UNITED STATES OF AMERICA NATIONAL LABOR ... - Politico

UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD

WAL-MART STORES, INC. Respondent, and THE ORGANIZATION UNITED FOR RESPECT AT WALMART (OUR Walmart) Charging Party.

Case Nos.

16-CA-096240 16-CA-105873 16-CA-108394 16-CA-113087 16-CA-122578 16-CA-124099 21-CA-105401 26-CA-093558 13-CA-107343

BRIEF IN SUPPORT OF CHARGING PARTY’S CROSS-EXCEPTIONS TO THE DECISION OF THE ADMINISTRATIVE LAW JUDGE

DEBORAH J. GAYDOS JOEY HIPOLITO UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION 1775 K Street, N.W. Washington, D.C. 20006 Telephone: (202) 466-1520 Fax: (202) 728-1803 E-Mail: [email protected] [email protected] Attorneys for Charging Party

TABLE OF CONTENTS Page TABLE OF CONTENTS .............................................................................................................. i TABLE OF AUTHORITIES ...................................................................................................... iv STATEMENT OF THE CASE .................................................................................................... 1 QUESTIONS PRESENTED ........................................................................................................ 3 CHARGING PARTY’S EXCEPTIONS TO THE ALJ’S LEGAL CONCLUSIONS ................ 3 I. To eliminate confusion and unjust results, the Board should clarify what constitutes a lawful strike................................................................................................. 3 A. The Act protects the OUR Walmart workers' strikes in 2012 and 2013 from Walmart's discipline and firings. ............................................................................... 4 1. The Act protects the workers' strikes because they were motivated to protest working conditions and ULPs. ................................................................. 4 a. The Act protects strikers even when they do not articulate a demand prior to or during the strike. ........................................................................................ 8 b. The Act protects strikers regardless of whether the workers' demands and the strike itself were reasonable. ............................................................. 9 c. The Act protects strikes in which workers are motivated to strike for multiple and different reasons. ..................................................................... 10 d. The Act protects the workers' strikes because they completely ceased working, thereby subjecting themselves to replacement. ............................ 11 2. Walmart’s discipline and termination of the striking workers violated the Act because the Act protected all of the workers’ conduct while on strike. ............ 13 a. The Act protects the Walmart workers' strikes regardless of the strikes' timing or disruption of operations................................................................ 13 b. The Act protects the Walmart workers' strikes regardless of the number of workers who decided to join the strikes. ................................................. 15 c. The Act protects the Walmart workers' right to demonstrate in conjunction with the strikes. ........................................................................ 15

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d. The Act protects the right of the Walmart workers to engage in "overly spirited" conduct during a strike as long as the conduct is not coercive or physically threatening. ............................................................................. 16 e. The Act protects the workers' right to seek publicity for their strikes. .......................................................................................................... 19 f. The Act protects the workers' right to coordinate strikes with unions and community allies. .................................................................................. 19 3. The Act protects the Walmart workers' strikes because workers have the right to strike multiple times in multiple places over the same workplace issues. ................................................................................................................. 20 a. The Act protects the workers' right to strike more than once. ..................... 20 b. The Act protects the workers' right to strike multiple times even if the strikes involve the same issue and occur over a short period of time. ......... 22 c. The Act protects the workers' right to strike at different locations during the same time period. ......................................................................................... 24 B. The Act protects Walmart workers' strikes because the Board finds unprotected "intermittent" work stoppages when workers (1) strike to unilaterally impose a working condition or (2) strike in a manner that prevents their employer from replacing them. ......................................................................................................... 24 1. The Walmart workers did not strike in an attempt to unilaterally impose a working condition. ............................................................................................. 25 2. The Walmart workers never struck in a manner that prevented Walmart from defending itself by replacing them. .................................................................... 28 II. The Board must protect workers' right to strike by clarifying that the Act protects workers who completely cease work for protected motivations. ................................... 32 A. The proper strike standard is that the Act protects workers who strike for a protected motivation, even if they strike multiple times, as long as the workers cease work completely each time and thereby subject themselves to replacement. ......................................................................................................... 33 B. Clarifying that the Act protects strikers who have a protected motivation and completely cease work would adhere to the language and intent of the Act. .......... 34 C. If the Board does not clarify these cases accordingly, then the Board will empower Walmart and other employers to irreparably chill workers' Section 7 rights. ......... 36

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III. The ALJ too narrowly construed what constitutes an unlawful threat .......................... 38 A. A Walmart manager unlawfully threatened a group of workers who had gone on strike on November 16, 2012 at Walmart’s Lancaster, Texas store when the manager told the workers their actions were “under review.” ALJD at 40:40-42. .. 38 B. Walmart unlawfully threatened its workers when a corporate vice president went on network television on November 19, and 20, 2012, and stated that there would be unspecified reprisals if workers engaged in protected activity on Black Friday of 2012. ALJD at 44:11-29 and n.52. .......................................................................... 39 EXCEPTIONS TO THE ALJ’S REMEDY, ORDER, AND NOTICES................................... 40 EXCEPTIONS TO THE ALJ’S ORDER GRANTING WALMART’S MOTION TO ENFORCE THE PROTECTIVE ORDER........................................................................... 42 I. The documents that Walmart argues the disclosure of which violated the Protective Order are not "confidential." .......................................................................................... 43 A. Tab B to Walmart's Motion- Labor Relations Blitz/Black Friday 2012 Plan .......... 43 B. Tab C to Walmart's Motion – Presentation .............................................................. 44 C. Tab B and Tab C are no longer subject to the protective order because they were admitted into the public record of an NLRB hearing not under seal. ...................... 45 CONCLUSION .......................................................................................................................... 48

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TABLE OF AUTHORITIES Page(s) Federal Cases American Ship Building v. NLRB, 380 U.S. 300 (1965) ..............................................................................................................11 Argenbright Security, 2000 WL 33664225 (31-CA-23668, 2000) .............................................37 Davies, Inc. d/b/a Dallas Glass & Int’l Union of Painters & Alllied Trades, Dist. Council #5, 2013 WL 703258 (NLRB Div. of Judges Feb. 26, 2013) ...................................6 Doe v. Public Citizen, 749 F.3d 246 (4th Cir. 2014) ................................................................................................45 Excavation-Construction v. NLRB, 660 F.2d 1015 (1981)............................................................................................................29 First National Bank of Omaha v. NLRB, 413 F.2d 921 (1969)..............................................................................................................14 Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988)............................................................................................45, 46 Mitchell, 551 F.2d 1252 (D.C. Cir. 1976) ...................................................................................46 In Re National Broadcasting Co., 653 F.2d 609 (D.C. Cir 1981) .........................................................................................45, 46 Nixon v. Warner Communications, 435 U.S. 589 (1978) ........................................................................................................46, 47 NLRB v. Empire Gas Inc., 566 F.2d 681 (10th Cir. 1977), (1976) ............................................................................23, 24 NLRB v. Erie Resistor, 373 U.S. 221 (1963) ........................................................................................................34, 35 NLRB v. Insurance Agents’ International Union, 361 U.S. 477 (1960) ................................................................................................................7 NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) ................................................................................................................8, 9 Poliquin v. Garden Way, Inc., 989 F.2d 527 (1st Cir. 1993) ...........................................................................................46, 47

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U.S. v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) ..............................................................................................46 Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866 (E.D. Pa. 1981) .........................................................................................46 Board Cases Airo Die Casting, 347 NLRB 810 (2006) ..........................................................................................................17 Alaska Pulp Corp., 296 NLRB 1260 (1989) ..................................................................................................19, 20 Albertson’s, Inc., 351 NLRB 254 (2007) ..........................................................................................................40 Allstate Ins. Co., 332 NLRB 759 (2000) ..........................................................................................................19 Alton H. Piester, LLC & Darrell Chapman, 353 NLRB 369 (2008) ..........................................................................................................19 Aluminum Co. of America, 338 NLRB 20 (2002) ............................................................................................................13 Audubon Health Care Ctr., 268 NLRB 135 (1983) ..............................................................................................11, 25, 27 Chelsea Homes, 298 NLRB 813 (1990) ..........................................................................................................23 Chesapeake Plywood, 294 NLRB 201 (1989) ..........................................................................................................18 Clear Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d 148 (9th Cir. 1985) .........................................16, 18 Clemente Contracting Corp., 335 NLRB 1253 (2001) ..........................................................................................................6 Crown Coach Corp., 155 NLRB 625 (1965) ..........................................................................................................27 Detroit Newspapers, 324 NLRB 223 (2004) ..........................................................................................................17

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Dodge Center, 289 NLRB 194 (1988) ....................................................................................................21, 23 Domsey Trading Corp., 310 NLRB 777 (1993) ..........................................................................................................10 Embossing Printers, 268 NLRB 710 (1984) ..........................................................................................................27 Farley Candy, 300 NLRB 849 (1990) ....................................................................................................21, 23 Farm Fresh Company, Target One, LLC, 361 NLRB No. 83, slip op. (2014)..................................................................................38, 40 First National Bank of Omaha, 171 NLRB 1145 (1968) ......................................................................................11, 28, 29, 33 Gem Urethane Corp., 284 NLRB 1349 (1987) ........................................................................................................18 General Telephone Company of Michigan, 251 NLRB 737 (1980) ..........................................................................................................16 GK Trucking Corp., 262 NLRB 570 (1982) ..............................................................................................5, 6, 7, 33 GTE Southwest Inc., 329 NLRB 563 (1999) ..........................................................................................................47 Honolulu Rapid Transit, 110 NLRB 1806 (1954) ..................................................................................................25, 26 J.W. Microelectronics Corp., 259 NLRB 327 (1981), enfd. mem. 688 F.2d 823 (3d Cir. 1982) .........................................16 Johnnie Johnson Tire, 271 NLRB 293 (1983) ..........................................................................................................14 Kinder-Care Learning Centers, 299 NLRB 1171 (1990) ........................................................................................................19 Marine Transport Lines Co., 301 NLRB 526 (1991) ..........................................................................................................47 Massachusetts Coastal Seafoods, 293 NLRB 496 (1989) ..........................................................................................................10

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Medite of New Mexico, Inc., 314 NLRB 1145 (1994) ..................................................................................................17, 18 Merrillat Indus., Inc., 307 NLRB 1301 (1992) ..................................................................................................27, 28 National Football League, 309 NLRB 78 (1992) ............................................................................................................47 National Steel and Shipbuilding Co., 324 NLRB 499 (1997) ........................................................................................15, 16, 30, 31 Northfield Urgent Care, LLC & Jennifer Grossman, 358 NLRB No. 17 (2012) .......................................................................................................9 Oaktree Capital Mgmt., LLC, 353 NLRB 1242 (2009); enfd. 452 Fed. Appx. 433 (5th Cir. 2011) ....................................19 Ogihara America Corp., 347 NLRB 110 (2006) ..........................................................................................................13 Pacific Telephone and Telegraph, 107 NLRB 1547 (1954) ..................................................................................................29, 30 Plastilite Corp., 153 NLRB 180 (1965) ..........................................................................................................14 Polytech, 195 NLRB 695 (1972) ..........................................................................................................11 Preterm, Inc., 273 NLRB 683 (1984) ..........................................................................................................17 Public Service Company of Oklahoma, 334 NLRB 487 (2001) ............................................................................................................7 Robertson Industries, 216 NLRB 361 (1975), enfd. 560 F.2d 396 (9th Cir. 1976) .......................5, 7, 11, 20, 21, 29 Solo Cup, 114 NLRB 121 (1955), enfd 237 F.2d 521 (8th Cir. 1956) ..................................................14 South Central Timber Development, Inc., 230 NLRB 468 (1977) ............................................................................................................8 Stanford NY, LLC, 344 NLRB 558 (2005) ..........................................................................................................13

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Swope Ridge Geriatric Center, 350 NLRB 64 (2007) ....................................................................................11, 12, 13, 26, 29 U.S. Service Industries, 315 NLRB 285 (1994), enfd. 72 F.3d 920 (1995) ..............................................21, 22, 23, 37 U.S. Service Industries, 319 NLRB 231 (1995) ..............................................................................................15, 21, 24 Union Electric, 219 NLRB 1081 (1975) ..................................................................................................21, 23 UPS, Inc., 304 NLRB 693 (1991) ..........................................................................................................47 Wayne Stead Cadillac, 303 NLRB 432 (1991) ..........................................................................................................17 WestPac Electric, 321 NLRB 1322 (1996) ......................................................................................12, 21, 28, 29 Statutes National Labor Relations Act, 29 U.S.C. §§ 151, et seq. .....................1, 2, 13, 15, 17, 19, 20, 41 § 7, 29 U.S.C. § 157 ............................................................................8, 25, 27, 33, 35, 36, 41 § 8(a)(1), 29 U.S.C. § 158(a)(1)..................................................................................8, 37, 39 § 13, 29 U.S.C. § 163 ......................................................................................................34, 35

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STATEMENT OF THE CASE This brief is submitted by Charging Party, the Organization United for Respect at Walmart (OUR Walmart) in support of its Cross-Exceptions to the Decision of Administrative Law Judge Geoffrey Carter (ALJ). Charging Party agrees with the ALJ that Walmart violated the National Labor Relations Act (the Act) when it threatened, disciplined, and fired dozens of its workers who exercised their protected right to strike, claiming they had engaged in unlawful "intermittent work stoppages." However, Charging Party respectfully suggests that the Board’s case law regarding what constitutes a lawful strike requires clarification so that workers are free to exercise the rights the Act gives them. In 2011 and 2012, hourly Walmart workers who felt that Walmart was ignoring their concerns that the company forced them to labor under difficult and unfair working conditions formed a group called OUR Walmart. When Walmart failed to respond to the group’s concerns, the workers struck in October and November of 2012, and then again in May and June of 2013. Claiming the last strike was an unprotected "intermittent work stoppage," Walmart disciplined or fired all the workers who participated in it. Basically, Walmart intentionally interpreted what constitutes an unlawful intermittent strike in a manner that allowed it to punish the dozens of workers who had exercised their right to strike in protest of Walmart's hostile working conditions. OUR Walmart filed unfair labor practice charges against Walmart in response and NLRB Region 16 subsequently issued a complaint. The ALJ held hearings from May of 2014 through September of 2015. At the beginning of the hearings, the parties entered into a protective order concerning the handling of confidential documents. In December of 2015, Walmart filed a motion to enforce the protective order, claiming that Charging Party had unlawfully provided confidential

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documents to a reporter. Charging Party filed an opposition to this motion, but the ALJ found that Charging Party had violated the protective order by providing these documents. In January of 2016, the ALJ issued a decision in this case finding that the Ride for Respect was not an unlawful intermittent strike and that Walmart therefore unlawfully disciplined and in some cases terminated workers who participated in it. Although he reached the correct conclusion, the ALJ was forced to rely upon the confusing, and often contradictory body of law regarding protected vs. intermittent strikes. This is why the Board needs to clarify its case law and reaffirm that the Act protects workers, such as those here, who strike for a lawful purpose as long as they subject themselves to the risk of replacement and completely cease work. In addition, the ALJ limited the scope of the remedy by not requiring Walmart to make a nationwide posting of the proposed Notice and to read it aloud. Moreover, the ALJ found that Walmart did not unlawfully threaten workers when a corporate official gave interviews to major television networks shortly before the planned Black Friday strikes in 2012 saying that strikers would face unspecified reprisals if they struck and when a store manager told workers who had engaged in a strike that their actions were “under review.” The Board should find that Walmart violated the Act when it threatened, disciplined, and terminated these workers because the NLRA protected the strikes: the workers fully ceased work for a protected purpose and did not strike in a manner that prevented Walmart from defending itself. The Act protects their motivation to strike, which was to protest Walmart's unfair labor practices and to pressure Walmart to acknowledge and address their workplace concerns. In addition, while on strike, the workers fully withheld their labor such that they faced the economic risks of striking: Walmart did not pay them and the strikers subjected themselves to the risk of Walmart replacing them. Therefore, the workers did not strike in any manner that prevented

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Walmart from defending itself. For these reasons, these workers engaged in lawful, protected strikes. QUESTIONS PRESENTED Question 1: Should the Board clarify the standard describing a protected strike to eliminate confusion that factors such as the frequency, duration, and subject matter of strikes do not render unprotected strikes in which workers fully ceased work for a protected purpose? Exceptions 3-8. Question 2: Should management comments that workers who struck on Black Friday would be treated on a case by case basis and that the actions of other workers who had gone on strike were under review be interpreted as unlawful threats? Exceptions 1- 2. Question 3: Should the Remedy, Order, and Notices in this case be modified to reflect seriousness of Walmart’s violation of the Act by incorporating extraordinary remedies? Exceptions 9-19. Question 4: Should the Board find that Charging Party Exhibit 10 and General Counsel Exhibit 102 are not confidential because they were entered into the public record of this case but not under seal and, for this reason, Charging Party did not violate the protective order entered in this case when it provided these two documents to a journalist? Exceptions 20-26. CHARGING PARTY’S EXCEPTIONS TO THE ALJ’S LEGAL CONCLUSIONS I.

To eliminate confusion and unjust results, the Board should clarify what constitutes a lawful strike. Walmart here violated the Act when it exploited cases mentioning "intermittent" activity

to systematically terminate and discipline dozens of its workers who dared to exercise their right to strike to protest Walmart's objectionable working conditions.

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The Board should adopt the ALJ’s conclusion that the Ride for Respect strike was not intermittent, but in doing so it should not find that recurring strikes of short duration that occur over a short period are unlawful intermittent strikes. ALJD at 51:1-7; 51:9-15 and n.61; ALJD at 51:18-24 and n.62; ALJD at 56:18-21. Similarly, the Board should not hold that strikes to exert economic pressure during negotiations are unlawful intermittent strikes and that the Act does not protect brief strikes because they enable workers to minimize the risks of being on strike. ALJD at 56:18-21. And finally, the Board should reject any conclusion that the OUR Walmart strikes that occurred in 2012 and 2013 are unprotected because they reflect a pattern of recurring strikes and the strikers demonstrated their intent to continue to engage in recurring strikes in the future. ALJD at 54:46-47-55:1-27. Rather, the NLRB should eliminate any confusion regarding cases mentioning “intermittent” activity by clarifying the standard for strikes. Specifically, the Act protects workers who strike multiple times, including over the same issues, as long as they strike for a protected motivation, completely cease work, and do not engage in serious threatening misconduct while on strike. These determinative factors are the focus of the Board's strike case law, including those cases that describe what constitutes an unprotected "intermittent" strike. A. The Act protects the OUR Walmart workers' strikes in 2012 and 2013 from Walmart's discipline and firings. The OUR Walmart members who struck during 2012 and 2013 engaged in textbook strikes that the Act protects. 1. The Act protects the workers' strikes because they were motivated to protest working conditions and ULPs. The Walmart workers struck because Walmart refused to address the difficult working conditions it forced the workers to endure and retaliated against those who spoke out about them.

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Therefore, the Act protects the workers' motivations for striking. Specifically, the Act protects the right of workers to "withhold[] their labor in protest against working conditions or to bring pressure on [an employer] to have those conditions changed[.]" GK Trucking Corp., 262 NLRB 570, 573 (1982) (ALJ recommendation adopted by Board). In fact, the Board found that this protected motivation is "the very essence of a work stoppage or strike." GK Trucking, 262 NLRB at 573. For example, in Robertson Industries, the Board reversed the ALJ to find that the Act protected workers who left work to attend a union meeting because "a purpose of the meeting . . . was to find a way to resolve work-related problems of the employees, and to seek help in securing a resolution." There, the Board found that the employees "were in the initial stages of protesting their terms and conditions of employment and of seeking concessions" from the company. Robertson Industries, 216 NLRB 361, 361-62 (1975), enfd. 560 F.2d 396 (9th Cir. 1976). In reaching this conclusion, the Board recognized that the union meeting walkout was part of a larger campaign seeking to improve working conditions. The workers in Robertson testified that they held a walkout to meet because "we were working too hard and that we could find a way so that we would not have to work that hard so we would not be treated that way." Because the workers' motivation to strike was tied to their concerns about their working conditions, the Board concluded that "[a]lthough the action taken by employees in absenting themselves from work to discuss their work-related problems may not have been the wisest or most prudent action which they could have taken, this does not remove their concerted action from the protection of the Act." 216 NLRB 361, 362 (1975). In contrast, the Board held that the workers in GK Trucking Corp., who left work to attend a union meeting were not "protest[ing] terms and conditions of employment" because:

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there was "no evidence that work-related problems were actually discussed at the meeting or that the employees, either at that meeting or at any other time, organized their endeavor into a protest which involved or affected working conditions"; there "was no ‘running dispute' between the company and the employees about workrelated issues which prompted a walkout or strike; and workers "did not engage in a concerted work stoppage as part of a program 'of protesting their terms and conditions of employment and of seeking concessions from Respondent.'" 262 NLRB at 573 (ALJ findings adopted by Board). Rather, the "specific purpose of the meeting was…to elect stewards" and "was unrelated to their own [worker] concerns[.]" Id. at 573.1 The Act also protects workers’ motives for striking in the collective bargaining context. The Board has found that “[a] union's exercise of the strike weapon during negotiations is ‘part and parcel’ of the system of collective bargaining." E.G. Clemente Contracting Corp., 335 NLRB 1253, 1255 (2001). The Board derived this “part and parcel” rhetoric from the Supreme Court,

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For similar reasons, the ALJ in Dallas Glass held that the Act did not protect work stoppages by two union salts because they were not properly motivated to protest working conditions. Davies, Inc. d/b/a Dallas Glass & Int'l Union of Painters & Alllied Trades, Dist. Council #5, 2013 WL 703258 (NLRB Div. of Judges Feb. 26, 2013). In 2007, two construction workers who were union "salts" struck twice and the company permanently replaced them. In response, the union filed several ULPs on their behalf. Three years later in 2010, the replaced workers picketed in front of the employer several times with placards stating that they were on strike, but one of the salts then informed the company that he had not actually struck that year. In 2012, two years after the picketing, the union filed a ULP charge alleging that the company discriminated against the salts by failing to reinstate them. The ALJ found that the Act did not protect the salt's work stoppages because the workers ceased work not to protest working conditions, but merely to annoy the nonunion company. Unlike the record here, the Dallas Glass ALJ found no evidence of organizing and "no evidence that [the two workers] were seeking to redress employee complaints (other than their own) about wages or working conditions[.]" Unlike here, the Dallas Glass "record is devoid of evidence that other employees took issue with the wages or other working conditions at any point." Because of this, the ALJ concluded that the two salts ceased work (and filed ULPs) merely to harass the company. 6

which stated in NLRB v. Insurance Agents' International Union that, "as we have developed, the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining." 361 U.S. 477, 495-96 (1960). In fact, in Insurance Agents, the Supreme Court recognized the lawful purpose of a strike for collective bargaining purposes when it held that “[t]he reason why the ordinary economic strike is not evidence of a failure to bargain in good faith is not that it constitutes a protected activity but that, as we have developed, there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining.” Id. at 494-95. And finally, in Public Service Company of Oklahoma, the Board recognized the lawful purpose of a strike in support of collective bargaining when it stated: Employees have the right under the Act to engage in concerted activities for the purpose of collective bargaining or other mutual air or protection. The right-tostrike in support of bargaining demands is perhaps the most traditional of such activities. . . . [A] union that has not contractually limited its right to strike, may do so in aid of its efforts to obtain its bargaining demands. 334 NLRB 487, 498 (2001) (ALJ decision adopted as amended in different part by Board). Thus, the Act protects strikes in support of collective bargaining as much as strikes over working conditions or for other lawful purposes. For why would the Act deny workers the right to exercise a key labor right – the right to strike – simply because the workers exercised another key labor right, the right to join a union and bargain collectively? Here, the Act protects the Walmart workers' strikes because it protects the workers' motivations for these strikes. Like the workers in Robertson, and unlike those in GK Trucking, the strikers and the company were in a continuing labor dispute in which the workers expressed a desire for Walmart to improve working conditions, which Walmart refused to acknowledge or

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address. During each strike, the Walmart workers were motivated to cease work to protest Walmart unlawfully retaliating against those who spoke out and to pressure Walmart to acknowledge and address their workplace concerns, which included disrespect, manager hostility, unsafe working conditions, scheduling, and low wages. a. The Act protects strikers even when they do not articulate a demand prior to or during the strike. The Act protects the Walmart workers who went on strike even if they did not articulate a demand prior to or during the strike, because at the very least Walmart knew that its workers had concerns about their working conditions. The Board holds that "if from surrounding circumstances the employer should reasonably see that improvement of working conditions is behind the walkoff, it may not penalize the employees involved without running afoul of Section 8(a)(1)." South Central Timber Development, Inc., 230 NLRB 468, 472 (1977) (Board adopted ALJ decision). Moreover, the Act protects the right of the Walmart workers to strike even if the strikers did not articulate any type of demand to Walmart prior to walking off the job or during the strike because it is well established that this is not a requirement of a protected strike. Specifically, the U.S. Supreme Court has held that strikers do not "lose their right to engage in concerted activities under § 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of § 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made." NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962). Requiring such a demand, the Court found, "would only tend to frustrate the policy of the Act to protect the right of workers to act together to better their working conditions" and "might place burdens upon employees so great that it would effectively nullify the right to engage in concerted activities which that section protects." Id.

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The Act protects these strikes because Walmart was sufficiently aware of the strikers' protected motivations. Prior to the strikes, Walmart was aware that workers had been concertedly protesting their working conditions. Workers attempted to raise and address their concerns through open door meetings with Walmart managers, one-on-one conversations with their managers, and delegations on store managers. Colby Harris, Tr. 2803:8-2804:1. When these attempts failed to address their issues, workers formed OUR Walmart and again reached out to Walmart. Dominic Ware, Tr. 77:12-23. And although the law does not require it, at the beginning of their strike, the strikers notified managers that they were striking over their dissatisfaction with Walmart's unlawful retaliation and their working conditions. b. The Act protects strikers regardless of whether the workers' demands and the strike itself were reasonable. Based on their testimony, workers who struck had genuine concerns about Walmart's retaliation, their working conditions, and Walmart's refusal to acknowledge their concerns. The workers' motivation to strike in protest of these issues is understandable. But even if the workers' decision to engage in this concerted activity had been unreasonable, their strike would still have constituted a labor dispute protected by the Act. The U.S. Supreme Court has held that the "reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not." NLRB v. Washington Aluminum Co., 370 U.S. 9, 16, 82 S. Ct. 1099, 1103, 8 L. Ed. 2d 298 (1962), and "[t]he Board . . . take[s] the same position, declining to impose 'a reasonable means requirement on employees' concerted activity.'" Northfield Urgent Care, LLC & Jennifer Grossman, 358 NLRB No. 17 n. 22 (2012); quoting Accel, Inc., 339 NLRB 1052, 1052 (2003) (the Board adopted the ALJ's decision rejecting the company's argument that the strike was a "disproportionately disruptive response to a trivial grievance.").

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c. The Act protects strikes in which workers are motivated to strike for multiple and different reasons. The Act protects strikes in which workers are motivated to strike for multiple and different reasons. For example in Domsey Trading Corp., 310 NLRB 777 (1993), the Board held that the Act protected a strike of 200 employees during which workers struck for a variety of issues. For example, some workers testified that they struck to demand union recognition and picketed with strike signs stating "No Contract, No Work." 310 NLRB at 791. Other workers testified that "they were trying to be treated with dignity in the plant." Id. Different workers testified that they "were also extremely agitated by [company's] firing of employees." Id. And at a general meeting prior to striking, some workers stated that they had to strike to counter the company's retaliation against activists because "the fact that the Union was filing unfair labor practice charges was doing no good because [the company] continued to fire all the people that wanted to be members of the Union." Id. The Board held that the Act protected the workers' motivations and required the company to rehire the employees. See also Massachusetts Coastal Seafoods, 293 NLRB 496, 49798 (1989) (Act protected a strike in which workers testified to different strike purposes including to protest for union recognition, worker discipline, the denial of vacation, management statements against unions, changed working conditions, job security, and workplace harassment). Just as in Domsey, the Walmart workers who went on strike did so for multiple reasons including in protest of employer retaliation and terminations of OUR Walmart supporters, as well for Walmart to treat them with respect and dignity. Therefore, as in Domsey, the Act protects Walmart workers' strikes.

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d. The Act protects the workers' strikes because they completely ceased working, thereby subjecting themselves to replacement. The Act protects the strikes here because the Walmart workers not only had the proper motivation (as explained above), but they also completely ceased work while striking, thus foregoing pay and subjecting themselves to a risk of replacement. The case law is clear that the Act protects workers' strikes when workers completely cease work, such that they accept the economic consequences of a genuine strike by foregoing pay and subjecting themselves to a risk of replacement. See Polytech, 195 NLRB 695, 696 (1972). The deciding factor for whether the Act protects work stoppages is that the employees "absent[ed] themselves from work." Robertson, 216 NLRB at 362. The "right to strike is commonly understood as the right to cease work." American Ship Building v. NLRB, 380 U.S. 300, 310 (1965). Therefore to assume the status of a protected striker, a worker's "strike or stoppage must be complete, that is, the employees must withhold all their services from their employer." Audubon Health Care Ctr., 268 NLRB 135, 137 (1983). Workers who completely cease work engage in a protected work stoppage because doing so subjects them to the "consequent loss of pay and risk of being replaced." First Nat'l Bank of Omaha, 171 NLRB 1145, 1151 (1968). Correspondingly, "what makes any work stoppage unprotected, [is] the refusal or failure of the employees to assume the status of strikers, with its consequent loss of pay and risk of being replaced." First Nat'l Bank of Omaha, 171 NLRB at 1151. The Board has held that workers fulfill the requirement of subjecting themselves to replacement even if they cease work for so short a time that it would be difficult for their employer to hire replacements. Care Center of Kansas City d/b/a/ Swope Ridge Geriatric Center, 350 NLRB 64, 67 (2007). The condition that workers subject themselves to a risk of replacement does not require the employer to actually replace them, but simply that the employer faces "no legal

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impediment to permanently replace such economic strikers regardless of the length of each strike." Care Center, 350 NLRB at 67. For example in Care Center, the Board adopted the ALJ's opinion holding that an employer had not been "effectively deprived of its right to permanently replace employees" even if the employees "engaged in periodic 2-day economic strikes." 350 NLRB at 67. Likewise, in WestPac Electric, the Board determined that workers who struck three times in two weeks, including once for just a few hours, engaged in protected work stoppages because they completely ceased work, thereby assuming a loss of wages and a risk of replacement. 321 NLRB 1322, 1360 (1996).2 The Act protects the strikes at issue here because the Walmart workers all completely ceased working while on strike and thus surrendered their wages and subjected themselves to the risk of Walmart replacing them. The strikers testified that they did not perform any work for Walmart while on strike, Walmart did not pay them for any time while on strike, and the strikers did not expect Walmart to pay them.3 When the ALJ found that “the Ride for Respect was not a brief strike that enabled associates to minimize the risks of being on strike,” his inference was that strikes of lesser duration do minimize the risks of being on strike and are therefore unlawful. ALJD at 56:18-21. However,

2

In addition, after each strike, the workers made unconditional offers to return to work, which by their nature presume that the workers had completely ceased working. 321 NLRB at 1360. 3

See Barbara Collins, Tr. 727:12-17; Brandon Garrett, Tr. 4436:18-25; Charmaine GivensThomas, Tr. 6066:21-6067:1; Colby Harris, Tr. 2761:17-2762:1 and 2794:12-20; Mariah Williams, Tr. 4033:16-4034:7; Dominic Ware, Tr. 150:1-7 and 150:1-7; Evelin Cruz, Tr. 4814:815 and 4821:2-9; Javon Adams, Tr. 2936:19-25; Jeanne Creach, Tr. 3047:11-18; Marc Bowers, Tr. 3107:24-3108:11, 3115:22-24, and 3124:6-13; Margaret Hooten, Tr. 663:6-10; Mariah Williams, Tr. 4317:24-4318:7; Michael McKeown, Tr. 3730:24-3731:7; Norma Dobyns, Tr. 483:5-9; Patricia Scott, Tr. 3920:2-10; Raymond Bravo, Tr. 840:8-12, 843:18-22, 853:12-17, and 854:4-8; Sara Gilbert, Tr. 3833:5-13; Shanna Stonehouse, Tr. 3985:1-12; and Victoria Martinez, Tr. 4946:11-16, 4958:11-18, and 4967:7-8. 12

as the case law discussed above proves, this does not reflect the Board’s position. To avoid such confusion, the Board should clarify its strike standard to reflect that a worker opens herself to the risks of being on strike when she completely withholds her labor, thereby subjecting herself to replacement, regardless of the duration of the strike. 2. Walmart’s discipline and termination of the striking workers violated the Act because the Act protected all of the workers’ conduct while on strike. The Act protects these strikes because the Act protects the Walmart workers' conduct during the strikes. After determining that a worker completely ceased work for a protected motivation, "the pertinent question is whether the [worker's strike] conduct is sufficiently egregious to remove it from the protection of the Act." Stanford NY, LLC, 344 NLRB 558 (2005); Aluminum Co. of America, 338 NLRB 20 (2002); Ogihara America Corp., 347 NLRB 110, 112 (2006). No worker forfeited NLRA protection by engaging in any serious threatening misconduct. a. The Act protects the Walmart workers' strikes regardless of the strikes' timing or disruption of operations. The Act protects the Walmart workers' strikes regardless of the strikes' timing or whether they disrupted Walmart's operations. It is well established that the Act protects the right of workers to strike even if, by ceasing their labor, workers disrupt a company's operations. "It is axiomatic that the very purpose of a strike is to cause disruption, both operationally and economically, to an employer's business operations in order to cause the employer to accede to the union's demands on behalf of the employees." Care Center of Kansas City, 350 NLRB 64, 67 (2007) (Board adopted ALJ decision). In reaching this conclusion, the Board rejected the company's argument that the strikes "were unprotected because they were calculated to cause the most disruption to [employer] operations while providing employees the most advantageous incentives for striking." Id.

13

Likewise, the Walmart workers had the right to time their strikes as they saw fit, regardless of the strikes' disruptive impact. Workers "are not required to institute the strike at any particular time of the day . . . to be entitled to the protection of the Act." First Nat'l Bank of Omaha v. NLRB, 413 F.2d 921, 925 (1969). For example, in Solo Cup, the Board held that workers had the right to strike in the middle of their shift, despite the significant disruption to operations. 114 NLRB 121, 121-22 (1955), enfd. 237 F.2d 521 (8th Cir. 1956). The Eighth Circuit enforced the Board's order in Solo Cup, emphasizing that the Act protects a worker's right to join other workers in quitting work in protest over the treatment of a coemployee, or supporting him in any other grievance . . . . Regardless of what we think about the activities of the employees and the manner and time of making their protest and demand, we must conclude with the Board that their protest came within the protective purview of the Act. 237 F.2d 521, 525 (8th Cir. 1956). The Board has explained that the "determination of whether a 'labor dispute' exists does not depend on the manner in which the employees choose to press the dispute, but rather on the matter they are protesting. Where a 'labor dispute' exists, the employees may engage in a peaceful primary strike or any other lawful manner of protest and still retain the protection of the Act." Plastilite Corp., 153 NLRB 180, 184 (1965). Therefore, activity by "employees to protest their working condition is normally held to be protected regardless of . . . the impact of such activity on production." Johnnie Johnson Tire, 271 NLRB 293, 295 (1983) (Board adopted ALJ decision). Thus, here the Act protected the workers' right to strike, for example, around Black Friday and Walmart's shareholder meeting to intensify pressure on Walmart to address their concerns, regardless of the strikes' potential disruption of Walmart.

14

b. The Act protects the Walmart workers' strikes regardless of the number of workers who decided to join the strikes. The Act protects the Walmart workers' strikes regardless of the number of workers who decided to join each strike. Because NLRA protection does not turn on the strike's impact, the Act protects strikes regardless of the number of workers who decide to join the strike. For example, the Board in U.S. Service Industries held that the Act protected a series of four strikes involving from two to 23 workers. 319 NLRB 231, 235 (1995). Here, the fact that a varying number of Walmart workers joined in particular strikes has no bearing on whether the Act protects the workers' strikes. c. The Act protects the Walmart workers' right to demonstrate in conjunction with the strikes. The Act protects the right of Walmart workers to engage in demonstrations related to the strikes. For example, while on strike, workers demonstrated by rallying in Walmart parking lots, handbilling customers, doing manager delegations, and traveling to and protesting at Walmart's analyst or shareholders meetings. The Act protects the right of workers to do all these activities in conjunction with strikes and therefore the workers did not forfeit NLRA protection by demonstrating. For example, in National Steel and Shipbuilding Co., the Board held that the Act protected noisy rallies at the company entrance that the workers held "virtually every day during the entire 11-month period," despite the rallies being part of a union strategy that included work stoppages that the Act did not protect. 324 NLRB 499, 502 (1997).4 The Board recognized that the union

4

In National Steel, the "Inside Game" union strategy was that "in lieu of striking, [workers] remain[ed] on the job and [took] measures inside the employer's facility designed to put economic pressure on the employer to change its position at the bargaining table" such as "work stoppages, slowdowns, and the like." 324 NLRB at 501-02. 15

rallies had no bearing on whether the Act protected the underlying work stoppages and concluded that "[t]here is no dispute that the [] union rallies constituted protected, concerted activity." 324 NLRB at 500 (holding that company unlawfully videotaped rallies). The "noisy" rallies "entailed union leaders using electronic bullhorns to make speeches and exhort attendees and workers who were passing by to demonstrate their solidarity and then the workers entered the shipyard en masse, shouting slogans such as "'it's union time.'" 324 NLRB at 500. Likewise here, the Act protected the demonstrations the Walmart workers held while on strike and the demonstrations have no bearing on whether the Act protects the strikes. Therefore the workers did not forfeit the NLRA's protection of their strikes by demonstrating. d. The Act protects the Walmart workers' right to engage in "overly spirited" conduct during a strike as long as the conduct is not coercive or physically threatening. The Act protected each of the Walmart workers' strike activities because no action by a worker came close to exceeding the wide range of conduct that the Act protects. A specific worker can forfeit the Act's protection for his or her strike conduct only "if, under the circumstances, the conduct at issue would reasonably tend to coerce or intimidate non-striking employees."5 Thus the Act protects all the conduct by a worker during a strike, including "overly spirited conduct," except if the worker's conduct is flagrantly physically violent or similarly seriously threatening. The Board in J.W. Microelectronics Corp. emphasized that: [N]ot every impropriety committed in the course of Section 7 activity deprives the offending employee of the protection of the Act. A line must be drawn between situations where employees exceed the bounds of lawful conduct in a moment of exuberance or in a manner not activated by improper motives and those flagrant cases in which misconduct is violent or of such serious character as to render the employees unfit for further service. 5

Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984), enfd. 765 F.2d 148 (9th Cir. 1985). An employer must also have an "honest belief" that the worker engaged in the alleged serious misconduct. General Telephone Company of Michigan, 251 NLRB 737, 738-40 (1980). 16

259 NLRB 327 (1981), enfd. mem. 688 F.2d 823 (3d Cir. 1982). Thus, for example, the Act protects a striker using vile language and gestures, so long the worker did not engage in physical violence or threats. For example, in Airo Die Casting, 347 NLRB 810, 812 (2006), the Board adopted the ALJ's holding that a striker's "use of obscene language and gestures and a racial slur" directed at a non-striker "standing alone without any threats or violence, did not rise to the level where he forfeited the protection of the Act." These NLRA protections apply also to striker's conduct directed at customers. See Wayne Stead Cadillac, 303 NLRB 432, 436 (1991) (the Act protected two strikers at an auto dealership who made obscene gestures and mouthed obscenities at a customer and young daughter driving out). Likewise, the Act protects from discipline strikers' physical actions that, under the circumstances, do not rise to serious intimidation. For this reason, the Act protected a striker who squirted a security guard and other people with water from a water pistol6 and strikers who briefly hit a foreman's vehicle with cardboard picket signs.7 In Preterm, Inc., 273 NLRB 683, 701-702 (1984), the Board adopted the ALJ's holding that the Act protected a striker who: blocked "three to four automobiles attempting to enter the [company] parking lot by physically standing in front of the automobiles" for "an estimated 5 to 10 minutes"; "pound[ed] on the hoods of the cars"; "ran up the front steps at [the company] and in effect crashed or ran into the door" with a dozen coworkers; and attempted repeatedly to block patients from entering the facility.

6

Detroit Newspapers, 324 NLRB 223, 224 (2004)

7

Medite of New Mexico, Inc., 314 NLRB 1145, 1146-47 (1994) 17

Preterm, Inc., 273 NLRB 683, 701-702 (1984). The ALJ noted that the striker only blocked temporarily and did not physically damage the car or door. Here, the Walmart workers' conduct during strikes, including any arguably "spirited" rallies, fits squarely within the non-threatening conduct that the Act protects. Moreover, the Walmart workers' conduct does not come close to serious threatening conduct that the Act does not protect. Unprotected serious strike misconduct involves for example: when strikers "surrounded a car, held a baseball bat in a threatening manner, pounded on cars, threatened to kill and beat up non-striking employees, threatened to blow up the plant, threatened to burn non-strikers' cars, and threatened to 'get' the non-strikers and their family members";8 or when a striker "swung a 2-foot long club at a non-striking employee and struck a nonstriking employee's car" and other strikers when they "carried clubs, tire irons, baseball bats, and ax handles and were accompanied by dogs";9 or when a striker lunged at a non-striker yelling that they "should drag the son-of-a-b[----] out of his pick-up truck and 'I'll stump his god----- a-"; later yelled "stop your car and I'll whip you're a— . . . I'll get you sooner or later"; and then while driving on a highway, "sped towards [the non-striker's] vehicle, veering off only at the last second."10 No conduct of any of the Walmart strikers came close to this behavior and therefore the Act firmly protects the strikes.

8

Medite, 314 NLRB at 1146 (summarizing Gem Urethane Corp., 284 NLRB 1349, 1353 (1987)).

9

Medite, 314 NLRB at 1146 (summarizing Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984)).

10

Chesapeake Plywood, 294 NLRB 201, 219 (1989). 18

e. The Act protects the workers' right to seek publicity for their strikes. The Act protects Walmart strikers seeking publicity and media attention regarding Walmart's objectionable behavior and OUR Walmart's attempts to change it because "all communications concerning working conditions are protected so long as they are not so disloyal, reckless, or maliciously untrue as to lose the Act's protection." Oaktree Capital Mgmt., LLC, 353 NLRB 1242, 1270 (2009), (ALJ opinion adopted by Board in relevant part); enfd. 452 Fed. Appx. 433 (5th Cir. 2011). This includes communications "directed to other employees, an employer's customers, its advertisers, its parent company, a news reporter, and the public in general." KinderCare Learning Centers, 299 NLRB 1171, 1171 (1990) For example, in Alaska Pulp Corp., 296 NLRB 1260 (1989), the Board held that a worker engaged in "protected activities on behalf of the Union" when during a strike the worker sought publicity, drafted a public letter, and spoke to government officials. 296 NLRB at 1262. The worker "as a member of the Union's public relations committee during the strike, wrote the letter to elicit community support for the strike and also, apparently, to persuade responsible representatives or principals of [the Company] to 'right the wrongs' and become more sympathetic toward the Union's concerns." 296 NLRB at 1273; see also Allstate Ins. Co., 332 NLRB 759 (2000) (Act protected a worker interviewed by Fortune Magazine and critical of company practices). Therefore, the Walmart workers did not forfeit their NLRA protection by seeking publicity and media attention during their strikes. f. The Act protects the workers' right to coordinate strikes with unions and community allies. The Act protects Walmart workers' efforts to plan and coordinate strike activity with the UFCW and other supportive allies because the "Act protects concerted activity for mutual aid or

19

protection regardless of whether a union is involved." Alton H. Piester, LLC & Darrell Chapman, 353 NLRB 369, 370 (2008). In concluding this, the Board expressly reversed the ALJ who had distinguished the strikers' concerted activity based on the involvement of a union. Similarly, in Alaska Pulp, the Board found that it did not matter that the worker's publicity activities were on behalf and in support of the union. 296 NLRB at 1262. Likewise, in Robertson, 216 NLRB 361, the Board held that the Act protected the workers' walkout to meet and work with a union. Because it is well established that workers may coordinate their strikes with unions, the Act protects Walmart's workers' coordination with and assistance from the UFCW. The Walmart workers did not forfeit their NLRA protection by seeking and accepting support from the UFCW and other allies. 3. The Act protects the Walmart workers' strikes because workers have the right to strike multiple times in multiple places over the same workplace issues. The Act protected the Walmart workers' right to strike multiple times and even over the same workplace issues. Regardless of whether a worker has struck in the past, the Act protects the right of a worker to strike so long as the worker strikes for a protected purpose and the worker completely ceases work and engages in no misconduct while on strike. Thus, the Act protects the right of workers to strike multiple times regarding the same protected workplace issue. a. The Act protects the workers' right to strike more than once. While some Walmart workers only struck once, others struck more than once. The ALJ found that one criteria of determining whether there is an intermittent work stoppage is “[w]hether the employee engaged in a pattern of recurring work stoppages, and/or demonstrated their intent to engage in future recurring work stoppages.” ALJD at 51:1-6 (citations omitted). However, a worker does not forfeit the Act's protection by striking more than once, even close in time, and then deciding to strike again in the future. First, the Board has repeatedly held that the frequency

20

of the work stoppages does not determine whether the Act protects them. For example in WestPac Electric, the Board adopted the ALJ's opinion explaining that: Although [three work stoppages over a two-week period] may superficially suggest the "intermittent" characterization urged by [the employer], we must recall that the mere fact that some employees may have struck more than once does not render their conduct intermittent striking. 321 NLRB at 1360 (citations and quotations omitted). See also U.S. Service Industries, 315 NLRB 285, 285 (1994), enfd. 72 F.3d 920 (1995). Similarly, the Board in Robertson reversed the ALJ, who concluded that the Act did not protect workers from attending a union meeting during work time two months after they had engaged in a previous work stoppage. 216 NLRB at 361-63, 371. The Board found that, to hold that "two occasions establish a pattern of recurrent and intermittent work stoppages would . . . disallow employees to engage in more than one instance of concerted protected activity during an indefinite period of time regardless of [circumstances]." Robertson, 216 NLRB at 362. Moreover, the Act protects workers who strike multiple times even in the same week. For example, the Board held in Farley Candy that the Act protected three work stoppages over only two days. 300 NLRB 849, 849 (1990); see also Dodge Center, 289 NLRB 194, 194 n.2 (1988) (Act protected workers who struck twice, separated by one day); Union Electric, 219 NLRB 1081, 1082 (1975) (Act protected workers who struck twice separated by one week who were engaged in protected strikes). Finally, in U.S. Service Industries, the Board held that the Act protected nearly two dozen workers who struck four separate times over the course of approximately a month, including some workers who struck for one day, worked for one day, and then struck again. 319 NLRB 231, 23536 (1995). And in an earlier case involving the same employer, the Board held that the Act

21

protected a series of three work stoppages over a period of five months involving a dozen workers. U.S. Service Indus., 315 NLRB 285, 289-93 (1994). The Board's case law makes clear that a worker has the right to strike multiple times, even over brief time periods. Although the ALJ cited the recurring nature of the work stoppages as a factor in making an intermittent strike analysis, he also noted that each of the factors he utilized “comes with a host of exceptions and caveats.” ALJD at 52:10-11. This is why the Board should clarify any ambiguities in the case law to affirm that purported factors such as the recurring nature of strike activity, the period of time in which strikes are conducted, and whether there is an intent to strike again in the future do not determine whether a strike is lawful. If a strike is for a lawful purpose, the workers completely cease work (thereby subjecting themselves to being replaced), and they do not engage in unlawful conduct, then the strike is protected. b. The Act protects the workers' right to strike multiple times even if the strikes involve the same issue and occur over a short period of time. The Act protects Walmart workers' rights to strike multiple times even over the same issue and even if the strikes occurred over a short period of time because their issues constituted a protected motivation and the workers completely ceased work each time they went on strike. Here, Walmart workers were motivated to strike at least in part by Walmart's refusal to address retaliation and the objectionable working conditions, although the motivating examples of retaliation and mistreatment changed from strike to strike. In U.S. Service Industries, the Board rejected the argument that three work stoppages over six months lost the protection of the Act because the workers were motivated to strike by the same economic issues (as part of the union's "Justice for Janitors" campaign). 315 NLRB 285, 285-86 (1994). First, the Board adopted the ALJ's conclusion that there was no evidence that "the strikes were for any purpose other than to protest and seek redress for what employees considered to be

22

unjust working conditions." Id. at 291. Second, the Board held that workers engaged in protected work stoppages where they struck for one day, then two weeks, then one month. The Board found that, because they completely ceased working, the workers did not intend to create "a condition that was neither a strike nor work." Id. at 290. In Chelsea Homes, the Board adopted the ALJ's holding that "two stoppages, even of like nature," and even "if the two incidents could be said to be related and to have arisen from [the same] objection," "are insufficient to constitute evidence of a pattern of recurring, and therefore unprotected, stoppages." 298 NLRB 813, 831 (1990). Similarly, in Farley Candy, the Board held that the Act protected two work stoppages over the same issues of wages and overtime. 300 NLRB 849, 849 (1990). The Farley Candy workers struck for part of the day, returned to work that same day, and then struck again the next day to pressure the employer to reduce scheduled overtime. 300 NLRB 849, 849-50 (1990). In City Dodge Center, the Board again held that the Act protected two work stoppages that were motivated by the same grievance. 289 NLRB 194, 194 n. 2 (1988), enfd. sub nom. Roseville Dodge, 882 F.2d 1355 (8th Cir. 1989). And in Union Electric, the Board found that the Act protected two work stoppages, each for a day, over the same dispute regarding work assignments. 219 NLRB 1081, 1082 (1975). Correspondingly, the courts have also held that the Act protects plans to engage in multiple strikes over the same issue. See, e.g., NLRB v. Empire Gas Inc., 566 F.2d 681, 686 (10th Cir. 1977), enforcing 224 NLRB 628 (1976). In Empire Gas, the Board held that the Act protected a plan for workers to strike for one day and, if the employer did not resolve the issue within a week, to strike again for two days. 566 F.2d at 686. In enforcing the Board's decision, the Tenth Circuit emphasized the rule that strikes do not lose their protection merely because the same issue

23

motivates them. The "only difference between the one-day stoppage [that the Board has] approved in [other] cases and [Empire Gas] is that here there was a proposed two-day stoppage to follow a failure of the one-day stoppage. This, however, does not form any basis for distinguishing the two situations." Empire Gas, 566 F.2d at 686. Here, because the Walmart workers struck for protected motivations and because the workers completely ceased their work, all of their strikes enjoyed the Act’s protection regardless of whether the strikes were for similar overarching motivations, regardless of whether they occurred over a short period of time, and regardless of whether the strikers demonstrated their intent to engage in future strikes. c. The Act protects the workers' right to strike at different locations during the same time period. The Act protected Walmart workers when workers from different parts of the country struck around the same time period. This is because the Act protects the right of workers to strike at different locations of a company during the same time period. For example, in U.S. Service Industries, the Board held that the Act protected strikes occurring in three separate company locations, starting on different dates, but overlapping in time. 319 NLRB at 235. Workers do not forfeit the Act's protections simply because other workers also decide to strike in other parts of country. B. The Act protects Walmart workers' strikes because the Board finds unprotected "intermittent" work stoppages when workers (1) strike to unilaterally impose a working condition or (2) strike in a manner that prevents their employer from replacing them. The Act protects Walmart workers who struck because they 1) struck for protected motivations; 2) completely ceased work, thus foregoing pay and subjecting themselves to risk of replacement; and 3) did not engage in any serious threatening misconduct.

24

These are the determinative factors in those cases where the Board found unprotected “intermittent” activity.

In particular, Board cases have held the Act did not protect the

"intermittent" work stoppages because the workers ceased work with an improper, unprotected motivation: the workers sought to unilaterally impose a working condition on the employers, rather than simply protesting a working condition. Likewise in other cases, the Board held that the Act did not protect "intermittent" work stoppages because the workers failed to completely cease work and subject themselves to risk of replacement: workers intentionally struck in a manner to still get paid or to prevent the company from replacing them. In other words, the same factors determine protected and unprotected strikes, regardless of the term "intermittent." As discussed earlier, the Act protects these strikes because the workers struck to protest Walmart's retaliation and refusal to address working conditions and, in turn, they did not strike to impose working conditions upon Walmart or resist any management directives. Similarly, they completely ceased work while on strike, were not paid, and they never struck in a manner that prevented Walmart from defending itself by replacing them. For these reasons, the Act protects these strikes from Walmart's punishment. 1. The Walmart workers did not strike in an attempt to unilaterally impose a working condition. The Walmart workers struck solely to protest and pressure Walmart to address their working conditions and stop retaliating against them for speaking out. They struck almost universally for full shifts or the duration of their shift and sometimes for several days. Therefore, applying the Board law detailed below, the Walmart workers' strikes were protected by Section 7 and were not unprotected "intermittent" activity. The Act does not protect workers who cease work with the unprotected motivation to unilaterally impose a change in working conditions. Honolulu Rapid Transit, 110 NLRB 1806,

25

1810 (1954); Audubon Health Care Center, 268 NLRB 135, 136-37 (1983). The Board in Honolulu Rapid Transit held that, after reaching a bargaining impasse, bus drivers went on strike with the improper motivation of unilaterally imposing a five-day weekly work schedule. In so finding, the Board relied on the fact that, after the impasse, the workers stated that they would work "only if it did 'not interfere with Union rules and regulations,'" and thereafter worked only five days out of the seven-day workweek for several months. 110 NLRB at 1809. The Board held that the Act did not protect their work stoppage because the Union was intending to "designate the workdays" and "impose upon the employer their own chosen conditions of employment." Id. at 1808. For the same reasons, the Board in Care Center of Kansas City adopted the ALJ's order finding that workers sought to unilaterally impose their own working conditions on the employer after bargaining broke down. 350 NLRB 64, 64-68 (2007). The Board held that, like the Honolulu drivers, the Care Center strikers attempted an "arrogation of the right to determine their schedules and hours of work" and found their work stoppages unprotected. Id. at 68, citing Honolulu Rapid Transit, 110 NLRB 1806, 1809 (1954). The Board held that the union had the improper intent to "impose upon the employer their own chosen conditions of employment" because the union issued three consecutive 10-day strike notices to the employer. 350 NLRB at 68. After issuing its first strike notice, the Union rescinded it, but at the same time issued another 10-day strike notice. Id. at 65-66. The Union then struck for one day, but the next day issued a third 10-day strike notice, and then struck again for one day. Id. at 65-66. The ALJ found that the union was motivated to seize the employer's right "to determine their schedules and hours of work" and "establish and impose upon the employer their own chosen conditions of employment." Id. at 68, quoting Honolulu Rapid Transit, 110 NLRB at 1810.

26

Likewise, the Board in Audubon Health Care Center found that nurses who selectively refused to cover nurses' stations in other departments while also performing other duties had an unprotected motivation because they attempted "to usurp [the employer's] prerogative to assign work." 268 NLRB at 136-37. Rather than protesting working conditions, the nurses "chose to dictate the work they would or would not perform." Id. at 137. In Embossing Printers, 268 NLRB 710, 723 (1984), the Board adopted the ALJ's holding that the Act did not protect workers from being locked out for leaving work to attend a union meeting because the workers were improperly motivated: the meeting's purpose was not to "resolve some immediate, adverse, and undesirable working condition," but merely to "discuss ways in which to resolve their bargaining dispute with the Company." The ALJ explained that "[e]mployees may not attempt to dictate the terms and conditions of employment." Id. at 723. 11 However, the ALJ in Embossing Printers emphasized that their co-workers "had a protected right to protest the Company's [lockout] by striking" because this was a protected motivation and thus found that the Act did protect the co-workers who thereafter walked out to protest the lockout, "[e]ven if the lockout was lawful." Id. at 724 (adopted by Board). Correspondingly, in Merrillat Indus., Inc., 307 NLRB 1301, 1305 (1992), the Board adopted the findings of the ALJ, who explained that "where the employer is on notice that [a] sickout is in protest of pending grievances, the job action falls within the protective mantle of Section 7 of the Act." Id. at 1305. But the Act did not protect the Merrillat union's proposed

11

Crown Coach Corp., 155 NLRB 625 (1965) is irrelevant and inapplicable here because the Board explicitly did not determine whether the Act protected the strike at issue. The Trial Examiner explained that it was "[p]assing [on] the question (unnecessary to decide here) whether the 'demonstration meeting' during working hours and the work stoppage for the balance of the day amounted to a "partial strike" unprotected by the Act." 155 NLRB at 635 (the Company did not violate the Act by permanently replacing the economic strikers regardless of the status of the strike). 27

sickout because the employee sickout was instead an effort to impose its own working conditions— the union immediately proposed the sickout in retaliation for the company's refusal to permit those same employees to leave work for union business. Thus, the Board found that the sickout was not a protest of working conditions, but "merely a ploy to resist a management directive." Merrillat Indus., Inc., 307 NLRB at 1305. The Walmart workers' strikes have no similarity to any of these situations where the Board found that a strike was an unprotected attempt to impose working conditions on the employer. The Walmart workers did not strike in a manner that determined their schedules, hours of work, or duties or otherwise impose a working condition. In the face of Walmart's ongoing refusal to acknowledge their concerns, the workers engaged in protected strikes so Walmart would take notice of their protest and concerns. For these reasons, the Act protects the Walmart workers' strikes. 2. The Walmart workers never struck in a manner that prevented Walmart from defending itself by replacing them. The Act protects the workers' strikes because each time the workers went on strike, they ceased work unequivocally and thus subjected themselves to the loss of pay and the risk of replacement. Moreover, they did not strike in a manner that prevented Walmart from defending itself by obtaining replacements. Thus, the Act protects these strikes because the workers faced the economic risks involved in a strike. Board cases, regardless of whether they mention the term "intermittent," focus on the same factor when determining whether the Act protects a strike: whether the strike was "intentionally planned and coordinated so as to effectively reap the benefit of a continuous strike action without assuming the economic risks associated with a continuous forthright strike, i.e., loss of wages and possible replacement." Westpac Elec., Inc., 321 NLRB 1322, 1360 (1996) (ALJ decision adopted

28

by Board). Workers "may not simultaneously walk off their jobs but retain the benefits of working." First Nat'l Bank of Omaha, 171 NLRB at 1151. There, workers "who choose to withhold their services . . . may properly be required to do so by striking unequivocally." First Nat'l Bank of Omaha, 171 NLRB at 1151. Regarding loss of pay, the "principle of the [Board] cases, is that employees cannot properly seek to maintain the benefits of remaining in a paid employee status while refusing, nonetheless, to perform all of the work they were hired to do." Care Center, 350 NLRB at 67. The Act "prohibit[s] employees from both drawing wages and attempting to put economic pressure on the employer at the same time." Robertson, 560 F.2d at 398 n. 2. Thus, the Act does not protect a worker's "recurrent refusals to perform a particular job" because the worker fails to completely cease working by performing some, but not all duties. Excavation-Construction v. NLRB, 660 F.2d 1015, 1021 (1981). Such an incomplete withdrawal results in employee "slowdowns or stoppages which are neither work nor strike." Robertson, 560 F.2d at 398 n.2 Regarding the risk of replacement, as discussed above, the Board has held that strikers fulfill the requirement of subjecting themselves to a risk of replacement even if they cease work for so short a time that it would be difficult for their employer to hire replacements. See Care Center, 350 NLRB at 67 (workers "engaged in periodic 2-day economic strikes" subjected themselves to risk of replacement); WestPac Electric, 321 NLRB at 1360 (workers who struck three times in two weeks subjected themselves to risk of replacement). However, the Act does not protect a union's strategy to avoid the economic risks of a genuine strike while "harassing the company into a state of confusion" by preventing the employer an opportunity to defend itself to continue operations with replacements. Pacific Telephone and Telegraph, 107 NLRB 1547, 1550-51 (1954). But the case law makes clear that normal strike

29

activity and the disruption to the employer that it may create does not rise to this level. Rather, harassing the company into a state of confusion occurs when the strike activity itself actually serves to prevent the employer from defending itself by continuing operations with replacement workers. Pacific Telephone and Telegraph, 107 NLRB 1547, 1550-51 (1954). To rise to this level, workers must do more than merely withhold their labor, even if they do so multiple times of a limited duration; they must literally strike in a manner that prevents the employer from attempt to continuing operations. For example, in Pacific Telephone, a handful of traffic operators engaged in rolling pickets across 200 offices in conjunction with toll operators who honored the picket lines. 107 NLRB at 1551-52. The traffic operators would strike long enough to shut down an office. Id. at 1547-48. When the employer would arrange for supervisors to arrive to reopen the office, the traffic operators would end the strike and return to work. Id. This resulted in multiple strikes of very short duration that prevented the employer from installing replacements. Id. Moreover, in addition to the employer’s inability to employ replacements, the striking workers barely lost any pay and avoided the risk of replacement by returning to work before replacements arrived. Id. It is this extreme level of activity that is required to “harass the company into a state of confusion.” In National Steel & Shipbuilding Co., the Board adopted the ALJ's decision that the Act did not protect a strategy the union called the "Inside Game," whereby "in lieu of striking, [workers] remain[ed] on the job and [took] measures inside the employer's facility designed to put economic pressure on the employer to change its position at the bargaining table." 324 NLRB 499, 501 (1997) (emphasis added). These in-plant tactics included "work stoppages, slowdowns, and the like." Id. The Board found that the employees chose "not to strike, but to pursue an 'Inside Game'" that was "neither strike nor work" Id. at 501, 509.

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In support of this "Game," employees staged two partial-day work stoppages within three days. Id. at 508. During the first stoppage, employees demonstrated for just thirty minutes before returning to work, and during the second stoppage, employees left work after lunch and returned the next workday. Id. The Board adopted the ALJ findings that these work stoppages were "integral elements" of the "Inside Game" "plan" to "confuse" the employer and "achieve the 'benefits' of strike action without assuming the vulnerabilities of a forthright and continuous strike. Id. at 510. Therefore, the Act did not protect these stoppages "because they involve at their essence an attempt by employees to reap the economic benefits of strike action without their being simultaneously willing 'to assume the status of strikers, with its consequent loss of pay and risk of being replaced.'" Id at 509. Unlike in these cases explained above, the Walmart workers assumed the status of NLRAprotected strikers because they fully withheld their labor to protest their issues, such that the strikers faced the economic risks of loss of pay and risk of replacement. All of the Walmart strikers lost pay while striking because they performed no work at all while on strike. They did not strike selectively to avoid having to perform certain duties and they did not engage in work slowdowns in order to maintain their pay. Likewise, the strikers subjected themselves to the risk of replacement. For example, the Walmart workers struck such that they faced the risk of Walmart replacing them: they struck for whole shifts, or the remainder of their shifts, and sometimes for several days. The strikers did not have a strategy to prevent Walmart from replacing them and certainly did not seek to harass and confuse Walmart as to reap the benefits of a strike while avoiding loss of pay or risk of replacement.

And the strikers did not prevent Walmart from defending itself by finding

replacement workers.

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The Act protects all of the Walmart workers’ strikes because the workers accepted the risks of striking by fully ceasing work to protest their working conditions and to pressure Walmart to stop retaliating against them and instead respond to their issues. II.

The Board must protect workers' right to strike by clarifying that the Act protects workers who completely cease work for protected motivations. In addition to finding that the Walmart violated the Act because the Act protected the

Walmart workers' strikes, the Board must unequivocally affirm that the Act protects a worker who (1) strikes for a protected motivation, such as protesting ULPs or working conditions; (2) completely ceases work thus foregoing pay and subjecting the worker to risk of replacement; and (3) does not engage in serious threatening misconduct such that the worker forfeits protection of the Act. Moreover, the Board should affirm that the Act protects a worker striking multiple times so long as the worker fulfills these requirements for each strike. It is undisputed that the Act empowers workers with the right to strike free from an employer's punishment. Yet the Board's use of the term "intermittent" in some strike cases has resulted in perceived ambiguity of what constitutes protected or unprotected strikes. This has made it difficult for workers to clearly understand their labor rights and confidently exercise them. Moreover, Walmart has exploited this confusion to chill workers' protected right to strike. Specifically, Walmart used this perceived ambiguity to unlawfully threaten, discipline, and fire workers who exercised their right to strike, all under the pretext that their activity constituted unprotected "intermittent work stoppages." Clarifying that the Act protects workers who completely cease work for protected motivations not only would adhere to the holdings in the Board's strike cases, but such a clarification would also prevent Walmart and other employers from using cases mentioning "intermittent" activity as a bludgeon to threaten and terminate workers who exercise their rights. 32

Such a clarification will also enable workers to clearly understand their Section 7 rights and permit workers to more confidently exercise them. If, however, the Board adopts instead the broad interpretation of unprotected strike activity that Walmart seeks, then the Board will embolden Walmart to continue threatening, punishing, and even firing any worker who attempts or even considers a strike. This would irreparably chill protected activity. Therefore, the Board must unequivocally reaffirm as stated earlier that the Act protects workers who completely cease work for protected motivations. A. The proper strike standard is that the Act protects workers who strike for a protected motivation, even if they strike multiple times, as long as the workers cease work completely each time and thereby subject themselves to replacement. Clarifying that a worker engages in a protected strike so long as the worker is properly motivated and completely ceases work would not result in a new standard, but instead adheres to the holdings in the existing strike-related case law, including Board cases that describe unprotected strikes as "intermittent." As fully discussed earlier, the case law holds that to receive the protections of the Act, workers who go on strike must have a protected motivation and must completely cease work without pay, thereby subjecting the workers to the risk of replacement. The "factor[] which [is] the very essence of a work stoppage or strike" is whether workers are "withholding their labor in protest against working conditions or to bring pressure on [a company] to have those conditions changed[.]" GK Trucking Corp., 262 NLRB 570, 573 (1982) (ALJ opinion adopted by Board). And the Board emphasized that "what makes any work stoppage unprotected, [is] the refusal or failure of the employees to assume the status of strikers, with its consequent loss of pay and risk of being replaced." First Nat'l Bank of Omaha, 171 NLRB at 1151.

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Moreover, as also fully discussed, Board cases that mention "intermittent" activity focus on these factors, holding that the Act did not protect the work stoppages because, for example, either: (1) workers did not strike for a protected motivation, but instead to unilaterally impose working conditions; (2) workers failed to completely cease work, but instead selectively withdrew their labor to draw pay while pressuring the company; or (3) workers avoided a risk of replacement by striking in a manner preventing the employer from defending itself. Correspondingly, other factors such as whether the strikers receive assistance from a union, how often the workers strike, or whether strikes are over the same issue, are not determinative. Thus, clarifying the factors for a protected strike, as stated earlier, would reaffirm this case law and eliminate any confusion. B. Clarifying that the Act protects strikers who have a protected motivation and completely cease work would adhere to the language and intent of the Act. Clarifying that the Act protects strikers with a proper motivation who completely cease work is consistent with Section 13 of the Act, which prohibits the Board from limiting the right to strike. See 29 U.S.C. § 163. Moreover, the statute does not limit workers from striking multiple times. Section 13 states that: Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right. 29 U.S.C. § 163. In addition, to impose further restrictions on a workers' right to strike would be contrary to the unmistakable intent of Congress to preserve the right to strike. In Erie Resistor, the Supreme Court found that "Congress['s] concern for the integrity of the strike weapon has remained constant. Thus when Congress chose to qualify the use of the strike, it did so by prescribing the limits and conditions of the abridgment in exacting detail . . . and by preserving the positive 34

command of § 13[.]" NLRB v. Erie Resistor, 373 U.S. 221, 234 (1963). When passing TaftHartley with § 13 intact, Senator Taft emphasized that: [W]e recognize freedom to strike when the question involved is the improvement of wages, hours, and working conditions . . . . We recognize that right in spite of the inconvenience, and in some cases perhaps danger, to the people of the United States which may result from the exercise of such right. NLRB v. Erie Resistor, 373 U.S. 221, n. 13, quoting 93 Cong. Rec. 3835 (1947). Supreme Court jurisprudence also weighs against placing unnecessary burdens on the right to engage in a protected strike. In Erie Resistor, the Court held that the "positive command of § 13 [is] that the right to strike is to be given a generous interpretation within the scope of the labor Act . . . . The courts have likewise repeatedly recognized and effectuated the strong interest of federal labor policy in the legitimate use of the strike." NLRB v. Erie Resistor, 373 U.S. 221, 235 (1963). Therefore, clarifying that workers engage in a protected strike if the workers were motivated by a protected issue and completely ceased working, thus foregoing pay and subjecting themselves to the risk of replacement, adheres to the intent and spirit of § 13. Correspondingly, Section 13 prohibits an interpretation of the Act that limits the right of workers to strike merely because, for example, the workers struck more than once, over the same issue, for short periods, at inconvenient times, with the assistance of unions, or at multiple locations. In light of the language of the Act, congressional intent, and Supreme Court precedent, Walmart's proposed expansion of unprotected work stoppages violates Section 13 of the Act by adding unnecessary strictures onto a right that is supposed to be inviolable even if, as the Supreme Court said, it inconveniences the employer and the public.

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C. If the Board does not clarify these cases accordingly, then the Board will empower Walmart and other employers to irreparably chill workers' Section 7 rights. If the Board does not clarify, as stated earlier, cases mentioning "intermittent" activity and instead gives Walmart the expanded definition of unprotected activity that the company seeks, the Board will be authorizing Walmart to fire any worker who has struck, to threaten workers who have not yet struck, and to fire any worker who strikes in the future. This would be the ultimate chilling of workers' concerted activity that Section 7 protects. In this version of the future, employers will pervasively threaten workers whom they believe are considering striking and terminate workers for having struck. The ultimate proof that this will happen is the fact that Walmart already did precisely this when it disciplined and terminated the workers that participated in the Ride for Respect. Specifically, Walmart exploited cases mentioning "intermittent" work stoppages to threaten workers before they ever struck. First, Walmart had its vice president and national corporate spokesman David Tovar go on national television just days before Black Friday 2012 to discuss the planned strikes. Tovar stated that, although Walmart "respect[s] those rights, you know, there are some actions that we will take if people don't follow our company policies. . . . [E]very circumstance is going to be different on Black Friday and we're going to take those on a case by case basis." Jt. Exh. 1318(a) (emphases added). Moreover, Walmart prospectively threatened workers again in February 2013 when Walmart managers told workers who had struck that Walmart determined their past strikes were unprotected "intermittent work stoppages" and would discipline them if they ever struck again. Walmart's threats had a terrifying chilling effect on Walmart's workers. For example, Dan Hindman witnessed Walmart's televised threats being broadcast inside his store's breakroom and testified that the spokesman "pretty much said that there will be consequences" for any striking on

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Black Friday 2012. Dan Hindman, Tr. 5029:23-5030:6. This televised threat so disturbed Hindman, a worker who had fearlessly struck in the past, that he felt the need to ask his store manager if he still had a job at Walmart. Dan Hindman, Tr. 5029:23-5030:6. Walmart's threats to workers for going on strike violated the Act. "Threatening employees with discharge if they go on strike" violates the Act, regardless if the Act does not protect workers' eventual work stoppages. U.S. Serv. Indus., 315 NLRB 285, 286 (1994). Such a threat is "nothing less than a threat of retaliation against employees who dared to engage in a strike, which is a protected employee right" regardless of whether the eventual strike is "intermittent." 315 NLRB at 290. For the same reasons, in Argenbright Security, the ALJ found that an employer violated the Act by making the following threat: Since the [union] called a strike last night and then made an unconditional offer to return; any additional strike activity will be considered intermittent and will therefore be unprotected by the NLRB. Any employees participating in such activity will be subject to discipline up to and including discharge. 2000 WL 33664225 (31-CA-23668, 2000). The ALJ held that the Act may in fact protect a future strike by the same employees but "the import of these reprimands . . . is that any future strike would be considered unprotected." Id. Thus, these "warnings" and "threats" were "violative of Section 8(a)(1)" because the employer threatened to "terminate [workers] if they engage in future lawful, protected strike activity." Id. All of Walmart's threats to chill their right to strike violate the Act. But accepting Walmart's insidious argument that the Act did not protect workers' strikes because they somehow constituted unprotected intermittent work stoppages will legitimize Walmart's threats and empower Walmart and other employers to punish strikers in the future.

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By counting workers' time on strike as unexcused absences, even though Walmart knew the workers were striking, Walmart both denied its own workers the right to strike and granted itself the unfettered authority to discipline and terminate workers who strike. Walmart did this by exploiting cases involving unprotected work stoppages that mention "intermittent" activity. Based on this behavior, there is no reason to doubt that, unless the Board clarifies cases mentioning "intermittent" activity, Walmart and other employers will continue to exploit these "intermittent" cases to threaten, discipline, and terminate any workers who dare to engage in protected strikes. III.

The ALJ too narrowly construed what constitutes an unlawful threat A. A Walmart manager unlawfully threatened a group of workers who had gone on strike on November 16, 2012 at Walmart’s Lancaster, Texas store when the manager told the workers their actions were “under review.” ALJD at 40:40-42. The Lancaster Walmart workers held a one day strike where they conducted a prayer vigil

and picketed in the parking lot, then moved their activities onto public property upon Walmart’s request. ALJD at 39:21-30. The shift manager later met with each worker individually to tell them that their strike activities were “under review.” ALJD at 39:34-37. The ALJ found that this was not an unlawful threat because this was one of the first strikes that Walmart encountered and there was a brief disagreement regarding whether the strikers had the right to be on Walmart’s property. ALJD at 40:40-46. However, this discounts the ALJ’s finding that the strikers engaged in no misconduct while on strike and that the manager’s comment reasonably tended to interfere with and restrain these workers from exercising their right to strike again in the future. Farm Fresh Company, Target One, LLC, 361 NLRB No. 83, slip op. at 14 (2014) (test is whether employer conduct has reasonable tendency to interfere with, restrain, or coerce protected activities). Walmart may have been able to investigate its workers’ strike activity, but Walmart unreasonably

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threatened workers against further exercise of their protected rights when Walmart told them that their actions were “under review” without further explanation. A striker would reasonably feel not safe exercising their right to engage in a lawful strike in the future knowing that Walmart was checking to see if it would reprimand them for the lawful strike they had already conducted. B. Walmart unlawfully threatened its workers when a corporate vice president went on network television on November 19, and 20, 2012, and stated that there would be unspecified reprisals if workers engaged in protected activity on Black Friday of 2012. ALJD at 44:11-29 and n.52. In response to learning that some Walmart workers planned to go on strike on Black Friday of 2012, Walmart’s vice president of Media Relations went on television on two different networks several days beforehand and threatened those workers with unspecified consequences if they did so. The ALJ accepted Walmart’s argument that, by broadcasting only portions of the vice president’s remarks, “important context” was omitted that had some bearing on whether the vice president’s comments had a reasonable tendency to deter workers from engaging in protected activity. ALJD at 44:4-29. Specifically, the ALJ noted that the vice president’s complete remarks to the networks do not violate Section 8(a)(1) of the Act because they make it clear that Walmart would evaluate strike-related absences on a case-by-case basis based on the attendant circumstances. ALJD at 44:n.52. The vice president’s remarks during these network interviews violated the Act in both their excerpted and unexcerpted forms. Both versions of his remarks clearly indicated that strikers could face consequences for missing work. While the vice president did use rhetoric regarding the potential for every circumstance to be different, he referenced “employee illness” as an example of a potentially valid excuse. ALJD at 41:21-33. This just reinforces his implied threat that workers who engaged in lawful strike activity had the type of excuse that would indeed violate Walmart’s company policies.

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Moreover, it is of no weight that the excerpted remarks broadcast on the news edited out Walmart’s comment that it does not tolerate retaliation against workers who engage in protected activity. ALJD at 44:14-16. Walmart workers had heard Walmart managers and officials make this statement before, despite the company continuing to retaliate against the workers who joined OUR Walmart. In fact, this very retaliation was the basis of many of the unfair labor practices over which workers were striking. Walmart’s claim that it would not retaliate against those who engaged in protected activity did not somehow erase its threat that workers who missed work for striking would “face consequences.” ALJD at 44:1-3. EXCEPTIONS TO THE ALJ’S REMEDY, ORDER, AND NOTICES The Board should order Walmart to post a Notice at all of its stores located in the United States and should direct that this Notice be read aloud to all Walmart workers as well. Walmart’s pattern of retaliating against all those who went on strike, up to and including termination, is sufficiently serious and widespread to warrant the remedial requirements that the Notices be posted nationwide and read aloud. Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 21. The ALJ found that, in February of 2013, Walmart communicated to some of its workers at 11 different stores that the OUR Walmart strikes were unprotected. ALJD at 105:46-106:1. When its workers struck again in May and June of 2013, Walmart disciplined or discharged workers at 29 of its stores. ALJD at 106:1-4. This included 10 of the 11 stores of workers to whom it had previously spoken and 19 additional stores. Thus, Walmart applied its policy of disciplining workers who engaged in protected strike activity not to certain stores in a particular area, but at every store at which it found that activity occurred. This constitutes a company-wide policy of Walmart refusing to recognize its workers’ right to engage in lawful strikes, a violation serious

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and widespread enough to warrant a nationwide posting and notice-reading. Albertson’s, Inc., 351 NLRB 254, 384 (2007). As the ALJ found, “The evidentiary record shows that [Walmart] took swift action against associates after they returned from strike, and thereby sent a message to all associates at the store that similar protected activity would lead to disciplinary action.”

ALJD at 106:40-107:2.

Walmart’s failure to recognize its workers’ right to engage in protected activity and its retaliation against those who dared to do so is a clear violation of the Act. For this reason, the Notice should be posted and read aloud everywhere, not just in the stores where actual retaliation against workers took place.12 Moreover, the Order and Notice should state that the employer is prohibited from engaging in “any manner” rather than “any like or related manner” from violating any rights guaranteed by Section 7. ALJD at Appendices A-I. Simplifying the language to “in any manner” makes the Order and the Notices easier to understand and clarifies Walmart’s burden. In addition, the Order should require Walmart to post the Notices electronically and to notify all workers via email or other electronic communication that the notices are available for workers to review while on paid work time. Otherwise, workers will be concerned that they may be disciplined if they read the Notice and Decision on work time. Finally, the language in the proposed Notices is inadequate because they should contain affirmative statements of Walmart’s misconduct. For example, the Notice at Appendix F should state that Walmart has been found to have violated the National Labor

12

Applying this same logic, the Walmart stores in Wheatland, Texas and Paramount, California should not be excluded from the Notice-reading remedy simply because no workers at these stores were disciplined or discharged. First, as discussed above, Walmart’s violation of the Act was serious and widespread enough to warrant a nationwide remedy. In the alternative, Walmart engaged in specific unlawful conduct in both of these stores (reading unlawful talking points to workers in Paramount and threatening a worker with adverse consequences if he went on strike in Wheatland). 41

Relations Act by unlawfully discharging associates because they missed work while participating in a strike that is protected by Section 7 if the Act and/or because they had unlawful coachings on their records based on prior strike-related absences. It should make clear that Walmart has agreed to remedy those violations by reinstating these individuals to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. In addition, Walmart should assert in the Notice that it will make these Associates whole for any loss of earnings and other benefits suffered as a result of Walmart’s discrimination against them. EXCEPTIONS TO THE ALJ’S ORDER GRANTING WALMART’S MOTION TO ENFORCE THE PROTECTIVE ORDER The ALJ’s Order granting Walmart’s Motion to Enforce the Protective Order (attached to this brief) should be reversed, first, because the documents at issue are not confidential, and second, because after the ALJ entered the documents into the public record of this case, they could no longer be subject to a protective order, unless the exhibits were sealed, which Walmart did not seek. The Protective Order: Prior to turning over documents in discovery, Walmart requested a Protective Order (at 1) was entered because "Walmart could not redact" each document that Walmart produced and because Walmart "report[ed] that [its] production contain[ed] commercially sensitive information – created solely for Walmart's business – which competitors could use to their financial advantage or Walmart's disadvantage." Based on these findings, the ALJ entered an order protecting Walmart's "confidential and commercially-sensitive business information" and "confidential personal information" and Prot. Ord. at 1. The Protective Order (at ¶4) established a procedure for "disclos[ing to] a . . . witness" "Confidential Information from a document," and (at ¶5) a procedure Walmart could use to "move 42

to place any Confidential Information (either documents or testimony) under seal at the time presented at trial." Consistently, the Protective Order (at ¶6) required OUR Walmart to "return all Confidential Information" at the conclusion of this case, "except[] Confidential Exhibits admitted by the undersigned into evidence." Walmart did not move at trial to seal any documents or testimony. I.

The documents that Walmart argues the disclosure of which violated the Protective Order are not "confidential." A. Tab B to Walmart's Motion- Labor Relations Blitz/Black Friday 2012 Plan The first document at issue, previously marked as CP No. 1 to Charging Party's Brief in

Opposition to Respondent's Motion to Enforce Protective Order (attached to this brief), is a 2-page document titled "Labor Relations Blitz/Black Friday 2012 Plan" that Walmart produced to the UFCW at bates stamp UFCWSDT25-000340 and UFCWSDT25-000341. CP No. 1 is the same document attached as Tab B to Walmart's Motion to Enforce Protective Order (attached to this brief). While Walmart wrote on CP No. 1 "Confidential, Labor Relations" when it originally drafted it, Walmart chose not to mark CP No. 1 "Confidential" for purposes of the Protective Order and thus the order does not apply. Prot. Ord. at ¶ 1 (the documents subject to the Protective Order are those Walmart "mark[s] or designate[s] 'Confidential'"). Walmart correctly chose not to mark CP No. 1 confidential because it contains no information that the protective order covers: neither "commercially sensitive information . . . which competitors could use to their financial advantage or Walmart's disadvantage" nor "confidential personal information." Prot. Ord. at 1. The document's substance (at 1) relates solely to Walmart's plan to respond to "direct actions against the company or other types of protest," "includ[ing] actions such as demonstrations, picketing, rallies, walk out or other types of work stoppages, or general activities related to protesting Walmart." 43

For these reasons, Walmart should not have marked another copy of the same document confidential. Conversely, disclosure of such a document does not violate the Protective Order. B. Tab C to Walmart's Motion – Presentation Similarly, Walmart did not mark confidential the presentation document attached to Walmart's Motion to Enforce Protective Order at Tab C, for purposes of the protective order. First, there is no confidential mark on the bottom of the pages of the Tab C presentation. Second, Walmart produced in discovery an electronic file containing the Tab C presentation and Walmart did not mark that electronic file "confidential": Walmart did not title the file name of this Tab C PowerPoint presentation– WMUFCWESI-004030 – "CONFIDENTIAL." CP No. 2 to Charging Party's Brief in Opposition to Respondent's Motion to Enforce Protective Order is a screenshot of the file name of the Tab C presentation "WMUFCWESI-004030 (1,733 KB Microsoft) PowerPoint Presentation" precisely as how Walmart provided it. There is a box around the file name WMUFCWESI-004030 to ease identification. CP No. 2 lists Walmart's electronic files in the same relevant directory, also precisely how Walmart provided it. In contrast to other electronic files in the directory ending in "CONFIDENTIAL," Walmart chose not to mark WMUFCWESI004030 confidential. As well, Walmart was more consistent in choosing not to mark confidential this presentation and other nearly identical presentations. CP No. 3 to Charging Party's Brief in Opposition to Respondent's Motion to Enforce Protective Order is a 10-page presentation bates stamped WMUFCWESI-006600 to WMUFCWESI-006609 that is nearly identical to the presentation at Tab C. Walmart did not mark the pages in CP No. 3 confidential. The presentation in CP No. 3 and Walmart's Tab C are almost entirely the same. CP No. 3 is titled "April 2013 Labor Relations Update." Walmart's Tab C is titled "April 16, 2013 Walmart

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U.S. Field HR Leadership Meeting" and Tab C's third slide states "Labor Update." Tab C's third slide is the same as CP No. 3 second slide. The Tab C's fifth, sixth and tenth slides are the same as CP No. 3's third, fourth and eighth slides, except for redaction. Tab C's seventh through ninth, and eleventh slides are the same as CP No. 3's fifth through seventh and eighth slides. Walmart consistently and correctly chose not to mark confidential these virtually identical documents. For example, the Tab C document only addresses OUR Walmart's "upcoming activity" and "what" Walmart was "doing" in response. This redacted document contains no "commercially sensitive information . . . which competitors could use to their financial advantage or Walmart's disadvantage," or any "confidential personal information." Prot. Ord. at 1. C. Tab B and Tab C are no longer subject to the protective order because they were admitted into the public record of an NLRB hearing not under seal. Documents admitted into the record of an NLRB hearing are in the public record and no longer subject to protective orders, unless a party moved to seal the record. The protective order adhered to this principle and therefore to preserve the confidentiality of information in the record, the order required Walmart to "move to place any Confidential Information (either documents or testimony) under seal at the time presented at trial" Protective Order at ¶5. Walmart chose not to move to seal any information and made no objection when Tabs B and C entered into the record. Documents subject to a protective order are no longer confidential when a party "refer[s] to and discusse[s] portions of the confidential exhibits with" witnesses, and the other party "fail[s] to assert its interest at trial" by "mov[ing] to seal the record." Littlejohn v. BIC Corp., 851 F.2d 673, 680 (3d Cir. 1988). "It is well established that the release of information in open court 'is a publication of that information and, if no effort is made to limit its disclosure, operates as a waiver of any rights a party had to restrict its future use.'" Littlejohn, 851 F.2d at 680, quoting National Plymer Products v. Borg-Warner Corp., 641 F.2d 418, 421 (6th Cir. 1981).

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The First Amendment guarantees access to the record of legal proceedings. See Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014) ("We are unaware . . . of any case in which a court has found a company's bare allegation of reputational harm to be a compelling interest sufficient to defeat the public's First Amendment right of access"). The "right to inspect and copy judicial records is indisputable." In Re Nat. Broadcasting Co., 653 F.2d 609, 612 (D.C. Cir 1981). A party's "failure to object to the admission into evidence of the documents [subject to a protective order], absent a sealing of the record, constituted a waiver of whatever confidentiality interests might have been preserved under the" protective order. Littlejohn, 851 F.2d at 680-81, citing Bank of America Nat. Trust v. Hotel Rittenhouse, 800 F.2d 339, 345 (3d Cir. 1986); Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866, 897-98 (E.D. Pa. 1981). Only "the most compelling showing can justify post-trial restriction on disclosure of testimony or documents actually introduced at trial," even when protective orders "protect" "materials that were actually admitted into evidence at trial." Poliquin v. Garden Way, Inc., 989 F.2d 527, 532-33 (1st Cir. 1993). The Poliquin court held that documents admitted into evidence were in the public domain even though the party "made clear its desire to enforce the protective order even for material admitted at trial." 989 F.2d at 532. In "rare circumstances, material introduced at trial can be safeguarded against disclosure afterwards." Poliquin, 989 F.2d at 533, citing Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12 (1st Cir. 1986). When considering the limited exceptions to the First Amendment rule requiring public disclosure, judicial bodies are bound by "this country's strong tradition of access to judicial proceedings"; in "balancing the competing interests, the court must . . . give appropriate weight and consideration to the 'presumption . . . in favor of public access to judicial records." In Re Nat. Broadcasting, 653 F.2d at 613 (D.C. Cir. 1981), citing Mitchell, 551 F.2d 1252, 1262 (D.C. Cir.

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1976), U.S. v. Hubbard, 650 F.2d 293, 317 n, 89 (D.C. Cir. 1980); Nixon v. Warner Comms., 435 U.S. 589, 602 (1978). Exceptions involve "national security, the formula for Coca Cola, or embarrassing details of private life. The evidence might be offered only at the bench and the transcript immediately sealed, or it might be provided in a closed hearing." Poliquin, 989 F.2d at 533. See also In Re Nat. Broadcasting, 653 F.2d at 613 (limited exceptions involve matters such as "'the painful and sometimes disgusting details of a divorce case," "sources of business information that might harm a litigant's competitive standing," "trade secrets," "the privacy and reputation of victims of crimes," and "national security"), citing Hubbard, 650 F.2d at 315-16, Warner Comms., 435 U.S. at 598. The " ordinary showing of good cause which is adequate to protect discovery material from disclosure cannot alone justify protecting such material after it has been introduced at trial." Polinquin, 989 F.2d at 533. "There is an abiding presumption of access to trial records and ample reason to 'distinguish materials submitted into evidence from the raw fruits of discovery." Poliquin, 989 F.2d at 533, quoting Littlejohn, 851 F.2d at 678, 684 & n. 28. The NLRB follows these principles. Like court litigation, NLRB "hearing[s are] open to the public," "[e]xcept in extraordinary situations." Rules and Regs. §101.10(a). Thus to "the extent that any parts of . . . exhibits [subject to a protective order] are . . . contained in the record those portions are not effected by the protective order." GTE Southwest Inc., 329 NLRB 563, 567 (1999). For example in UPS, Inc., the NLRB denied a motion for sanctions arguing that an attorney violated a protective order when the attorney used documents subject to the protective order admitted into evidence for an unrelated proceeding, even after the ALJ refused the attorney's request to modify the protective order. 304 NLRB 693, 693-94 (1991). The NLRB explained that "the judge did not seal the two documents when [the judge] admitted them into the record" and

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"the Respondent's counsel did not request a seal." 304 NLRB at 694. Consistently, the NLRB in Marine Transport Lines Co., ordered that the only "portions of the transcript of the hearing" "not be open to the public" were those "heard during in camera sessions." 301 NLRB 526, 534 (1991). See also Nat'l Football League, 309 NLRB 78, 88 (1992) (same). The document at Tab B was admitted into the record without objection as CP10, Tr. 528485, and the document at Tab C was admitted without objection as GC102, Tr. 5225. Walmart failed to move to place either of these exhibits under seal pursuant to the Protective Order procedures (at ¶5), or request that the documents be admitted in camera. Because those documents were admitted into evidence in an open session of the hearing and not placed under seal, they remain in the public record subject to public disclosure. CONCLUSION For these reasons, Charging Party respectfully requests that the Board grant its crossexceptions. Dated: March 24, 2016

Respectfully submitted, /s/ Deborah J. Gaydos Deborah J. Gaydos Joey Hipolito United Food and Commercial Workers International Union 1775 K Street, N.W. Washington, D.C. 20006 [email protected] [email protected] Attorneys for Charging Party

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CERTIFICATE OF SERVICE I certify that I served a copy of the Charging Party’s BRIEF IN SUPPORT OF ITS CROSS EXCEPTIONS TO THE DECISION OF THE ADMINISTRATIVE LAW JUDGE via the Board’s electronic filing service on March 24, 2016, to: Gary Shinners Executive Secretary National Labor Relations Board 1099 14th Street N.W. Washington, D.C. 20570 I also certify that I served a copy of the foregoing via email and U.S. Mail on March 24, 2016, to: Roberto Perez David A. Foley Counsel for the General Counsel National Labor Relations Board Region 16 819 Taylor Street, Room 8A24 Fort Worth, Texas 76102-6178 [email protected] [email protected] Steven Wheeless Alan Bayless Feldman Steptoe and Johnson LLP 201 East Washington Street, Suite 1600 Phoenix, AZ 85004-2382 [email protected] [email protected] /s/ Deborah J. Gaydos Deborah J. Gaydos United Food and Commercial Workers International Union 1775 K Street, N.W. Washington, D.C. 20006 [email protected]