Wal-Mart Stores

National Labor Relations Board - Board Decisions

May 18, 2007

349 N.L.R.B. 1095 (N.L.R.B. 2007)

WAL-MART STORES
349 NLRB No. 102
1095
Wal-Mart Stores, Inc. and United Food and Com-
mercial Workers International Union.1 Cases
28–CA–18255, 28–CA–18257, and 28–CA–18897
May 18, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On April 26, 2004, Administrative Law Judge Lana H.
Parke issued the attached decision. The General Counsel
and the Charging Party each filed exceptions and a sup-
porting brief, the Respondent filed cross-exceptions and
supporting briefs, and all parties filed responding and
reply briefs.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings as
modified below,3 and conclusions and to adopt the rec-
ommended Order.4
We agree with the judge that the Respondent did not
unlawfully restrict worktime solicitation or discharge
Larry Allen at its store in Las Vegas, Nevada; and that
the Respondent did not unlawfully exclude nonemployee
union solicitors from the common area in front of its
store in Henderson.
I. THE ENFORCEMENT OF NO-WORKTIME-SOLICITATION
RULES AND THE ALLEN DISCHARGE
We adopt the judge’s findings, for the reasons stated in
her decision, that the Respondent did not enforce its rules
against worktime solicitation in violation of Section
8(a)(1), or discharge Allen in violation of Section
8(a)(3).

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 On November 15, 2004, we granted the Charging Party’s motion to
strike the Respondent’s brief responding to its exception for exceeding
page limits, but granted the Respondent permission to file a brief con-
forming to those limits. Wal-Mart Stores, 343 NLRB 579 (2004). The
Respondent subsequently filed a conforming brief.
3 The General Counsel and the Charging Party have 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 exam-
ined the record and find no basis for reversing the findings.
4 There are no exceptions to the judge’s findings that the Respondent
unlawfully confiscated union material from employees and implicitly
ordered employees to destroy union literature at the Henderson store on
October 17, 2002, or to the dismissal of the complaint allegations not
discussed below.
However, with respect to the Allen discharge, because
we agree with the judge that the Respondent bore its bur-
den of showing that it would have terminated Allen for
soliciting on worktime even if he had not engaged in
protected union activity,5 we need not reach the question
of whether the General Counsel showed that the Respon-
dent acted with unlawful animus.6
II. THE EXCLUSION OF NONEMPLOYEE UNION SOLICITORS
AT THE HENDERSON STORE
We agree with the judge that the Respondent did not
violate Section 8(a)(1) by excluding nonemployee solici-
tors for the Union from soliciting and distributing litera-
ture near the entrance of its store at Henderson, Nevada.
However, we adopt this finding on the following basis.
The Respondent leased the tract on which the Hender-
son store was located from the Wal-Mart Real Estate
Business Trust (the owner of the tract). Under the terms
of a three-party lease agreement between the trust, the
Respondent, and a neighboring independent developer
lessee, the tract included a “common area” for access,
containing parking space and front walk, that was shared
with an adjoining tract. The Union contends that a
clause in the three-party lease that authorized “activity
within the Common Areas other than the primary pur-
pose of the Common Areas” confined the Respondent’s
possessory interest in the common areas to a “non-
exclusive easement.” That restricted easement, the Un-
ion argues, did not include the right to exclude nonem-
ployee solicitors from engaging in nondisruptive union
solicitation.
However, we need not decide that question because we
find that, even assuming arguendo that the lease clause
on which the Union relies would have barred the exclu-
sion in other circumstances, the Respondent had the
right, under the other terms of the lease, to require solici-
tors to provide advance notice before engaging in solici-
tation activity. Because the Respondent had such a re-
quirement in place and was not shown to have enforced it
in a disparate manner, and because the Union knowingly

5 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
6 We also do not rely on the judge’s statement that the Respondent
could have lawfully discharged Allen if it “reasonably believed, albeit
erroneously, that Allen had . . . giv[en] union literature to [another
employee] while he worked and in a work area.” Because distribution
of union literature is protected under Sec. 7, Allen’s conduct was un-
protected for the sole reason that he engaged in that activity on work-
time in violation of the Respondent’s lawful rules. Under NLRB v.
Burnup & Sims, 379 U.S. 21 (1964), if Allen had solicited on his own
time but the Respondent discharged him in the erroneous belief that he
solicited on worktime, the discharge would have been unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1096
failed to comply with that requirement, the exclusion of
the solicitors was lawful.7
The lease authorized all three parties to develop the
tracts “pursuant to a general plan of improvement to
form a commercial shopping center.” The facilities were
to be “used for commercial purposes of the type nor-
mally found in retail shopping centers.” With respect to
common areas, the parties granted reciprocal easements
to each other for access, parking, and “the use of facili-
ties installed for the comfort and convenience of custom-
ers, invitees, licensees, tenants, and employees of all
businesses and occupants of the buildings” on the prop-
erty. By these terms, the lease gave the Respondent the
right to use the property for its business. This right en-
tailed the authority to exclude disruptive activity that
would interfere with its use of the tract for its stated
business purpose, and the correlative authority to require
prospective solicitors to provide advance notice and a
reasonable indication that their activity would not be
disruptive.8 Cf. Glendale Associates, Ltd., 335 NLRB
27, 28 (2001), enfd. 347 F.3d 1145 (9th Cir. 2003) (up-
holding advance-notice rule in context of California law,
permitting reasonable time, place, and manner restric-
tions on access by union soliciting to public areas).
None of the parties argues to the contrary.9
As the judge found, the Respondent had a written so-
licitation-distribution policy that established a procedure
for organizations to apply for permission to solicit in the
store’s common area. The policy required applications
to be made at least 3 days in advance of the requested
solicitation date. The Union was admittedly aware of the

7 The General Counsel contends in its brief to the Board that because
the property on which the store and its relevant common area were
located was owned by the Wal-Mart Trust rather than by the Respon-
dent, the Respondent had “no property interest” entitling it to expel the
solicitors. However, the General Counsel did not make this argument
to the judge. The argument is therefore untimely, and we do not con-
sider it. Detroit Newspapers, 327 NLRB 799 (1999), affd. in relevant
part 216 F.3d 109 (D.C. Cir. 2000); International Paper, 319 NLRB
1253, 1276 (1995), enf. denied on other grounds 115 F.3d 1045 (D.C.
Cir. 1997); Yorkaire, 297 NLRB 401 (1989), enfd. 922 F.2d 832 (3d
Cir. 1990); Armour Con-Agra, 291 NLRB 962 (1988). We conse-
quently need not address the relationship between the Wal-Mart Trust
and the Respondent.
8 We do not reach the issue of whether, given the three-party lease’s
clause concerning “activity within the Common Areas other than the
primary purpose,” the Respondent would have been required to grant
permission had the Union complied with the advance-request procedure
here.
9 The Respondent emphasizes that another section of the lease
agreement disclaimed any intention of making any “gift or dedication”
of property “to any governmental authority or the general public or for
any public use or purpose whatsoever.” In view of our disposition of
this complaint allegation, we need not address the application of this
provision.
policy but did not provide any advance notice of its in-
tention to solicit.
When the Union’s solicitors arrived at the Henderson
store, the store’s management told them they could not
solicit without advance permission and had to leave, and
called the police to have them expelled. The record indi-
cates that other organizations had complied with the ad-
vance-permission procedure for soliciting at the Hender-
son store, and that most had received permission.10 There
is no indication that the Respondent had previously per-
mitted solicitations at the Henderson store for which it
had not received advance notice. Nor does the record
show that the Respondent had treated unions differently,
in policy or in practice, than it treated other organizations
with respect to solicitation at the Henderson store.11 We
therefore cannot find that the Respondent’s advance-
permission requirement was disparately enforced.12
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wal-Mart Stores, Inc., Hen-
derson, Nevada, its officers, agents, successors, and as-
signs shall take the action set forth in the Order.
Joel Schochet, Esq., for the General Counsel.
Steven Wheeless and Stefanie J. Evans, Esqs. (Steptoe & John-
son, LLP),of Phoenix, Arizona, for Respondent.
George Wiszynski,Esq., Assistant General Counsel, UFCW, of
Washington, D.C., for the Charging Party,
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This matter was
tried in Las Vegas, Nevada, on February 10–13, 2004, on an
amended second consolidated complaint (the complaint) issued

10 Scott Miller, the senior management official at the scene, testified
that before the police were called one of the union solicitors “ask[ed]
me if he could call me sometime to talk to me,” to which Miller re-
sponded that “that would probably not be a good idea.” This exchange
was too unspecific for us to find it to be an indication that the Respon-
dent would not have permitted union solicitation even if the Union had
given advance notice.
11 For this reason, Wal-Mart, 340 NLRB 1216 (2003), cited by the
General Counsel and the Union, is distinguishable from this case.
There, the advance-request requirement was not at issue and the Board
found that the employer permitted other organizations but not the union
to solicit.
12 The General Counsel and the Union emphasize that the union so-
licitors had been permitted to distribute identical literature at two other
Wal-Mart stores in the region earlier the same day without seeking
advance permission. However, there was no showing that the Respon-
dent’s advance-permission policy was enforced by central Wal-Mart
management, rather than by the local management at each store. We
therefore cannot treat the discretionary tolerance of the solicitation at
the other two Wal-Mart stores as a waiver of the written advance-
permission requirement with respect to the Henderson store.
WAL-MART STORES 1097
December 31, 2003,1 by the Regional Director for Region 28 of
the National Labor Relations Board (the Board) based on
charges filed by the United Food and Commercial Workers
International Union, AFL–CIO–CLC (the Union.) The com-
plaint, as amended, alleges Wal-Mart Stores, Inc. (Respondent)
violated Section 8(a)(1), (3), and (4) of the National Labor
Relations Act (the Act).2 Respondent essentially denied all
allegations of unlawful conduct.3
I. ISSUES
1. Did Respondent orally promulgate and enforce an overly
broad and discriminatory no-solicitation and no-distribution
rule.
2. Did Respondent create an impression of surveillance of
employees’ union activities.
3. Did Respondent ask its employees to ascertain and dis-
close the union activities of other employees.
4. Is complaint paragraph 5(b)(4), which alleged statement of
futility, outside the 10(b) period, and if not, did Respondent
inform employees it would be futile for them to select the Un-
ion as their collective-bargaining representative.
5. Did Respondent unlawfully prohibit union organizers
from soliciting employees and distributing union literature on
its property, confiscate union literature, threaten employees to
prevent them from accepting union literature, and cause the
Henderson, Nevada police to remove union organizers from its
property.
6. Did Respondent discharge employee Larry Allen because
of his protected activities, his union activities and/or because he
gave testimony to the Board.
II. JURISDICTION
Respondent, a Delaware corporation with places of business
located, inter alia, at 2310 East Serene, Las Vegas, Nevada, and
540 Marks Street, Henderson, Nevada (the Stores), has been
engaged in the retail sale of consumer products. During a 12-
month period ending October 23, which period is representative,
Respondent, in connection with its operation of the Stores, annu-
ally derived gross revenues in excess of $500,000 and annually
received at the Stores goods and services valued in excess of
$50,000 directly from points outside the State of Nevada. Re-
spondent admits, and I find, it has at all relevant times been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and the Union is a labor organization
within the meaning of Section 2(5) of the Act.

1 All dates are 2003, unless otherwise specified.
2 At the hearing, counsel for the General Counsel amended the com-
plaint to substitute the words “soliciting for” for “talking about” in par.
5(b)(1) and withdrew par. 5(c). Counsel for the General Counsel
moved to amend the complaint by adding as par. 5(e) the following:
On or about June 6, 2003, the Respondent, by Aaron Rios, at Respon-
dent’s Serene Avenue facility, promulgated and enforced an overly
broad and discriminatory no solicitation and no distribution rule by in-
forming employees that they may not solicit in work areas.
Respondent objected that the amendment was untimely. The objection
is overruled.
3 At the hearing, Respondent amended its answer to include an af-
firmative defense that Sec. 10(b) of the Act prohibited litigation of the
conduct alleged in par. 5(b)(4) of the complaint.
III. THE FACTS
A. Respondent’s Solicitation/Distribution Policies
At all times relevant hereto, Respondent has maintained in
its employee handbook, the following policy:
[E]ngaging in non-work related activities during worktime is
not permitted. Associates4 may not engage in solicitation or
distribution of literature during worktime. In addition, solici-
tation or distribution of literature is not permitted at any time
in selling areas during the hours the store is open to the public.
Distribution of literature is not permitted at any time in any
work area. Non-Associates are prohibited from soliciting or
distributing literature in any Company facility at any time.
A similar policy statement posted in the Stores during the
relevant period, in pertinent part, reads:
Associates may not engage in distribution of literature during
working time [of either the solicitor/distributor and/or the so-
licitee/distributee.] Distribution of literature is not permitted
at any time in selling or working areas [defined as all areas
except breakrooms, restrooms, lobbies, and Associate parking
areas]. Associates may not engage in solicitation in any sell-
ing area of the facility during business hours or in working ar-
eas when Associates are on working time. This applies to ac-
tivities on behalf of any cause or organization, with the excep-
tion of corporately sponsored charities [Children’s Miracle
Network and Corporate United Way Campaigns].
. . . .
Solicitation and/or distribution of literature by non-Associates
is prohibited at all times in any area of the facility, including
the vestibule.
. . . .
The Facility Manager may approve . . . solicitation and/or
distribution of literature outside the facility for all other
groups and organizations.
. . . .
An area must be designated for all organizations to use that is
at least 15 feet from the entrances and exits.
. . . .
Any organization that requests to solicit or distribute literature
should be provided two copies of the Solicitation and Distri-
bution of Literature Rules. One copy of the rules should be
signed by . . . the organization as an acknowledgement of hav-
ing read and agreeing to abide by the rules.
B. Respondent’s Discipline Policy
Respondent utilizes a disciplinary program called Coach-
ing for Improvement, which provides the procedure for in-
vestigating employee misconduct and applying appropriate
progressive discipline. The disciplinary progression pro-
vides for a verbal coaching at level one. If the verbal coach-
ing is not successful in changing or correcting the unaccept-

4 Associate is Respondent’s term for an employee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1098
able behavior or performance, an employee will receive a
level two written coaching. Level three of the disciplinary
progression is called “Decision Making Day” or “D-Day.”
At a D-day, Respondent informs the employee concerned of
deficiencies noted at earlier coaching for improvement lev-
els and the specific improvement required. The employee
must write and sign an acceptable detailed action plan for
modifying behavior and is given a day off with pay to de-
cide whether he or she will make the required improvement.
The D-day remains active in an employee’s file for 12
months. Another rule or policy infraction occurring within
that 12-month period may subject the employee to immedi-
ate termination.
C. Events at the East Serene, Las Vegas Store
The Stores are composed of both grocery and general mer-
chandise sales areas. In the back and side hallways of the Stores,
Respondent maintains product receiving, storage, and preparation
areas where employees perform tasks relative to those functions.5
Larry Allen (Allen) worked for Respondent at its 2310 East Se-
rene, Las Vegas, Nevada facility (the LV store) from May 6 to
August 1, 2002, as a produce sales clerk. At all relevant times,
Aaron Rios (Rios) served as the LV store manager overseeing,
inter alia, the work of about 700 employees.
During August 2002, Allen’s wife, Jacqueline (J. Allen),
worked at the same store in the service deli. In late August,
having observed another deli employee inappropriately touch
his wife, Allen threatened to “bust a cap in [his] ass.”6 Conse-
quent to the threat, Respondent issued Allen a D-Day dated
August 30, 2002, and suspended him for a day with pay.7 On
September 2, 2002, Allen asked to meet with Rios about his D-
Day, protesting the discipline was too severe in light of the
provocation involved. Rios said he would look into it.
During the next 10 days, the LV Store prepared for its annual
1-day inventory of the entire store, a work-intensive procedure
to be conducted September 12. During the same period, Rios
observed and had reported to him a dramatic increase in the
amount of union-related literature left in work areas, including
the sales floor: business cards (left primarily on the sales floor),
flyers, pamphlets, and small cards that invited employees, re-
spectively, to contact the Union (contact cards) and to listen to
a live “Worker Voice Radio” webcast where callers could “tune
in [and] speak up” in order to “make Wal-Mart/Sams Club a
better place to work” (radio cards). On September 2, 2002,
management found more than 300 union business cards in vari-
ous locations on the sales floor. LV Store management re-
ported the situation to the Union Hotline, a telephone commu-
nication set up between Wal-Mart’s labor relations team in the
Bentonville, Arkansas corporate offices and its stores.
An associate told Rios that Allen was the driving force be-

5 I find these constitute facility work areas.
6 This slang term is a threat to shoot someone.
7 The offending deli employee did not return to work after the inci-
dent and voluntarily terminated employment.
hind the literature distribution at the LV Store.8 According to
Allen, he did not become involved in union organizing efforts
at the LV store until September 11, 2002, when he signed a
union authorization card and accepted appointment as lead
organizer. From that time forward, Allen openly passed out
union literature to coworkers, including several forms of union
literature enclosed in small brown paper bags (the union
packet).
Sometime in the early afternoon of September 12, 2002, Rios
got back to Allen on his earlier request for a meeting, apologiz-
ing for the delay. Rios said the D-Day would stand. Allen
complained the suspension had prevented his working sched-
uled overtime, and his wife had missed work consequent to her
coworker’s harassment. Rios agreed to pay Allen for missed
overtime and compensate his wife for work missed because of
the incident.
After addressing Allen’s D-Day concerns, Rios cautioned
him about union solicitation. Initially, Allen testified Rios said,
“By the way, you’re not allowed to talk about the union, you’re
not allowed to distribute out the literature about the union.”9
Under cross-examination, Allen admitted Rios might have told
him he was not allowed to solicit on the sales floor. Rios said
he told Allen he wanted to make sure he understood Respon-
dent’s solicitation/distribution policy and asked if he needed a
copy. Rios said Allen told him he had a copy of the policy and
had read it. Allen was admittedly aware of Respondent’s no-
solicitation/no-distribution policy and that he could distribute
union literature in breakrooms, restrooms, lobbies, and associ-
ate parking areas but not in work areas. He understood Re-
spondent’s policy prohibited his soliciting employees on work-
time.
By his own account, Allen told Rios, “Aaron, I know what I
can and cannot do. I will put the literature in the breakrooms,
and I will do it outside.” He assured Rios he would not solicit
on the sales floor, which he understood to be sacred ground.
Where Rios’ testimony of what was said in that conversation
differs from Allen’s, I credit Rios. I cannot accept Allen’s
testimony that Rios told him he could not talk about the Union
or distribute its literature. Not only did Allen retreat from his
initial assertion to that effect during cross-examination, but also
the tenor of his admitted responses to Rios justifies an inference
that Rios merely reminded him of established solicita-
tion/distribution policies, which Allen did not challenge.
Allen denied ever distributing union literature on the sales
floor or in any work area or asking any coworker to sign a un-
ion authorization card while he or the coworker was working.10
He left union literature in Respondent’s restrooms and break-
room and on outside benches.

8 The associate’s report was not received for the truth of the asser-
tion but to explain Rios’ state of mind and to set in context his later
discussions with Allen.
9 Allen’s testimony forms the basis of the complaint allegation at
par. 5(a) regarding unlawful promulgation of an overly broad and dis-
criminatory no-solicitation and no-distribution rule.
10 Allen testified no supervisor had ever told him the back and side
hallways of the LV Store were work areas, and he did not consider
them to be such. He admitted the hallways were “work area[s] to some
people,” just not to him or to “lots of produce people.”
WAL-MART STORES 1099
Respondent held regular morning meetings with employees
in the breakroom, which it expected all employees not occupied
with customers to attend. Respondent discussed store priori-
ties, quarterly reports, store earnings, and work issues at the
meetings. The employee meetings constituted worktime for
attending employees even though they were held in the break-
room. Although meeting discussion was generally restricted to
work issues, in 2003, Respondent permitted an employee to
announce in the meetings a blood drive for her nephew with
leukemia. She was not permitted to distribute literature in sales
or work areas.
On September 13, 2002, at a morning meeting with LV Store
associates lasting nearly an hour, Rios told employees Wal-
Mart had a no-solicitation policy, which applied to nonwork
material: Avon sales, the Girl Scouts, religious groups, or any-
one else. According to Allen, Rios showed the group examples
of union literature found in the sales floor and other work areas
and encouraged employees to report any distribution of the
literature to management. Allen testified that Rios said Re-
spondent did not have to negotiate with the Union, and employ-
ees ran the risk of losing benefits.11 Allen remembered nothing
else that was discussed at the meeting.
Regarding the September 13, 2002 meeting, Rios testified he
and other managers thanked employees for the inventory results
of the preceding day and highlighted top performing divisions.
At the end of the meeting, Rios reminded employees of Re-
spondent’s solicitation/distribution policy, which he had cov-
ered in the past and which was posted on Respondent’s policy
board in the breakroom. He showed the employees union-
related literature that had been found in work areas, and told
them they could distribute literature on their time in restrooms,
the breakroom, or outside the store but not in sales or work
areas. He told employees they were not to get involved in en-
forcing the policy but to report violations to management who
would take care of it.12 Rios denied saying anything about
negotiating with the Union or telling employees to report solici-
tation/distribution other than policy violations. I give weight to
Rios’ testimony. Emanuel Thomas Roth (Roth) and Lisa
Washburn, assistant managers, corroborated Rios’ version.
Since Allen could recall nothing more of the meeting than the
brief comments he testified to, which he could not set in con-
text, I do not feel justified in relying on his memory of what
was said.
In late September 2002, Rios received a written note signed
by several overnight stockers complaining that Allen was “con-
stantly [in the breakroom] peddling his union wares [which is]
not welcome.” Rios did not speak to Allen about the matter, as
Allen had not violated Respondent’s policy by solicit-
ing/distributing in the breakroom. In early October, Rios re-
ceived a written complaint from another employee that Allen
had approached him on the sales floor about joining the Union.
Rios took no action as Allen had merely been talking about the

11 Allen’s testimony forms the basis for complaint paragraphs
5(b)(1)–(4).
12 Employees are also asked to report workplace injuries or acci-
dents, inappropriate employee conduct, violations of personal or busi-
ness ethic, and sexual harassment.
Union, which did not violate the policy. Rios received other
reports concerning Allen’s talking to or handing out some kind
of literature to employees in the work area but as the evidence
did not, in his opinion, clearly show any policy violation, he
declined to discipline Allen.
On October 23, 2002, and January 22, the Union filed origi-
nal and amended charges, respectively, alleging various viola-
tions of Section 8(a)(1) committed by Respondent at its LV
Store. There is no evidence Respondent’s managers or supervi-
sors said anything about the charges to any employee.
On June 6, Allen left union cards on tables in the breakroom
at the conclusion of the morning employee meeting. After the
meeting, Ellen Little (Little), Respondent’s people manager,
told Rios she had observed Allen handing out union radio cards
during the meeting. Later that morning in his office, Rios
spoke to Allen about his conduct, asking him not to leave union
contact cards “during the morning meeting.”13 Allen agreed,
telling Rios he would respect Wal-Mart’s policy. Rios told
Allen he was free to solicit and leave contact cards in the break-
room during his nonwork periods. Allen told Rios he knew
Rios had to enforce Respondent’s policy, but Allen had to do
what he had to do as well. Rios asked Allen if he understood
the solicitation/distribution policy and if he understood that if
he continued to violate the policy he would be held account-
able. Allen said he understood the policy, and he would not
hand out cards during a meeting again. An undated memoran-
dum Rios prepared following this exchange states Allen placed
radio cards on breakroom tables “as he was leaving the meet-
ing,” but while still on the clock. According to the memoran-
dum, Rios told Allen he had “a right to solicit in nonwork areas
on his own time but not while he was on the clock,” and that he
could not “solicit in any work areas of the store nor was he
allowed to solicit any associates while they are on the clock.”14
Rios took no action against Allen because he wanted to give
him the benefit of the doubt and because he did not want to
terminate him, which another infraction during the 12-month
D-Day period would have meant.15
At some time prior to June 20, Allen gave Sam Brown
(Brown), a meat department employee, a union packet in the
back work area. On June 20, in the same area, Allen asked
Brown why he had turned the union packet over to Rios. Di-
recting obscenities to Allen, Brown gestured toward him with a
box cutter. As Allen retreated, Brown said, “I’ll kill him; I’ll
kill him.” Allen reported the incident to management.16 Re-
spondent conducted an investigation, including taking Allen’s
written statement. In the course of the investigation, Rios was
informed that Allen had presented union literature to Brown in
the back produce area. When asked about it, Allen told Rios

13 Both Allen and Rios used the words “during the morning meeting”
to describe Rios’ June 6 restriction on literature distribution.
14 Counsel for the General Counsel asserts Rios’ memorandum es-
tablishes the violation alleged in complaint par. 5(e) regarding unlawful
promulgation of an overly broad and discriminatory no-solicitation and
no-distribution rule.
15 Although Respondent’s policies permitted discretion in such ter-
minations, Rios’ practice was to terminate any employee who commit-
ted a disciplinary offense during the 12-month D-Day period.
16 Brown received a D-Day because of his threat.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1100
that Brown had come to him and asked for the literature. He
said he did not think it a violation of Respondent’s policy to
accommodate Brown, and it would not happen again. Rios did
not discipline Allen. The Union filed a charge with the Board
concerning the incident, alleging Respondent had condoned
threatening behavior toward Allen, a known union supporter.
The charge was dismissed. I agree with counsel for the General
Counsel that Respondent must have known Allen provided
information to the Board in support of the charge; none of Re-
spondent’s managers or supervisors said anything about the
charge to Allen.
On the morning of July 25, someone gave employee Miguel
Zambrano Jr. (Zambrano) a union packet while he loaded prod-
uct in the back hallway of the store (the Zambrano incident.)
The parties dispute the identity of the individual who gave
Zambrano the union packet.
Anita Garcia (Garcia), grocery department manager at the
LV Store in July, was well acquainted with Allen, having
known him for about 7 years. Sometime in July, she saw Allen
and a produce employee named “Joe,” talking to Zambrano in
the back grocery receiving area. A couple of minutes later,
Zambrano came to Garcia with a brown paper bag, folded at the
top and stapled. Zambrano told Garcia he did not know what to
do, that “the short guy [he] was talking to over there” had given
him the bag, and he did not know what to do with it.17 Garcia
advised him to give it to his team leader, Maggie Schad (Schad)
and Zambrano reported to Schad that “the guy in produce,” a
short guy, had given him a brown paper bag while he worked.18
Schad, accompanied by Zambrano, took the packet to
Sheleen Petty (Petty), assistant manager, saying Larry in pro-
duce had given the packet to Zambrano. Zambrano told Petty
Larry had given him the packet while he was loading his cart in
the back room. Petty opened the packet and found various
forms of union literature in it. Petty telephoned the union hot-
line and reported the incident.19 Later that day, at the request of
LV store managers, Zambrano furnished two signed statements
that identified “Larry” as the employee who gave him a union
packet while he worked in the back hallway.
During the investigation of the charges, the Board obtained a
sworn affidavit from Zambrano. In his affidavit, Zambrano
denied Allen had given him the packet. Concerning the affida-
vit, Zambrano testified that when he gave the affidavit, he was
“panicking . . . not thinking right . . . had a headache . . . was
losing his patience . . . wanted everything just to be on that
paper.” At the hearing, Zambrano testified about having been
given the packet. His memory was demonstrably poor. More-
over, although sincere and obviously anxious to testify accu-
rately and fully, he was an extraordinarily suggestible witness,
agreeing with nearly every proposition any examining counsel
put to him, without regard to consistency. I cannot give any
weight to his testimonial identification of the person who gave

17 Allen is 5’ 2” tall. Joe Morse is taller than Zambrano who is 5’ 9”.
18 Counsel for the General Counsel correctly points out that Zam-
brano’s statements to Schad are hearsay, and I do not consider them for
the truth of the matter asserted.
19 The resulting investigation was complicated, involving numerous
labor relation consultations over the course of several days. I do not
find it necessary to recount all particulars of the investigation.
him the union packet. Since it is reasonable to infer Zambrano
was as unreliable when he gave the affidavit as he was in testi-
fying, I cannot give weight to his affidavit statements either.
Further, as it is clear Zambrano had no independent knowledge
of the identity of the person who had given him a union packet
but named “Larry” in reliance on the suggestions or informa-
tion of others, I cannot accept the written statements he gave on
July 25 as evidence of who gave him the packet.
Since, I cannot accept Zambrano’s July 25 written state-
ments, his Board affidavit, or his testimony at the hearing as
identification of Allen or, conversely, as exculpation of Allen, I
must look to other evidence to determine what transpired when
someone gave Zambrano a union packet on July 25.
Allen denied ever giving Zambrano any union literature or
asking him to sign a union authorization card. In corroboration
of Allen’s testimony, Ancel “Joe” Morse (Morse), LV store
associate and active union supporter, testified he had given a
union packet to Zambrano in July. Morse said he obtained the
packet from Allen as Allen worked in the back hallway, telling
him he was going to give it to Zambrano who was also working
in the same hallway. At Allen’s request, Morse provided Allen
a signed statement dated September 21, which reads:
On or about June or July of 2003, I Ancel Morse of the
produce Dept. handed Miguel a union packet to look over
and read and if he was interested to sign the union card
and give it back to me later.
This got Larry fired because they had thought that it
was Larry that handed Miguel the packet.
Counsel for the General Counsel appropriately offered
Morse’s written statement into evidence as a prior consistent
statement. However, the circumstances surrounding its prepa-
ration and production make it of dubious evidentiary value.
According to Morse, he gave his statement to Allen after writ-
ing it, which means Allen had it in his possession since about
September 21. Inexplicably, Allen did not submit the statement
to the Board during the investigation of the charges herein, and
although it was encompassed by Respondent’s subpoena served
on Allen prior to the hearing, he also failed to produce it for
Respondent. The week prior to the hearing, after giving ac-
ceptable assurances, counsel for Respondent questioned Morse
about the circumstances surrounding Zambrano’s receipt of the
union packet.20 Morse told Respondent’s counsel he had never
given any union literature to Zambrano, assertedly dissembling
because he “was in fear of losing [his] job.” Morse’s professed
fear is at odds with his willingness to talk to Respondent’s
counsel even after being assured he need not do so, and I can-
not accept his explanation for the duplicity; I can only find it
severely diminishes his credibility. At the hearing, Allen fi-
nally furnished Morse’s written statement to counsel for the

20 Before Respondent’s counsel questioned Morse in this pretrial
meeting, he read to him the following statement, which Morse thereaf-
ter signed:
[Y]our participation in this investigation is completely voluntary. You
are not obligated to cooperate, nor to answer any of my questions.
You are free to leave at any time, to refuse to answer any questions. If
you choose not to participate in this investigation, you will not be pun-
ished in any way by the company.
WAL-MART STORES 1101
General Counsel. The circumstances surrounding this state-
ment are so questionable that I cannot find it bolsters Morse’s
testimony; rather it detracts from it. In sum, I decline to give
any weight to Morse’s testimony beyond finding that he was, in
fact, involved in giving a union packet to Zambrano as Zam-
brano worked. I specifically decline to infer from Morse’s
testimony that Allen was not present when the union packet
was given to Zambrano.
After considering the above evidence, I find Garcia provided
the most reliable information as to what transpired on July 25
regarding Zambrano’s being given union literature.21 She knew
Allen well and saw him and Morse talking with Zambrano as
he worked. A couple of minutes later, Zambrano brought her
the union packet, which he said the short guy he had been talk-
ing to had given him. From this credible testimony, it is rea-
sonable to infer that whether he actually handed Zambrano the
packet or not, Allen was one of a duo that presented the packet
to Zambrano during both Zambrano’s and his worktime.
After consultation with Respondent’s corporate office labor
team, Rios decided to discharge Allen and directed Little to
handle the termination meeting with Roth in Rios’ absence
from the LV Store. On August 1, Allen met with Little and
Roth in the manager’s office. Allen said he wanted to invoke
his Weingarten rights and read aloud a summary of them.
When he finished reading, Roth told him the investigation was
complete, and he was terminated from Wal-Mart. Roth read
aloud the words from the exit interview form that Allen’s ter-
mination was due to “Insubordination, repeated violation of
company policy despite warning.” In answer to Allen’s request
for clarification, Roth told him he had violated the Company’s
solicitation policy. Allen protested the policy was illegal under
Federal law. After writing “soliciting” on the form, Allen
signed it.22
At the hearing, Respondent presented the following evidence
regarding Allen’s solicitation/distribution activities, presumably
obtained during preparation for the hearing. There is no expla-
nation as to why manager observations or employee observa-
tions reported to management were not acted on:
Mr. Allen gave then-employee Paul Walton (a Wal-
Mart assistant manager since August) union literature in
the Lay-Away area, a work area of the store.
Mr. Allen gave Pamela Eylens, cake decorator, union
literature in the bakery area several times during the rele-
vant period, and she saw him place union materials on the
bakery counter four to five times.

21 Counsel for the General Counsel argues I should not credit Garcia
because she could not recall the time of day her exchange with Zam-
brano occurred. I do not find that time and even date confusion, with-
out more, impacts credibility.
22 I have accepted Little’s and Roth’s versions of the termination
meeting. Allen testified Little initially told him he was under investiga-
tion and announced his termination only after he said he wanted to
invoke his Weingarten rights. I find it inherently incongruous that
Little would tell Allen he was under investigation when all other evi-
dence shows the investigation was completed and the termination deci-
sion made before Little or Roth spoke to Allen that day.
Michaela Wilson, jewelry department manager, saw
Mr. Allen distribute union literature in a work area in Feb-
ruary.
Mr. Allen gave union literature to employee Damon
Webb in meat department.
Mr. Allen gave overnight stocker Mona Lisa Adams
union literature in the produce back area while she was
working.
When Gloria Kieffer overnight stocker in garden cen-
ter wouldn’t accept union literature from Mr. Allen, he
laid it on the pallets and the stack bases, which she re-
ported to an assistant manger.
Department Manager Monica Cirrone saw Mr. Allen
put union cards in the backroom bins of the boys and girls
department.
Mr. Allen gave Melvin Enriquez a union packet as he
worked in the grocery side hallway.
Mr. Allen gave overnight stocker Donell Havens a un-
ion authorization card in the produce sale areas, which she
reported.
Mr. Allen gave Tim Moreno a Weingarten card in the
back hallway when they were returning to work from a
morning meeting.23
Mr. Allen gave contact and radio cards to maintenance
employee Harvey Garcia on the sales floor.
Mr. Allen gave union literature to Christina Ann Diaz
Allen 15–20 times in the store’s receiving area.24
D. Events at the Marks Street, Henderson Store
On the morning of October 17, 2002, union representatives
William Meyer ( Meyer), Marice Miller (Miller), and Jacque-
line Stacy (Stacy) handbilled at two Wal-Mart stores in the Las
Vegas Area (one on Cheyenne and one on Craig Road) for
about an hour at each location. At the first store, a Wal-Mart
manager initially protested the handbilling, but another man-
ager told the trio as long as they stayed 15 feet from the en-
trance and did not interrupt flow of traffic they could remain.
At the second store, essentially the same interchange occurred
between the union representatives and Wal-Mart management,
with the same consequences. The two stores permitted the
handbilling without the Union’s having obtained prior permis-
sion, including signing Respondent’s solicitation/distribution
policy. At about 12:30 p.m. that same day, the union represen-
tatives commenced handbilling employees at the grocery en-
trance to the Henderson Store. As with the earlier handbilling,
the Union had not complied with Respondent’s policy requiring
advance notice and permission for such activity, although the
representatives were aware of the policy.
When the union representatives began handbilling at the

23 Moreno admitted selling chances for a 2004 super bowl pool to
employees and several managers in work areas. There is no evidence
Moreno’s activity was reported to upper management.
24 As the Charging Party points out, this evidence tends to support its
position that Respondent accepted Allen’s conduct until some factor
(intensified union activity, according to the Charging Party) rendered it
intolerable. I cannot, however, find activity of which Rios was not
made aware until after the discharge meaningfully bolsters either the
Charging Party or Respondent’s positions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1102
Henderson store, Manager Shaun Mace told them they could
not handbill there. Meyer said they were observing the 15-foot
rule and intended to continue the activity. Scott Miller, co-
manager of the Henderson store, and Manager Yvonne Garza
(Garza) arrived at the store. As they approached the union
representatives, Meyer observed Scott Miller take two handbills
from employees sitting on a bench outside the store but did not
hear what, if anything, was said.25 Scott Miller said to the un-
ion representative, “You don’t belong here; this is private prop-
erty; you must leave.” He told them they needed special per-
mission to distribute literature there. Respondent owns the
sidewalk and parking lot at the Henderson store. The General
Counsel and the Charging Party argue easements so vitiated
Respondent’s property rights that the area in front of the store
could not be considered private property. The evidence is in-
sufficient to support such a conclusion, and I find the area
where the handbilling occurred was Respondent’s private prop-
erty.26 Store managers told Meyer at least four times that after-
noon that the union representatives were on private property.
Meyer told Scott Miller the representatives had recently been
to two other Wal-Mart stores where they had maintained the
15-foot separation between themselves and the store entrances
and had no problems with management. Meyer suggested the
managers call the other stores. Scott Miller said what other
stores did was their “deal,” but the Henderson store would not
permit the union representatives to distribute literature there
without prior approval. Meyers said they did not intend to
leave.
During the interchange between union and management,
Miller heard Garza say to two employees who had received
handbills, “You know what to do with that.”27 After she spoke
to them, the two employees threw the handbills away. Meyer
told her she couldn’t do that. At some point, Garza said she
smelled something. The union representatives took the com-
ment as a personal insult, and Stacy called Garza an offensive
name.28
Miller said he observed Scott Miller grab handbills from em-
ployees as the representatives distributed them. Scott Miller
denied taking any union literature from anyone on October 17.
Respondent called several witnesses who observed at least
portions of the handbilling activity: Jim Randolph, community
involvement coordinator for the Henderson store, testified he

25 In the absence of knowing what may have been said between Scott
Miller and the employees, I cannot infer unlawful conduct by Scott
Miller.
26 In light of my finding, I deny Respondent’s posthearing motion
for leave to file notice of Nevada authority holding a property owner’s
grant of easement does not invalidate the right to exclude trespassers.
27 Meyer testified Garza said, “You know what to do with those; you
crumple them up and throw them away.” I accept Miller’s testimony.
Garza is no longer employed by Respondent and lives out of state. She
did not testify.
28 Meyer testified Garza said the union representatives “stink.” I
have accepted Miller’s testimony that Garza said she smelled some-
thing. According to Scott Miller, Garza referred to the odor of a septic
tank behind the store, which occasionally created air quality problems.
There is no evidence any employee heard the comment, and there is no
complaint allegation regarding it. I do not find it necessary to deter-
mine whether the exchange was sufficient cause to summon police.
did not see any member of management take any handbill from
any employee. Customer Support Manager Sabrina Allyn and
her sister, a store employee, received handbills as they walked
into the store and threw them in a trash receptacle. Employees
Laura Alvey and Jeff Hogan (Hogan) observed the handbilling
while taking a 15-minute break together. They saw no member
of management take any literature from anyone. When Miller
attempted to hand Hogan a handbill, Scott Miller told Hogan it
was optional if he wanted to take the flyer or not, in which
Hogan refused the flyer. I credit Miller’s testimony. I found
him a believable witness, forthright, sincere, and seemingly
careful to testify accurately. None of Respondent’s corroborat-
ing employee witnesses saw the entirety of the incident, and I
cannot find their testimonies preclude my acceptance of
Miller’s account of these events.
After some further and repetitive discussion between union
and store representatives, Scott Miller directed another manager
to call the police. The trio continued to handbill until a police
officer arrived about 15 minutes later. After discussing the
situation with both the union representative and management
and after consulting his supervisor by radio, the police officer
told the representatives they had to leave because they were
trespassing. The union representatives left the Henderson store
without further incident, having handbilled there for about an
hour. According to Meyer, after October 17, 2002, the Union
handbilled at Wal-Mart locations, including the Henderson
Store, without giving prior notice or being asked to leave. He
did not detail where the Union handbilled on those occasions or
under what circumstances, and there is no evidence Respondent
was aware of the union’s handbilling activity after October 17,
2002.
IV. DISCUSSION
A. Alleged Independent Violations of Section 8(a)(1)
at the LV Store
The General Counsel alleges Respondent independently vio-
lated Section 8(a)(1) of the Act at the LV Store by the follow-
ing:
1. On September 12, 2002, orally promulgating and
enforcing an overly broad and discriminatory no-
solicitation and no-distribution rule by prohibiting its em-
ployees from talking about the Union and distributing un-
ion literature. (Complaint par. 5(a).)29
2. On September 13, 2002, orally promulgating and
enforcing an overly broad and discriminatory no-
solicitation and no-distribution rule by prohibiting its em-
ployees from soliciting for the Union and distributing un-
ion literature. (Complaint par. 5(b)(1).)

29 No party contends Respondent’s solicitation/distribution policies
violate the Act. “[T]he Board has found that a rule prohibiting solicita-
tion or distribution during ‘working time’ is presumptively valid . . .
[citation omitted].” United Services Auto Assn., 340 NLRB 784, 785
(2003). Similarly, distribution in work areas may be prohibited.
Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). No party contends
enforcement of the policies was unlawfully timed. See City Market,
Inc., 340 NLRB 1260 (2003).
WAL-MART STORES 1103
3. On September 13, 2002, informing employees that it
would be futile for them to select the Union as their bar-
gaining representative. (Complaint par. 5(b)(4).)30
4. On September 13, 2002, creating an impression
among employees that their union activities were under
surveillance. (Complaint par. 5(b)(2).)
5. On September 13, asking employees to ascertain
and disclose to management the union membership, activi-
ties, and sympathies of other employees. (Complaint par.
5(b)(3).)
6. On June 6, orally promulgating and enforcing an
overly broad and discriminatory no-solicitation and no-
distribution rule by informing employees they may not so-
licit in work areas. (Complaint par.5(e).)
As to allegations 1 and 2, I have not found the General
Counsel’s supporting evidence to be credible, as explicated
above. As to allegations 4 and 5 (impression of surveillance
and improper request that employees report union activities), I
find Rios’ statements in the September 13 meeting lawful in
view of Respondent’s longstanding no-distribution/no-
solicitation policy and ongoing reports to management
about violations of that rule. An employer does not commit
an unfair labor practice by lawfully enforcing a lawful plant
rule or by reminding employees of the rule. Respondent
regularly asked its employees to report violations of other
company rules, and neither the content nor timing of Rios’
statements could reasonably have created an impression of
surveillance.
As to allegation 6 regarding the June 6 conversation be-
tween Rios and Allen, counsel for the General Counsel and
the Charging Party argue Rios admitted in his memorandum
of the conversation that he told Allen he could not solicit in
any work areas of the store or while he was on the clock, which
restrictions are overbroad. The memorandum states Rios re-
minded Allen “he was not allowed to solicit in any work areas
of the store nor was he allowed to solicit any associates while
they are on the clock.” If I were to accept Rios’ memorialized
account of his conversation with Allen as establishing what he
actually said to Allen, I would have to conclude Rios unlaw-
fully promulgated an overly broad and discriminatory no-
solicitation rule by unqualifiedly prohibiting solicitation in
work areas and when employees are “on the clock.”31 How-
ever, I cannot view the memorandum as persuasive evidence of
what Rios said in his and Allen’s June 6 conversation and ig-
nore the hearing testimony of what transpired. Neither Rios nor
Allen testified that Rios told Allen he could not solicit in any
work areas of the store, and neither of them testified he referred

30 The allegation meets the three-factor timeliness test of Redd-I,
Inc., 290 NLRB 1115, 1118 (1988). I deny Respondent’s hearing mo-
tion to strike this allegation as untimely.
31 Respondent’s policy does not prohibit solicitation in all work ar-
eas, but only in selling areas during hours when the store is open to the
public and only during worktime. If Rios expanded Respondent’s
policy to encompass Allen’s protected union activity, it would be dis-
criminatory. Restriction on solicitation while employees are “on the
clock” is presumptively invalid as an absolute prohibition on solicita-
tion. Burger King, 331 NLRB 1011 (2000).
to any restriction against employees soliciting while “on the
clock.” I also note Allen did not protest Rios’ directive al-
though he would reasonably be expected to do so had Rios laid
down the broad restrictions reflected by the memorandum.
Rather, Allen told Rios, “That’s fine. You know, I’ll respect
you . . . no problem.” Allen admitted Rios had asked him not
to leave the union cards on the tables during the store meeting
and had told him he was free to solicit and leave contact cards
in the breakroom during his nonwork periods. Allen told Rios
he knew Rios had to enforce Respondent’s policy, but Allen
had to do what he had to do as well, which suggests Allen did
not think Rios had deviated from established policy. Allen’s
testimony as a whole is consistent with Rios’ asking him not to
distribute literature during worktime but inconsistent with any
finding that Rios had, without qualification, asked Allen not to
leave union contact cards in the breakroom or had told Allen he
could not solicit in work areas or while “on the clock.”
Respondent held its morning meetings on worktime; when
the June 6 meeting concluded, Allen and other attending em-
ployees were still on worktime. An admonition not to distrib-
ute literature or solicit at the morning meeting is consonant
with an admonition not to distribute union material or solicit
during worktime whether either activity occurred during the
meeting or at its conclusion. Therefore, I cannot find Rios
communicated to Allen on June 6, any unlawful restriction on
soliciting in any work area of the store during nonworktime.
As I have not found Respondent committed any violations of
the Act as alleged in complaint paragraphs 5(a), (b)(1)–(4), and
(e), I will, dismiss those allegations of the complaint.32
B. The Discharge of Allen
Respondent discharged Allen for giving Zambrano a union
packet while he worked on July 25, a clear violation of Re-
spondent’s no-solicitation/no-distribution policy. Both the
Charging Party and the General Counsel argue Respondent was
motivated to discharge Allen by its animus toward his protected
union activities. In resolving the question of Respondent’s
motivation, I follow the Board’s analytical guidelines in Wright
Line.33 If the General Counsel’s evidence supports a reason-
able inference that protected concerted activity was a catalyzing
factor in Respondent’s discharge of Allen, he has made a prima
facie showing of unlawful conduct.34 The burden of proof then
shifts to Respondent to establish persuasively by a preponder-
ance of the evidence that it would have made the same deci-

32 It is unnecessary to address Respondent’s motion to strike com-
plaint par. 5(b)(4) as untimely under Sec. 10(b) of the Act.
33 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
34 “The General Counsel must establish four elements by a prepon-
derance of the evidence. First, the General Counsel must show the
existence of activity protected by the Act. Second, the General Counsel
must prove that the respondent was aware that the employee had en-
gaged in such activity. Third, the General Counsel must show that the
alleged discriminatee suffered an adverse employment action. Fourth,
the General Counsel must establish a motivational link, or nexus, be-
tween the employee’s protected activity and the adverse employment
action. [Citation omitted.]” American Gardens Management Co., 338
NLRB 644, 645 (2002).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1104
sion, even in the absence of union activity.35 Avondale Indus-
tries, 329 NLRB 1064 (1999); T&J Trucking Co., 316 NLRB
771 (1995). Respondent was well aware of Allen’s prominent
union organizational role, and Respondent opposed union or-
ganization of its employees. Finally, Respondent discharged
Allen for conduct connected with his union activity. In these
circumstances, I conclude the General Counsel has made “an
initial ‘showing sufficient to support the inference that pro-
tected conduct was a motivating factor’” in Respondent’s deci-
sion to terminate Allen. American Gardens Management Co.,
supra at 645. The burden of proof therefore shifts to Respon-
dent to show Allen’s discharge would have (not just could
have) occurred even in the absence of his vigorous participation
in union organizing efforts. Avondale Industries, supra at 1066.
In assessing Respondent’s evidence of lawful purpose in dis-
charging Allen, I recognize that an employer’s desire to curtail
union activities does not, of itself, establish the illegality of a
discharge. If an employee provides an employer with sufficient
cause for dismissal by engaging in conduct that would, in any
event, have resulted in termination, the employer’s welcoming
the opportunity does not render the discharge unlawful. Avon-
dale Industries, supra; Klate Holt Co., 161 NLRB 1606, 1612
(1966). Further, it is well established the Board “cannot substi-
tute its judgment for that of the employer and decide what con-
stitutes appropriate discipline.” Detroit Paneling Systems, 330
NLRB 1170, 1171 fn. 6 (2000), and cases cited therein. None-
theless, the Board’s role is to ascertain whether an employer’s
proffered reasons for disciplinary action are the actual ones.
Ibid
Here, Respondent asserts that by giving union literature to
Zambrano while he worked, and in a work area, Allen breached
Respondent’s no-solicitation/no-distribution rule after repeated
warnings and while in his 12-month D-Day period. There is no
question Respondent could lawfully have discharged Allen had
he engaged in such conduct. Respondent could also have dis-
charged Allen if Respondent reasonably believed, albeit erro-
neously, that Allen had engaged in such conduct, as Wright
Line is “premised on the legal principle that an employer's
unlawful motivation must be established as a precondition to
finding an 8(a)(3) violation.”36 The question, under the Wright
Line analysis, is whether Respondent reasonably believed Allen
engaged in such conduct or whether it seized upon a plausible
opportunity to rid itself of a prominent union supporter whom it
would not otherwise have discharged. In short, the question of
whether Respondent violated the Act in discharging Allen rests
on its motivation.
Motive is a question of fact, and the Board may infer dis-
criminatory motivation from either direct or circumstantial
evidence and the record as a whole. Tubular Corp. of America,
337 NLRB 99 (2001). Indications of discriminatory motive
may include expressed hostility toward the protected activity,37

35 A “preponderance” of evidence means that the proffered evidence
must be sufficient to permit the conclusion that the proposed finding is
more probable than not. McCormick on Evidence, § 676–677 (1st ed.
1954).
36 American Gardens Management Co. supra at 645.
37 Mercedes Benz of Orland Park, 333 NLRB 1017 (2001).
abruptness of the adverse action,38 timing,39 pretextual reason,40
disparate treatment,41 departure from past practice,42 and/or the
employer’s inability to adhere to a consistent explanation for
the action.43
Here, neither direct nor circumstantial evidence permits an
inference of discriminatory motivation in Respondent’s dis-
charge of Allen. First, although Rios warned Allen on several
occasions about the consequences of breaching Respondent’s
no-solicitation/no-distribution policy, Rios did not express ani-
mosity toward Allen’s permissible union activities. Indeed,
Rios allowed instances of Allen’s noncompliance to pass with-
out more than oral reminders.
Second, Respondent took no abrupt action toward Allen that
might signal discriminatory intent. Rios reminded Allen of its
policy restrictions for many months, during which time Allen
openly promoted union organization among fellow employees
without repercussion. Moreover, Respondent did not reach the
discharge decision itself without a significant period of infor-
mation gathering and reflection.
Third, the timing of Allen’s discharge was unrelated to any
action or event other than his ostensible violation of company
policy. Although the Charging Party argues Allen’s discharge
was prompted by a significant increase in organizing interest,
the evidence shows no nexus between purported increased in-
terest and the discharge.
Fourth, no evidence was adduced of pretext in Respondent’s
decision. The Charging Party argues Respondent unreasonably
and unlawfully claimed that all hallway areas of the LV Store
were work areas; therefore, Allen was justified in disseminating
literature in certain areas. I do not find it necessary to address
that contention because there is no doubt Zambrano was given
union literature as he worked, a clear violation of Respondent’s
policy under any circumstances. There is also no evidence
Respondent conducted an inadequate or superficial investiga-
tion of the Zambrano incident or accepted biased information,
either of which would point to animus. No reason has been
shown why Rios should not have believed the information he
received about the incident. See American Thread Co., 270
NLRB 526 (1984). I find Rios, on whom the discharge deci-
sion rested, and the managers who reported the events to him
all believed in good faith that Allen had violated Respondent’s
no-solicitation/no-distribution policy. While, as the Charging
Party points out, the investigation did not included questioning
Allen, interviewing the subject employee is not a requirement
for an adequate investigation. Frierson Building Supply Co.,
328 NLRB 1023 (1999). Given its past cautions to Allen, it
was not unreasonable for Rios to decide termination was an
appropriate disciplinary measure without further discussion
with Allen.
Fifth, the evidence does not justify a finding of disparate
treatment, which must be supported by a showing that employ-

38 Dynabil Industries, 330 NLRB 360 (1999).
39 Bethlehem Temple Learning Center, 330 NLRB 1177 (2000).
40 Pacific FM, Inc, 332 NLRB 771 (2000); Fluor Daniel, 311 NLRB
498 (1993).
41 NACCO Materials Handling Group, 331 NLRB 1245 (2000).
42 Sunbelt Enterprises, 285 NLRB 1153 (1987).
43 Atlantic Limousine, 316 NLRB 822 (1995).
WAL-MART STORES 1105
ees similarly circumstanced were treated differently from Al-
len. Although Moreno conducted a 2004 super bowl pool in
work areas of the store, which violated Respondent’s policy,
there is no evidence Rios knew of Moreno’s activity. Another
employee was not permitted to distribute blood drive flyers for
her nephew with cancer other than in the breakroom. Although
she was allowed to announce the blood drive in some morning
meetings, that does not show disparate treatment of Allen,
whose conduct—distributing literature without permission dur-
ing worktime and in work areas—was entirely different. Fi-
nally, Respondent has consistently offered the same explana-
tion of Allen’s discharge that it presented at the hearing.
Accordingly, I conclude Respondent has met its burden of
showing Allen’s discharge would have occurred even in the
absence of his union activities. More specifically, Respondent
has shown it would have discharged Allen if it believed he
persisted in disseminating literature, nonunion or otherwise, in
violation of Respondent’s policies. As to the complaint allega-
tion that Respondent discharged Allen in violation of Section
8(a)(4) of the Act, the same analysis described above applies. I
find Respondent did not, therefore, violate Section 8(a)(3) or
(4) of the Act by discharging Allen. I will, therefore, dismiss
those allegations of the complaint.
It remains to determine whether Respondent violated Section
8(a)(1) by discharging Allen. Under NLRB v. Burnup & Sims,
379 U.S. 21 (1964), it is not sufficient for Respondent to show
a good-faith belief that misconduct occurred in defending a
discharge decision. In Burnup & Sims, the Supreme Court
affirmed the Board’s rule that an employer violates Section
8(a)(1) by discharging or disciplining an employee based on
its good-faith albeit mistaken belief the employee engaged
in misconduct in the course of protected activity. Id. at 23–
24. It is necessary, therefore, to decide whether Allen was,
in fact, guilty of the conduct for which Respondent dis-
charged him, i.e., giving union literature to Zambrano as he
worked.
As explained above, I have accepted very little of the tes-
timony regarding the Zambrano incident. I have found that
of all the witnesses, only Garcia gave fully competent and
credible evidence. From her evidence, I find it reasonable,
indeed requisite, to infer that Morse, and not Allen, may
have been the one who actually handed the packet to Zam-
brano; Allen, acting in concert with him, was no less guilty
of violating Respondent’s solicitation/distribution policy.
Accordingly, I find Respondent did not violate Section
8(a)(1) of the Act when it discharged Allen for misconduct
he had, in fact, engaged in. I will, therefore, dismiss that
allegation of the complaint.
C. Alleged Violations of Section 8(a)(1) at
the Henderson Store
The General Counsel alleges at paragraph 5(d)(1) that
Respondent promulgated and enforced an overly broad and
discriminatory no-solicitation and no-distribution rule by
prohibiting union organizers from soliciting its employees
and distributing union literature to its employees on its
property at the Henderson Store. Respondent’s solicita-
tion/distribution policies provide that nonassociates may
request and receive permission from Respondent to so-
licit/distribute outside its facilities. The organization
granted such permission is to sign a copy of Respondent’s
solicitation/distribution rules to signify agreement to abide by
them. Having been granted permission to solicit/distribute,
the organization is to conduct its activities at least 15 feet
from the entrances and exits of Respondent’s facilities. In its
October 17, 2002 solicitation/distribution at the Henderson
Store, the only one of the above requirements with which
the Union complied was the 15-foot distance rule.
Respondent has a right to restrict nonemployees in solicit-
ing/distributing on its property. As stated in New York New
York Hotel & Casino, 334 NLRB 762 (2001),44
[I]ndividuals who do not work regularly and exclusively
on the employer's property, such as nonemployee union
organizers, may be treated as trespassers, and are entitled
to access to the premises only if they have no reasonable
non-trespassory means to communicate their message.
NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956); Lech-
mere, Inc. v. NLRB, 502 U.S. 527 (1992). . . . Contrary to
the Respondent, nothing in this decision or in those on
which it is based suggests that the Respondent would be
required to allow such individuals to solicit or distribute
handbills on its property.45
Respondent has met its burden of showing a sufficient
property interest in the Henderson Store entrance area to pro-
hibit nonemployees who did not meet its solicita-
tion/distribution prerequisites from soliciting/distributing on
the property. Whether Respondent lawfully prohibited the
Union’s unapproved activity depends on whether, as alleged,
Respondent discriminatorily applied its non-associate solicita-
tion/distribution policies.
The General Counsel and the Charging Party contend Re-
spondent either more strictly or inconsistently applied its
non-associate solicitation/distribution policies to the union
handbillers. The Charging Party points to the Union’s hav-
ing handbilled at the Henderson Store after October 17,
2002 as evidence of inconsistent policy enforcement, but
there is no evidence Respondent was aware of the handbill-
ing on that occasion. While the Charging Party points to
occasions on which Respondent did not follow its internal
policy requirements as to the number of days, organizations,

44 Review granted, enf. denied on other grounds 313 F.2d 585 (D.C.
Cir. 2002).
45 See also Farm Fresh, Inc., 326 NLRB 997 (1998), review granted,
enf. granted in part and otherwise remanded 222 F.3d 1030 (D.C. Cir.
2000), remand accepted 332 NLRB 1424 (2000) (accepting the remand
as “law of the case” the Board reversed its prior decision that respon-
dent possessed a sufficient property interest in sidewalks outside some
of its stores to justify removal of nonemployee union-literature distribu-
tors); Oakland Mall, 316 NLRB 1160, 1164 (1995), review denied 74
F.3d 292 (D.C. Cir. 1996) (respondents did not act unlawfully by pro-
hibiting, or imposing requirements on union handbilling on their prop-
erties).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1106
or repeat appearances it permitted for solicita-
tion/distribution activity, the Charging Party could point to
no situation where Respondent did not require an organiza-
tion to obtain prior approval.46 The Charging Party also
argues that seeking prior approval would have been futile
but provides no supporting evidence. Accordingly, I find
Respondent consistently and nondiscriminatorally applied
its nonassociate solicitation/distribution policies and did not
violate the Act by refusing to permit noncompliant union
representatives from soliciting or distributing handbills at
the Henderson store on October 17, 2002. I will, therefore,
dismiss that allegation of the complaint.
The complaint at paragraph 5(d)(4) further alleges Re-
spondent violated the Act by causing the Henderson, Ne-
vada police to remove the union organizers from its prop-
erty on October 17, 2002. Inasmuch as the Union’s conduct
in handbilling on Respondent’s property without permission
and its persistent refusal to cease the activity were unpro-
tected, it follows that Respondent did not violate Section
8(a)(1) of the Act when it summoned the police to enforce
its lawful requests. NYNEX Corp, 338 NLRB 659, 660
(2002). I will, therefore, dismiss that allegation of the com-
plaint.
At paragraphs 5(d)(4), (2), and (3) of the complaint, the
General Counsel alleges that in the course of the confronta-
tion between the Union and Henderson store managers on
October 17, 2002, Respondent violated Section 8(a)(1) of
the Act by confiscating union literature from employees and
threatening employees with unspecified reprisals to prevent
them from accepting union literature.
Credible testimony establishes Respondent’s management
engaged in the following conduct during the incident on
October 17, 2002: Garza told two employees who had ac-
cepted handbills, “You know what to do with that,” a clear
directive to destroy or otherwise disregard the material.
Scott Miller took handbills from employees as union repre-
sentatives distributed them. In taking handbills away from
employees and implicitly telling them to destroy them, Scott
Miller and Garza, respectively, interfered with, restrained,
and coerced employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act.47
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by
(a) Impliedly telling employees to destroy or disregard union
literature.
(b) Taking union literature away from employees.
2. Respondent has not violated the Act as otherwise alleged
in the complaint.

46 The fact that the Cheyenne and Craig Road stores waived the pol-
icy requirements and permitted the Union to handbill on October 17,
2002, neither created a precedent the Henderson store was obliged to
follow nor showed inconsistency or discrimination.
47 While I cannot find Garza’s telling employees they knew what to
do with the union flyers constituted a threat of reprisal as alleged in the
complaint, her statement was unquestionably coercive.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed 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 recommended48
ORDER
The Respondent, Wal-Mart Stores, Inc., Henderson, Nevada,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Impliedly telling employees to destroy or disregard union
literature.
(b) Taking union literature away from employees.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Henderson, Nevada, copies of the attached notice
marked “Appendix.”49 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 the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since October 17, 2002.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 labor law and has ordered us to post and obey this no-

48 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
49 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.”
WAL-MART STORES 1107
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT impliedly tell employees to destroy or disregard
union literature.
WE WILL NOT take union literature away from employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WAL-MART STORES, INC., HENDERSON, NEVADA