K-Mart Corp.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 702 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702
K-Mart Corporation, Debtor-In-Possession and
Kevin Barthold and Ricky D. Brock and Local
157, International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of America (UAW), AFL–CIO and its suc-
cessor Local 174 and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–
CIO. Cases 7–CA–42873(1)(2), 7–CA–43820(1),
7–CA–43820(2)(3), 7–CA–44449(2), 7–CA–44570,
7–CA–44653, and 7–CA–44746(2)
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 8, 2002, Administrative Law Judge Marga-
ret G. Brakebusch issued the attached decision. The
General Counsel and the Respondent filed exceptions,
supporting briefs, and answering briefs, and the Respon-
dent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
For the reasons below, we agree with the judge’s dis-
missal of the allegation that the discharge of Christopher
Munsie violated Section 8(a)(1), and find merit in the
Respondent’s exceptions to the judge’s finding that the
discharge of Ricky Brock violated Section 8(a)(3) and
(1). Accordingly, we dismiss the complaint.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The parties reached a non-Board resolution regarding Cases 7–CA–
43820(3), 7–CA–44449(2), 7–CA–44653, 7–CA–44746(2), and 7–CA–
42873(1)(2). By order dated July 14, 2003, the Board granted a joint
motion by the Charging Parties and the Respondent to sever those cases
from these proceedings, approve the Charging Parties’ request to with-
draw those cases, and dismiss the corresponding complaint allegations.
In the absence of exceptions, the Board also adopted the judge’s rec-
ommendation to dismiss the allegation that the discharge of Kevin
Barthold in Case 7–CA–43820(1) violated Sec. 8(a)(3) and severed that
case from the remaining cases in this matter. Accordingly, Case 7–
CA–44570 concerning the discharge of Ricky Brock and Case 7–CA–
43820(2) concerning the discharge of Chris Munsie are the only cases
remaining before the Board for decision.
Background
The Respondent operates a distribution center in Clin-
ton, Michigan, with approximately 600 office, mainte-
nance and general warehouse employees (associates)
who work on three shifts. The Union began its organiz-
ing campaign in December 1998. In an election held on
December 21, 2000, the employees voted for union rep-
resentation and the Union was certified on January 2,
2001. Alleged discriminatees Munsie and Brock were
active union supporters, and Brock was appointed to the
Union’s bargaining committee.
1. Discharge of Christopher Munsie
On February 13, 2001, Christopher Munsie returned to
work at the Distribution Center after a month-long medi-
cal leave of absence. That same day, Supervisor Gerald
Scott asked Muncie if he had received a copy of the Re-
spondent’s rules, which had been distributed several
weeks earlier. After Munsie confirmed that he had re-
ceived the rules (including that breaks had to be taken in
designated break areas), Scott reminded Munsie that he
could not take his breaks in the lobby, as had been his
practice. Munsie proceeded to raise his voice, and curse
at Scott arguing the rules “don’t mean shit” in light of the
Union’s recent victory. Munsie admitted that he was the
first to raise his voice, that only he used profanity, and
that he refused to permit Scott to discuss the remainder
of the memorandum with him. Later that day, Munsie
was placed on administrative leave. On February 26, the
Respondent sent Munsie a letter terminating him for in-
subordination and creating a hostile work environment,
relying on a rule in its associates handbook.3
The judge dismissed the allegation that the Respondent
violated Section 8(a)(1) of the Act by discharging Mun-
sie for complaining to Respondent on behalf of himself
and other employees regarding the promulgation of work
rules limiting the locations where employees could take
their breaks. The judge also found no evidence that
Munsie was acting on behalf of other employees in his
protest. Instead, the judge found that Munsie was pro-
testing and rejecting his supervisor’s authority to remind
and direct him to the Respondent’s established rules,
which had been implemented prior to the Union’s certifi-
cation. Thus, the judge found that the Respondent had
recently circulated a memorandum to the employees re-
minding them of the rules, but had not implemented new
3 The rule relied on by the Respondent stated in relevant part that:
There are occasions when an associate’s conduct is so det-
rimental to other associates and/or the Company that it war-
rants termination on the first occurrence. Examples include,
but are not limited to, offenses such as: . . . Assaulting,
fighting, threatening, horseplay, hostile conduct, or any
other act which could affect the well being of any associate.
341 NLRB No. 102
K-MART CORP. 703
rules governing the break area. Accordingly, the judge
found that both the object of Munsie’s protest and his
conduct took his activity outside the protection of the
Act.
In exceptions, the General Counsel contends that Mun-
sie’s conduct was concerted, as an expression both of the
concerns of Distribution Center employees and of Mun-
sie’s support for the Union’s position that promulgation
of the rules without negotiation was unlawful.
We agree with the judge that Munsie’s conduct was
unprotected, but do so solely because Munsie’s conduct
was not concerted in nature.4 Thus we find no merit in
the General Counsel’s exceptions described above.
Section 7 gives employees the right to engage in con-
certed activity for the purpose of collective bargaining or
other mutual aid or protection. In Meyers Industries, the
Board distinguished between an employee’s activities
engaged in with or on the authority of other employees
(concerted) and activities engaged in solely by and on
behalf of the employee himself (not concerted).5 There,
the Board overruled Alleluia Cushion Co., 221 NLRB
999 (1975), and its progeny, which held a broader view
of concerted conduct as including individual activity on
certain matters of possible group concern even in the
absence of explicit authorization of the individual’s ac-
tion by other employees.6 To the extent that the General
Counsel is arguing that Munsie’s protest, even if not au-
thorized by other employees, would be protected as an
expression of the unit employees’ common concerns, we
find it contrary to controlling Board precedent. Meyers I
& II, supra. Because we agree with the judge that there
is no evidence in the record that Munsie was acting either
on the authority of, or with, other employees in protest-
ing the break rules—or that he was “seek[ing] to initiate
or to induce or to prepare for group action7—we find that
his conduct was not concerted, and therefore not pro-
tected.
We also reject the General Counsel’s alternative theory
that Munsie’s protest was concerted because he was tak-

4 Accordingly, we find it unnecessary to determine whether the
judge correctly found that Munsie’s protest, even if concerted, would
have lost its protection because of the manner of his conduct.
5 268 NLRB 493, 497 (1984) (Meyers I), remanded sub nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), Meyers Industries, 281 NLRB
882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
6 Moreover, we disagree with the General Counsel’s contention that
the Interboro doctrine applies. An individual employee activity is
concerted if the employee seeks to enforce provisions of a collective-
bargaining agreement. NLRB v. City Disposal Systems, 465 U.S. 822
(1984); Interboro Contractors, Inc., 157 NLRB 1295 (1966), enfd. 338
F.2d 495 (2d Cir. 1967). In the absence, as here, of a collective-
bargaining agreement, the Interboro doctrine is inapplicable.
7 Meyers II, supra, 281 NLRB at 887.
ing a position consistent with that of the Union. See, e.g.,
Tradesmen International, Inc., 332 NLRB 1158, 1159
(2000), enf. denied on other grounds 275 F.3d 1137,
1142 (D.C. Cir. 2002) (Court assumes conduct to be con-
certed, but finds it to be unprotected). Here, there is no
record evidence that the Union had taken a position re-
garding the Respondent’s breakroom rules prior to Feb-
ruary 13.
In sum, because the General Counsel has not shown
that Munsie was engaged in concerted activity, we dis-
miss the allegation.
2. Discharge of Ricky Brock
Ricky Brock actively supported the Union in its orga-
nizing campaign at the Distribution Center. After its
certification, the Union selected him to be a member of
its bargaining committee. On a number of occasions, the
Union had requested that Brock be given time off to par-
ticipate in meetings held to prepare for bargaining with
the Respondent. The Respondent’s human resources
manager Kenneth Kolb disputed the necessity of Brock
taking time off from his night-shift duty for daytime
meetings.
On May 17, 2001, Brock and a fellow employee Stuart
Spencer argued over how Spencer was performing his
work. In the course of the incident, Spencer used his
forklift to block Brock’s path and taunted Brock about
his recent divorce. Brock told Spencer not to discuss his
personal life at work and grabbed Spencer’s collar.
Brock reported the incident to management, which spoke
with both employees and had them provide written
statements. Both continued working at their regular
shifts. Although Brock initially denied touching
Spencer, on May 17 he admitted doing so.8 On May 25,
Kolb summoned Brock to his office and handed him a
letter terminating him for grabbing Spencer’s collar and
threatening him.
The judge found that the Respondent violated Section
8(a)(3) and (1) by discharging Ricky Brock because he
assisted the Union in its election campaigns and to dis-
courage other employees from engaging in such activity.
She found antiunion motivation for Brock’s discharge
was established largely on the timing of his termination
that occurred during the same time period as his dispute
with Kolb over taking time off to prepare for negotia-
tions. The judge rejected the Respondent’s rebuttal ar-
gument that Brock would have been terminated for his
conduct, even in the absence of his union or protected
8 Brock testified that he only touched Spencer’s collar, while
Spencer testified that Brock grabbed his collar and threatened to beat
him. The judge did not make an explicit finding as to what actually
happened, but “assumed” that Brock had admitted to grabbing
Spencer’s collar.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 704
activity, under its rule authorizing termination for violent
or threatening behavior.9 In doing so, the judge relied on
the Respondent’s failure to fire employee Jason Shudell
for pushing another employee’s head towards a wall and
threatening to punch her as evidence that it has tolerated
assaultive or hostile behavior between employees.
In exceptions, the Respondent contends that Brock
would have been terminated for his threatening and as-
saultive behavior even in the absence of any protected
activity. We find merit in this argument.
In her decision, the judge assumed that Brock had ad-
mitted to grabbing Spencer’s collar (but did not make
any finding regarding his use of threatening language).
Spencer testified without contradiction that he told Re-
spondent’s officials that Brock grabbed Spencer’s collar
and threatened to beat him. And, even Brock admitted
that he told the Respondent’s officials that he touched
Spencer’s collar. In light of this, and the fact that the
reported conduct was in the course of an altercation, the
Respondent discharged Brock. That discharge was con-
sistent with the handbook rule set forth above.
Unlike the judge, we do not find that the Respondent’s
failure to discharge Shudell establishes disparate treat-
ment of Brock. As the Respondent points out, it chose
not to fire Shudell because: one, he denied attacking the
other employee and two, there were no witnesses to the
alleged violence. Brock conceded, however, to have
physically approached Spencer to the point of touching
Spencer’s collar.10 This concession strongly corrobo-
rates Spencer’s account of the incident. In these circum-
stances, we do not find that the Respondent’s treatment
of Shudell constitutes disparate treatment of Brock.
Moreover, the record establishes Respondent’s consistent
enforcement of its detrimental conduct rules. It has ter-
minated employees for hostile conduct toward fellow
employees. For example, Respondent terminated em-
ployee Whitecraft for striking another employee under
provocation similar to Spencer’s taunting of Brock. In-
deed, the Respondent has terminated several employees
for hostile conduct less serious than Brock’s conduct.
Accordingly, we find that the Respondent rebutted the
General Counsel’s case, and we dismiss the allegation.
ORDER
The complaint is dismissed.

John Ciaramitaro and Ingred Kock, Esqs., for the General
Counsel.

9 Wright Line, 251 NLRB 1083, 1089 (1980).
10 We would come to the same conclusion even if the judge had re-
lied upon Brock admitting to only touching—and not “grabbing”—
Spencer’s collar.’”
Daniel J. Bretz and Paul W. Coughenour, Esqs., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Detroit, Michigan, from May 6–9, 2002.
The original charge in Case 7–CA–42873(1) was filed by the
International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW), AFL–CIO
(the Union) on March 17, 2000, against K-Mart Corporation
(Respondent). The original charge in Case 7–CA–42873(2)
was filed by the Union on May 3, 2000. The amended charge
in Case 7–CA–42873(1) was filed by the Union on July 18,
2000. Based on these charges, the Regional Director for Re-
gion 7 of the National Labor Relations Board (the Board) is-
sued a complaint and notice of hearing on June 29, 2000. On
August 15, 2000, the Board issued an order consolidating cases,
amended consolidated complaint, and notice of hearing in
Cases 7–CA–42873(1) and 7–CA–42873(2). The original
charge in Case 7–CA–43820(1) was filed by Kevin Barthold,
an individual (Barthold) on March 13, 2001. The original
charge in Case 7–CA–43820(2) was filed by the Union on
March 13, 2001. The original charge in Case 7–CA–43820(3)
was filed by the Union on May 1, 2001. The amended charge
in Case 7–CA–43820(3) was filed by the Union filed on June
28, 2001. On June 29, 2001, the Board issued an order setting
aside settlement agreement and order consolidating complaints.
In the order, the Regional Director for Region 7 set aside a
prior settlement agreement in Cases 7–CA–42873(1) and 7–
CA–42873(2) and pursuant to Section 102.33 of the Board’s
Rules and Regulations consolidated these cases with Cases 7–
CA–43820(1) and 7–CA–43820(2)(3). On August 1, 2001, the
Board issued an order consolidating cases, second consolidated
amended complaint and notice of hearing for Cases 7–CA–
43820(1), 7–CA–43820(2)(3), and 7–CA–42873(1)(2). On
October 17, 2001, the Union filed the original charge in Case
7–CA–44449(2). On November 20, 2001, Ricky D. Brock, an
individual (Brock) filed a charge in Case 7–CA–44570. On
December 17, 2001, the Union filed a charge in Case 7–CA–
44653. Based on the charges filed in Cases 7–CA–44570 and
7–CA–4449(2), the Board issued an order consolidating cases,
consolidated complaint and notice of hearing. Based on the
charges in Cases 7–CA–43820(2)(3), 7–CA–44449(2), 7–CA–
42873(1)(2), and 7–CA–44570, the Board issued an order con-
solidating cases. The original charge in Case 7–CA–44746(2)
was filed by the Union on January 18, 2002. The amended
charge in Case 7–CA–44746(2) was filed by the Union on
March 26, 2002. Based on the charges in Cases 7–CA–
43820(1), 7–CA–44570, 7–CA–43820(2)(3), 7–CA–44449(2),
7–CA–44653, 7–CA–44746(2), and 7–CA–42873(1)(2), the
Board issued an order setting aside settlement agreement, order
consolidating cases and fourth consolidated amended complaint
and notice on hearing on March 28, 2002.
The fourth consolidated amended complaint alleged that Re-
spondent violated Section 8(a)(1) of the Act by: threatening
employees with discharge for engaging in activities in support
of the Union and with loss of opportunities for advancement if
K-MART CORP. 705
employees selected the Union as their bargaining representa-
tive, telling an employee that he was not allowed to talk with
anyone on the receiving floor, telling an employee to keep his
eyes open during Respondent’s meetings with its employees
and note the identity of employees who were outspoken in sup-
port of the Union, telling employees to identify employees who
supported the Union and to find reasons that Respondent could
terminate them, repeatedly and coercively interrogating its
employees regarding their union sympathies, isolating an em-
ployee from other employees, telling employees that they could
not talk about a union while they were working, while at the
same time not prohibiting employees from talking about other
nonwork subjects, and conducting an employee interview with-
out benefit of representation. The fourth consolidated amended
complaint alleged that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging employees Dennis Theobald,
Kevin Barthold, Christopher Munsie, and Ricky D. Brock. The
complaint further alleged that Respondent violated Section
8(a)(3), (4), and (1) of the Act by issuing disciplinary actions to
employee Arnold Gregory. The complaint further alleged that
Respondent violated Section 8(a)(5) and (1) of the Act by:
ceasing its practice of granting annual across-the-board wage
increases for employees, requiring its maintenance employees
to complete a form detailing their activities, dealing directly
with its employees by soliciting volunteers for a 1-week layoff,
laying off employees, and eliminating the afternoon and mid-
night shifts and consolidating all operations to the day shift.
During the course of the hearing, counsel for the General
Counsel withdrew complaint paragraphs 12 (a), (b), and (c) as
well as paragraphs 13 and 14. Counsel for the General Counsel
also moved for the reinstatement of the settlement agreement in
Case 7–CA–42873(1)(2) and Respondent joined in the stipula-
tion. General Counsel’s motion was granted. Thus, the allega-
tions dealing with the discharge of Dennis Theobald, the isola-
tion of Steve Illellum, and the threats attributed to Michael
Tripp were withdrawn from the complaint.
Respondent filed answers to each of the complaints and to
the fourth consolidated amended complaint denying the essen-
tial allegations, and asserting certain defenses.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, has been engaged as a gen-
eral merchandise retailer at its facility in Canton, Michigan,
where it annually derives gross revenues in excess of $500,000
and purchases and receives goods valued in excess of $50,000
at its Michigan facility directly from points located outside the
State of Michigan. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.

1 Respondent’s unopposed motion to correct the transcript, dated
June 26, 2002, is granted and received into evidence as R. Exh. 50.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a general merchandise retailer that owns and
operates approximately 2000 retail stores. The Canton, Michi-
gan distribution center, one of Respondent’s 18 warehouses or
“distribution centers” (DC’s), receives, stores, and ships mer-
chandise to approximately 130 stores in three States. The Can-
ton DC employs approximately 600 office, maintenance, and
general warehouse employees or “associates.”2 General ware-
house associates are assigned to various departments including
receiving, put-a-away, shipping, non-conveyable, and repack.
Associates work three shifts: first (generally 7 a.m.–3 p.m.);
second (generally 3–11 p.m.); and third (generally 11 p.m.–7
a.m.).
The warehouse, maintenance, and clerical workers at six of
K-Mart’s distribution centers are covered by collective-
bargaining agreements. In May 1999, a union election was
held at the Canton DC, which resulted in a vote of 367 against
and 206 in favor of representation by the Union. On September
20–23, 1999, an unfair labor practice trial was held at Region 7
of the Board before Administrative Law Judge C. Richard Mis-
erando regarding unfair labor practice charges and objections
filed regarding the May 1999 election at the Canton DC. On
December 21, 2000, a representation election was held pursuant
to a stipulated agreement, which resulted in a vote of 260 in
favor and 244 against the Union’s representation. On January
2, 2001, the Union was certified as the exclusive collective-
bargaining representative for all full-time and regular part-time
computer operators, warehouse associates, plant clerical associ-
ates, office clerical associates, skilled maintenance associates,
general maintenance associates, and general warehouse associ-
ates employed by Respondent at its Canton, Michigan ware-
house facility. In or about October 2001, Local Union 174
became the successor to Local Union 157 and since then Local
Union 174 has been designated by the International Union as its
servicing agent.
B. The Discharge of Chris Munsie
General Counsel alleges that Respondent suspended and later
terminated Chris Munsie for concertedly complaining to Re-
spondent on behalf of himself and others the promulgation of
certain work rules. Respondent asserts that Munsie was termi-
nated on February 26, 2001, after a verbally abusive, profanity-
laced confrontation with his immediate supervisor, Gerard
Scott.
1. Evidence presented by General Counsel
Prior to his termination on February 26, 2001, Munsie had
worked for Respondent since February 7, 1997. As an hourly
general warehouse associate, Munsie drove a motorized forklift
or “hi-lo” on the third shift in the nonconveyable department.
Gerard Scott supervised Munsie at the time of his discharge.
Employees on the third shift are allowed two breaks during
2 Bargaining unit employees are generally referred to as employees
throughout this decision. Respondent’s witnesses and documentation
refer to employees as associates.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 706
their shift, one at 2 a.m. and a second at 5 a.m. While there are
two breakrooms available to employees on their breaks, Munsie
developed a habit of drinking coffee in the downstairs lobby
area during his scheduled breaktime. Munsie asserted that he
had taken his breaks in the lobby for as long as a year prior to
his termination and no one had told him that he could not do so.
While the lobby is open to the public during the regular work-
day, the lobby is closed to the public during the evening hours
when Munsie worked. Munsie recalled that fellow employees,
Randy Smith and George Camp, took their breaks there as well.
Munsie returned to work on February 13, 2001, after a medi-
cal leave of absence. At approximately 10:30 or 11:30 p.m.,
Scott, riding a bicycle, approached Munsie on his hi-lo. Scott
asked Munsie if he had received a copy of the company rules
that had been distributed a few weeks before. Munsie con-
firmed that he had. When Scott further reminded Munsie that
he could not take his breaks in the lobby, Munsie asserted that
there had been nothing in the rules about where employees
could take their breaks. Scott added that this rule had also been
posted on the company bulletin board. Munsie testified that he
told Scott that the Union had said that Respondent could not
enforce any new rules. Munsie admits that he was probably the
first to raise his voice to Scott. Munsie also admitted that while
Scott had not cursed him, he had cursed Scott. He also recalled
that when he swore at Scott, Scott responded by sticking his
finger in Munsie’s face and saying, “K-Mart can do anything
they want.” Munsie recalled telling Scott that he didn’t want to
work for him and Scott responded that he could arrange that.
Munsie contends that after they argued he told Scott that if he
would move out of his way, he would go back to work. Scott
answered that he was the boss and Munsie would do what he
told him to do.
After Munsie returned to work, Scott and Supervisor Rich
Markham came to Munsie and told him that he was to report to
human resources. On the way to human resources, Munsie met
Loss Prevention Supervisor Jerry Waislesky and asked him if
he could have a witness. When Waislesky confirmed that he
could, he paged employee John Williams using the company
paging system. When Munsie went to the human resources
office, he met with Markham, Waislesky, Scott, and employee
Williams. Munsie recalled that he was told that he was being
suspended and was given a statement form to complete, ex-
plaining his position on what had occurred. Munsie contends
that while he had not completed the form immediately, he had
done so the next day and submitted it as requested.
2. Evidence presented by Respondent
Munsie admitted that 2 weeks prior to February 13, 2001, he
had received a memorandum entitled “Reminder as to Rules
and Regulations,” dated January 31, 2001. Page two of the
memorandum contains the reminder that food, coffee, and other
drinks are permitted only in designated break areas. A valid
doctor’s note must support any and all medical conditions re-
questing exceptions to this rule. Munsie also acknowledged
that he had received a copy of the employee handbook that was
distributed in August 2000. The handbook not only specifies
that food, coffee, and soft drinks are permitted only in desig-
nated areas, but also that breaks are to be taken in designated
areas.
Scott testified that he had approached Munsie on February
13 to bring him up to date on some of the things that had oc-
curred during his leave of absence. Knowing that Munsie had
been taking coffeebreaks in the front lobby, Scott wanted to
inform Munsie that the January memorandum had restated the
employee handbook provision as to where breaks could be
taken. Scott testified that when he mentioned the reminder
memorandum to Munsie, he immediately blew up, announcing
that the rules “do not mean shit because of the union.” When
Scott told Munsie that the rules applied, Munsie demanded to
see it in “black and white.” Scott explained that he did not
have a copy of the rules with him and Munsie responded, “You
never have a copy of a motherf–king thing.” When Scott tried
to calm Munsie, Munsie replied “I am tired of your shit, I do
not have to take this. I want out of your department. I do not
want to work for you.” Scott told Munsie that if he wanted out
of his department it was not a problem. Scott told him that
when openings came up, he could bid out of the department.
Respondent asserts that Munsie did not deny that he cursed
Scott. Scott recalled that Munsie had called him a “motherf–
ker” at least three times and had also said, “f–k you” to Scott.
Respondent points out that while Munsie alleged that Scott had
stuck his finger in his face, Munsie admitted that he was stand-
ing on his hi-lo and was at least a foot and a half above Scott,
who was standing on the floor straddling his bicycle. Respon-
dent presented Roger Lambert, a member of the bargaining unit
to testify concerning his observation of the conversation be-
tween Munsie and Scott. Lambert recalled having heard Mun-
sie talking in a loud voice and his having called Scott a
“motherf–ker” at lest three times. Lambert also heard Munsie
say to Scott, “I don’t think so, mother f–ker. We’ll see about
that.” Lambert heard Munsie tell Scott to “Get the f–k away”
before he drove away on his hi-lo.
Order Filling Department Manager Richard Markham was
the most senior management person on the third shift on Febru-
ary 13. During the shift, Scott came to him and reported that
Munsie had cursed him on the floor. Markham went to Munsie
and told him to report to the nonconveyable desk where they
could talk. Markham recalled that upon coming to the desk
Munsie paced back and forth with clenched hands and flushed
face. Munsie began making pages on the telephone paging
system, shouting with a loud voice. Although Markham in-
structed Munsie not to page on the PA system in such a loud
manner, Munsie continued to do so. Markham told Munsie that
if he continued to do so, Markham would have to call security
and possibly the police to intervene. Markham recalled that
Munsie responded, “Do what you have to do, pal.” When
Markham asked Munsie to fill out a statement as to what had
occurred with Scott, Munsie responded, “I’m not filling shit
out.” Markham then placed Munsie on administrative leave
and sent him home. As Munsie was leaving, he said, “this
place is f–ked up. You guys are all alike.”
Munsie’s conduct was reviewed by Canton DC Human Re-
sources Manager Ken Kolb, and by Regional Human Resources
Director for Logistics Jack Barclay. The employee handbook
identifies occasions when an associate’s conduct is so detri-
K-MART CORP. 707
mental to other associates and/or the Company that it warrants
termination on the first occurrence. The handbook lists such
conduct as “Assaulting, fighting, threatening, horseplay, hostile
contact, or any other act which could affect the well being of
any associate.” In reviewing the occurrence involving Munsie
and Scott, Barclay found seven comparable situations where
employees were discharged for similar threatening, profane, or
abusive conduct on the first occurrence. Respondent submitted
the documentation showing the termination of employees Bo-
zak and Smith for using “f–k” and “motherf–ker” to supervi-
sors. Employee Gryzmala was terminated for using profanity
and for threatening his manager. Employee Hester was termi-
nated for one incident of directing profanity to another em-
ployee on the internal computer system. Employees’ McGhee
and Micheli were both terminated for a single incident when
they used profanity and made threats against each other. Bar-
clay testified that after review of the information concerning
Munsie’s conduct, and review of the comparables to ensure
consistency and uniformity in the application of K-Mart’s poli-
cies, he approved Munsie’s discharge.
C. The Discharge of Ricky D. Brock
General Counsel alleges that Brock was discharged on or
about May 25, 2001, because he joined or assisted the Union
and to discourage employees from engaging in these and other
concerted activities. Respondent alleges that Brock was termi-
nated for assaultive behavior, specifically grabbing another
employee’s shirt collar and threatening the employee. In its
discharge of Brock, Respondent relies on the same employee
handbook section identifying conduct that warrants termination
on the first occurrence.
1. Evidence presented by General Counsel
Brock began working for Respondent in February 1991. At
the time of his discharge in May 2001, Brock worked as a third
shift employee in the put-away department and was supervised
by Dale Tritten. Prior to the May 1999 and December 2000
elections, he passed out union literature at the front gate and in
the warehouse. During both campaigns in 1999 and 2000, he
regularly wore union hats, buttons, and tee shirts. He also testi-
fied at the unfair labor practice trial in September 1999. After
the December 2000 election, he was appointed as a member of
the Union’s bargaining committee. The initial notification of
his appointment was given to Respondent by letter dated Feb-
ruary 6, 2001. The Union later requested that Brock be excused
from work for his entire shift for March 6, 7, 8, 9, 23, and 24 as
well as May 30 and 31 for official union business. Brock re-
called that he had a continuing dispute with Human Resources
Manager Kolb about whether he could take off the midnight
shift before or after the union meetings that occurred during
day shift. The dispute was never resolved prior to his dis-
charge.
At about 12:30 a.m. on May 17, Brock was working in the
staging area transporting freight from receiving to the case-
back department. Brock observed employee Steve Spencer
sweeping the floor. Spencer’s responsibility however, was to
sort freight for Brock and other employees to pick up and
transport to the various areas of the warehouse. When Brock
saw Spencer, he asked why he was not sorting freight and com-
plained that Brock and the other two pallet riders were riding
around with nothing to do. Spencer told Brock that if he was
not happy with his work, he could speak with Spencer’s super-
visor. Brock left Spencer and went into the cafeteria to look for
Tritten. When Brock did not find Tritten in either the cafeteria
or the shipping area, he walked back toward the receiving area.
On his way, Spencer pulled his hi-lo between parked freight
and positioned the hi-lo in front of Brock to block his path.
Spencer leaned down from his hi-lo into Brock’s face and as-
serted that Brock was just angry because his wife had taken all
his money. Brock knew what Spencer meant by the remark as
his divorce had been finalized the previous day. Brock re-
sponded that this was no place for his personal life and he
walked through the freight to get to the main aisle and to call
his supervisor. As he was speaking to Spencer, Brock raised
his hand and grabbed the side of Spencer’s hi-lo. While Brock
initially testified that he did not touch or grab Spencer, he later
admitted that he had touched Spencer’s collar to “hold him
back.” When Brock got to the receiving office, he reported the
incident to Receiving Supervisor Kurt Ahlighan before paging
Tritten on the intercom. When he was able to speak with Trit-
ten personally, he told him what Spencer had said. Tritten
called a conference to speak with both Spencer and Brock.
During the meeting, both Brock and Spencer gave their own
account of what occurred and they were directed to prepare a
written account of the incident. In his written statement, Brock
asserted that Spencer had embellished his side of the story.
Spencer had complained that Brock threatened him and
grabbed his shirt collar. Brock continued to work all of his
scheduled workdays after May 17 and until May 25. At the
completion of his shift on May 25, Human Resources Director
Kolb told Brock that he was terminated for violence in the work
place.
Employee Amy Deroo described an incident in August 2001
that occurred between her and fellow employee Jason Shudell.
As she was descending a flight of stairs at Respondent’s facil-
ity, she stopped to talk with employee Larry Sokol, who was
standing at a lower level of the stairs. While her attention was
focused on Sokol, Shudell told her to “shut up” and forcefully
pushed the left side of her head toward the wall, knocking her
off balance. She was able to grab the wall and regain her bal-
ance. When she responsively swatted at Shudell, he drew his
fists and asked her if she “wanted her ass kicked.” Deroo
backed away from him and asked if he liked his job because
workplace violence was not tolerated. In a statement given to
Respondent, Sokol verified that he had not seen Shudell strike
Deroo, however he heard loud talking. He also heard Deroo
questioning Shudell as to whether he wanted to lose his job.
After the incident, Deroo filed a written report and spoke
with her immediate supervisor, Dale Tritten, as well as Human
Resources Manager Tom Hunt, human resources specialist,
Cheryl Greenhalge, and General Manager Duane Baker.
Shudell was not terminated for the physical assault and threat to
Deroo. Within a few weeks of the incident, Shudell was termi-
nated for an unrelated reason. Although he was terminated for
exceeding his allowed number of time off hours, he was rein-
stated after a peer review hearing. When Shudell returned to

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 708
the facility after a 6-weeks absence, Respondent assigned
Deroo to work near Shudell. Although Deroo complained to
Tritten and to Regional Human Resources Director Jack Bar-
clay, Respondent has continued to assign Deroo and Shudell to
the same shift and in the same department.
2. Evidence presented by Respondent
Supervisor Tritten testified that on May 17, Spencer came to
him and reported that Brock had grabbed him by the collar and
threatened to “beat his ass.” Tritten further testified that when
he spoke with Spencer and Brock, Brock admitted that he had
grabbed Spencer’s collar and made a verbal threat to him. Re-
ceiving Manager Ahlijian also testified that when he had spo-
ken to Brock on the evening of May 17, Brock admitted that he
had grabbed Spencer’s collar during the argument. Asset Pro-
tection Supervisor Wasilewski recalled that when Brock met
with Kolb and he on May 17, Brock was questioned as to
whether he had put his hand on Spencer. Wasilewski recalled
that while Brock did not admit that he grabbed Spencer’s collar,
he acknowledged that he “rearranged” Spencer’s collar. Brock
testified that while he had touched Spencer’s shirt, he had not
admitted to Tritten, Ahlighan, Greenhalge, or Wasilewski that
he had touched Spencer’s shirt. Brock asserted that if these
individuals had testified that he had, they were conspiring
against him.
Respondent asserts that Sokol’s statement indicated that he
did not see anything and did not hear anyone speak except Amy
Deroo. Because there were no corroborating witnesses and
because Shudell denied Deroo’s accusations, he was not termi-
nated. Respondent distinguishes this situation from that of
Brock’s termination because Shudell denied the accusation and
Brock did not. Regional Human Resources Director for Logis-
tics Barclay testified that he did not view Spencer’s comments
about Brock’s wife as mitigating factors in Brock’s conduct.
Barclay provided an example of a situation in which Respon-
dent terminated an employee for conduct similar to Brock. On
August 29, 2001, Respondent terminated employee Ronald
Whitecraft for striking fellow employee Terry Heller in the
mouth with his elbow. Prior to Whitecraft’s striking Heller,
Heller had joked about Whitecraft’s wife. Whitecraft admitted
that he struck Heller and that the blow brought blood. Barclay
recalled that Heller had received a notice of correction but had
not been terminated.
D. The Discharge of Kevin Barthold
General Counsel asserts that Respondent terminated Bar-
thold on January 31, 2001, because he joined or assisted the
Union and to discourage employees from engaging in these
activities and other concerted activities. Paragraph 12 of the
complaint also alleges that on or about December 2000, Super-
visor Donald Kullick told Barthold to keep his eyes open dur-
ing Respondent’s meetings with its employees and note the
identity of employees who were outspoken in support of the
Union. The complaint further alleges that Kullich told Barthold
to identify employees who supported the Union and to find
reasons Respondent could terminate them. Respondent denies
the statements attributed to Kullich and asserts that Barthold
was laid off as a result of a nationwide reduction and reorgani-
zation of the loss prevention staff throughout Respondent’s
distribution centers.
1. Undisputed facts
Barthold was hired at the Canton DC on October 6, 1997, as
an hourly loss prevention associate (LPA), a position excluded
from the bargaining unit. At the time of his layoff, Barthold
worked on first shift in the loss prevention department. Don
Kullich served as loss prevention manager and Tom Jasdrewski
functioned as loss prevention supervisor on second shift. In
addition to Barthold, there were four other hourly LPA’s.
While Ray Ferioli and James Wasko worked on the first shift
with Barthold, James Honsinger and Jerry Wasilewski worked
on second and third shifts, respectively.
In early December 2000, Barthold told Kullich that he had
taken a second job at Ameritech Corporation requiring 40 hours
each week. Prior to this time, Barthold’s first shift schedule
required that he work from 7 a.m. until 3:30 p.m. In order to
accommodate Barthold’s work schedule at Ameritech, Kullich
agreed that beginning December 11, Barthold could work at K-
Mart from 4 p.m. to 8 p.m. Monday through Friday and devote
his day shift hours for his work at Ameritech. Kullich also
agreed that Barthold could work at K-Mart on Saturdays or
Sundays to insure 30 hours a week and the opportunity to retain
his benefits and vacation days. Prior to Kullich’s working out
this arrangement with Barthold, all of the employees in the LP
Department had shared the overtime work on Saturdays. In
order for Barthold to get his requisite hours, Kullich gave him
all of the Saturday overtime. Prior to the layoff on January 31,
Kullich told Barthold that he had to make a decision and choose
between K-Mart and Ameritech. Barthold agreed that he would
do so. Barthold acknowledged that he submitted a request to
take his entire 2 weeks of vacation beginning February 1, 2001,
as soon as he became eligible for the vacation. He also admit-
ted that he had “possibly” considered taking all 80 hours off
and then resigning at that time. Barthold further confirmed that
he “might have” told other employees that he would resign as
soon as he obtained and used all 80 hours of vacation. On
January 31, 2001, Kullich met individually with the employees
in the LP department. When Kullich met with Barthold he told
him that he was laid off and the entire LP department had been
eliminated.
2. Evidence presented by General Counsel
Barthold testified even though the loss prevention employees
were not eligible to vote in the 2000 election, they were in-
cluded with other employees in Respondent’s preelection em-
ployee meetings. Barthold testified that Kullich told him to
“keep an eye on the people at the meetings” and “note down the
people strongly for the Union” and report back to him. Kullich
told Barthold that Respondent wanted to know who these peo-
ple were because “they wanted to eliminate the people that
were pro-union.”
Barthold recalled that during Respondent’s meetings with
employees prior to the election, union issues and the election
process were discussed and employees were allowed to ask
questions. Barthold testified that during a meeting in Decem-
ber, he had raised a question about why 55 employees had not
K-MART CORP. 709
received a $.50 wage increase after the first election in 1999.
Corporate attorney Anthony Byergo, who was conducting the
meeting, was not able to answer Barthold’s question. He told
Barthold that he would check into it.
Prior to his termination, Barthold worked in the annex ware-
house, where the number of employees totaled approximately
35 to 100. Wearing tee shirts and buttons identified employees
who supported the Union. Barthold spoke and worked with
these employees every day. In December 2000, Kullich asked
Barthold to meet with him in his office in the main building.
Kullich asked him if he were a union supporter. Barthold testi-
fied that he told Kullich that while he sympathized with the
supporters, he was not a union supporter because he could not
vote in the election. He explained that he sympathized because
of what had happened with a prior wage increase. Barthold
testified that Kullich accused him of walking around the floor
supporting the Union. Barthold assured Kullich that he had
nothing to worry about, again asserting that he was not eligible
to vote. Kullich stated that he would let management know that
he had spoken with Barthold and would reassure management
that Barthold did not support the Union.
Barthold testified that after his layoff, he went back to the
facility more than once and spoke with Kullich more than once.
When he spoke with Kullich, they discussed how his new job
was going and what was happening in the warehouse. Barthold
described Kullich as a good friend. He denied however, that he
was ever offered employment in the warehouse.
3. Evidence presented by Respondent
In January 2001, Respondent began the nationwide elimina-
tion of the LPA position and reorganized the LP department
structure throughout the 18 distribution centers. The proposal
was to lay off all hourly LPA’s and expand the supervisory
function so that a supervisor would cover each DC shift in op-
eration. Respondent’s plan included the layoff of at least four
to five hourly LPA’s at each of the 18 distribution centers. In
late January 2001, this departmental organization was imple-
mented. Brian King, regional director for logistics, loss pre-
vention/asset, made the decision as to which of the five LPA’s
would be laid off and who would be selected for the three su-
pervisory positions at the Canton DC. King requested input
from Kullich as to which LPA’s to retain. Kullich did not rec-
ommend against retaining any LPA’s. With respect to Bar-
thold, Kullich advised that he “does a great job but he has ac-
cepted a job with Ameritech.” King made the decision to retain
Tom Jasdrewski as a supervisor. He selected Ray Ferioli and
Jerry Wasilewski for the two remaining supervisory positions.
Both individuals had more seniority than Barthold. Barthold
also had less seniority than Jim Honsinger and Jim Wasko who
were laid off with Barthold.
Barthold admitted that when Kullich met with him on Janu-
ary 31 to tell him of the layoff, he told Barthold that he would
do what he could to get him rehired and back in the warehouse.
Barthold went on to tell Kullich and Kolb that the layoff was
“okay” as he had a job. He told them that he was “just worried
about Jim Honsinger and Jim Wasko.”
Kullich testified that the day following the layoff of the three
LPA’s, he found out that the Canton DC was hiring for ware-
house jobs. He recalled that he went immediately to General
Manager Greg Caccavale and asked if he could offer a job to
the three hourly LPA’s who had been laid off. When Cac-
cavale authorized him to do so, he began trying to reach Hon-
singer, Wasko, and Barthold. He was able to contact Honsinger
and Wasko who both accepted the positions in the warehouse.
When he was not able to reach Barthold by telephone he as-
sumed that he was “obviously working” for Ameritech. Later
that same day however, Barthold drove into the K-Mart parking
lot in an Ameritech van. Kullich testified that he told Barthold
that he could bring him back to a warehouse job, although he
could not guarantee the shift or job. Kullich testified that Bar-
thold declined the offer but indicated that he was pleased that
Kullich had been able to take care of Wasko and Honsinger.
James Wasko testified that he came back to talk with Kullich
about a job in the warehouse the day after his layoff. As he and
Honsinger were walking out from their meeting with Kullich,
he saw Barthold drive into the parking lot in the Ameritech van.
Wasko told Barthold that he was being recalled to a warehouse
job and suggested that Barthold go in and speak with Kullich
about getting recalled. Barthold told Wasko, “Well, I’ve al-
ready got a job. I don’t want to come back.” Ray Ferioli testi-
fied that on the day following his layoff he overheard Kullich
offer Barthold a job in the warehouse. Ferioli recalled that
Barthold replied, “No, I’m all set . . . I’ve got Ameritech.”
E. Arnold Gregory’s Discipline and Alleged Counseling not to
Talk with Employees
The complaint alleges that on or about March 28, 2001, Ar-
nold Gregory was denied the right to union representation dur-
ing an interview. General Counsel further alleges that despite
Gregory’s request for representation, Respondent’s representa-
tives nevertheless conducted an interview and issued Gregory
an informal written predisciplinary coaching. Complaint para-
graph 25 alleges that Respondent gave both the March 28 dis-
cipline, as well as an April 30 written predisciplinary counsel-
ing, because Gregory gave testimony in a prior National Labor
Relations Board hearing in 1999. At trial, General Counsel
claimed that Respondent also disciplined Gregory because he
participated in a peer review panel on April 25, 2001. The peer
review panel is a process set up by Respondent where a panel
of employees hear another employee’s grievance and make a
finding as to whether the employee was treated improperly
under existing employee rules. Respondent opposed this claim,
asserting that such allegation was not a part of the complaint.
General Counsel argued that such evidence was presented as
evidence of animus toward Gregory. Respondent asserts that
Gregory was not disciplined but only received two mild
“coachings” in March and April 2001 for failing to meet pro-
duction standards.
Gregory worked in the receiving department on the second
shift. From January to August 2001, Christopher Happner was
Gregory’s immediate supervisor on second shift. John Sugden
became the receiving manager for second shift in March 2001.
Sugden reported to Roger Hudson, receiving operations man-
ager, who began his employment at the Canton DC in Decem-
ber 2000. Gregory was on the Union’s organizing committee
prior to the 2000 election and he became an alternate union

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 710
committeeman in March 2001. He testified at the unfair labor
practice and objections hearing in Cases 7–CA–42082 and 7–
RC–21537 in September 1999.
1. Evidence presented by Respondent
The Canton DC has a production standard that requires
unloaders to unload an average of 210 cartons per hour. When
Roger Hudson became the operations manager at the Canton
DC in December 2000, the facility ranked last in unloading
production among all of the DC’s. Hudson and General Man-
ager Greg Caccavale set the Canton standard at 210 cartons per
hour based on previous standards, however below the average
of other distribution centers. Hudson testified that by compari-
son, other DC’s were averaging between 225 and 275 units per
hour.
Unloading trailers is the primary job in the receiving depart-
ment. Employees are usually assigned to a set of docks in
teams of two or three and are rotated by teams and dock loca-
tion on a weekly basis. Supervisors designate which truck pulls
into a specific dock. Trailers are unloaded by priority and
based on the need for the merchandise and the length of time
the trailer has been at the DC. Employees who unload trailers
complete a performance report or “Pro Rep” each day detailing
the number of units or cartons unloaded from each trailer.
On February 19, 2001, Canton general manager, Greg Cac-
cavale, issued a memorandum regarding discipline for lack of
productivity in the receiving department. The memorandum
stated that “Normally at least two coachings should precede any
formal discipline.” On March 27, 2001, Sugden received a
production summary that showed that Arnold Gregory, Terry
Lambert, and Alonzo Hills had failed to meet production stan-
dards over the previous 2 weeks, March 17 and 24. On receiv-
ing this information, Sugden prepared an “Associate SKU” for
each of these employees.
“Associate SKU’s” are documents that memorialize a verbal
coaching or work floor discussion. These documents remain in
the receiving department and are neither forwarded to the hu-
man resources department nor placed in the individual em-
ployee’s personnel file. Hudson confirmed that the SKU’s are
kept in a binder in the manager’s office. Hudson further testi-
fied that an SKU is not disciplinary in nature and could either
document a positive or negative verbal discussion. Each of the
“SKU’s” given to Gregory, Hills, and Lambert informed the
employees that if there was no improvement in their produc-
tion, they would receive an “Associate Interview,” which is a
more formal documentation prior to formal discipline. Re-
spondent’s employee handbook specifies that a “Notice of Cor-
rection” is considered disciplinary action and such documenta-
tion is placed in the employee’s file. The document remains in
the employee’s file for 12 months from the date of occurrence.
Any employee receiving three notices of correction, regardless
of reason, within a consecutive 12-month period will be termi-
nated. The handbook contains no reference to “SKU’s” or
“Associate Interview’s.” The handbook states:

Each associate is expected to achieve and maintain satisfac-
tory standards of performance with respect to the quality and
quantity of work produced. If an associate fails to meet these
requirements, management will review deficient areas with
the concerned associate and provide any indicated assistance
in order to help the associate achieve the required standard. If
the associate’s performance remains unacceptable, additional
corrective action may be taken leading up to and including
termination of employment.

On March 28, 2001, Happner and Sugden met with Gregory
to present him with the SKU. When Gregory requested a wit-
ness, Sugden denied the request. Sugden informed Gregory
that his production was low and he read aloud the information
that was contained in the SKU. Sugden and Hudson did not
grant Gregory’s request for a witness or representative because
the meeting was not disciplinary and no investigation took
place. The information on which the SKU was prepared had
been the information provided by Gregory in his own self-
reported production report.
On April 24, 2001, Sugden received the weekly production
summary and again saw that Gregory’s production for the prior
week ending April 21 was below standard, averaging only 142
cartons per hour. Sugden prepared an associate interview form
and dated it for Wednesday, April 25, the date when he planned
to speak with Gregory about his production. Sugden testified
that he predated the form because he had to submit it for review
by human resources. The review took longer than he had ex-
pected and he was not able to give the form to Gregory until
April 30. When Sugden met with Gregory on April 30, Greg-
ory requested a union representative. Gregory was allowed to
choose employee Tom Demmers as a representative to attend
the meeting.
2. General Counsel’s evidence on Gregory’s
discipline
When Gregory was called into Sugden’s office on March 28,
he saw that Chris Happner was also present. Seeing both Sug-
den and Happner, Gregory asked for a witness. When Sugden
denied his request, Gregory stated that under “Weingarten” that
if he felt that he was being disciplined for any reason, he could
have a witness. Gregory questioned why his other team mem-
bers Lambert and Javier were not present in the same meeting.
Gregory also asserted that he felt that his team was getting “bad
loads.”
When Gregory was called into the office again on April 30,
2001, Hudson asked Gregory if he would like to be retrained.
Initially Gregory refused. After some further discussion with
Demers, Gregory came back and agreed to the retraining.
Gregory voiced in the meeting that he felt that he was being
harassed and he wanted to file harassment charges. Hudson
told him that he didn’t know anything about any harassment but
explained that Gregory could file charges with human re-
sources.
Gregory testified that the figures that he included in his daily
production report were obtained from the checker. Gregory
maintained that the checker did not maintain totals for each
individual loader, but simply divided the total number of prod-
uct unloaded by the number of unloaders. Gregory also ex-
plained that not all trucks are the same for unloading and that
some kinds of merchandise took much longer to unload.
K-MART CORP. 711
F. Happner’s Admonition not to Talk About the Union
Gregory testified that he spoke with Supervisor Chris Happ-
ner about the Union on several occasions during the 2 months
preceding the 2000 election. Gregory recalled that Happner
had told him that he could not talk about the Union to the peo-
ple with whom he worked. Gregory replied that he could talk
about anything that he wanted as long as he was doing his job.
Gregory testified that he had never been told about any rule
prohibiting talking while working. Gregory has heard other
employees talk about such nonwork related subjects as sports
and their personal lives while they worked. Gregory testified
that not only have supervisors including Happner, overheard
such conversations, they have also participated as well. Em-
ployee Jason Washington testified that on one occasion he
overheard Happner tell Gregory that he could not talk about the
Union. At the time, Washington thought that Happner may
have been joking, but he recalled that Gregory had become
upset and responded that it was his right to talk.
Happner denied that he ever told Gregory that he could not
talk about the Union to the people with whom he worked dur-
ing working hours. Happner recalls that he counseled with
Gregory about standing around and talking instead of working.
Happner also recalled that “most” of the other associates had
complained to him about having to work with Gregory because
he spent more time talking than working.
G. Respondent’s Failure to Grant an Across-the-Board
Wage Increase
Complaint paragraphs 27 and 28 allege that Respondent
failed and refused to bargain with the Union concerning its
failure to grant an annual across-the-board wage increase for
unit employees in 2001 and its failure to pay such increase.
General Counsel and Respondent jointly stipulated that no
across-the-board wage increase was given to the Canton DC
employees in 200l. They further stipulated the following wage
increases were granted in previous years to employees with 2 or
more years of service as of the date of the increase: 50 cents in
June 2000, 50 cents in June 1999, 35 cents in June 1998, 25
cents in June 1997, 35 cents in May 1995, 38 cents in May
1994, 25 cents in May 1993, and 30 cents in May 1992. While
no wage increase was given in 1996, employees received a
lump sum payment of $400.
Respondent acknowledges that there is an entry level wage
progression that is applicable to new hires. At each DC, there
is an entry wage rate, a 6-month wage rate, a 12-month wage
rate, and a 24-month wage rate, with variances depending on
the position held by the employee. Respondent concedes that
the entry level wage progression is “automatic” and “standard-
ized” for purposes of new hires. Respondent asserts that there
is also a second type of wage increase, which is a discretionary
wage increase granted to employees who have at least 2 years
of service. Divisional counsel for labor relations, Anthony
Byergo, testified that these wage increases are not automatic,
standardized in the amount or timing, and are not announced in
advance. Byergo testified that Respondent’s employees are
never informed that there will always be a raise every year.
Byergo testified that Respondent’s practice with its union-
ized facilities has been not to grant a general wage increase
following certification of a collective-bargaining representative.
Respondent submitted a distribution center general warehouse
wage history to show that annual wage increases were not
granted to employees at its Manteno, Illinois facility in 1998
because Respondent was engaged in collective bargaining with
the Teamsters. In 1999, employees at the Morrisville DC did
not receive a general increase because Respondent and the
UAW International were engaged in bargaining for an initial
collective-bargaining agreement. Employees at the Warren,
Ohio DC did not receive a wage increase in 1999 as Respon-
dent and the UAW International were involved in bargaining
for an initial collective-bargaining agreement.
H. Respondent’s Layoff and Consolidation of Shifts
Complaint paragraph 29 alleges that about October 1 and
December 18 and 27, 2001, January 7 and 24, 2002, Respon-
dent, at its Canton distribution center, bypassed the Union and
dealt directly with its employees in the unit by soliciting volun-
teers for a 1-week layoff. The complaint further alleges in
paragraph 30 that about October 22, 2001, January 1 and Feb-
ruary 2002, Respondent laid off employees in the unit at the
Canton DC. Complaint paragraph 31 further alleges that about
January 7, 2002, Respondent eliminated the afternoon and mid-
night shifts for unit employees at the Canton DC, consolidating
all operations to the day shift. General Counsel alleges that
these unilateral actions were violations of Section 8(a)(5) and
(1) of the Act.
1. Evidence presented by General Counsel
International Representative Al Przydial testified that during
the December 2001 bargaining session, Respondent’s spokes-
man, Terry Lardakis, told the Union that Respondent needed to
make changes in hours, shifts, and days of work because of the
current state of the company. Lardakis told union representa-
tives that Respondent wanted to have shift meetings with em-
ployees to discuss the need for flexibility in these kinds of
changes. Przydial testified that he opposed such meetings. By
letter dated December 13, 2001, Przydial reiterated its desire to
negotiate enumerated terms and conditions of employment.
The Union also stated that it did not agree to have the issue of
changes in work hours or shifts discussed in the workplace with
members. The Union went on to state that the membership has
elected a barraging committee to represent them for these pur-
poses and the Union was willing to discuss these issues at the
bargaining table.
During the Union’s Christmas holiday, Przydial called nego-
tiating committeeman, Bob Sullivan. During the conversation,
Przydial learned that Respondent was seeking 136 volunteers
for a lay-off scheduled for January. Przydial contended that as
of that date, no representative of Respondent had ever advised
him that there was going to be a layoff in January 2002. Local
President Bruno Duchaine also testified that he had never re-
ceived any notice or opportunity to bargain about the layoff
prior to its commencement.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712
2. Respondent’s evidence
a. October layoff
The Canton DC associate handbook provides authority for
management to permit some or all associates to leave early or
not come in for a day or more when there is not enough work
for all personnel. Respondent asserts that it has a historical
practice of implementing “codes” or voluntary layoff’s in Janu-
ary of each year. Director of Labor Relations Henry Bechard
testified that voluntary layoffs normally take place at the end of
the Christmas season or the end of December. There had been
voluntary layoffs in January 1999 and in early 2000. Between
October 22–26, 2001, 79 associates from nine different depart-
ments were approved for a voluntary layoff. Respondent con-
tends that General Counsel presented no evidence as to whether
there was prior notice to the Union or whether the parties col-
lectively bargained concerning this layoff.
b. January layoff
After the October voluntary layoff, the volume of freight re-
mained low. Around December 10, 2001, employees were
issued a survey entitled “Lack of Work Time Off Request Can-
ton K-Mart Distribution Center,” which they were to return by
December 13, 2001. Employees were informed that the pur-
pose of the survey was to determine employees’ interest in
taking a voluntary layoff during the period between Wednes-
day, January 2, through Thursday, January 31, 2002. Although
Respondent was seeking 146 employees for the voluntary time
off, only 141 employees indicated an interest in doing so. All
141 employees signed an “Associate Interview Record” form
on December 20, 2001, agreeing to a voluntary layoff to begin
on January 2 and ending on January 31, 2002.
The Canton DC received a new volume forecast on Decem-
ber 19, 2001, necessitating the reduction of 100 additional em-
ployees. Based on the new forecasts, Respondent held meet-
ings on December 27 with those employees who had not al-
ready volunteered for the January layoff. Employees were
informed of the need for additional employees for the voluntary
layoff and they were asked to return their voluntary time off
forms by December 28 for a second layoff period beginning on
January 7.
Respondent asserts that because of the significant reductions
in staff and workload, the normal three-shift operation had to be
temporarily condensed into one shift. With the reduction of
248 employees, the entire distribution center had only approxi-
mately 238 employees remaining. When the voluntary time off
was extended in February 2002, Respondent used the same
process that was used to implement the January VTO’s. By
mid-February, all of the employees had returned to work from
the voluntary layoff and the Canton DC returned to its former
three-shift operation.
Respondent asserts that no employees were laid off involun-
tarily. Bargaining unit employees David Andrews, John Wil-
liams, and Katherine Javor confirmed that Respondent had
previously utilized voluntary layoffs during January in previous
years. Administrative Operations Manager Mark Harrison,
testified that he had spoken with John Stout, a member of the
union bargaining committee, on December 27 concerning the
anticipated layoff. Assistant General Manager David Mucciar-
one testified that on December 27, he met with union bargain-
ing committee member Bob Sullivan to discuss the voluntary
layoff process. Respondent asserts that neither Sullivan nor
Williams opposed the layoff and expressed an understanding
for the need for the layoff.
Mucciarone testified that as of November 27, the forecasts
for weighted carton volume for the Canton DC was 3.8 million,
a reduction of almost a million from the January 2001 volume.
On December 19, the January forecast for weighted volume had
dropped to 2,126,509. Merchandise was not coming into the
Canton DC because of Respondent’s ever-increasing cash flow
problems throughout Respondent’s corporate structure in late
2001 and early 2002. Respondent’s Newnan, Georgia DC, also
utilized voluntary layoff’s during this same period and Respon-
dent’s Sparks, Nevada DC, had a shift consolidation.
Director of Labor Relations Henry Bechard testified that the
union’s bargaining committee was advised in November 2001
that layoffs would be necessary because of the reduction in
work. Bechard also testified that union committee members
John Williams, John Stout, Bob Sullivan, Ed Wolverton, Dan
Wince, and Tom Demmers were told prior to the December 12,
2001 bargaining session that layoffs would occur. Union bar-
gaining committee member, John Williams, confirmed that
Respondent’s chief negotiator and the DC general manager,
Duane Baker, mentioned the survey during negotiations. Wil-
liams testified that while a layoff was implied, Respondent had
“already mentioned that there was going to be a reduction”
because of the workload. Williams recalled that during the
December 12 bargaining session, union committee member
Wince asked about how the voluntary layoffs would affect
insurance and benefits.
Bechard testified that the Respondent was never told during
the December 12 bargaining session that Respondent was only
to talk with Union Representatives Przydial and Duchaine
about the issue of layoff. By letter dated December 12, 2001,
International Representative Przydial informed Respondent that
the Union wished to negotiate wages, hours, benefits, and all
terms and conditions of employment. The letter contained a
listing of the various conditions of employment that would fall
into this request. Layoffs were included in the listing. The
letter also contained the following language:

As a reminder, the Union does not agree to have the issue of
changes in work hours or shifts being discussed in the work-
place with our members. The membership has elected a bar-
gaining committee to represent them for these purposes. We
are willing to discuss these issues at the bargaining table. If
the Company chooses to ignore our request, we will pursue
this issue through another forum.

Union Representative Przydial acknowledged that the Union
canceled the bargaining sessions that were set for December 13,
19, and 20. Przydial recalled that between Christmas and New
Year’s, he called bargaining committee member, Sullivan.
Sullivan told him that a layoff was scheduled to begin in Janu-
ary and would last for approximately 30 days. When Przydial
returned to work after the Christmas vacation and around Janu-
K-MART CORP. 713
ary 3 or 4, he contacted Respondent’s chief negotiator, Terry
Lardakis, to inquire about the specifics of the layoff.
I. Respondent’s Implementation of a New Maintenance Form
Complaint paragraph 28 alleges that on or about November
2001, Respondent began requiring its maintenance employees
at the Canton DC to complete a form detailing their activities,
including breaks and lunch, from the start to the end of their
shift. The form, which was introduced as General Counsel
Exhibit 32, is a sheet containing the employee’s name, a space
for a date, and 19 blank lines. General Counsel alleges that
Respondent instituted this form without notice to or bargaining
with the Union.
It has been the practice of maintenance employees to use
equipment work orders to identify the quantity, part number,
number of hours worked, and name of the mechanic for those
equipment parts that required replacement or repair. At the end
of November 2001, maintenance employee, Stephen Lenart,
was informed that he and other maintenance employees were
required to complete the form that was identified as General
Counsel Exhibit 32. The forms were put in a folder for each
employee and employees were to fill them out by the end of the
day.
First Shift Maintenance Supervisor Patrick Ertman testified
that the new form was given to employees to write down any
problems with repairs and to record what the employee had
done for the day. He testified that “basically the same” form
had been used in the past to record any problems that occurred
on jobs. For a time, the department “did away” with the former
form and the November form was a return to it. He estimated
that there might have been a year or 2-year gap in the use of
this form. Ertman also testified that the information collected
on the form was no different than what employees provide
verbally to their supervisor.
Lenart testified that while he was told to fill out this form
every day, he was never told what to put on the form. Lenart
submitted his form each day when he began his shift and he
listed his duties as “Repair PMs.” He estimated that it had
taken him approximately 8 seconds to fill out the form in this
same way each day. In April 2002, maintenance employees
were told they no longer had to fill out the “new” forms.
III. ANALYSIS AND CONCLUSIONS
A. The Discharges of Brock, Munsie, and Barthold
General Counsel alleges that Respondent committed various
violations of Section 8(a)(1), (3) of the Act through its actions
toward Barthold, Munsie, and Brock. In order to prevail, Gen-
eral Counsel has the initial burden of establishing a prima facie
case sufficient to support an inference that union or other activ-
ity, which is protected by the Act, was a motivating factor in
Respondent’s action alleged to constitute discrimination in
violation of the Act. Once General Counsel meets this burden,
the burden then shifts to Respondent to demonstrate that the
alleged discriminatory action would have taken place even in
the absence of the protected activity. If Respondent is able to
present such evidence, General Counsel is further required to
rebut the employer’s asserted defense by demonstrating that the
alleged discrimination would not have taken placed in the ab-
sence of the employee’s protected activities.3
A prima facie case is made out where the General Counsel
establishes union or protected activity, employer knowledge,
animus, and adverse action taken against those involved or
suspected of involvement which has the effect of encouraging
or discouraging union activity.4 Inferences of animus and dis-
criminatory motivation may be warranted under all the circum-
stances of a case, even without direct evidence. The Board may
infer animus from all of the circumstances.5
1. Munsie’s discharge
General Counsel asserts that Munsie was discharged because
he was very active in the Union and because he asserted em-
ployee rights with respect to location of breaks. I do not find
the evidence sufficient to establish a prima facie case that Re-
spondent discriminatorily discharged Munsie.
On direct examination by counsel for the General Counsel,
Munsie admitted that he played no role in the union organizing
activities. He wore a union button daily prior to the 2000 elec-
tion as well as wearing a union hat “off and on.” He remem-
bered only once when a supervisor said anything to him about
the union button. He recalled that supervisor, Dennis Rons,
made the comment that “those were not nice buttons.” He did
not identify when the statement was made or the circumstances
of Rons having made the statement. Rons was not alleged to be
a supervisor and there was no proof presented as to his supervi-
sory status. Munsie acknowledged that he was one of more
than 200 other employees who wore union buttons and hats
during this same time period. He admitted that he was not un-
usually unique in wearing these items of support.
Munsie testified that when Scott asked him about having
seen the rules, he asserted that the Union had told employees
that Respondent could not enforce new rules. Scott recalled
that Munsie had argued, “Those rules and regulations do not
mean shit because of the Union.” Admittedly, Munsie then
proceeded to raise his voice and curse Scott. Despite Munsie’s
testimony that he was arguing that Respondent could not en-
force any new rules, the evidence reflects that the memorandum
issued on January 31, 2001, was simply a reminder of rules
implemented prior to the Union’s certification and contained in
the employee handbook. While General Counsel argues that
Munsie’s protestation was on behalf of other employees, there
is insufficient evidence to support this argument. By Munsie’s
own testimony, he rejected Scott’s attempt to discuss the re-
minder memorandum with him. There is no evidence that
Munsie was acting on behalf of other employees to protest
implementation of new rules concerning break areas. The evi-
dence demonstrates that rather than protesting the specific
rules, he was protesting and rejecting his supervisor’s authority
to remind him and direct him to the rules that had been posted
and distributed. Thus, the object of his protestation and his

3 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
4 Farmer Bros. Co., 303 NLRB 638, 649 (1991), enfd. 988 F.2d 120
(9th Cir. 1993).
5 Electronic Data Corp., 305 NLRB 219 (1991).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 714
conduct in doing so takes such conduct outside any protected
status.
Accordingly, I do not find that General Counsel has met its
burden of establishing a prima facie showing that Munsie was
terminated because of his union or protected activity. His un-
ion activity was minimal and of the same nature as more than
200 other employees. His behavior toward his supervisor was
unprotected and his discharge was consistent with Respon-
dent’s treatment of other employees engaging in the same or
similar conduct. Thus, even if General Counsel had established
a prima facie showing of discrimination, Respondent has dem-
onstrated that it would have terminated Munsie even in the
absence of any union or protected activity. Based on the above,
I recommend dismissal of the complaint allegations concerning
Munsie.
2. Brock’s discharge
Respondent asserts that while Brock initially denied that he
touched Spencer, he later admitted in testimony that he touched
Spencer’s collar. Respondent contends that given Brock’s lack
of credibility in initially denying assaultive behavior, his denial
of making a threat should also be rejected. Respondent further
asserts that Brock’s termination was for legitimate business
reasons, was consistent with the manner in which K-Mart
treated similar instances of threatening and assaultive behavior,
and was unrelated to any alleged union activity on his part. For
the reasons set forth below, I do not accept Respondent’s prem-
ise and find that the evidence supports that Brock was termi-
nated for his union activity.
It is undisputed that Brock actively supported union repre-
sentation at the Canton DC, as demonstrated by his campaign
activities in 1998, 1999, and 2000. Obviously in recognition of
his strong support, Brock was selected as one of five employees
for the Union’s bargaining committee. Respondent asserts in
its brief that his membership on the committee should be given
little import as no actual bargaining sessions had occurred prior
to the altercation with Spencer. Despite the fact that no ses-
sions had occurred, the Union had requested time off for Brock
to attend union planning meetings for eight separate shifts.
Brock testified without contradiction that there was conflict
with Human Resources Manager Kolb about when he would be
allowed to take this time off. Respondent contends that there
was no suspicious timing involved in the termination as
Brock’s organizing activities occurred prior to the December
2000 election and his termination was not until May 2001. His
time off for the union planning sessions, however, occurred in
March and May 2001. The most recent request from the Union
was made on May 23, requesting Brock’s time off for May 30
and 31.
Respondent asserts that even if General Counsel had estab-
lished a prima facie case, it has demonstrated that Brock would
have been terminated regardless of any alleged protected activ-
ity. Respondent argues that Shudell was not terminated for the
altercation with Deroo because Respondent lacked solid evi-
dence of an assault. Respondent further argues that it has dem-
onstrated that it has taken the same action against other em-
ployees even in the absence of any alleged union activity or
conduct. Based on the overall evidence, I do not find Respon-
dent's argument persuasive.
Respondent asserts that both Munsie’s and Brock’s termina-
tions were pursuant to the K-Mart associate handbook that au-
thorizes termination for a first occurrence for “Assaulting,
fighting, threatening, horseplay, hostile contact or any other act
which would affect the well being of any associate.” Respon-
dent provided examples of three employees who were termi-
nated for profanity and/or threats to supervisors. Two employ-
ees who used profanity and made threats toward each other
were terminated and an employee who used profanity toward
another employee on the internal computer system was termi-
nated. Human Resources Director Barclay testified that Re-
spondent terminated employee Jay Wendell for threatening to
“beat the shit” out of another employee and he found this com-
parable to Respondent’s discharge of Brock. Barclay gave no
additional information however, as to the circumstances in
which Wendell’s threat was made or whether there was any
evidence of provocation by the other employee. Respondent
asserts that its discharge of Whitecraft 3 months after Brock’s
discharge was comparable because Whitecraft struck another
employee who made a comment about Whitecraft’s wife.
Whitecraft’s conduct was distinguishable however, as he admit-
tedly struck the other employee in the mouth with his elbow
and Respondent had an eyewitness who witnessed the assault
and overheard Whitecraft’s profanity toward the employee.
Such circumstances come far closer to the circumstances de-
scribed in the handbook than those involving Brock. Assuming
Brock admitted that he grabbed Spencer’s collar, there was no
eyewitness and Brock denied having made any threat to
Spencer.
Respondent maintains that it consistently terminates those
employees who engage in assault or hostile contact or “any
other act that would affect the well being of any associate” as
specified in the handbook. The circumstances involving Amy
Deroo belie this assertion. Respondent submits that it did not
terminate Shudell because there was no solid evidence of the
assault. Deroo however, appeared to do everything that she
could to bring this matter to the attention of management and to
prevent any possible reoccurrence. Despite the fact that Deroo
obviously felt threatened by Shudell, Respondent not only
failed to terminate him, but has also continued to assign Deroo
and Shudell to the same shift and the same department. Such
actions are patently contradictory to a professed intolerance of
assaultive, hostile or other behavior that would affect the well
being of employees.
Respondent argues that because Brock did not initially admit
that he touched Spencer’s collar, his testimony is not to be
credited. Assuming that Brock grabbed Spencer’s collar and
admitted to Respondent on May 17 that he had done so, the
evidence supports that his discharge was discriminatorily moti-
vated. Inferences of animus and discriminatory motivation may
be warranted under all circumstances of a case, even without
direct evidence. Evidence of suspicious timing and false rea-
sons given in defense support such inferences.6 The overall
evidence does not support that Respondent would have termi-

6 KOFY TV-20, 332 NLRB 771 (2000).
K-MART CORP. 715
nated Brock in the absence of his past union activity and his
most recent participation on the Union’s negotiating committee.
Accordingly, I find that Respondent violated Section 8(a)(1)
and (3) by discharging Ricky D. Brock.
3. The 8(a)(1) allegations attributed to Kullich
Kullich testified that employees openly showed their support
for the Union prior to the election by handing out literature and
wearing union shirts, hats, and buttons. He denied that he was
ever asked to conduct surveillance of union supporters or told
to find reasons to discharge union supporters. He further de-
nied that he was ever instructed to interrogate employees. He
specifically denied that he ever told Barthold to identify em-
ployees who supported the Union or to find reasons to termi-
nate them. He denied that he ever told Barthold to interrogate
employees about their union support.
Based on the overall evidence, I find Kullich to be a more
credible witness than Barthold. I base this on several factors.
For one thing, Barthold’s testimony is simply less than plausi-
ble. He alleges that Kullich wanted him to attend Respondent’s
meetings with employees and identify those employees who
actively supported the Union. These were Respondent meet-
ings that were presumably attended by Respondent’s supervi-
sors and managers. It is difficult to imagine how Barthold, as
an ineligible voter, could determine employees’ union support
any more than Respondent’s representatives at these same
meetings. It is also perplexing that Respondent would pre-
sumably rely on Barthold who had no supervisory authority or
discretion to find reasons to terminate other employees. Bar-
thold gives no basis for why Respondent would have entrusted
him with such a discretionary management function. Finally,
Barthold’s own testimony undercuts his allegations of Kullich’s
8(a)(1) conduct. On cross-examination, Barthold testified that
Kullich had told him more than once that he wanted to elimi-
nate people who supported the Union. When Barthold could
not provide any dates for these statements, he added that he was
sure that Kullich had said this during his meeting with him in
his office where Kullich had accused Barthold of talking about
the Union on the floor. Barthold admitted however that during
General Counsel’s direct examination, he failed to mention this
additional comment in his testimony about the individual meet-
ing. He also admitted that while he had described the meeting
with Kullich in his affidavit given to the Board, he had not
mentioned Kullich’s telling him to find reasons to get rid of
union supporters. Pressed further on cross-examination, Bar-
thold then added that other loss prevention employees had told
him that they too had been instructed to keep an eye on the
strong union supporters in the warehouse and report this back
to management. For the above-described reasons, I find Bar-
thold’s testimony to be self-serving and it appears to be offered
to bolster his allegation of unlawful discharge. Accordingly, I
do not find that the evidence supports that Kullich engaged in
violations of Section 8(a)(1) as alleged in company paragraphs
12 (d) (1), (2), and (3).
4. Barthold’s termination
General Counsel asserts that after the elimination of the loss
prevention department, Barthold was never offered a job in the
warehouse. General Counsel further asserts that despite his job
at Ameritech, Barthold was available to work full-time on the
afternoon or midnight shift after January 31, 2001. In its brief,
the government argues that although employees Wasco and
Honsinger were originally hired into the warehouse after their
layoff, they eventually worked their way back into jobs per-
forming similar duties to their prior positions in the loss pre-
vention department. General Counsel asserts that Respondent
never satisfactorily explained why the loss prevention depart-
ment restructuring was necessary, when in the end, the only
change to emerge from the restructuring was Barthold’s ab-
sence from Respondent’s facility.
The evidence demonstrates that on or about January 31, Re-
spondent promoted two senior loss prevention employees to
supervisor. The remaining three employees, including Bar-
thold, were terminated. While Barthold testified that he was
never offered a position to come back as a warehouse em-
ployee, employee Honsinger testified without contradiction that
Barthold said that he didn’t want to come back and declined to
follow-up on the possible opening in the warehouse depart-
ment. Ray Ferioli testified without contradiction, that he over-
heard Kullich offer Barthold a position to come back and work
in the warehouse. Barthold declined, stating that he was all set
with his job at Ameritech. Neither Ferioli’s nor Honsinger’s
testimony was rebutted by Barthold. I note that at the time of
Ferioli’s testimony, he no longer worked for Respondent. I
find this testimony far more persuasive as he apparently had no
personal interest in the outcome of this matter. With respect to
the offer of reinstatement, I find Kullich, Ferioli and Honsinger
more credible witnesses than Kullich. The evidence supports
that regardless of why Respondent restructured the loss preven-
tion department, Respondent treated Barthold no differently
than the two other similarly situated employees. General
Counsel asserts that even with Barthold’s full-time job at
Ameritech, he could have worked a full-time shift afternoon or
evening shift at Respondent’s Canton DC. Inasmuch as Bar-
thold was only working 4 hours a day at K-Mart prior to Janu-
ary 31, it is not feasible that he would have been able to work
full-time for both employers after January 31, 2001. While he
did not mention it on direct examination, Barthold testified on
cross-examination that after his layoff, he had asked Kullich for
a job in the warehouse. Barthold also admitted that there was
nothing in his sworn affidavit given to the Board about his hav-
ing asked Kullich for a job in the warehouse. Finding Bar-
thold’s testimony to be contradictory and inconsistent, the re-
cord supports that Barthold was offered employment in the
warehouse, but chose to decline. I further find the total record
does not support a prima facie showing of Barthold’s unlawful
discharge. I find no evidence of animus and there is no show-
ing that Barthold was denied a position in the warehouse. Thus,
with the absence of animus and adverse action, there is insuffi-
cient evidence that Barthold’s union or protected activity was a
substantial or motivating factor in his discharge.7 Accordingly,

7 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). Manno
Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 716
I shall recommend the dismissal of those complaint paragraphs
relating to the discharge of Barthold.
B. Allegations Relating to Arnold Gregory
There are several issues involving Arnold Gregory. The is-
sues that are raised in the pleadings and at trial are:

1. Whether prior to the December 2000 election,
Happner told Gregory that he could not talk with other
employees about the Union while he was working.
2. Whether Respondent unlawfully denied Union rep-
resentation to Gregory on March 28 and conducted the
meeting without benefit of representation.
3. Whether Respondent issued a March 28 Associate
SKU and an April 30 Associate Interview to Gregory be-
cause he gave testimony in Board proceedings and to dis-
courage employees from engaging in these and other pro-
tected activities.
4. Whether Respondent issued the April 30 Associate
Interview because he participated in a peer review panel
on April 25, 2001.

1. Happner’s restriction on talking about the Union
Happner not only denied making the alleged statement to
Gregory about the Union, but he denied that he had ever heard
Gregory talking about the Union on work time. He acknowl-
edged however, that he had counseled Gregory about standing
around and talking instead of working. Happner described
Gregory as an employee who generated complaints from other
employees because he spent more time talking than working.
Happner also admitted that Gregory was very vocal about the
Union during daily start-up meetings and raising questions
about various matters. I find Happner to be a credible witness.
Based on the overall evidence, and considering the demeanor of
both Gregory and Happner, it is likely that Gregory was in fact,
an employee who enjoyed talking more than working. I credit
Happner’s testimony that he received complaints from other
employees who did not want to work with Gregory because of
his proclivity for talking. Taking this analysis one step further,
it is also very likely that at that particular point in time, Gregory
was devoting a good deal of his “talking time” to discussions of
the Union. Whether Happner actually told Gregory not to talk
about the Union or whether Gregory and Washington simply
understood his comment to refer to their Union talk, the effect
was the same. While Happner may have simply been trying to
get Gregory to actually work instead of talking, his comments
to Gregory resulted in a restriction of his talking about the Un-
ion. Because Gregory was very likely talking about the Union,
the prohibition applied only to the Union. Thus, Happner’s
prohibition was violative of Section 8(a)(1) of the Act. Energy
One Inc., 306 NLRB 800, 806 (1992); Earthgrains Co., 336
NLRB 1119 (2001).
2. The denial of union representation
Under the Court’s ruling in NLRB v. Weingarten, 420 U.S.
251 (1975), an employee has a Section 7 right to union repre-
sentation in situations in which the employee reasonably be-
lieves will result in discipline and the employee requests repre-
sentation. Despite Gregory’s assertion on March 28, this right
does not apply to interviews held to simply inform the em-
ployee of disciplinary action already decided on.8 In this case,
Respondent had already determined that Gregory had not met
the production standard for the 2-week period in question. The
documentation had been prepared and the interview was simply
the means of informing Gregory of his production deficiency.
Accordingly, Respondent did not violate Section 8(a)(1) of the
Act by denying his request for a union representative.
3. The March 28 SKU and April 30 associate interview
On the basis of the following, I do not find the evidence
demonstrates that Respondent issued the March 28 SKU and
the April 30 associate interview to Gregory because he gave
testimony in the September 1999 unfair labor practice hearing.
There is no evidence that any of Gregory’s supervisors in
March and April 2001 ever said anything to him about his hav-
ing given prior testimony. Gregory admitted that Sugden,
Happner, and Hudson were not his supervisors at the time of
his testimony. Sugden and Hudson were not even employed at
the Canton DC in September 1999.
Respondent asserts that while neither the SKU nor the asso-
ciate interview is considered discipline, Gregory had actually
received a notice of correction for his conduct and attitude in
September 2000. Respondent submits that there is no proof
that Gregory claimed that this discipline was in retaliation for
his testimony, even though it occurred closer in time to his
1999 testimony.
Gregory asserts that his low production was affected by the
kinds of loads that he received and also that his production
report was based on the numbers given to him by the checker.
There is no dispute however, that other employees also re-
ceived SKU’s and associate interviews because of their low
production. General Counsel relies on Happner’s statement to
Gregory prior to December 2000 as evidence of animus. There
was no evidence of any other employee who failed to meet
production standards that was not coached or counseled. In
UBX International Inc., 321 NLRB 446 (1996), the Board took
notice of an employee’s minimal amount of protected activity,
the lack of animus against the protected activity and the timing
of these events to find that General Counsel had failed to estab-
lish a prima facie case. In the instant case, Gregory’s protected
activity occurred 18 months prior to these coachings and there
is no evidence of animus related to his having given testimony.
Even if I found the evidence sufficient to establish a prima facie
case, Respondent has met its burden of showing that it would
have issued the SKU and Associate Interview in the absence of
his protected activity in 1999. The Board has previously noted
that even where animus can be shown and there is actually
reason for suspicion, an unlawful motive cannot be shown
when there is an absence of disparity.9
4. Gregory’s participation on the peer review panel
Firstly, I note that the complaint was never amended to in-
clude Gregory’s participation on the peer review panel as a
basis for his receiving the SKU and associate interview. Thus,

8 Baton Rouge Water Works Co., 246 NLRB 995 (1979).
9 Industrial Construction Services, 323 NLRB 1037 (1997); Part
Depot, Inc., 332 NLRB 733 (2000).
K-MART CORP. 717
no finding is made as to whether this activity is protected activ-
ity. While General Counsel argues that it should be considered
as animus, I find no basis for doing so. Gregory’s claim of
retaliation for his participation on the peer review panel is
without substance based on the undisputed timing of the associ-
ate interview. Sugden testified, without contradiction, that he
prepared the associate interview on Tuesday, April 24, 2001,
when he received the production summary. Gregory did not sit
on the peer review panel until the next, day, Wednesday, April
25, 2001. I accept Respondent’s argument that there can be no
causal connection for retaliation where the associate interview
was prepared before the alleged protected activity.
C. Respondent’s Failure to Grant a 2001 Wage Increase
Respondent relies on the Supreme Court’s ruling in NLRB v.
Katz, 369 U.S. 736 (1992), where it held that an employer vio-
lates the Act by granting a unilateral wage increase during the
course of negotiations. In Oneita Knitting Mills, 205 NLRB
500 (1973), the Board found that an employer violated the Act
when it granted an increase without prior bargaining with the
union pursuant to its policy of giving increases at a set time
each year. The employer asserted that it had given this raise
pursuant to its fixed policy to grant increases annually at ap-
proximately the same date each year. The Board found no
merit in the employer’s argument and found that the employer
retained an element of discretion as to the amount and manner
of distribution. Respondent argues that under Katz and Oneita,
it would have risked committing an unfair labor practice had it
granted an increase to the Canton DC employees while en-
gaged, at the same time, with the UAW in the course of nego-
tiations for a first time collective-bargaining agreement.
While an employer is prohibited from changing the wages,
hours, terms, and conditions of employment without giving the
union notice and an opportunity to bargain, the Board has also
held that an employer is obligated to maintain the status quo, as
it existed before the union achieved representational status
during its initial bargaining with a newly certified union. Gen-
eral Motors Acceptance Corp., 196 NLRB 137 (1972), enfd.
476 F.2d 850 (1st Cir. 1973). In a 1994 case, the Board spe-
cifically considered the earlier decision in Oneita Knitting
Mills, as it dealt with a case where the employer discontinued a
wage increase program. The Board noted that while Oneita
involved a situation in which the employer granted a wage
increase, a bargaining obligation arose in both cases because a
change in employment conditions was effectuated.10
Respondent further relies on dicta in Katz that recognizes
that a wage increase could be granted without bargaining only
if the increase was “simply automatic” and a mere continuation
of the “status quo.” Respondent asserts that there was no pat-
tern or consistent history as to general wage increases followed
by K-Mart. Respondent asserts that the amounts and date of
these increases have changed and in certain years increases
were not given at all.

10 Daily News of Los Angeles, 315 NLRB 1236, 1239 (1994), enfd.
73 F.3d 406, (D.C. Cir. 1996), cert. denied Daily News of Los Angeles
v. NLRB, 519 U.S. 1090 (1997).
General Counsel argues that it has been the practice at the
Canton DC to grant annual wage increases since at least 1992
with only one exception in 1996 when there was a $400 lump
sum payment. During the trial, General Counsel offered ex-
cerpts from the testimony of Respondent’s human resources
director, William Gilooly, and director of logistics, David
Lanni, from the 1999 unfair labor practice trial. Both testified
that June has been the established date for granting wage in-
creases. Respondent objected to the introduction of this testi-
mony on the basis that it was hearsay. Counsel argued that
neither Gilooly nor Lanni were present at the trial and the sub-
mission of their prior testimony was an attempt to impeach
them with a prior statement or prior sworn statement, thus,
constituting hearsay. Respondent argues that under Federal
Rule of Evidence 801(d)(1), prior statements by a witness are
only admissible where (1) the declarant testifies at trial; (2) the
declarant is subject to cross-examination concerning the state-
ment; (3) the statement is inconsistent with his present testi-
mony; and (4) the statement was given under oath. While Re-
spondent correctly argues that the prior statement is not admis-
sible under Federal Rule of Evidence 801(d)(1), Respondent
does not address the admissibility under 801(d)(2). A state-
ment is not hearsay under 801(d)(2) where the statement is an
admission by a party or party representative concerning a mat-
ter within the scope of their agency or employment and made
during the existence of the relationship. It is obviously on this
portion of the Federal Rules of Evidence upon which General
Counsel relies in offering this prior testimony. While the prior
testimony is arguably admissible, I do not find it sufficiently
relevant for reliance.
Respondent also argues that Gilooly’s and Lanni’s testimony
is not relevant as the 1999 trial did not deal with whether Re-
spondent was required to issue a wage increase while bargain-
ing over wages, hours, and conditions of employment. The
Board affirmed Administrative Law Judge Richard Miserend-
ino’s decision that Respondent’s 1999 grant of a wage increase
and the timing of the postelection formal presentations at the
Canton facility were conducted in the normal course of busi-
ness without any motive of inducing the employees to vote
against the Union. The judge however, went on to find that
Respondent acted unlawfully when it included reference to the
wage increase in its 25th hour meeting with employees prior to
the election. By its actions, Respondent was found to have
used the wage increase to discourage support for the Union.
Respondent’s argument that these individuals were not exam-
ined relative to the issues of this case has merit. As the issues
were not the same in these two cases, there is no way to deter-
mine that the record was fully developed with these witnesses
on the issue herein. In contrast however, Director of Labor
Relations Henry Bechard testified in the current hearing con-
cerning the relevant issue. Bechard testified that it has been a
common practice for Respondent to grant a wage increase in
June.
Respondent would assert that discretion in past wage in-
creases prevents the practice from falling into the “simply
automatic” pay increases recognized and sanctioned by Katz.
In a recent case, the Board determined that the amount of dis-
cretion exercised by the employer did not defeat the employees’

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
expectation that they would receive a raise on a particular,
regularly occurring date.11 The Board held that a merit wage
program would be found to be a term and condition of em-
ployment when it was an established practice regularly ex-
pected by the employees. The criteria set out for this determi-
nation was:

1. The number of years the program had been in place;
2. The regularity with which raises are granted;
3. Whether the employer used fixed criteria to deter-
mine whether an employee will receive a raise, and the
amount thereof.

In the present case, the evidence demonstrates that Respon-
dent has had a practice of granting across-the-board wage in-
creases since 1992, with the exception of 1 year when employ-
ees received a lump sum amount rather than an hourly wage
increase. The wage increases have routinely been granted in
either May or June of each year. Unlike the raises in Ru-
ral/Metro Medical Services, Respondent’s wage increases were
not based on an assessment of any individual employee’s per-
formance. The wage increases appear to have been the same
amount for all employees, without regard to individual merit
assessment. The amount of hourly increase has varied no more
than $0.25 during this 8-year period. Respondent has clearly
retained discretion as to the amount of the increase. Based on
the overall evidence however, it is apparent that employees
retained the expectation that they would receive a wage in-
crease in or about June 2001. Burrows Paper Corp., 332
NLRB 82 (2000); Kurrdziel Iron of Wauseon, 327 NLRB 155
(1998).
Respondent presented evidence to show that its failure to
grant a wage increase during the pendency of initial contract
negations was consistent with what it has done in its other
newly unionized facility. While this may be a practice that
Respondent has initiated to avoid becoming the target of unfair
labor practices, such practice does not negate the expectations
of the bargaining unit employees in the Canton DC. Accord-
ingly, I find that Respondent violated Section 8(a)(5) and (1) by
failing to bargain to agreement or impasse with the Union be-
fore discontinuing its practice of granting a June wage increase
to bargaining unit employees.
D. Respondent’s Layoff and Consolidation of Shifts
The law is clear that when a collective-bargaining agent
represents employees, the employer may no longer make uni-
lateral changes in wages, hours, and terms and conditions of
employment as it could freely do before its employees were
represented. NLRB v. Katz, 369 U.S. 736 (1962). Thus, if an
employer anticipates any such changes affecting its employees,
it has a duty to notify the bargaining representative of the pro-
posed changes, afford that representative an opportunity to
bargain over the proposal, and if bargaining is requested, meet
with the representative and bargain collectively in good faith
concerning the proposal before putting them into effect. Farina
Corp., 310 NLRB 318 (1993). Even where an employer has a
past practice of instituting economic layoffs due to lack of

11 Rural/Metro Medical Services, 327 NLRB 49 (1998).
work, it has an obligation to bargain with its employees’ bar-
gaining representative over such layoffs. The employer can no
longer unilaterally exercise its discretion with respect to such
layoffs. Adair Standish Corp., 292 NLRB 890 (1989).
Respondent argues that it had no duty to bargain regarding
the voluntary layoffs, as they were consistent with past practice.
Citing Advertisers Mfg. Co., 280 NLRB 1185 (1986), Respon-
dent asserts that it is only changes or deviations from the status
quo that are prohibited; action that are a “mere continuation of
the status quo” are not unlawful. Respondent points out in its
brief that both management and employee witnesses confirmed
that there had been layoff’s in past years when the business
slowed in January and after the holiday season. Respondent
argues that the procedure for layoff was consistent with that
used in prior layoffs. Despite the fact that the layoffs in issue
may have been consistent with those utilized in the past, I am
not persuaded that such consistency releases Respondent from
its bargaining obligation. I note that in Advertisers Mfg. Co.,
the Board affirmed the judge’s finding that the employer was
obligated to notify and bargain with the union concerning lay-
offs, even though the employer argued that such actions were
“consistent with on-going policies and procedures” and were
caused by “the poor business conditions confronting the Com-
pany at that time.” It is to be expected that an employer’s ac-
tions concerning wages, hours, and other conditions of em-
ployment may be consistent with actions preceding a union’s
representational status. The mere fact that an employer has
similarly laid off employees in the past does not preclude its
notice and bargaining obligation once its employees are repre-
sented. Clearly under Board law, an employer’s past practices
prior to union certification as the exclusive bargaining repre-
sentative do not relieve the employer of the obligation to bar-
gain with the certified union about subsequent changes to
wages, hours, and other terms and conditions of employment.
Porta-King Building Systems, 310 NLRB 539, 543 (1993),
enfd. 14 F.3d 1258 (8th Cir. 1994).
Respondent also argues that while layoffs and shift schedules
are generally subject to bargaining, that general rule does not
apply where “compelling economic considerations” have moti-
vated the layoff. Respondent points out that it experienced a
rapid downward spiral in its business fortunes in December
2001 and January 2002. In a span of a few weeks, the Canton
DC’s anticipated work volume for January 2002 dropped from
5,360,000 gross cartons to 2,123,000 gross cartons, a decline of
over 60 percent. Anthony Byergo, divisional legal counsel,
testified that at the very same time, Respondent experienced a
number of cashflow issues which resulted in nonpayment to its
vendors and prevented merchandise from reaching the Canton
DC. Eventually, this downward spiral forced Respondent to
seek protection under chapter 11 of the U.S. Bankruptcy Code
on January 22, 2002.
As the Board noted in Hankins Lumber Co., 316 NLRB 837
(1995), most layoffs are taken as a result of economic consid-
erations. The Board noted that business necessity is not the
equivalent of compelling economic considerations that excuses
bargaining. “Were that the case, a respondent faced with a
gloomy outlook could take any unilateral action it wished or
violated any of the terms of a contract which it had signed sim-
K-MART CORP. 719
ply because it was being squeezed financially.” In Angelica
Healthcare Services, 284 NLRB 844, 853 (1987), the judge
defined “compelling economic considerations” as an unfore-
seen occurrence, having a major effect, is about to take place
that requires the employer to take immediate action.” In Bot-
tom Line Enterprises, 302 NLRB 373 (1991), the Board held
that where parties are engaged in negotiations for a collective-
bargaining agreement, an employer’s obligation to refrain from
unilateral changes extends beyond the mere duty to provide
notice and an opportunity to bargain about a particular subject
matter. The Board recognized that the employer must also
refrain from implementation at all, absent overall impasse on
bargaining for the agreement as a whole. The Board however,
also noted two limited exceptions to this general rule: when a
union engages in tactics designed to delay bargaining and
“when economic exigencies compel prompt action.”
In Winn-Dixie Stores, 243 NLRB 972, 974 fn. 9 (1979), the
Board enumerated some circumstances that would justify or
excuse an employer’s taking action while bargaining is ongo-
ing. These circumstances were described as involving “extenu-
ating circumstances” and a “compelling business justification.”
The Board has continued to view “compelling economic con-
siderations” as extraordinary, unforeseen events having a major
economic effect that requires the employer to take immediate
action.12 In Hankins Lumber Co., 316 NLRB 837, 838 (1995),
the Board confirmed that only such extraordinary events would
excuse the bargaining obligation. In a later case that same year,
the Board further explained its position and reiterated that ab-
sent a dire financial emergency, economic events such as loss
of significant accounts or contracts, operation at a competitive
disadvantage, or supply shortages do not justify unilateral
change.13
In its decision in RBE Electronics, the Board also identified
other economic exigencies that although not sufficiently com-
pelling to excuse bargaining altogether, should nonetheless fall
within the Bottom Line exception. Where an employer is con-
fronted with an economic exigency compelling prompt action
short of the type relieving the employer of its obligation to
bargain entirely, it will satisfy its statutory obligation by pro-
viding the union with adequate notice and an opportunity to
bargain. These exigencies are only when time is of the essence
and which demand prompt action, and the employer would
need to show a need that the particular proposed action be im-
plemented promptly. The employer must also demonstrate that
the exigency was caused by external events, was beyond the
employer’s control, or was not reasonably foreseeable. If the
employer has demonstrated that a situation meets these re-
quirements, it would satisfy its statutory obligations by provid-
ing adequate notice and an opportunity to bargain over the
changes that it proposes to respond to the exigency.
Respondent argues that even if the decision for the voluntary
layoff and temporary shift consolation was subject to the duty
to bargain, no violations exists as Respondent and the Union
discussed and negotiated the layoffs at the bargaining table.
Director of Labor Relations Bechard testified concerning the

12 Maple Grove Health Care Center, 330 NLRB 775, 779 (2000).
13 RBE Electronics of S.D., Inc., 320 NLRB 80, 81 (1995).
bargaining sessions in late November and on December 12,
2001. Bechard testified that not only had Respondent discussed
the necessity for layoffs but also the issuance of the surveys to
determine what employees wanted a voluntary layoff. Union
bargaining committee member, John Williams, corroborated
the December 12 discussion concerning the plans to issue the
survey. Williams acknowledged that the Respondent talked
with the Union about their forecasts having fallen far short of
what was expected and that these were tough economic issues
facing Respondent. Williams recalled that fellow committee
person Wince asked about how the voluntary layoffs would
affect insurance and benefits. Wince also asked how unem-
ployment benefits would apply for those employees who took a
voluntary layoff.
International Representative Alan Przydial testified that
while he was present at the bargaining sessions on November
28, 29, and December 12, he could not recall if there was dis-
cussion about the surveys for the proposed layoff. When asked
about whether he recalled these discussions he replied:

Not only do I not remember. Please understand that there are
times that I leave the room to return phone calls and so forth.
So something could have been said while I was out of the
room.

Przydial confirmed that the Union canceled the next three bar-
gaining sessions that had been set for December 13, 19, and 20.
He also confirmed that when he had spoken with union bar-
gaining committee member, Sullivan after December 12, Sulli-
van told him that he had been involved in some discussions
with Respondent about the layoff. Przydial’s office was closed
9 to 10 days prior to the scheduled layoff. On Przydial’s return
to the office and on January 3 or 4, he contacted Respondent to
inquire about the layoffs that had been scheduled to begin on
January 2.
Local President Bruno Duchaine testified that he did not spe-
cifically recall whether he had received any notice of the layoff
before the first of the year. He acknowledged that it is possible
that a company representative had advised him of the proposed
layoff prior to its implementation but he could not recall.
Duchaine also confirmed that there were times that he left the
room during bargaining, although normally Przydial and he did
not leave at the same time. Duchaine’s office was closed for
only 1 week between Christmas Eve and New Year’s. He
could not give the specific dates but recalled talking with Przy-
dial and Sullivan about the layoff. He acknowledged however,
that he never attempted to talk with anyone from the company
about the layoff until the next scheduled bargaining session in
February 2002.
Hartman Luggage Co., 173 NLRB 1254 (1968), dealt with a
similar situation in which there was an issue of whether the
employer had given the union adequate notice of a layoff and
an opportunity to discuss and/or object to the layoff. Although
there was no direct communication to a union official, the em-
ployer advised the employee-members of the Union’s bargain-
ing committee 4-1/2 days prior to the layoff. The Board af-
firmed the judge in finding that the employer’s failure to give
formal notification directly to the Union under these circum-
stances does not render ineffectual or inoperative the notice

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720
actually received by it. In the Hartman case, the Board not
only found that the union had received adequate notice, but also
that the union had failed to act diligently in its right to demand
discussion or bargaining.
In the instant matter, the Union relies on its letter of Decem-
ber 13 as a blanket request to bargain about all terms and condi-
tions of employment. While the language of the letter includes
this all-encompassing request to bargain on numerous subjects,
it also states that the bargaining committee is the representative
of Respondent’s employees. Williams recalls that not only was
the layoff survey discussed, but also some of the actual effects
and procedures of the layoff discussed during the December 12
meeting. Duchaine does not deny that he was given advance
notice of the layoff; he simply can’t recall. Przydial admitted
that he was sometimes out of the room during negotiations and
there were subjects discussed in his absence. Based on the
above, I find that the evidence supports that the Union was
given notice of the changing economic situation and the need
for a drastic reduction in staff through a January layoff. Having
this notice Pryzdial did not request specific bargaining or even
attempt to contact the employer until after the layoff went into
effect. Duchaine made no attempt to discuss the matter with
the employer until the next bargaining session a month later.
The Board has been very reluctant to find circumstances in
which the employer was totally relieved of its duty to bargain
with a union about changes in terms and conditions of em-
ployment. As discussed above, there are cases where the Board
has found the employer’s economic crisis insufficient to waive
the duty to bargain, but few where the Board specifically identi-
fies what is sufficient to totally release the employer from its
bargaining duty. In the instant case, this employer certainly
comes as close as any in meeting these criteria. I take judicial
notice of the fact that the December 2001 holiday season came
only 3 months after the terrorist’s attack of September 11,
2001. It is undisputed that the overall economy was feeling the
negative effects of this horrific incident. Over the course of a
few weeks, the anticipated business volume for the Canton DC
facility dropped by 60 percent from that initially forecast. Re-
spondent experienced such marked losses that it filed for Bank-
ruptcy by the third week of January 2002. Overall, it appears
that the circumstances facing Respondent in December 2001
were extraordinary unforeseen events having a major economic
effect that required the employer to take immediate action as
contemplated by the Board’s decision in Bottom Line. Even if
the Respondent was not entirely relieved of its bargaining obli-
gation, it satisfied its statutory obligation by providing the Un-
ion with adequate notice and an opportunity to bargain.14
Based on the above, I find the evidence insufficient to estab-
lish that Respondent laid off employees in October 2001,15
January 2002, or February 2002 in violation of Section 8(a)(5)
and (1) of the Act. Because the reduction in force necessitated
the consolidation of shifts, I find the consolidation a natural

14 RBE Electronics, supra.
15 While the October layoff was included in par. 30 of the complaint,
there was no evidence that the Union opposed this layoff or even ad-
dressed it during the bargaining sessions in November and December
2001.
result of the layoff and likewise within the realm of lawful con-
duct. General Counsel asserts that Respondent engaged in
direct dealing with employees by soliciting employees for the
layoff. Because I find that the Respondent met its duty with
respect to bargaining about the proposed layoff, I also find that
its implementation by a voluntary layoff was not unlawful.
Accordingly, I recommend dismissal of the complaint allega-
tions relating the layoff, shift consolidation, and direct dealing
concerning the layoff.
E. Implementation of the New Maintenance Form
As evidenced by the testimony of maintenance employee
Lenart, the employee was free to complete the form with as
much brevity as he desired. The evidence did not demonstrate
that employees were required to record their lunches and break
times on the form; the form does not seek this information and
no supervisor required this kind of information. The form al-
lowed the employee to chose the type of information he wanted
to record. Lenart chose to provide virtually none and there was
no evidence that he was disciplined for choosing to do so. As
Respondent points out in its brief, there is no evidence that any
new standards were established, no new penalties were imposed
for low productivity or improperly filling out the form, and no
discipline was threatened for doing so.
In Goren Printing, 280 NLRB 1120 (1986), the employer
changed the method by which employees were required to in-
form management that they were leaving work early (from oral
communication to a written note). The Board found that there
was no change in the underlying existing condition of employ-
ment requiring employees to notify management of their early
departure. As a result the Board said:

The note requirement is merely a more dependable method of
enforcing Respondent’s rule that its employees must give no-
tice if they leave work early. The rule itself remains intact
and the procedural change has an inconsequential impact on
those employees who complied with the earlier notice re-
quirement.

Respondent argues that the form was nothing more than a con-
tinuation of a form that had fallen into disuse a year or 2 before.
Respondent further argues that the form required no more detail
than what a supervisor might require in any verbal communica-
tion with an employee in the maintenance department. Only
changes which constitute a “material, substantial, and signifi-
cant” change triggers a duty to bargain under the Act. Bath
Iron Works Corp., 302 NLRB 898, 901 (1991). In the instant
case, there is no evidence of a material change. Any change
related to the form was so slight and minimal that employees
were barely inconvenienced or affected by it. Certainly, Lenart
found it of such little consequence that he made no meaningful
attempt to complete the form, simply filling in the same words
each day. Accordingly, inasmuch as the form represented no
material, substantial, or significant change, Respondent had no
duty to bargain about the use of this form for the 5-month pe-
riod, prior to its discontinuance. I recommend the dismissal of
complaint paragraph 28.
K-MART CORP. 721
CONCLUSIONS OF LAW
1. Respondent, K-Mart Corporation, is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 157, International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW), AFL–CIO and its successor Local 174 and the Interna-
tional Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–CIO are labor
organizations within the meaning of Section 2(5) of the Act.
3. By telling employees that they could not talk about a un-
ion while they were working while at the same time not prohib-
iting employees from talking about other nonwork subjects,
Respondent engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) of the Act.
4. By terminating Ricky Brock on or abut May 25, 2001, be-
cause of his protected and union activities, Respondent has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) of the Act.
5. By unilaterally ceasing its established practice of granting
an annual across-the-board wage increase for bargaining unit
employees on or about June 1, 2001, Respondent has engaged
in unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) of the Act.
6. Respondent did not violate the Act in the other ways al-
leged in the complaint.
REMEDY
Having found that the Respondent has violated Section
8(a)(1), (3), and (5) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and take certain affirma-
tive actions designed to effectuate the policies of the Act.
Specifically, I shall recommend that Respondent be ordered
to offer reinstatement to Ricky D. Brock and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest, as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
With respect to Respondent’s failure to grant employees the
June wage increase which it had given regularly on or about
that time in previous years, Respondent must grant such in-
crease to the full extent that it would have increased wages in
the absence of the Union. If necessary, the determination of the
amount of such increase may be resolved at the compliance
stage.
[Recommended Order omitted from publication.]