Threats of Retail Employee Strikes Illustrate Need for Preperation

As the linked articles below explain, the UFCW, 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. 

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,”


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:

OSHA has issued “Crowd Control Guidance” ( )  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:

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


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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