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I. Summary

The right of workers to organize is well established under international human rights law.  As a member of the International Labour Organization (ILO) and party to several important international instruments, the United States is legally bound to protect this fundamental right.  In practice, it falls far short. 

Under international law, employers cannot mount aggressive and coercive anti-union campaigns that interfere with worker organizing or retaliate against workers for supporting a union.  International law requires countries to outlaw such conduct, sanction violators with meaningful and dissuasive penalties, and enforce the prohibitions.  US labor law and practice do not meet these international norms.   

US laws permit a wide range of employer tactics that interfere with worker organizing.  They  provide penalties too weak to adequately deter employers from breaking the laws, only requiring offenders to restore the status quo ante and imposing few, if any, economic consequences.  The endemic extensive delays in enforcement further undermine the efficacy of the already weak laws.

The United States’ failure to uphold its international law duty to protect workers’ rights has opened the door for employers to breach their own obligation to respect workers’ rights.  It has allowed them, instead, to violate their employees’ basic rights with virtual impunity.  And Wal-Mart Stores, Inc. (Wal-Mart), takes full advantage.

Wal-Mart is the largest company in the world, based on the Fortune Global 500 list.²  In the fiscal year that ended January 31, 2007, Wal-Mart had more than $351 billion in revenue, up over 11 percent from the year before, and roughly $11.3 billion in profits.³  Wal-Mart is also the largest private employer in the United States, with roughly 1.3 million US workers and close to 4,000 stores nationwide.  None of those 1.3 million workers is represented by a union.  This is no accident. 

Wal-Mart is a case study in what is wrong with US labor laws.  It is not alone among US companies in its efforts to combat union formation, following the incentives set out in unbalanced US labor laws that tilt the playing field decidedly in favor of anti-union agitation.  It is also not alone in violating weak US labor laws and taking advantage of ineffective labor law enforcement.  But Wal-Mart stands out for the sheer magnitude and aggressiveness of its anti-union apparatus and actions.    

Wal-Mart employs a sophisticated and determined strategy to prevent union activity at its US stores and, when that strategy fails, quashes organizing wherever it starts.  Wal-Mart has devised a comprehensive battery of corporate institutions, practices, and tactics aimed at frustrating union organizing activity.  It pursues its anti-union agenda relentlessly, often from the day a new worker is hired, devoting considerable time and resources at all levels of the company to the anti-union drumbeat. 

Wal-Mart’s strategy to prevent union formation is complex and multifaceted.  The company does not engage in massive anti-union firings nor announce to workers that their store will close if a union is formed.  Instead, the company uses myriad more subtle tactics that, bit by bit, chip away at—and sometimes devastate—workers’ right to organize.  Many of these tactics comport with weak US labor law, notwithstanding their practical effect of quashing worker organizing efforts.  Wal-Mart’s record before the National Labor Relations Board (NLRB), charged with enforcing US labor laws, suggests that the company has also employed illegal tactics in addition to its lawful anti-union strategy.  Based on our research, we conclude that the cumulative effect of Wal-Mart’s panoply of anti-union tactics is to deprive its workers of their internationally recognized right to organize.   

We believe that this should be a cause for concern regardless of one’s views on the ongoing debate about whether Wal-Mart is good for local communities in the United States and, more generally, good for the country as a whole.  Wal-Mart is an influential market leader, and by definition, its treatment of its workers has a significant impact in the United States and beyond.

Denied the right to freedom of association, Wal-Mart workers are also deprived of a tool that international law recognizes as an important means for protecting their interests in the workplace.  As NLRB and court decisions have shown and as current and former Wal-Mart workers and managers have recounted to Human Rights Watch, Wal-Mart employees have a multitude of wide-ranging grievances. 

Fifty-seven class action lawsuits filed since 2000 complain that Wal-Mart broke wage and hour laws by forcing workers to work “off the clock,” failing to pay them overtime and denying them meals and rest breaks.  The largest class action employment discrimination lawsuit in US history, with a class of over 1.5 million women, claims the company intentionally discriminated against its female workers in promotions, pay, job assignments, and training.  Nineteen cases filed by the Equal Employment Opportunity Commission (EEOC) charge that Wal-Mart discriminated against disabled workers and job applicants. 

In addition to the allegations of unlawful conduct, Wal-Mart workers past and present described to Human Rights Watch their personal frustrations.  There is a belief among some workers, based on an internal Wal-Mart document and company practices, that long-term employees, with higher wages and often more significant health problems, are being deliberately forced out to cut costs.  Workers, young and old, also told Human Rights Watch of their struggles to make ends meet on Wal-Mart wages and complained that they are unable to afford company-sponsored healthcare on their salaries.

This report examines in depth the tactics that Wal-Mart uses to preempt workers’ organizing efforts and undermine workers’ freedom of association at its US stores.  After offering a brief history of Wal-Mart, a summary of worker concerns with employment conditions, and a survey of relevant US and international law, the report details Wal-Mart’s anti-union tactics.  The report focuses first on tactics and policies that, though they largely comply with US law, create a work environment so hostile to union formation that they coercively interfere with workers’ internationally recognized right to decide freely for themselves whether to organize.  A separate chapter examines Wal-Mart’s anti-union tactics that violate both US and international law and contribute to the generalized fear many Wal-Mart workers report feeling whenever the topic of union formation is broached.  Five separate case studies illustrate the very real human impacts of Wal-Mart’s attack on workers’ right to freedom of association.

How Wal-Mart Wards Off and Derails Union Organizing

Tactics Comporting with US Law

Using anti-union tactics that largely comply with US law, Wal-Mart begins creating a hostile environment for labor organizing often from the moment workers and managers are hired.  The company begins with proactive worker and manager training, a central part of which frequently involves setting out the company’s aggressive anti-union stance.  Through videos and management presentations, Wal-Mart often warns new workers during their orientations about the negative consequences of organizing, providing heavy “spin” on purported drawbacks.  The company provides similar warnings to managers at all levels and gives them explicit instructions on preventing union formation, such as carefully monitoring store morale, many of which are contained in the company’s “Manager’s Toolbox” (Toolbox). 

One key tool in the Toolbox is Wal-Mart’s Open Door Policy, which states that workers may raise concerns with managers and, if they are not satisfied with the response, take their concerns to any level of management without fear of retaliation.  In some circumstances, an open door policy, taken at face value, would constitute good business practice for a company.  Our research indicates, however, that Wal-Mart’s Open Door Policy should not be taken at face value.  The Toolbox touts this policy as the “greatest barrier” to worker organizing—a key tool deployed defensively to ward off union formation.⁴  We found that Wal-Mart repeatedly cites the policy to workers as a key reason why workers do not need what Wal-Mart pointedly calls “third-party representation,” asking workers why they would want to pay a union to speak for them when they have the Open Door Policy through which they can speak for themselves for free.

When, despite their best efforts, managers detect organizing activity at their stores, they are required to call Wal-Mart’s Union Hotline.  Through the Union Hotline, managers report union activity to company headquarters in Bentonville, Arkansas, and receive guidance from labor relations specialists and lawyers at headquarters regarding how to quash organizing efforts.  The specialists write a summary of each call, which is then entered into a centralized database commonly called the “Remedy System,” which enables Wal-Mart to track union activity at stores across the country. 

We found that Wal-Mart generally responds by dispatching members of its Labor Relations Team to the affected store, typically within a few days, to implement an aggressive anti-union campaign in conjunction with store management.  Labor Relations Team members and store managers hold small- and large-group meetings that workers are strongly urged to attend. 

At the meetings, management describes the negative consequences of organizing and often shows multiple videos to reinforce this message.  Managers and the videos tell workers that when employee wages and benefits are subject to collective bargaining, workers could very easily lose a lot.  They describe union dues and other union fees as being prohibitively expensive.  They say that Wal-Mart can permanently replace workers who strike in support of economic demands, like higher wages and benefits, a practice permitted in the United States but that contravenes international standards. 

The videos dramatize the anti-union message by showing an example of a picket line that turns violent, characterizing unions as antiquated organizations, and portraying union organizers as harassing and bothersome people.  The inherent power imbalance of the employment relationship adds even greater weight to Wal-Mart’s anti-union views.   

Due to Wal-Mart’s tactics, union supporters and organizers are denied a meaningful opportunity to counter Wal-Mart’s overwhelmingly one-sided barrage of anti-union information and to address workers’ concerns.  In violation of international standards, US law generally does not require that they be given this chance.  As a result, workers and managers often hear only Wal-Mart’s side of the story. 

Wal-Mart’s aggressive campaign to prevent union formation also creates a climate of fear at its stores.  We found that, after being subject to the full battery of Wal-Mart’s tactics, many workers fear that if they express or even listen to pro-union views when union drives are underway, they may face retaliation, even firing.  Largely denied the internationally recognized right to receive messages contrary to Wal-Mart’s relentless, well-honed, negative characterization of unions, many workers also fear dire consequences if they vote for union representation.  In this climate, workers are deprived of the right to make a free and informed choice of whether to form a union. 

Tactics Running Afoul of US Law

Wal-Mart also has used an arsenal of tactics that violate US law and workers’ internationally protected right to freedom of association.  According to Human Rights Watch research and the decisions of US labor law authorities, the company has discriminated against union supporters and coercively interfered in worker efforts to organize.  The tactics vary and range from restricting the dissemination and discussion of pro-union views to, in extreme cases, firing key union supporters.¹⁰

Both NLRB rulings and our investigation have found that Wal-Mart has selectively enforced company policies with the effect of limiting workers’ access to information about the benefits of union formation.  Although US law prohibits employers from engaging in such selective censorship of information, Wal-Mart has banned union representatives from handbilling outside its stores and even called the police to enforce the ban, while allowing representatives of non-union organizations to remain.  The company has confiscated union literature that found its way into workers’ hands or onto break room tables and prohibited employees from distributing union flyers, while permitting non-union information.  Wal-Mart managers have prohibited discussions of the union or even talking with co-workers about wages and working conditions, while allowing conversations on non-union issues.¹¹

Wal-Mart has also illegally threatened workers with serious consequences if they form a union, including loss of benefits, such as raises.  In the midst of organizing drives, it has also violated US law by suddenly addressing complaints that previously had been ignored and making workplace improvements to undermine union drives.¹²  While improving conditions is obviously desirable, US law prohibits employers from doing so to send an anti-union message.  The danger is that such a response to organizing will carry the implicit message that if a union forms against the employer’s wishes, the employer will retaliate by taking away what it has just granted and by making those or similar benefits harder to obtain in the future. 

To further stifle union formation at its stores, Wal-Mart has illegally manipulated store staffing to stack the proposed bargaining unit against the union.¹³  In one case we researched, the company was found by the NLRB to have illegally transferred union supporters out and shifted union opponents in, a practice known as “unit packing.”¹⁴  The staff changes erect yet another obstacle to union formation by diluting union support, on the one hand, and denying pro-union workers the opportunity to vote in a union election, on the other.

Wal-Mart has also used several illegal techniques to gather information about union activity while simultaneously pressuring workers to stop organizing.  The company has coercively interrogated workers about their and their co-workers’ union sympathies through direct and often hostile questioning and sent managers to eavesdrop on discussions among employees in a proposed bargaining unit.  According to former workers and managers from Wal-Mart’s Kingman, Arizona, store, Wal-Mart has also monitored union activity by focusing security cameras on areas where union organizing is most active.¹⁵  These tactics have a chilling effect on workers’ willingness to organize.

Wal-Mart has also selectively enforced company policies against union supporters that are ignored when employees are union opponents.¹⁷  When Wal-Mart has failed to find such policy violations, it has, at times, invented them as a pretext to rid its store of key union sympathizers, as in the case of Brad Jones, a union leader with an excellent performance record at Wal-Mart’s Kingman, Arizona, store.  When managers and loss prevention specialists surveilling Jones were unable to find legitimate grounds for his termination, the company fired him on a pretext so unbelievable that labor law authorities ruled that Jones’ firing was illegal because it could only have been motivated by anti-union animus.¹⁸  Such dismissals are unusual, though, because the company generally succeeds in thwarting organizing efforts through its other anti-union tactics.

Wal-Mart has been so successful at derailing worker attempts to form unions that only once since the company opened in 1962 have workers organized.  Meat cutters at the Jacksonville, Texas, Wal-Mart formed a union in February 2000.  According to the NLRB, Wal-Mart responded by illegally refusing to negotiate with the union and illegally refusing to give them the information they needed for bargaining.  Wal-Mart subsequently closed the meat cutting department.  Although US labor authorities ruled that the closure was legal, it had the effect of dispersing the workers throughout the store and destroying the union.  

Even adjusted for its size, Wal-Mart stands out for the number of its US labor law violations.  In cases filed with US labor law authorities between January 2000 and July 2005, fifteen rulings that Wal-Mart broke the law are still standing and have not been overruled; only four such rulings are still standing against Albertsons, Inc. (Albertsons); Costco Wholesale Corporation (Costco); Kmart Corporation (Kmart); The Kroger Company (Kroger); Home Depot USA, Inc. (Home Depot); Sears, Roebuck and Company (Sears); and Target Corporation (Target) combined.  As of early 2006, the total revenue of these seven companies combined was 7 percent greater than Wal-Mart’s and the total workforce roughly 26 percent greater.²⁰ 

Although the disparity between Wal-Mart’s record before US labor law authorities in the early 2000s and that of its competitors is attributable in part to the disproportionate efforts of Wal-Mart workers to organize during that period, it is also attributable to Wal-Mart’s aggressive anti-union tactics.  A labor lawyer who represented a union in a case against Wal-Mart succinctly summarized Wal-Mart’s extraordinary efforts to prevent worker organizing, telling Human Rights Watch, “No one does it like Wal-Mart.  Wal-Mart goes above and beyond and does it better than anyone else.”²¹  

Wal-Mart’s dismal record on workers’ rights has been singled out by the Norwegian government.  In June 2006, the government announced that the Government Pension Fund-Global will cease to invest in Wal-Mart.²²  The decision was “based on the view that the Government Pension Fund-Global will incur an unacceptable risk of contributing to serious or systematic violations of human rights by maintaining its investments in the company.”²³  Specifically, the government based its decision largely on alleged workers’ rights violations in Wal-Mart stores and throughout the company’s supply chain that were cited by the Council on Ethics for the Norwegian Government Pension Fund-Global, including “extensive use of unpaid overtime, breach of rules governing the employment of minors, employment of illegal labour, extensive discrimination of female employees and measures to actively obstruct unionization” at its US and Canadian operations. 

Commenting on Wal-Mart’s conduct, the Council on Ethics concluded, “In the view of the Council, what makes this case special is the total sum of violations of standards, both in the company’s own business operations and in the supply chain.”  It added, “Since Wal-Mart is such a large company, this practice has consequences for a very large number of people both in many poor countries of the world and in North America.”²⁴