Wal-Mart's bizarre self-defense: Retailer defends activists' firings to Salon

What's the difference between punishment for striking, and punishment for "attendance"? Corporate semantics.

By Josh Eidelson
Published November 29, 2013 6:37PM (EST)
  (Reuters/Kevork Djansezian)
(Reuters/Kevork Djansezian)

Among the alleged abuses Wal-Mart workers are protesting today are the firings of twenty-three employees who joined June strikes. The National Labor Relations Board recently announced it was prepared to issue a complaint – similar to an indictment – against the company over such alleged intimidation. But while federal law generally bans retaliation against workers for striking, Wal-Mart claims it didn’t break the law by firing those workers.

As I’ve reported, the company has made three claims in its defense: First, the retail giant has said some the strikers were fired for unrelated offenses (like bringing a company handbook into a deli area). Second, Wal-Mart has implied that OUR Walmart’s strikes fall under the category of “intermittent strikes” that aren’t legally protected; former National Labor Relations Board Chair Wilma Liebman told me in June “it would be hard on the facts so far” to make that case.

But Wal-Mart’s most frequent, and most peculiar, way of defending the firings has been to draw a distinction between punishing workers for striking, and punishing workers for not showing up to work during a strike. “No associates were disciplined for participating in any specific protests,” spokesperson Kory Lundberg e-mailed in June, but “we applied the time and attendance policy to the individual absences in the same way we do for other associates.” Asked at the time about that line of argument, Liebman noted, “The case law doesn’t sustain that as a valid defense.”

So during a phone interview this month, I asked Brooke Buchanan, Wal-Mart senior director for corporate communications, to help me understand the company’s argument. What follows is a transcript of that portion of our conversation.

The terminations, in particular of twenty of the people who participated in the June-

Are you writing a story on all of this? It’s a heck of a story, you’re covering the gamut.

Well, these are all plotlines within a larger story, right?

Yeah, and I know you’ve talked to Kory about a lot of this. So do you have anything that you haven’t covered with him, or

I, while I had you on the phone, I wanted to take the opportunity to clarify again the company’s stance on the legality of those terminations and-

And which ones are you referring to?

Well, so the company has suggested, I mean Kory has suggested to me and to others in the past that it was not illegal for the company to enforce its attendance policy vis a vis workers not coming to work while they were collectively on strike in June.

Josh, as I’m sure you understand, you’ve worked in multiple places over the last few years, that each company has an attendance policy. And that’s a policy that we enforce across the board. And you know I’m not going to comment on a particular instance. If you have a question about a particular instance I’m happy to answer it. But overall we do enforce attendance policies when they are broken and again that is something that we enforce across the company. I – I – I mean I assure you that you, your company probably has an attendance policy, correct?

And so –

Correct? Your company has an attendance policy, right?

Oh, sure.

Of course. Just like any company would. Including school.

So is it your view that the National Labor Relations Act does not restrict a company’s ability to punish workers for not coming to work-

It’s funny that you – that’s not what I said. I said the company has an attendance policy. I didn’t talk about anything about the National [Labor] Relations Board. Josh -

Sure, so that’s what I want to understand is the-

Josh, listen. Listen. Each of those circumstances, if you’d like to, if you have a particular question I’m happy to address is. But if you don’t have anything else, I’m ready to – I’ve gotta move on.

I would just ask again: What I want to understand is, to what extent does the National Labor Relations Act restrict punishing employees for not coming to work when the day–

Josh, you know we have a strict – Josh we have a strict retaliation program here. Wal-Mart takes it extremely seriously, and we enforce that. And if any associates have any questions or concerns, you know, again, we, we recommend that they reach out to their leadership and their management to discuss any of those questions or concerns. But we have a strict policy against the – the – any kind of retaliation. But we also do have an attendance policy that we enforce. All right. Is that all?

So if an employee does not come to work because they were, along with other employees, participating in a work stoppage, then that is something the company believes it’s legal-


-to punish them for?

Josh, associates their right to express, you know, questions, concerns, and if you have a particular question regarding a circumstance, I’m happy to help answer for you. But again, we have a strict retaliation – anti-retaliation policy that we enforce across the board, as well as a strict attendance policy. All right, I gotta run Josh. We could do this probably all day, right?

Josh Eidelson

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Corporations Crime Law National Labor Relations Board Nlra Nlrb Our Walmart Wal-mart