General Counsel, Barry J. Kearney, concluded that although a case could be made that the employee’s protected activity was a motivating factor in Wal-Mart’s decision to take action against Associate 1 and Associate 2, the Region should dismiss the charges, absent withdrawal, because Wal-Mart can establish that it would have disciplined and discharged the employees even in the absence of their protected activity. Additionally, the Region should dismiss the surveillance charges absent withdrawal because Wal-Mart had a legitimate reason for photographing OUR Wal-Mart’s in-store demonstration.
The Wright Line Defense
The Associate General Counsel cited the NLRB’s decision of Wright Line, 251 NLRB 1083 (1980) enf’d, 662 F.2d 699 (1st Cir. ) , cert. den. 455 U.S. 989 (1982) and its mixed motive analysis in circumstances where the employer asserts that it discharged and employee because of activity unrelated to an employee’s protected concerted activity.
To establish a Wright Line defense that an employee’s discharge or other discipline violates the Act, the General counsel must:
Demonstrate by a preponderance of the evidence that the employee was engaged in protected activities,
The employer had knowledge of such activity,
The employer exhibited animus or hostility toward the activity, and
The employee’s protected activity was a “motivating factor” in the employer’s decision to take adverse action against the employee.
Here, although the General Counsel met its initial burden under the Wright Line, as Associate 1 and 2 repeatedly engaged in protected activity throughout 2012 and 2013 and that Wal-Mart knew about such activity. However Wal-Mart has shown, under Wright Line, that it would have taken the same action, even in the absence of the protected activity. To prove this, Walmart presented evidence that similarly situated Wal-Mart employees were disciplined and discharged for engaging in the same conduct.
Further, as to timing, although Associate 1 was discharged shortly after the Kissimmee’s store demonstration, Wal-Mart provided evidence that it was already investigating her for taking excessive breaks before that demonstration.
Similarly, while Associate 2 was discharged three weeks after the last incident and almost immediately after her return from engaging in the Ride for Respect strike, Wal-Mart persuasively points out that it did not have a chance to schedule a meeting with her prior to that time. Furthermore, Wal-Mart presented evidence that other employees, who were discharged for engaging in the same misconduct while on their 3rd level of coaching, were also discharged about three weeks after their last incidents.
The Associate General Counsel therefore concluded that Wal-Mart met its Wright Line burden to show that it would have disciplined and discharged Associates 1 and 2 regardless of their protected concerted activity.
Editorial Comment: Non-Union workers who act in concert have the right to protest their working conditions. An individual employee acting alone does not have such rights and is not protected from discharge. If employees walk off of the job, they cannot be fired for their protested activities in striking for better working conditions, but once this happens such employees take on the status of economic strikers. Economic strikers are legally protected from being fired for their economic strike, but they can be permanently replaced by an employer to keep its business going. Once the strike ends the employer does not have to fire the replacements and does not have to re-hire an economic striker, unless the position opens up again or a substantially equivalent position becomes available.
If employees are protesting abnormally dangerous working conditions (toxic substances, radiation exposure or violence), then the employees are not economic strikers and are not subject to replacement.
If employees are striking to protest an employer’s unfair labor practices, such as retaliating against workers for their protected concerted activities, they must be reinstated to their former jobs, when the strike or walkout is over. These employees cannot be permanently replaced.
If you have questions on this, or any other labor and employment law issue, please contact the attorneys at Bowers Harrison.