Many may recall last year’s Black Friday picketing at Wal-Mart stores and Wal-Mart’s filing of an unfair labor practice charge against the UFCW, the union that organized the picketing. Wal-Mart claimed the Union had violated the National Labor Relations Act by picketing in order to gain union recognition for more than 30 days, without filing a petition under the Act. After the NLRB’s Division of Advice began considering the charge, the UFCW agreed to suspend picketing for sixty days, and further agreed that it had no intention of organizing Wal-Mart’s employees. Based upon those promises, the NLRB’s Division of Advice determined that the charge was moot and further relief was not warranted.
On January 31, 2013, the NLRB’s Office of the General Counsel formally determined that in light of the Union’s concessions, it would not further prosecute the charge. The General Counsel explained in a press release that in deciding to forego prosecution, it was relying on the union’s specific disavowal of any intent to gain Union recognition at Wal-Mart’s stores, its promise to publicize the disavowal on its website, and its representation that the sole objective of any picketing was to assist Wal-Mart employees in their efforts to improve working conditions. The General Counsel stated the charge is “in abeyance” until the Union fully complies with its commitments, at which time the charge will be dismissed. Both the Union and Wal-Mart released their respective press releases, each claiming victory.
Now that sixty days have nearly elapsed, a new chapter in the ongoing Wal-Mart UFCW dispute will begin. The anticipated formal dismissal of the charges is likely to trigger a round of new press releases. Moreover, the UFCW will be free to picket — albeit so long as it is careful to avoid the appearance of an organizing drive. Given the difficulty in discerning the purpose of picketing, further unfair labor charges are likely to be filed. Stay tuned for further developments.