In May of 2013, some Walmart employees boarded buses bound for Bentonville, Arkansas to attend the Company’s annual shareholders meeting. The buses formed a caravan, picking up employees at Walmart locations on the way. The employees handed strike letters to their managers before departing.

The caravan was dubbed the “Ride for Respect.” It was organized by OUR Walmart, a group formed with the assistance of the United Food and Commercial Worker Union (UFCW). Once in Bentonville, the employees held demonstrations, attended the shareholder meeting, and engaged in other activities to publicize their grievances.

This was not the first work stoppage OUR Walmart had organized. During Black Friday, one of the busiest shopping days of the year, employees at various locations withheld their labor in a strike. None was disciplined, but afterward, Walmart managers were given a script to read which stated that the Company did not believe “these hit and run work stoppages” were protected. Employees were warned that future absences for Union-orchestrated work stoppages would be unexcused.

As warned and promised, the Riders for Respect were disciplined or terminated for their conduct. Some had participated in the Black Friday strike, but 29 had not. The UFCW filed unfair labor practice charges against Walmart. The NLRB majority in Walmart Stores, Inc. concluded that the employees’ actions were unprotected.

Now, you are probably wondering how discipline for taking part in a strike, which is classic protected concerted activity under the National Labor Relations Act, would not result in a finding that the NLRA had been violated. This is because intermittent strikes –plans to strike, return to work, and strike again – are unprotected by the NLRA. Such strikes are considered “unfair economic warfare by failing to choose between striking and working.”

The union admitted that the Ride for Respect was part of a coordinated and continuing strategy to publicize the message that wages, hours and benefits at Walmart needed improvement. The Union stipulated in the case before the NLRB:

The UFCW and OUR Walmart intend to continue planning and assisting Walmart workers in striking in a manner consistent with strikes that the UFCW and OUR Walmart helped plan to assist Walmart workers to hold in October and November 2012, June of 2013, and November of 2013.

The majority observed that, “intermittent strikes are not unlawful, but employers do not contravene the Act by disciplining participants in such strikes.” Because this was a rare case where the Union admitted that the series of strikes were used to advance a single goal, the outcome for the Board majority was clear.  The activity constituted intermittent strikes, so Walmart committed no unfair labor practices in discipling and terminating the participants.

In dissenting, Member McFerran asserted that unprotected intermittent strikes involve strikes in short succession. They are conduct which is intended to blur the lines between work and strike, whereby employees try to avoid the economic consequences of being on strike while also harassing the employer into a state of confusion.

Member McFerran contrasted the Ride for Respect, where only a “tiny percentage of the work force” participated in a work stoppage at a “retail giant” which resulted in no significant difficulties for store operations. The participating employees were absent for a week, thereby accepting the economic consequences. Moreover, for those who did not participate in the prior Black Friday strike, this was a single work stoppage (which is presumptively valid).

Member McFerran concluded that the majority has created an unwarranted expansion of the concept of intermittent strikes. She wrote that at least insofar as activities are planned and coordinated by OUR Walmart:

the strong implication of the majority’s decision is that the Respondent’s 1.3 million employees cannot stop work to protest the most basic of employment issues (wages, scheduling, healthcare), based on the prior activities of a tiny fraction of the Respondent’s workforce.

As practitioners know, labor law is determined in large part through contested cases decided by Board members appointed by the President, rather than through notice-and-comment rulemaking.  The prevailing rules change as the President of one party achieves appointments of a majority of members (in other words, as the political winds shift). As this case and many others show, the balance struck (if you will) is now decidedly changing. Rest assured, however. At some point it will change again.