However, among the fights over Barbie dolls and home theater systems, in what has become an all-too-predictable post-Thanksgiving tradition, union-sponsored protests occurred all over the nation at dozens of WalMart stores.
While the union protests are predominantly attended by non-employee, union-paid protestors (aka astroturf), some of the protestors are, in fact, striking WalMart employees.
What is their beef with the nation’s largest employer?
From the unions’ perspective it’s easy: Unions–primarily the United Food & Commercial Workers–want the retail giant unionized.
To the UFCW, with an average dues take of $40 per month, unionizing the WalMart would be like hitting the Powerball jackpot–giving the union potentially millions of dollars per month in union dues.
Moreoever, rather than going from store to store and having WalMart’s workers vote in a secret-ballot election on whether or not to unionize, the UFCW and its co-conspiratorial activist allies would prefer to unionize WalMart through the flawed process known as “card Check.”
However, to the union’s targets, WalMart’s employees, the answer boils down to one word: Money.
…And, this is where the union’s strategy could be a flawed one should WalMart choose to exercise its legal rights:
WalMart employees who choose to go out on strike (whether it’s on Black Friday or at any other time) for economic reasons like wages cannot be fired.
However, they can be replaced. Permanently.
Affirmed by the U.S. Supreme Court in 1938, permanently replacing economic strikers has always been legal under the National Labor Relations Act.
In fact, even the National Labor Relations Board explains replacing economic strikers, as follows:
Economic strikers defined. If the object of a strike is to obtain from the employer some economic concessionsuch as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. They retain their status as employees and cannot be discharged, but they can be replaced by their employer. If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers whenthe strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement. [Emphasis added.]
There is little question that the striking employees are protesting over their claims of low pay. As a result, there is little doubt that they should be deemed “economic strikers”—even by the union appointees within Obama’s National Labor Relations Board.
Though it is doubtful that WalMart will choose to exercise this legal right–at least for now–the giant retailer would be well within its rights to replace striking employees–permanently.
If not now, there’s always next year.
Cross-posted on LaborUnionReport.com