Union Can Offer Gift Card to Entice Employees to Strike, says NLRB’s GC

Yesterday, this blog covered an advice memorandum released by the NLRB’s General Counsel finding that Wal-Mart didn’t violate the law in responding to mass demonstrations and picketing by union-sponsored groups. Today, we look at another case relating to union activity directed at Wal-Mart, but this time alleging that the union violated the NLRA.

In 2012, the UFCW union organized a “Black Friday” strike against Wal-Mart the day after Thanksgiving. The strikes were to take place nationwide, and the union publicized them in the weeks leading up to Black Friday. To encourage participation in the strike, the union advertised a $50 gift card to the first 700 Wal-Mart employees who signed up to strike. Any employee who worked at Wal-Mart and signed up was eligible to receive the gift card, which was advertised as a way to buy groceries for the employee’s family.

Wal-Mart filed an unfair labor practice charge against the union. Wal-Mart argued that the union’s gift card was an unlawful promise to get employees to strike. The General Counsel rejected this argument, and determined that the charge should be dismissed. The General Counsel reasoned that the NLRB had previously approved of non-excessive payments for services or lost time to employees. The union’s $50 gift card, therefore, was merely a “non-excessive strike benefit” that was designed to reimburse employees for lost wages if they struck.

In addition to the allegation regarding the gift card, the General Counsel also found that the following statements made by union agents or others did not constitute unlawful threats:

• “Well, then y’all better watch out for Black Friday.”
• “You know there’s a bomb threat on Black Friday, I’m just trying to help you out.”
• “We’ll see how you feel then because we’re going to attack you and hit you hard then” and “something big was going to happen at the facility on Black Friday.”

These statements, according to the General Counsel, did not support a violation of the NLRA. The reason for this conclusion varied depending on the comment and the context in which it was made.  Sometimes, as in the case of the first comment, the words were too ambiguous to be considered a threat. Other times, as in the case for the second comment, the person to whom the comment was directed was a supervisor, and no non-supervisory employees overheard it. And in other cases, like the third comment, it was because of some combination of these and other reasons.

The advice memorandum is an important reminder to labor professionals of the tools available to unions to encourage concerted activity by employees, towards the end of organizing employees or bringing pressure to bear on employers with whom the union has a dispute. With another round of strikes and protests set for the day after tomorrow, the General Counsel’s memorandum is certainly timely, and something for the union to be thankful for on the eve of Thanksgiving 2013.