Sam's Club

National Labor Relations Board - Board Decisions

May 4, 2007

349 N.L.R.B. 1007 (N.L.R.B. 2007)

SAM’S CLUB
349 NLRB No. 94
1007
Sam’s Club, a Division of Wal-Mart Stores, Inc. and
United Food and Commercial Workers Interna-
tional Union, CLC.1 Cases 28–CA–17057, 28–
CA–17058, 28–CA–17059, 28–CA–17150, 28–
CA–17152, 28–CA–17194, 28–CA–17273, 28–
CA–17276, 28–CA–17309, 28–CA–17602, and
28–CA–17970
May 4, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 29, 2002, Administrative Law Judge
James L. Rose issued the attached decision. The Re-
spondent, the Charging Party, and the General Counsel
each filed exceptions, supporting briefs, answering
briefs, and reply briefs. On March 23, 2004, the National
Labor Relations Board remanded this case to the judge
for additional credibility determinations, factual findings,
and legal analysis. On May 25, 2004, the judge issued
the attached supplemental decision. The Respondent,
Charging Party, and the General Counsel each filed sup-
plemental exceptions, supporting briefs, answering
briefs, and reply briefs.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.3
For the reasons discussed below, we agree with the
judge that the Respondent violated Section 8(a)(1) of the
Act by announcing an unlawful rule against talking about
the Union and by promulgating an employee dress code
that effectively prohibited employees from wearing
“badge backers” (described in more detail below) bearing
statements of their rights under the Act. However, as

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
2 The Respondent has effectively excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance 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.
3 We shall substitute a new Order and notice consistent with this de-
cision. The new notice shall include language consistent with our
decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001),
enfd. 354 F.3d 534 (6th Cir. 2004). Because the Respondent refers to
employees as “associates,” the notice includes the terms “associate(s)”
in parentheses after the terms “employee(s).”
explained below, we reverse the judge’s findings that the
Respondent’s dress code was otherwise unlawful and
that the Respondent violated the Act by: suspending an
employee because of her reaction to being denied a wit-
ness at a meeting with management, which the employee
reasonably believed would result in discipline; suspend-
ing merit raises pending a representation election without
telling employees that the raises would be reinstated after
the election regardless of who won the election; and so-
liciting employee signatures on letters stating opposition
to the Union.
Finally, contrary to the judge, we shall order the Re-
spondent to post remedial notices only at the facility at
which employees were affected by the Respondent’s
unlawful actions. In all other respects, we affirm the
judge’s findings and conclusions, and adopt his recom-
mended disposition of complaint allegations, for the rea-
sons discussed in his decision and supplemental deci-
sion.4
I. BACKGROUND
The Respondent is a subsidiary of Wal-Mart Stores,
Inc. It operates bulk grocery and consumer retail stores,
three of which are located at Spring Mountain Road, Se-
rene Avenue, and Pecos Road, Las Vegas, Nevada. The
employees of these stores are not represented by a union.
The alleged unfair labor practices in this case arose
from an organizing effort initiated by the Union in early
2001 at all three stores. A petition for representation
resulted in a Decision and Direction of Election to take
place in November 2001.5 However, the Union’s unfair
labor practice charges blocked that election.
The complaint alleges numerous unfair labor practices
at the Spring Mountain Road, Serene Avenue, and Pecos
Road stores. However, during the trial the General
Counsel withdrew the allegations concerning the Pecos
Road and Serene Avenue facilities. The remaining com-
plaint allegations all involve the Spring Mountain Road
facility.

4 There are no exceptions to the judge’s dismissal of allegations that
the Respondent unlawfully: (1) refused coworker representation to
employees Sandra Mena and Marsha Wardlingley, (2) asked employees
to ascertain and disclose the union activities of other employees, (3)
interrogated employees about union activities, (4) threatened that union
applicants would not be hired, (5) created the impression of surveil-
lance, (6) told employees that without a contract it could force employ-
ees to work for 90 days at any pay rate the Company chose, (7) threat-
ened to fire union handbillers, (8) encouraged and condoned an em-
ployee driving her car near union handbillers, (9) warned and then
discharged Mena, and (10) discharged employee Jason Russin for his
union activity.
5 Unless otherwise stated, all dates refer to 2001.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1008
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Allegations Concerning Ida Williams
The judge found that the Respondent violated Section
8(a)(1) by refusing to allow employee Ida Williams to
have a coworker representative present at a June 19
meeting with Store Manager Greg Roberts. See Epilepsy
Foundation of Northeast Ohio, 331 NLRB 676 (2000),
enfd. in relevant part 268 F.3d 1095 (D.C. Cir. 2001),
cert. denied 536 U.S. 904 (2002).6 The judge also found
that the Respondent violated Section 8(a)(1) and (3)
when it suspended Williams for the remainder of the day
because she protested Roberts’ denial of the representa-
tive.
After the judge issued his decision, the Board over-
ruled Epilepsy Foundation, and held that an employee
not represented by a union has no statutory right to the
presence of a coworker at an investigatory interview that
the employee reasonably believes could lead to disci-
pline. IBM Corp., 341 NLRB 1288 (2004). As the Re-
spondent’s employees were not represented by any union
when Williams asked for a witness, the General Counsel
has moved to withdraw the portions of the complaint
alleging that Roberts unlawfully denied Williams’ re-
quest. There is no opposition to the motion. In light of
IBM Corp., supra, and the lack of opposition, we grant
the motion. See Neaton Auto Products Mfg., 343 NLRB
256 (2004) (granting General Counsel’s motion to re-
mand case to the Regional Director for withdrawal of
complaint, consistent with IBM Corp.).7 Thus, there is
no longer any contention that the Respondent violated
Section 8(a)(1) by denying Williams’ request for a wit-
ness at her meeting with Roberts.
The Respondent has excepted to the judge’s finding
that it violated the Act by suspending Williams after her
outburst. For the reasons discussed below, we find that
Williams’ suspension was lawful.
1. Facts
On June 14, Williams received a “coaching” (Sam’s
Club’s term for discipline) for insubordination from her
supervisor, Jeff Tuesburg. On the morning of June 19,

6 In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Supreme
Court held that an employee is entitled to be accompanied by his bar-
gaining representative when called by management for an interview
which might lead to discipline. In Epilepsy Foundation, supra, the
Board extended the Weingarten right to a workplace where the employ-
ees are not represented by a union.
Member Schaumber questions whether the facts establish that this
meeting constituted a Weingarten meeting but he finds it unnecessary
to decide that question in this case.
7 There is no contention that IBM should not be applied in this case.
Consistent with her dissenting position in Neaton Auto Products, supra,
Member Liebman would deny the motion.
Williams had another confrontation with Tuesburg, who
then arranged for a meeting with Store Manager Roberts
prior to the beginning of Williams’ shift. On her way to
that meeting, Williams asked fellow employee Keman
Clute to accompany her as a coworker witness to the
meeting with Roberts.
Clute testified that when they walked into Roberts’ of-
fice Roberts asked him “what I was doing up there with
her,8 and he said you don’t need to be up here . . . [be-
cause] we’re just sitting here talking.” Roberts, accord-
ing to his credited testimony, then explained to Williams,
“Ida, this is not an investigation. . . . It would be inap-
propriate to have a witness being that this is not an inves-
tigation.” Williams became upset, said “[T]his is a
bunch of crap,” and began to walk away. At that point,
Roberts testified that he said, “Ida, I can’t have you
working with our [customers] in the state you are in. I’m
going to ask that you go home for the day.”
2. Whether Roberts unlawfully suspended Williams
The judge found that Roberts suspended Williams be-
cause she questioned his decision denying her an em-
ployee witness at their meeting. Because he found that
Williams was entitled to a representative and that the
denial of her request was unlawful, the judge found her
suspension unlawful. Additionally, he also found that
Williams’ “this is crap” statement was not such serious
misconduct as to cost her the protection of the Act. The
judge further found no evidence to support Roberts’ con-
tention that Williams was too upset to deal with custom-
ers. We disagree and find that Roberts acted lawfully in
suspending Williams for the rest of the day.
The judge found the violation on the basis that Wil-
liams’ suspension “was directly a result of Roberts’ hav-
ing unlawfully refused to allow Williams to have a wit-
ness.” As previously noted, however, it is no longer con-
tended that the denial of Williams’ request for represen-
tation was unlawful. Thus, although Williams had the
right to request a representative, the Respondent likewise
acted lawfully in denying that request. Having done so,
Williams’ subsequent heated statement, “this is a bunch
of crap,” was not an act of protected activity, i.e., a re-
quest for a witness, but rather an intemperate response to
a lawful act of the Respondent.9 The Respondent rea-

8 The complaint alleges that Roberts’ remarks to Clute constituted an
unlawful interrogation. Although the judge failed to address this allega-
tion, the evidence does not support a finding that Roberts’ remarks
were unlawful. Roberts did not attempt to interrogate Clute about his
protected activities; he merely asked why Clute was there.
9 We agree with the judge that saying “this is a bunch of crap” will
ordinarily not cost an employee already engaged in protected activity
the protection of the Act. Atlantic Steel, 245 NLRB 814, 816 (1979).
However, Williams was no longer engaged in protected activity when
she made the statement.
SAM’S CLUB 1009
sonably reacted to her unprotected outburst by determin-
ing that Williams should not deal with customers in her
agitated state, and it thus sent her home for the day.10
The dissent contends that Williams’ statement and
walkoff were part of the res gestae of her request for a
witness, and thus, like the request, were also protected.
We disagree. As discussed above, we think it clear that
Williams’ subsequent conduct was separate from her
request for a witness; she was not simply reasserting her
request. But, even if the Williams request and the Re-
spondent’s lawful denial were considered together as part
of the same res gestae, the Respondent’s (Roberts’) ac-
tion would still be lawful. Roberts did not send Williams
home because of her crude criticism of his decision.
Rather it was because he considered her too upset to per-
form her job duties, which required dealing directly with
the Respondent’s customers.
The cases cited by the dissent Postal Service, 251
NLRB 252 (1980), enfd. 652 F.2d 409 (5th Cir. 1981),
and Thor Power Tool, 148 NLRB 1379 (1964), enfd. 351
F.2d 584 (7th Cir. 1965), are clearly distinguishable. In
those cases, intemperate remarks made during a griev-
ance meeting or immediately proceeding from it were
found to be part of the protected activity of processing
grievances with an employer. As noted above, Williams’
remarks were in response to the lawful denial of her re-
quest; they were not a part of the request itself.
Accordingly, we find that Williams’ suspension was
not unlawful, and we dismiss that portion of the com-
plaint.
B. Promulgation of No-Talking Rule
In his supplemental decision, the judge found that
Merchandise Manager Jaime Durand promulgated an
overly broad and discriminatory no-talking rule on Sep-
tember 19. The judge credited testimony that Durand
told employees that they could talk about the Union in
the breakroom during their lunchbreak, but not on the
sales floor, in the parking lot, or outside in the smoking

10 The judge and our dissenting colleague also find that the suspen-
sion was unwarranted because they find “no real evidence that [Wil-
liams] would have carried [her anger] to her job.” The dissent also
suggests that, even if Williams was upset and could not immediately
return to her job, she could have been allowed a short period to “cool
off” instead of being sent home for the rest of the day. We reject both
assertions. Accepting either argument would require us to substitute
our managerial judgment for that of Roberts, who—having personally
observed Williams’ behavior and demeanor on June 19—was in a far
better position than we are to evaluate her ability to deal with custom-
ers. We shall not second-guess Roberts’ judgment and his decision as
to how long Williams needed to be removed from customer contact.
See, e.g., NLRB v. Columbus Marble Works, 233 F.2d 406, 413 (5th
Cir. 1956) (“[A]s we have so often said: management is for manage-
ment. Neither Board nor Court can second-guess it or give it gentle
guidance by over-the-shoulder supervision.”).
area. We agree with the judge that the prohibition an-
nounced by Durand was unlawful.
It is well established that employees are entitled to dis-
cuss unions and solicit for unions on nonworking time,
unless the employer can show that it needs to limit the
exercise of that right in order to maintain production or
discipline.11 Republic Aviation Corp. v. NLRB, 324 U.S.
793, 803 (1945), and Peyton Packing Co., 49 NLRB 828,
843–844 (1943), enfd. 142 F.2d 1009 (5th Cir.), cert.
denied 323 U.S. 730 (1944). It is also well settled that
“an employer may forbid employees from talking about a
union during periods when the employees are supposed
to be actively working, if that prohibition also extends to
other subjects not associated or connected with the em-
ployees’ work tasks. However, an employer violates the
Act when employees are forbidden to discuss unioniza-
tion, but are free to discuss other subjects unrelated to
work.” Jensen Enterprises, 339 NLRB 877, 878 (2003).
Consistent with these well-established principles, we
agree with the judge that Durand’s prohibition of all talk
about the Union violated Section 8(a)(1) because it ap-
plied only to conversations about the Union. The record
establishes that the Respondent allowed employees to
talk about other nonwork matters on the sales floor, even
on working time. Accordingly, by telling employees that
they could not talk about the Union on the sales floor,
while allowing them to talk about other nonwork matters,
the Respondent violated Section 8(a)(1). Jensen Enter-
prises, supra. Further, as it concerned the parking lot and
smoking areas, the prohibition—which would encompass
solicitation as well—was not limited either to working
time or to selling areas and therefore was overly broad
both as to location and to time, even if it had been lim-
ited to solicitation alone. Highland Yarn Mills, 313
NLRB 193, 194 (1993); McBride’s of Naylor Road, su-
pra.12 Accordingly, we find that Durand’s prohibition of
union talk, while permitting other nonwork-related dis-

11 Conversely, it is clear that an employer may lawfully prohibit so-
licitation during working time. See Our Way, 268 NLRB 394 (1983).
Further, retail employers, such as the Respondent, may lawfully pro-
hibit employees from soliciting on the selling floor—even during the
nonworktime of employees—because active solicitation in a sales area
may disrupt a retail store’s business. See, e.g., J. C. Penney Co., 266
NLRB 1223 (1983); Marshall Field & Co., 98 NLRB 88 (1952), modi-
fied on other grounds and enfd. 200 F.2d 375 (7th Cir. 1958). The
Board, however, has not allowed these restrictions on solicitation to be
extended beyond that portion of the store that is used for selling pur-
poses. See, e.g., McBride's of Naylor Road, 229 NLRB 795 (1977).
12 Because we agree that Durand’s prohibition on talking about the
Union was unlawful, we find it unnecessary to decide whether Store
Manager Roberts unlawfully prohibited union solicitation. Finding a
similar violation by Roberts would be cumulative and would not affect
the remedy. In reaching these findings, we do not rely on the Wal-Mart
television advertisement to which the judge referred in his decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1010
cussions, and his extension of that prohibition to non-
work areas during nonworktime, violated Section 8(a)(1)
of the Act.
C. The Respondent’s Revised Dress Code Policy
During the union organizing campaign, the Respon-
dent announced a number of changes in its employee
dress code. The complaint alleges, and the judge found,
that several of the changes were unlawful. For the rea-
sons discussed below, we agree with respect to only one
of the changes.
1. Facts
The Respondent’s employees are required to wear
name badges attached to lanyards worn around the neck.
Name badges are affixed to the front of “badge backers,”
which are slightly larger than name badges. In the past,
employees put other buttons, pins, and insignia on their
name badges, lanyards, and shirts. During the union or-
ganizing campaign, employees affixed union buttons to
their lanyards or badge backers, wore lanyards bearing
the Union’s logo, and/or wore badge backers with state-
ments of their Epilepsy Foundation rights on the back.
Although union pins and lanyards were visible to cus-
tomers, the Epilepsy Foundation rights statements on the
back side of badge backers were not.
On June 5, the Respondent’s vice president for opera-
tions, Jim Haworth, sent a memo to general managers
throughout the entire Sam’s Club chain related to new
employee name badges. The Haworth memo announced
that beginning the week of June 11, all clubs would re-
ceive a kit containing new name badges for all associ-
ates, with the new badges to be worn by employees start-
ing June 22. The memo stated that the expected results
of the new name badges included the improvement of
customer service by easy-to-read name badges, the main-
tenance of a clean, professional, world-class image, and
the minimization of wear and tear on the badges. In ad-
dition to describing a host of changes to name badges,
the memo also provided in relevant part:
No pins or stickers may be placed on the Associate
name badge. No Exceptions.
Only Corporate approved badge backers may be worn
behind the name badge.
Associate pins may be worn on corporate approved
lanyards. (All lanyards must have a break-away snap
in the back for safety reasons.)
. . . .
Only Sam’s Club pins may be worn on the Associate’s
breakaway lanyard.
Thus, as the judge found, the new policy prohibited em-
ployees from wearing badge backers stating Epilepsy Foun-
dation rights and putting union pins or buttons on their lan-
yards and name badges. Because the union lanyards previ-
ously worn by employees lacked breakaway snaps, the new
policy’s prohibition on wearing lanyards without breakaway
snaps also effectively prohibited wearing the Union’s lan-
yards.
At an unspecified date in June, Roberts announced the
new dress code policy at a meeting with employees.
Among other things, Roberts told the employees that
they were not allowed to wear badge backers of any kind,
not even the company badge backers that some employ-
ees had worn before.
The handouts given to employees at the June meeting
stated that the new dress code would be strictly enforced
beginning July 1. Roughly a week later however, the
Respondent amended the June 5 dress code policy to
allow the wearing of “personalized buttons/pins of any
type.” This meant that employees could once again wear
union pins and buttons on lanyards, but not on name
badges.
2. Analysis
It is well established that employees generally have the
right to wear union insignia while at work. Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 801–803 (1945).
But this right is not without limitation. The Board must
balance the conflicting rights of employees under Section
7 and the right of employers to manage their businesses
safely and efficiently. Id. at 797–798; Standard Oil Co.
of California, 168 NLRB 153, 161 (1967). Thus, an em-
ployer may limit or ban the display or wearing of union
insignia at work if special circumstances exist and if
those circumstances outweigh the adverse effect on em-
ployees’ Section 7 rights resulting from the limitation or
ban. Albis Plastics, 335 NLRB 923, 924 (2001); Mack's
Supermarkets, 288 NLRB 1082, 1098 (1988). For ex-
ample, the Board has approved limitations on the wear-
ing of union insignia based on safety concerns, Albis
Plastics, supra at 925; Standard Oil, supra at 153 fn. 1,
160–162; and on the employer’s need to have neatly uni-
formed employees as part of its public image, United
Parcel Service, 195 NLRB 441, 448–450 (1972). On the
other hand, the Board has invalidated restrictions that
were based merely on employees’ contact with custom-
ers, Burger King Corp., 265 NLRB 1507 (1982), enfd. in
relevant part 725 F.2d 1053 (6th Cir. 1984); or that were
overly broad, Albertsons, Inc., 272 NLRB 865, 866
(1984). When no special circumstances exist, an em-
SAM’S CLUB 1011
ployer’s directive to employees to stop wearing union
insignia violates Section 8(a)(1). Albis Plastics, supra at
924.
a. Badge backers
The judge found that the Respondent violated Section
8(a)(1) by prohibiting employees from wearing badge
backers with statements of their Epilepsy Foundation
rights on the back. While Epilepsy was overruled in
IBM, even under IBM, an employee has a Section 7 right
to request the assistance of a fellow employee. The
badge backer worn by the employee involved herein con-
tained, inter alia, a statement of that right.
In its exceptions, the Respondent argues that it adopted
its “name badge” rule in response to customers’ com-
plaints about the visibility of employees’ names and
about distracting badge backers. It contends that the rule
is justified by special circumstances—the need for em-
ployees’ names to be clearly visible to customers and to
project a “clean, professional, world-class image.” The
Respondent therefore contends that it was lawful to adopt
a rule prohibiting employees from placing any kinds of
pins, buttons, or stickers on their name tags in order to
prevent their names from being obscured, and—at least
at the Spring Mountain store—in prohibiting the wearing
of any sort of badge backers.13
As it applies to the ban on badge backers bearing
statements of Section 7 rights, the argument fails. Those
statements were on the backs of the employees’ badge
backers, where they would neither obscure the employ-
ees’ names nor be seen by customers. Accordingly, we
find that the Respondent has not demonstrated “special
circumstances” justifying its prohibition of employees
wearing badge backers containing statements of pro-
tected rights. Therefore, we find that this prohibition was
unlawful.
We find this violation, however, only as to Roberts’
statement at the Spring Mountain store, i.e., banning the
wearing of all badge backers. We do not pass on the
corporatewide rule. As it concerns badge backers, the
complaint alleges only a violation based on Roberts’ hav-
ing “promulgated and enforced an overly broad and dis-
criminatory dress code” at the Spring Mountain store.
The Respondent’s corporatewide rule was different, in
that it permitted some badge backers. There is no allega-
tion—and no evidence—that that rule was either an-
nounced to employees or enforced at any other store.
And, at Spring Mountain, the corporate rule was effec-
tively superseded by Roberts’ ban on all badge backers.

13 The judge did not address the validity of this argument.
b. The lanyards
The Respondent defends its prohibition of non-
breakaway lanyards (including nonbreakaway union lan-
yards) on safety grounds. It argues that employees can
be injured if nonbreakaway lanyards accidentally become
entangled in bulk-packaged items or in heavy machinery
such as forklifts or cardboard compacters. The judge
dismissed these concerns as abstract. He observed that
the Respondent is a retail store, not a manufacturing
plant, and found no evidence that any harm had occurred
with nonbreakaway lanyards. For those reasons, the
judge found the Respondent failed to prove special cir-
cumstances and held this portion of the dress code policy
unlawful.
We disagree. We find that the Respondent has demon-
strated special circumstances surrounding its ban on non-
breakaway lanyards and that those circumstances out-
weigh the employees’ right to wear such lanyards bear-
ing the Union’s logo.
The Republic Aviation balancing test clearly respects
the Respondent’s right to manage its business safely.
Unlike the judge, we find the Respondent’s expressed
concern for employee safety to be both genuine and sub-
stantial. Although the Respondent’s employees may not
face the same level of danger as employees in industrial
settings, the Respondent’s workplace is not risk-free.
Sam’s Club is a retail warehouse that sells bulk-packaged
merchandise. As Store Manager Roberts explained at the
hearing, in a warehouse, name badges can get caught in
merchandise or machinery. If that happens, breakaway
lanyards may prevent injury to employees. See Kendall
Co., 267 NLRB 963, 964–965 (1983). That no such in-
jury has yet occurred does not diminish the legitimacy of
the Respondent’s desire to prevent such an occurrence or
of its insistence on the wearing of breakaway lanyards to
achieve that purpose. See Albis Plastics, supra at 925 fn.
5.
The union lanyard in evidence did not have a break-
away snap, and there is no indication that the Union of-
fered to provide its supporters with breakaway union
lanyards. On this record, then, the only breakaway lan-
yards that the Respondent’s employees could have worn
were those the Respondent supplied. Accordingly, we
find that the Respondent has established special circum-
stances underpinning its rule requiring the wearing of
breakaway lanyards.
We further find that the rule requiring the use of break-
away lanyards did not interfere to any significant extent
with the employees’ right to wear union insignia. The
Respondent’s June 5 policy allowed the wearing of union
insignia on shirts; the update a week later also allowed
the wearing of union insignia on lanyards. Because the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1012
Respondent allowed employees to wear other kinds of
union insignia, it did not materially limit the exercise of
their right to identify themselves with the Union by re-
quiring them to wear breakaway lanyards, simply be-
cause the Union’s lanyards lacked that safety feature.
See Standard Oil, supra at 153 fn. 1.
For the foregoing reasons, we find that the Respon-
dent’s legitimate and substantial safety concerns out-
weigh the minimal interference with employee rights
caused by requiring the wearing of breakaway lanyards.
We therefore reverse the judge and find the breakaway
lanyard provision to be lawful under the Republic Avia-
tion balancing test.
c. Union insignia attached to lanyards
The Respondent’s original dress code policy, which
was disseminated to general managers on June 5 and
announced to employees later, prohibited the attachment
of union buttons and pins to both lanyards and name
badges. However, a week after announcing the new pol-
icy to employees, the Respondent rescinded the former
restriction and assured employees that they could wear
pins of any type on their lanyards.
Finding no evidence that the wearing of union buttons
on lanyards had any kind of detrimental effect on cus-
tomers, production, or store discipline, the judge found
this prohibition unlawful. (It is unclear from his decision
whether the judge realized that the prohibition had been
rescinded.) In the circumstances presented here, we dis-
agree. When it announced the June 5 policy to employ-
ees, the Respondent stated that it would not be strictly
enforced until July 1. It rescinded the policy a week
later, well before it was scheduled to take effect. We
find that the Respondent did not interfere with the em-
ployees’ right to wear union pins and buttons on their
lanyards during the week before it rescinded this prohibi-
tion, because the prohibition had not actually taken effect
at that time. Accordingly, we shall dismiss the complaint
insofar as it alleges that the temporary ban on wearing
union insignia on employees’ lanyards was unlawful.
D. Roberts’ Suspension of Merit Raises
The judge found that Roberts unlawfully suspended
merit raises pending the election without expressly tell-
ing employees that the raises would be reinstated after
the election regardless of how they voted. We reverse
and dismiss this allegation.
1. Facts
The day after the Union filed its petition for an elec-
tion Roberts met with employees and announced that
merit raises would be suspended pending the election.
Although witnesses gave varied accounts of his state-
ment, the judge credited the following portion of Rob-
erts’ testimony:
[O]ne of those things I mentioned, what I called labora-
tory conditions, and spoke to the associates and let
them know that merit increases would be frozen, put on
hold because of the fact the petition was filed and I did
not want, we did not want, I did not want it look as
though we were swaying someone's vote based on a
discretionary increase. However, that the merit in-
creases would be reinstated after the proposed vote.
2. Analysis
It is well established that an employer faced with a un-
ion organizing drive is required to proceed with an ex-
pected wage or benefit adjustment as if the union were
not on the scene. Atlantic Forest Products, 282 NLRB
855, 858 (1987). However, “[a]n employer may post-
pone such a wage or benefit adjustment so long as it
‘[makes] clear’ to employees that the adjustment would
occur whether or not they select a union and that the
‘sole purpose’ of the adjustment is to avoid the appear-
ance of influencing the election’s outcome.” Grass Val-
ley Grocery Outlet, 332 NLRB 1449, 1451 (2000), quot-
ing Atlantic Forest Products, supra, citing Uarco, Inc.,
169 NLRB 1153, 1154 (1968).
In Uarco, the Board upheld an employer’s postpone-
ment of wage adjustments because the employer made it
clear that
[W]hether or not its employees were represented by a
union, it planned to continue its established practice of
adjusting wage rates in early April of each year, pursu-
ant to its annual wage survey, to bring them into con-
formity with prevailing rates in the area; and that the
sole purpose of its announcement postponing the ex-
pected adjustments in wage rates and benefits for the
employees involved was to avoid the appearance that it
sought to interfere with their free choice in any elec-
tions which might be directed. [169 NLRB at 1154.]
The Board held the employer’s postponement lawful,
reasoning that in those circumstances, employees could
not reasonably have concluded that the action was in-
tended to influence their decision concerning their repre-
sentation for purposes of collective bargaining. Id.
Here, the judge found that the Respondent’s suspen-
sion of merit wage increases violated Section 8(a)(1)
because employees were not expressly told that their
merit increases would resume after the election regard-
less of how they voted. He reasoned that omission of the
italicized language could reasonably lead employees to
conclude that resumption of the wage increases would
depend on their voting against the Union.
SAM’S CLUB 1013
We disagree. Roberts made it clear that merit in-
creases were only being “put on hold” in order to avoid
appearing to attempt to influence employees’ votes. He
stated without qualification that the “merit increases will
be reinstated after the vote.” In these circumstances, the
only plausible reading of Roberts’ statement is that the
employees would receive their merit increases after the
election regardless of the outcome. We agree with the
Respondent that there are no “magic words” in which
that message must be couched. Because Roberts’ prom-
ise was unqualified and unconditional, we find that the
Respondent’s employees would not reasonably have
concluded that Roberts was postponing their merit in-
creases to influence their votes. We therefore dismiss
this complaint allegation.
E. Allegations Concerning Candy Proffitt
The judge found that Candy Proffitt was a statutory
supervisor and that she violated Section 8(a)(1) by solic-
iting signatures and collecting signed letters from other
employees expressing opposition to the Union.14 The
judge dismissed the allegation that the Respondent de-
moted Proffitt from her supervisory position as part of a
scheme to pack the unit with antiunion personnel.
For the reasons discussed below, we find, contrary to
the judge, that the evidence fails to establish that Proffitt
was a supervisor and, therefore, her actions regarding the
antiunion letters were not unlawful. We agree with the
judge that, assuming that the Respondent demoted
Proffitt, there is no evidence that it did so as part of a
unit-packing scheme.
1. Facts
Until May 2001, Proffitt held “team lead” positions on
the hard-lines and the center-lines teams. (The Decision
and Direction of Election states that team leads “may
direct the work of associates within their section.”)
However, when the Respondent began remodeling the
Spring Mountain Road store in May, Proffitt joined the
remodeling team, working nights. When the remodeling
was finished, Proffitt took a vacation. She returned in
early September, working days in the freezer/cooler sec-
tion. In mid-October, she received a reminder from
Store Manager Roberts that she was no longer in a team
lead position.
After Proffitt returned from vacation, she and several
other employees circulated letters opposing the Union,
solicited fellow employees to sign the letters, and col-
lected the letters after they had been signed. The Re-

14 The judge found that Proffitt was not an agent of the Respondent
for purposes of soliciting other employees to sign the letter and collect-
ing the signed letters. We agree with that finding for the reasons set
forth in the judge’s supplemental decision.
spondent was aware of and publicly approved these ef-
forts.
Several employee witnesses testified at the hearing that
Proffitt either claimed she was a team lead or performed
supervisory tasks in the fall of 2001. Glenda Cook and
Mary Lou Wagner testified that Proffitt told them that
she was team lead in the fall of 2001. Marsha Ward-
ingley testified that Proffitt talked about being a supervi-
sor to everyone: “She told everyone she was in charge,
that she was a supervisor.”
In addition, some witnesses testified that Proffitt di-
rected the work of employees or “moved employees
around.” Frank Lupiano testified that Proffitt expressed
stress or frustration to him about having to move people
around in the store. Similarly, Marsha Wardingley testi-
fied that in the fall of 2001, Proffitt took over a supervi-
sory position Roberts originally created for Bruce Miller,
who later became a manager. Wardingley testified that
once Proffitt occupied that position, she would make
schedules, tell people where to go, and give directions
and orders. When Wardingley was asked at the hearing
how she knew that Proffitt was doing schedules and
moving people around, she testified, “You could hear her
on the radio giving orders all the time.”
Linda Gruen testified that Proffitt sometimes asked her
or other employees to “zone” (i.e., clean and straighten
up) areas other than their assigned work areas because
the people working the other areas had fallen behind or
did not come to work. Gruen testified that Proffitt did so
without consulting with others.
Gruen further testified that in mid- to late September,
she asked Proffitt “if it would be okay if I left because I
wasn’t feeling well.” Proffitt replied by asking if
Gruen’s area was “all caught up.” After Gruen answered
that it was, Proffitt said “fine, go ahead, you can leave.”
Proffitt testified that in her postremodeling position,
insofar as she assigned work to other employees or di-
rected their work, she did not exercise independent
judgment but simply passed along the directions of man-
agement. She also testified that in that position she never
screened or interviewed associates, did evaluations, dis-
ciplined or recommended discipline, or approved sched-
ule changes, vacation requests, or merit increases.
2. Analysis
a. Proffitt was not a supervisor
Section 2(11) of the Act defines “supervisor” as
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1014
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.

An individual need only exercise one of the functions enu-
merated in Section 2(11) to be found to be a supervisor. See
NLRB v. Kentucky River Community Care, Inc., 532 U.S.
706, 713 (2001). The burden of proof lies with the party
asserting that an individual is a supervisor. Id at 710–712.
Where the possession of any one of the powers listed
in Section 2(11) is not conclusively established, the
Board looks to secondary indicia to determine supervi-
sory status. Those indicia include the individual’s job
title or designation and authority to grant time off, Mon-
arch Federal Savings & Loan, 237 NLRB 844, 845
(1978), enfd. 615 F.2d 1354 (3d Cir. 1980); higher com-
pensation and the perceptions of others as to the individ-
ual’s authority, General Security Services Corp., 326
NLRB 312 (1998), enfd. 187 F.3d 629 (8th Cir. 1999).
However, when there is no evidence that an individual
possesses any one of the statutory indicia, the secondary
indicia are insufficient by themselves to establish super-
visory status. J. C. Brock Corp., 314 NLRB 157, 159
(1994).
The judge found that Proffitt was a supervisor because
she gave directions to other employees, granted an em-
ployee time off, received an additional 50 cents per hour,
and because the employees she directed thought she was
a supervisor. Contrary to the judge, we find that the re-
cord does not establish that Proffitt possessed or exer-
cised supervisory authority.
The authority to assign or responsibly direct other em-
ployees does not confer supervisory status unless its ex-
ercise requires the use of independent judgment. See,
e.g., Property Markets Group, 339 NLRB 199, 204–206
(2003). We find that the General Counsel has failed to
demonstrate that Proffitt exercised independent judgment
in connection with her assertedly supervisory functions.
In instances where Proffitt did not first check in with
management before assigning work, the record indicates
that her movement of personnel was either routine or
simply based on the need to get work done. There is no
indication that such assignments were based on any fac-
tor involving the use of independent judgment. Nor did
Proffit’s permitting Gruen to go home when she felt ill
and asked to be excused involve the use of independent
judgment.
The remaining factors cited by the judge—Proffitt’s
higher pay level and the other employees’ perceptions of
Proffitt’s authority—are all secondary indicia that cannot
support a finding of supervisory status in the absence of
any of the statutory indicia. J. C. Brock Corp., supra at
159. Accordingly, we reverse the judge and find that
Proffitt has not been shown to have been a supervisor at
the time she was involved in the antiunion letter-writing
effort.15
b. Proffitt lawfully participated in the
antiunion letter-writing effort
Because Proffitt was neither a supervisor nor an agent
of the Respondent for purposes of the circulation of the
antiunion letter, it follows that her participation in that
effort was not unlawful. We therefore dismiss the allega-
tion that the Respondent violated Section 8(a)(1) of the
act by soliciting letters opposing the Union.
c. The Respondent did not demote proffitt
as part of a unit-packing scheme
The complaint alleges that the Respondent hired nu-
merous employees into the bargaining unit in the fall of
2001 in order to dilute the Union’s strength in the elec-
tion. The General Counsel argues that, as part of this
unit-packing effort, the Respondent attempted to “de-
mote” Proffitt into a unit position so that she could play a
lawful part in opposing the Union.
The judge found that the Respondent did not engage in
unit-packing. He found, instead, that during the store
remodeling project, staffing had been allowed to fall to
unusually low levels and that the Respondent simply
hired enough employees to return to its normal staffing
levels. As for Proffitt, the judge found that she was not
demoted in order to pack the unit, but remained a super-
visor.
We agree with the judge that the Respondent did not
engage in a general scheme to pack the bargaining unit,
for the reasons discussed in his original decision. And
although we find that Proffitt ceased to be a lead (and, in
that capacity, arguably a supervisor) before the election,
we also find no evidence to support the allegation that
she was demoted as part of the Respondent’s unit-
packing scheme.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and

15 Chairman Battista concurs with his colleagues that Candy Proffitt
is not a supervisor under Sec. 2(11) of the Act. Although there is some
evidence that Proffitt sometimes assigned individuals to “zone” (or
“tidy up”) an area, and Proffitt once told an employee who was sick
that she could go home, the evidence fails to establish that Proffitt used
independent judgment in doing so. The burden of proof falls on the
party asserting supervisory status, NLRB v. Kentucky River Community
Care, Inc., supra at 713. Here, that is the General Counsel. However,
because the General Counsel failed to present sufficient evidence that
Proffitt used independent judgment in assigning work or that she re-
sponsibly directed employees, Chairman Battista agrees that she has not
been shown to be a supervisor.
SAM’S CLUB 1015
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to cease and desist from confiscating union
pens and other union-related material and from promul-
gating and maintaining rules that employees may not talk
about the Union on the sales floor or in the parking lot
and smoking area, or wear badge backers bearing state-
ments of employee rights under the Act on the back. We
shall also order the Respondent to rescind the unlawful
rules.
We agree with the Respondent that the judge erred in
requiring it to post notices at all of its Las Vegas area
stores. The violations we have found affected only the
employees at the Respondent’s Spring Mountain Road
store, and we shall order notice posting only at that facil-
ity.
ORDER
The National Labor Relations Board orders that the
Respondent, Sam’s Club, a Division of Wal-Mart Stores,
Inc., Las Vegas, Nevada, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Confiscating union pens and other union-related
material.
(b) Promulgating and maintaining a rule prohibiting
employees from talking about the Union while allowing
other nonwork-related discussions or prohibiting such
discussions in nonwork areas during nonworktime.
(c) Prohibiting employees from wearing badge backers
stating their rights under the National Labor Relations
Act on the back.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Respondent’s prohibitions on talking
about the Union and on wearing badge backers stating
their rights under the Act on the back.
(b) Within 14 days after service by the Region, post at
its facility at Spring Mountain Road, Las Vegas, Nevada,
copies of the attached notice marked “Appendix.16 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 28, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any closed
facility since June 5, 2001.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
MEMBER LIEBMAN, dissenting in part.
Contrary to the majority, I would find that the suspen-
sion of Ida Williams, who exercised her right to request
an employee witness at a disciplinary interview, was
unlawful. In my view, the Respondent seized on Wil-
liams’ alleged emotional state as a pretext for retaliating
against her.
On June 19, 2001, Ida Williams had her second con-
frontation with her supervisor, Jeff Tuesburg, in less than
a week. Tuesburg then arranged for a meeting with Store
Manager Greg Roberts. Williams asked that a fellow
employee accompany her to Roberts’ office as a witness.
Roberts denied the request, stating that the meeting was
not an investigation. According to Roberts’ credited
testimony, “Ida was not happy with my response, visibly,
and she said ‘this is a bunch of crap,’ and she walked
away.” Roberts then suspended Williams for the rest of
the day, ostensibly because he felt she was too angry to
work with customers.
At the time of her request, Williams not only had the
statutory right to request the presence of a coworker at
the interview with Roberts, she also was entitled to such
a witness. Under the circumstances, it was reasonable
for Williams to believe that, despite Roberts’ assurances,
the interview could lead to discipline. Williams’ upset
reaction to the denial of her request, a statutory entitle-
ment, was not so extreme as to cost her the protection of
the Act.
The majority effectively concedes these points, but
nevertheless finds that the suspension of Williams was
lawful. The majority first finds that Williams’ statement
“this is a bunch of crap” was “no longer an act of pro-
tected activity”—in effect, that the Act’s protections
ceased when Williams’ request was denied. This finding
is inconsistent with long-settled Board law holding that
allegedly insubordinate behavior that is part of the res
gestae of protected activity is also protected. See, e.g.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1016
Postal Service, 251 NLRB 252 (1980), enfd. 652 F.2d
409 (5th Cir. 1981).
The reason for this rule is simple and obvious. As the
Board has recognized, because tempers often flare and
emotions run high in the course of protected activity,
some leeway must be given to employee expression in
the wake of protected activity. Dreis & Krump Mfg., 221
NLRB 309, 315 (1975), enfd. 544 F.2d 320 (7th Cir.
1976). Consistent with these precepts, the Board has
held that an employee’s statement may be part of the res
gestae of protected conduct at a meeting even if the
statement is made after the meeting. Thor Power Tool,
148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th Cir.
1965) (finding an employee’s characterization of his su-
perintendent as a “horse’s ass,” immediately after a con-
tentious grievance meeting, was part of the res gestae of
the meeting); Postal Service, supra at 252 (finding the
employees’ allegedly insubordinate discussion of their
grievance immediately after a grievance meeting was
part of the res gestae of that meeting).
This case is squarely controlled by these precedents.
Roberts testified that, immediately after he denied her
request for a witness, “Ida was not happy with my re-
sponse, visibly, and she said this is a bunch of crap, and
she walked away.” Because Williams’ statement and
exit were prompted by and immediately followed
Robert’s denial, they were clearly part of the res gestae
of her protected request and were also protected.
The majority also explains that it is deferring to the
Respondent’s managerial judgment that Williams was
too upset to work with customers. But as the judge
found, there is no evidence in this record to support this
contention. There is no evidence that Williams was so
frustrated or angry as to be unable to deal with custom-
ers, as Roberts claimed. And even if she was too upset to
return immediately to the sales floor, she could have
been offered the opportunity to cool off for a few min-
utes and compose herself. It seems unlikely that Wil-
liams’ ire at Roberts would carry over into her work:
encouraging customers to try food samples. By sending
her home immediately, Roberts clearly went well beyond
what was reasonable under the circumstances, strongly
suggesting that he was responding not to Williams’ emo-
tional state, but to her protected activity.
I recognize, of course, that it is not for the Board to
second-guess employers’ legitimate business judgments.
But the Board must be satisfied that the employer’s ac-
tion reflects an actual business judgment, rather than a
pretext for retaliating against an employee for exercising
her statutory rights. Here, the record demonstrates that
Williams’ alleged emotional state was simply a pretext to
retaliate against her for asserting her right to a witness. I
therefore agree with the judge that Williams’ suspension
violated Section 8(a)(1).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT confiscate union pens and other union
related material.
WE WILL NOT promulgate and maintain an overly
broad rule prohibiting employees (associates) from talk-
ing about the Union while allowing other nonwork-
related discussions or prohibiting such discussions in
nonwork areas during nonworktime.
WE WILL NOT prohibit employees (associates) from
wearing badge backers stating their rights under Federal
labor law on the back.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our prohibitions on talking about the
Union and on wearing any kind of badge backer.
SAM’S CLUB, A DIVISION OF WAL-MART STORES, INC.
Nathan Albright Esq., for the General Counsel.
Steven D. Wheeless, Cyrus B. Martinez, and Mark G. Kisicki,
Esqs., of Phoenix, Arizona, for the Respondent.
George Wiszynski, Esq., of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Las Vegas, Nevada, on various dates from
August 5–15, 2002, on the General Counsel’s consolidated
complaint alleging that agents of the Respondent committed
numerous violations of Section 8(a)(1) of the National Labor
Relations Act. The Respondent is also alleged to have violated
Section 8(a)(3) in certain respects, including the discharge of
two employees.
SAM’S CLUB 1017
The Respondent generally denied that it violated the Act in
any manner and affirmatively contends that the two individuals
were terminated for cause.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a subsidiary of Wal-Mart Stores, Inc., a
Delaware corporation, with offices and places of business in
various cities of the United States including Las Vegas, Ne-
vada, at Pecos Road, Spring Mountain Road, and Serene Ave-
nue. It is engaged in the retail sale of bulk food and other gro-
cery items and various consumer products. In the course of this
business, the Respondent annually derives gross revenues in
excess of $500,000 and annually purchases and receives di-
rectly from points outside the State of Nevada goods, products
and materials valued in excess of $50,000. I therefore conclude
that it is an employer engaged in interstate commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers International Union,
AFL–CIO, CLC (the Union) is admitted to be, and I find is, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union is engaged in a nationwide “corporate” campaign
to organize the employees of Wal-Mart Stores and its subsidiar-
ies which has resulted in several Board cases, including one
involving events at the Spring Mountain facility in 2000.1 The
events here begin with an organizing effort initiated in early
20012 at the Spring Mountain Road, Serene Road, and Pecos
Road facilities. A petition for representation in Case 28–RC–
6002 resulted in a Decision and Direction of Election dated
November 2; however, the Union’s charges here have blocked
the election. The facts and analysis of the many allegations in
the instant complaint will be treated seriatim as they appear in
the consolidated complaint.3
B. Analysis and Concluding Findings
1. The 8(a)(1) allegations
a. By Greg Roberts, February 14, June 19, and July 3
It is alleged in paragraph 5(a) of the consolidated complaint
that on February 14 Spring Mountain General Manager Greg
Roberts told employees that the Respondent does not recognize
their right to have another employee present during investiga-

1 JD(SF)–92–01, on appeal to the Board.
2 All dates are in 2001, unless otherwise indicated.
3 During the trial, the General Counsel moved to withdraw the fol-
lowing complaint allegations (most of which concern the Pacos and
Serene facilities): pars. 5(b), (d), (f), (h), (i), and (x) and 6(b), (c), (d),
(e), (f), (g), and (j), which motion, without objection, was granted.
tory interviews. The General Counsel, however, specifically
does not argue that the Roberts denied employees this right.
This allegation arises out of an employee’s right to be repre-
sented when called by management for an interview which
might lead to discipline. In NLRB v. J. Weingarten, Inc., 420
U.S. 251 (1975), the Supreme Court held that an employee is
entitled to such representation where the employees have se-
lected a bargaining representative. And currently the Board
holds that such a right exists where employees have no desig-
nated bargaining representative (as in the current fact situation).
Epilepsy Foundation of Northeast Ohio, 331 NLRB 676
(2000), enfd. denied on grounds that the Board had changed its
rule and then given retroactive application to the change. 268
F.3d 1095 (D.C. Cir. 2001). Thus employees who have no
bargaining agent are entitled to representation at meetings with
management which they reasonably believe might result in
discipline. However, I conclude the Board does not intend that
management is required to disrupt the work of other employees
every time an employee wants to talk to a manager where there
is no reason to believe that the discussion would lead to disci-
pline. Indeed, where the employee initiates the meeting, pre-
sumptively discipline would not be in issue. Baton Rouge Wa-
ter Works Co., 246 NLRB 995 (1979).
On February 14. Sandra Mena received a regular employee
evaluation in which it was suggested she had a bad attitude. She
wanted to discuss this with Roberts. A meeting was arranged at
the outset of which she asked for an employee witness. Roberts
told her that she had asked for the meeting, it was not investiga-
tory and that she was there pursuant to the Respondent’s “open-
door” policy. Accordingly, she had no right to have another
employee present.
The General Counsel concedes that Mena had no right to
have a witness present at a meeting she requested. Neverthe-
less, he contends that in telling her so Roberts interfered with
her Section 7 rights and thereby violated Section 8(a)(1). I
disagree. There is no authority of which I am aware making it
an unfair labor practice for an employer to tell employees they
have no right to something to which they have no right. To
find an unfair labor practice on these facts would be tantamount
to finding that Roberts should have allowed Mena to have a
witness, even though, the parties agree, she was not entitled to
one.
Since Roberts was not required to allow Mena to have a wit-
ness, it was not unlawful for him to say so. I further find that
this was the sum of Roberts’ comment. I do not believe, as
specifically alleged in the complaint, that he told her that the
Respondent does not recognize Weingarten as a general propo-
sition. Indeed, Mena did not so testify. In the fact situation
presented, there is no reason for him to have said more than
Mena was not entitled to representation. I conclude that the
Respondent did not violate Section 8(a)(1) as alleged in para-
graph 5(a).
The situation involving Ida Williams, however, was differ-
ent. In brief, Williams and her supervisor, Jeff Tuesburg, had a
confrontation on June 19 which led Tuesburg to arrange a
meeting for them with Roberts. Williams asked employee Ke-
man Clute to go with her. When they met with Roberts, Rob-
erts said that they were not “coaching”—that they were just
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1018
talking. Therefore, Williams did not need representation and
for Clute to go back to work. Clute did so.
Roberts’ version of this event is substantially the same as
that of Williams and Clute. Roberts testified that Tuesburg
approached him and said he needed to have Roberts meet with
him and Williams and Roberts agreed. Williams arrived with
Clute and Roberts asked why was Clute present. Williams said
he was to be a witness for her. Roberts said, “Ida, this is not an
investigation. You are approaching me. It would be inappro-
priate to have a witness being that this is not an investigation,
so Keman does not need to be here at this time.” Roberts testi-
fied further that Williams “was not happy with my response,
visibly, and she said this is a bunch of crap, and she walked
away.” Roberts then said, “I’m going to ask that you go home
for the day.”
It is clear from the testimony of Williams and Roberts that
the meeting between them was not, as testified to by Roberts, at
the instigation of Williams. Her immediate supervisor had
requested the meeting because he and Williams had had a con-
frontation. Therefore, Williams certainly could have concluded
that the meeting might result in some form of discipline. This
is particularly true since she had received a written discipline 5
days earlier which stated that the next level of corrective action
would be “D-Day up to and including termination.” On these
facts, she was entitled to be represented by another employee.
In denying her this right, Roberts violated Section 8(a)(1), as
alleged in paragraph 5(n).
The parties are in substantial agreement concerning the facts
involving Marsha Wardingley on July 3. According to Roberts,
he had determined to give Wardingley a “coaching for im-
provement” and had instructed Wardingley’s supervisor to
bring Wardingley to the personnel-training coordinator’s office.
When he told Wardingley that she would receive a written
coaching, she stopped him and “held up a Weingarten-rights
card.” He told her “this was a coaching for improvement, that
it was not an investigation and that it, again, it would be inap-
propriate to have a witness in there, based on the fact that this
was not an investigatory interview.” He also told her that if she
was uncomfortable, she could leave. She decided to stay.
The General Counsel argues that by his statements Roberts
violated the Act by telling an employee that the Respondent
does not recognize Weingarten. I disagree. As with Mena, the
General Counsel does not argue that Wardingley in fact had a
right to the presence of a witness, because the purpose of the
meeting was to announce a previously determined discipline
and not to investigate. Southwestern Bell Telephone Co., 251
NLRB 625 (1980). It cannot be unlawful for an employer to
state correctly its obligations under the Act. Accordingly, I
shall recommend that paragraph 5(q) be dismissed.
b. By Greg Roberts on May 9 and June 19
It is alleged in paragraph 5(k) that on May 9 Roberts “asked
employees to ascertain and disclose the union membership,
activities, and sympathies of other employees,” and paragraph
5(p) that on June 19 he “interrogated its employees about their
union membership activities, and sympathies.”
The allegation in paragraph 5(k) is apparently based on the
testimony of Wardingley that at a morning meeting of employ-
ees around May 7 Roberts told employees that “we were not
allowed to talk about the Union on or off the clock, in or out-
side of the Club including the parking lot.” And, Roberts said,
“[Y]ou can talk about baseball, football, the weather, but you
cannot discuss the Union in this club.” Finally, “We were told
that if he got wind of anybody talking about it on the clock or
off the clock that he encouraged partners to come to them or
another manager and let them know. These partners would be
dealt with up to and including termination.”
Wardingley’s testimony about the extent of Roberts’ prohibi-
tion concerning talking about the Union is not supported by
others at these meetings. Nor is her testimony corroborated that
“he encouraged partners to come to them or another manager
and let them know.” Given this lack of corroboration on a
statement by Roberts which was allegedly heard by 30 employ-
ees, I decline to credit Wardingley and I do credit Roberts’
denial.
Sophia Amelia Fox was a witness for the Respondent. She
testified that at one of the early meetings where Roberts was
telling employees that solicitation was prohibited, she asked
what “if someone was to solicit me in an area that was prohib-
ited what should we do?” He told her “to try to speak to that
person yourself if they were making you feel uncomfortable
and you were not happy with what they were saying and if they
wouldn’t leave you alone or it became persistent, then you
could come and tell management if you felt you wanted to.”
Apparently, the General Counsel also relies on this testimony to
establish the violation alleged in paragraph 5(k). I do not find
in this testimony an attempt by Roberts to have employees
disclose the union membership of others. Accordingly, I shall
recommend the paragraph 5(k) be dismissed.
The allegation in paragraph 5(p) is apparently based on the
testimony of Ida Williams and occurred during the meeting on
June 19 where Williams was denied a witness and suspended.
There is nothing in Williams’ testimony which suggests that in
fact Roberts interrogated her about her union membership or
activities. Accordingly, I shall recommend that paragraph 5(p)
be dismissed.
c. By Jeff Winterboer, February 22
It is alleged in paragraph 5(c) that Serene General Manager
Jeff Winterboer threatened employees that applicants who sup-
ported the Union would not be hired and created the impression
among employees that their union activities were under surveil-
lance by the Respondent.
This allegation is based solely on the testimony of Cory
Butcher. She testified that at a general meeting of employees
on February 22, Winterboer “said they didn’t hire people at the
new Centennial store, because after reviewing the applications,
they realized that they were salts.” The General Counsel con-
tends that the reference to “salts” means that Winterboer said
the Respondent had not hired prospective employees because of
their union affiliation.
The General Counsel also argues that Butcher’s testimony
proves that Winterboer created the impression that the union
activity of employees was under surveillance. Even crediting
Butcher (who is no longer an employee). I find nothing in her
testimony which would support such a finding.
SAM’S CLUB 1019
Winterboer denied making such a statement, which denial
seems credible, particularly considering that the General Coun-
sel offered no corroborating testimony from the 20 or 30 em-
ployees attending the meeting. Further, the connotation of
“salt” argued for by the General Counsel is labor law jargon,
making it doubtful that a lay manager would use the word in
addressing employees. In addition, Carmen Adams, an em-
ployee witness called by the Respondent, testified that he did
not remember Winterboer using the word “salt” but did testify
that Winterboer said that union views would not affect the Re-
spondent’s hiring decisions.
On balance, I conclude that the evidence offered to support
the allegations in 5(c) is too weak and questionable to sustain a
finding the Winterboer violated the Act.
d. By security guard Jeff (last name unknown)
beginning February 26
There is no dispute that on or about the date alleged, the Re-
spondent did increase its security at the Serene facility and that
one of the guards did walk female employees to their cars in the
parking lot. Butcher testified that on arriving at her car, the
security guard looked in it. Misti Rice, though called by the
Respondent, testified similarly—that when she and the guard
reached her car, he would shine his flashlight in the interior.
Walking employees to their cars and looking into the cars is
alleged to have been for the purpose of discovering union re-
lated material and was therefore unlawful surveillance. Such is
a logical stretch. Further, there is no persuasive evidence that
this guard interrogated these employees about their union activ-
ity or otherwise engaged in surveillance of that activity, or that
he, as an employee of another company, was an agent of the
Respondent.
Accordingly, I conclude that the allegation in 5(e) should be
dismissed.
e. By Bill (last name unknown), March 10
Bill Buford is the Respondent’s labor manager. Butcher tes-
tified that “an African-American by the name of Bill from out
of town,” conducted a meeting of employees at which, among
other things, he showed them the antiunion movie “The Party is
Over.” She testified that he “said that if the Union and the
Company did not come up with an agreement, that they could
force us to work for 90 days at any rate of pay that they chose
to pay us.”
Rice, again on behalf of the Respondent, testified that Buford
did not make the statements attributed to him by Butcher. I
found Rice to be a credible witness and conclude that her ver-
sion of Buford’s talk is more credible than Butcher’s. Further,
the statement Butcher attributed to Buford simply makes no
sense. I therefore conclude that the General Counsel failed to
establish the allegation in paragraph 5(g) and it should be dis-
missed.
f. The alleged overly broad and discriminatory
no-solicitation rule
In paragraph 5(j), it is alleged that Roberts promulgated an
overly broad and discriminatory no-solicitation rule by prohib-
iting solicitation for the Union at the Spring Mountain facility,
including the parking lot, and threatened employees with dis-
charge were they to violate this ban. And in paragraph 5(t) this
same allegation is made from and after September 19, in addi-
tion to a ban on “talking about the Union in the breakroom, on
the floor, in the parking lot or outside picnic area of the Spring
Mountain facility.”
The Respondent’s parent company has promulgated a policy
concerning solicitation and distribution the facial validity of
which the General Counsel does contest.4 However, the Gen-
eral Counsel does argue that the Respondent discriminatorily
applied the ban by proscribing solicitation for the Union while
permitting solicitation in opposition to the Union on the sales
floor during employees’ working time and by changing its pol-
icy of allowing solicitation for nonunion-related matters such as
Avon, Tupperware, and Girl Scout Cookies.
Following the close of the hearing I chanced to see a TV ad
on behalf of Wal-Mart Stores, Inc., which appears to suggest
that the Respondent’s parent company, and author of the no
solicitation policy, not only condones but encourages a variety
of activity which would generally come within the no solicita-
tion ban inside its buildings during store hours—including
bingo games, marching bands, and clowns. I asked counsel to
comment on this ad and whether it has any bearing on the is-
sues here. They responded, the General Counsel contending
that the ad proves that the no solicitation policy is construed
and applied in a discriminatory manner. The Respondent ar-
gues that the policy is not an issue—that the only issue is
whether Roberts told employees they could not talk about the
Union while on the sales floor. I have concluded that the ad is
in fact germane to the issues alleged in the complaint. I receive
a copy of the 30-second version of the ad into evidence as Gen-
eral Counsel Exhibit 42.5
As a general rule, to insure good order and discipline on the
sales floor, a retail employer can restrict solicitation in the sell-
ing areas. E.g., McBride’s of Naylor Road, 229 NLRB 795
(1977). Unquestionably, however, applying a valid no-
solicitation rule in a discriminatory manner by allowing solici-
tation for nonunion matters while proscribing union solicitation
is unlawful. Clinton Electronics Corp., 332 NLRB 479 (2000).
The TV ad clearly shows that activity which would clearly be
as disruptive as union solicitation is condoned and encouraged
as a matter of policy. Therefore, I conclude that as construed,
the no-solicitation policy discriminates against soliciting for
unions. I reject the Respondent’s contention that the ad does
not really condone solicitation, but is a marketing tool designed
to show that Wal-Mart Stores are a “fun” place to be. Of
course the Respondent can market in any way it pleases, pro-
vided that it does not set up rules which discriminate against
employees for engaging in activity protected by Section 7 of
the Act. The Respondent could decide that allowing solicita-
tion for charities is a good marketing tool. That would not

4 The Union argues that notwithstanding the facial validity of the
policy, it should be found unlawful because it was adopted in response
to the Union’s organizational activity. There are no facts to support the
Union’s contention in this regard. Further, this argument was appar-
ently considered, and rejected, by the General Counsel.
5 Counsel advises that there is also a 60-second version.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1020
permit it to allow solicitation for such charities while denying
employees the right to solicit for a union.
The Respondent further argues that no one has been disci-
plined for soliciting on behalf of the Union and therefore no
violation can be found. I reject this argument. Absence of
enforcement does not preclude finding a violation of the Act for
announcing an unlawful no-solicitation policy. J. C. Penny
Co., 266 NLRB 1223 (1983).
Additional fact issues here are whether the Respondent al-
lowed solicitation against the Union on the sales floor on work-
time; whether Roberts amended the solicitation policy to in-
clude prohibiting employees from “talking” about the Union on
the sales floor during their working time and whether he told
employees they could not distribute literature in the parking lot.
The only evidence that the Respondent permitted employees
to solicit against the Union on the sales floor is from the testi-
mony of Sandra Williams. She testified that in the timeframe
of September–November she observed employee Mary Chap-
man sell a procompany pin to another employee. Williams
testified that she reported this to Assistant Store Manager Noel
LeBlanc who told her that he would look into the matter.
LeBlanc testified for the Respondent, but was not questioned
about this incident. Chapman did not testify. I therefore find
that this event occurred essentially as testified to by Williams.
However, I also conclude that Williams’ testimony does not
prove that the Respondent allowed solicitation against the Un-
ion on the sales floor. One occurrence in a store this large over
a period of several months seems de minimus. If such solicita-
tion was common, surely there would have been testimony of
additional incidents. There was none. In addition, LeBlanc’s
statement to Williams that he would look into the matter does
not prove the Respondent condoned what Chapman did. To the
contrary, his statement to Williams more indicates that the Re-
spondent did not condone sales floor solicitation.
The allegations in paragraph 5(t) concern whether, and to
what extent, Roberts amended the company policy in his re-
marks to employees and expanded the solicitation rules in an
unlawful manner to prohibit “talking” about the Union and
prohibiting distribution of union literature in the parking lot.
Keman Clute was employed from May 1996 until August
2001. He ceased employment with the Respondent on good
terms and has no apparent stake in the outcome of this proceed-
ing. He testified that beginning in May, during Roberts’ regu-
lar morning meetings with employees, Roberts discussed the
Respondent’s no solicitation policy and “[h]e basically stated
that we were not allowed to talk about the Union on the clock.
We were not allowed to talk about it in the store or in the park-
ing lot because that pertained to the no-solicitation policy as
well . . . that we weren’t allowed to talk about anything that
related to the Union, but we were allowed to talk about stuff
like the weather or baseball or stuff like that.” Clute’s under-
standing was confirmed by others—that “talking” about the
Union on the sales floor while employees were working was
prohibited.
However, there is also testimony from these employees that
they routinely did in fact talk about the Union while working on
the sales floor and were not disciplined for doing so. Indeed,
Sandra Mena testified that she asked Roberts if it was all right
for her to tell other employees who were working about union
meetings and he said that would be permissible.
Roberts testified that in his meetings with employees he did
not vary from his talking points concerning solicitation and
distribution rules and that those rules do not “prohibit talking
about the Union anywhere in the Club.” Roberts was asked by
employees on several occasions what he meant by “solicita-
tion” and he explained that meant attempting to sell something.
“[A]n employer violates Section 8(a)(1) when, as here, em-
ployees are forbidden to discuss unionization while working,
but are free to discuss other subjects unrelated to work, particu-
larly when the prohibition is announced in specific response to
the employees’ activities in regard to the union organizational
campaign.” Teledyne Advanced Materials, 332 NLRB 539
(2000). No doubt there is a distinction between “talking” and
“solicitation.” E.g., W. W. Grainger, Inc., 229 NLRB 161, 166
(1977). But that line can become blurred if the talking is more
than perfunctory. In any event, the Respondent’s policy defines
solicitation: “To request or seek business, donations, help, or
the like. This includes charitable giving or fundraisers.” The
policy does not proscribe talking about a wide range of sub-
jects, including the Union. Though it is disputed whether Rob-
erts said “talking” was prohibited, unquestionably employees
did talk about the Union on the sales floor while on the clock
and none was “coached” or disciplined in any way for doing so.
And on at least one occasion Roberts told an employee that
mentioning a forthcoming union meeting was permissible. I
therefore conclude that Roberts did not tell employees that
talking about the Union, as distinct from soliciting for it, was
proscribed.6
Finally, the General Counsel contends that solicitation for
such items as Avon, Tupperware, and Girl Scout Cookies was
allowed prior to the advent of the organizational campaign.
Therefore, the Respondent discriminatorily promulgated and
enforced its no-solicitation rule by changing its past practice.
There is minimal evidence that prior to the organizational
campaign in fact the Respondent allowed solicitation in work-
ing areas during worktime. Two employees testified that dur-
ing an exchange at one of Roberts’ meetings, employee Terry
Roberts asked if she could solicit for an AIDS related organiza-
tion as she had done in the past. He told her this could only be
done in the breakroom. Terry Roberts did not testify about her
prior solicitation activity, if any.
On this record I cannot conclude that the Respondent prohib-
ited talking about the Union on the sales floor nor can I con-
clude that Roberts threatened employees with discharge for
violating an unlawful rule.

6 Sandra Mena testified that on one occasion another employee ap-
proached her asking her what the Union had to offer; then Merchandise
Manager Jamie Durand “came to me and said you know we’re not
supposed to be talking about the union.” Durand testified that he ob-
served Mena talking to another employee and holding onto that em-
ployee’s shirt sleeve as he was trying to walk away. Durand testified
that he told Mena she should not do that. I credit Durand’s version of
this event and conclude that this is no evidence that the Respondent
prohibited talking about the Union.
SAM’S CLUB 1021
g. By Terry Roberts and Alex Rona, early June
In early June, the Respondent moved the membership desk
to a smaller area. In order to accommodate the move, Greg
Roberts told Team Leaders Terry Roberts and Alejandra Abril
to go through the filing cabinets and throw away nonessential
material. Unquestionably they did so, throwing away basically
anything that did not belong to the Respondent or was no
longer useful, including pens with the Union’s logo which San-
dra Williams had stored in a filing cabinet drawer.
Abril testified that a week before this housecleaning employ-
ees were informed what was to happen. However, there is no
evidence that Williams was told that her personal items, includ-
ing the pens, would be disposed of and Williams credibly testi-
fied that she was not informed.
Although the evidence does tend to suggest that the pens
where not treated differently from other personal items em-
ployees had placed in the filing cabinets, there is no question
that agents of the Respondent, in fact, took the pens and dis-
posed of them. I conclude that such act amounts to confisca-
tion of union material and was violative of Section 8(a)(1).
Jennie-O Foods, 301 NLRB 305 (1991) (violation found when
employer asked employee for a union pen and it was given
voluntarily, thus no confiscation, but employee was subse-
quently told not to use it).
h. Discriminatory dress code
By memorandum dated June 5, the Respondent’s executive
VP operations announced a new name badge policy to all
Sam’s Club general managers. So far as is material to this case,
the new policy prohibited employees from having other than an
approved badge backer; required employees to wear the badges
on lanyards approved by the Respondent with its logo; and
prohibited employees from wearing pins on their lanyards.
Thus, the new policy prohibited employees from having a
badge backer which states the employee’s Weingarten rights;
wearing lanyards with the Union’s logo, and from affixing
union buttons to their lanyards. Such is alleged to have been
violative of Section 8(a)(1). I agree.
It has long been the Board’s policy that employees have the
protected right to wear union insignia. Republic Aviation Corp.
v. NLRB, 324 U.S. 793 (1945). Only where the employer dem-
onstrates “special circumstances” can the wearing of insignia
be prohibited. The cases where the Board has considered this
question are legion and basically are controlled by the special
facts of the situation, including the effect such insignia might
have on the employer’s customers, production, safety, or plant
discipline. For a recent compilation of cases, see Albis Plastics,
335 NLRB 923 (2001) (requiring certain insignia—and there-
fore prohibiting union insignia—permitted for safety reasons).
There is no evidence that employees having a Weingarten
rights badge backer, wearing a union lanyard, or wearing union
buttons on their lanyards had any kind of detrimental effect on
customers, or that such affected production or store discipline.
The fact that the new lanyards have breakaway snaps “for
safety reasons” does not make the new policy lawful. While it
may be that breakaway snaps provide some degree of safety,
there is no evidence of any harm being caused by lanyards
without such snaps, nor does reason suggest that safety would
be more than an abstract concern. This is a retail store not a
manufacturing plant. The mere fact that the Respondent says
there is a safety concern does not make it so. In short, the Re-
spondent did not prove special circumstances for its new name
badge policy. I therefore conclude that the policy infringed on
employee Section 7 rights in violation of Section 8(a)(1).
The fact that the new policy was companywide does not
make lawful an otherwise unlawful infringement on employee
rights. Accordingly, I conclude that the new policy, prohibiting
Weingarten cards on the back of name badges, prohibiting un-
ion lanyards, and prohibiting union pins on the lanyards vio-
lated Section 8(a)(1).
i. Alleged unit packing
In paragraph 5(r) it is alleged that beginning in October, the
Respondent attempted to undermine the Union’s support in the
anticipated Board conducted election at the Spring Mountain
store by (a) increasing the number of bargaining unit employ-
ees, (b) demoting supervisors to bargaining unit jobs, and (c)
delaying the promotion of unit employees to supervisory posi-
tions.
An employer violates Section 8(a)(1) where it hires a sub-
stantial number of new employees prior to a representation
election in order to “pack the unit” and thereby dilute the un-
ion’s strength. Sonoma Mission Inn & Spa, 322 NLRB 898
(1977). However, to prove such a violation, the General Coun-
sel must show, among other things, that the employer had some
knowledge that the new hires would oppose the Union. Fur-
ther, there must be an absence of a good business reason for the
timing and number of employees hired. D & E Electric, 331
NLRB 1037 (2000) (no violation where the company was not
shown to have knowledge of the new employees union sympa-
thies and there was a good business reason for the hiring).
The Respondent’s records show that at Spring Mountain it
has had a staff of hourly employees (less supervisors) between
September 1999 and December 2001 ranging from 188 to 227.
In September 1999 there were 214 such employees. In 2000
this figure was between 214 and 227. In 2001 the numbers
dropped from 206 in January to 188 in September. Then in
October the number increased to 218 and was 214 in November
and 217 in December.
The increase between September and October, the General
Counsel alleges, represents an attempt by the Respondent to
pack the bargaining unit, the petition having been filed on Sep-
tember 19 and the eligibility cutoff date being the pay period
preceding the November 2 Decision and Direction of Election.
Although the parties arrive at different conclusions as to how
many unit employees were hired in October, there is no doubt
the number was substantial and indeed the Respondent admits
that more employees were hired in October 2001 than in previ-
ous Octobers. The Respondent’s records show that its yearly
hiring is fairly constant, but its monthly hiring 2001 was some-
what skewed. In response to the General Counsel’s subpoena,
the Respondent submitted two sets of records naming the indi-
viduals hired between August and November for the years
1999, 2000, and 2001. These records reflect somewhat differ-
ent numbers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1022
Thus, General Counsel Exhibit 26, styled “Associates Hired
at Club 6382 August–November 1999–2001” shows:
New hires
in
August–
September
October November Total
1999 33 16 10 59
2000 22 3 22 45
2001 12 36 11 59
General Counsel Exhibits 29, 30, and 31 are for the individ-
ual years and give more detailed information, including posi-
tion and separation date, if any, but they show only the week
the employee was hired. Nevertheless, these records are con-
sistent with General Counsel Exhibit 26.
Although the Respondent argues that these exhibits are not
definitive as to which employees would be in the bargaining
unit, at a minimum they prove a substantial increase in the
number of employees hired in October 2001 over 2000. And
the question is whether this demonstrates unit packing or, as
argued by the Respondent, simply reflects a catching up on
hiring because Roberts had been too busy with the store remod-
eling and the grand reopening in September and the representa-
tion hearing. I conclude that the numbers more suggest catch-
ing up than unit packing.
From the records, it appears that there is a steady turnover of
employees requiring that the Respondent hire around 8 to 10
percent of its total employee complement each month. For
instance, of the 36 employees hired in October, 10 had been
terminated by December. Tending to support Roberts’ testi-
mony, the records show that only 12 employees were hired in
August and September, as against 33 in 1999 and 22 in 2000.
Thus, by October it appears that the Respondent was behind in
its hiring. This does not explain why a relatively large number
of new hires were employed in October, with only 11 being
hired in November. Nevertheless, the records do not clearly
dispute the Respondent’s contention that it was behind in its
hiring in October or that the number of employees hired in
October was out of line with its past practice and business
needs. In short, I conclude that absent the Union having filed a
petition for an election, the hiring done by the Respondent in
October would probably have been substantially the same.
In addition, there is no evidence that the Respondent polled
prospective employees concerning their union sympathies or
otherwise had any reason to believe that the newly hired em-
ployees would or would not be sympathetic to the Union. I
cannot assume that the Respondent’s hiring team in fact made
such inquiries of the applicants or that those hired were thought
to be opposed to the Union. To the contrary, Jason Russin was
apparently in favor of the Union and he was hired on October 4.
While the numbers raise the suspicion of unit packing, I find
insubstantial evidence that such was the case.
The General Counsel and Charging Party seem to argue both
that Candy Proffitt was at all material times a supervisor (see
par.5(w), sec. (m) below) and that she was demoted from her
supervisory position in order affect the outcome of the antici-
pated election. The Respondent argues that she was a team
lead until May when she was assigned to the remodeling team
and began working nights. After the remodeling was finished,
she returned to days but not as a team lead and therefore not as
a supervisor. However, the Respondent’s records show that in
July she was evaluated as a “Floor Lead.”
Following the representation case hearing in this matter, the
Decision and Direction of Election excluded team leads from
the bargaining unit as being supervisors. However, the Re-
spondent asserts some kind of estoppel in that Proffitt’s status
was not litigated nor did the Union object that her name was on
the voter eligibility list. I reject this contention. Regardless of
whether Proffitt’s specific status was litigated, no doubt gener-
ally it was found that team leads are supervisors. The time to
object to inclusion on the voter eligibility list is when the indi-
vidual votes.
Proffitt testified that as a team lead she received an addi-
tional 50 cents per hour, which she still gets even though Rob-
erts told her that her position as a lead would no longer recog-
nized by the Respondent. In her current job she did grant an
employee time off, and does give directions to other employees.
The Respondent argues that Proffitt “voluntarily” undertook
these supervisory duties. I conclude otherwise. She clearly
thought she was still a supervisor as did the employees she
directed. I conclude there was never a change in her status. If
there had been, at a minimum, the Respondent could have done
more to announce this to employees. Although a low-level
supervisor, she has been a supervisor none the less. She is
experienced, and has been transferred to various jobs no doubt
because of her competency, for which she has been recognized.
But for the prospective election, I doubt there would be an issue
as to her supervisory status.
However, the fact that the Respondent takes the position that
a supervisor should be in the bargaining unit is not an unfair
labor practice. I take notice that nothing is more common in
representation proceedings than the parties arguing for unit
inclusions and exclusions based on their perceptions of the
sympathies of the individuals in question. In any event, I con-
clude that Proffitt continues to be a supervisor and was not
demoted in order to pack the unit.
Evangeline Blanchard applied for a posted position of
checkout supervisor, probably in October, and was told by
Roberts in late October (or possibly November) that she was
successful but that she needed additional training. She was
promoted in January 2002. It is alleged that the delay in pro-
moting Blanchard to a supervisory position was an attempt by
the Respondent to insure a “no” vote in the anticipated election,
Blanchard having signed an antiunion letter.
The Charging Party argues that others have been promoted
without the additional training required for Blanchard. There-
fore, this reason for the delay is bogus from which I should
infer an unlawful motive. While others may have been pro-
moted without specifically having the training Blanchard had,
there are no facts about their previous experience. Therefore no
valid comparison can be made. On balance, the suggestion that
Blanchard’s promotion was delayed so that the Respondent
could insure an additional “no” vote is too weak on the facts to
sustain a violation of the Act for unit packing.
From the above, I conclude that allegations in paragraph 5(r)
should be dismissed
SAM’S CLUB 1023
j. Withholding benefits
It is alleged, and not disputed, that the day after the Union
filed its petition for election Roberts announced that merit
raises would be suspended pending the election so as to avoid
the appearance of the Respondent attempting to buy votes.
As a general proposition, during a union organizing drive the
employer must proceed with wage increases and other benefits
as if there was no campaign. “An exception to this rule, how-
ever, is that an employer may postpone such a wage or benefit
adjustment so long as it ‘[makes] clear’ to employees that the
adjustment would occur whether or not they select a union and
the ‘sole purpose’ of the adjustment is to avoid the appearance
of influencing the election’s outcome.” Grass Valley Grocery
Outlet, 332 NLRB 1449 (2000), quoting from Uarco, Inc., 169
NLRB 1153, 1154 (1968). The issue thus is whether Roberts’
statements to employees met the Board’s conditions. I con-
clude they did not.
All witnesses are in substantial agreement that Roberts told
employees that merit increases would be suspended temporarily
pending the election. No one, however, including Roberts,
testified that they would be resumed regardless of the election’s
outcome. For instance Roberts testified:
[O]ne of those things I mentioned, what I called laboratory
conditions, and spoke to the associates and let them know that
merit increases would frozen, put on hold because of the fact
the petition was filed and I did not want, we did not want, I
did not want it look as though we were swaying someone’s
vote based on a discretionary increase. However, that the
merit increases would be reinstated after the proposed vote.
Although Roberts told employees that the merit raises would
be postponed so as to avoid the appearance of influencing the
vote, and that they would be resumed after the election (as dis-
tinguished from outright cancellation as in Grass Valley), he
did not tell them that the increases would be resumed regardless
of the election result. Whether this omission was inadvertent or
purposeful makes no difference. The employees were not in-
formed and that is the crux of the violation. Nor is there any
basis to assume or imply that Roberts meant the increases
would resume no matter how the vote turned out or that em-
ployees would reasonably believe such to be the case. Since
announcing postponement of wage increases is an exception to
a well-established policy, all conditions must be met for the
exception to apply.
Employees were told that merit increases would be frozen
pending the election, so as to avoid the appearance of influenc-
ing the vote, and they would be resumed after the election. The
employees were not told that resumption would occur regard-
less of how they voted. Such an omission could reasonably
lead them to conclude that resumption of the wage increases
would depend on voting against the Union. I therefore con-
clude that suspending the merit wage increases was violative of
Section 8(a)(1) of the Act.
k. November 14 threats by Scott Farrington through
Charity Brio
The allegation in paragraph 5(u) is based on the testimony of
Linda Gruen and Mary Lou Wagner.7 They testified that on the
evening of November 14, as prounion employees were hand-
billing in the parking lot, Charity Brio (named Bobbitt in the
complaint) told them that she was dating a manager, Scott Far-
rington, and that he said they were all going to be fired because
of their union activity.
There is no evidence that Brio was a supervisor or agent of
the Respondent for any purpose. The contention is, apparently,
that the Respondent is bound by her statement to employees
because she asserted that she was dating a manager and there-
fore under some kind of apparent authority theory, employees
could reasonably believe that she was acting for the Respon-
dent. There is no evidence that in fact Brio had any kind of
relationship with Farrington. She was not called as a witness.
Farrington denied that he had dated Brio. The only linkage was
Brio’s untrue statement that she was dating a manager, a state-
ment not shown to have been known to any of the Respondent’s
managers. Thus, the assertion of agency is based on an em-
ployee’s false statement to other employees. The General
Counsel has cited no case authority to support such a proposi-
tion. Therefore, even if Brio told employees that they would be
fired for their union activity, such is not a threat for which the
Respondent can be found liable. Accordingly, I shall recom-
mend that paragraph 5(u) be dismissed.
l. Condoning misconduct directed at prounion employee
It is alleged in paragraph 5(v) that Managers Roberts, Du-
rand and LeBlanc “encouraged and condoned its employees
engaged in misconduct directed at its employees who supported
the Union.” This allegation is based on the testimony Gruen
and Wagner to the effect that they attempted to give a flyer to
employee Dee Dee Lopez, who drove her car close to them and
away at a high rate of speed. The General Counsel asserts that
the named managers, standing inside the store but looking out
to the parking lot, observed this, did nothing, and therefore
condoned this misconduct.
Wagner further testified that she complained of this incident
to Durand. He testified that he in fact talked to Lopez about
being more careful in her driving. Wagner also talked to Rob-
erts about the incident and he said he would look into it. He
testified that he directed LeBlanc to tell Lopez to drive in a
more professional manner.
It may well have been the case, as testified to by Cruen and
Wagner, that when they approached Lopez with a hand bill she
drove away too close to them and at a speed excessive for a
parking lot. Other than the fact that managers may have wit-
nessed this, there is no evidence that this behavior by Lopez
was condoned, even if it was misconduct. Roberts credibly
testified that upon being informed of their assertion by Wagner
he looked into the incident and concluded the facts were am-
biguous, but he nevertheless instructed his assistant to caution
Lopez about her driving in the parking lot.

7 This is the spelling of Wagner as it appears in the transcript. It is
spelled Waggoner in the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1024
I conclude that evidence of the Respondent condoning mis-
conduct by employees against union supporters is simply too
slim to support the violation alleged. Accordingly, I shall rec-
ommend that paragraph 5(v) be dismissed.
m. Polling employees by Candy Proffitt
As noted above, Proffitt is and has been a supervisor within
the meaning of Section 2(11), notwithstanding the Respon-
dent’s contention that she ceased being a supervisor in May.
Proffitt testified that she made available to, and collected from,
employees a letter to the Union which stated that the signatory
was opposed to union representation and that “we . . . don’t
want you in our Club.” According to Proffitt, the letter was
drafted by an employee named Kelly and two other employees
participated in distributing the letter. At a regular employee
meeting, according to Robert Padilla and not disputed, Roberts
thanked employee Sophia Fox for having collected 130 letters
supporting the Company.
The Board has long held that an employer violates Section
8(a)(1) where it solicits employees to sign a petition aimed at
decertifying the union representative of employees. E.g., D&H
Mfg. Co., 239 NLRB 393 (1978). The letters here, disclaiming
interest in the Union, are similar in concept to a petition for
decertification. Therefore, the active participation in soliciting
signatures and collecting such letters by a supervisor is viola-
tive of Section 8(a)(1).
The Respondent does not really disagree, contending only
that Proffitt was not a supervisor within the meaning of Section
2(11). Having found that Proffitt was at all times a supervisor,
I conclude that her participation in soliciting signatures and
collecting the letters was a violation of Section 8(a)(1) as al-
leged in paragraph 5(w). That Roberts publicly thanked an
employee for her efforts in collecting those letters tends further
to show the Respondent’s knowledge, approval, and therefore
support of this activity.
2. The 8(a)(3) allegations
a. Discipline and discharge of Sandra Mena
In paragraph 6(a) it is alleged that the Respondent issued an
unwarranted and undeserved disciplinary warning to Sandra
Mena on February 18 and in paragraph 6(l) that she was dis-
charged on May 27, 2002, both in violation of Section 8(a)(3).
On brief, the General Counsel also asserts that a written warn-
ing given to Mena on July 19 was violative of Section 8(a)(3).
The facts surrounding Mena’s discipline on February 18 and
her discharge more than a year later are not in serious dispute.
Nor is there a dispute about the warning given her on July 19;
how those facts are interpreted is. Mena was a known union
advocate and indeed had hand-delivered a letter to Roberts on
February 8 in which she stated her position in favor of the Un-
ion. The General Counsel argues that she was disciplined and
discharged for the same kind and number of cash register dis-
crepancies other employees had and were not disciplined for.
The Respondent argues that in fact other employees not known
to be in favor of the Union were disciplined for the same kind
of cash register errors. Further, when Mena was discharged,
she was recommended for rehire.
The well-established test for determining whether an indi-
vidual has been disciplined or discharged in violation of Sec-
tion 8(a)(3) is whether the company would have taken the same
action in the absence of any union activity. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). While a company cannot seize
upon apparently legitimate reasons to disguise its true (and
unlawful) motive, neither is it required to cease doing business
in its usual and customary way just because there is a union
campaign.
Some factors in determining whether the discipline or dis-
charge of an employee was discriminatory include: whether and
to what extent the employee was known to be a union sup-
porter; the nature and extent of any animus against the union or
supporters of the union; the relative seriousness of the disci-
pline vis-à-vis the offense; and whether other employees (espe-
cially those not known to be union supporters) were disciplined
in a similar way for similar acts. Mena was known to be a un-
ion supporter and on this record, I find there was animus
against the Union. However, her work record and the lack of
timing of her discharge to her union activity tend to prove her
discharge was for cause and not because of this activity.
Mena was hired on August 18, 1999, and a few months
thereafter became a cashier. During her tenure, she received
numerous “pink slips” which note cash register discrepancies
such as overages, shortages, and missing debit/credit card slips.
Such discrepancies and pink ships for them are not uncommon.
In evidence, for instance, are 34 “coaching for improvement” of
other employees based on pink slips. The Respondent’s re-
cords also indicate that Mena received more than her share of
pink slips. Thus in 2000, she had 17; in 2001, 19; and to the
date of her discharge on May 23, 2002, she had 11. Her annual
cash register discrepancies were increasing, even though she
testified that she was not responsible for them. Additionally,
she denied that she had been “coached” about pink slips in
2000; notwithstanding an undenied note on her 2000 “cashier
over/short report” (an exhibit I credit) which shows that in fact
she received a first written coaching on June 28, 2000.
In evidence are two policy statements of the Respondent
dealing with cash register discrepancies: “Pink Slip Guidelines
for Region 41 Updated August 2001” and “Cashier Account-
ability.” Both recognize levels of discrepancies, from a long or
short of $5 to a long or short exceeding $150. Both note pro-
gressive discipline for accumulating multiple pink slips, though
the discipline scheme is somewhat different in each.
Mena had pink slips on January 22, February 12, 15, and 18,
2001, for which she received a verbal coaching. One of the
pink slips was more than 5 days old and under the Respon-
dent’s policy should not have been used against her. Therefore,
the General Counsel argues the coaching was discriminatory
since she had hand-delivered a letter to Roberts on February 8
stating her support for the Union and had been given an unrea-
sonably poor performance evaluation also on February 8.
The fact that an employee is known to support a union’s or-
ganizational effort does not imply that all personal actions
against that employee are unlawful. I find here that the verbal
coaching for four pink slips within a 30-period was consistent
with the Respondent’s policy and its treatment of others not
SAM’S CLUB 1025
known to be union supporters, even if, technically, one of the
pink slips should not have counted against her.
Although not alleged violative of the Act, the General Coun-
sel contends that Mena’s performance evaluation of February 8
shows bias against her for her union activity because there are
two comments suggesting she has “too negative an attitude.”
The fact is that Mena’s evaluation was satisfactory and based
on it she received a wage increase of 30 cents per hour. Al-
though “negative attitude” might be code for a union sup-
porter,8 there is no evidence that here it is. Mena delivered her
letter in support of the Union on the day of her evaluation,
which presumably had already been written. Further, notwith-
standing the negative attitude comments, her grades in these
categories were satisfactory. There is no indication in the re-
cord that in fact Mena was other than a satisfactory employee.
On July 19, Mena received a written coaching because a
Discover card receipt was missing from her till. Mena refused
to sign this form, and the General Counsel argues that the dis-
cipline was unlawful, because, as she testified, “I believe in my
and heart and my soul, it was not lost.” Her belief is based on
her testimony that she used paper clips to secure the paper of
every transaction. Nevertheless, she acknowledged that both
before and after her union activity began she received pink slips
for missing card receipts. I don’t believe Mena’s belief is suf-
ficient evidence on which to base a finding that the discipline of
July 19 was bogus.
In March 2002, Mena received four pink slips and another
written coaching, which under the Respondent’s system was a
“Decision-Making Day.” This coaching was not alleged to
have been unlawful, and indeed appears based on the Respon-
dent’s pink slip policy. On the form it was noted that if her
performance continued there would be further disciplinary ac-
tion, “up to and including termination.”
Then in May Mena received four more pink slips, three of
which were for overages of $40 (she had not given the cus-
tomer change on a debit card transaction) and one for an over-
age of $10.45. She was terminated, but on the exit interview
form it is noted that she was recommended for rehire.
The General Counsel argues that other employees had pink
slips, but were not disciplined or discharged pursuant to the
Respondent’s policy for the particular discrepancy, therefore,
Mena was treated disparately and given her known union activ-
ity, the reason must have been because of that activity. I dis-
agree that the evidence proves this argument. There are liter-
ally hundreds of cash register errors which the Respondent
tracks and notes every day. Some result in pink slips, others
not. Not all pink slips result in discipline. Such depends on the
number of discrepancies and their seriousness. It may be that
other employees could have been disciplined or discharged, but
such does not mean that Mena was treated disparately. She had
a total employment history of cash register discrepancies, most
of which she acknowledged and many of which occurred prior
to her union activity. There is no showing that any other em-
ployee had as many over as long a time. By the time of her
discharge in May 2002, she had already received 11 pink slips
for the year.

8 E.g., Cook Family Foods, 311 NLRB 1299, 1319 (1993).
Active support for a union does immunize an employee from
discipline or discharge for failing to do his or her job in the
manner required. Here, Mena’s record is such that I conclude
she would have been discharged when she was in the absence
of her union activity, or union activity in general. Indeed, had
the Respondent really been of a mind to discriminate against
her, it likely would have done so much earlier. And she would
not have been recommended for rehire. On the total record, I
conclude that Mena was not discharged in violation of Section
8(a)(3).
b. Suspension of Ida Williams
It is alleged in paragraph 6(h) that the Respondent violated
Section 8(a)(3) when Roberts sent Ida Williams home on June
19. As noted above, on that day Williams had a confrontation
with her supervisor, Jeff Tuesburg, which resulted in Tuesburg
arranging a meeting between them and Roberts. When Wil-
liams showed up with another employee as a witness, Roberts
told her she was not entitled to a witness and sent that em-
ployee back to work. Williams became upset, said “this is a
bunch of crap,” and walked off. Roberts said he would not
have her working with customers in the state she was in and
suspended her for the day.
The General Counsel argues that this suspension was viola-
tive of the Act. The Respondent maintains that Roberts was
justified in suspending her because of the anger she displayed
and that other employees had been similarly suspended.
There is little question, and I find, that the suspension of
Williams was directly a result of Roberts’ having unlawfully
refused to allow Williams to have a witness. Since Williams’
request for a representative was union as well as protected con-
certed activity, I conclude that Roberts violated Section 8(a)(1)
and (3) when he suspended her. Although Williams may well
have been upset when Roberts denied her a witness, there is no
real evidence that she would have carried this to her job or
otherwise was unfit for work in a retail store. I conclude that
Roberts was not justified in suspending Williams and did so
only because she questioned his decision in denying her a wit-
ness. Saying “this is a bunch of crap” is not to be condoned,
but neither is the phrase sufficiently demeaning to Roberts or
the Respondent to conclude that it was serious misconduct on
the part of Williams. What Williams said was actually mild
and far from being so opprobrious as to justify discipline. See
Transport America, Inc., 320 NLRB 882 (1996).
c. Refusing to consider May Lou Wagner for transfer
Mary Lou Wagner was rehired by the Respondent on May
23 and thereafter was active in the organizational campaign in
that she wore a union lanyard, which was known to the Re-
spondent’s managers, and attended union meetings, which was
not. At least there is no evidence that the Respondent’s manag-
ers would have known of her attendance at such meetings.
In September or October, Wagner put her name on postings
for two positions, but was not interviewed for either. At the
time she had about 4 months of service. The Respondent ar-
gues that one requirement for accepting an employee’s applica-
tion to transfer from one job to another is a minimum of 6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1026
months’ employment. Since Wagner did not qualify, she was
not considered.
The General Counsel argues that the 6 months’ requirement
is a “sham” from which I should infer that the true motive for
not considering her was her union activity. The General Coun-
sel points to records showing that other employees have been
transferred with less than 6 months of service. On this the Re-
spondent notes that there is no evidence that any of these em-
ployees in fact applied for transfer. Roberts credibly testified
that if no one applies for a posted job he will place in the job
the person he thinks is best qualified—that his hands can’t be
tied by the fact of no one applying.
In effect, the General Counsel maintains that because of her
union activity the Respondent should have waived the 6
months’ requirement and placed Wagner in one of the jobs. I
reject the contention that it is proof of an unfair labor practice
for an employer not to waive a job requisite, especially where
there is no evidence that such had been waived in the past.
Even accepting testimony that she had been told the postings
were lost, such does not make out discrimination by the Re-
spondent. I conclude that the evidence fails to support the alle-
gation in paragraph 6(i).
d. The discharge of Jason Russin
Jason Russin was hired as a lot attendant on October 4 and
discharged on November 19, after his fourth unexcused ab-
sence. He also had clocked in early, without permission, four
times. Russin’s union activity consisted of talking to others in
smoking break area about the Union. He also testified that
Proffitt had given him a copy of the letter stating support for
the Respondent and told him to return it to her. He did not.
Notwithstanding that Russin was in his first 90 days and the
Respondent’s progressive discipline policy did not apply, the
General Counsel asserts that it should have and Russin should
not have been discharged until his sixth unexcused absence.
At best Russin engaged in minimal activity in support of the
Union. There is no persuasive evidence that the Respondent
knew of this limited activity, nor is there any reason to believe
that Russin would be signaled out for discharge. On the other
hand, there is ample evidence that Russin’s attendance during
his first 6 weeks was poor, from which the Respondent could
reasonably conclude that he would not work out as a reliable
employee.
I conclude that the General Counsel failed to establish by a
preponderance of the credible evidence that Russin was dis-
charged in violation of the Act and I shall recommend that this
paragraph be dismissed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I conclude that it should be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 9

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
ORDER
The Respondent, Sam’s Club, a Division of Wal-Mart
Stores, Inc., Las Vegas, Nevada, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Denying employees the right to have another employee
witness meetings with management which the employee rea-
sonably believes could result in discipline.
(b) Confiscating union pens and other union related material.
(c) Prohibiting employees from wearing union logo lanyards,
union pins and name badge backers stating their Weingarten
rights.
(d) Suspending merit raises pending a representation election
without telling employees they would be reinstated after the
election regardless of who won the election.
(e) Soliciting signatures of employees on letters stating the
employee’s opposition to the Union.
(f) Suspending employees because invoke the right to be rep-
resented by a fellow employee during an interview which the
employee reasonably believes could result in discipline.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action deemed necessary to
effectuate the policies of the Act.
(a) Make Ida Williams whole for any loss of wages she have
may suffered as a result of her suspension, and expunge from
her record any reference to the suspension and advise her this
has been done and that the suspension will not be used against
her in any way.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(c) Within 14 days after service by the Region, post at it fa-
cilities in the Las Vegas area copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed any facility
involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all former

Board and all objections to them shall be deemed waived for all pur-
poses.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SAM’S CLUB 1027
employees employed by the Respondent at any closed facility
since the date of this Order.
(d) Within 21 days after service of this Order, inform the
Region, in writing, what steps the Respondent has taken to
comply.
(e) The allegations in the complaint not found herein to be
unfair labor practices are dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal Law and has ordered us to post this notice and comply
with its terms.
FEDERAL LAW GIVE YOU THE RIGHT TO
To form, join, or assist any union
To choose representatives to bargain with us on your
behalf
To act together with other employees for your benefit
and protection
To choose not to engage in any of these protected ac-
tivities.
WE WILL NOT deny employees the right to have another em-
ployee witness meetings with management which the employee
reasonably believes could result in discipline.
WE WILL NOT confiscate union pens and other union related
material.
WE WILL NOT prohibit employees from wearing union logo
lanyards and name badge backer stating their right to be repre-
sented by another employee at meetings with managers which
might lead to discipline.
WE WILL NOT suspend merit raises pending a representation
election without telling employees that the raises would be
reinstated after the election regardless of the outcome.
WE WILL NOTsolicit signatures of employees on letters stating
the employee’s opposition to the Union.
WE WILL NOT suspend employees because they invoke the
right to be represented by a fellow employee during an inter-
view which the employee reasonably believes could result in
discipline.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL make whole Ida Williams for any losses she may
have suffered as a result of our unlawful suspension of her.
SAM’S CLUB, A DIVISION OF WAL-MART STORES, INC.
Nathan Albright Esq., for the General Counsel.
Steven D. Wheeless, Cyrus B. Martinez, and Mark G. Kisicki,
Esqs., of Phoenix, Arizona, for the Respondent.
George Wiszynski, Esq., of Washington, D.C., for the Charging
Party.
SUPPLEMENTAL DECISION
JAMES L. ROSE, Administrative Law Judge. On November
29, 2002, I issued a decision in this matter concluding that the
Respondent had engaged in certain unfair labor practices and
recommending remedial action. On March 23, 2004, the Board
(Chairman Battista dissenting) remanded the case to me “for
additional credibility determinations, factual findings, and legal
analysis” as to certain specified allegations in the consolidated
complaint.
Thereafter, over counsel for the General Counsel’s objection,
I granted the Respondent’s motion to submit a brief on the is-
sues to be considered on remand. All parties filed supplemental
briefs, which I have considered along with the entire record in
this matter, on which I make the following supplemental find-
ings of fact and conclusions of law, using the Board’s headings:
I. ALLEGED DENIAL OF WILLIAMS’ WEINGARTEN RIGHTS
There is no dispute that on June 19, 2001,1 employee Ida
Williams and her immediate supervisor, Jeff Tuesburg, had a
confrontation, which resulted in Tuesburg approaching General
Manager Greg Roberts and asking for a meeting with Tuesburg,
Roberts, and Williams. When Tuesburg told Williams they
would meet with Roberts, she asked employee Kerman Clute to
join them as a witness.
Roberts asked why Clute was present and was told by Wil-
liams that he was to be a witness for her. Roberts testified that
he said, “Ida, this is not an investigation. You are approaching
me. It would be inappropriate to have a witness being that this
is not an investigation, so Kerman does not need to be here at
this time.”
Though I credit Roberts’ testimony about what he told Wil-
liams, I also find that in fact Tuesburg and not Williams insti-
gated the meeting. Indeed, there is no dispute about this.
Whether the meeting asked for by Tuesburg was meant to be an
investigation leading to possible discipline or not, it is clear that
Williams could reasonably have concluded it was. This is par-
ticularly true since 5 days before this event she received a writ-
ten discipline, which stated that the next level of discipline
would be “D-Day up to and including termination.”
I credit Williams’ testimony that Tuesburg had initiated the
meeting with Roberts. Tuesburg did not testify. Thus, Roberts’
stated reason to Williams for denying her a witness she knew to
be untrue, which gave some immediacy to her desire for a wit-
ness.
I conclude that Williams was entitled to an employee witness
under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), Epi-
lepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000).
II. THE RESPONDENT’S NO-SOLICITATION POLICY
The no-solicitation aspect of this case was tried and briefed
on the limited issue of whether the Respondent prohibited em-
ployees from talking about the Union on the sales floor and
other areas. The General Counsel concedes that the Respon-
dent’s published policy proscribing solicitation by employees
on the sales floor is not unlawful. However, it is alleged that
this policy was unlawfully amended by General Manager Greg

1 All dates are in 2001, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1028
Roberts who is alleged to have repeatedly told employees that
they could not “talk” about the Union on the sales floor and
while working. The totality of evidence led me to conclude
that Roberts did not tell employees they could not “talk” about
the Union, as distinguished from “solicitation” for it. On this, I
have been directed by the Board to address three issues:
A. The Credibility of Keman Clute and Sandra Williams
versus Greg Roberts
Kerman Clute testified that at a morning meeting Roberts
had with employees on May 7 “[h]e basically stated that we
were not allowed to talk about the Union on the clock. We
were not allowed to talk about it in the store or in the parking
lot because that pertained to the no-solicitation policy as well
. . . as far as what he was saying about the no-solicitation pol-
icy, that we weren’t allowed to talk about anything that related
to the Union, but we were allowed to talk about stuff like the
weather or baseball or stuff like that.” Clute further testified
that Roberts defined solicitation “when somebody was selling
something to another person.”
Sandra Williams testified that at a morning meeting around
May 7 “Greg (Roberts) had let us know about the solicitation
policy that we weren’t allowed to solicit about the Union. We
weren’t allowed to discuss the Union. We weren’t allowed to
talk about Avon. We weren’t allowed to sell Tupperware. We
weren’t allowed to—Tupperware, Avon, he gave us a descrip-
tion of solicitation. . . . He had told us we weren’t allowed to
sell Tupperware. We weren’t allowed to sell Avon. We
weren’t allowed to sell the Union.” She further testified that at
subsequent meetings Roberts would remind employees of the
solicitation policy and “[w]e weren’t allowed to discuss it
any—union anywhere—in the parking lot. The only place
we’re allowed to discuss the Union was in the break room
while you were on lunch break, and that if we did, you know,
we could be coached and lead up to termination.”
Williams testified that one time she asked Roberts if it would
be all right for her to tell fellow employees about a union meet-
ing and he told her it would.
Roberts testified, “No, I’ve never told them they could not
talk about the Union.”
Q. Do associates, in fact, talk about the Union on the
sales floor?
A. All the time.
Q. And you have personally observed and heard con-
versation about the Union on the sales floor?
A. Yes.”
Roberts further testified that he has never disciplined any
employee for talking about the Union on the sales floor.
I credit Roberts’ denial that he told employees they could not
“talk” about the Union over the testimony of Clute and Wil-
liams. It may be that Clute and Williams used the words “talk”
and “discuss” interchangeably with “solicit,” and, as Williams
testified, “[L]ike I say, it’s been so long.” Nevertheless, in
addition to Roberts’ credible denial that he told employees they
could not “talk” about the Union, employees in fact did so “all
the time”—a fact undenied by the General Counsel or the
Charging Party.
I conclude that Roberts did not, as alleged, prohibit employ-
ees from “talking” about the Union, as distinct from soliciting
for it, on the sales floor.
B. The Credibility of Linda Gruen versus Jaime Durand
In paragraph 5(t) of the consolidated complaint it is alleged
that on September 19, Roberts and Jaime Durand “promulgated
an overly broad and discriminatory no-solicitation rule by pro-
hibiting its employees from talking about the Union in the
breakroom, on the floor, in the parking lot or at the outside
picnic area of the Spring Mountain facility.” As to Durand, this
allegation is based on the testimony of Linda Gruen, which I
neglected to address in my initial decision. The Board directed
that I consider this issue and resolve the apparent credibility
conflict between Gruen and Durand.
Gruen testified about a meeting held by Durand on Septem-
ber 19, “Jamie conducted the meeting and he said that there
would be no talking about the Union on the sales floor. We
could talk in the break room on our lunch break. No talking in
the parking lot. No talking outside the store in the smoking
area.”
Although Durand generally denied that he “ever told any as-
sociates at the Club that they can’t talk about the Union,” this
was wrapping up his testimony concerning an incident involv-
ing Sandra Mena (in which I credited Durand over Mena).
Durand was not specifically asked to testify concerning any
meeting he may have had with employees on September 19, or
indeed, any other time. It is therefore questionable whether
Durand actually meant to dispute Gruen’s testimony.
In any event, I do credit Gruen and I conclude that Durand in
fact told a meeting of employees on September 19 that they
could not talk about the Union on the sales floor, the parking lot
or outside the store in the smoking area. By this act the Re-
spondent violated Section 8(a)(1), and my recommended order
will be amended to reflect this violation.
III. ROBERTS’ EXPLANATION OF “SOLICITATION” VERSUS
“TALKING”
In his many morning meetings with employees, Roberts re-
minded them about the policy prohibiting solicitation. When
asked what was meant by “solicitation,” as Clute testified, “He
said basically the definition of solicitation was when somebody
was selling something to another person.” Other employees
offered the same general testimony of Roberts’ definition of
solicitation as “selling” something or seeking support for a
“cause.” The Board ordered that I analyze whether the Re-
spondent’s no-solicitation policy, as explained by Roberts,
“would have a chilling effect on employees’ attempts to discuss
union matters on the Respondent’s premises” and “would coer-
cively impair their ability to exercise their Section 7 right to
discuss union-related issues at the workplace.”
In Wal-Mart Stores, 340 NLRB 637 (2003), the Board said:
In the context of a union campaign, ‘“[s]olicitation’ for a un-
ion usually means asking someone to join the union by sign-
ing his name to an authorization card.” W.W. Grainger, Inc.,
229 NLRB 161, 166 (1977), enfd. 582 F.2d 1118 (7th Cir.
1978). However, an integral part of the solicitation process is
the actual presentation of an authorization card to an em-
SAM’S CLUB 1029
ployee for signature at that time. As defined, solicitation ac-
tivity prompts an immediate response from the individual or
individuals being solicited and therefore presents a greater po-
tential for interference with employer productivity if the indi-
viduals involved are supposed to be working. Solicitation is
therefore subject to rules limiting it to nonworking time and,
in the special circumstances of retail stores, to no selling ar-
eas. [Id at 639.]
As I understand the complaint and the General Counsel’s
theory, the no-solicitation policy published by the Respondent
is valid, however, Roberts unlawfully “promulgated and en-
forced an overly broad and discriminatory no-solicitation rule
by prohibiting its employees from soliciting for the Union”
[par. 5(j)(1)] and promulgated an overly broad and discrimina-
tory no-solicitation rule by prohibiting its employees from talk-
ing about the Union in the break room, on the floor, in the park-
ing lot or at the outside picnic area.” (Par. 5(t).)
The Charging Party argues that Roberts’ explanation neces-
sarily prohibited permissible activity, or at least was ambiguous
requiring the Respondent to clarify “that its policy only prohib-
ited associates from soliciting of signatures on authorization
cards while working on the sales floor.”
Unquestionably, Roberts’ explanation of “solicitation” was
not the same as the Board’s above, and no doubt was more
broad in that by his definition the soliciting employee would
not have to have offered an authorization card. However, this
case was not tried on a theory that Roberts’ explanation itself
had a chilling affect on employees’ rights. The General Coun-
sel did not assert that absent the alleged prohibition against
talking about the Union Roberts’ definition of solicitation was
unlawful. There was no assertion that lawfully proscribed so-
licitation had to involve submitting an authorization card, and
anything less (such as arguing for a cause) could not be prohib-
ited.
Though not free from doubt, I conclude that Roberts’ expla-
nation of solicitation would not reasonably impair the employ-
ees’ ability to discuss union related issues on the sales floor.
And in fact they commonly did.
IV. POLLING EMPLOYEES
In paragraph 5(w), Candy Proffitt was alleged to have
unlawfully polled employees acting as a supervisor within the
meaning of Section 2(11) and as an agent of the Respondent
within the meaning of Section 2(13). I concluded she was a
supervisor and that by helping draft and solicit signatures on a
letter to the Union disclaiming interest in having union repre-
sentation she violated Section 8(a)(1). Having found her to be
a supervisor, and therefore acting for the Respondent, I did not
consider whether independently she was an agent for the pur-
pose of drafting and circulating the letter. The Board remanded
for me to do so.
Common law rules of agency apply. In order to find agency,
the Respondent (Roberts or some other manager in authority)
would have to have given the express authority to Proffitt or
would have to have done something such that employees would
reasonably assume that Proffitt was acting on behalf of the
Respondent. E.g., Pan-Oston Co., 336 NLRB 305 (2001).
Here, absent indicia of Proffitt’s supervisory authority (which is
really minimal), there is no evidence that the Respondent gave
her the actual or apparent authority to poll employees.
Possible evidence of agency is that after the fact, the Re-
spondent condoned Proffitt’s action by publically thanking
Sofia Fox, an employee who along with Proffitt and two other
employees, drafted and circulated the letter. I conclude such is
insufficient to establish agency in this matter. But I do con-
clude that the Respondent committed the violation alleged be-
cause Proffitt was in fact a supervisor within the meaning of
Section 2(11).
V. CONFISCATING UNION PENS
In June, Team Leaders Terry Roberts and Alejandra Abril
were instructed to go through filing cabinets in the membership
desk area and throw away nonessential items, which they did,
including union logo pens belonging to Sandra Williams. Rob-
erts and Abril testified that they found and threw away “pens,
candy, old like Christmas stuff,” and so forth. They testified
that employees had been told to remove from the cabinets any
personal items they did not want to have discarded.
Williams testified that she was not told to remove personal
items and when she found that her union logo pens were miss-
ing she noted that none of her other personal items, nor those of
other employees, had been removed.
On remand, I am to resolve the apparent credibility conflict
between Roberts and Abril, who testified that they threw away
all nonessential personal items and Williams, who testified that
only her pens were missing and that other employees’ personal
items remained. No other employee testified on this issue.
What actually happened is vague. No doubt Roberts and
Abril threw away stuff, including the union logo pens; how-
ever, neither testified that they threw away everything, which
could be construed as personal. Nor is there testimony that
they discarded some material and then went back later and
discarded more. I do credit Williams that when she looked, her
union logo pens were gone, but other of her personal things
remained as did some personal things of other employees.
Accordingly, I reaffirm my finding of a violation.
VI. SUSPENDING MERIT RAISES
There is no dispute that the day after the Union filed a peti-
tion for an election, Roberts met with employees and an-
nounced that merit raises would be suspended pending the elec-
tion. Relying on language in Grass Valley Grocery Outlet, 332
NLRB 1449 (2000), I concluded that the Respondent violated
the Act by announcing that merit raises would be suspended
pending the election without also telling employees that such
raises would be resumed regardless of the election’s outcome.
Although there were some discrepancies in the testimony of
all witnesses on this issue, I concluded they were not material
and therefore did not pose a credibility conflict to be resolved.
Specifically, I have been directed to no testimony (nor have I
found any) were a witness said that Roberts told employees the
suspension of merit raises “would be frozen permanently.” On
the other hand, I do credit Roberts’ testimony:
One of those things I mentioned, what I called laboratory
conditions, and spoke to the associates and let them know that
merit increases would be frozen, put on hold because of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1030
fact the petition was filed and I didn’t want, we did not want, I
did not want it to look as though we were swaying someone’s
vote based on a discretionary increase. However, that the
merit increases would be reinstated after the proposed vote.
He did not claim to have said that the increases would be re-
sumed after the election regardless of how the employees
voted, nor did anyone so testify. By this omission I conclude
that in suspending merit raises the Respondent violated Section
8(a)(1) of Act since employees could reasonably believe that
resumption of the merit increases would depend on their voting
against the Union. The Respondent thus violated the Act.
VII. REFUSAL TO CONSIDER WAGGONER FOR TRANSFER
In the consolidated complaint, it is alleged that Mary Lou
Waggoner,2 who at the time had been reemployed about 4
months, was unlawfully denied transfer to a posted job for
which she had applied. Crediting the Respondent’s witnesses, I
concluded that a one requirement for accepting an employees’
application to transfer from one job to another is a minimum of
6 months’ employment. Therefore, the Respondent’s failure to
consider her was not unlawful.
The Board remanded this issue for an analysis under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), to consider “record
evidence that the Respondent initially offered several other
reasons for its actions, proffering its 6-month rule explanation
only at the hearing.” I am also to “consider the Respondents’
failure to provide copies of Waggoner’s job postings pursuant
to the General Counsel’s subpoena.”
At the hearing, the Respondent’s witnesses testified that a
search was made and the job postings could not be located.
There is no apparent dispute that in fact there were postings for
full-time grocery and full-time bakery jobs and no dispute that
Waggoner in fact signed the postings. I therefore credit her
testimony that she signed the postings and on one occasion

2 Her name is erroneously spelled “Wagner” in the record and my
underlying decision.
when asking why she was not interviewed, was told the post-
ings could not be found. Such does not mean, however, that
she was given this as a reason for not being transferred.
The two jobs were filled, one with a transfer of an employee
from Florida. Subsequently, according to Waggoner, there
have been postings for “either a full-time bakery or full-time
grocery job since that time in October of last year.” She did not
apply for them.
Other than she was told the postings she said she signed
could not be found, Waggoner was not given any reason why
she was not considered for these jobs. Specifically, she did not
ask anyone with the authority to transfer her why she was not
considered. Although the General Counsel argues that the Re-
spondent gave shifting and inconsistent reasons, I find none.
Further, the General Counsel argues that the Respondent stated
the 6-month requirement for the first time at the hearing, but
there is no testimony concerning when else this requirement
might have been stated.
In analyzing this under Wright Line, I conclude that the Gen-
eral Counsel failed to prove a prima facie case that Waggoner
was not given a full-time job because her union activity, or the
union activity in general. She had just been employed 4
months, and by her testimony, her union activity did not begin
immediately. Nor was it more than perfunctory. This record
does not support a conclusion that but for the union activity,
Waggoner would have been transferred.
Nevertheless, assuming the General Counsel did establish a
prima facie case, I conclude that the Respondent proved that
she would not have been considered in any event. I credit Rob-
erts’ testimony that for an employee who applies for a transfer,
that employee must have worked six months. This seems to be
a reasonable rule and there is no basis on the record to conclude
that it is not. Accordingly, I reaffirm my conclusion that the
Respondent did not violate Section 8(a)(3) in not transferring
Waggoner.
[Recommended Order omitted from publication.]