Wal-Mart Stores

National Labor Relations Board - Board Decisions

Jun 30, 2008

352 N.L.R.B. 815 (N.L.R.B. 2008)

WAL-MART STORES
352 NLRB No. 103
815
Wal-Mart Stores, Inc. and United Food and Com-
mercial Workers Union, Local Union 99R, CLC
and United Food and Commercial Workers In-
ternational Union, CLC.1 Cases 28–CA–16832,
28–CA–17774, and 28–CA–17774–2
June 30, 2008
DECISION AND ORDER2
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
At issue in this proceeding is whether the Respon-
dent’s conduct in response to a union organizing drive
among the Tire and Lube Express (TLE) employees at its
Kingman, Arizona facility violated Section 8(a)(1) and
8(a)(3) of the Act. We find, in agreement with the
judge,3 that the Respondent granted a benefit to employ-

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, as well as to reflect our earlier sev-
erance of Case 28–CA–17141.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the National
Labor Relations Board’s powers in anticipation of the expiration of the
terms of Members Kirsanow and Walsh on December 31, 2007. Pursu-
ant to this delegation, Chairman Schaumber and Member Liebman
constitute a quorum of the three-member group. As a quorum, they
have the authority to issue decisions and orders in unfair labor practice
and representation cases. See Sec. 3(b) of the Act.
3 On February 28, 2003, Administrative Law Judge Gregory Z.
Meyerson issued the attached decision. The General Counsel and the
Respondent filed exceptions and supporting briefs. The General Coun-
sel, the Respondent, and the Charging Party filed answering briefs and
the General Counsel and the Respondent filed reply briefs. On Septem-
ber 29, 2006, the Board found that any attorney-client privilege asserted
as to the Respondent’s “remedy system” files had been waived, and
remanded this proceeding to the judge to reopen the record to receive
relevant documents from the Respondent’s remedy system and related
evidence bearing on the parties’ pending exceptions. 348 NLRB 833.
On March 30, 2007, the judge issued the attached supplemental de-
cision and order. The General Counsel, the Respondent, and the Charg-
ing Party filed exceptions and supporting briefs. The General Counsel
and the Respondent filed answering briefs and reply briefs. On June
12, 2007, the Board granted, in part, the Respondent’s motion to strike
certain of the Charging Party’s exceptions as untimely.
The Board has considered the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings, findings, and
conclusions, and to adopt the recommended Orders as modified and set
forth in full below.
At the hearing on remand, and in his supplemental decision, the
judge refused the General Counsel’s and the Charging Party’s requests
to question witnesses concerning the remedy system documents as they
pertained to the Respondent’s exceptions, and instead limited their
questioning to the General Counsel’s single exception. The General
Counsel and the Charging Party contend that the judge’s ruling was
contrary to the Board’s remand order that required the production of
Respondent’s remedy system documents relevant to both the General
Counsel’s exception and the Respondent’s exceptions. We reject this
argument. The judge permitted the General Counsel to make an offer
of proof regarding the matters about which the witnesses would testify
if called. The General Counsel’s proffer did not identify anything in
ees, in violation of Section 8(a)(1), by repairing the cool-
ing system in the TLE in order to induce employees to
refrain from supporting the Union.4 We further agree
with the judge that the Respondent violated Section
8(a)(3) and (1) by discharging employee Brad Jones and
denying him COBRA benefits, and by disparately failing
to enforce its no-harassment policy to protect employees
Will Brooks and Greg Lewis from the harassing state-
ments of employee Mitch Bowman.5
As explained below, we also affirm the judge’s finding
that the Respondent unlawfully threatened to freeze dis-
cretionary merit wage increases during initial bargaining
if the employees voted for union representation.6
However, for the reasons set forth below, we reverse
the judge’s finding that the Respondent unlawfully sur-
veilled employees and created an impression of surveil-

the remedy system documents that would require further testimony,
specify witnesses who would have been called, or indicate the sub-
stance of their testimony. Thus, even assuming that the judge’s proce-
dural ruling was erroneous we find no showing that the error was
prejudicial.
The parties have excepted to some of the judge’s credibility find-
ings. 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.
4 Because any additional 8(a)(1) grant of benefits finding would be
cumulative, and would not affect the remedy, we find it unnecessary to
decide whether the Respondent unlawfully granted benefits to employ-
ees by replacing the oil grates in the TLE and by transferring Store
Manager Mike Buckner.
5 In finding these 8(a)(3) violations, the judge applied the analysis
set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). When describing the
prima facie showing required under Wright Line, the judge stated that
the General Counsel must establish four elements—(1) the existence of
protected activity; (2) employer knowledge of that activity; (3) adverse
employment action suffered by alleged discriminatees; and (4) a link,
or nexus, between the employees’ protected activity and the adverse
employment action. As stated recently in Gelita USA, Inc., 352 NLRB
406 fn. 2 (2008), “Board cases typically do not include (4) as an inde-
pendent element.” See, e.g., SFO Good-Nite Inn, LLC, 352 NLRB 331,
332 (2008). However, because Wright Line is a causation analysis,
Chairman Schaumber agrees with the judge’s addition of the fourth
element. See, e.g., Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4
(2003).
In agreeing with the judge that the General Counsel met his burden
of establishing a prima facie 8(a)(3) case with respect to the Respon-
dent’s application of its no-harassment policy and its treatment of
Jones, we do not rely on his finding that union animus may be inferred
from the Respondent’s having “engaged in a very aggressive campaign
to defeat the Local Union’s organizing efforts.” Further, because, as
discussed infra, we have reversed the judge and found that the Respon-
dent’s 9-day assignment of Tim Scott to the TLE manager position did
not constitute unlawful surveillance or create the impression of surveil-
lance, we do not rely on it as evidence of union animus.
6 In the absence of exceptions, we also affirm the judge’s dismissal
of all remaining allegations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD816
lance when it assigned Regional Personnel Manager Tom
Scott to be the interim TLE manager.7
Background
During the summer of 2000, the TLE employees con-
tacted United Food and Commercial Workers, Local Un-
ion 99R.8 The Union filed a representation petition on
August 28.9 On August 30, a labor relations team from
the Respondent’s Bentonville, Arkansas headquarters
arrived at the Kingman store. Senior Labor Manager
Vicky Dodson headed up the team. Among other things,
the labor team gathered information about the organizing
effort and met with employees. The team also met with
regional, district, and visiting managers and held confer-
ence calls with the Respondent’s legal team on a daily
basis.
Threat to Postpone Merit Wage Increases
Soon after its arrival at the Kingman facility, the Re-
spondent’s labor relations team had a “question box”
installed outside the breakroom for employees to deposit
any questions they had about the effects of union repre-
sentation. The labor team checked the box daily and
posted questions and answers for the employees to see.
In response to the question (submitted while the repre-
sentation petition was pending) “What happens to raises
in the TLE while they’re waiting on a contract?”, the
Respondent on October 14 posted the following re-
sponse:
Wal-Mart would not be allowed to give any discretion-
ary raises, such as merit increases, while negotiations
continued. In general, no provision of a collective-
bargaining agreement is put in place until the parties
agree on every part of the agreement.
The judge found that the Respondent had a past prac-
tice of granting merit increases that were discretionary in
amount. As such, he found that these increases were an
“existing benefit” which could not lawfully be discontin-
ued unilaterally while the petition for an election was
pending. Accordingly, the judge found that the Respon-
dent violated Section 8(a)(1) by stating in its October 14
response that employee merit increases would be discon-
tinued.
Although we agree with the judge’s 8(a)(1) finding, we
do not agree with the legal standard on which he relied.

7 In an unpublished order dated September 26, 2006, the Board sev-
ered and remanded for settlement the complaint allegations regarding
statements in the Respondent’s benefits book that the judge found
unlawful in Sec. III,C,13 of his decision.
8 Hereafter, all dates are in 2000, unless otherwise stated.
9 The Regional Director issued a Decision and Direction of Election
on September 29. The election, which was scheduled for October 27,
was blocked by the charges filed in this case on October 24.
The judge relied on precedent setting forth the obliga-
tions of an employer to maintain the status quo as to
wages and benefits during a union organizing drive. As
we explained in Sam’s Club, 349 NLRB 1007, 1012
(2007), “[A]n employer faced with a union organizing
drive is required to proceed with an expected wage or
benefit adjustment as if the union were not on the scene.”
Here, however, the question posed by the employees
focused on the postcertification period, and asked what
would happen to employee merit increases “while they’re
waiting on a contract” to be negotiated. The legal stan-
dard applicable to wage increases in this context, as set
forth in NLRB v. Katz, 369 U.S. 736 (1962), and Daily
News of Los Angeles, 315 NLRB 1236 (1994), enfd. 73
F.3d 406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090
(1997), is that when employees are represented by a la-
bor organization, their employer may not make unilateral
changes in their terms and conditions of employment. Id.
As set forth in Jensen Enterprises, 339 NLRB 877
(2003):
[F]ollowing its employees’ selection of an exclu-
sive bargaining representative, an employer may not
unilaterally discontinue a practice of granting peri-
odic wage increases. . . .
Hence, an employer’s statement that wages will
be frozen until a collective-bargaining agreement is
signed violates Section 8(a)(1) of the Act if the em-
ployer has a past practice of granting periodic wage
increases. Such an announcement suggests to em-
ployees that the employer intends to unilaterally take
away benefits and require the union to negotiate to
get them back. [Citations omitted.]10
The Respondent’s answer to the question submitted by
its employees clearly violated its obligations under Katz
and Daily News. As in Jensen Enterprises, it told em-
ployees that it would not grant them merit increases dur-
ing negotiations for a collective-bargaining agreement.
Accordingly, we affirm the judge’s finding that the Re-
spondent’s answer constituted a threat to withhold an
established benefit and violated Section 8(a)(1).
Alleged Surveillance and Creation of the Impression
of Surveillance in the TLE
Regional Personnel Manager Tim Scott, who arrived
with the labor relations team, was assigned by Dodson to
act as interim manager of the TLE for the first 9 days he
was at the store, even though he had no TLE or automo-
tive experience. The General Counsel alleged, and the

10 If the employer follows through with its announcement, it violates
Sec. 8(a)(5) and (1). See Mission Foods, 350 NLRB 336, 336–338
(2007).
WAL-MART STORES 817
judge found, that while assigned to the TLE, Scott en-
gaged in surveillance of the employees’ union activities
and created an impression of surveillance. The Respon-
dent has excepted to these findings, and we find merit in
the exceptions.
At the time the petition was filed, TLE Manager Larry
Eidson was on an extended medical leave.11 While Edi-
son was on leave, Hillary Vergara, a manager trainee
from another department within the store, served for a
brief time as an interim manager of TLE. Like Scott,
Vergara had no TLE or automotive experience. After
Vergara transferred to another store in late July, no one
was assigned to manage the TLE until Scott took over on
August 30.
During his managerial tenure in TLE, Scott worked
from opening until closing and spent most of his time on
the floor assisting employees and engaging them in con-
versations about TLE operations. On September 7, Scott
assumed other duties at the store and Ragnar Guenther,
the new district TLE manager, succeeded him as the in-
terim manager until Eidson’s return.
The judge found that Scott’s presence “must have had
a significant impression on the automotive service tech-
nicians.” He observed that Scott was a high-ranking
manager and a member of the labor relations team that
had been dispatched by headquarters immediately after
the petition was filed, and that the team’s acknowledged
job was to gather information about what employees
wanted and their union sympathies. The judge reasoned
that the employees were aware that Scott had no experi-
ence in TLE work and was not qualified for the man-
ager’s job, and found that employees reasonably would
have assumed that he was assigned to the TLE primarily
to observe whether they were engaged in union activity.
Accordingly, the judge concluded that the Respondent
violated Section 8(a)(1) by giving employees the impres-
sion of surveillance. In view of the labor relations
team’s stated purpose, the judge also found that the Re-
spondent engaged in actual surveillance of the TLE em-
ployees’ union activity in violation of Section 8(a)(1).
For the reasons discussed below, we disagree.
The record establishes that when Scott and Dodson ar-
rived at the Kingman store, they found the store in disar-
ray and the TLE without a manager. As the Respondent
points out, although Scott was inexperienced, so was his
predecessor Vergara. Thus, the Respondent’s appoint-
ment of an interim manager without TLE experience was
not unprecedented. Moreover, there is no evidence that
any more qualified individual was readily available to
manage the TLE. On this record, then, it appears that

11 Eidson was on leave from July through late September.
Dodson simply assigned Scott to work as a manager
where a manager was needed, and then only for a brief
period until an interim manager with automotive experi-
ence arrived. Scott spent 9 days heading up the TLE
operation in an unremarkable fashion, working from
opening to closing, side by side with the automotive em-
ployees until Guenther succeeded him.12
The Board has long held that management officials’
observation of public union activity, particularly where
such activity occurs on company premises, does not vio-
late Section 8(a)(1) of the Act, unless officials do some-
thing out of the ordinary. See, e.g., Sprain Brook Manor
Nursing Home, 351 NLRB 1191, 1192 (2007) (manager
who never worked on Saturdays and who stood in door-
way of building for 3 hours on a Saturday watching a
union organizer distribute literature to employees en-
gaged in unlawful surveillance). Here, however, there is
no evidence that Scott engaged in extraordinary conduct
that would indicate that the employees’ exercise of Sec-
tion 7 rights was under surveillance. To the contrary, the
record indicates that he simply worked in the TLE along-
side the other employees as a normal manager.
As the judge stated, the test for determining whether
an employer has created an impression of surveillance is
whether the employees would reasonably assume from
the employer’s actions or statements that their union ac-
tivities had been placed under surveillance. See, e.g.,
Waste Stream Management, 315 NLRB 1099, 1124
(1994). In the present circumstances, it is more likely
that the employees would view Scott’s presence as a
stopgap assignment to their department of a sorely
needed manager13 rather than as an effort to surveill their
union activity. Accordingly, in the absence of additional
evidence, we find that the General Counsel has not estab-
lished that the Respondent engaged in surveillance or
created an impression of surveillance.
ORDER
The Respondent, Wal-Mart Stores, Inc., Kingman, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Granting benefits and improved working conditions
to discourage employees from supporting the Local Un-
ion.
(b) Threatening its employees with a loss of merit
wage increases for supporting the Local Union.

12 The judge dismissed allegations that Scott solicited grievances and
promised to remedy them. No exceptions have been filed to those
dismissals.
13 Dodson’s notes indicate that employees were concerned about the
lack of a manager in TLE because without a manager there would be no
one to recommend them for merit wage increases.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD818
(c) Discriminatorily and disparately applying and en-
forcing its no-harassment policies to the detriment of
employees who supported the Local Union.
(d) Discharging, denying COBRA coverage to, or oth-
erwise discriminating against any of its employees for
supporting the Local Union or any other union.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Apply and enforce its no-harassment policies in a
fair and impartial manner so as not to discriminate to the
detriment of supporters of the Local Union.
(b) Within 14 days from the date of this Order, offer
Brad Jones full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(c) Make Brad Jones whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, including any out of pocket medical
costs incurred because of his denial of COBRA cover-
age, in the manner set forth in the remedy section of the
judge’s decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Brad Jones, and within 3 days thereafter, notify him in
writing that this has been done and that the discharge will
not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Kingman, Arizona, copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-

14 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.”
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at the Kingman facility at any time
since September 2000.
(g) 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 that the Respondent has taken to
comply.
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 discharge or otherwise discriminate
against any of you for supporting the United Food and
Commercial Workers Union, Local Union 99R, CLC
(the Local Union), or any other union.
WE WILL NOT deny you COBRA medical insurance
coverage for supporting the Local Union or any other
union.
WE WILL NOT apply and enforce our no-harassment
policies in a disparate and discriminatory manner to the
harm and disadvantage of those of you who support the
Local Union or any other union.
WE WILL NOT grant benefits or improvements in work-
ing conditions to you in an effort to discourage you from
supporting the Local Union or any other union.
WE WILL NOT threaten you with a loss of your merit
wage increases if you select the Local Union or any other
union as your collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
WAL-MART STORES 819
guaranteed by Section 7 of the National Labor Relations
Act.
WE WILL within 14 days from the date of the Board’s
Order, offer Brad Jones full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Brad Jones whole for any loss of earn-
ings and other benefits resulting from his discriminatory
discharge, less any net interim earnings, plus interest.
WE WILL make Brad Jones whole, including interest,
for any out of pocket medical costs incurred because of
the discriminatory denial of COBRA medical insurance
coverage.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Brad Jones, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge will not be used against him in any
way.
WE WILL apply and enforce our no-harassment policies
in a fair and impartial manner so as not to discriminate to
the harm and disadvantage of the supporters of the Local
Union or any other union.
WAL-MART STORES, INC.
Paul Irving, Esq., for the General Counsel.
Lawrence A. Katz, Steven D. Wheeless, and Karen L. Karr, of
Phoenix, Arizona, for the Respondent.
Lisa Pederson, of Washington, D.C., for the Charging Parties.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Kingman, Arizona, on June
11–14, September 3–6, and 9–13, 2002. United Food and
Commercial Workers Union, Local Union 99R, AFL–CIO,
CLC (the Local Union) filed an unfair labor practice charge and
amended charge in Case 28–CA–16832 on October 24 and
December 27, 2000, respectively. The Local Union filed an
unfair labor practice charge and amended charge in Case 28–
CA–17141 on April 23, 2001, and May 3, 2002, respectively.
United Food and Commercial Workers International Union,
AFL–CIO, CLC (the International Union) filed an unfair labor
practice charge in Case 28–CA–17774 on February 27, 2002,
and filed an unfair labor practice charge in Case 28–CA–
17774–2 on March 5, 2002. Based on those charges, the Re-
gional Director for Region 28 of the National Labor Relations
Board (the Board) issued a consolidated complaint on May 24,
2002. The consolidated complaint alleges that Wal-Mart
Stores, Inc. (the Respondent, the Employer, or Wal-Mart) vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act). The Respondent filed a timely answer to the
consolidated complaint denying the commission of the alleged
unfair labor practices.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based on the record, my consideration of
the briefs filed by counsel for the General Counsel, counsel for
the Respondent, and counsel for the Local Union and the Inter-
national Union (collectively the Unions or the Charging Par-
ties), and my observation of the demeanor of the witnesses,1 I
now make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent is a Delaware corporation, with offices and places
of business located throughout the United States, including its
Store 2051 in Kingman, Arizona (the Respondent’s facility),
where it is engaged in the operation of retail stores. Further, I
find that during the 12-month period ending October 24, 2000,
the Respondent, in the course and conduct of its business opera-
tions, purchased and received at its facility goods valued in
excess of $50,000 directly from points located outside the State
of Arizona. During the same period of time, the Respondent
derived gross revenues in excess of $500,000.
Accordingly, I conclude that the Respondent is now, and at
all times material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS
The complaint alleges, the answer admits, and I find that at
all times material, the Local Union and the International Union
have each been labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Dispute
The General Counsel alleges that the Respondent’s supervi-
sors and agents have engaged in a campaign designed to defeat
the Local Union’s organizing effort among a unit of employees
in the Kingman, Arizona facility’s Tire and Lube Express
(TLE). According to the General Counsel’s theory of the case,
the Respondent’s local, regional, and corporate officials pur-
sued a policy designed to interfere with, restrain, and coerce the
employees in the exercise of their Section 7 rights. This con-
duct is also alleged to have discriminated in regard to the tenure
or terms or conditions of employment of the TLE employees,
all in an effort to discourage support for the Local Union.
It is alleged in the complaint that the Respondent’s supervi-
sors and agents repeatedly solicited employee grievances and
complaints, and promised its employees increased benefits and
improved terms and conditions of employment, and that it

1 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD820
would remedy employees’ grievances if they refrained from
union organizational activity. Further, it is charged that the
Respondent granted certain specific benefits and improved
working conditions for the TLE employees and other employ-
ees in an effort to get them to refrain from supporting the Local
Union. These benefits allegedly included new equipment, an
improved cooling system, and the suspension of a computer
generated scheduling system for TLE employees, as well as, the
removal of an unpopular store manager.
The complaint alleges that certain of the Respondent’s su-
pervisors and agents engaged in surveillance, or created the
impression of surveillance, of employees’ union and other con-
certed activities. Employees were allegedly informed that it
would be futile for them to select the Local Union as their bar-
gaining representative, as the Respondent need not negotiate.
Also, it is charged that employees were threatened with loss of
raises, stakeholder bonuses, and discount cards if they selected
the Local Union as their bargaining representative.
It is further alleged in the complaint that the Respondent dis-
parately applied and enforced it’s nonharassment policies to the
detriment of employees who supported the Local Union, and
that it increased the work duties and tasks of employees Brad
Jones and Larry Adams because of their support for the Local
Union. The Respondent is alleged to have discharged Jones
and denied him COBRA benefits because of his union and
concerted activities. Also, it is charged that the Respondent
denied the request of several employees to have coworkers
present during investigatory interviews, which interviews the
employees had reasonable cause to believe would result in dis-
ciplinary action. Additionally, these employees were allegedly
threatened with reprisals for refusing to waive their right to
have a coworker present.
Finally, it is alleged that at all of its stores throughout the
United States, the Respondent has maintained in its associate
benefits book a provision which indicates that union repre-
sented employees are not eligible for certain benefits to which
most other employees are entitled. This provision is allegedly
intended to chill employees’ Section 7 rights.
The Respondent denies the commission of any unfair labor
practices.2 The Respondent argues that it has a corporate phi-
losophy based on an “open door” policy. This policy strongly
encourages employees throughout the Respondent’s corporate
structure to take their ideas, concerns, suggestions, and prob-
lems directly to management. Employees are told frequently,
both orally and in writing, that they can go as high as they want
within the management structure, including even to the Em-
ployer’s chief executive officer, in seeking guidance under the
“open door” policy. In explaining its policy to employees, the
Respondent stresses that while an employee will always receive
an answer to the inquiry, there is no guarantee that it will be the
answer the employee is looking for. In any event, employees

2 In its answer, the Respondent denies the allegations in the consoli-
dated complaint regarding the filing and service of the various charges.
However, at the hearing, counsel for the Respondent stipulated to the
service of the charges as alleged. Further, the filing of the charges as
alleged is established by the unrebutted admission into evidence of the
original charges and docket letters for the above-captioned cases. See
GC Exhs. 1(a), (h), (j), and (n).
are told that if dissatisfied with any answer, they are at liberty
to take their inquiry higher in the management structure. Al-
legedly, supervisors at Wal-Mart stores routinely post the
names and telephone numbers of corporate management, which
employees are encouraged to use when seeking answers to their
inquiries. Further, they are repeatedly told that there are no
reprisals for utilizing the “open door” policy.
The Respondent contends that it has created a corporate at-
mosphere that makes it unlikely its employees will be interested
in seeking union representation. It argues that because of the
“open door” policy, employees find they do not need third-
party representation. According to Wal-Mart, it is not anti-
union, but rather “proassociate.”3
It is the Respondent’s contention that the filing of the repre-
sentation petition at its Kingman, Arizona facility resulted not
in its commission of unfair labor practices, but instead in an
opportunity for the Employer to remind its employees of the
benefits of the “open door” policy. The Respondent takes the
position that the actions of its local, regional, and corporate
officials, following the filing of the petition, were intended
merely to explain to its employees why union representation
was not in their best interest, and constituted a totally lawful
expression of free speech. Further, it is the Respondent’s posi-
tion that the filing of the instant unfair labor practice charges is
simply a continuation of a national campaign that the Interna-
tional Union has instituted in an effort to harm Wal-Mart.
The Respondent alleges that any changes in the operation of
its Kingman facility, following the filing of the petition, were
merely the result of the normal operation and maintenance of
the store. It denies any attempt to unlawfully influence its em-
ployees’ interest in supporting the Local Union. Any personnel
actions taken were allegedly for legitimate business reasons,
and unrelated to the union activity of the employees involved.
B. Background Facts
The Respondent is the nations largest retail establishment,
with well over 3000 stores located throughout the country. It
is, of course, engaged in the business of the retail sale of con-
sumer products and food items to the general public. Only one
of its stores is directly involved in this dispute, namely store
2051 in Kingman, Arizona. This facility is divided into six
different divisions, including a tire lube express (TLE) division.
The TLE provides automotive services to customers including
oil changes, and flat tire repair and tire balancing. It also sells
merchandise directly to customers, including new tires. (GC
Exh. 20.)
On August 28, 2000, the Local Union filed a petition with
the Board in Case 28–RC–5889 to represent approximately 11
automotive service technicians employed at the facility’s TLE.
The Respondent took the position that an appropriate bargain-
ing unit should consist of a storewide unit comprised of all its
Kingman facility employees, approximately 260 individuals.
Following a representation hearing, the Regional Director for
Region 28 issued a Decision and Direction of Election on Sep-
tember 29, 2000, in which he found the appropriate unit to con-

3 As part of its corporate image, Wal-Mart uniformly refers to its
employees as “associates.”
WAL-MART STORES 821
sist of all the facility’s TLE employees. There were approxi-
mately 30 employees in the unit found appropriate. (GC Exh.
20.) Subsequently, an election was scheduled to be held on
October 27, 2000, in the unit found appropriate. However, to
date no election has been held as the present unfair labor prac-
tice charges served to block the election.
Following the filing of the representation petition, a copy of
the petition was received by fax at the facility on August 28,
2000. On August 30, 2 days later, a team of labor relations
managers from the Respondent’s headquarters in Bentonville,
Arkansas, arrived in Kingman to begin the Employer’s election
campaign. Initially, this team consisted of Vicky Dodson, sen-
ior labor manager; Kirk Williams, labor manager; Tim Scott,
regional personnel manager; and others. Mike Buckner was the
store manager at that time.
The Respondent does not deny the seriousness with which it
takes union organizational efforts at any of its stores. All of its
supervisors have computer access to a document entitled “A
Managers Toolbox,” which serves as a resource for managers
in developing strategies for union avoidance. While the docu-
ment states that the Respondent is “not antiunion” but, rather,
“pro[a]ssociate,” it also indicates that the managers are the
“first line of defense against unionization.” Managers are cau-
tioned to be “alert for efforts by a union to organize” and are
directed to call the “union hotline” when they become aware of
union activity.4 The document characterizes Wal-Mart as
“strongly opposed to third party representation.” It stresses,
“maintaining an environment of open communication through
the use of the Open Door Policy . . .” and states that this policy
is the “greatest barrier to union influences” that will try to
change the Respondent’s “union free status.” (GC Exh. 29.)
Vicky Dodson headed the team of labor relations managers
from Arkansas (the Arkansas team). She acknowledged that
the team’s goal, in part, was to ensure that the Kingman facility
remained union free. It is undisputed that the team managers,
as well as other supervisors who came to the facility during the
period prior to the scheduled election, had the intention of con-
vincing the TLE employees to vote against union representa-
tion. Members of the team held numerous educational meet-
ings with TLE employees and other store employees. They
extensively discussed the Respondent’s view of unions, the

4 The “union hotline” is a system established so that managers
throughout the country can report union activity to headquarters and, in
return, receive guidance from labor relations specialists and legal ad-
vice from the Respondent’s legal team, both in-house and outside coun-
sel. The flow of information back to store managers is referred to as
the “remedy system.” During the hearing, I revoked certain portions of
the subpoena duces tecum requested by counsel for the General Coun-
sel and counsel for the Unions, which sought the production of hotline
and remedy system documents. I ruled the remedy system documents
privileged under the attorney-client privilege. However, in his
posthearing brief, counsel for the General Counsel has requested that I
reverse my previous ruling, order the production of the documents in
question, and reopen the hearing for the introduction of these docu-
ments into evidence. This I decline to do. I am of the view that my
original ruling was correct, and that the documents were not producible
for the reasons that I stated at the hearing. Accordingly, I deny the
General Counsel’s request that I order the production of the documents
in question.
collective-bargaining process, and the Respondent’s “open
door” policy. Approximately five videos were shown to em-
ployees, all with the theme that the employees should reject
“third-party representation.” Additionally, a number of local,
regional, and corporate managers, including the Respondent’s
chief executive officer, Tom Coughlin, meet with groups of
employees, also with the intention of convincing them not to
support the Local Union’s organizing efforts.
The Arkansas team was also responsible for providing train-
ing to the Kingman facility managers, as well as to managers
who arrived from other locations, on how to combat the Local
Union’s organizing efforts. It is undisputed that the team met
daily with the facility manager and assistant managers in an
effort to determine how the campaign was progressing. Fur-
ther, members of the team had daily contact with the headquar-
ters legal staff, usually in the form of a conference call, to bring
the attorneys up to date on the status of the campaign, and to
receive any legal guidance necessary.
At virtually every meeting held with groups of employees,
the Respondent’s managers stressed the “open door” policy. In
resolving the unfair labor practice allegations in the complaint,
it is essential to understand the Respondent’s reliance on the
policy and the way in which it was presented to the employees.
References to the open door policy in material made available
to employees can be accurately described as ubiquitous. Na-
tionwide, the Respondent informs its employees of the open
door policy through its computer-posted corporate policies
known as the “pipeline” (GC Exh. 15) and in its employee
handbook. (R. Exh. 12.) The handbook describes the open door
policy as follows:
Our Open Door Policy says that if you have an idea or a prob-
lem, you should go to your supervisor to talk about it without
fear of retaliation. Faster resolution may occur when the as-
sociate goes through the immediate supervisor first. How-
ever, if the associate feels the supervisor is the source of the
problem, or if the problem has not been addressed satisfacto-
rily, the associate may go to any level of management in the
Company. Remember, while the Open Door promises that
you will be heard, it cannot promise that your opinion will
always prevail. Any suppression of, or retaliation for using
the Open Door Policy by a supervisory associate may result in
disciplinary action, up to and including termination.
The computer-posted policy is very similar, indicating to em-
ployees that the purpose of the open door “is to bring your sug-
gestions, observations, problems or concerns regarding the
company or yourself to the attention of any supervisor.”
Additionally, the open door policy is customarily posted at
various points in the Respondent’s stores nationwide where
employees would likely congregate. It was undisputed that at
the Kingman facility, the policy was posted in the training
room, by the timeclock, in the breakroom, and in the TLE
stockroom. (R. Exhs. 8–11.)
I am convinced that the open door policy is an integral part
of the Respondent’s corporate culture. It is also beyond doubt
that the policy is intended, at least in part, to discourage em-
ployees from seeking union representation. The policy affords
the Respondent the opportunity to tell its employees that “third-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD822
party representation” is not necessary, as they are allegedly able
to bring their concerns directly to management. While it is
axiomatic that the Respondent may engage in union avoidance
by expressing its negative views about unions to its employees,
such expression must be without threat of reprisal, or force, or
promise of benefit. (Sec. 8(c) of the Act.)
The central issue in this case is whether the Respondent’s
supervisors and agents crossed the line between free speech,
and expressions or actions that would constitute violations of
the Act. In the remainder of this decision, I will discuss the
Respondent’s conduct in connection with the union campaign
and the union activity of certain of its employees.
C. Argument and Analysis
1. Promises to remedy grievances, and improve benefits
and terms and conditions of employment
Complaint paragraph 5(b) alleges that the facility store man-
ager, Mike Buckner, on August 30, 2000,5 at a meeting with the
TLE employees, promised improved benefits and terms and
conditions of employment, as well as a remedy of employees’
grievances, if they refrained from union organizational activity.
This was the first meeting for employees held following the
receipt of the representation petition. The Arkansas team had
arrived in Kingman, and Vicky Dodson had assumed onsite
control of the Respondent’s campaign. Prior to the meeting,
Dodson had met with Buckner and in preparation for his ad-
dress to the TLE employees, she had written “talking points”
for him to use. Buckner, Tim Scott, and Dodson all testified
about the substance of this meeting. Kirk Williams testified
that he was not at this meeting but, rather, was preparing for
meetings that followed. Three former employees testified
about the meeting, namely Greg Lewis, TLE service technician;
Brad Jones, TLE service writer/greeter; and William Brooks,
TLE service technician. All three employees had been active
supporters of the Local Union. Of the three employee wit-
nesses, Lewis’ testimony is the only potentially damaging to
the Respondent. According to Lewis, Buckner said that Wal-
Mart had “dropped the ball” and that “he just let us know that if
we had any problems, any questions, concerns or problems, to
let him know, and he would take care of it.” It is the General
Counsel’s contention that this statement, made in the context of
certain longstanding complaints by the TLE employees, consti-
tuted a promise to remedy those complaints and generally to
improve the terms and conditions of employment.
According to Buckner, he was given the “talking points” by
Dodson, which he practiced delivering, and ultimately read to
the assembled TLE employees. He denied making any other
substantive comments at this meeting. A review of the “talking
points” establishes that they were introductory remarks in-
tended to inform the TLE employees of the filing of the repre-
sentation petition, to introduce the members of the Arkansas
team, and to indicate that other meetings would follow to more
fully explain the union organization campaign and to keep the
employees informed. (R. Exh. 7.) Both Scott and Dodson
testified that Buckner read the talking points verbatim, and
made no other substantive comments.

5 The following dates are all in 2000, unless otherwise indicated.
Vicky Dodson was a principal character in the events sur-
rounding the union organizational campaign. She was in
charge of the Respondent’s onsite efforts to maintain the facil-
ity as a union-free store. It is, therefore, appropriate at the out-
set of this decision for me to make certain comments regarding
her background and my impression of her credibility. At the
time of her testimony, Dodson had been employed by Wal-
Mart for 13 years and was classified as a director of labor rela-
tions. Previously, she had held positions with the Respondent
as a senior labor manager and labor relations manager. Her
testimony indicated extensive training as a labor relations pro-
fessional, and the Respondent’s confidence in her abilities was
demonstrated by placing her in charge of its onsite campaign.
Dodson testified for a lengthy period. Following her testimony,
I am of the view that she is a well versed labor relations man-
ager, who has a reasonably good understanding of how to con-
duct an election campaign on behalf of her Employer, without
committing obvious unfair labor practices. Further, she im-
pressed me with her sincerity, and no-nonsense attitude about
her job. She is an intelligent individual with a good recall of
events, and testified in detail without embellishment or exag-
geration. I was impressed with her demeanor under both direct
and cross-examination, and I found her to be a generally credi-
ble witness.
I credit the testimony of Dodson that on August 30, Buckner
read the talking points verbatim. Further, I accept her testi-
mony that Buckner did not ask TLE employees to tell him their
problems, or that he would take care of their problems, or any
words to that effect. Scott and Buckner support her testimony.
Accordingly, I conclude that the General Counsel has failed to
establish that Buckner made any unlawful promises to the TLE
employees to remedy grievances or improve benefits and terms
and conditions of employment.
However, I believe that it is still necessary to discuss the al-
leged promises in light of the open door policy. The General
Counsel alleges repeated instances of various managers solicit-
ing grievances or making promises of benefits in an effort to
destroy the employees’ support for the Local Union. Accord-
ing to the General Counsel, the Respondent has attempted to
disguise these unlawful efforts by continuous references to the
open door policy. To the contrary, I am of the view that this
Employer has a longstanding and well-established past practice
of encouraging its employees to seek out its managers and su-
pervisors whenever they have questions, concerns, ideas, sug-
gestions, and, yes, problems. That is the whole idea behind the
open door policy. This is a nationwide program of long dura-
tion. As noted above, the Respondent advises its employees of
the policy in numerous ways, including its employee handbook
and computer-based “pipeline.” Also, descriptions of the pol-
icy are posted throughout the Respondent’s stores, frequently
with the pictures and telephone numbers of its local, regional,
and even corporate managers who are part of the open door.
That was also the case at the Kingman facility, long before the
organizational campaign commenced.
It is well established that “[a]n employer who has had a past
practice and policy of soliciting employee grievances may con-
tinue to do so during an organizational campaign.” Naomi Knit-
ting Plant, 328 NLRB 1279 (1999), citing House of Raeford
WAL-MART STORES 823
Farms, 308 NLRB 568, 569 (1992). Further, in the related area
of objections to an election, the Board has held that an em-
ployer does not engage in objectionable conduct by soliciting
and promising to remedy employee grievances during a union
campaign if the employer, both prior to the campaign and after,
was willing to listen to its employees’ complaints and respond
to them. MacDonald Machinery Co., 335 NLRB 319 (2001);
see also Maple Grove Health Care Center, 330 NLRB 775
(2000) (“Absent a previous practice of doing so . . . the solicita-
tion of grievances during an organizational campaign accompa-
nied by a promise, expressed or implied, to remedy the griev-
ances violates the Act.”).
I disagree with the contention of counsel for the General
Counsel and counsel for the Unions that the Respondent’s use
of the open door policy at the facility was inconsistent with its
past practice. As I have stated, the policy was an integral part
of the Respondent’s corporate culture. Employees were con-
tinually exposed to the policy at all of its stores nationwide,
including at the Kingman facility. Of course, during its elec-
tion campaign, the Respondent held frequent meetings with
employees. These meetings were conducted by various local,
regional and corporate managers. Clearly, their intention was
to convince the employees not to support the Local Union. As
such, they argued that “third-party representation” was not
necessary because the open door policy provided employees
with a method of having their concerns directly addressed by
management. This was the same message that the Respondent
had previously used in explaining the alleged benefits of the
open door policy. Nothing changed during the election cam-
paign, except the frequency with which the employees heard
this message, and the number and title of the messengers. The
increased volume of “campaign propaganda” was certainly to
be expected, as the Respondent was engaged in an election
campaign. Also, it was not surprising that the Respondent
brought high-ranking officials, including its chief executive
officer, into the facility. The Respondent wanted its message to
have the greatest impact possible. However, the message itself
had not changed from that given prior to the Local Union’s
organizing efforts. The Respondent’s reliance on the open door
policy at the Kingman facility was not inconsistent with its past
practice.
As noted above, I have concluded that Mike Buckner did not
promise TLE employees on August 30 that he would remedy
their grievances or improve their benefits and terms and condi-
tions of employment. Further, I conclude that even assuming,
for sake of argument, that Buckner made any comments regard-
ing employee problems, they were made in the context of ex-
plaining the open door policy. This was merely a continuation
of the Respondent’s well-established past practice. Accord-
ingly, I conclude there is insufficient evidence to establish the
allegations in paragraph 5(b) of the complaint. Therefore, I
shall recommend dismissal of this paragraph of the complaint.
Paragraph 5(c) of the complaint alleges that on August 30,
Buckner, at a storewide meeting of employees, promised im-
proved benefits and terms and conditions of employment, as
well as a remedy of employees’ grievances, if they refrained
from union organizational activity. This complaint paragraph is
identical to the prior paragraph, except the statements were
allegedly made to a group of employees who worked through-
out the Kingman facility, rather than only in the TLE. All par-
ties agree that following the filing of the petition, the Respon-
dent initially held campaign meetings for both TLE employees
and for storewide groups of employees. The Respondent took
the position at the representation hearing that the appropriate
unit should be a storewide unit, not one comprised only of TLE
employees. According to the Respondent, until the issue was
decided, it thought it prudent to make its campaign presentation
to all potential voters throughout the store. However, at some
point following the Decision and Direction of Election, the
Respondent limited its campaign meetings to only those em-
ployees in the TLE found by the Regional Director to be in the
appropriate unit.
In any event, on August 30, a second meeting was held for
employees, similar to the first, except that it was not limited to
TLE employees. Former TLE employee Gregory Lewis, who
attended both meetings, testified that the second meeting was
“scripted,” and Buckner made “pretty much verbatim” the same
comments as at the earlier meeting. That was the only evidence
offered to support the complaint allegation. On the other hand,
Buckner, Dodson, and Williams all testified that Buckner read
the same talking points he had at the earlier TLE meeting.
Further, they all testified that he made no other substantive
comments, and specifically did not promise the employees
improved benefits and terms and conditions of employment,
and did not promise to remedy employees’ grievances. The
three managers were essentially supported by the testimony of
employees Dottie Yarnell, Dorothy Haddock, Sherri Quinn, and
Sharon Ford.
For the reasons stated above, I continue to find Vicky
Dodson to be a credible witness, and accept her version of the
comments made by Buckner at the second meeting held on
August 30. Further, the collective testimony of the witnesses
weighs heavily in favor of the conclusion that Buckner did not
promise employees improved benefits and terms and conditions
of employment, or to remedy their grievances, and I so find.
Also, as I indicated above, even assuming, for argument
sake, that Buckner made certain comments regarding employee
problems, they were made in the context of explaining the open
door policy. This was merely a continuation of the Respon-
dent’s well-established past practice. Such a restatement of the
Respondent’s preexisting open door policy would be lawful
under existing Board law. Naomi Knitting Plant, supra; House
of Raeford Farms, supra. Accordingly, I conclude the General
Counsel has failed to meet his burden to establish the allega-
tions in paragraph 5(c) of the complaint. Therefore, I shall
recommend dismissal of this paragraph of the complaint.
It is alleged in paragraph 5(d) of the complaint that on Au-
gust 30, Vicki Dodson solicited employee grievances and
promised employees increased benefits and improved terms and
conditions of employment if they refrained from supporting
union organizational activity. Dodson spoke at both the TLE
meeting and the storewide meeting held on the morning of
August 30. Store Manager Buckner introduced her to employ-
ees at both meetings. TLE employee Jones testified that during
the TLE meeting, Dodson said that she had come to the facility
to talk and listen to the employees and, “to do whatever it takes
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD824
to make things right.” According to Jones, she stressed that the
representation petition was a “serious business” and that the
Employer stood behind the open door policy. Further, Jones
contends that Dodson said that some employees had tried to use
the policy in the past and that Wal-Mart had let them down, and
that the Employer “had dropped the ball.” Allegedly, she as-
sured the employees that the Arkansas team was at the facility
to “fix the problem,” and that if they had any “problems,” they
should come to talk to herself, Kirk Williams, or Tim Scott.
TLE employee Lewis supports some of Jones’ testimony, as he
contends that Dodson told the TLE employees that Wal-Mart
“dropped the ball,” and that if they had “any problems,” to let
her know and she would “do every thing within [her] power to
take care of it.” Also supporting certain of Jones’ testimony
was TLE employee Brooks. According to Brooks, Dodson
informed the TLE employees that the Employer had “obviously
dropped the ball,” and that if employees had any “problems” or
“concerns,” they should come to her or a member of her team
and she could “override that and get it straightened out.” Al-
legedly, she said that she would do “anything in her power” to
straighten things out.
Dodson testified that she said essentially the same thing to
assembled employees at both the TLE and storewide meetings
held on August 30. She told them that she was at the facility to
train the managers about union organizational campaigns, and
to ensure that they did not violate the law. Further, she would
be educating the employees about unions and would be answer-
ing employee questions about unions and the campaign. She
indicated that she would do anything she could to answer their
questions. She talked about the open door policy. Dodson
specifically denied telling employees that she would “make
things right” or that she would “take care of, or straighten out
problems.” She did not tell employees that she was at the facil-
ity to “fix things” or any words to that effect. Dodson’s testi-
mony was essentially supported by the testimony of employees
Dottie Yarnell, Dorothy Haddock, Sherri Quinn, and Sharron
Ford. Also supporting Dodson’s testimony were Store Man-
ager Buckner and Labor Manager Williams. Williams, who
only attended the storewide meeting on August 30, testified that
Dodson spoke about why “third-party representation” was not
necessary and about the open door policy. According to Wil-
liams, Dodson admitted that the Employer had made some
mistakes, and that the open door had not always worked as
designed. She also acknowledged that the leadership in the
TLE had not been the best. However, he denied that Dodson
made any statement about solving employee problems.
For the reasons stated above, I continue to believe that
Vickie Dodson was a credible witness. Further, she impressed
me as an intelligent, articulate, sophisticated individual who
was a well-trained labor relations manager. She and her team
were at the facility to run the Respondent’s election campaign,
and I simply do not believe that she would likely have commit-
ted obvious unfair labor practices. Her version of the events in
question is inherently more plausible than the version of events
as testified to by the witnesses called by the General Counsel.
Also, the weight of the witness’ testimony supports the position
taken by Dodson. I believe it highly implausible that someone
with Dodson’s knowledge of labor relations would have told an
assembled group of employees that she could solve their prob-
lems, or that they should bring their problems to her for resolu-
tion, or words to that effect. I think it much more likely that
certain of the TLE employees simply misconstrued her state-
ments and confused her comments about the open door policy,
or her comment that she would obtain answers to their ques-
tions, with a promise to solve problems or improve benefits.
I am further of the view that any comments made by Dodson
about the operation of the open door policy were consistent
with the Respondent’s well established and disseminated past
practice, and, thus, lawful under existing Board law. (See the
legal authority cited above.)
Accordingly, I conclude the General Counsel has failed to
establish the allegations found in paragraph 5(d) of the com-
plaint. Therefore, I shall recommend dismissal of this para-
graph of the complaint.
Paragraph 5(f) of the complaint alleges that during the period
from August 28 to October 24, Timothy Scott solicited em-
ployee grievances and complaints and promised employees
increased benefits and improved terms and conditions of em-
ployment if they refrained from union organizational activity.
As noted earlier, Scott was at the time a regional personnel
manager who arrived at the facility on about August 30, as one
of the members of the Respondent’s Arkansas team. Prelimi-
narily, it is important to establish that the unrebutted testimony
of the Respondent’s witnesses was that between September 17
and the first week in October, Scott was absent from the facil-
ity, having left to participate in an elk hunt. He was initially
assigned to the TLE where he allegedly was to provide man-
agement support, as the TLE manager, Larry Eidson, was ab-
sent on medical leave. For approximately 9 days, Scott worked
all day in the TLE. However, following the arrival of a new
TLE district manager, Ragnar Guenther, who assumed the du-
ties of an interim TLE manager, Scott was no longer assigned
exclusively to the TLE. During the period that he functioned as
TLE manager, Scott was in the TLE basically from open to
close. He would perform the duties of the service technicians,
including oil and tire changes, as well as organizing the work
flow, taking care of customer complaints, preparing the stock
room, and walking the floor. During his remaining period at
the facility, Scott was assigned to assist the store with inventory
preparation and open benefit enrollment, and to answer em-
ployee questions.
In any event, the only evidence offered by counsel for the
General Counsel in support of this complaint allegation in-
volved exclusively the period Scott worked in the TLE, which
was approximately 9 days, beginning on August 30. Both em-
ployees Brooks and Lewis testified that while he was working
in the TLE, Scott continually asked them if there was anything
he could do for them, how they were doing, could he help them,
and if they had any problems. On the other hand, Joe Bettinger,
another TLE technician, testified that Scott never solicited
grievances from him, nor did he hear Scott do so with anyone
else. Scott himself denied that he ever solicited grievances, or
used words that suggested he was promising to remedy issues,
concerns or problems. Scott never addressed assembled groups
of employees.
WAL-MART STORES 825
In a later section of this decision, I will address the issue of
whether Scott’s presence in the TLE for 9 days constituted
surveillance of employees’ union activity. However, it is clear
to me that while at the TLE Scott performed a significant
amount of service work and functioned as the acting TLE man-
ager. In that capacity it would not be unusual for him to have
asked TLE employees how they were doing, whether he could
help them, or if they had any problems. These appear to me to
be work-related questions regarding matters that the TLE man-
ager should, of course, be concerned about. I do not believe
that they constituted a solicitation of grievances.
Asking questions of TLE employees dealing with the daily
operation of the shop was precisely what a manager should do.
Further, the questions attributed to Scott were at best innocuous
and ambiguous, appearing to be nothing more than a general
inquiry about the operation of the TLE. The Board has held
that vague statements that do not promise that anything in par-
ticular will happen do not rise to the level of illegal promises of
benefits. National Micronetics, Inc., 277 NLRB 993 (1985);
citing Allied/Egry Business Systems, 169 NLRB 514, 517
(1968) (Asking the employees to give the plant manager a
chance to prove they did not need an outsider to speak for them
was merely a vague suggestion, which did not support a finding
that the employer made an unlawful promise.). Accordingly, I
conclude that the General Counsel has failed to meet his burden
of proof regarding the allegations found in paragraph 5(f) of the
complaint. Therefore, I shall recommend that this paragraph of
the complaint be dismissed.
In paragraph 5(g) of the complaint, the General Counsel al-
leges that between August 28 and October 24, Dodson, Scott,
and Williams solicited employee grievances and promised em-
ployees increased benefits and improved terms and conditions
of employment if they refrained from union organizational
activity. This paragraph appears to be a sort of “catch-all,” by
which the General Counsel charges the Respondent with con-
tinuing efforts to solicit grievances during the balance of what
was the “preelection period,” had an election been held. It is
undisputed that during this period of time, the Respondent held
numerous meetings with groups of employees, both exclusively
for the employees in the TLE and for employees storewide.
For the most part, these meetings were held daily and were
conducted by Vicky Dodson and Kirk Williams. In some in-
stances, management representatives besides Dodson and Wil-
liams made presentations to the assembled employees. The
theme of all the meetings was basically the same, with man-
agement explaining the open door policy and why that policy
allegedly made union representation unnecessary. At some
meetings, videos were shown to employees, all containing the
message that union representation was not in the employees’
best interest. Employees were encouraged to ask questions and
answers were generally provided.
Counsel for the General Counsel’s witness Brad Jones testi-
fied that Dodson and Williams conducted meetings once or
twice every day during the petition period. However, his only
testimony, which might be construed as supporting this com-
plaint allegation, was the comment that at these meetings
Dodson and Williams listened to employees’ questions and
complaints and said, “[A]s far as things that were in their
power, they did what they could to fix it.” Another witness for
the General Counsel, Gregory Lewis, testified that “everyone
from Bentonville” went out of their way to ask if there was
anything they could do for him, which he found “annoying.”
Further, he testified that during the group meetings Dodson and
Williams asked employees if they had any questions, and spe-
cifically “if there were any problems that they could help us
with.”
Vicky Dodson denied asking employees to tell her their
problems, asking if there were any problems she could help
with, or telling employees that she was there to fix things, or do
anything in her power to take care of their problems. She testi-
fied that she repeatedly told the employees that “third-party
representation” was not necessary as they could speak for them-
selves through the open door policy. She acknowledged to the
employees that Wal-Mart had “dropped the ball” with some
prior open door complaints. Further, she told them that she
would do everything in her power to answer their questions and
provide them with the information they needed to make an
informed decision about union representation. According to
Dodson, she specifically told employees that Wal-Mart could
not make promises and could not fix things because the law
prohibited the Employer from making promises in an effort to
influence how the employees voted.
Kirk Williams testified that he never asked employees if they
had any problems, and never asked them to bring him their
problems. He never told employees he would fix their prob-
lems if it were in his power. Further, he testified that he never
heard any member of management make any such statement in
his presence. He did, however, ask employees if they had any
questions. Also, at the group meetings for employees, he fre-
quently raised the open door policy and the Employer’s posi-
tion that the employees did not need a union to speak in their
behalf.
Anthony Kuc, a former assistant manager at the Kingman fa-
cility, was called as a witness by counsel for the General Coun-
sel. The Respondent terminated Kuc, and he indicated that he
was considering legal action against the Respondent. However,
despite some animosity towards the Respondent, he testified
that during the petition period, he heard both Dodson and Wil-
liams tell employees in meetings that they could not promise
them anything and could not fix anything. According to Kuc,
Dodson and Williams scripted the daily meetings with employ-
ees, and they were careful about their choice of words. In addi-
tion to Kuc, the testimony of Dodson and Williams was essen-
tially supported by employee Sherri Quinn, service technician
Joe Bettinger, and former Store Manager Mike Buckner.
As I have previously, I continue to credit the testimony of
Vicky Dodson. I also credit the testimony of Kirk Williams,
another experienced labor relations professional. In my view,
Dodson and Williams were unlikely to commit obvious unfair
labor practices when making organized presentations to groups
of employees. These were carefully controlled meetings, with
management’s presentation “scripted” in advance. Leaving
nothing to chance, Dodson prepared “talking points” for man-
agement’s use during the meetings. These written outlines
support the Respondent’s position that no solicitation of griev-
ances or promises of benefits were made at these meetings by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD826
Dodson, Williams, or Scott. (R. Exh. 15.) Perhaps the most
compelling testimony came from former Assistant Manager
Kuc. It was obvious from his testimony that he harbored con-
siderable animosity towards the Respondent, which he felt ter-
minated him unjustly. Nevertheless, his testimony was gener-
ally favorable to the Respondent when he indicated that during
employee meetings he heard both Dodson and Williams say
that they could neither promise nor fix anything.
The weight of the credible evidence clearly supports the de-
nials of Dodson and Williams that anyone from management
made any statements to employees that could be construed as
either a solicitation of grievances or promise of benefit. How-
ever, even assuming, for the sake of argument, that manage-
ment made some reference to employee problems, I continue to
believe that such a comment was made in the context of ex-
plaining the open door policy and, as such, was consistent with
the Respondent’s past practice and well-disseminated policy.
The comment would, thus, be lawful under existing Board law.
Naomi Knitting Plant, supra; House of Raeford Farms, supra.
Accordingly, I conclude the General Counsel has failed to es-
tablish the allegations set forth in paragraph 5(g) of the com-
plaint. Therefore, I shall recommend that this paragraph of the
complaint be dismissed.
Paragraph 5(h) of the complaint alleges that during the last
week of September, Jim Wilhelm solicited employee griev-
ances and complaints, and promised employees increased bene-
fits and improved terms and conditions of employment if they
refrained from union organizational activity. During Septem-
ber, Wilhelm was employed by the Respondent as a regional
vice president of operations for an area that included the King-
man facility. At the time of the hearing, he was on a medical
leave of absence and did not testify. In any event, it is undis-
puted that in September he traveled to Kingman to introduce a
new district manager, Jay King. While at the facility, he met
with a storewide group of employees.
Former TLE employee Jones testified that he was present
when Wilhelm addressed the employees. According to Jones,
Wilhelm said that he believed in the open door policy and if it
had not worked properly because the employees in the TLE had
been having a “bad time,” it was his fault, as he had “dropped
the ball.” Allegedly, Wilhelm said that past problems could be
“fixed.” Jones indicated that he had tried to use the open door
to complain about an issue when he called David Dible (execu-
tive vice president of specialty divisions), who merely gave him
the “company line.” Wilhelm asked Jones why he did not con-
tact him, and Jones indicated he had gone as far as he thought
he could. According to Jones, Wilhelm indicated that he was
part of the open door too, that his picture was in the breakroom
with his telephone number, and if the employees had any ques-
tions or concerns that they should not hesitate to call him.
Jones acknowledged in his testimony that the open door policy
poster with Wilhelm’s picture and phone number had been on
the wall for months prior to the filing of the petition. Russell
Harrell, a former department manager, was called as a witness
by counsel for the General Counsel. At the time of the hearing,
he was no longer employed by the Respondent. He supported
Jones’ testimony to the extent that he indicated Wilhelm stated
that employees who had problems to discuss could pursue the
open door policy and have their concerns addressed. Further,
Wilhelm told the employees if they felt “they weren’t being
taken care of, call him.”
Dodson testified that Wilhelm introduced the new district
manager, Jay King, after which he talked about the open door
policy. He reminded the employees that he was a part of the
open door and pointed out that his picture, in connection with
the open door, was posted in the breakroom. In a discussion
with employees Jones or Brooks about whether the open door
worked, Wilhelm indicated that they had not called him. Ac-
cording to Dodson, Wilhelm did not say that he would fix their
problems, or any words to that effect. Kirk Williams testified
largely in conformity with Dodson. However, he added that in
Wilhelm’s address to the employees, Wilhelm indicated that
with the open door policy they would get an answer to their
inquiry, although it might not be the answer they wanted.
Wilhelm told the employees that he receives phone calls from
employees all over his region in connection with the open door
policy and reminded them that his picture and phone number
were in the breakroom. Williams denied that Wilhelm ever
said anything about resolving employee problems. District
Manager Jay King and employee Dorothy Haddock essentially
testified in conformity with Dodson and Williams.
There was really not a great disparity between the testimony
of the various witnesses regarding the address Wilhelm made to
the employees. Everyone agrees that Wilhelm talked about the
open door policy and his role in the process. Further, it is clear
that he reminded the employees that his picture and phone
number were posted as part of the open door. Wilhelm also had
a discussion with Jones about the value of the open door. The
only dispute regarding the substance of Wilhelm’s comments
was whether he said that employee problems could be “fixed”
through the open door process.
Based on the weight of the probative evidence, I am of the
view that it is unlikely that Wilhelm made any comment about
fixing employee problems, or words to that effect. I continue to
find Vicky Dodson to be a particularly reliable and credible
witness. Further, I find the testimony of Kirk Williams and Jay
King regarding this matter to be equally credible. On the other
hand, these were comments that Jones and Harrell could have
easily misconstrued, and I find their testimony to be inherently
less plausible. Therefore, I do not believe that Wilhelm refer-
enced fixing employee problems. However, even assuming, for
the sake of argument, that there were references made to solv-
ing problems in connection with the open door policy, I do not
believe any such comment violated the Act. As I have repeat-
edly indicated, the Respondent’s reliance on the open door
policy and its use of the policy in union avoidance was part of
the Respondent’s well established corporate culture. Any men-
tion of problem solving by Wilhelm in connection with the
policy was in conformity with the Respondent’s past practice.
(See legal authority cited above.) Accordingly, I find that the
General Counsel has failed to meet his burden of proof to estab-
lish the allegations set forth in paragraph 5(h) of the complaint.
Therefore, I shall recommend dismissal of this paragraph of the
complaint.
Tom Coughlin was the president and CEO of the Respondent
at the time of the events in question. It is alleged in paragraph
WAL-MART STORES 827
5(k) of the complaint that in mid-October, he solicited em-
ployee grievances and complaints, and promised employees
increased benefits and improved terms and conditions of em-
ployment if they refrained from union organizational activity.
Three of the General Counsel’s witnesses, Jones, Lewis, and
Brooks, testified in a fairly similar fashion concerning a presen-
tation that Coughlin made to assembled TLE employees. All
three agree that Coughlin said that because of certain legal
requirements associated with the filing of the petition, he would
not be able to answer any employee questions. However,
Coughlin presented the Respondent’s position that because of
the open door policy, it was unnecessary for the employees to
seek union representation. It is also undisputed that Coughlin
indicated that he was a part of the open door, and he wrote his
telephone number on the erasable board and directed Jay King
not to let anyone remove the number.
Jones testified that Coughlin said the Respondent had let the
TLE employees down. Further, he allegedly said, “If you have
any questions or problems, don’t hesitate to call me, and I will
get you some results.” According to Jones, Coughlin asked
about the store manager, if he was doing his job, and whether
the employees had confidence in him. Lewis testified that
Coughlin said he “would do anything he could to take care of
them,” . . . “was over everyone, that he was the man that could
get things done,” . . . “he would get us taken care of.” Accord-
ing to Brooks, Coughlin said, “[I]f we had any concerns, we
can call him,” and also said, “I can override anybody.”
Coughlin asked the employees how Store Manager Buckner
was doing.
Jay King testified that Coughlin had come to the Kingman
facility at the request of King and Vicky Dodson to reassure the
TLE employees, who were apparently concerned about losing
their jobs. According to King, Coughlin started the meeting by
assuring the employees that they would not be retaliated against
because they supported the Local Union. He then spoke about
the open door policy and his belief that the employees did not
need third-party representation. He indicated that he was a part
of the open door, wrote his phone number on a board, and di-
rected King not to let anyone erase it. Coughlin said that if
they could not get answers to concerns locally or regionally, to
call him and he would get them an answer. Dodson essentially
supported King’s version of this meeting, adding that Coughlin
asked the employees how Store Manager Buckner was doing.
Also, according to Dodson, in describing the open door policy,
Coughlin indicated that employees who used the open door
might not get the answer they wanted, but they would always
get an answer. Larry Eidson, who at the time was the TLE
manager, also testified essentially as had King and Dodson. It
is important to note that King, Dodson, and Eidson all denied
that Coughlin had said anything about fixing employee prob-
lems, or that he could do anything that he wanted in the store,
or words to that effect.
Joe Bettinger, service technician, was present for Coughlin’s
presentation and testified as a witness on behalf of the Respon-
dent. His testimony supported the other witnesses called by the
Respondent. Further, he made it clear that he did “not at all”
get the impression that Coughlin was offering to fix employee
problems, nor did Coughlin make any reference to being able to
do anything he pleased in the store.
The only other witness who testified that he was present for
Coughlin’s remarks was James Osterhout, a service technician.
Osterhout, who gave an affidavit to the Board during the inves-
tigation of the unfair labor practice charges in this case, was
called as a witness by counsel for the General Counsel. He
testified for an extensive period of time and was closely cross-
examined by counsel for the Respondent. Ultimately, Oster-
hout admitted that he lied in his affidavit regarding what was
clearly a material fact, as it was the principal support for the
allegation in complaint paragraph 5(j). The General Counsel
later withdrew this complaint allegation. In any event, based
on his admission that he lied to a Board agent when giving an
affidavit under oath, I conclude that he is incredible for all pur-
poses. Therefore, I shall give his testimony no weight what so
ever.
The parties stipulated at the hearing that Coughlin visited the
Kingman facility on October 9, 2000. Robert Hey, Coughlin’s
chief operations assistant, testified that Coughlin travels to 100
to 150 of the Respondent’s stores every year. Hey generally
travels with Coughlin, and has been doing so for the past 7
years, although he did not make the trip to Kingman on October
9. Hey testified that he has observed Coughlin’s past practice
of meeting with employees, where he typically asks how the
management team is treating them, discusses the open door
policy, hands out his phone number, and invites the employees
to bring their questions, comments, concerns, and problems to
him if they are not addressed at a lower level. Hey testified that
he has been present when Coughlin addresses separate groups
of employees, but he could not recall whether he had ever ob-
served Coughlin addressing a separate group of TLE employ-
ees.
Obviously, the parties dispute the substance of Coughlin’s
remarks, just as they have disputed the substance of other man-
agers’ remarks. Vicky Dodson testified that just prior to the
TLE meeting, she met with Coughlin, supplied him with “talk-
ing points,” which she had prepared, and cautioned him to be
careful what he said because of the possible legal ramifications.
As I have noted before, I find Dodson to be a careful, experi-
enced labor relations manager. My review of the talking
points, which she prepared for Coughlin, indicates that the pre-
pared document did not cross the line between free speech un-
der Section 8(c) of the Act, and an illegal solicitation of griev-
ances or promise of benefit. (R. Exh. 17.) While there is no
contention that Coughlin read the prepared document verbatim,
I continue to find Dodson to be credible, and I accept her testi-
mony that Coughlin did not tell employees that he would fix
their problems, or that he would do anything he could to take
care of them, or words to that effect. Her testimony is similar
to that of King, Bettinger, and Eidson. On the other hand, I can
certainly understand how employees Jones, Lewis, and Brooks,
who were meeting the Respondent’s CEO, could have easily
given his statements greater force or authority than was in-
tended, or spoken. Undoubtedly, they assumed that the Re-
spondent’s “head man” could do, for the most part, whatever he
wanted to do.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD828
Once again, it is important to consider the Respondent’s past
practice. Hey testified that in the 7 years that he had been ac-
companying Coughlin on his visits to stores, they had appeared
at approximately 700 stores, where Coughlin had met with
groups of employees. The Respondent does not contend that
Coughlin’s appearance at Kingman was just a coincidence. To
the contrary, it is clear he came to the facility to meet with the
TLE employees and try to convince them not to support the
Local Union. This was certainly not illegal, nor would it be
illegal for him to talk about the open door policy. This went to
the “heart” of the Respondent’s corporate culture. Even assum-
ing, for the sake of this discussion, that in the course of talking
about the open door, Coughlin mentioned employees taking
their problems to management, including himself, this was
nothing more than another recitation of the Respondent’s well-
established past practice. As I have said before, under existing
Board law, this is not a violation of the Act. (Naomi Knitting
Plant, supra; House of Raeford Farms, supra.)
It seems fairly obvious that the Respondent anticipated that
the appearance of the CEO would impress the TLE employees
and encourage them to vote against union representation.
However, bringing out the “big guns” did not cause the words
spoken to become unlawful. Nor did the words suddenly
change their meaning, especially when the words spoken have
to do with the open door policy, which is repeated on a local,
regional, and corporate level at every opportunity. Coughlin is
apparently an ambassador for that policy wherever he goes,
including to Kingman. Accordingly, I conclude that by
Coughlin’s remarks of October 9, the Respondent did not so-
licit employee grievances or promise its employees increased
benefits as alleged in paragraph 5(k) of the complaint. There-
fore, I shall recommend that this paragraph of the complaint be
dismissed.
Paragraph 5(m)(1) of the complaint alleges that in mid-
October 2000, Jay King solicited employee grievances and
promised employees increased benefits and improved terms and
conditions of employment if they refrained from union organ-
izational activity. However, I am uncertain specifically at what
event King is alleged to have engaged in this conduct. There is
really no evidence offered by the General Counsel as would
support this allegation. At best, I must assume the complaint
allegation is making reference to the meeting for the TLE em-
ployees where Coughlin appeared. District Manager Jay King
accompanied him.
According to former employee Brad Jones, the TLE employ-
ees were “disappointed” by Coughlin’s refusal to answer em-
ployee questions. Apparently, King remained with the employ-
ees after Coughlin left and attempted to answer certain ques-
tions. Former employee William Brooks testified that King
said, “There are some issues here obviously and that we can’t
change what’s happened in the past. We’ll start fresh and work
forward from here.” It was the testimony of former employee
Gregory Lewis that the employees began to ask King questions,
at which point “it began to get a little heated.” Allegedly, ques-
tions would be asked, but King would “go around them. He
wouldn’t give us direct answers.”
The undersigned is at a loss to understand how any of these
statements by King could be construed as a solicitation of em-
ployee grievances or a promise of benefit. I conclude that there
is insufficient evidence to establish the allegations set forth in
paragraph 5(m)(1) of the complaint. Therefore, I shall recom-
mend that this paragraph of the complaint be dismissed.
2. Surveillance of employees’ union activity
The General Counsel alleges that throughout the period prior
to the scheduled election, and even beyond, the Respondent
engaged in conduct that constituted surveillance, or gave em-
ployees the impression that their union activities were under
surveillance. Specifically, paragraph 5(e) of the complaint
alleges that during the period from August 28 to about Septem-
ber 30, Timothy Scott engaged in surveillance. As is noted
above, Scott, who at the time was a regional personnel man-
ager, arrived in Kingman on approximately August 30 as part
of the Arkansas labor relations team. The evidence clearly
establishes that their primary purpose at the facility was to dis-
suade employees from supporting the Local Union.
At the time the petition was filed, the TLE manager, Larry
Eidson, was on a medical leave of absence. Scott was assigned
by Vicky Dodson to work in the TLE as the interim TLE man-
ager, although he apparently had no prior experience working
in a TLE. He remained in the TLE for approximately the next
9 days, working from the time the shop was open, until it
closed. He worked side by side with the TLE employees, wait-
ing on customers, changing oil and tires, helping with stocking,
walking the floor, scheduling, and “observing.” There is no
question that he was actively engaged in observing the TLE
employees. All of the Respondent’s managers present at the
facility, including local, regional, and those from corporate
headquarters, were expected to gather information regarding
the employees’ union sympathies and activities.
The Respondent had created an elaborate system for obtain-
ing this information. The Arkansas team held daily morning
meetings with the local managers. Managers were instructed to
obtain information about what the employees wanted and to
learn employees’ union sympathies. They were to gather this
information and record it on index cards. (GC Exh. 38.) The
information reported to the Arkansas team by the local manag-
ers would be reviewed during the morning managers’ meetings.
It is fairly obvious from a review of the cards and the record as
a whole, that through this system the Respondent was able to
learn which employees in the TLE were supporting the Local
Union, and some of the issues that motivated employees to seek
union representation. The Respondent’s system for obtaining
this information was explained in detail by Anthony Kuc, a
former assistant manager at the facility. The Respondent ulti-
mately fired Kuc, and he is considering legal action for alleged
wrongful discharge. While it is clear to me that Kuc harbors
considerable animosity towards the Respondent, I believe he
testified truthfully. In some instances his testimony was helpful
to the Respondent, and his testimony appeared to be genuine,
without exaggeration or embellishment. In any event, his de-
scription of the Respondent’s information gathering system is,
for the most part, acknowledged by the testimony of both Vicky
Dodson and Kirk Williams.
During the period that Scott was present in the TLE, the Re-
spondent was taking the position that any appropriate bargain-
WAL-MART STORES 829
ing unit should be comprised of all its Kingman store employ-
ees. However, the petitioned for unit was only comprised of
the TLE automotive service technicians, and, of course, the
Respondent understood that it was in the TLE that the union
organizational activity was centered. It is important to note that
the petitioned for unit was comprised of a relatively small
number of employees, exactly 11. There were an additional 19
employees in the TLE, and a total of 260 employees employed
storewide at the Kingman facility. (GC Exh. 20.) Yet, despite
the small number of employees in the TLE, the Respondent
decided to station Scott there full time for the first 9 days that
he was at the facility.
Scott’s presence in the TLE must have had a significant im-
pression on the automotive service technicians. Here was a
regional personnel manager, who had arrived immediately after
the filing of the petition in the company of other labor relations
managers. Despite his lack of experience working in a TLE, he
was assigned to function as their interim manager. Not only
was he physically present all day long in the TLE, but, as testi-
fied to by a number of the technicians, he frequently engaged
them in conversation about the operation of the TLE.6 The
natural impact of Scott’s presence on the technicians would
have been to hinder their union activity.
The Respondent argues that Scott was doing nothing more
than functioning as the interim TLE manager, and that his ac-
tions were consistent with that position. While it may be accu-
rate to describe the duties he was performing as consistent with
that of an interim manager, the employees were obviously
aware that his lack of experience made him unqualified for that
position. They would have reasonably assumed that as a re-
gional personnel manager, his presence in the TLE was primar-
ily intended to observe whether they were engaged in union
activity. This could only have had the intended result of “chill-
ing” their union activity.
In dismissing a complaint, the Board has held that manage-
ment may observe public union activity on its premises without
violating Section 8(a)(1) of the Act, unless management “offi-
cials do something out of the ordinary.” Metal Industries, 251
NLRB 1523 (1980). Acting out of the ordinary was exactly
what the Respondent was doing when it placed Scott in the
TLE as interim manager. I believe that the facts establish that
his primary purpose in being physically present in the TLE was
to gather information about the employees’ union activity. The
Respondent does not dispute that its information collection
system was designed to do just that. Scott’s constant presence
in the TLE for 9 consecutive workdays was certainly meant to,
not very subtly, dissuade the employees from engaging in union
activity. The Board has concluded that in determining whether
a respondent has created an impression of surveillance, the test
is whether employees would reasonably assume from the action
in question that their union activities have been placed under
surveillance. Waste Stream Management, 315 NLRB 1099,
1124 (1994). In my view, the TLE employees would certainly

6 Since Scott was performing the duties of the interim TLE manager,
his practice of engaging the employees in conversation about the opera-
tion of the TLE would not by itself constitute a solicitation of griev-
ances, or promise of benefit.
have reasonably assumed by Scott’s presence that management
was attempting to observe their union activities. Former em-
ployees Jones, Lewis, and Brooks testified as much.
Based on the above, I conclude that from August 30, for ap-
proximately the next 9 days, the Respondent, by Timothy Scott,
engaged in surveillance of its employees’ union activities, and
gave its employees that impression. This conduct, as alleged in
paragraph 5(e) of the complaint, had a chilling effect on the
employees Section 7 rights and, therefore, constituted a viola-
tion of Section 8(a)(1) of the Act.
It is alleged in complaint paragraphs 5(p)(1) and (2) that in
mid-October 2000, the Respondent, by Jim Winkler, engaged in
the surveillance of employees’ union activity, or created an
impression among its employees that their union activity was
under surveillance. Preliminarily, it should be noted that the
Respondent operates a snack bar at the Kingman facility known
as the Radio Grill. It is open to the public and to all employees,
including managers. Winkler testified that he arrived in King-
man as the store manager on October 17, having replaced Mike
Buckner. According to Winkler, on his third or fourth day in
Kingman, he went to the Radio Grill at about noon to eat lunch.
Brad Jones testified that he, Will Brooks, and Greg Lewis
were sitting in the Radio Grill at lunchtime discussing what
they would do that night regarding the union campaign. The
three men were “off the clock” at the time. According to Jones,
Winkler walked in and asked how they were doing. Lewis
allegedly responded, “Oh, we’re just having a little union meet-
ing.” Winkler did not respond, but simply bought a hot dog,
and sat down in a seat located in the next booth, a distance of
“two to three feet.” Jones testified that there were open booths,
which were not as close to the three men as the one Winkler
chose. Will Brooks’ testimony was similar, with one important
difference. He indicated that after Lewis told Winkler that the
men were having a union meeting, Lewis added, “Oh, we’re
just kidding.” Also, according to Brooks, employee Everett
Ford was sitting with the men discussing the union campaign
when Winkler entered the Radio Grill.
Winkler testified that during the year he worked in the King-
man facility, that he ate in the Radio Grill approximately three
or four times a week. Apparently, he was particularly fond of
the “corn dogs” served in the snack bar. In any event, on the
day in question, he entered the Radio Grill, went directly to the
counter, placed his order, received his food, stopped at the con-
diment counter, and then sat down. He claims there were 20–
25 people in the Radio Grill at the time, and he estimates he sat
approximately 10 to 12 feet from the employees, who he recalls
as Jones, Brooks, and Lewis. Winkler testified there was no
particular reason why he selected the seat he did. After he be-
gan to eat, Lewis said to him, “Hi, Jim. We’re just having a
union meeting. Just kidding.” As Winkler was chewing, he
responded with a facial expression and did not speak. He never
spoke to Lewis about the comment, and never heard about it
again until he learned litigation was pending. Winkler testified
that there was nothing unusual about managers eating in the
Radio Grill. Employees Dottie Yarnell, Dorothy Haddock, and
Sherri Quinn also testified that they had frequently seen
Winkler eating in the Radio Grill during the period of time that
he worked in Kingman.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD830
There was considerable conflict at the hearing as to precisely
where Winkler sat in the Radio Grill on the day in question, and
his proximity to the union supporters. Photographs of the res-
taurant were marked with symbols to represent the placement
of the people involved. (R. Exhs. 18, 19.) However, in my
view the exact distance between Winkler and the employees is
really insignificant. What is of much greater importance is the
undisputed fact that the Radio Grill is an area open to everyone,
employees, managers, and the public. As a general proposition,
the Board has held that an employer does not violate the Act by
observing union activity that takes place in the employer’s fa-
cility in plain sight. In finding that a supervisor’s presence in a
break room was not unlawful surveillance, the Board held that,
“when protected activity is conducted in such a public area, to
be unlawful, the alleged surveillance must be something other
than the result of ‘fortuitous’ circumstances and must involve
suspicious behavior or untoward conduct.” Nicholas County
Health Care Center, 331 NLRB 970 (2000). Further, the Board
has found that a prohibition against surveillance does not pre-
vent employers from observing public union activity, particu-
larly when it occurs on company premises, as long as the em-
ployer does not engage in conduct that is so “out of the ordi-
nary” that it creates the impression of surveillance. Parsippany
Hotel Management Co., 319 NLRB 114, 126 (1995); also see
Southern Maryland Hospital Center, 293 NLRB 1209, 1217
(1989); and Metal Industries, supra.
Jones, Lewis, and Brooks were sitting in the Respondent’s
snack bar, presumably discussing the union campaign, although
Lewis told Winkler that his reference to a “union meeting” was
only a joke. In any event, Winkler had a legitimate basis for
being in the Radio Grill, namely obtaining lunch during his
lunch period. The employees should certainly not have been
surprised to see him, as the Radio Grill was open to all employ-
ees, as well as the general public. There was nothing suspi-
cious about Winkler’s action in obtaining lunch, and certainly
nothing “out of the ordinary.” In a similar case, the Board has
held that a supervisor’s presence in a lunchroom, after she had
finished lunch, but while the employees were discussing the
union, did not constitute unlawful surveillance. Rosewood Mfg.
Co., 269 NLRB 782, 784 (1984). While Winkler was new to
the facility and had not yet established his custom of dinning on
corn dogs in the snack bar, the employees must have under-
stood that this was a “public place,” with customers and man-
agers frequently present, and, therefore, they should not have
had a expectation of privacy.
As I have indicated above, the Respondent’s managers were
expected to report on any union activity that they observed.
Certainly, Winkler would have been under similar instructions.
Nevertheless, he was still free to utilize the Respondent’s pub-
lic area, the snack bar, to have his lunch. In that respect his
presence in the Radio Grill was “fortuitous,” and not illegal.
While one may safely assume that Winkler reported back to the
Arkansas labor relations team what he observed in the snack
bar, the three employees should have reasonably understood
that they were likely to be without privacy in such a “public
place.” Accordingly, I conclude that the General Counsel has
failed to establish that Winkler engaged in surveillance or cre-
ated an impression among the employees that their union activi-
ties were under surveillance when he had lunch in the Radio
Grill. Therefore, I shall recommend that paragraphs 5(p)(1)
and (2) of the complaint be dismissed.
It is alleged in complaint paragraphs 5(v)(1) and (2) that dur-
ing the period from about mid-February to mid-March 2002,
Jeff Van Horn, store manager, “Guenther Ragner,” TLE re-
gional manager, and John Pace, assistant store manager, en-
gaged in surveillance and created an impression among em-
ployees that their union activities were under surveillance. The
only direct evidence offered by counsel for the General Counsel
to support this allegation was the testimony of former employee
Larry Adams. He testified that on approximately February 12,
2002, he began to wear a small “union badge” with the letters
UFCW on it. Thereafter, until about mid-March, Adams claims
that a number of managers put on TLE uniforms and began to
perform work in the shop. Specifically, he named Van Horn,
Don, an assistant manager (no last name given), and Guenther.
These managers allegedly worked in the TLE “pretty regular”
during this period, which Adams testified was “really rare.”
Counsel for the General Counsel argues that this was merely
a continuation of the Respondent’s on going efforts to observe
and report on its employees’ union activities. In supporting its
allegations of surveillance, counsel places heavy reliance on
directives and resources made available to managers in a
document known as the “manager’s toolbox.” (GC Exh. 29.)
The document, which is made available to managers nation-
wide, does set forth a rather elaborate procedure for reporting
union activity among the Respondent’s employees. They are
directed to report detailed information about who did what,
when, and where. It is clear that this is intended as an impor-
tant element in the Respondent’s corporatewide efforts towards
union avoidance. The Respondent did not deny that it made an
effort at the Kingman facility to gather information regarding
the union organizing activities of its employees, with Vicky
Dodson and Kirk Williams admitting as much. However, the
Respondent argues that there is nothing illegal about gathering
information that comes into the possession of its managers
while they go about their normal job duties and responsibilities
at the facility, as long as they do nothing “out of the ordinary,”
as would create an impression of surveillance.
Regarding this specific complaint allegation, former TLE
Manager Mike Wade testified that when he became the man-
ager in January 2002, the TLE was under staffed by five em-
ployees. He claims that he mentioned it to Store Manager Van
Horn daily until the matter was resolved. While waiting for
hiring to correct the short staffing, the store manager, and a
number of assistant managers, including John Pace, came into
the TLE to help out. They remained as long as Wade needed
them, usually most of the day. Van Horn testified in support of
Wade. According to Van Horn, he and Pace helped out the
most because they had prior automotive experience. Addition-
ally, other members of management helped out as needed.
Both Wade and Van Horn deny that they were aware of any
union activity being conducted at that time.
Ragnar Guenther, the TLE district manager, testified that he
first assumed that position for the nine-store area, including the
Kingman facility, in September 2000. At that time, Tim Scott
was functioning as the interim TLE manager. Guenther as-
WAL-MART STORES 831
sumed the role of acting TLE manager at the facility, allowing
Scott to be assigned other duties. In any event, Guenther testi-
fied that during February and March 2002, he was present in
the Kingman facility approximately once a week. According to
Guenther, he did not increase his time in the TLE during this
period, nor did he vary his routine. He continued to tour the
shop and to help out whenever needed. Guenther denied ob-
serving any union activity during this period.
In my view, the evidence offered by counsel for the General
Counsel to establish this allegation is insufficient. There was
credible evidence in the form of the testimony of Wade, Van
Horn, and Guenther that the TLE was significantly understaffed
during early 2002. It would certainly have been reasonable for
the Respondent to have utilized its managers to temporarily
correct this deficiency, while hiring was conducted to solve the
problem. Apparently, Van Horn, Pace, and Guenther all had
automotive experience, with Guenther having previous experi-
ence working in several TLE shops. Adams’ testimony that
this use of the managers was unusual is simply not credible.
There was evidence offered throughout the hearing that manag-
ers were used in the store wherever the need arose. I would
certainly expect that with a shortage of TLE employees, the
managers would be used to fill in. As this was not out of the
ordinary, the managers’ presence in the TLE would not consti-
tute surveillance or create the impression of surveillance.7
Further, the TLE was a work area where customers, employees,
and managers all had a need to congregate. The employees
would not have had a reasonable expectation of privacy in such
a “public area.” As has been noted above, the Board has held
that an employer does not violate the Act by observing union
activity in a public location unless the employer does some-
thing unusual or out of the ordinary. Parsippany Hotel Man-
agement, supra; Southern Maryland Hospital Center, supra;
and Metal Industries, supra.
Based on the above, I conclude that the General Counsel has
failed to meet his evidentiary burden, and has failed to establish
the allegations set forth in complaint paragraphs 5(v)(1) and (2)
by a preponderance of the evidence. Therefore, I shall recom-
mend that this paragraph of the complaint be dismissed.
3. Granting benefits and improving working conditions
It is alleged in complaint paragraphs 5(i)(1) through (6) that
beginning on about August 28, 2000, the Respondent granted
employees in the TLE a number of benefits and improved their
working conditions, all in an effort to unlawfully convince
them to refrain from supporting the Local Union. Much of the
General Counsel’s case is premised on the theory that working

7 I believe that this situation was fundamentally different from what
was reflected in Tim Scott’s constant presence in the TLE for 9 days
straight in early September 2000. Scott, who had no automotive ex-
perience, was a member of the Respondent’s Arkansas labor relations
team, which had just arrived at the facility in response to the petition.
The TLE employees had every reason to view Scott’s presence in the
shop as grossly out of the ordinary, and likely in direct response to the
filing of the petition. In the case of Scott, the evidence points strongly
to his physical presence in the TLE being primarily for the purpose of
surveillance, and it would certainly tend to leave that impression with
the employees.
conditions had deteriorated in the TLE to the point where the
employees had a number of significant unresolved complaints
and grievances. These were the issues that had allegedly in-
duced the employees to seek union representation. It is the
contention of the General Counsel that by correcting the prob-
lems and addressing these complaints after the petition was
filed, that the Respondent was interfering in the exercise of its
employees Section 7 rights.
Preliminarily, it is important to note the chronological order
in which various TLE managers served in that position. Larry
Eidson was the manager for the period prior to the filing of the
petition, and went on a medical leave of absence from July
2000 to the end of September 2000. Hillary Vergara filled the
position on an interim basis, until her transfer to the Las Vegas
store on August 26. The next person to hold the position, also
on an interim basis, was Tim Scott, who filled in from ap-
proximately August 30, for the next 9 days. He was replaced
by Ragnar Guenther, the new TLE district manager, who acted
as interim manager at the Kingman TLE. Eidson returned from
his leave of absence in late September, however, because of
health issues he continued to miss a significant amount of work,
and Guenther was required to fill in as necessary.
Under existing Board law, there is an inference that benefits
granted employees during a petition period are coercive.
Lampi, L.L.C., 322 NLRB 502, 502 (1996). An employer can
rebut that inference by coming forward with an explanation,
other than the pending election, for the timing of the grant of
benefits. Uarco, Inc., 216 NLRB 1, 2 (1974); see also United
Airlines Services Corp., 290 NLRB 954, 954 (1988) (“The
critical inquiry is whether the benefits were granted for the
purpose of influencing the employees’ vote in the election and
were of a type reasonably calculated to have that effect.”). The
same test is applied in unfair labor practice cases as in represen-
tation cases. See Holly Farms, Corp., 311 NLRB 273, 274
(1993); and Speco Corp., 298 NLRB 439 fn. 2 (1990).
Preferred scheduling system: It is alleged in subparagraph
5(i)(1) of the complaint that the Respondent suspended the full
implementation of the preferred scheduling system. As testi-
fied to by Tim Scott, the preferred scheduling system was the
Respondent’s attempt to develop a computer generated schedul-
ing system that would automatically generate a work schedule
based on matching the employees’ availability with the ex-
pected volume of customer business.
Historically, the TLE employees’ work schedules had been
prepared manually by the TLE manager, using as a basis only
employee availability and the hours the shop was open. Brad
Jones testified that prior to the filing of the petition, while
Hillary Vergara was acting for TLE Manager Eidson, he was
asked to fill out a new associate scheduling form. Jones was
encouraged to indicate that he was available to work 7 days a
week. Vergara informed him that under the new system,
known as “preferred scheduling,” that the computer would
decide the schedule. Jones, who had always worked a tradi-
tional 40-hour workweek, Monday through Friday, refused to
adjust his schedule. He was directed to see Carlos Abi-Rachad,
who at the time was the TLE district manager. Abi-Rachad
advised Jones to be a “team player,” and both Abi-Rachad and
Vergara explained that preferred scheduling was a company-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD832
wide program and that other stores were already using it. Jones
then used the open door policy to complain to David Dible at
corporate headquarters, who also told him the Employer was
moving to preferred scheduling. Finally, Jones was visited by
regional TLE manager, Shawn Kaiser, who also told Jones that
Wal-Mart was going to preferred scheduling and Jones should
be a “team player.”
Jones testified that although prior to the petition no manager
ever informed him that the preferred scheduling system had
been abandoned, in fact the system was never implemented and
he never lost any hours of work. Will Brooks testified that in
mid-July the computer generated scheduling resulted in his
being scheduled for between 8 and 16 hours of work a week.
He complained to Abi-Rachad and Shawn Kaiser, TLE regional
manager, and was allegedly told that preferred scheduling was
the way the Employer was going. However, he also acknowl-
edged that the system was never actually implemented. Both
Jones and Brooks indicated that the schedules generated by
Vergara using the computer system were never actually used.
Instead, the TLE manager would manually write the old sched-
ule over the computer-generated schedule. It was the old
schedule that the employees continued to work from prior to
the filing of the petition, through the petition period and, appar-
ently, to the present time.
Joe Bettinger testified that Vergara’s use of the computer for
scheduling was a “disaster.” It created schedules that were
totally unworkable in view of the limited and disjointed hours it
scheduled employees to work. He agreed with Jones and
Brooks that no one ever worked the schedule the preferred
system printed. According to Bettinger, Vergara changed the
computer-generated schedule by hand back to the normal
schedule, and she abandoned the effort to have employees work
the preferred schedule some 2 or 3 weeks prior to the filing of
the petition. Typically, schedules are posted on a board in the
TLE 3 weeks prior to the date the work is to be performed.
Store Manager Mike Buckner testified that no TLE em-
ployee ever worked the schedule generated by the preferred
scheduling computer program. According to Buckner, Jones
complained to him about the system a couple of weeks before
the petition was filed. He allegedly told Vergara to stop trying
to use it, and she did so, all prior to the filing of the petition.
This testimony was supported by Tim Scott, who testified that
when he got to the facility, a day or two after the petition was
filed, the computer-generated schedules had already been
changed by hand. The handwritten changes were reflected on
the schedules posted by the timeclock. He was approached by
Brooks, who complained that Vergara had printed the com-
puter-generated schedule with poor results. Although Brooks
told Scott that he had not worked the preferred scheduling
hours, he was still worried about it. Scott testified that while he
was in the TLE, the preferred schedule was never worked by
any employee.
Both the General Counsel (GC Exhs. 42, 43) and the Re-
spondent (R. Exh. 26) offered TLE schedules, which were
somewhat different, in an effort to support their respective posi-
tions as to whether the preferred scheduling system was, or was
not, abandoned prior to the filing of the representation petition.
In my opinion, this issue is “much ado about nothing.”8 The
underlying facts are really not in dispute. All witnessed who
testified about this matter agreed that no TLE employee ever
worked a schedule generated by the preferred scheduling sys-
tem. No one lost even an hour of work as a result of the com-
puter-generated schedules. It also seems clear to me that
Hillary Vergara’s attempt to use this system was abandoned
prior to the filing of the petition. Buckner so testified, and I
find no reason to doubt this testimony. In this respect, he
seems credible. Also, his testimony is supported by that of
Bettinger and Scott, and by the fact that Vergara was trans-
ferred to the Las Vegas store on August 26, 2 days before the
petition was filed. She was, after all, the manager who had
tried to implement the program.
As the attempt to use the preferred scheduling system had,
for all practical purposes, been abandoned prior to the filing of
the petition, there was no benefit to be granted relative to sus-
pending its use. Simply put, the system had never actually been
implemented, not before, nor after, the filing of the petition. In
any event, the facts establish that there was no prepetition
“problem” concerning the preferred scheduling system that
Wal-Mart could “fix” to influence the voters. It logically fol-
lows that there was no benefit or improvement in working con-
ditions. Accordingly, I conclude that the General Counsel has
failed to establish the allegation set forth in subparagraph
5(i)(1) of the complaint. Therefore, I shall recommend that this
subparagraph of the complaint be dismissed.
New grates in the TLE garage: It is alleged in subparagraph
5(i)(2) of the complaint that the Respondent installed new
grates in the TLE garage. Witnesses Jones, Lewis, and Brooks
all testified that the oil grates in the garage were old, falling
apart, and unsafe, or words to that effect. The employees testi-
fied that prior to the filing of the petition they had made re-
peated complaints to management about the condition of the
grates. These grates separated the upper and lower bays and
the wheels on them had broken or become misaligned. As a
result, the grates had become unstable, resulting in some inci-
dents where the grates were dislodged. Employees were almost
injured when the grates slipped, causing the employees to come
close to falling through to the lower bay. Russell Harrell, a
former employee and member of the safety committee, testified
that he had heard about the problem with the grates in the TLE,
and that the safety committee had recommended that they be
fixed. This was apparently sometime in 2000. According to
the employees, despite their complaints, management made no
effort to solve the problem until after the petition was filed.
TLE Manager Eidson testified that prior to his leave of ab-
sence, he was unaware of any operational or safety issues with
the grates, and no employee had complained to him about them.
When he returned from leave, the grates had been replaced.
Kirk Williams and Ragnar Guenther both testified that arriving
at the facility they learned for themselves that the grates were
defective and unsafe. Guenther asked Vicky Dodson for per-
mission to have the grates replaced. Dodson, who was the on-
site leader of the Arkansas labor relations team, was requiring
that all proposed changes in the TLE be cleared through her.

8 A play by William Shakespeare.
WAL-MART STORES 833
This requirement was allegedly in an effort to avoid the com-
mission of any unfair labor practices. Ultimately, she informed
Guenther that he could replace the grates, which he did.
I believe that the former employees testified credibly about
the condition of the grates, and the fact that although manage-
ment was aware of their complaints, the problem was not cor-
rected until after the petition was filed. The testimony of the
former member of the safety committee was highly probative.
Further, I do not find as plausible the testimony of Eidson that
he was unaware of this problem. Having heard approximately
3 weeks of testimony concerning the operation of the Kingman
TLE, I have little doubt that it was not a well-run operation.
The problem with the grates was a serious safety hazard, and an
employee could have easily been seriously injured or even
killed by a fall from the upper to the lower bay. I cannot under-
stand why management did not act to replace the grates long
before the petition was filed. In any event, Williams and
Guenther recognized the problem for the safety hazard it was
and Guenther sought to solve the problem shortly after arriving
at the facility. However, the issue remains whether the re-
placement of the grates after the petition was filed constituted
coercive action on the part of the Respondent.
As noted above, under applicable Board precedent, there is
an inference that benefits granted employees during a petition
period are coercive. Lampi, L.L.C., supra. The critical inquiry
is whether the benefits were granted for the purpose of influ-
encing the employees’ vote in the election and were of a type
reasonably calculated to have that effect. United Airlines Ser-
vices Corp., supra. The same test is applied in unfair labor
practice cases. Holly Farms Corp., supra; and Speco Corp.,
supra. Therefore, in the matter at hand clearly there exists an
inference that the replacement of the grates during the petition
period was coercive. This had been a significant issue to the
TLE employees for a considerable period of time, and the Re-
spondent’s replacement of the grates prior to the scheduled
election would reasonably be expected to influence the em-
ployees’ vote.
In my view, there is no doubt that management had been
aware for a considerable period of time prior to the filing of the
petition that there was a problem with the grates. While the
Respondent denies this prepetition knowledge, it argues that
upon Guenther’s arrival at the facility, he became aware of a
safety issue that required an immediate resolution. However,
the Board has held that regardless of a desperate need for safety
equipment (safety showers, gloves, face shields, burn spray,
burn and acid neutralizer, and a breathing air system), the pro-
curement of these items by an employer during a petition pe-
riod violated Section 8(a)(1) of the Act. This is especially ap-
propriate where the employer had ignored the employees’
safety concerns for a significant period of time. Pure Chem
Corp., 192 NLRB 681 (1971). See also International Har-
vester Co., 170 NLRB 1074 fn. 1 (1968) (where an 8(a)(5)
violation was found).
The Respondent had for a long period of time prior to the fil-
ing of the petition ignored the damaged grates, which created a
significant safety hazard. It is commendable that Guenther, on
his arrival at the facility, took it upon himself to correct the
problem. Nevertheless, this constituted a benefit to the em-
ployees and a departure from the Respondent’s past practice. It
would have reasonably been expected to influence the vote of
the TLE employees in the scheduled election. As such, it had
the effect of interfering with, restraining, and coercing the em-
ployees in the exercise of their Section 7 rights. Accordingly, I
conclude that the Respondent has violated Section 8(a)(1) of
the Act, as alleged in subparagraph 5(i)(2) of the complaint.
New grease gun and repaired or new sir tools and other
equipment: It is alleged in subparagraphs 5(i)(3) and (4) of the
complaint that the Respondent replaced or repaired certain
equipment in the TLE garage including grease guns and air
tools. The General Counsel argues that the employees had long
complained to management about the poor condition of certain
equipment in the garage, which complaints had been ignored
until after the filing of the representation petition. There was
testimony from a number of employee witnesses about the con-
dition of various pieces of equipment, and whether, and when
they were replaced. This included the tire mounting machine,
tire balancer, air compressor, grease guns, grease gun tips, hy-
draulic jacks, and alignment rack. For the most part, the under-
signed was unimpressed with this testimony. I found it to be
vague, confusing, and contradictory. This included the testi-
mony of Brooks, Lewis, Jones, and Bettinger. A number of
the Respondent’s witnesses, including Eidson and Guenther,
testified that either they were unaware of any employee con-
cerns about this equipment, or that the Employer had been at-
tempting to correct the problem since prior to the filing of the
petition, or the matter was a safety concern requiring immediate
attention, or that any equipment repaired or replaced was essen-
tial to operations.
For demonstrative purposes, the air compressor serves as a
good example. The undisputed evidence establishes that the
compressor operates all of the air driven equipment in the TLE.
Former employee Gregory Lewis testified that prior to the fil-
ing of the petition, the compressor was always malfunctioning,
making it very difficult to perform the various operations in the
garage. The compressor provided power to the oil guns, to the
air guns, and to the lifts. According to Lewis, attempts had
been made prior to the petition to repair the compressor by
rebuilding the motor, but the effort was unsuccessful. Finally,
after the petition was filed, the compressor was replaced. (GC
Exh. 18.) Eidson testified that prior to going on medical leave,
the compressor had been repaired. According to Guenther,
after he arrived, it malfunctioned. He tried to get by using
smaller compressors brought from the sales floor, but this was
not effective. As he needed the big compressor to run the shop,
Guenther sought and received permission from Vicky Dodson
to replace the compressor. He testified that prior to replacing
the compressor, no employee had complained to him about this
problem.
There is no dispute that all the equipment in the TLE gets
heavy, consistent use. The TLE is, after all, an automotive
garage. Equipment wears out, and without certain equipment
the shop cannot function effectively. This is certainly true for
the air compressor, without which the shop can really not func-
tion at all. It almost goes without saying, that if the Respondent
is to continue to operate a TLE, broken or malfunctioning
equipment must be repaired or replaced. In my view, the vari-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD834
ous pieces of equipment as were alleged in these two subpara-
graphs of the complaint were necessary, if not essential, to
operate the TLE. As need required, those pieces of equipment
were fixed or replaced. The record evidence, and the reality of
the real world, indicates that such repairs or replacements were
based on routine, operational decisions. While the alleged
equipment changes occurred after the filing of the petition, this
really is not all that suspect in view of the fact that Guenther
arrived at the facility functioning as acting TLE manager
shortly after the petition was filed. As I have said, the King-
man TLE had not been a well-run operation. However, with
the arrival of Guenther, an experienced TLE manager, the op-
eration apparently improved. Obviously, Guenther was going
to repair or replace equipment whenever that was necessary for
the efficient operation of the shop. To do less, would have
been irresponsible.
I do not detect a pattern of conduct as would establish that
the Respondent repaired or replaced the equipment in question
in an effort to influence the employees’ vote in the scheduled
election. Further, I do not view the repaired or replaced equip-
ment as a “benefit” calculated to have that effect. United Air-
lines Services Corp., supra. It seems clear to me that the
equipment was replaced or repaired as part of the Respondent’s
routine process in operating its TLE business. As such, it
would not constitute a violation of the Act. See Zartic, Inc.,
277 NLRB 1478, 1496 (1986); and Stanley M. Feil, Inc., 250
NLRB 1154, 1165 (1980). I question whether the repair or
replacement of the equipment at issue can even be considered a
“benefit” at all to the employees, except in the sense that with-
out properly operating equipment the employees would have no
jobs, as the TLE would be out of business. I conclude that the
Respondent has rebutted any inference that the equipment re-
paired or replaced during the period prior to the scheduled elec-
tion was coercive of its employees’ Section 7 rights. Uarco
Inc., supra.
Based on the above, I conclude that the General Counsel has
failed to establish the allegations set forth in subparagraphs
5(i)(3) and (4) of the complaint. Therefore, I shall recommend
that these two subparagraphs of the complaint be dismissed.
The cooling system: It is alleged in subparagraph 5(i)(5) of
the complaint that the Respondent replaced or repaired the
cooling system and fans in the TLE garage. This action is al-
leged to constitute a benefit intended to unlawfully influence
and coerce the employees in the exercise of their Section 7
rights. In general, the employee witnesses testified that prior to
the filing of the petition, the cooling system did not work prop-
erly, and, that despite repeated complaints to management, the
system was not adequately repaired until after the petition was
filed. The Respondent argues that any repairs made to the cool-
ing system after the petition was filed were simply part of its
routine operational decisions or were based on safety concerns,
and not intended to influence the employees’ vote in the sched-
uled election.
I take administrative notice that Kingman, Arizona, is lo-
cated in the “high desert” where summer temperatures fre-
quently rise to over 100 degrees. It would not be an under-
statement to suggest, as witnesses did, that the summer in
Kingman is long and hot, especially in an automotive garage.
All the witnesses seem to agree that a cooling system in the
TLE garage was more than a mere luxury. Unfortunately, there
was considerable disagreement regarding the history of the
facility’s cooling system.
Former employees Jones and Brooks testified that in ap-
proximately December 1999, some cooling fans and misters
that the Respondent had ordered were delivered to the TLE, but
that they simply remained on the property uninstalled. Appar-
ently in April 2000, the fans and misters were mounted, how-
ever, they functioned for only 1 day. According to Jones and
Brooks, the pump shaft broke, causing the system’s motor to
malfunction. Brooks testified that at the request of TLE Man-
ager Eidson, he contacted the cooler’s manufacturer to deter-
mine if they would replace the motor under warranty. Brooks
was told that the cooling system would not be repaired under
warranty, and he so informed Eidson. Allegedly, the system
remained unrepaired from April until after the petition was
filed, but before the scheduled election. Employees Jones,
Lewis, and Brooks all testified that prior to the filing of the
petition they complained repeatedly to various managers about
the heat in the garage and lack of adequate cooling. Specifi-
cally, Jones testified that he complained to Eidson “at least a
half dozen” times.
According to the testimony of Larry Eidson, fans arrived at
the facility in November 1999, but as it was wintertime, the
fans were not installed until April 2000. They worked for 1
day, and then the shaft broke on the mister pump. As the cool-
ing system was under warranty, Eidson called the manufac-
turer, who suggested that the system had been incorrectly
mounted. He called the company that had installed the fans,
but there was apparently some disagreement between the manu-
facturer and installer as to which one was responsible for the
malfunction. That was where the situation remained when
Eidson went on medical leave in July 2000. When he left, the
system was still not functioning. However, when he returned
from leave in September, the fans were working. Ragnar
Guenther testified that when he arrived at the Kingman TLE in
September, the fans were on, but the misters did not work. The
mister mounted on the wall leaked water into an electrical out-
let. Allegedly, he noticed the problem himself, without any
employee complaining to him. In any event, he acknowledges
seeking and receiving permission from Vicky Dodson to have
the system repaired. He had the pump motor replaced, after
which the system worked, but the pump tube kept clogging.
While the witnesses may disagree somewhat about the exact
sequence of events, it is clear that the cooling system was not
functioning prior to the filing of the petition, but that after the
petition was filed, and before the scheduled election, it was
repaired and functioning. I credit the testimony of the em-
ployee witness that they complained to various managers about
the heat in the garage, and specifically the testimony of Jones
who complained to Eidson “at least a half dozen” times. On the
other hand, I do not believe Eidson, who testified that prior to
the petition, no employee complained to him about either the
heat in the garage or the fact that the cooling system was inop-
erable. He tried to minimize the unpleasant temperature condi-
tions in the garage, testifying that in June/July it is “warm,”
rather than hot, and that he personally did not find the tempera-
WAL-MART STORES 835
ture uncomfortable. In this respect, his testimony was inher-
ently implausible. Similarly, I also find Guenther’s testimony
incredible when he claimed that no employee complained to
him about the inoperable cooling system, but that he simply
noticed on his own that a mister was leaking water into an elec-
trical outlet.
I have no doubt that employees repeatedly complained to
management about the heat in the garage and the broken cool-
ing system. Eidson and other managers were certainly aware of
these complaints prior to the filing of the petition. After all,
Eidson had at least made some effort to have the cooling sys-
tem repaired prior to going on leave in July. Also, Regional
Personnel Manager Tim Scott testified that a few days after he
started serving as interim TLE manager, he heard Brooks or
Lewis tell Vicky Dodson that the mister had not been working
for some period of time. Yet, despite the obvious, that man-
agement was aware of employee complaints about the heat in
the garage, the Respondent still argues that the cooling system
was repaired either because it constituted a safety hazard or as
part of normal routine maintenance. This argument I do not
accept.
The Respondent was aware that the cooling system was not
functioning properly as early as April. There was ample oppor-
tunity to have the system repaired as part of “routine mainte-
nance” into late August, had management wanted to do so. Of
course, some effort was made by Eidson to have the system
repaired prior to going on leave in July, but it is clear that it was
not a priority, as the system was not repaired. Not until Sep-
tember, after the petition was filed, did management treat the
matter like a priority and have the repairs promptly made.
Also, I do not believe that Guenther considered a leaking mister
as a safety hazard that required the entire system be repaired.
The one mister only could easily have been moved or repaired
so as to not leak into the outlet. However, the Respondent had
the pump motor replaced, which remedied the employee com-
plaints about the heat.
Based on the above, I conclude that the Respondent has
failed to rebut the inference that the benefit granted to the TLE
employees during the petition period, namely the repaired cool-
ing system, was coercive. Lampi, L.L.C., supra; and Uarco
Inc., supra. In my view, it is obvious that the cooling system
was repaired for the purpose of influencing the employees’ vote
in the election, and that the repair was reasonably calculated to
have that effect. United Airlines Services Corp., supra. As
such, it interfered with, restrained, and coerced the employees
in the exercise of their Section 7 rights. Accordingly, I con-
clude that the Respondent has violated Section 8(a)(1) of the
Act, as alleged in subparagraph 5(i)(5) of the complaint.
Shopping cart corral: The General Counsel alleges in sub-
paragraph 5(i)(6) of the complaint that the Respondent installed
a shopping cart corral in the facility parking lot. It is alleged
that this constituted a benefit to the TLE employees that was
intended to interfere with and coerce them in the exercise of
their Section 7 rights. Employee Lewis testified that it was the
TLE employees’ job to “round up carts,” presumably in the
general vicinity of the TLE. According to Lewis, he had com-
plained to Jeff Sallee, former TLE manager, about having shop-
ping carts get in the way when he moved vehicles in and out of
the garage. After the petition was filed, the Respondent in-
stalled a “cart rail” in the parking lot near the TLE, which
Lewis thought “was really great,” as carts would no longer get
in the way. Employee Jones testified that a cart moved by the
wind had damaged his wife’s new car. He complained to Jeff
Sallee, but nothing happened. Jones was of the belief that prior
to the petition period, a cart damaged at least one other TLE
employee’s car. It should be noted that the record reflects that
Jeff Sallee was the Kingman TLE manager prior to Larry Eid-
son, which would have been before the petition was filed.
Ragnar Guenther testified that a number of weeks after he
became TLE regional manager, during the petition period, a
customer informed him that the customer’s vehicle had been
damaged by a shopping cart and the customer wanted Wal-Mart
to pay for the damages. Guenther filed an insurance claim for
the customer, and reported the incident to Vicky Dodson. He
recommended a cart corral, which Dodson approved. Guenther
and the store manager then installed a cart corral, which had
been at the facility for some time, but in an unassembled state.
It was Guenther’s hope that a corral would cause customers to
return the carts to that location, reducing the potential for dam-
age caused by loose carts. Guenther testified that no employee
had complained to him about having to retrieve loose carts, or
to report that an employee’s personal vehicle had been dam-
aged. Labor Relations Manager Kirk Williams’ testimony re-
garding the cart corral generally supported Guenther.
I do not believe that the installation of a cart corral was a sig-
nificant benefit to the TLE employees, nor do I believe that
Guenther installed the corral in an effort to influence the em-
ployees’ vote. United Airlines Services Corp., supra. Rather, I
am of the belief that the Respondent had the corral installed
primarily in an effort to avoid liability for the damage to cus-
tomers’ cars. Any benefit to the employees was simply collat-
eral. However, I really do not view this as much of an em-
ployee benefit. At most, it eliminated the occasional need to
move a cart out of the way, and perhaps the caution to park
their private vehicles away from wind blown carts. The Re-
spondent’s conduct should certainly be considered as routine,
based on operational decisions. Zartic, Inc., supra; and Stanley
M. Feil, Inc., supra. Further, I credit Guenther’s account, sup-
ported by Williams, that he requested the installation of the
corral following the cart damage to a customer’s car. The Re-
spondent has, therefore, rebutted the inference that the installa-
tion of the cart corral, coming within the petition period, was an
unlawful grant of benefit. Uarco Inc., supra.
I conclude, based on the above, that the General Counsel has
failed to establish, by a preponderance of the evidence, the
allegations set forth in subparagraph 5(i)(6) of the complaint.
Therefore, I shall recommend dismissal of this subparagraph of
the complaint.
4. Removal of Mike Buckner
Paragraph 5(l) of the complaint alleges that as a result of the
solicitations of Tom Coughlin, the Respondent removed Mike
Buckner from his position as store manager. The General
Counsel contends that this action was taken because the TLE
employees had expressed displeasure with Buckner, and for the
calculated purpose of influencing the outcome of the election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD836
The Respondent argues that the decision to transfer Buckner to
another store was a legitimate business decision, unrelated to
any grievances that employees may have had with the store
manager.
Buckner had served as the Kingman store manager for ap-
proximately 5 years, and was the manager when the petition
was filed on August 28. Jay King, district manager, assumed
that position in the Las Vegas, Nevada, and Kingman areas on
September 18. King testified that he found the Kingman store
in disarray each time he toured the store during the month of
September. According to King, there were problems with mer-
chandising, the receiving process, the store was not clean, and
the outside was littered with pallets and shopping carts. Also,
King testified that he noticed that Buckner’s personnel evalua-
tions were poorly done and Buckner was not communicating
well with employees. During King’s early period at the facil-
ity, he spoke with Buckner about these problems and made
suggestions, but Buckner did not seem able to correct the defi-
ciencies. In general, King found Buckner to be withdrawn,
without humor or creativity, and lacking in inspiration. Buck-
ner looked tired and sick. According to King, he was con-
cerned that Buckner would not be able to effectively perform
his job during the upcoming holiday season, or to effectively
communicate the Company’s messages during the union cam-
paign. At some point during early October, King reached the
conclusion that Buckner needed to be removed as the store
manager.
Vicky Dodson’s testimony supported King. According to
Dodson, Buckner appeared withdrawn, stressed, fragile, and
uncommunicative. He appeared unhealthy and tired, and did
not seem like an effective store manager. She and King spoke
with Tom Coughlin about this matter on October 9, prior to
Coughlin’s meeting with the TLE employees. Dodson testified
that she and King told Coughlin that Buckner did not seem to
have the energy and stamina to be an effective communicator,
or to run the store on a ordinary basis, “much less with a peti-
tion.” Both Dodson and King testified that Coughlin essen-
tially told them to take whatever action they believed appropri-
ate to resolve the store manager problem.
It is undisputed that in his meeting with the TLE employees,
Coughlin asked them how Buckner was doing, whether he was
doing a good job, and if he was the right leader for the store, or
words to that effect. It is also undisputed that one employee
said something positive about Buckner and at least one, and
possibly two employees, made negative comments about him.
Also, Jay King acknowledged that prior to the day Coughlin
was at the facility, King had heard complaints about Buckner
from a number of store employees, including Brad Jones, who
complained that Buckner had been unresponsive to his con-
cerns.
It is the General Counsel’s contention that the TLE employ-
ees wanted Buckner removed as store manager, and that the
Respondent did so, in an effort to satisfy the employees,
thereby, inducing them to reject the Local Union. However, the
problem with this theory is that it does not appear that the union
supporters in the TLE wanted Buckner removed. To the con-
trary, the TLE employees generally liked him. Brad Jones
testified that he was unhappy when Buckner left and did not
feel it was fair to him. Jones even went so far as to tell King
that he thought it was a “rotten deal,” and he hoped the transfer
was not the result of the petition. Greg Lewis testified that
when Buckner’s departure was announced, he told Dodson and
Kirk Williams that he did not want Buckner to leave. Will
Brooks also testified that he told Dodson and Williams that he
did not want Buckner to leave. There was no “ground swell” of
hostility by the TLE employees seeking the removal of Buckner
as store manager, and no reason why management would have
gotten that impression. A few negative comments by employ-
ees should certainly not have been sufficient to lead manage-
ment to believe that there was significant enmity to Buckner.
As I have indicated, the opposite was apparently true.
Further, I credit the testimony of Dodson and King that the
decision to remove Buckner was made prior to the meeting
between Coughlin and the TLE employees. I believe that the
primary reason why management decided to transfer Buckner
was because, from the Respondent’s viewpoint, he had not been
an effective manager. After all, it was “on his watch” that the
petition had been filed. Without specifically saying so, I be-
lieve that King and Dodson saw Buckner as a “broken man.”
He was characterized by various witnesses as tired, sick, un-
communicative, without humor or creativity, and lacking in
inspiration. Not only was management unhappy with the way
Buckner had been running the store, they were particularly
concerned about whether he would be able to lead a successful
campaign against the Local Union. After all, this was of para-
mount concern to the Arkansas labor relations team, which had
come to the Kingman facility specifically to defeat the organ-
izational campaign.
Having decided to remove Buckner from the store, all that
remained for management was to find a method by which this
could be accomplished with as little disruption as possible. To
the credit of the managers involved, the Respondent appears to
have done this in a fairly humane way. According to the testi-
mony of Regional Personnel Manager Tim Scott, he, King, and
Buckner attended a dinner meeting the second week of Octo-
ber. When they discussed Buckner’s performance and situa-
tion, he “almost broke down.” The suggestion was made to
Buckner that he might want to transfer to another store as a co-
manager, and he was “relieved” to accept that option. A trans-
fer was arranged for him to a store in Oregon, near where he
had family. There is no question that this was a demotion,
since he would not be the manager and his potential over all
compensation was reduced. Never the less, Buckner seemed
genuinely pleased to take the transfer. Buckner testified that
when he met with King and Scott, he admitted being stressed,
losing sleep, and that his chest hurt. He told King that he was
experiencing the most stress he had ever been through. Ac-
cording to Buckner, he was relieved at the prospect of a trans-
fer, and felt that he would be getting a new start.
Based on the totality of the probative evidence, I am con-
vinced that the Respondent transferred Buckner because it
made a business decision that Buckner had been an ineffective
store manager, and would not likely be able to correct the prob-
lem in the middle of a union organizing campaign. The Re-
spondent was looking for a store leader who could best support
its argument that the employees did not need “third-party repre-
WAL-MART STORES 837
sentation.” On the other hand, it does not appear that the TLE
employees were particularly unhappy with Buckner, or that
management had that impression. I do not believe that Buckner
was transferred from the Kingman facility in response to em-
ployees’ grievances or to improve their working conditions in
an effort to influence their votes. Accordingly, I conclude that
the General Counsel has failed to establish the allegations as set
forth in paragraph 5(l) of the complaint. Therefore, I shall rec-
ommend the dismissal of that paragraph of the complaint.
5. Futility of selecting the Union and refusal to negotiate
It is alleged in subparagraph 5(m)(2) of the complaint that in
mid-October 2000, Jay King informed employees that it would
be futile for them to select the Local Union as their bargaining
representative. Similarly, it is alleged in paragraph 5(q) of the
complaint that in January 2002, Kirk Williams threatened em-
ployees that if they selected the Local Union as their represen-
tative, the Respondent need not negotiate.
King became the district manager for the Las Vegas, Ne-
vada, and Kingman, Arizona areas on September 18. On Octo-
ber 19, he conducted a meeting for the TLE employees at the
facility to explain the collective-bargaining process. According
to the testimony of Will Brooks, at this meeting King described
the potential bargaining scenario as Tom Coughlin appearing at
the negotiating table with the Wal-Mart attorneys. Brooks
acknowledged that King repeated what the managers had said
many times, namely that as a result of the negotiations the em-
ployees might get more benefits than they presently had, or
they could get less, or they could get the same. Further, King is
alleged to have said that while the law required Wal-Mart to
negotiate in good faith, the Employer did not have to agree to
any particular union proposal. It was during this presentation
that King is alleged by Brooks to have asked the question,
“Why would he [Coughlin] change benefits and pay for 18
people when he has over a million employees?” This reference
was apparently to the approximately 1 million employees who
worked for Wal-Mart nationally, as compared to the approxi-
mately 18 employees in the petitioned for unit.
According to King, at the meeting on October 19, he showed
a video and discussed the collective-bargaining process. He
confirms the testimony of Brooks that he told the employees
that while Wal-Mart was obligated to negotiate in good faith,
the law did not require it to agree to any particular union pro-
posal. He reminded the employees that bargaining could result
in their receiving more benefits, less benefits, or the same bene-
fits as they currently received. He indicated the process could
be lengthy and suggested that Coughlin himself might wish to
participate. However, King specifically denies that he ever said
that Coughlin would refuse to change the wages or benefits for
the TLE employees because they were only 18 out of 1 million
employees. He admits that he told the employees that if the
parties could not agree on a contract, the Local Union would
have the option of giving up, giving in, or going out on strike.
Also, they discussed economic strikes. Employee Joe Bettinger
was at the meeting, and his testimony essentially supported
King. According to Bettinger, King said that Coughlin would
negotiate in the Employer’s best interest, but King did not sug-
gest that Coughlin would refuse to change benefits for 18 em-
ployees in the TLE when he was responsible for over 1 million
other employees. Kirk Williams was also present at the meet-
ing in question and his testimony supported King’s version of
what was discussed. He denies that King made any reference
to Coughlin refusing to make changes for 18 out of 1 million
employees.
To the extent that counsel for the General Counsel argues
that King’s presentation in its entirety conveyed a message of
futility in selecting a bargaining representative, I disagree. The
Board has held that an employer’s message to its employees
that union representation was no guarantee of better benefits
and might result in less desirable benefits is legitimate cam-
paign propaganda, which employees are capable of evaluating.
Such expressions of views are protected by Section 8(c) of the
Act. Mediplex of Connecticut, Inc., 319 NLRB 281, 281
(1995). Further, the Board has indicated that an employer does
not violate the Act when it informs its employees that they may
end up with more, the same, or less benefits, as long as the
employer makes it clear that this must be part of the collective-
bargaining process. Noah’s New York Bagels, 324 NLRB 266
(1997). Even statements by an employer stating the possibility
that the employees may face “long bitter negotiations” and a
“long and ugly strike” if they selected the union, has been held
by the Board not to constitute a message of futility. General
Electric Co., 332 NLRB 662 (2000). Any such statements by
King were merely an expression of the Respondent’s opinion as
to what might happen if the Local Union was selected by the
employees, and did not constitute a violation of the Act.
Further, I do not believe that Jay King made any comment
suggesting to the TLE employees that Coughlin would not
change their benefits because they were only 18 out of 1 mil-
lion employees, or words to that effect. I credit the testimony
of King, Williams, and Bettinger over that of Brooks. King
strikes me as an intelligent, fairly sophisticated manager who, I
doubt, would make a statement of the type alleged. Also, the
“talking points” prepared for his use during the meeting in
question cover the subject of collective bargaining and those
matters everyone agrees were discussed, without making the
offending statement. (R. Exh. 24.)
Further, the testimony of King, Williams, and Bettinger
seemed inherently more plausible than did that of Brooks, who
I believe simply was confused and inferred more into King’s
statements than what was said.
Accordingly, I conclude that Jay King did not make the of-
fending statement in question on October 19, or any other date,
as would indicate to employees that it would be futile for them
to select the Local Union as their bargaining representative.
Therefore, I find that the General Counsel has failed to estab-
lish the allegations as set forth in subparagraph 5(m)(2) of the
complaint. I shall recommend dismissal of this subparagraph
of the complaint.
As noted above, the General Counsel also alleges in the com-
plaint that in January 2002, Kirk Williams threatened employ-
ees that if they selected the Local Union as their bargaining
representative, the Respondent need not negotiate. The evi-
dence is undisputed that Williams did return to the Kingman
facility in January 2002, in response to a belief that the election
might be unblocked. He then conducted a meeting for the TLE
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD838
employees. Larry Adams, who was a service writer at the time,
testified that at the meeting Williams talked about the open
door policy and the Respondent’s belief that the employees did
not need union representation. According to Adams, Williams
also said, “[T]here was no way that they would negotiate with
the Union,” and that the employees would “basically just loose
our benefits and stuff.” On cross-examination, Adams ex-
panded his testimony and indicated that Williams said if the
employees selected the Union, that Wal-Mart would not talk to
the Union, or even sit down at the bargaining table with the
Union. Adams was the only witness who testified that Wil-
liams made these statements.
Williams testified that he spoke to the TLE employees about
the collective-bargaining process, telling them that if the Union
were selected the Employer would bargain in good faith, but
that it was not required to agree to any specific demands, and
that negotiations could take a long time. Further, he indicated
that as a result of the negotiation process the employees might
end up with more benefits, less, or the same. Williams denied
that he said the Employer would refuse to negotiate or that it
would not talk to the Union. His testimony was supported by a
number of other individuals who were present for the meeting,
including employee Joe Bettinger, Store Manager Jeff Van
Horn, and District Manager Ragnar Guenther.
I am of the view that Williams did not make the offending
statements attributed to him by Adams. Kirk Williams was an
experienced labor relations manager and attorney, and I do not
believe he made statements that so clearly and blatantly would
constitute a violation of the Act. Anyone with even the most
elementary understanding of labor law knows that it would be
illegal for an employer to simply refuse to negotiate with a
properly certified labor organization. Certainly Williams
knows this, and he also knows that making such a statement to
a group of employees would almost certainly guarantee the
filing of a meritorious unfair labor practice change. Williams’
denial is supported by the weight of the witness testimony, as
well as by the “talking points,” which he used in addressing the
employees. (R. Exh. 25.) It is totally implausible that he made
the offending comments. I am left with the belief that Larry
Adams simply misunderstood Williams’ comments, and as-
sumed more than what was said, or should have reasonably
been construed. It is significant to note that no other employees
who were at the meeting, including even union supporter Brad
Jones, testified that the statements in question were made.
Based on the above, I conclude that the General Counsel has
failed to establish the allegations contained in paragraph 5(q) of
the complaint. Therefore, I shall recommend that this para-
graph of the complaint be dismissed.
6. Threats to eliminate benefits
It is alleged in paragraph 5(n) of the complaint that between
August 28 and September 30, 2000, Dodson, Williams, and
other managers threatened employees that they might lose their
stakeholders’ bonuses and discount cards if they selected the
Local Union as their bargaining representative. Similarly, it is
alleged in paragraph 5(w) of the complaint that on October 14,
2000, the Respondent posted a notice at its Kingman facility,
which threatened employees that raises would be withheld if
they selected the Local Union.9
Greg Lewis testified that at a storewide meeting held on Au-
gust 30, an employee asked what would happen to the rest of
the store if the TLE employees “brought in a union.” Accord-
ing to Lewis, Vicky Dodson and Kirk Williams responded that
“it would effect all of the associates, that there was a possibility
that all of the associates would lose their discount cards, their
stakeholders’ bonuses, the yearly bonus.” In response to an-
other question as to whether the store employees might lose
their health benefits, they allegedly responded, “it was a defi-
nite possibility.” In a more general way, Lewis seems to allege
that Dodson and Williams made similar statements to assem-
bled store employees at other unspecified times. Will Brooks
testified in a similar way that on several unspecified occasions,
he heard Dodson and Williams tell groups of store employees
that, “because of TLE filing the petition that the whole store is
going to loose their shareholders’ bonuses and their discount
cards.” According to Brooks, later in the campaign Williams
“narrowed it down to just the TLE was going to lose their
shareholders’ bonuses and the discount cards, and the rest of
the store was going to keep theirs.” Larry Adams testified that
in January 2002, Kirk Williams, while addressing a group of
TLE employees, said, that if they selected the Local Union, “we
would basically just loose our benefits and stuff.’’
The record is undisputed that an employee “discount card”
allows an employee to purchase most items sold by Wal-Mart
at a 10 percent discount. Also, the “stakeholders’ bonuses pro-
gram” is a profit sharing arrangement for employees that has
provided the employees at the Kingman facility with an extra
approximately $400 to $600 per year, depending on whether,
and to what extent, the store is profitable. Clearly, these are
benefits that the employees at the facility have been receiving.
It should be recalled that prior to the issuance of the Decision
and Direction of Election in the representation case on Septem-
ber 29 (GC Exh. 20), the Respondent was taking the position
that the appropriate unit should consist of a storewide unit.
Until that time, the Respondent’s managers would frequently
make presentations to groups of storewide employees during
which it was assumed that the collective-bargaining process
would impact them, as well as the TLE employees. Vicky
Dodson testified that the subject of discount cards came up in at
least two meetings. In response to a question from an em-
ployee about whether they would loose their discount cards if
they voted in the Local Union, she responded that there was no
way to predict the collective-bargaining process, and that em-
ployees might end up with more, less, or the same benefits.

9 At the hearing, I granted counsel for the General Counsel’s motion
to amend the complaint to allege this contention as a violation of the
Act. Counsel for the Respondent objected to the proposed amendment.
I permitted the amendment because I determined that the new allega-
tion was “closely related” to the timely filed charges in this case. The
new allegation involved the same legal theory, and arose from the same
factual circumstances. Also, the Respondent was not prejudiced by the
amendment as it had already raised a similar defense and had ample
opportunity to raise additional defenses. See Redd-I, Inc., 290 NLRB
1115 (1988); and Nickles Bakery of Indiana, 296 NLRB 927 (1989).
Therefore, I concluded the amendment was proper.
WAL-MART STORES 839
She denied ever telling employees, or hearing any other man-
ager telling employees, that they would lose their discount
cards or stakeholders’ bonuses.
Kirk Williams recalled the matter of stakeholders’ bonuses
and discount cards being raised at the first storewide meeting
on August 30. He testified that it was explained to the employ-
ees that there would be no changes in benefits simply because a
petition had been filed. However, if the employees selected
the Local Union, all benefits would go on the bargaining table,
and the result might be more, less, or the same benefits. Wil-
liams recalled the issues arising for a second time in September,
with essentially the same response from management. He de-
nied ever saying that employees would lose their stakeholders’
bonuses or discount cards, or words to that effect.
Mike Buckner testified that he was present at meetings when
employees asked questions about the status of stakeholders’
bonuses and discount cards. According to Buckner, Dodson
and Williams gave the same “standard answer” each time,
which was that in a bargaining situation, employees could end
up with more, less, or the same benefits they currently had. He
denied ever hearing Dodson or Williams telling employees that
they would lose their stakeholders’ bonuses or discount cards.
Employees Dorothy Haddock, Sherri Quinn, and Sharon Ford
all testified about the stakeholders’ bonuses and discount card
issues, essentially corroborating the testimony of the managers.
Once again, I am required to determine whether or not
Dodson or Williams made certain statements. As I have previ-
ously, I continue to believe that these two experienced labor
relations managers did not make the statements attributed to
them by the witnesses for the General Counsel. In my opinion
Dodson and Williams were too experienced and astute to have
told employees that if the Local Union was selected as a bar-
gaining representative that the employees would lose specific
benefits such as the stakeholders’ bonuses and discount cards.
It is much more likely that what they said was that the collec-
tive-bargaining process is uncertain, and the result might be
more, less, or the same benefits than they currently enjoyed.
That, of course, is precisely what Dodson, Williams, Buckner,
Haddack, Quinn, and Ford testified was said. Their versions of
the statements in question were certainly inherently more plau-
sible than that of Lewis, Brooks, and Adams. I believe that
Lewis, Brooks, and Adams read more into the statements than
was either said or could reasonably be implied, just as they
seemed consistently to have done.
Based on the weight of the evidence, I have concluded that
any reference to either the stakeholders’ bonuses or discount
cards by Dodson or Williams was made in the context of the
collective-bargaining process, and the possibility that the re-
sults of negotiations might be a loss, gain, or maintenance of
existing benefits. Such statements made either to the TLE em-
ployees, or early in the campaign to storewide employees,
which point out the potential consequences of collective bar-
gaining, do not violate the Act. This constitutes legitimate
campaign propaganda, which employees are capable of evaluat-
ing. Such expressions of views by the Respondent are pro-
tected by Section 8(c) of the Act. Mediplex of Connecticut,
Inc., supra. Accordingly, I conclude that the General Counsel
has failed to establish the allegations set forth in paragraph 5(n)
of the complaint. I shall, therefore, recommend that this para-
graph of the complaint be dismissed.
Regarding the alleged threat to withhold raises, it is undis-
puted that during the petition period the Respondent provided a
question box outside the employee breakroom into which em-
ployees could insert questions. The members of the labor rela-
tions team informed the employees that they could submit any
question and that the Respondent would post its response for all
employees to see. The record establishes that the following
question was received on October 12, and the following answer
posted on October 14: Question: “What happens to raises in
the TLE while they’re waiting on a contract?” Answer: “ Wal-
Mart would not be allowed to give any discretionary raises,
such as merit increases, while negotiations continued. In gen-
eral, no provision of a collective-bargaining agreement is put in
place until the parties agree on every part of the agreement.”
(GC Exh. 10g.)
At the hearing, the undersigned permitted counsel for the
General Counsel to amend the complaint, as paragraph 5(w), to
allege this posting as a violation of the Act. In his posthearing
brief, counsel for the Respondent renewed his original objec-
tion to the amendment on the basis of Section 10(b) of the Act.
However, I continue to believe that the amendment was appro-
priate as the new allegation was “closely related” to the timely
filed charges in this case. (See argument and cases cited above
in fn. 9.)
Generally, an employer may not withhold raises, make
threats to withhold raises, or depart from preexisting policies in
light of the filing of a representation petition. An employer
must grant the preexisting benefit as if the union were not on
the scene. Parma Industries, 292 NLRB 90, 91 (1988); and
Gupta Permold, 289 NLRB 1234, 1234–1235 (1988). The
Board provides an exception whereby an employer may with-
hold a benefit and comment without violating the Act. How-
ever, for this exception to apply, the employer must make it
clear to the employees that the adjustment would occur whether
or not they select a union, and that the sole purpose of the ad-
justment’s postponement is to avoid the appearance of influenc-
ing the election’s outcome. Atlantic Forest Products, 282
NLRB 855, 858 (1987); and Uarco, Inc., 169 NLRB 1153,
1154 (1968). Also, the employer cannot place the burden for
the postponement on the union. La Marche Mfg. Co., 238
NLRB 1470, 1481 (1978); and American Telecommunications
Corp., 249 NLRB 1135, 1137–1138 (1980).
In my view, the Respondent’s posted answer is a violation of
the Act. It indicates that “discretionary raises, such as merit
increases,” which it apparently had a past practice of awarding,
“would not be allowed . . . while negotiations continued.” All
that the employees learned from the posting was that until ne-
gotiations for a collective-bargaining agreement concluded, the
Respondent was going to have to deprive them of a benefit,
which they had previously enjoyed. Of course, this potential
loss would only occur if the Local Union won the election. The
employees were likely to identify the Local Union, or at least
the union supporters, as the villain in this scenario. Further, at
no point in the posting does the Respondent indicate to the
employees that the Respondent is withholding the raises be-
cause it wants to avoid the appearance of influencing the elec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD840
tion’s outcome, and that ultimately the raises will be granted
regardless of whether the Local Union wins or loses. This post-
ing was likely to have caused any employees affected by the
potential withholding of raises to be upset with the Local Un-
ion, or its supporters.
While the complaint does not allege as separate violations of
the Act any oral statements by managers threatening to with-
hold raises, such statements do tend to support the inferences
that employees would have received upon reading the posting
in question. Employee Joe Bettinger testified that in Septem-
ber/October, either Store Manager Jim Winkler, or TLE Man-
ager Larry Eidson indicated that merit raises were “frozen.”
This is credible evidence in view of the fact that Bettinger al-
most always testified favorably towards the Respondent. Also,
employee David Carter testified that he was informed by both
Kirk Williams and Larry Eidson that “while the petition was
pending, that merit raises were on a freeze.” Again, this testi-
mony is credible because Carter had demonstrated hostility
towards the Local Union when he signed a letter seeking a
withdrawal of the representation petition. Greg Lewis testified
that Vicky Dodson, Kirk Williams, and Jay King made similar
comments, with the managers specifically saying that merit
raises would not be given, as it would appear “like they were
buying us off.” Finally, former Assistant Manager Anthony
Kuc also testified that Dodson made similar statements in the
presence of employees about merit raises being frozen.
From the record evidence it appears that there was a well-
established past practice at the Kingman facility of awarding
merit, or discretionary raises. As such, these raises were not a
benefit the Respondent had merely been contemplating institut-
ing at the time the petition was filed. They were an existing
benefit, which the Respondent needed to continue to award as if
the Local Union were not on the scene.
Based on the credible evidence, and legal argument pre-
sented by counsel for the General Counsel and counsel for the
Charging Parties in their respective posthearing briefs, I con-
clude that the answer posted by the Respondent at its Kingman
facility on October 14, 2000, constituted a threat to employees
to withhold raises if they selected the Local Union as their col-
lective-bargaining representative. Therefore, I find this post-
ing, as alleged in paragraph 5(w) of the complaint, to constitute
a violation of Section 8(a)(1) of the Act.
7. Disparate enforcement of nonharassment policies
Paragraph 6(b) of the complaint alleges that since August 28,
2000, the Respondent has discriminatorily and disparately ap-
plied and enforced its nonharassment policy to employees at the
Kingman facility. In substance, the General Counsel is alleging
that the Respondent failed to take appropriate disciplinary ac-
tion under its nonharassment policy against employee Mitch
Bowman, who was known to be a union opponent. This delib-
erate inaction on the part of the Respondent is alleged to have
worked to the detriment of union supporters Greg Lewis and
Will Brooks, who sought the protection of the nonharassment
policy.
The Respondent maintains non-harassment policies that pro-
hibit employees from harassing other employees, including
harassment due to an employee’s religion or physical appear-
ance. (See GC Exh. 14, the Respondent’s harass-
ment/inappropriate conduct policy; and GC Exh. 39, the Re-
spondent’s inappropriate behavior lesson.) It is undisputed that
during the petition period, Lewis and Brooks made repeated
complaints to management that Bowman was harassing them.
All three men worked in the TLE and while Lewis and Brooks
were open supporters of the Local Union, Bowman was known
as an opponent. Although Bowman had originally been a sup-
porter of the Local Union, he had changed his sympathies and
become openly hostile to the organizing efforts. Vicky Dodson
acknowledged that the Respondent knew of the particular sym-
pathies of these three employees. Bowman himself certainly
made no secret of his changed feelings, as he was reported by
Greg Lewis as walking through the TLE shop singing, at the
top of his lungs, “we don’t need no fucking union.”
In any event, Lewis and Brooks, complained repeatedly to
management about alleged harassment from Bowman, follow-
ing his conversion to that of an opponent of the Local Union. In
October, Lewis, who testified that he was a minister, com-
plained to Larry Eidson that Bowman had called him “lazy,”
told Lewis that he “hated Christians,” called Lewis a “piece of
shit,” and pushed Lewis aside. Further, in response to a com-
ment from Lewis that he had to prepare for a church service,
Bowman responded, “[O]h, another goddamned religious func-
tion.” After reporting Bowman’s conduct to Eidson, Lewis
learned that another employee, Everett Ford, had also reported
these incidents to Eidson. Lewis also reported Bowman’s con-
duct to Ragnar Guenther. Both Eidson and Guenther promised
Lewis that they would take care of the problem. However, it
continued.
On about October 24, Lewis and a fellow employee were en-
gaged in a conversation about Lewis’ church when Bowman
approached and said, “[W]hat a bunch of bullshit” and “[L]et
me get my hip boots.” Will Brooks testified that during the
same time period, Bowman approached Lewis and screamed in
a derogatory tone, “Oh, God, take me home, bless me Lord.”
Bowman also called Lewis “fat boy.” Lewis reported Bow-
man’s behavior to Jay King, Jim Winkler, and Kirk Williams.
However, according to Lewis, the managers just laughed at
him. When he told the managers that Bowman’s conduct had
to stop, they told him that he “was making a bigger issue out of
it than it was,” and he should go back to work. Lewis returned
to speak with the three managers a short time later, and he told
them that he felt Bowman’s conduct constituted “religious per-
secution,” and that “fat jokes” were not appropriate. Allegedly,
Kirk Williams responded that, “it’s only words,” and told him
to go home if he was upset.
In late September, Brooks made a complaint to Guenther,
charging Bowman with harassing him about his weight, as
Bowman allegedly called Brooks “big boy” and “fat.”
Guenther made a comment to Brooks, which Brooks did not
like, and Brooks then complained to Jay King about Guenther.
In any event, Bowman’s conduct towards Brooks continued
when approximately 1 week later, Bowman approached Brooks
and “started rubbing on [his] belly,” while Brooks was eating a
breakfast burrito. Bowman asked Brooks if he really needed to
eat the burrito. Also, Bowman called Brooks’ fiancée a
“bitch,” and threatened to hit her. Once again, Brooks com-
WAL-MART STORES 841
plained to Guenther, who told him that he would look into the
matter. However, the matter was not resolved and 4 or 5 days
later, Bowman screamed that he couldn’t believe that he
worked “with a bunch of pussies,” which comment Brooks
believed was directed at him. Yet again, Brooks complained to
Guenther, after which he was permitted to go home early be-
cause of the “stress.”
I credit the testimony of Lewis and Brooks about the com-
ments made to them by Bowman. Their testimony had “the
ring of authenticity” to it, and was in conformity with the other
record evidence. The Respondent does not deny that Bowman
engaged in the conduct attributed to him, merely that the man-
agers had insufficient evidence of that conduct to warrant tak-
ing disciplinary action against Bowman. According to Jay
King and Ragnar Guenther, there was a severe personality con-
flict in the TLE and they chose to deal with it by getting the
employees together and pointing out that the “bickering” had an
adverse impact on performance and needed to end. They deny
that the respective union sympathies of the employees involved
had any thing to do with the decisions that they made in con-
nection with the complaints against Bowman. This I do not
believe.
As noted, the Respondent was well aware of the union sym-
pathies of Brooks, Lewis, and Bowman. Vickie Dodson testi-
fied that during the election campaign, the Arkansas labor rela-
tions team kept a running account of whether or not each TLE
employee was likely to support the Local Union. Further, dur-
ing the campaign period, all personnel actions for TLE employ-
ees had to be cleared through the team. Therefore, it is clear to
me that whether a TLE employee was prounion, or antiunion,
was of paramount importance to the Respondent. As Bowman
was clearly vigorously opposed to the Local Union, he was a
vote in the scheduled election that the Respondent’s managers
believed they could depend on. Therefore, they had a vested
interest in ensuring that he remained in the TLE and continued
to view management in a favorable light. I believe that this was
the reason why the Respondent took no significant disciplinary
action against Bowman, despite considerable evidence that he
was engaged in the harassment of fellow employees based on
their religious beliefs and/or their physical appearance.
While the Respondent’s witnesses indicated that Bowman
denied making most of the offending remarks, it must have
been clear to them, at a minimum, that he was engaged in at
least some objectionable conduct. After all, employee Everett
Ford had furnished evidence that supported Greg Lewis’ com-
plaint. The Respondent was in possession of a written state-
ment from Ford which indicated that Bowman had in fact re-
plied to Lewis’ reference about having to prepare for a church
meeting, with the statement, “another goddamn fuckin church.”
(R. Exh. 39, p. 17.) Apparently at least Guenther and Eidson
knew of Ford’s statement, which certainly buttressed the other
complaints from Lewis and Brooks. Also, an employee whose
first name was Misty had told Store Manager Jim Winkler that
while she, Greg Lewis, and another employee named Debra
were discussing religion, Bowman made the comment that “he
needed his boots on.” Winkler gave this information to
Guenther, and Misty provided the Respondent with a written
statement. (R. Exh. 39, p. 21.) Misty’s statement further sup-
ported Lewis’ complaint. Finally, Bowman himself admitted to
Guenther that he asked Brooks whether Brooks needed “an-
other burrito.” Still, no significant disciplinary action was
taken against Bowman.
Vicky Dodson testified that the complaints made regarding
Bowman’s conduct were brought to her attention, and it is clear
from Guenther’s testimony that she acquiesced in the decision
not to issue a written reprimand to Bowman. According to
Dodson, Wal-Mart takes complaints of harassment seriously,
and she testified that the types of allegations that Lewis and
Brooks complained of, namely statements about physical ap-
pearance and religious preference, would qualify as harassment.
Nevertheless, Bowman was never written up for harassing ei-
ther Brooks or Lewis.
Disparate treatment can be ascertained from the way in
which the Respondent disciplined another employee before the
union campaign was an issue. Several months before the peti-
tion was filed, Lewis had complained about another TLE em-
ployee, Jessie Buchanan, making inappropriate sexual com-
ments about female customers and continually making “fat
jokes.” Ultimately, Buchanan was fired, and Store Manager
Mike Buckner went to far as to apologize to Lewis on behalf of
Wal-Mart for Buchanan’s conduct. While the two situations
are not identical, they demonstrate how much more seriously
management took the matter of harassment prior to the petition.
It is clear to the undersigned that what distinguished the Bow-
man situation from that of Buchanan was the Respondent’s
strong interest in keeping Bowman in the bargaining unit, so
that his perceived vote against the Local Union would be avail-
able for the election.
It is a violation of the Act for an employer to fail to apply a
personnel policy or benefit to an employee because of the em-
ployee’s prounion sentiment, or fail to enforce a policy against
an antiunion employee in a manner that works to the detriment
of the employee who supports the union. That was precisely
what the Respondent did when it refused to take significant
disciplinary action against Bowman for harassing Lewis and
Brooks. The two union supporters were not afforded the pro-
tection of the Respondent’s nonharassment policy, because the
Respondent was not willing to eliminate or antagonize its anti-
union employee. See Logan-Mingo Gas & Oil Co., 158 NLRB
721, 726 (1966) (disparate application of sick leave policy);
and Hillside Manor Care Center, 297 NLRB No. 176 (1990)
(not reported in Board volumes) (disparate grant of vacation
requests).
A prima facie case has been established showing that
Brooks’ and Lewis’ union activity and support, and Bowman’s
lack of support for the Local Union, was a motivating factor in
the Respondent’s decision to not enforce its nonharassment
policies to protect Brooks and Lewis. Wright Line, 251 NLRB
1083 (1980). Clearly, the Respondent was aware of the pro-
union sentiments of Brooks and Lewis and the antiunion feel-
ings of Bowman. Vicky Dodson acknowledged as much. The
adverse consequences of the Respondent’s failure to act against
Bowman resulted in his continuing harassment of Brooks and
Lewis. Of course, the timing of the Respondent’s failure to act
was highly suspect, occurring amid the election campaign.
This was a campaign over which the Respondent was obviously
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD842
utilizing maximum resources in an effort to defeat the Local
Union.
In my view, the General Counsel having met its burden, the
Respondent has failed to rebut the presumption that its actions,
or lack thereof, occurred because of the election campaign. I
simply do not credit the testimony of the Respondent’s manag-
ers, including King and Guenther, that there was insufficient
evidence to punish Bowman. To the contrary, as has been
demonstrated above, there was more than amply evidence from
neutral witnesses to support Brooks and Lewis, and their acqui-
sitions. The Respondent’s investigation disclosed much more
than merely a “he said, she said” situation. The Respondent’s
failure to act decisively, as it had earlier against Buchanan,
could only have been because it was very reluctant during the
election campaign to do any thing that might cost the Respon-
dent the vote of Mitch Bowman.
Accordingly, I conclude that the Respondent has discrimi-
nated against Brooks and Lewis by disparately applying and
enforcing its nonharassment policies. As such, it has violated
Section 8(a)(1) and (3) of the Act, as alleged in paragraph 6(b)
of the complaint.
8. Increased work duties of Brad Jones and Larry Adams
Paragraph 6(c) of the complaint alleges that on February 28,
2002, the Respondent increased the work duties and tasks of its
employees Brad Jones and Larry Adams because of their union
activity. Jones and Adams held the positions of TLE
writer/greeter. It is fairly clear that by January/February 2002,
these two men were the only remaining open union supporters.
Both men credibly testified that during this period they were
wearing union pins on their uniforms. It is also clear that at
about this same time, the Respondent initiated at the Kingman
facility a customer service program called the “Red Cart Pro-
gram,” which would potentially create more work for the
writer/greeter. However, I do not believe that management’s
intention in initiating the program was to increase the work
duties and tasks of Jones and Adams because of their union
activity.
TLE Manager Mike Wade and TLE District Manager
Guenther both testified credibly that in February 2002, they
created a program to improve and speed up service, which was
called the “Red Cart Program” because the materials and tools
used for the program were kept on a red cart. These included
transmission fluid, power steering fluid, windshield washer
fluid, a tire tread gauge, battery testing tools, and a vacuum
cleaner. Customers purchased a 15-point service, which enti-
tled them to the extra services from the materials and tools
found on the cart. According to Guenther, approximately 70
percent of the customers at the stores in his district, where the
program existed, paid for this extra service.
Guenther testified that he created and laminated a 15-point
checklist and asked the greeters and technicians to check off
each item as they performed it. (R. Ex. 31.) He credibly testi-
fied that everyone in the TLE was responsible to do these
things, whenever it was convenient for them to do so. Specifi-
cally, he personally told Adams, Jones, TLE Manager Wade,
and employees Hatfield and Carter that they were responsible
for doing the service when they had the time. Service techni-
cians Carter and Bettinger testified that they had both per-
formed this extra work when time permitted, and had seen other
employees do it as well.
Adams and Jones testified that they were approached by
Mike Wade and told to start checking the lights, oil, transmis-
sion fluid, power steering fluid, air filter, and tire pressure.
They contend that this was a change from the past practice,
whereby the TLE greeter was expected to only greet the cus-
tomer with a smile, find out what the customer needed, write
the order, answer customer questions, and note any obvious
damage to the vehicle. Jones complained to Wade that Larry
Eidson, the former TLE manager, assured him that he would
“not get dirty” as a greeter. Wade reminded Jones that Eidson
was no longer at the facility. Although both Jones and Adams
complained to him, Wade made it clear to them that they were
only expected to perform the additional duties if they were not
engaged in greeter responsibilities. When pressed by Wade,
neither Jones nor Adams indicated they were refusing to per-
form the 15-point check.
Larry Eidson testified that at least until the time that he left
Kingman in January 2002, it was the job of the greeter to help
preservice cars by checking the air pressure, vacuuming the car,
and cleaning the windshield. There is, of course, some dispute
between the witnesses as to exactly how much physical work
the greeter was expected to do prior to January/February 2002.
However, I do not believe that it is necessary to decide that
specific issue as, for purposes of the discussion, I will accept
the contention of Jones and Adams that there was a change
about this time in the greeter job to require more physical labor.
In any event, I am still unconvinced that the “Red Cart Pro-
gram” was created merely to give Jones and Adams more work
as a punishment for their union support. To the contrary, I
believe the program was created to better service the customers,
which was after all why the TLE was in business.
It is too “machiavellian” for me to conclude that the Respon-
dent’s managers initiated the “red cart program” in an effort to
increase the work duties of union supporters. I do not believe
that the Respondent would go to this extreme. Further, it ap-
pears that the new 15-point service increased the work duties of
the TLE employees generally, and not just the greeters. The
employees’ duties were increased because their efforts were
needed to provide for the new service, which the Respondent
was selling to customers.
Accordingly, I find that the General Counsel has failed to es-
tablish by a preponderance of the evidence that the Respondent
increased the work duties and tasks of its employees Jones and
Adams because of their union activity as alleged in paragraph
6(c) of the complaint. Therefore, I shall recommend that this
paragraph of the complaint be dismissed.
9. The right to the presence of a coworker
It is alleged in paragraphs 5(r)(s)(t) and (u) of the complaint
that on February 28, 2002, the Respondent threatened employee
Brad Jones with unspecified reprisals if he did not waive his
right to have a coworker present at an investigatory interview,
which interview he had reasonable cause to believe would re-
WAL-MART STORES 843
sult in disciplinary action.10 Further, it is alleged that Jones
refused to attend the interview only after the Respondent denied
his request to have a coworker present.
The Respondent’s managers contend that they began an in-
vestigation of Brad Jones because they received a report from
TLE employees alleging misconduct by Jones. Allegedly, TLE
Manager Mike Wade passed on to Store Manager Van Horn
and TLE District Manager Guenther reports from three em-
ployees that Jones had taken confidential documents off of
Wal-Mart property. While it is never entirely certain just what
documents Jones is accused of removing, it apparently is al-
leged by at least one of the employees to be TLE “bay system
summary reports.” These reports are generated automatically
on a daily basis by the TLE computers. The reports list a myr-
iad of information such as the work being performed, which
employee is performing the task, and the length of time it takes
to perform the task involved. Apparently, from a review of the
reports, an individual employee can determine his relative
speed and productivity in comparison to fellow employees.
The managers interviewed employee Connie Keel. Accord-
ing to Van Horn, Keel stated that she had seen Jones printing
bay system summary reports. She did not claim to have any
direct knowledge that Jones was taking documents off Wal-
Mart property. Rather, she allegedly had heard from Larry
Adams that Jones was taking papers off the property and giving
them to the Local Union. A second employee, Bobbie Steeby,
reported to the managers that she had allegedly seen Jones print
the reports on more than one occasion, and, further, she claimed
that Jones had used her password to gain access to the reports
and print them. The third employee interviewed, Joe Bettinger,
said that he had seen Jones take some reports outside the build-
ing and throw them into the garbage. The trashcan that he was
referring to was, however, apparently still located on the Wal-
Mart property. At the request of the managers, all three em-
ployees furnished Wal-Mart with written statements. (R. Exh.
35, 36, & 37.)
Guenther and Van Horn consulted with Vicky Dodson as to
how the investigation should proceed. They received instruc-
tions and decided to meet with Larry Adams, who was the only
person alleged to have direct knowledge of Jones removing
confidential documents from the Respondent’s property. Ad-
ams was called into Van Horn’s office, told that “things” had

10 The language in complaint paragraph 5(u) is somewhat confusing
in that it alleges that the Respondent threatened “employees” (plural)
with unspecified reprisals. Besides Jones, the only other employee who
could possibly be referred to in this paragraph would be Larry Adams,
who the Respondent also attempted to interview on February 28. How-
ever, Adams is not named in the complaint, and neither counsel for the
General Counsel nor counsel for the Charging Parties claim in their
respective posthearing briefs that the Respondent’s attempt to interview
Adams constituted a violation of the Act. As this specific allegation is
apparently not being made, I do not believe I am required to address it.
Never the less, I will indicate that even if alleged, I would not find a
violation as the evidence does not support a conclusion that the Re-
spondent threatened Adams with unspecified reprisals for refusing to
waive his right to have a coworker present during an investigatory
interview. In the case of Adams, I do not believe either that he was
threatened, or had reasonable cause to believe that the interview might
result in disciplinary action.
been disappearing from the TLE, and asked by Guenther and
Van Horn whether he knew anything about it. Adams said he
did not, at which point the managers began to question him
further. He proceeded to pull out a card from his pocket and
said that he wanted to read them his “rights.” Adams described
this as a “Weingarden card,” which he testified that he read to
the managers. (GC Exh. 6.) In part, the document called upon
the managers to permit him to have a coworker of his choice
present. Van Horn informed Adams that his job was not in
jeopardy and, therefore, the managers could still ask Adams
questions. Further, Van Horn informed him that Wal-Mart took
the position it did not have to comply with “Weingarden.”
Guenther explained to Adams that it was the Employer’s policy
that it had the right to deny him the presence of a coworker, as
Wal-Mart was very concerned about “confidentiality,” and
respect for the individual. Adams still refused to answer any
questions without the presence of a witness, and he added that
the managers could either let him go back to work, or fire him.
The interview ended, and Adams returned to work. He was not
fired or disciplined.
Following the meeting with Adams, Jones was called into a
meeting with Van Horn and Guenther. For the most part,
Jones, Guenther, and Van Horn agree as to what was said at
this meeting. Guenther informed Jones that they were investi-
gating his possible removal of confidential documents from the
store. At that point, Jones pulled out a card that contained a
copy of what has been referred to as “Weingarten” rights.
Jones read it word for word. (GC Exh. 6.) He then told the
managers that he wanted to have Adams as his witness.
Guenther replied that while he realized Jones had rights, Wal-
Mart had a right to deny his request for a witness based on the
Employer’s policy, respect for the individual and confidential-
ity. Jones indicated that without a witness, he had nothing
more to say. The managers asked him if he would give a writ-
ten statement, which he also refused to do. He was told to re-
turn to work.
Later that day, Jones was again called to Van Horn’s office.
Guenther told Jones that, without his input, they would proceed
on the information they had, which could lead to his termina-
tion. Jones again indicated that he would not talk with the
managers without a witness present. Yet again, Van Horn and
Guenther denied Jones the presence of a coworker, and he was
told they would proceed without his cooperation. At that point,
Guenther left the office, returned a few minutes later, and in-
formed Jones that he was being terminated for removal of con-
fidential documents from the Respondent’s property.
It is well established that in a union represented bargaining
unit, an employee has a right to union representation at an in-
vestigatory interview that the employee has a reasonable basis
for believing may result in discipline. NLRB v. J. Weingarten,
Inc., 420 U.S. 251 (1975). If an employee requests a union
representative, the employer may grant the request, or carry on
its inquiry without interviewing the employee, or give the em-
ployee the choice of continuing without representation. The
right to have a union representative present is not applicable to
an interview called merely to inform the employee of discipli-
nary action that has already been decided upon. Baton Rouge
Water Works Co., 246 NLRB 995 (1979); and LIR-USA Mfg.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD844
Co., 306 NLRB 298, 305 (1992). Recently, the Board con-
cluded that, in a nonunion setting, employees were entitled to
the same rights, enunciated by the Supreme Court in J. Wein-
garten, Inc., as employees, who are represented by a union.
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).
It is undisputed that Guenther and Van Horn met twice with
Jones on February 28, 2002, for the purpose of attempting to
question him about his involvement in the alleged removal of
documents from the Kingman facility. As such, the meetings
were both clearly investigatory in nature, and Jones had the
right under the existing case law to request the presence of a
coworker. However, the Respondent had the right to decline to
allow Jones to have a witness present, and instead to continue
with the investigation in his absence, which is what the Re-
spondent did the first time. It also had the right to conclude the
investigation on the basis of the information available and
award punishment, which was what the Respondent did the
second time.
Once Jones asked to have Adams present during the first
meeting on February 28, 2002, he was not asked further ques-
tions. He was given the option of providing a written state-
ment, but when he refused to do so, he was informed that the
meeting was over. When Guenther and Van Horn refused to
allow Adams to be present, Jones had the choice between hav-
ing the interview unaccompanied by Adams or having no inter-
view and foregoing any benefit he may have derived from one.
He chose the latter. This was no violation of his Weingarten
rights.
During the second meeting that day, Jones was informed that
without his cooperation, the managers would make a decision
based on the available evidence. Jones again exercised his right
not to answer questions without a witness, and the managers
made no further request that he do so. He was then terminated,
based on the information that had been gathered as of that
point. Weingarten rights no longer attached to this meeting, as
following Jones’ last refusal to answer questions without a
witness present, the meeting converted to one solely intended
for the imposition of previously decided on discipline. Baton
Rouge Water Works Co., supra; and LIR-USA Mfg. Co., supra.
In the next section of this decision, I will be discussing the
evidence used as a basis to terminate Jones, and whether the
Respondent’s purported reasons for the discharge were pretex-
tual. However, regardless of my ultimate conclusion regarding
the discharge of Jones, I am of the opinion, for the reasons set
forth above, that the Respondent’s two meetings with Jones on
February 28, 2002, did not constitute a violation of his right to
have a coworker present during investigatory interviews. Ac-
cordingly, the General Counsel has failed to establish the alle-
gations set forth in paragraphs 5(r)(s)(t) and (u) of the com-
plaint. Therefore, I shall recommend that these paragraphs of
the complaint be dismissed.
10. The discharge of Brad Jones
It is alleged in paragraph 6(d) of the complaint that on Feb-
ruary 28, 2002, the Respondent discharged Brad Jones because
of his union activity and support. Of course, the Respondent
takes the position that it fired Jones because evidence was gath-
ered establishing that he removed confidential documents from
the facility. The Respondent denies that Jones’ discharge was
in any way based on his union activity.
Jones was hired as an alignment technician in the Kingman
TLE in March 1996. On February 1, 2000, he became a service
writer/greeter in the facility. There is no dispute that Jones was
one of the more active union supporters during the organiza-
tional campaign. He testified that he was one of the TLE em-
ployees who first contacted the Local Union, signed an authori-
zation card, met with the union official several times, and en-
couraged the filing of the representation petition. Jones’ union
sympathies were no secret, and Vicky Dodson acknowledged
that she was aware that Jones, along with several other employ-
ees, was an open union supporter. Jones’ union activities did
not cease when the scheduled election was blocked by the un-
fair labor practice charges. To the contrary, he continued his
open union support, testifying that in January 2002 he was one
of only two TLE employees to wear union buttons. The other
employee was Larry Adams.
As was noted earlier, former Assistant Manager Anthony
Kuc testified on behalf of the General Counsel. Also as was
mentioned, Kuc demonstrated some personal animosity towards
the Respondent. He had been fired and testified that he was
contemplating legal action against Wal-Mart, presumably for
alleged unlawful discharge. However, despite Kuc’s acknowl-
edged hostility, I believe he testified in a generally credible
manner, which was sometimes favorable to the Respondent. I
closely observed his demeanor during what was an extensive
cross-examination by counsel for the Respondent. He held up
well under questioning. He seemed candid and believable. I
got the sense that he was attempting to testify accurately, with-
out exaggeration or embellishment. His testimony had the
“ring of authenticity” about it, and I found it truthful.
According to Kuc, at a managers meeting in approximately
September/October 2001, Store Manager Jim Winkler was
making reference to the “prounion” employees who were
“wearing their buttons and everything.” Kuc testified that
Winkler mentioned three TLE employees, Greg Lewis, Brad
Jones, and one other, whose name Kuc could not recall. Alleg-
edly, Winkler said that the managers would “follow the coach-
ing process to a T” regarding “attendance and stuff,” and that
the union supporters would be held to a higher standard, by
which they would “end up weeding themselves out.” It is un-
disputed that the coaching process is the method by which the
Respondent instructs, reprimands, and disciplines employees.
Further, Kuc testified that at a managers meeting near the end
of 2001, Jim Winkler mentioned that Brad Jones was the only
original union supporter who was still employed by the Re-
spondent. Allegedly, Winkler commented regarding Jones that
“there was basically one more person to go, and he would
screw up eventually, and he would be gone.”
I am of the belief that Winkler made the statements attrib-
uted to him by Kuc. Winkler testified that he was aware that
Jones was a union supporter. Of course, this was no surprise,
as Jones was very open in his support for the Local Union.
However, I do not credit Winkler’s denial that at a managers
meeting he ever discussed getting rid of union supporters, or
WAL-MART STORES 845
weeding out union supporters by applying the attendance policy
to a “T,” or tripping up union card signers, or words to that
effect. In my opinion, Winkler’s denials have a “hollow ring”
to them. Despite the fact that Winkler left the Kingman facility
while Jones was still employed, and without having taken any
action against Jones for attendance problems of any type, I
believe that Winkler had every intention of discharging Jones
because of his union activity, assuming the opportunity pre-
sented itself. Kuc’s credible testimony leaves me with no other
meaning for Winkler’s statements.
Coincidentally, on February 26, 2002, 2 days before his dis-
charge, Jones received his yearly performance appraisal. While
Jones signed the appraisal on that date, Larry Eidson and Jeff
Van Horn had signed their names on behalf of the Respondent
on February 7, 2002. In any event, Jones was awarded a 4-
percent annual salary increase. Also, a review of the appraisal
shows that for most graded criteria, Jones was rated as “exceeds
expectations,” although his overall job performance was rated
as “meets expectations.” (GC Exh. 8.) Despite what was cer-
tainly a good appraisal, the Respondent did not hesitate to ter-
minate Jones for what I believe was, at best, a very week claim
that he removed documents from the facility.
The Respondent is apparently taking the position that it ter-
minated Jones for the theft of company property, which is al-
legedly always a dischargeable offense, and because Jones was
at the time on a “decision day.” This term refers to an em-
ployee who has already received several warnings for infrac-
tions of the rules, and whose next infraction would result in
discharge. (CP Exhs. 2, 3.) While it is not at all certain to me
that Jones was on a “decision day,” deciding this issue is really
not essential, as the Respondent clearly alleges the theft of
documents, which by itself resulted in his discharge.
I have already noted in the section above, the information
that Guenther and Van Horn gathered from employees Joe Bet-
tinger, Bobby Steeby, and Connie Keel. Following several
telephone conversations between the managers and Vicky
Dodson, and Jones’ two appearances in the managers’ office,
Guenther informed Jones that he was discharging him “for theft
of Wal-Mart property.” Having consulted with Dodson several
times, clearly Van Horn and Guenther did not take the decision
to fire Jones lightly. They knew they were firing one of the last
two union supporters.
Jones testified credibly about the events surrounding the ac-
cusation that he had removed Wal-Mart property from the facil-
ity. He was never told specifically what he allegedly removed
from the facility, however, he assumed that he was being fired
for removing TLE reports. He testified that he often generated
such reports to track the times that it took for services to be
completed and what was performed. The TLE reports provided
helpful information regarding the time it took to perform spe-
cific services. Further, Jones testified that during the time
Larry Eidson had been his TLE manager, he had printed the
reports in the presence of Eidson, who had never reprimanded
him for doing so. Nobody had ever asked Jones to refrain from
printing the reports, and Eidson had, in fact, even asked Jones
on occasion to print the reports.
There seemed to be some confusion at the hearing as to
whether the TLE reports were printed automatically or not.
While not entirely certain, it appears that the reports did print
automatically on a daily basis. However, additional copies of
the reports could apparently also be printed. Jones acknowl-
edged printing these extra copies of the reports on occasion for
his own review at the facility. He strongly denied ever remov-
ing copies of the reports from the Kingman facility. Also, he
denied ever using any other employee’s password to generate
the reports, testifying that he used only his own password.
Will Brooks testified in support of Jones. According to
Brooks, he had printed the TLE reports on occasion himself,
was never instructed not to do so, and did so with the encour-
agement of managers. He testified that an employee could get
access to the reports either by obtaining the automatically
printed reports each morning, or by printing an extra copy by
means of the employee’s sign-on code.
Even the testimony of Larry Eidson was fairly favorable to
Jones. While Eidson denied that he ever discussed the “track-
ing reports” with Jones or that he saw Jones checking the re-
ports, he agreed that he had seen employees look at the infor-
mation, and that there were legitimate reasons for employees,
including Jones, to view the reports.11 Of particular impor-
tance, Eidson testified that he believed Jones was trustworthy,
and that he never had problems with his honesty.
Regarding the discharge of Brad Jones, the central issue be-
fore the undersigned is the question of the Respondent’s moti-
vation. In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert denied 455 U.S. 989, the Board an-
nounced the following causation test in all cases alleging viola-
tions of Section 8(a)(3) or violations of 8(a)(1) turning on em-
ployer motivation. First, the General Counsel must make a
prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer’s
decision. This showing must be by a preponderance of the
evidence. Then, upon such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The
Board’s Wright Line test was approved by the United States
Supreme Court in NLRB vs. Transportation Corp., 462 U.S.
393 (1983).
In the present case, I conclude that the General Counsel has
made a prima facie showing that Brad Jones’ union activity was
a motivating factor in the Respondent’s decision to terminate
him. In Tracker Marine, L.L.C., 337 NLRB 644 (2002), the
Board affirmed the administrative law judge who evaluated the
question of the employer’s motivation under the framework
established in Wright Line, supra. Under that framework, the
General Counsel must establish four elements by a preponder-
ance of the evidence. First, the Government must show the
existence of activity protected by the Act. Second, the Gov-
ernment must prove that the respondent was aware that the

11 There is some confusion in the record as reports from the TLE are
variously referred to as “bay system summary reports,” “TLE reports,”
just “reports,” “tracking reports,” and perhaps even by other names.
However, the precise name of the report is unimportant, as what clearly
is being referred to by the various witnesses are those reports from the
TLE which record information about the nature of the work being per-
formed, the volume of work, the speed of the work, and the employee
performing the work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD846
employee had engaged in such activity. Third, the General
Counsel must show that the alleged discriminatee suffered an
adverse employment action. Fourth, the Government must
establish a link, or nexus, between the employees’ protected
activity and the adverse employment action. In effect, proving
these four elements creates a presumption that the adverse em-
ployment action violated the Act. To rebut such a presumption,
the respondent bears the burden of showing that the same ac-
tion would have taken place even in the absence of the pro-
tected conduct. See also Mano Electric, Inc., 321 NLRB 278,
280 fn. 12 (1996); and Farmer Brothers Co., 303 NLRB 638,
649 (1991).
There is no doubt that Brad Jones engaged in significant un-
ion activity. As noted earlier, he was one of the first employees
to contact the Local Union, signed a union card, wore a union
pin, and was vocal and open about his union sympathies. His
union activity spanned the entire period under review, from the
filing of the petition on August 28, 2000, until his discharge on
February 28, 2002. Further, his activity did not wane, as he
was only one of two employees wearing a union button in the
last several months of his employment. There is, of course,
also no doubt that the Respondent was well aware of Jones’
union activity. Vicky Dodson acknowledged that she was
aware he was in favor of the Local Union. Certainly if she was
aware, so were all the Respondent’s managers. The local man-
agers and the Arkansas labor relations team discussed the union
sympathies of the employees in the TLE on a daily basis during
the period prior to the scheduled election. Dodson and others
admitted as much. There can be no question that they dis-
cussed Jones’ union support and activity. Of course, none of
this was a secret, as Jones was completely open about his pro-
union feelings.
Obviously, Brad Jones suffered an adverse employment ac-
tion. He was discharged on February 28, 2002. He had been a
long-term employee, having been employed at the Kingman
facility since March 1996. All his employment had been within
the TLE. It is somewhat ironic that only 2 days prior to his
discharge, he had received a good yearly performance ap-
praisal, which included a 4-percent salary increase.
Regarding the question of whether there exists a link or
nexus between Jones’ union activity and his discharge by the
Respondent, I believe that the evidence overwhelmingly estab-
lishes such a connection. It is important to place the Jones
discharge in the context of the overall election campaign. Since
the day the petition was filed, the Respondent had been en-
gaged in a high intensity effort to defeat the Local Union. A
labor relations team had immediately been brought in from
Arkansas and, thereafter, assumed total control of the cam-
paign. The managers held daily meetings where they discussed
strategy and the likely union sympathies of the employees.
Meetings were frequently conducted for the employees, some
storewide and some limited to the TLE, where the employees
were inundated with information about why they should reject
union representation. A number of antiunion videos were
shown to employees, and various corporate officers, including
even the Respondent’s chief executive officer, were brought to
the facility to speak to the employees about remaining nonun-
ion.
This campaign was not simply some academic exercise on
the part of the Respondent. The matter was obviously taken
very seriously by the Respondent, and there is no doubt that the
various managers exercised a maximum effort in an attempt to
remain nonunion. In my view, the degree to which the Re-
spondent conducted its election campaign demonstrated obvi-
ous animus towards the Local Union and its supporters. Ani-
mus or hostility towards an employee’s union activity may be
inferred from all the circumstances, even without direct evi-
dence. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466
(9th Cir. 1966); and U.S. Soil Conditioning Co., 235 NLRB 762
(1978). I believe that such an inference is warranted here. As
I have noted, the Respondent engaged in a very aggressive
campaign to defeat the Local Union’s organizing efforts.
While an employer certainly has the legal right to oppose a
union’s organizing efforts, by the extent and method of their
efforts, this Respondent’s managers made sure the employees
understood that this was not simply business as usual.
In any event, there is also ample direct evidence of animus
directed towards the Local Union, and union supporters, includ-
ing Jones. I have already concluded that the Respondent en-
gaged in various unfair labor practices during its election cam-
paign. By way of review, I have found that Regional Personnel
Manager Tim Scott engaged in unlawful surveillance of em-
ployees in the TLE during late August and early September
2000. Also, the Respondent granted employees in the TLE
improved benefits and working conditions in the form of a
repaired cooling system and new oil grates in an effort to inter-
fere with their support for the Local Union. Further, I have
concluded that the Respondent unlawfully threatened employ-
ees with a loss of merit raises if a collective-bargaining rela-
tionship were created. Finally, I have found that the Respon-
dent disparately enforced its nonharassment policy to the det-
riment of two union supporters, namely Brooks and Lewis.
As for Jones, I have concluded that he had become a
“marked man,” in the sense that the Respondent’s managers
intended to remove him from the facility because of his union
activity. As noted above, I have found that in Septem-
ber/October 2001, Store Manager Jim Winkler indicated at a
managers meeting an intention of eliminating the three union
supporters, including Jones, by holding them to a higher stan-
dard regarding attendance and other matters. Also, I have
found that in late 2001, at another managers meeting, Winkler
commented that Jones was the only one of the original union
supporters left, and that he would “screw up eventually, and he
would be gone.” Having concluded that these statements were
made by Winkler, I have no doubt that the Respondent’s deci-
sion to discharge Jones in February 2002 was motivated, at
least in large part, if not entirely, by the Respondent’s anti-
union considerations.
The General Counsel, having met its burden of establishing
that the Respondent’s actions were motivated, at least in part,
by antiunion considerations, the burden now shifts to the Re-
spondent to show that it would have taken the same action ab-
sent the protected conduct. Senior Citizens Coordinating
Council of Riverbay Community, 330 NLRB 1100 (2000); and
Regal Recycling, Inc., 329 NLRB 355 (1999). The Respondent
must persuade by a preponderance of the evidence. Peter Vi-
WAL-MART STORES 847
talie Co., 310 NLRB 865, 871 (1993). The Respondent has
failed to meet this burden.
It is the Respondent’s position that Brad Jones was fired be-
cause its managers, specifically Guenther and Van Horn, had a
“good-faith belief” that he had engaged in the theft of Wal-
Mart property. Having set forth above the information the
managers received about Jones from Connie Keel, Bobby
Steeby, and Joe Bettinger, I will not repeat that information.
However, it should be stressed that none of the three employees
ever claimed to have witnessed Jones removing documents
from Wal-Mart property. There was no “eyewitness” who had
offered evidence that Jones was stealing the Employer’s docu-
ments. The best the Respondent could do was to offer the
statement of Connie Keel, who claimed that Larry Adams had
told her that Jones was taking “papers,” presumably bay sum-
mary reports, to the Local Union. (R. Exh. 35.) Of course,
when Adams was asked by Guenther and Van Horn whether he
knew anything about the removal of documents from the facil-
ity, he said he knew nothing, before refusing to answer further
without a witness.
In reality, the decision was made to discharge Jones based
merely on statements from three employees that they had seen
him with documents from the TLE, while he was still on Wal-
Mart property. Further, these were documents which the evi-
dence shows were available to any TLE employee who cared to
look at them. There was no probative evidence offered to es-
tablish that it was a violation of some rule of conduct for Jones
to have the purported documents in his possession at the facil-
ity. From the totality of the evidence, it appears that there was
nothing unusual about a TLE employee viewing, or even print-
ing, one of these documents.
The standard used by the Respondent in deciding to termi-
nate Jones was far different from the standard the Respondent
used in other cases where employees were discharged for steal-
ing from Wal-Mart. In those other cases, records admitted into
evidence show that the Respondent had some concrete proof of
theft such as eyewitness statements describing the theft, cor-
roborative eyewitness statements, or admissions of guilt. Also,
in those other cases, the Respondent was able to identify the
product or item allegedly stolen. (R. Exh. 33.) In Jones’ case,
besides the lack of any witness to a theft, the Respondent could
not even say what specific documents were allegedly stolen, or
whether any documents were even stolen at all. Also, none of
the other cases offered for comparison involved the theft of
“documents,” of any kind.
What could have possibly induced the Respondent’s manag-
ers, on the basis of some rather weak evidence, to fire a long-
term employee who had only 2 days earlier received a good
annual appraisal? In my view, it could have only been the Re-
spondent’s desire to be rid of this longtime union supporter.
Jim Winkler’s remarks of several months earlier had set forth
the Respondent’s intention to fire Jones, one of the last union
supporters, when the opportunity presented itself. The Respon-
dent was apparently ready on February 28, 2002, and really was
not very concerned with whether the “evidence” it gathered
against Jones made much sense or not. In my opinion, based
on the “flimsiness” of the evidence, there was no way Guenther
and Van Horn had a “good-faith” belief that Jones had removed
confidential documents from the facility. I find the Respon-
dent’s stated explanation for discharging Jones to constitute a
transparent pretext. Accordingly, the Respondent has failed to
rebut the General Counsel’s prima facie case by any standard of
evidence. It is, therefore, appropriate to infer that the Respon-
dent’s true motive was unlawful, that being because of Jones’
union activity. Williams Contracting, Inc., 309 NLRB 433
(1992); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982); and Shattuck Denn Mining Corp.
v. NLRB, 326 F.2d 466, 470 (9th Cir. 1966).
Accordingly, I find and conclude that the Respondent has
violated Section 8(a)(1) and (3) of the Act by discharging Brad
Jones on February 28, 2002, as alleged in paragraph 6(d) of the
complaint.12
11. Denial of COBRA benefits
Paragraph 6(e) of the complaint alleges that since February
28, 2002, the Respondent has denied Brad Jones COBRA13
coverage as a result of his activity on behalf of the Local Un-
ion. The Respondent admits that Jones did not receive COBRA
benefits, but argues that he was not eligible for these benefits
because he was discharged for “gross misconduct,” namely the
theft of Wal-Mart property.
It is not in dispute that at the time of his termination,
Guenther informed Jones that he was not eligible to receive
COBRA benefits, which, thereafter, he did not receive. Sherri
Quinn, who had been the Kingman facility personnel manager,
testified that Jones called her to ask about COBRA benefits
after he was fired. She told Jones that he was not eligible for
the benefits because his exit interview form showed that he was
terminated for gross misconduct. Guenther had filled out the
exit interview form, not Quinn. (GC Exh. 7.) Quinn testified
that the back of the exit interview form states that gross mis-
conduct includes “any issue related to theft . . . or misappro-
priation of company funds or assets.” (R. Exh. 1.) She was
also aware that the Respondent’s benefits handbook contained
similar language, which disqualified an employee terminated
for gross misconduct from eligibility for COBRA benefits. (R.
Exh. 20.) Quinn testified that she treated Jones just as she had
other employees who had also been fired for gross misconduct.
I have concluded that the Respondent’s discharge of Jones
constituted a violation of the Act. Concomitantly, the Respon-
dent’s characterization of Jones’ actions as gross misconduct,
which disqualified him from COBRA benefits, was also a vio-
lation of the Act. In reality, the Respondent did two things in

12 I specifically do not find that the Respondent took any adverse
employment action against Jones because he insisted on having a co-
worker present during an investigatory interview, as alleged in the
complaint. Therefore, I shall recommend the dismissal of par. 6(g) of
the complaint.
13 The Consolidated Omnibus Budget Reconciliation Act of 1986
provides that employees, former employees, and qualified dependents
may elect to continue the health care benefits provided by an employer
for a maximum of 18 months. The employee or qualified beneficiary
must pay for these benefits him/her self. In addition, the employee,
etc., only becomes eligible upon the happening of a qualifying event.
The employee’s termination constitutes a qualifying event, except when
the termination is by reason of the employees “gross misconduct.” See
29 U.S.C. §. 1161 to §. 1166.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD848
retaliation for Jones’ union activity, namely terminate him and
deny him COBRA benefits. Both actions were violative of the
Act.
As I have noted above, I do not believe that the Respon-
dent’s managers exercised “good faith” when they terminated
Jones. To the contrary, I am convinced that the alleged theft of
the Employer’s property was merely a pretext for their true
motive, that being retaliation for Jones’ union activity. The
actual basis for the discharge being unlawful, the Respondent
can not now claim that it stands with “clean hands,” and should
some how be excused from denying COBRA benefits, because
there was some evidence of document theft. Whatever minimal
“evidence” of document theft that the Respondent may have
received from the three employee sources was irrelevant to the
managers, as the Respondent’s primary motive was retaliation
for Jones’ union activity. But for his union activity, there
would have been no discharge and no denial of COBRA bene-
fits. The Respondent simply cannot categorize Jones’ action as
gross misconduct. To deny him COBRA benefits for that rea-
son is an independent violation of the Act. (The case authority
cited in the last section under the Wright Line analysis is appro-
priate as well for the denial of COBRA benefits.)
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act when it denied Jones COBRA
coverage, as alleged in paragraph 6(e) of the complaint.
12. Benefits book eligibility language
It is alleged in paragraph 5(a) of the complaint that since Oc-
tober 23, 2000, the Respondent, at all of its stores throughout
the United States, has maintained a provision in its Associate
Benefits Books as follows:
If you are a leased employee, non-resident alien, independent
contractor or consultant or are not treated as an employee of
Wal-Mart Stores, Inc. and its participating subsidiaries, you
are not eligible for coverage regardless of whether you are
later determined by a court or any governmental agency to be,
or to have been common law employee of Wal-Mart Stores,
Inc. or any participating subsidiary. Contractually excluded
and certain other union represented associates are not eligible
for coverage. [Underlining has been added for emphasis by
me.]
The General Counsel contends that by this provision denying
eligibility for benefits to union represented employees, the Re-
spondent is interfering with and restraining employees in the
exercise of their Section 7 rights. It is the Respondent’s posi-
tion that the quoted language is nothing more than an expres-
sion of the possibility that where a unit of employees is repre-
sented by a labor organization, those employees may not be
eligible for the same benefits as the unrepresented employees.
According to the Respondent, the language puts those employ-
ees contemplating union representation on notice that the Wal-
Mart benefits might be “contractually excluded.” The Respon-
dent denies that there is anything coercive about this language.
The Respondent’s associate benefits books, effective January
2001 (GC Exh. 27) and effective January 2002 (GC Exh. 28)
both contain the above quoted language.14 Earlier benefits
books apparently did not contain this language as it related to
unions. There was no evidence offered at the hearing to ex-
plain why the Respondent adopted this language at the time it
did. The parties stipulated at the hearing that from January 1,
1999, to the hearing date, Wal-Mart did not have any bargain-
ing unit that was certified by the Board, and enforced by the
courts, or recognized by the Employer at any of its stores in the
United States. Further, the stipulation provided that during the
same period, Wal-Mart had not employed any employees cov-
ered by a collective-bargaining agreement between the Em-
ployer and any union in the United States. (GC Exh. 25.) The
parties entered into another stipulation by which the Respon-
dent acknowledged that it had distributed its associate benefits
books (those effective January 2000, 2001, and 2002, respec-
tively) to thousands of its employees nationwide. Further, the
Respondent stipulated that it was its intention to distribute the
benefits books to all its eligible employees nationwide, al-
though Wal-Mart could not be certain that every such employee
had received a copy. (GC Exh. 35.)
I am in agreement with counsel for the General Counsel and
counsel for the Charging Parties that the maintenance of the
language in question and its distribution in two associate bene-
fits books, nationwide to thousands of employees,15 could have
no legitimate purpose. Its only purpose could have been to
coerce employees in the exercise of their Section 7 rights. The
Board has long held that an employer commits an 8(a)(1) viola-
tion by maintaining, promulgating, or publicizing a pension or
benefit rule which purports to exclude members of a bargaining
unit or those covered by a collective-bargaining agreement.
Niagara Wires, 240 NLRB 1326, 1327 (1979). Any language
that “suggests that coverage of employees will automatically be
withdrawn as soon as they become represented by a union or
that continued coverage under the plan will not be subject to
bargaining” is coercive. Lynn-Edwards Corp., 209 NLRB 202,
205, 208–209 (1988) (unlawful for profit sharing plan to re-
strict eligibility to all full time employees “except those cov-
ered by collective-bargaining agreements”). See also VOCA
Corp., 329 NLRB 591 (1999) (unlawful to restrict eligibility to
any employee who is “not a member of a collective bargaining
unit,” and unlawful to deny benefits to any employee who
“changes to a bargaining unit job”); and Alaska Pulp, 300
NLRB 232, 243–244 (1990), enfd. mem. 972 F.2d 1341 (9th
Cir. 1992) (unlawful for disability policy to restrict eligibility to
“active, full-time hourly nonunion employee[s]”).
The Board has held that an employer violates the Act by
maintaining a benefit plan that excludes employees who join a
union, or choose union representation, or are members of a
bargaining unit, or are covered by a collective-bargaining
agreement. Such restrictions “constitute threats to discontinue

14 The provision in the 2002 book also contains some unrelated lan-
guage concerning employees considered “temporary.”
15 In fact, it is possible that hundreds of thousands of employees may
have seen the offending language. There were repeated references at
the hearing to the Respondent being the largest retail chain of stores in
the United States, with approximately 1 million employees located
nationwide. The benefits books were apparently distributed to employ-
ees throughout the Respondent’s nationwide system.
WAL-MART STORES 849
the benefits or refuse to bargain over continuation of the bene-
fits.” Handleman Co., 283 NLRB 451, 452 (1987). Further,
such restrictions have been held to be coercive of Section 7
rights without regard to the employer’s motivation or whether
the employer has actually applied the restriction. Niagara
Wires, supra at 1327–1328. Also see Hill Park Health Care
Center, 334 NLRB 328 (2001) (posted document entitled
“Benefits for Non-Union Employees,” violates the Act because
it restricts eligibility to nonunion employees and, thus, “has the
inherent effect of interfering with the employees’ Section 7
rights”).
Counsel for the Respondent argues in his posthearing brief
that Wal-Mart’s benefits books provision is lawful as it does
not automatically exclude all represented associates, it excludes
only those represented associates whose contract provides that
they are not covered under the plan or are subject to “certain
other” constraints. Counsel cites KEZI, Inc., 300 NLRB 594,
595 (1990), for the proposition that plan language notifying
employees they may be excluded through bargaining, but not
simply through the selection of a representative, is lawful.
According to counsel, the language in question merely puts
those employees who are “contemplating union representation”
on notice that “standard” Wal-Mart benefits are subject to the
outcome of contract negotiations, and that, therefore, the bene-
fits might be “contractually excluded.” Counsel denies that the
language in any way suggests that represented employees
would automatically lose benefits by electing a union or would
lose benefits during negotiations.
To begin with, it is important to recall that, as stipulated by
the parties, the Respondent has no represented employees, and
has had none during the period that the language in question
has been in effect. Therefore, the Respondent is really “warn-
ing” its employees about, at most, a contingency. In fact, there
are no “contractually excluded” nor “certain other union repre-
sented associates.” So, what is the Respondent really saying? I
believe that it is a not very subtle threat to its employees that
something unpleasant will happen to them if they organize,
namely the loss of the company benefits. The Respondent has
certainly not attempted to explain to its employees in its bene-
fits books the role that the collective-bargaining process could
play in the determination of whether employees are eligible for
benefits or not. To simply offer the existing language as a con-
tingency leaves any reasonable employee with the clear impres-
sion that being represented by a union will likely result in a loss
of benefits. In the case of Hertz Co., 316 NLRB 672 fn. 2
(1995), the Board upheld an administrative law judge’s finding
that although employees were told that benefit eligibility was
negotiable, the employer’s assurance could not dispel the im-
permissible suggestion that there would be an automatic loss of
benefits. The language was such that reasonable employees
could still assume that an automatic loss of benefits was a pos-
sibility.
Further, any imprecise explanation of such a provision
should be held against the Respondent. Fabric Warehouse, 294
NLRB 189 (1989). The Respondent’s use of the language “cer-
tain other union represented associates,” is totally confusing.
The Respondent does not attempt to clarify who these associ-
ates may be, or how they are different than “contractually ex-
cluded” associates, which tends to leave employees with the
impression that some union represented employees will not be
eligible for benefits prior to a bargaining representative negoti-
ating a contract. As the Respondent has created this confusion,
it should be responsible for remedying the problem.
Had it chosen to do so, the Respondent could have created
language which would have made it clear that union repre-
sented employees’ benefits would be subject to good-faith ne-
gotiations, or that the Respondent’s plan would not cover them
because collective bargaining had provided them with other
benefit programs. Such language would have been perfectly
acceptable. Handleman Co., supra. However, the Respondent
did not do so. Instead, the Respondent crafted language that
was confusing, and certainly did not reassure employees that
mere union representation would not result in ineligibility.
What else could this clause have been intended to do, but to
threaten employees, who were naturally unsophisticated in the
nuances of labor relations, with a loss of benefits for exercising
their Section 7 rights? Although it is not essential to establish
motivation, I am convinced that the Respondent intentionally
selected the specific language it did to ensure, to the extent it
could, that its employees were fearful of losing their benefits,
and, thus, continued to reject union representation.16
Accordingly, I conclude that the language as alleged in para-
graph 5(a) of the complaint, which the Respondent has main-
tained and distributed in its associate benefits books since Janu-
ary 2001, has violated Section 8(a)(1) of the Act.
Based on the parties’ stipulations, it is clear that the Respon-
dent distributed its benefits books, containing the language in
question, to its employees at its various retail stores nationwide.
Therefore, in order to remedy the violation of the Act that I
have found, the Respondent must be ordered to post an appro-
priate notice at all those individual retail stores where employ-
ees received the benefits books that contained the unlawful
language.17 The notice will provide for the rescission of the
offending language.
13. Summary
As is reflected above, I recommend dismissal of the follow-
ing paragraphs of the complaint: 5(b), (c), (d), (f), (g), (h), (i)
(1), (3), (4), and (6), (k), (l), (m)(1) and (2), (n), (p)(1) and (2),
(q), (r), (s), (t), (u), (v)(1) and (2); and 6(c) and (g).
Further, I find that the Respondent has violated Section
8(a)(1) of the Act as alleged in paragraphs 5(a), (e), (i)(2), (5),
and (w) of the complaint. Also, I find that the Respondent has
violated Section 8(a)(1) and (3) of the Act as alleged in para-
graphs 6(b), (d), and (e) of the complaint.

16 While I conclude that the mere existence of the language in ques-
tion is unlawful, it is worth noting that the timing of the clause is highly
suspect. The new eligibility language was added in the January 2001
benefits books. This was shortly after the petition was filed covering
the Kingman TLE, and, according to various references at the hearing,
at approximately the same time the International Union was engaged in
organizing efforts at a number of the Respondent’s facilities.
17 See Kinder-Care Learning Centers, 299 NLRB 1171, 1171 and
fn. 1, 1176(1990); La Quinta Motor Inns, 293 NLRB 57, 57, 62,
(1989). See also Raley’s Inc., 311 NLRB 1244, 1244 fn. 2, 1252
(1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD850
Paragraphs 5(j)(1) and (2) and 6(a) of the complaint were
withdrawn at the hearing. In his posthearing brief, counsel for
the General Counsel seeks permission to withdraw paragraph
5(o) of the complaint. I grant that motion.
CONCLUSIONS OF LAW
1. The Respondent, Wal-Mart Stores, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Local Union, United Food and Commercial Workers
Union, Local Union 99R, AFL–CIO, CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The International Union, United Food and Commercial
Workers International Union, AFL–CIO, CLC, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
4. By the following acts and conduct the Respondent has
violated Section 8(a)(1) of the Act.
(a) Promulgating, maintaining and distributing in its em-
ployee benefits books a clause which threatened employees
who supported the Local Union, or any labor organization, with
loss of their company benefits.
(b) Engaging in surveillance, or creating an impression of
surveillance, of its employees’ union and other concerted ac-
tivities.
(c) Granting benefits and improved working conditions in
order to discourage its employees from supporting the Local
Union.
(d) Threatening its employees with a loss of merit raises for
supporting the Local Union.
5. By the following acts and conduct the Respondent has
violated Section 8(a)(1) and (3) of the Act.
(a) Discriminatorily and disparately applying and enforcing
its nonharassment policies to the detriment of employees who
supported the Local Union.
(b) Discharging its employee Brad Jones.
(c) Denying its employee Brad Jones COBRA coverage.
6. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not committed the other violations of
law that are alleged in paragraphs 5(b), (c), (d), (f), (g), (h),
(i)(1), (3), (4), and (6), (k), (l), (m)(1) and (2), (n), (p)(1) and
(2), (q), (r), (s), (t), (u), (v)(1) and (2); and 6(c) and (g) of the
complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.18

18 In its complaint, the General Counsel requests as part of the rem-
edy, an order requiring the Respondent’s corporate officers found to
have committed unfair labor practices to, “on an individually-named
basis,” cease and desist from engaging in such unlawful conduct. This
I decline to do. While the unfair labor practices found to have been
committed are serious violations of the law, they do not require the
kind of extraordinary remedy requested by the General Counsel. The
standard order and notice utilized by the Board should be adequate to
remedy the violations of the Act committed by the Respondent.
The Respondent must amend its employee benefits books,
and any similar publications, to rescind the clause which ex-
cludes union-represented employees from benefit eligibility,
unless it makes it clear that the union-represented employees’
benefits are provided for through the collective-bargaining
process, and that union-represented employees will remain
eligible for benefits during bargaining.
The Respondent shall apply and enforce its nonharassment
policies in a fair and impartial manner so as not to discriminate
to the detriment of supporters of the Local Union.
The Respondent having discriminatorily discharged its em-
ployee Brad Jones, my recommended order requires the Re-
spondent to offer him immediate reinstatement to his former
position, displacing if necessary any replacement, or if his posi-
tion no longer exists, to a substantially equivalent position,
without loss of seniority and other privileges. My recom-
mended order further requires the Respondent to make Jones
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of his discharge to the date the
Respondent makes a proper offer of reinstatement to him, less
any net interim earnings as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
The Respondent having discriminatorily denied Jones
COBRA benefits at the time of his discharge, my recommended
order also requires the Respondent to make Jones whole for any
out of pocket medical expenses and costs he may have incurred
as a result be being unlawfully denied medical insurance cover-
age. This shall include interest as computed in New Horizons,
supra.
The recommended order further requires the Respondent to
expunge from its records any reference to the discharge of
Jones, and to provide him with written notice of such expunc-
tion, and inform him that the unlawful conduct will not be used
as a basis for further personnel actions against him. Sterling
Sugars, Inc., 261 NLRB 472 (1982). Further, the Respondent
must not make reference to the expunged material in response
to any inquiry from any employer, employment agency, unem-
ployment insurance office, or reference seeker, or use the ex-
punged material against Jones in any other way. Finally, the
Respondent shall be required to post a notice that assures the
employees that it will respect their rights under the Act.19
[Recommended Order omitted from publication.]
Paul Irving, Esq., for the General Counsel.
Steven D. Wheeless, Esq., of Phoenix, Arizona, for the Respon-
dent.
David Rosenfeld, Esq. and Caren P. Sencer, Esq., of Alameda,
California, for the Charging Parties.

19 Specifically, the Respondent shall be required to post two separate
notices. One notice shall be posted at the Kingman facility, which will
deal with the unfair labor practices committed at that location only. A
separate notice shall be posted at the Respondent’s other facilities na-
tionwide where employees received copies of the Respondent’s em-
ployee benefits books for the years 2001 or 2002.
WAL-MART STORES 851
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. On
February 28, 2003, following a 13-day hearing, I issued a deci-
sion in the above-captioned matters. In that decision, I found
that Wal-Mart Stores, Inc. (the Respondent, the Employer, or
Wal-Mart) had, by it actions, violated Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act), as alleged in certain
paragraphs of a consolidated complaint issued by the Regional
Director for Region 28 of the National Labor Relations Board
(the Board). I recommended to the Board that Wal-Mart be
required to take certain remedial and other action in order to
remedy its unfair labor practices. I also found that Wal-Mart
had not violated the Act as alleged in other paragraphs of the
complaint, and recommended that those portions of the com-
plaint be dismissed. Both the General Counsel and Wal-Mart
filed timely exceptions with the Board to my decision. How-
ever, no exceptions were filed by the United Food and Com-
mercial Workers Union, Local Union 99R, CLC or by the
United Food and Commercial Workers International Union,
CLC, the Charging Parties in these matters (the Charging Par-
ties or the Unions).
In an Order Severing and Remanding and Notice to Show
Cause issued on July 6, 2005, the Board, among other actions,
granted a motion by counsel for the General Counsel and sev-
ered Case 28–CA–17141 from the other charges in the consoli-
dated complaint that were heard at trial.1 Further, the Board’s
Order directed the parties to address the issue of whether the
Respondent’s production of certain documents and files in an
unrelated state court proceeding should not be found to consti-
tute a waiver of the attorney-client privilege.
In my original decision in this case, I found that certain
documents maintained by the Respondent and referred to as the
“remedy system” documents were protected from disclosure
through a subpoena duces tecum as attorney-client privileged
information. During the trial, I orally granted a motion from
the Respondent and revoked in part subpoenas issued on behalf
of the General Counsel and Charging Parties seeking remedy
system documents. Thereafter, I reiterated that ruling in writ-
ing in my original decision. As one of his exceptions to the
Board, counsel for the General Counsel challenged my ruling
as to the attorney-client privilege.
In an Order Remanding dated September 29, 2006, the Board
addressed the attorney-client privilege issue. Wal-Mart Stores,
Inc., 348 NLRB 833 (2006). The Board concluded that it was
“unnecessary for [it] to decide whether [my] ruling was cor-
rect,” because by its actions in the State court proceeding [that
being its production of the remedy system documents], the
Respondent [could] no longer assert the privilege that it once
claimed over the Remedy system documents. . . .”
The Board, having found that the attorney-client privilege
was “waived,” concluded that it was “entirely possible that the

1 At the supplemental hearing, I granted counsel for the General
Counsel’s motion, opposed by counsel for the Charging Parties, to
remove Case 28–CA–17141 from the combined caption of these mat-
ters, as the Board had severed that case from the others remaining be-
fore me.
[remedy system] documents and files contain information rele-
vant to the exceptions that the General Counsel and the Re-
spondent filed with the Board.” Accordingly, the Board re-
versed my ruling quashing the subpoenas, and remanded this
proceeding to the undersigned “to reopen the record to receive
relevant evidence and make findings with respect thereto . . .
and tak[e] further appropriate action.”
Supplemental Evidence
Pursuant to the Board’s Remand Order, I conducted a sup-
plemental hearing in this case in Phoenix, Arizona, on Novem-
ber 30, 2006, and February 1, 2007. All parties appeared at the
supplemental hearing, and I provided them with the full oppor-
tunity to participate, to introduce relevant evidence, to examine
and cross-examine witnesses, and to argue orally and file briefs.
Based upon the record, my consideration of the briefs filed by
counsel for the General Counsel, counsel for the Charging Par-
ties, and counsel for the Respondent, and my observation of the
demeanor of the witnesses,2 I now make the following findings
of fact and conclusions of law.3
I. THE SUBPOENAED REMEDY SYSTEM DOCUMENTS
A. Compliance with the Subpoena
As was set forth in my original decision in this case, at the
time of the events in question, the Employer utilized a “union
hotline” system. This system was established so that managers
throughout the country can report union activity to headquarters
and, in return, receive guidance from labor relations specialists
and legal advice from the Employer’s legal team, both in-house
and outside counsel. The flow of information back to store
managers is referred to as the “remedy system.” (See p. 5, fn. 4
of ALJD.)
At the reopened hearing, I ordered the Employer to produce
remedy system documents for the period of January 1, 2000
through September 13, 2002, which were in any way related to
the Charging Parties’ union campaign or the union activity of
any of Wal-Mart’s employees at the Employer’s store in King-
man, Arizona. Further, I directed the Employer to produce an
appropriate employee, who could testify regarding the efforts to
gather these documents, and the sources from which they were
obtained. Also, I directed the Employer to produce a witness
who could testify substantively about the information contained
in the remedy system documents.
Initially, when the parties discussed this issue, it was con-
templated that the Employer would produce an employee from
its information technology (IT) department, who could testify
as to the efforts to gather the documents and the sources from

2 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
3 Counsel for the General Counsel’s unopposed Motion to Correct
the Record is hereby granted. The record is corrected as is reflected in
said motion, which is admitted into evidence as GC Exh. 57.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD852
which they were obtained. Further, the Employer indicated that
the best witness to testify substantively about the documents
was Vicky Dodson, currently a director of human resources for
the Employer, who had testified at length at the original hearing
about the events surrounding the organizational campaign.
However, the Employer did not produce an employee from
its IT department. Rather, it offered the testimony of Cathy
Davis, employed as a paralegal with the Employer’s employ-
ment division. Davis had been given the assignment of gather-
ing the subpoenaed remedy system documents. She testified at
length under examination by counsel for the General Counsel
and to a lesser extent by counsel for the Unions and counsel for
the Employer about her efforts to locate and assemble the sub-
poenaed documents. In my opinion, these efforts can only be
described as exhaustive.
Davis testified that the remedy system documents are created
and maintained in an electronic database known as the “info-
trac.” She queried that database for all Kingman related rem-
edy system reports for the relevant time period and produced all
such records. They were admitted into evidence as General
Counsel Exhibit 50, consisting of 84 pages. In an effort to
locate any other related relevant documents, she interviewed 15
individuals who had been employed by the Employer in the
labor relations department during the time period in question.
She asked them to search their individual computer hard drives
and their individual hard-copy files for any relevant documents.
Davis testified that she personally reviewed over “ten thou-
sand” documents on the Employer’s labor relations general
electronic server and produced all responsive documents.
As testified to by Davis, in May of 2005, the FBI and the
U.S. Attorney, apparently pursuant to a subpoena in a criminal
case, removed all the hard-copy labor relations files from the
Employer’s labor relations library. Therefore, those files were
no longer available for Davis to search.4 In any event, she testi-
fied that over 40 hours of her time were devoted to the search
for the subpoenaed documents. In all, she was able to produce
a significant number of documents, which consisted of not only
the remedy system documents themselves, but also summaries
of those documents. (GC Exhs. 50–55.)
I found Davis to be a conscientious, credible witness. She
clearly made an exhaustive search for any remedy system and
related records connected with the organizing campaign for the
period of time in question. Her credibility was not seriously
challenged by any party, and there was absolutely no basis for
concluding other than her testimony was credible.
While counsel for the General Counsel does not challenge
Davis’ credibility, he strenuously questions the adequacy of the
Employer’s production of remedy system documents. He is of
the belief that Davis was not competent to make an adequate
search for the subpoenaed documents, and that instead of
Davis, a more “appropriate employee” from the IT department
should have been produced, as “custodian” of the documents.

4 In his posthearing brief, counsel for the Unions requested that the
hearing be continued until such time as the files subpoenaed and re-
moved by the FBI and U.S. Attorney could be returned to the Employer
and, as relevant, produced for this proceeding. I will address counsel’s
request later in this decision.
It is his position that the Employer has not fully complied with
the subpoena and that, therefore, the hearing should be re-
opened for the testimony of a “competent” witness regarding
the production of the remedy system documents. Further, he
requests that the undersigned order the production of the sub-
poenaed documents in “electronic format,” as that is how they
are apparently stored.
The production of records pursuant to any subpoena duces
tecum naturally requires that the records be accompanied by a
competent witness, who can testify about the gathering of the
records, as obviously, the records cannot speak for themselves.
Such an individual is frequently referred to as the “custodian”
of the documents. However, in fact the person who accompa-
nies the records is rarely the physical custodian of the docu-
ments. I am unaware of any case authority as would require the
party whose records are subpoenaed to produce the “most”
knowledgeable person possible. An employer must, of course,
make a good-faith effort to comply with the subpoena. I am
convinced that this Employer has done so.
In fact, Davis may have been the most appropriate person to
have accompanied the records. She is an intelligent, articulate
paralegal, who spent in excess of one full workweek searching
for and gathering the subpoenaed records. Even assuming for
arguments sake that she was not initially knowledgeable about
the remedy system and related documents when she was first
assigned the job of locating the subpoenaed records, she was
undoubtedly extremely knowledgeable when she completed the
task. Contrary to the arguments of counsel for the General
Counsel, there is no evidence that any employee in the IT de-
partment would have been more knowledgeable or more appro-
priate as a witness than Davis.
There is no requirement that a subpoenaed party produce re-
cords in an electronic format, even if the documents were
stored in such a fashion. The Employer has produced the rem-
edy system and related records in printed hard-copy form.
Under the circumstances, this is certainly reasonable. Counsel
for the General Counsel apparently wants to see the records in
an electronic format because he is skeptical that the Employer
is fully complying with the subpoena. Counsel’s skepticism
may never be satisfied when it comes to this Employer. In any
event, satisfying counsel’s skepticism is not the standard re-
quired. What is required is that the Employer has made a good-
faith effort to comply with the subpoena and, in fact, be in sub-
stantial compliance with the subpoena, to the extent that is pos-
sible. Having heard Davis’ testimony, and well as that of the
subsequent witness Vicky Dodson, I am of the view that the
Employer has done so.
Accordingly, I am reiterating the ruling that I made at the
supplemental hearing, and I am declining to reopen the hearing
yet again for the purpose of requiring the Employer to produce
an employee of its IT department and/or to require the Em-
ployer to produce the subpoenaed documents in an electronic
format. I find that the Employer has complied with the sub-
poena to the extent required by the Board’s Order Remanding.
B. Contents of the Subpoenaed Documents
As noted above, Vicky Dodson testified substantively about
the contents of the remedy system and related documents. She
WAL-MART STORES 853
testified at length under examination by counsel for the General
Counsel, and briefly under questioning by counsel for the Un-
ions. At the original hearing in this case, I found Dodson to be
an intelligent, articulate, sophisticated individual, who was a
well-trained labor relations professional. (See p. 10 of ALJD.)
As I did at the earlier hearing, I continue to find her credible.
She is a sincere, thoughtful witness who testifies candidly and
truthfully without trying to embellish or exaggerate on behalf of
her employer.
I have carefully reviewed each page of the subpoenaed rem-
edy system and related documents. (GC Exhs. 50–55.) For the
most part, the remedy system documents were daily reports
from Dodson or other members of her labor relations team from
Arkansas or to a lesser extent other management representa-
tives, made to the Employer’s headquarters in Arkansas. As
was represented by the Employer at the original hearing, the
contents of these documents involved the Employer’s efforts to
defeat the Unions’ organizing campaign. There were frequent
references to various employees and their sympathies, either
pro or antiunion. However, rarely were employee names used,
but rather descriptions such as what department they worked in
or some other personal information were used as references.
The remedy system documents specifically portray the Em-
ployer’s efforts to convince its employees in the Kingman,
Arizona store that they do not need union representation.
While the Employer’s efforts are directed primarily towards the
employees in the petitioned for TLE5 unit, there were also ef-
forts made at various times to influence the store employees in
general.6 Various management representatives, including
Kingman store, regional, and headquarters’ employees are spe-
cifically named and their individual efforts to defeat the Unions
are documented.
In general, I found the subpoenaed documents to be “anti-
climatic.” I saw nothing new or particularly revealing in the
many pages of documents. While counsel for the General
Counsel would likely argue that this must mean that the Em-
ployer is hiding more revealing documents, I conclude nothing
of the sort. The documents are what they purport to be, and
nothing more. I see no “smoking gun,” as there are no ex-
pressed, overt, documented unfair labor practices in the many
pages of subpoenaed records. Frankly, after reviewing the
remedy system and related documents several times, I am left
with the impression that all the efforts on the part of the Gen-
eral Counsel to obtain these documents and the efforts in oppo-
sition by the Employer have amounted to “Much Ado About
Nothing.”7 As to any implied references to unfair labor prac-
tices in the documents, the parties were free to argue such con-
tentions in their respective posthearing briefs.
C. The Subpoenaed Documents and the Outstanding
Exceptions to the ALJ’s Decision
The General Counsel and the Employer filed timely excep-
tions to my original decision in this case. The Unions, how-

5 The acronym TLE stands for Tire, Lube, and Express.
6 The petitioned for unit of TLE employees was opposed by the Em-
ployer, which took the position that the only appropriate unit was that
comprised of all Kingman store employees.
7 A comedy by William Shakespeare first published in 1600.
ever, filed no exceptions. The General Counsel’s one substan-
tive exception concerned my conclusion that the transfer of
Kingman Store Manager Mike Buckner was not made in re-
sponse to employee complaints or to improve their working
conditions in an effort to influence their votes.8 I dismissed this
complaint allegation.
The Employer’s remaining five exceptions concerned my
finding that it had violated the Act by: (1) engaging in surveil-
lance of its employees’ union activity, (2) granting benefits and
improved working conditions in order to discourage its em-
ployees from supporting the Local Union, (3) threatening its
employees with a loss of merit raises for supporting the Local
Union, (4) discriminatorily and disparately applying and en-
forcing its nonharassment policies to the detriment of employ-
ees who supported the Local Union, and (5) discharging and
denying COBRA benefits to its employee Bradley Jones.9
As I have emphasized above, I was unimpressed with the
substantive value of the subpoenaed material. My review of the
remedy system documents revealed no significant probative
evidence that was not known by the parties at the time the
original hearing was concluded. Both counsel for the General
Counsel and counsel for the Employer appear to be “grasping at
straws” in implying that information in the subpoenaed docu-
ments supports their respective positions on the outstanding
exceptions to my decision. As far as I am concerned, the ar-
guments they now raise in their respective postsupplemental
hearing briefs as to remedy system documents simply serve as
an excuse for them to “rehash” all the old arguments that they
made at the conclusion of the original hearing, or in their origi-
nal briefs.10
In support of their respective positions on the outstanding
exceptions, counsel for the Employer and counsel for the Gen-
eral Counsel use the remedy system documents by way of con-
jecture and supposition. There was no significant probative
evidence offered by either party in support of their positions
that was not previously known. Both counsels are diligent in
defense of their clients’ interest, and they demonstrate a natural
instinct to “leave no stone unturned.” However, what is now
offered as new probative evidence is nothing more than the
illusion of such.
The questioning of the two witnesses, Cathy Davis and
Vicky Dodson, was limited by the undersigned to the issue of
the adequacy of the production of the subpoenaed documents,
and to the substantive issue concerning the exception to my

8 The other exceptions filed by the General Counsel concerned my
ruling that the remedy system documents were protected from sub-
poena by the attorney-client privilege.
9 Originally, the Employer also filed an exception to my finding of a
violation of the Act by its language in its associates benefit book.
However, that allegation in the consolidated complaint was subse-
quently settled in an agreement between the Employer and the General
Counsel, with the Board ordering the charge covering that allegation
severed from the remainder of the case.
10 In their postsupplemental hearing brief, counsels for the Charging
Parties did not offer any specific remedy system documents as evidence
in support of, or against, any outstanding exception. However, in the
next section of this decision, I will specifically address the positions
taken by counsels for the Charging Parties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD854
finding that the transfer of Store Manager Mike Buckner did
not constitute a violation of the Act. I heard no testimony from
either witness, which would constitute significant probative
evidence not previously known.
As no party has offered any new substantive, probative evi-
dence based on the subpoenaed documents or the testimony of
Cathy Davis or Vicky Dodson, I conclude that there is no basis
for me to alter any of my findings of fact or conclusions of law
as set forth in my original decision in this case. Accordingly, I
hereby reiterate my recommended Order dismissing certain
paragraphs in the consolidated complaint and finding that other
paragraphs have merit and establish violations of the Act, as set
forth in my original decision in this case dated February 28,
2003.
Counsel for the General Counsel vigorously objected to my
ruling limiting his questioning of Vicky Dodson to only those
matters relevant to the one outstanding exception filed by the
General Counsel, that being the transfer of Store Manager Mike
Buckner. I specifically precluded counsel for the General
Counsel from questioning Dodson or other witnesses regarding
any of the outstanding exceptions filed by the Employer.
Counsel argued that this constituted a denial of due process, as
such evidence was contemplated in the Board’s Remand Order.
To begin with, it should be noted that at the supplemental
hearing counsel for the Employer offered no evidence in sup-
port of any of his outstanding exceptions. The two witnesses
were called by the General Counsel and counsel for the Em-
ployer asked them no substantive questions regarding any of
the outstanding exceptions. Counsel for the Employer did indi-
cate at the hearing his intention of arguing his position on the
outstanding exceptions in his posthearing brief, which he sub-
sequently did.
As I have said, I did not find any significant probative evi-
dence in either the subpoenaed material or the testimony of the
two witnesses, which was not previously known. As such,
there was no reason to allow further witness testimony. The
Board’s Remand Order directed me to “reopen the record to
receive relevant evidence and make findings with respect
thereto.” (Emphasis added.) While the remedy system and
related documents were admitted into evidence, the information
contained therein was neither significant nor probative. There-
fore, further inquiry regarding that evidence would not be rele-
vant. In any event, I did not preclude any party from making
any argument desired on the outstanding exceptions in respec-
tive posthearing briefs. I only precluded the parties from offer-
ing further witness testimony on matters that I concluded were
not relevant under the provisions of the Remand Order.
As the administrative law judge conducting the hearing, I
have the responsibility of managing the hearing. As such, I
must decide whether further evidence is warranted. Based on
the contents of the remedy system and related documents, I
decided that such further evidence was not warranted. This
does not constitute a denial of due process.
Counsel for the Charging Parties and, to a lesser extent,
counsel for the General Counsel seem to be of the opinion that
this case should go on in perpetuity. However, I am of the
belief that based on the Board’s Remand Order the supplemen-
tal hearing was quite limited in its scope. Having given all
parties the opportunity to view the subpoenaed documents,
ultimately having received them into evidence, and having
given the parties the opportunity to question two witnesses
about those documents, due process was provided to the parties
in accordance with the Board’s Remand Order. Due process
does not require that a party be permitted to question witnesses
endlessly about irrelevant information. To have further pro-
tracted this proceeding would, in my opinion, have been an
unwarranted waste of the time and resources of all parties.
II. THE UNIONS’ ARGUMENTS AND ACTIONS
For the reasons that I noted earlier, I believe the Board’s
Remand Order contemplated a rather limited supplemental
hearing. After all, 4 years ago the parties spent 13 days litigat-
ing this case. At the time of the original hearing, the Charging
Parties were represented by a different lawyer. Rosenfeld and
Sencer were not involved in that earlier proceeding. In any
event, based on certain statements made and positions taken by
Rosenfeld at the supplemental hearing and in his posthearing
brief, I have come to the conclusion that the Charging Parties’
“agenda” in this case is far removed from the limited hearing
contemplated by the Board.
Rosenfeld’s feelings about this case, the Board, and the Em-
ployer were not subtly displayed. His remarks were direct and
unambiguous. On the record, he referred to the Board as “the
Bush Labor Board,” the Agency as a “dying agency,” and the
Employer as a “terrorist.” His interest in this case clearly did
not include a speedy adjudication of the outstanding issues
before the undersigned. As he candidly admitted, “I don’t care
if this case delays for three years because . . . if I delay three
years, I’m likely to see another Clinton Board and I’ll get a
more successful reception to this case than I will before the
current Bush Board and delay is only in our favor for that rea-
son.”
As I informed Rosenfeld on the record, it is my duty to care
about a speedy adjudication of these issues. The rights of all
the parties required a resolution of these outstanding issues,
which had originally been heard by the undersigned over 4
years ago. All parties suffer when “justice delayed is justice
denied.” That included the Employer’s employees, most par-
ticularly Brad Jones, the discharged employee ordered rein-
stated with backpay by the undersigned. Further, I suggested to
Rosenfeld that his interest seemed to be in creating a “cause
celebre,” to try the Employer for all the perceived wrongs ever
committed against its employees, rather than to simply litigate
the outstanding issues in this case. I informed him that I was
not going to permit him to do this, and in so doing to turn the
supplemental hearing into a “circus.”
On November 20, 2006, prior to the commencement of the
supplemental hearing, Rosenfeld issued a subpoena duces te-
cum to the Employer seeking 52 separate document categories.
(CP Exh. 5, Subpoena No. B-468066.) The Employer filed a
timely petition to revoke that subpoena. (CP Exh. 5.) In his
petition, counsel for the Employer refers to the Union’s sub-
WAL-MART STORES 855
poena as a “blunderbuss.”11 I agree with that characterization.
The subpoena calls for the production of massive numbers of
documents far outside the scope of the Board’s Remand Order.
Most of the documents it seeks are not even remotely related to
the remaining issues before the undersigned. In my opinion it
constitutes the ultimate “fishing expedition,” apparently in-
tended to obtain documents that can be used in other forums
where the Unions and the Employer are engaged in litigation. I
did not view the subpoena as a serious effort to obtain docu-
ments relevant only to the remaining issues in this case.
At the hearing, I granted the Employer’s petition to revoke
and quashed the Unions’ subpoena as “incredibly burdensome,
oppressive, and . . . not particularly relevant.” I informed
Rosenfeld that he was not precluded “from issuing an addi-
tional subpoena that [was] more reasonable in scope and more
germane to the issues before us.” However, the Unions issued
no further subpoena duces tecum.
Counsel for the Unions, Rosenfeld, did at one point in the
hearing mention an interest in issuing a subpoena for Tom
Coughlin, who was formerly the Employer’s vice chairman. I
characterized the idea of issuing a subpoena for Coughlin as
“silly.” Later, counsel for Unions, Sencer, again mentioned a
desire to have Coughlin testify. I made it clear to counsel that I
would not permit Coughlin to testify as such testimony would
not be relevant under the parameters of the Board’s Remand
Order. Coughlin’s involvement in this case, consisting of a trip
to Kingman during the organizing campaign, was fully dis-
closed and discussed during the original hearing. Extensive
testimony was taken about Coughlin’s activities at the store,
including his conversations with various managers and meeting
with employees. No party sought to subpoena Coughlin during
the original hearing. The Unions’ interest in now having
Coughlin testify is untimely and inappropriate. I have seen no
evidence in the remedy system and related documents as would
constitute new probative evidence concerning Coughlin’s in-
volvement in the issues remaining before the undersigned.
I expressed to Sencer my view that the Unions’ interest in
having Coughlin testify went “way beyond the confines of this
hearing.” My suspicions were reinforced by Sencer’s request
to have admitted into evidence a judgment in a criminal case
filed against Coughlin in the U.S. District Court for the West-
ern District of Arkansas, as well as numerous articles from
various newspapers and periodicals concerning Coughlin’s
alleged criminal activity. Those documents were in no way
related to the limited issues still before the undersigned pursu-
ant to the Board’s Remand Order. Instead, they were clearly
intended to try and embarrass the Employer, and to suggest in
some general way that the Employer was antiunion and en-
gaged in a national campaign to defeat union organizing by
committing unfair labor practices. I sustained counsel for the

11 A blunderbuss is defined as, “an old-fashioned, short gun with
large bore and flaring mouth, used for scattering shot at close range.”
See Funk & Wagnalls’ Standard College Dictionary.
Employer’s objection to the admission of these documents into
evidence, as constituting irrelevant material.12
As part of the Unions’ efforts to transform this case from its
limited scope under the Remand Order into something with
national implications, counsel for the Unions, Rosenfeld, re-
ferred to the Employer as a recidivist employer, where a “broad
remedy,” a “nationwide remedy was appropriate.” He took the
position that the Board’s earlier severance of that portion of the
consolidated complaint dealing with the Employer’s associates
benefit book language was inappropriate, and that the Board
should reverse itself.13 As counsels for the Unions make clear
in their postsupplemental hearing brief, not only are they asking
for a nationwide notice posting, but they also request an intra-
net posting throughout the Employer’s companywide intranet
system.
As I explained to all parties at the supplemental hearing,
whatever nationwide implications may have originally existed
in this case were due only to the issue of the Employer’s asso-
ciates benefit book language, which had been distributed to
employees nationwide. However, that portion of the consoli-
dated complaint was previously severed by the Board. What
remains before the undersigned is an 8(a)(1) and (3) case lim-
ited to those events that occurred at the Employer’s store in
Kingman, Arizona. While these are, of course, very significant
and important issues to all parties and to the employees in-
volved, they are issues that arose in the exclusive confines of
the Unions’ organizational campaign at the Kingman store. In
my view, there is no basis for any extraordinary remedy, such
as a nationwide notice posting or a posting on the Employer’s
intranet system. Further, the unfair labor practices found by the
undersigned do not warrant “broad remedial language.”14
The scope of the Board’s Remand Order is limited. Those
issues have been addressed in the supplemental hearing. As
indicated above, I have concluded there is no basis to alter the
findings of fact and conclusions of law that I issued in my
original decision in this case. Further, I see no reason to alter
the recommended remedy that I set forth in that decision. Ac-
cordingly, I decline to order the extraordinary remedy requested
by the Unions.
In their postsupplemental hearing brief, counsels for the Un-
ions ask that “the decision in this case [ ] be postponed until
Wal-Mart produces the labor relations records which were
taken by the FBI.” Also, they state that “[t]he charging party is
willing to wait until the labor relations records have been re-
turned by the Federal Bureau of Investigation to Wal-Mart.”
This, of course, confirms the candid statements of Rosenfeld
that he does not care about a delay in the case, as with a delay
he hopes to “get a more successful reception to this case than I

12 At the request of counsel for the Unions, I agreed to have these
documents placed in a rejected exhibit file to accompany the transcript
as CP Exhs. 6–7.
13 I had previously ordered as part of a remedy for that specific vio-
lation of the Act a nationwide notice posting. (See original ALJD.)
14 In any event, no party filed any exception seeking an extraordinary
remedy, beyond what I recommended in my original decision. Accord-
ingly, this issue is not contemplated by the Board’s Remand Order, and
is not technically before me.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD856
will before the current Bush Board and delay is only in our
favor for that reason.”
In my opinion, there is no basis for any further delay. Well
over 4 years have passed since this case was originally heard.
The remedy system and related documents have been admitted
into evidence. I saw nothing in those documents as would war-
rant altering my original findings of fact and conclusions of
law. Further, there is no reasonable expectation that the docu-
ments seized by the FBI would, if available, produce any new
relevant evidence.
At some point all litigation must end. No litigation goes on
indefinitely. In my view, due process has been provided to all
parties in this case, and all relevant available evidence has now
been received and considered. No useful purpose would be
served by further delay.
[Recommended Order omitted from publication.]