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Wal-Mart Stores Inc., the nation’s largest retailer, is fighting hard to keep its employees from joining one of the nation’s largest private sector unions, the United Food and Commercial Workers International (UFCW). The result so far: Despite the union’s intensive four-year organizing effort, almost none of Wal-Mart’s more than 900,000 U.S. workers has joined. The battle between union and company has stretched far beyond the floors of Wal-Mart’s 3,200 U.S. stores. Wal-Mart has gone to state court in Arkansas and won an unusually broad injunction that restricts the union’s organizing activities nationwide. Meanwhile, the UFCW and various Wal-Mart employees have turned to the National Labor Relations Board (NLRB), producing repeated rulings from administrative law judges that Wal-Mart violated the National Labor Relations Act. And the union is helping disgruntled Wal-Mart employees to sue the company. On March 15, Wal-Mart obtained a sweeping permanent injunction from an Arkansas state trial court. The injunction forbade members of the UFCW from entering Wal-Mart stores for the purpose of soliciting employees to join the union, and this injunction covered not merely stores in Arkansas, but all Wal-Mart stores throughout the country. Wal-Mart Stores Inc. v. United Food and Commercial Workers, No. E99-1665-1 (Benton Co., Ark., Cir. Ct.). “It is not at all unusual for employers to go into state court and seek an injunction for alleged trespass or blocking,” said Craig Becker, staff counsel to the AFL-CIO. “But the nationwide scope of this injunction is unusual.” “It is unprecedented,” said Al Zack, the union’s assistant director of strategic programs. “In my 32 years of experience in labor, it is absolutely unheard of for a company to obtain such a nationwide injunction.” Wal-Mart spokesman Bill Wertz defended the action. “It was made necessary by the frequency with which the union came onto our property,” Wertz said. “The conduct was part of a coordinated effort, so it made sense for us to address this in one proceeding.” And the order has only limited effect outside Arkansas, he argued. “If we want to enforce it in another state, we must file it in that state — which would give the union an opportunity to challenge it under that state’s laws.” The injunction significantly complicates the union’s efforts to organize workers, according to Zack. “It is a lot easier if you can meet with employees on the job,” he said. However, the injunction only applies to officials of the UFCW International, not to the union’s rank-and-file members or locals. As a result, UFCW members are going into Wal-Mart stores to solicit the employees, but the members’ activities are not coordinated by officials at the union’s headquarters. Such coordination is forbidden by the injunction, Zack said. Following an appeal by the UFCW, the Arkansas Supreme Court decided to hear the case. Oral arguments are expected early in 2003. The lead attorneys in the case — for the union, Price Marshall Jr. of Jonesboro, Ark.’s Barrett & Deacon and for Wal-Mart, Benjamin Shipley III of Fort Smith, Ark.’s Cross, Gunter, Witherspoon & Galchus — could not be reached for comment. UNION WINS BEFORE NLRB The union seems to be doing better in another legal forum. In eight recent cases before the NLRB, administrative judges found that, among other labor law violations, managers in various Wal-Mart stores had: � unfairly disciplined pro-union employees; � illegally threatened employees with reprisals for engaging in organizing activity; � wrongfully threatened employees with losing benefits if the union came in; � illegally interrogated employees about their union activities; � and discriminatorily prohibited UFCW agents from engaging in lawful handbilling of employees, while allowing other organizations to engage in solicitation on store premises. Wal-Mart is appealing all but one of these administrative rulings to the NLRB board. The remaining ruling has already been upheld on appeal by the board. However, the company claims that it is the victim of UFCW mudslinging. “The union makes a lot of allegations [of labor law violations] and doesn’t talk about what happens at the other end of the process,” said spokesman Wertz. “Most of the allegations have been found to be without merit.” And considering that Wal-Mart has thousands of stores and has been the subject of an intensive multiyear unionizing effort, the company has been found liable for an extremely small number of labor law violations, he asserted. Yet these violations are having a big impact on the organizing drive, according to the UFCW’s Zack. “The employees are scared to death,” he said. “They are afraid that if they mention the word ‘union’ in the store, they will be fired. This makes it significantly harder to organize them.” Moreover, the NLRB rulings do little to benefit the union, Zack said. “The rulings have no discernable impact on Wal-Mart’s behavior,” he said. “The same names crop up in NLRB violations, doing the same things. At some point, the NLRB is going to have to whack this bully with a two-by-four to get its attention.” Cynthia L. Estlund, who teaches labor and employment law at Columbia University Law School, said, “Employers don’t see much of a downside to violating the labor law.” Violators face no fines or penalties, she said. If a worker is illegally fired or denied promotion, the NLRB can require the employer to rehire or promote the employee and to give the worker back pay. But for workers making $8 an hour, such back pay is a trivial cost for an employer who wants to terrorize its workers away from the union, Estlund said. The UFCW’s primary attorney for the NLRB matters, George Wiszynski, was unavailable for comment, as was Wal-Mart’s chief attorney for this matter, Robert C. DeMoss, assistant general counsel for labor. A sidelight of the union fight is that many of the company’s current and former employees are suing Wal-Mart on various grounds, and the UFCW has happily provided some assistance to these plaintiffs. The union, for instance, aided the plaintiffs in a June 2001 nationwide class action that accuses Wal-Mart of systematically discriminating against its female employees. “We handbilled about 500 stores,” Zack said.

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