Las Vegas Sun

July 23, 2014

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Wal-Mart breaks the law, gets punished, wins anyway

Here is how Wal-Mart, at a cost of a couple of thousand dollars, illegally beat back an attempt to unionize its stores in Nevada:

Seven years ago, as Wal-Mart corporate executives proclaimed Nevada ground zero in a n attempt to battle unionizing the giant retailer, three workers at Wal-Mart stores in Southern Nevada took the first steps toward organizing. Avis Hammond, Norine Sorensen and Diana Griego talked to fellow employees about the union and passed out fliers in front of stores, activities clearly allowed under federal labor laws.

Management stepped in. The three employees were told to stop. They were questioned, threatened and insulted, according to later findings by the government. Wal-Mart stripped one worker of his union fliers and denied another a promotion.

The union seeking to represent workers asked for help from the National Labor Relations Board, the federal agency charged with enforcing labor law. The workers wanted Wal-Mart to act within the law so they could continue to try to organize.

.

That was in 2000.

Last month - seven years, two months and seven days after the first charge was filed - the NLRB issued its ruling: Wal-Mart acted illegally.

The punishment: The retailer must pay lost wages to one of the employees, which apparently comes to a few thousand dollars. It also must post notices in its three stores disclosing its federal labor law violations.

The outcome: The union has long since given up trying to organize from within the stores. The three workers quit the company.

"The problem of delay has been with the NLRB ever since it was created in 1935," said James Gross, a professor of labor policy and arbitration at Cornell University's School of Industrial and Labor Relations. But even in an era of weak federal enforcement of labor laws, "seven years for a case involving three employees is unconscionable."

The outcome in Las Vegas is not unusual in today's labor climate. Federal enforcement of labor laws has grown weaker over the decades as business interests and their allies in Congress and the White House have beaten back serious attempts at reform.

Federal oversight has become "an outrageous system that's almost entirely toothless," said Gordon Lafer, a professor at the University of Oregon's Labor Education and Research Center.

"For workers there is no sense of justice," Lafer said. "For employers it's a rational business decision to break the law. And it's not just the rogue, outlying employers that do this."

One major reason for the board's dwindling power is the political partisanship that has riven the NLRB since the Reagan administration, said John C. Truesdale, a former field examiner for the agency. Truesdale went on to become executive secretary, board member and board chairman under Republican and Democratic administrations.

Before the 1980s, board members sympathetic to either labor or management usually worked together to find solutions, said Truesdale, now retired. But that changed under President Ronald Reagan.

Gross said Republican-appointed members now are inclined to interpret the National Labor Relations Act in ways that benefit business, deviating from the intent of the law, which is to promote collective bargaining as the policy of the U.S. government.

One consequence has been deadlocks over appointments as Democrats have fought for appointment of NLRB members who will enforce laws more aggressively. The five-member panel was filled only recently, after years of disputes between Democrats and Republicans over presidential appointments.

The national board's effectiveness also has been curtailed by congressional and executive branch opponents who cut its budget. The NLRB "is so understaffed that cases can take years to be heard," said Robert Reich, labor secretary during the Clinton administration. "And even when employers are finally found to have broken the law, the NLRB often gives them a slap on the wrist."

As federal oversight weakened in the late 1970s , labor supported sweeping changes. They included requiring businesses to keep pro-union employees on the company payrolls while NLRB investigations went forward and awarding punitive damages to employees who were fired or discriminated against for union activities. The bill was filibustered by Republicans and never reached a vote.

Labor now has a new push under way. The Employee Free Choice Act would make it easier for workers to organize and would stiffen penalties for employers that break the law. It is the first serious effort to reform labor law in decades, said Gross, who wrote a three-volume history of the NLRB.

The unfair labor practices in the Las Vegas cases stem from incidents that occurred from June 2000 to May 2001, during an organizing campaign by the United Food and Commercial Workers.

The union embarked on a major campaign in 1998 to organize Wal-Mart nationwide, with Las Vegas at the core of its strategy. "It's such a strong union town, we thought there would be more pressure from the community to let employees decide whether to be union," said George Wiszynski, assistant general counsel to the union.

The campaign failed.

Organizers at five Wal-Mart stores outside Nevada did gather enough support for a secret-ballot election to determine union representation. The union won one of those elections - meat department workers in Jacksonville, Texas. Eleven days later, Wal-Mart announced that it was closing all meat-cutting operations nationwide.

The retailer went one step further when most workers at one of its stores in Quebec signed union cards signifying their support of the union. After months of stalled contract negotiations, the union petitioned the Quebec Ministry of Labor to appoint an arbitrator. One week later the company announced it was closing the store, attributing the decision to poor sales.

According to a report from the pro-labor group American Rights at Work, the United Food and Commercial Workers union filed 288 unfair labor practice charges against Wal-Mart from 1998 to 2003. Of those charges, at least 94 resulted in the NLRB filing formal complaints against the retailer, resulting in at least 11 rulings against the company and 12 settlements.

Among Wal-Mart's violations were terminating employees for union activity, surveillance of union activity, interrogation of union supporters and unlawfully making promises to dissuade workers from organizing.

"It's the same tactics, over and over again," Wiszynski said. "And they were very effective tactics."

The labor board found merit in each of the Nevada cases and filed a consolidated formal complaint against Wal-Mart in September 2001, referring the matter to an administrative law judge.

A year later, the judge issued his decision favoring the employees. Wal-Mart then began its legal moves, ultimately appealing the decision to the labor board itself.

The retailer exhausted its legal options in April 2003 - but the case sat with the board for four more years.

Asked this week about the delays, the NLRB defended its record, pointing out that most of the cases it receives from across the country are settled and never make it to the board. Some cases, particularly those that are litigated, take much longer.

NLRB spokeswoman Patricia Gilbert added: "We had quite a bit of turnover (of board members) at one point."

David Parker, NLRB deputy executive secretary, said : "While this decision took far too long to issue, there were some complicating factors, both procedurally and substantively."

Parker would not explain, however, why the case was delayed for four years. "You're going to write what you're going to write," he told the Sun.

(According to NLRB data from 2005, the most recent year for which information is available, the median time the board takes to decide an unfair labor practice case is 659 days - about 22 months.)

Labor advocates and lawyers disputed the NLRB's explanation. "This doesn't involve any novel legal issues," said Nancy Schiffer, associate general counsel for the AFL-CIO, which joined in the case. "There's no excuse for why it took so long."

Wal-Mart said it is satisfied with the outcome. "Dozens of allegations have been dismissed," company spokesman John Simley said.

Wal-Mart intends to comply with the board's order, he said. "Our primary obligation is posting notices," Simley said. "We think this is the best resolution."

The delays, however, forced the union to change tactics. It joined with the Service Employees International Union to launch another kind of campaign in early 2005 intended to shame the retailer publicly. The primary vehicle is a Web site, WakeUpWalMart.com, highlighting the retailer's record on everything from wages and health care to labor law violations and illegal immigrant labor.

WakeUpWalMart is airing TV ads in 26 markets, including Las Vegas, highlighting the large number of Wal-Mart workers on the Medicaid rolls because the company's health care plans include high premiums and deductibles. In Las Vegas, the union has picketed Wal-Mart daily since 2005.

All the bad press has had an effect. According to a report in Business Week, the consulting firm McKinsey & Co. found that negative publicity, driven in part by the unions, had driven down Wal-Mart sales 2 percent to 8 percent. The retailer recently announced plans to cut the number of stores it plans to open.

None of this brings comfort to Hammond, one of the three Las Vegas Wal-Mart workers discriminated against for union activity. (The union lost track of the former employees; the Sun found Hammond but not the other two Nevada workers.)

Hammond was a 10-year employee whose job was to greet customers at the door. He ran afoul of the company by distributing a union news release to fellow workers, a copy of which he gave to D istrict Manager Chuck Salby.

"If you believe that, you're not worthy of working at Wal-Mart," Salby said, according to the NLRB findings. Salby tore up the news release and threw it in a trash can.

Hammond was disciplined for passing out the copies to other employees.

And so began the seven-year delay that effectively killed the attempt to organize.

"It's almost a mockery," said Fred Feinstein, former general counsel for the NLRB during the Clinton administration. "How does this in any way protect the right of workers to join a union? That right was extinguished seven years ago when Wal-Mart treated its workers illegally because of union support.

"Would any employee at that store now think they have a federally protected right to join a union?"

Hammond moved to Arkansas after leaving Wal-Mart. Reached there this week and asked to recount his Wal-Mart experience, he demurred.

"That was seven years ago," he said. "Now I'm 83 years old. My memory is going."

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