What Can GCs Learn From Wal-Mart's Black Friday?

Catherine Dunn

Corporate Counsel

11-21-2012

With the busiest shopping day of the year just around the corner, a high-profile labor dispute between Wal-Mart Stores Inc. and protesters is looming over the Thanksgiving holiday.
 
As unusual as this particular clash is, in-house counsel may want to consider how a similar episode would impact their own corporate brands. “The one take-away is to be mindful that your company may be attacked by unions in a variety of ways,” says Don Schroeder, a management-side employment lawyer at Mintz Levin Cohn Ferris Glovsky and Popeo, in Boston, who is not involved in this case.  
 
Throughout the fall an employees’ group called OUR Wal-Mart has staged protests at Wal-Mart stores across the country, claiming the company has engaged in unfair labor practices against workers. The group, which was listed as a subsidiary of the United Food and Commercial Workers Union in 2011, has been planning to intensify protest efforts on Black Friday, the kick-off to the holiday shopping bonanza.  

 
By targeting the company at a national level, “the size and scope of this corporate campaign is what makes it unusual,” Schroeder says.
 
Last week, Wal-Mart appealed to the government to put a stop to those actions. The company filed an unfair labor practices complaint with the National Labor Relations Board – the first time in a decade the U.S.’s largest retailer has done so, according to The New York Times. Wal-Mart is arguing that the extended picketing violates the National Labor Relations Act, as UCFW doesn’t represent Wal-Mart employees and hasn’t filed a representation petition with the NLRB.     

 
On Monday the NLRB vowed to conduct a speedy investigation into the matter, and quickly dispatched staff to Wal-Mart’s home base of Bentonville, Arkansas. As of Tuesday afternoon, that investigation continued, according to a spokesperson for the agency.
 
For their part, the protesters say that while OUR Wal-Mart received support from the union in the past, it is now acting independently, the Times reports.
 
Schroeder notes that the OUR Wal-Mart campaign hasn’t simply made direct appeals to employees, but has made a broader appeal to the media as well. That has implications for other corporations, he says: “You need to have a very nimble PR communications strategy to handle attempts by labor unions to attack the brand of the company.”
 
Asked what he thinks of Wal-Mart’s decision to take the matter to the NLRB, Schroeder says: "I think the company's strategy makes sense because that is the statutory avenue for purposes of protecting its rights -- protecting its employees, customers, and property."
 
More generally, he recommends that in-house counsel keep a company’s board of directors up to date on “hot-button issues” among its workforce.
 
“You want to address them head-on,” Schroeder emphasizes, “so they don’t become the hot-button issues a union latches onto.”