Today’s post comes courtesy of my colleague Jarad Lucan who weaves baseball and labor law into a single post.  Well, baseball, labor law and Wal-mart. 

And he reminds us that the National Labor Relations Board still has the ability to surprise….

Read on.

With spring training just around the corner, I’m reminded of one of baseball’s oldest unwritten rules:  If a pitcher has a no hitter, don’t talk about it.

If you are superstitious, you may take this to mean if something good is happening, don’t discuss it because you might ruin it. 

Luckily, I’m not a superstitious guy.

And even if I was, I may throw caution to the wind to report on a recent Advice Memorandum issued by the Office of the General Counsel for the National Labor Relations Board with a favorable position to an employee. In a termination case too.

And let’s face it, it’s also nice to report on a labor issue that doesn’t have to do with social media.

Before going further, it’s worth a reminder that Advice Memoranda issued by the Office of the General Counsel don’t need to be followed by the Labor Board.  Nevertheless, they are issued by the prosecuting arm of the Labor Board, and therefore may signal how similar cases may be perused in the future.

In this most recent Advice Memorandum, released on February 18, 2014, Organization United for Respect at Walmart (OUR Walmart) filed unfair labor practice charges against two Wal-Mart stores in Florida alleging that two employees were fired for participating in OUR Walmart demonstrations.

In other words, Wal-Mart was charged with firing the employees for engaging in protected concerted activity in violation of the National Labor Relations Act.

For background, OUR Walmart is a national organization whose stated goal is to educate Wal-Mart’s employees about workplace rights and help them improve their working conditions.  If you love to shop at 3:00 am the day after Thanksgiving, you may remember back in 2013 when OUR Walmart staged numerous nationwide rallies and demonstrations on Black Friday.

According to the Memorandum, although a case could be made that the employees’ activities during the demonstrations were a motivating factor in their firings, Wal-Mart could establish that it legitimately fired the employees.

Under Labor Board case law, an employer can violate the National Labor Relations Act if it takes adverse action against an employee and that action is motivated by an employee’s protected activity.  Nevertheless, the employer can avoid liability by demonstrating that it would have taken the adverse action against the employee even if the employee did not engage in protected activity.

That was the case here.

In this case, the first employee was fired due to her theft of time.  As it turned out, this employee had taken 295 minutes (or close to 5 hours) of unauthorized break time over 12 shifts.

The second employee, was terminated after she left her handbag on a shelf where salads and sandwiches are prepared in the store – she worked in the store’s deli.  This employee, however, had a history of past discipline, including receiving coaching for failing to follow safety instructions while using a deli slicer, failing to complete an assignment, and for wearing dangling earrings in violation of the store’s dress code limiting employees who are handling food to single stud earring.

The Memorandum also indicated that Wal-Mart did not violate the National Labor Relations Act when one of its managers attempted to use a cell phone to make a video of the OUR Wal-Mart demonstrations.  While such surveillance is usually illegal, in this case, it was warranted because Wal-Mart had claimed in the past that the demonstrators had trespassed and there was a state court action pending to which the video may be relevant.

This Memorandum serves as a reminder to employers that irrespective of protected activity there are certain actions that should not be tolerated, such as theft of time and repeated violations of company policy.

Whether this case signals a shift in the Labor Board’s apparent crusade to expand upon the rights of employees, both unionized and non-unionized, while undermining employers’ legitimate need to maintain civility and order in the workplace is doubtful.  However, the field of play may be leveling out just in time for opening day.

Play ball!