Wal-Mart Stores, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 30, 2007

28-CA-016832 (N.L.R.B. Mar. 30, 2007)

JD(SF)-09-07
Kingman, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
WAL-MART STORES, INC.
and Case 28-CA-16832
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL UNION 99R,
CLC
and Cases 28-CA-17774
28-CA-17774-2
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION, CLC
Paul Irving, Esq., Phoenix, AZ, for the
General Counsel.
Steven D. Wheeless, Esq., Phoenix, AZ,
for the Respondent.
David Rosenfeld, Esq., and Caren P. Sencer,
Esq., Alameda, CA, for the Charging Parties.
SUPPLEMENTAL DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. On February 28, 2003, following a
13 day hearing, I issued a decision 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 complaint be dismissed. Both the
General Counsel and Wal-Mart filed timely exceptions with the Board to my decision. However,
no exceptions were filed by the United Food and Commercial 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 Parties or the Unions).
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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
severed Case 28-CA-17141 from the other charges in the consolidated 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 constitute 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 writing 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 No. 46 (2006). The Board concluded
that it was “unnecessary for [it] to decide whether [my] ruling was correct,” 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 [Remedy System] documents and files contain information
relevant to the exceptions that the General Counsel and the Respondent filed with the Board.”
Accordingly, the Board reversed 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 supplemental hearing in this case
in Phoenix, Arizona, on November 30, 2006 and February 1, 2007. All parties appeared at the
supplemental hearing, and I provided them with the full opportunity to participate, to introduce
relevant evidence, to examine and cross-examine witnesses, and to argue orally and file briefs.
Base upon the record, my consideration of the briefs filed by counsel for the General Counsel,
counsel for the Charging Parties, 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

1 At the supplemental hearing, I granted counsel for the General Counsel’s motion, opposed
by counsel for the Charging Parties, to remove Case Number 28-CA-17141 from the combined
caption of these matters, as the Board had severed that case from the others remaining before
me.
2 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 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 unworthy of belief.
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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 Kingman, 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 contemplated 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 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 employment
division. Ms. Davis had been given the assignment of gathering 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 subpoenaed 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
Remedy 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
thousand” documents on the Employer’s labor relations general electronic server and produced
all responsive documents.
_________________________
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. Ex. 57.
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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 testified 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. Ex. 50-55.)
I found Ms. 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. It is his position
that the Employer has not fully complied with the subpoena and that, therefore, the hearing
should be reopened 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 subpoenaed 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 can not speak for themselves. Such an individual is
frequently referred to as the “custodian” of the documents. However, in fact the person who
accompanies the records is rarely the physical custodian of the documents. 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, Ms. 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 work week
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 department would
have been more knowledgeable or more appropriate as a witness than Ms. Davis.
There is no requirement that a subpoenaed party produce records in an electronic
format, even if the documents were stored in such a fashion. The Employer has produced the
Remedy 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

4 In his post-hearing brief, counsel for the Unions requested that the hearing be continued
until such time as the files subpoenaed and removed 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.
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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 required. What is required is that the
Employer have made a good faith effort to comply with the subpoena and, in fact, be in
substantial compliance with the subpoena, to the extent that is possible. Having heard
Ms. 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 Employer to produce the subpoenaed
documents in an electronic format. I find that the Employer has complied with the subpoena 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 testified at length under examination by counsel for the
General Counsel, and briefly under questioning by counsel for the Unions. At the original
hearing in this case, I found Ms. 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 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 Remedy System and related
documents. (GC. Ex. 50-55.) For the most part, the Remedy System documents were daily
reports from Ms. Dodson or other members of her labor relations team from Arkansas or to a
lesser extent other management representatives, 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 anti union.
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 Employer’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 efforts made at various times to influence the store employees in general.6 Various
management representatives, including Kingman store, regional, and headquarters employees
are specifically named and their individual efforts to defeat the Unions are document.
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 Employer 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 expressed, 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 General Counsel to obtain these documents and the efforts in opposition by the

5 The acronym TLE stands for Tire, Lube, and Express.
6 The petitioned for unit of TLE employees was opposed by the Employer, which took the
position that the only appropriate unit was that comprised of all Kingman store employees.
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Employer have amounted to “Much Ado About Nothing.”7 As to any implied references to unfair
labor practices in the documents, the parties were free to argue such contentions in their
respective post-hearing briefs.
C. The Subpoenaed Documents and the Outstanding Exceptions to the ALJ’s Decision
The General Counsel and the Employer filed timely exceptions to my original decision in
this case. The Unions, however, filed no exceptions. The General Counsel’s one substantive
exception concerned my conclusion that the transfer of Kingman store manager Mike Buckner
was not made in response 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 5 exceptions concerned my finding that it had violated the Act
by: 1. engaging in surveillance of its employees’ union activity; 2. granting benefits and
improved working conditions in order to discourage its employees 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 enforcing its non-harassment policies to the
detriment of employees 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 documents supports their
respective positions on the outstanding exceptions to my decision. As far as I am concerned,
the arguments they now raise in their respective post-supplemental 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 original briefs.10
In support of their respective positions on the outstanding exceptions, counsel for the
Employer and counsel for the General Counsel use the Remedy System documents by way of
conjecture 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.

7 A comedy by William Shakespeare first published in 1600.
8 The other exceptions filed by the General Counsel concerned my ruling that the Remedy
System documents were protected from subpoena 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 subsequently 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 post-supplemental 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.
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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 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 evidence 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 Ms. 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 support of any of his outstanding exceptions. The two
witnesses were called by the General Counsel and counsel for the Employer asked them no
substantive questions regarding any of the outstanding exceptions. Counsel for the Employer
did indicate at the hearing his intention of arguing his position on the outstanding exceptions in
his post-hearing brief, which he subsequently did.
As I have said, I did not find any significant probative evidence 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. Therefore,
further inquiry regarding that evidence would not be relevant. In any event, I did not preclude
any party from making any argument desired on the outstanding exceptions in respective post-
hearing briefs. I only precluded the parties from offering 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 supplemental 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
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permitted to question witnesses endlessly about irrelevant information. To have further
protracted 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, four years ago the parties spend 13 days
litigating this case. At the time of the original hearing, the Charging Parties were represented by
a different lawyer. Mr. Rosenfeld and Ms. Sencer were not involved in that earlier proceeding.
In any event, based on certain statements made and positions taken by Mr. Rosenfeld at the
supplemental hearing and in his post-hearing 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.
Mr. Rosenfeld’s feelings about this case, the Board, and the Employer 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 reason.”
As I informed Mr. 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 four years ago. All
parties suffer when “justice delayed is justice denied.” That included the Employer’s employees,
most particularly Brad Jones, the discharged employee ordered reinstated with back pay by the
undersigned. Further, I suggested to Mr. 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,
Mr. Rosenfeld issued a subpoena duces tecum to the Employer seeking 52 separate document
categories. (CP. Ex. 5, subpoena no. B-468066.) The Employer filed a timely petition to revoke
that subpoena. (CP. Ex. 5.) In his petition, counsel for the Employer refers to the Union’s
subpoena 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
intended 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
documents relevant only to the remaining issues in this case.

11 A blunderbuss in 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.
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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
Mr. Rosenfeld that he was not precluded “from issuing an additional 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, Mr. 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, Ms. 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 disclosed 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 involvement in the issues remaining before the undersigned.
I expressed to Ms. Sencer my view that the Unions’ interest in having Coughlin testify
went “way beyond the confines of this hearing.” My suspicions were reinforced by Ms. 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 Western 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 pursuant 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 anti-union and engaged
in a national campaign to defeat union organizing by committing unfair labor practices. I
sustained counsel for the 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, Mr. Rosenfeld,
referred to the Employer as a recidivist employer, where a “broad remedy,” a “nation-wide
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 post-supplemental hearing brief, not only are they asking for a nation-wide notice
posting, but they also request an intranet posting throughout the Employer’s company-wide
intranet system.
As I explained to all parties at the supplemental hearing, whatever nation-wide
implications may have originally existed in this case were due only to the issue of the
Employer’s Associates Benefit Book language, which had been distributed to employees nation-
wide. However, that portion of the consolidated complaint was previously severed by the Board.

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. Ex. 6-7.
13 I had previously ordered as part of a remedy for that specific violation of the Act a nation-
wide notice posting. (See original ALJD.)
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What remains before the undersigned is a Section 8(a)(1) and (3) case limited 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 involved, 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 nation-wide 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. Accordingly, I
decline to order the extraordinary remedy requested by the Unions.
In their post-supplemental hearing brief, counsels for the Unions 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 returned by the Federal Bureau of Investigation to Wal-Mart.” This, of
course, confirms the candid statements of Mr. 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 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 four years has 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 warrant altering my original
findings of fact and conclusions of law. Further, there is no reasonable expectation that the
documents 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.
ORDER
On those issues that remain before me, I hereby reiterate the findings of fact and
conclusions of law previously set forth by me in the original decision in this case. Further, I
reiterate my recommended Order as set forth in that earlier decision, including the remedial
provisions therein.
Dated at Washington, D.C., March 30, 2007.
_______________________
Gregory Z. Meyerson
Administrative Law Judge

14 In any event, no party filed any exception seeking an extraordinary remedy, beyond what I
recommended in my original decision. According, this issue is not contemplated by the Board’s
Remand Order, and is not technically before me.