Wal-Mart Exercises Its Political Rights—Employees Be Damned

After the Wall Street Journal reported on Friday that Wal-Mart has been holding meetings with its supervisors warning of the terrible consequences that would follow a Democratic victory in November—specifically, a law that would make it easier for unions to organize—the labor and progressive communities have, justifiably, been up in arms. Groups such as American Rights At Work are calling on the Federal Election Commission to investigate whether the giant retailer broke the law in its implicit electioneering.

Whether or not the company violated election laws, it is unfortunately clear that Wal-Mart’s actions were not contrary to employment law. As Bruce Barry details in his book Speechless, the Bill of Rights does not apply inside the factory gate. With the exception of public employees, who retain their First Amendment rights while on the job, Americans generally do not have political freedom in the workplace.

What this means is, first, that workers have no recourse if they are disciplined or fired for expressing their political views. This became clear in 2004, when an Alabama woman sporting a Kerry/Edwards bumper sticker on her car was terminated by her employer, an ardent Bush supporter.

It also means that a company can, as Wal-Mart is apparently doing, seek to impose its political views on its employees by forcing them to attend meetings on company time during which those views are emphatically expressed. These sessions are analogous to the captive anti-union meetings that employers use during organizing drives—a practice that the legislation Wal-Mart dreads, the Employee Free Choice Act, would greatly neutralize.

Wal-Mart’s workplace electioneering came to light shortly after Ronald Meisburg, General Counsel of the National Labor Relations Board, issued a memorandum clarifying, among other things, that employers can discipline workers for engaging in political advocacy that does not have “a direct nexus to employee working conditions,” even when it occurs away from the workplace. Meisburg noted, for instance, that nurses who informed state agencies about inadequate staffing levels were protected but those who complained about inadequate patient care were not.

The main problem with Wal-Mart’s anti-Democratic meetings is not that they broke the law, but rather that they make it clear what is wrong with the law: the denial of the rights of private-sector workers to express themselves politically or to organize unions without intimidation. The Employee Free Choice Act would immediately address the organizing issue and ultimately would help with political rights as well, since a union contract would make it much more difficult for an employer to get rid of a worker for ideological reasons. These are the real consequences that Wal-Mart so desperately wants to prevent.

6 thoughts on “Wal-Mart Exercises Its Political Rights—Employees Be Damned”

  1. I am not a Wal-mart fan, but as I understand this proposed law, employees would be stripped of their right to a secret vote on whether to unionize or not. Thus coworker, union or employer coercion now pressure employees one way or the other, and employees can then be subject to retaliation from one side or the other after the vote.

    No thank you.

    Jack Lohman

  2. Jack,

    I’m afraid you have been taken in by the corporate propaganda surrounding this issue. The ability of employers to intimidate workers during the period leading up to a representation election has made the secret ballot essentially meaningless. That’s the key problem facing workers, not the dubious notion of union or co-worker retaliation.

    Phil Mattera

  3. Phil, as both an ex-union steward and an ex-CEO of my own company, I respectfully disagree. Though, I might add, I have great respect for the work you do and your sincerity.

    But in this global economy I think unions are going to have to rethink what they ask for. If they are fair, a secret ballot will get them in. And if they are too successful they will drive jobs out of the country. And that assessment is far from corporate propaganda. It’s fact.

    Neither extreme is good here. I’d urge caution.

  4. Jack,

    I’m all for caution, but that is not a trait that business has demonstrated in its approach to labor relations over the past couple of decades. On the contrary, it has thrown caution to the wind and has responded aggressively and heavy-handedly to union organizing efforts. Unions generally do behave fairly but they are trounced by companies that don’t hesitate to employ union-busting consultants and fire union activists. The Employee Free Choice Act is not an extreme; it would simply allow workers to exercise rights that they were granted 70 years ago.


  5. I know where you are coming from Phil, I write about bad corporations frequently. But I don’t think we can restrain them on the labor side. I think it has to be done politically. Here’s a piece from my current blog (click on my name for the full link).

    “Zero taxes on corporations that (a) pay their CEOs below 100 times their lowest paid worker and (b) do not outsource their manufacturing to other countries and instead keep their jobs in the US. Corporate taxes are passed to the consumer anyway, so we should use “strategic taxing” to our benefit. Corporations won’t like this so don’t count on it soon.”

    On the “Employee Free Choice Act,” I only object to losing my right to a private, secret vote.


  6. Employee Free Choice Act- To “At Will” or not To “At Will” That is the Question!

    As a mediator of general civil and employment issues I have witnessed how the present predominant “At Will” doctrine has and is failing both employer and employee. This form of employment relationship is applying 19th century doctrine to the 21st century. There have been a few changes in the workplace since then.

    I have experienced and have seen how insidiously employers use At Will termination tactics. For example, Amy Employee is fired for alleged insubordination when in truth she was 55 years old and the company wanted a younger person in that position. Amy then files a complaint for age discrimination with the Human Rights Commission. The employer refutes her claim and because Amy like most employees did not educate herself about basic employee rights, now faces an uphill battle. Employers have legal teams that know the game very well. The district court gives a “summary judgment” in favor of the employer and now if Amy has legal representation will have to incur further cost to keep her complaint alive.

    The company Amy worked for knows what her salary or compensation was and the likelihood that short of seeking a loan to pay legal fees, her complaint like most don’t survive past this level. This is due to the economic burden and the lack of preparation in proving the charge. Amy’s legitimate complaint dies a horrible death and she struggles to move on disillusioned and bitter. The supervisor with the help of upper management/ownership or human resources is emboldened by the “victory” to continue to use these tactics as a part of normal day-to-day business practice. Hey, after all it’s “At Will” employment right? Then along comes Elaine who has taken the time to learn basic employee rights and is terminated for alleged insubordination, when in reality she refused the sexual advances of the supervisor.

    Elaine files suit for sexual harassment and wins a huge monetary award against the company. I believe the Employee Free Choice Act would significantly remove the employers’ ability and will to discriminate and retaliate against the workforce. It would also save the employer financial cost and embarrassment. Every state in America with the exception of Montana is “At Will”. For me the employment coin has had three sides, I have functioned as an employee, manager and business owner. I currently function as an employee and have a passion for educating job seekers and workers about basic employee rights! The Employee Free Choice Act by design creates a true partnership between employer and employee. In my view, “At Will” doctrine has spawned and reinforces an employment environment that is;

    (1) adversarial by creating an “us versus them” employment mindset
    (2) emboldens employers to maintain, sustain and perpetuate discriminatory employment
    (3) monumentally wasteful of monetary resources and public goodwill in needless

    According to the language of the Free Choice Act, it will:

    (1) give employees greater liberty to form unions and establish employment contracts
    (2) punish anti union employer retaliation and harassment
    (3) compel employers to deal timely and honestly in negotiating contracts

    The perception is that employers do not want a contract to limit there ability to fire an employee. Why? I believe that elements of corporate America want to maintain an antiquated and out dated system of employment to preserve the ability to discriminate against certain groups and races. Here is the evidence to support that assertion. In fiscal year 2007, 37.0% of all (EEOC) Equal Employment Opportunity Commission complaints filed were race discrimination based. 30.1% were sex discrimination based and national origin is 11.4%. The American workplace is comprised of the good, bad and the ugly as any other society in the world.

    In my opinion, the Employee Free Choice Act will change the employment landscape for the better by obligating employers to recognize unions after a majority of workers sign cards authorizing union representation. This will also make mediation and arbitration mandatory for first-contract disputes. Under the present system even after a majority of workers vote for unionization, companies routinely drag out the process of recognizing the union for long periods of time. This delaying tactic “waits out” union organizers by employees losing interest, more turnover and increased intimidation. This Act will provide stronger penalties for violation of the rights of workers seeking to form unions or negotiate first contracts.

    The Employee Free Choice Act will provide for employee majority sign-up instead of the present majority vote system, which is subject to management coercion and harassment. Employers typically use intimidation and threats adversely affecting the workers employment experience by:

    (1) manipulation of compensation
    (2) changing working conditions
    (3) changing work hours
    (4) demotion
    (5) negative job reviews
    (6) termination

    These tactics are also synonymous with violations of federal discrimination and retaliation laws. I believe the Employee Free Choice Act will create a true power-sharing environment by reason of collective bargaining agreements that amount to employment contracts for most workers in all industries. In my opinion, the EFCA would foster trust, accountability and respect from both sides. In my experience as a mediator when two disputing parties reach amicable resolution or a “win-win” they come away with a greater level of understanding and mutual respect for each sides position.

    Just as the paradigm shift in audio media technology finally forced me to put down my cassette player and pick up a cd player, “At Will” employment is another dinosaur whose time has come for a decent burial.

Leave a Reply