“Thanks for visiting with us,” a Walmart store manager says to a worker who has recently been on strike. “I need to talk with you about an attendance issue. As you can see, I will be using my notes.”
These are the first lines of an intimidating script read to striking Walmart workers, which a judge found to be "coercive" and illegal late last month. The full script (reproduced below) was included in the judge’s published decision, despite its label of "confidential," along with other accounts of threats and retaliation by the retailer.
"It is very important for you to understand that the Company does not agree that these hit-and-run work stoppages are protected, and... it will not excuse them in the future,” managers were instructed to tell workers.
Administrative law judge Geoffrey Carter ultimately found the 2013 strikes were protected and Walmart broke the law in disciplining and firing employees for taking part in them. Carter ordered the reinstatement of 16 workers with full backpay, and Walmart spokesperson Kory Lundberg told BuzzFeed News the company is in the process of appealing the findings.
“We disagree with the Administrative Law Judge's recommended findings and we will pursue all of our options to defend the company because we believe our actions were legal and justified," he said in a statement.
Here's what a difficult conversation with your boss at Walmart can look like, according to court documents.
"Thanks for visiting with us."
In February of 2013, Walmart managers were issued a script to read to workers who took part in strikes that past fall. The company had store managers contact each striker individually during one of their shifts and read from it, verbatim:
- Thanks for visiting with us _________ .
- I need to talk with you about an attendance issue from this past [October and/or November]. As you can see, I will be using my notes.
- You may remember that the United Food and Commercial Workers union and its subsidiary OUR Walmart orchestrated a series of hit-and-run work stoppages last October and November.
- As you know, you participated in ____ of those work stoppages on _______ .
- It is [that/those] work stoppage[s] that I need to talk to you about.
- The Company believes that those union-orchestrated hit-and-run work stoppages are not protected by federal labor law.
- Given that, the Company would normally give you [an occurrence or ___ occurrences] under the attendance/punctuality policy for the unprotected absence[s].
- However, because of the numerous places and times that the union orchestrated its intermittent work stoppages during October and November, it took the company several weeks to collect all the information from across the country about the work stoppages and several more weeks to analyze all the legal issues involved in that activity.
- All that adds up to about ____ weeks since your last intermittent work stoppage.
- And that creates a concern because the Company works very hard to give associates timely feedback on time and attendance issues that could affect their work record.
- So in this case, the Company has decided that it will not apply the attendance policy to your work absence(s) because of the time it took to collect and analyze all this information from across the country.
- But it is very important for you to understand that the Company does not agree that these hit-and-run work stoppages are protected, and now that it has done the legal thinking on the subject, it will not excuse them in the future.
- Should you participate in further union-orchestrated intermittent work stoppages that are part of a common plan or design to disrupt and confuse the Company’s business operations, you should expect that the Company will treat any such absence as it would any other unexcused absence.
- Having said that, let me emphasize that the Company respects your right to support a union and to engage in other protected, concerted activity. It also respects your right to not engage in such activity.
- But the Company does not believe that these union-orchestrated hit-and-run work stoppages are protected activity.
- Please remember that you can use the Open Door policy at any time to address questions, concerns, and ideas. I cannot guarantee you that you will get exactly what you want, but I can guarantee that you will get a thoughtful, well-researched, and timely response.
- OK? Any questions?”
In effect, Walmart managers told staff the company believed they had broken the law by striking, that they would be let off with a warning this time, but any future strikes would lead to discipline or termination. The judge found that the talking points were "illegal coercive statements" that "crossed the line."
"The Company considers your failure to report your absences to management as a no call/no show."
In late June 2013, Walmart decided to discipline and fire workers who had strike-related absences. For this, they used two scripts, depending on whether workers gave notice that they would be striking.
Most notably, if a worker asserted that their strike was protected by labor law (as Judge Carter would later find), managers were instructed to respond, "I can't comment on anything that would happen in the future; just that we don't believe labor law protects what happened during the period covered by this [coaching/termination]."
In his ruling, Carter noted that "the act of going on strike is protected concerted activity, regardless of whether the employer had been given notice of the strike."
Should the judge's ruling withstand Walmart's appeal, the company will be required to not only reinstate fired workers, with full backpay, but also hold meetings in 29 stores to inform employees of their rights to strike. The company must also vow not to threaten or discipline employees for striking and must post notices in stores informing staff of their rights.
Carter found Walmart’s “misconduct at these stores was sufficiently serious and widespread” to warrant a reading aloud of employee rights — an "extraordinary measure" in Labor Board cases. He concluded that Walmart "took swift action against associates after they returned from strike, and thereby sent message to all associates at the store that similar protected activity would lead to disciplinary action."
The ruling "sends a message to Walmart that its workers cannot be silenced," said Jess Levin, communications director for the union-backed Making Change at Walmart campaign. Until the labor board's final ruling, however, the strikers remain uncompensated for the years of lost pay since they were fired.
"A lot of folks are still scared because of what happened," Colby Harris, one of the workers fired for striking, told BuzzFeed News. "Not everybody knows about ruling, so they think if they strike or participate then something will happen to them."
Cora Lewis is a business reporter for BuzzFeed News and is based in New York. Lewis reports on labor.
Contact Cora Lewis at firstname.lastname@example.org.
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