As the linked articles below explain, the UFCW, Moveon.org and various other groups planned to interfere with the Thanksgiving shopping activities through “strikes” and other actions designed to disrupt or embarrass retailers during their most crucial sales period.

Happily, based on reports, shopping crazy buyers and the retail world enjoyed a mutually satisfactory weekend.  However, as discussed today (11/29) in a fine Wall Street Journal article, these Black Friday/Cyber Monday efforts are a harbinger of things to come.  Retailers and other “public” employers, such as hospitality and restaurants should prepare for this or future efforts. http://247wallst.com/2012/11/29/walmart-and-fast-food-strikers-face-harsh-winds/ 

Employers should plan for how they would handle third party actions against their stores, restaurants, hotels or other workplaces,  and should realize that the NLRB has been aggressively accepting charges and issuing complaints about employee concerted protected activities not involving unionized sites or employees involved in or trying to organize a union.  While the steps below are intended for retailers, many of the recommendations are applicable to most employers.

All Retailers Should Be Alert!

The concerns  are not solely about Wal-Mart.  Wal-Mart has simply had the misfortune to be large enough to serve as a whipping boy and easy target.  Amazon and others have experienced similar attacks.  Moreover, some third-party groups are affiliated with or the offspring of “Occupy Wall Street” and reflect those groups’ unfocused complaints and wide range of targets.  Radio and TV stations are airing interviews with employees of many retailers who are bemoaning having to work on Thanksgiving Day as Black Friday moves back to “Black Thanksgiving Evening.”

As if this is not enough, one of the articles below describes a union associated group’s efforts to get consumers to boycott “Cyber Monday” allegedly

because of “dangerous, sweatshop-like working conditions facing U.S. warehouse workers who fulfill online orders for retailers like Wal-Mart and Amazon,”  http://abcnews.go.com/blogs/business/2012/11/activist-groups-boycott-cyber-monday/

Consider Neighboring Retailers & Your Suppliers

An employer may not be directly attacked but must still plan for how to manage issues created by disturbances at a neighboring retailer or other workplace and how to communicate with its own employees should questions arise.

Coordinate with suppliers and transportation/logistics providers about maintaining deliveries, especially if they are unionized and may be unable or choose not to cross a picket line.

Retailers and Those Who Supply Them Should Ensure that They are Ready:

• Know your rights and risks, including:

1. Individuals have certain rights to picket and handbill on public right of ways and other areas, depending on the facts and so long as the activity does not interfere with entrance and exit;
2. Employees have the right to “engage in concerted protected activity” and employers may have the right to “permanently replace strikers”… but avoid knee-jerk actions;

• Establish managers at every site who are trained to handle issues relating to pickets, employees not showing up for work, press inquiries, third-party and employee hand billing or disturbances in stores, OSHA and other complaints, involvement of law enforcement, ongoing communications with employees,  and other issues;
• Establish a Corporate Response Team to support individual stores and handle complex legal and publicity issues and allow store management to focus on maintaining business as is usual.
• Train supervisors on how to respond to pickets and other group activity at stores;
• Prepare strike plans, including coordination with law enforcement and analysis of how to handle traffic;
• Review with suppliers and transportation companies whether they are prepared to maintain urgent deliveries during the season;
• Have a “press plan” in place and be ready to respond to negative communications as needed, including reports based on the retailers response to pickets and other similar activities.
• Review policies governing Confidentiality, Electronic Communications and Negative/Unprofessional Behavior in light of restrictive recent NLRB decisions.  Don’t make mistakes through knee-jerk responses to employees picketing, missing work or making negative statements about the retailer.
• Carefully review your No-Solicitation and Distribution” and property access/security policies, and how you enforce them in light of recent NLRB decisions, including where a contractor on site or in the same shopping area may be a target.
• Train supervisors about how to handle “striking employees” so as to avoid unfair labor practices relating to improper discipline and discharge.
• Be prepared for employee complaints triggering inspections, especially to OSHA and to local fire marshals and similar agencies.
• In addition to NLRB concerted protected activity charges, expect safety/whistleblower charges, including the 20+ retaliation laws enforced by OSHA.
• REMEMBER!  Third parties often seek to trick an employer into unwittingly violating the law!  They take photos and video, tape record, and may try to provoke action.

OSHA and Safety & Security Complaints are a Popular way to Embarrass Employers

To see how a union can harass a highly visible employer who must protect its “brand” go to the union, UNITE-HERE’s site at: http://www.hotelworkersrising.org/

OSHA has issued “Crowd Control Guidance” ( http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=23259 )  and employees and third parties may be quick to make complaints about any perceived failures or simply to embarrass and cost a company money.

Moreover, most stores are not as effective at unloading stock and handling it as they would prefer and a rush period such as the Christmas Holiday press creates countless possible OSHA violations relating to:

• Blocked exits, extinguishers and electric panels, including by the use of temporary conveyors;
• Miscellaneous routine electrical violations such as unlabeled switches in cabinets, materials improperly stored in electrical rooms, missing ground plugs, damaged cords and temporary extension cords running to equipment when OSHA regulations require permanent wiring;
• Fire extinguishers knocked off walls or sitting on floors;
• Missing or inadequate exit signage;

Go to OSHA’s “NEWSROOM” and review retailer-OSHA citations over the last few years and the routine items cited:

http://www.osha.gov/pls/oshaweb/owares.do_search?p_doc_type=NEWS_RELEASES&p_logger=1&p_status=CURRENT&p_search_type=NEWSTEXTPOLICY&p_search_str=retail&pBindCalendar1=&pBindCalendar2=&x=15&y=9

Here’s to a peaceful season!  Maybe concerns are overblown.

Howard