Wal-Mart Stores, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 796 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
Wal-Mart Stores, Inc. and United Food and Com-
mercial Workers International Union, AFL–
CIO, CLC. Cases 12–CA–20882 and 12–CA–
22441
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
MEISBURG
On November 4, 2003, Administrative Law Judge
Margaret G. Brakebusch issued the attached decision.
The Respondent filed exceptions and a supporting brief.
The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
adopt the judge’s rulings, findings,1 conclusions,2 and
Order as modified.3
ORDER
The Respondent, Wal-Mart Stores, Inc., Port Orange,
Florida, its officers, agents, successors, and assigns, shall
take the action set forth in the judge’s Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Discharging or otherwise disciplining employees
because they engaged in protected concerted activity.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

1 The Respondent has effectively excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 In adopting the judge’s finding that the Respondent unlawfully dis-
charged employee Edward Eagen, we agree with the judge that Eagen’s
discharge violated Sec. 8(a)(1) of the Act. We therefore find it unnec-
essary to pass on the judge’s finding that the discharge violated Sec.
8(a)(3), because this additional finding would be essentially cumulative
with no material effect on the remedy. We shall modify the judge’s
Order accordingly.
In the absence of exceptions, we adopt the judge’s dismissal of the
remaining complaint allegations that the Respondent unlawfully inter-
rogated employee Eagen and unlawfully discharged employee Dennis
Demint.
3 Member Meisburg notes that this decision should not be read as a
limitation on an employer’s right to establish and enforce without dis-
crimination prohibitions against the use of profanity in the workplace.

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with your em-
ployer 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 discipline you for
engaging in protected concerted activity.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Edward Eagen full reinstatement to his for-
mer job, or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other right or privilege previously enjoyed.
WE WILL make Edward Eagen whole for any loss of
earnings and other benefits resulting from his unlawful
discharge, less any interim earnings, plus interest.
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 Edward Eagen, 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.
WAL-MART STORES, INC.
Dallas Manuel, Esq., for the General Counsel.
Charles A. Powell III and Spencer Kinderman, Esqs., for the
Respondent.
Renee Bowser, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
The charge in Case 12–CA–20882 was filed by the United
Food and Commercial Workers Union, AFL–CIO, CLC (the
Union) on June 1, 2000,1 and later amended on June 6, 2001.
Based upon the allegations in the Union’s charge and amended
charge in Case 12–CA–20882, the Regional Director for Re-
gion 12 of the National Labor Relations Board (the Board)
issued a complaint and notice of hearing on October 30, 2001.
The charge in Case 12–CA–22441 was filed by the Union on
August 15, 2002 and later amended on October 4, 2002. Based
upon the allegations in Case 12–CA–22441, the Regional Di-
rector for Region 12 of the Board issued a complaint and notice
1 All dates are in 2000 unless otherwise indicated.
341 NLRB No. 111
WAL-MART STORES, INC. 797
of hearing on January 10, 2003. On January 16, 2003, the Re-
gional Director for Region 12 of the Board issued an order
consolidating Cases 12–CA–20882 and 12–CA–22441 for
hearing. Based upon the allegations in the Union’s charges, the
complaints allege that Wal-Mart Stores, Inc. (the Respondent or
Wal-Mart), terminated the employment of Edward Eagen and
Dennis Demint because of their union and concerted activities.
The complaint that issued in Case 12–CA–22441 also alleges
that Respondent terminated Demint because he gave testimony
to the Board in the form of an affidavit and because Demint
was scheduled to testify at an unfair labor practice hearing be-
fore the Board in Case 12–CA–20882. The complaint that
issued in Case 12–CA–20882 also alleges that by acting
through Bob Mulack, Bob Teeter, and Steve Leake, Respondent
interrogated its employees about employees’ union activities.
This case was tried in Deland, Florida, on August 18, 19, 20,
21, and 22, 2003. The General Counsel, the Union, and Re-
spondent submitted posthearing briefs.2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, with offices and places
of business located throughout the state of Florida, including a
facility at 1590 Dunlawton Avenue, Port Orange, Florida is
engaged in the business of retail merchandising, where it annu-
ally derives gross revenues in excess of $500,000. Annually,
Respondent purchases and receives at its facilities located in the
State of Florida, goods and materials valued in excess of
$50,000 directly from points located outside the State of Flor-
ida. Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The operation of the store
As a Supercenter, Respondent’s retail facility in Port Orange,
Florida, includes grocery, fresh market, meat, produce, and deli
departments in addition to other departments offering nonfood
merchandise items. The store divisions are Home Lines, Hard
Lines, and Grocery. In 2000, the facility employed approxi-
mately 520 to 530 employees and operated 24 hours a day.
Bob Mulack was the store manager for the Port Orange facility
from April 1999 to May 2003, and was responsible for all as-

2 Respondent and General Counsel also filed separate posthearing
briefs concerning Party-Opponent Admissions in GC Exh. 16. Counsel
for the Union and counsel for the General Counsel also submitted a
preliminary brief on this issue during the course of the trial. GC Exh.
16 is the transcript of the Florida Department of Labor and Employ-
ment Security Unemployment Compensation Appeals Bureau hearing
in the claim filed by Edward Eagen. Only the portions of the transcript
containing party-opponent admissions or testimony in conflict with trial
testimony were admitted into evidence.
pects of the store’s operations. During 2000, Mulack reported
to District Manager Steve Leake. Gary Graves and Ron Dixon
were salaried comanagers in 2000, and they were responsible
for the three store divisions. Assistant managers in the three
divisions reported to the comanagers and the individual de-
partment managers in each division reported to the assistant
managers. In 2000, the six salaried assistant managers were
Bob Teeter, Al Landi, Annette Figary, Cheryl Cantrell, Faye
Bishop, and John DeWitt. Julie Backlund and Robbie Clark
were assistant managers in training. Each assistant manager
reported to one of the two comanagers.
In 2000, there were approximately 10 to 18 employees on the
overnight stock crew in the dry grocery department. These
employees were split into two shifts that worked different days.
Both shifts worked on Thursday nights. The crews stocked the
shelves in the dry grocery department with merchandise that
was delivered by truck each night. During 2000, there were
two lead associates or team leaders for the overnight stock
crew. Gary Delaura held the position until April 20, 2000 when
Bill Hale replaced him. Edward Eagen worked on Respon-
dent’s overnight stock crew from February 7, 2000, until May
22, 2000.
2. The initiation of the Union’s activity
Dennis Demint initially contacted the Union in early April
via the internet and requested to talk with a union representa-
tive. In response to Demint’s e-mail request, International Rep-
resentative Steven D’Wayne Marrs telephoned Demint and set
up a meeting. When Marrs met with Demint and his wife at
their home in April, he explained the organizing process and
the steps necessary to file a petition. Marrs left authorization
cards with Demint for interested employees and Demint took
the cards with him when he went into work the next scheduled
workday. Demint estimated that he spoke with approximately
10 employees about signing the union authorization cards. In
addition to soliciting employees to sign cards, Demint also
printed information from the Internet. He left copies of the
Internet materials in the breakroom and in other store depart-
ments. Demint described the materials as information concern-
ing Respondent’s past actions and information about the num-
ber of stock options owned by Sam Walton and others. In addi-
tion to leaving the materials in various areas of the store,
Demint also distributed some copies to other employees. He
did not identify the names, locations, or number of copies that
he distributed to other employees. He did not distribute any of
the materials to managers or supervisors.
Edward Eagen testified that near the beginning of April
2000, Demint approached him in the parking lot during lunch
and asked him if he would be interested in signing a union card.
Eagen returned the signed union authorization card to Demint
the next evening. Eagen later received a telephone call from
Marrs. During his telephone conversation, Marrs inquired as to
whether Eagen thought that a union could succeed at Respon-
dent’s Port Orange store. Eagen replied it “possibly” could.
Marrs asked Eagen if he would assist Demint in soliciting em-
ployees to sign cards and Eagen agreed. Toward the end of
April, Marrs and the Union’s Assistant to the Director of Stra-
tegic Programs Timothy Fitzpatrick met with Eagen at a local

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
restaurant. Eagen recalled that he spoke with Marrs and Fitz-
patrick about how his background in both the union and man-
agement would be helpful in getting employees to sign the
authorization cards. Eagen began talking with employees about
the union the very next evening that he went to work. He esti-
mated that he spoke with approximately five employees about
the Union over the next 2 to 3 working days. On one occasion,
Eagen asked Fitzpatrick to meet with an interested employee.
Eagen attended no other meetings with employees concerning
the Union. Marrs testified that he was aware that Eagen as-
sisted Demint in the organizing efforts because the Union re-
ceived authorization cards from Demint and from employees
who had been solicited to sign cards by Eagen.
Marrs testified that the first meeting held at Demint’s home
was attended by approximately three to four employees. Marrs
later held a meeting with employees at a restaurant. Marrs
recalled that there were other meetings with employees that
were either set up by Demint or Eagen. Marrs testified that
after Eagen’s discharge on May 22, 2000, the Union was un-
able to schedule any additional meetings with employees.
Marrs testified that when the Union contacted those employees
who had signed authorization cards, the employees declined.
Marrs confirmed however, that even after Eagen’s discharge,
he continued to have contact with Demint and to receive signed
authorization cards from Demint.
B. Eagen’s Discharge
During his 3½ months of employment with Respondent,
Eagen worked as a grocery stock clerk. Eagen worked 4 nights
a week on one of the two shifts that comprised the stocking
crew. As was true of the other employees on the overnight shift
stocking crew, Eagen normally worked from approximately 9
or 10 p.m. in the evening until 7 or 8 a.m. the following morn-
ing. Eagen initially reported to Lead Associate Gary Delaura
and then to Bill Hale prior to his discharge. Prior to his dis-
charge on May 22, Eagen received no prior discipline or coun-
seling related to the conduct for which he was discharged.
1. Eagen’s description of the events preceding his discharge
Eagen testified that he and other employees on his crew were
having difficulties working with Team Leader or Lead Person
Gary Delaura. When Eagen finished work on the morning of
April 16, he went to the personnel office and spoke with a
woman that he identified as “Andrea” and asked if she could set
up a meeting for him with Store Manager Bob Mulack. He did
not discuss with Andrea why he wanted to meet with Mulack.
Later that same morning, Andrea called him and reported that
Mulack was available to meet with him if he would return to
the store. Eagen recalled that when he reported to an area that
he described as the art ad office, he found both Mulack and Bob
Teeter. Eagen explained to Mulack that Delaura not only
talked to him and other associates on the crew in a derogatory
fashion, but he had also damaged Wal-Mart stock and engaged
in horseplay. Eagen provided examples of Delaura’s behavior.
Eagen told Teeter and Mulack that this kind of treatment from a
supervisor is the kind of thing that causes unions to come in.
Mulack responded: “Do we have union activities out there?”
Eagen testified that he responded: “Yes. But I think at this
point in time it’s on a small scale.” Eagen testified that Mulack
then asked him if he had signed a union card and he told Mu-
lack that he had. Mulack then inquired as to whether other
people had signed cards. Eagen acknowledged that others had
signed cards and added: “But it’s on a limited basis, small
scale, not that many.” When Mulack asked who had done so,
Eagen replied that he did not know. Eagen told Teeter and
Mulack that he really didn’t have any more information and
that he needed to go home to get some sleep because he had to
work again that night. Teeter assured Eagen that he would be
paid for the hour and a half that he had come in to talk with
them. Eagen recalled that he told them that he didn’t need the
money but he did need the problem resolved. Teeter assured
him that they would take care of it. On his way out of the store,
Eagen asked to point out some safety concerns to Teeter. As
Teeter and Eagen walked back from the safety tour, Teeter
mentioned to Eagen that he would post for a leadman for
Eagen’s crew.3 Eagen recalled Teeter’s telling him: “You
seem to have the maturity and the background. I’d like you to
sign it.” Eagen told Teeter that he had taken the job at Respon-
dent’s facility because he was retired and needed the benefits.
Eagen explained that he was not interested in the lead position
because it only paid 50 cents more an hour and it was not worth
the stress and aggravation of supervising five other employees.
Three days later, the employees on Eagen’s crew were told
to report to the breakroom for a special meeting before begin-
ning work. Eagen believed that on this particular evening the
two shifts overlapped and all employees on the crew were pre-
sent. Mulack began the meeting by telling the employees that
he wanted to apologize for the way that Delaura had treated
employees. Mulack acknowledged that Delaura had spoken to
employees in a derogatory fashion, damaged freight, and en-
gaged in horseplay. Mulack announced the Delaura had been
terminated and that Bill Hale was acting leadman for both shifts
until the job could be posted and filled. Following the an-
nouncement, Mulack then showed the employees a video that
described Respondent’s open door policy. The video lasted
approximately 10 to 15 minutes and discussed how employees
could bring their concerns to supervision without fear of retalia-
tion. The video also explained that the open door policy is why
Respondent believes that there is no need for a union.
Eagen testified that while he was scheduled to receive a per-
formance appraisal after his first 90 days of employment, he
actually received the appraisal on April 27. Eagen identified
“Cheryl” the “store co-manager,” as the manager who pre-
sented it to him. Eagen recalled asking her at the time why she
was giving him the appraisal because he didn’t know her and
she didn’t know him. Cheryl explained that Bob Teeter had
completed and signed the appraisal and she was giving it to
Eagen for Teeter. At the conclusion of going over the ap-
praisal, Cheryl inquired: “How’s things going out there?”
Eagen responded: “They are going pretty good. There were
some union activities but I think they are dying out. There’s
not a whole lot of support.” Eagen testified that Cheryl then
told him that she understood that he had signed a card. Eagen

3 There are two leadsmen for each shift on the stocking crew. Eagen
understood that Teeter meant that he would post for Delaura’s position.
WAL-MART STORES, INC. 799
acknowledged that he had but added that he didn’t think a
whole lot of other people had done so. Cheryl then told Eagen
that under Respondent’s policy, she would have to report this to
management. Eagen responded that Mulack and Teeter already
knew. Cheryl explained however, that she would still need to
inform District Manager Steve Leake. Eagen testified that he
told Cheryl that he was pleased with his appraisal. On cross-
examination however, Eagen acknowledged that he had in-
cluded in his written comments on the appraisal form: “Julia
did excellent job explaining Bob’s comments.”
Approximately 3 or 4 days after receiving his appraisal, the
employees on Eagen’s crew were told to report to the back
conference room for a meeting with District Manager Steve
Leake. There were approximately 9 or 10 employees present as
both crew shifts were working that evening. During the meet-
ing, Leake told the employees that they were doing a great job
and he appreciated it. He asked that they keep up the good
work and also asked if any of them had problems or com-
plaints. When none of the employees raised any problems,
Leake reminded them of the open door policy and explained
that they could ultimately take their concerns to Mulack. He
also added that employees could also call him as well. Leake
explained: “That’s the way the open door policy works and if
you all do that there’s really no need for unions.”
Approximately an hour after the employee meeting, Eagen
was told to report to the conference room to meet with Leake.
No one else was present in the room other than Leake. Leake
began by shaking Eagen’s hand and he told Eagen that he was
doing a fantastic job. Leake mentioned that he had seen
Eagen’s performance appraisal and he apologized that Teeter
had not been able to give it to him in person. Eagen recalled
that Leake added that this would never happen again. Leake
also added that he had spoken with Teeter and that Eagen was
the kind of employee that Wal-Mart wanted. Eagen recalled
that Leake then changed the conversation by stating: “Now, I
know that you signed a union card. I know it’s illegal for me to
talk with you unless you sign a decertification. However, just
between us two, what’s going on out there?” Eagen testified
that he responded as following:

I’ll tell you what I have already told Bob. You already know
I signed a union card. A couple other associates have. I don’t
know their names. I don’t think it’s that many and I think af-
ter all these videos and Gary being gone, that a lot of the sup-
port will probably go away.

Leake thanked Eagen for the information and then added that
he was aware that Teeter had spoken with him about applying
for the leadman position. Leake urged: “I want you to recon-
sider because from what I hear and what I see you are the guy
for the job and we need you.” Although Eagen applied for the
lead position 2 days later, the position was not filled before his
discharge on May 22.
Eagen recalled that initially Bill Hale’s performance in the
lead position was “as different as night and day” from De-
laura’s performance. After about a week however, Hale began
to act as Delaura had. While he didn’t use derogatory lan-
guage, he still raised his voice with the crew and commented on
their work habits. Sometime between May 15 to 17, Hale in-
formed the crew that he was maintaining a record of how many
cases individual crew members unpacked during a particular
shift. He specifically stated to Eagen: “Well, old man. You did
the worst of anybody.” Eagen explained that he later found out
that Hale had told everyone else on the shift except him how he
wanted them to unpack the boxes for maximum stocking. The
next night however, Eagen switched to the new system for un-
packing and stocked either the highest or the second highest
number of boxes. Eagen talked with the other employees on
the crew and they also shared his frustration with the new sys-
tem. After the third night of the case counts, Eagen discussed
with fellow employee Eli Fernandez the need to share the em-
ployees’ dissatisfaction with Gary Graves.
When Eagen spoke with Graves in Mulack’s office, Eli Fer-
nandez waited outside the office door. Eagen testified that he
didn’t know if Graves was aware of Fernandez’ presence.
Eagen testified that he told Graves:

Why are you taking measurements of only our crew? Is it be-
cause of the age of the guys on our crew? Is it because of the
disabilities that some of us have? Is it because of the ethnic
background of some of us? Or is it because you know that
some of us on this crew have signed union cards?

Eagen described Graves as becoming “beet red” with his eyes
“wide open.” Graves simply told Eagen that he didn’t know
and that he would get back with him.
The next morning Eagen began looking for Graves. He saw
him standing in the store aisle talking with Mulack and man-
agement trainee Ken Carney. Eagen recalled that when he saw
these managers it had been before 8 a.m. and there were no
customers nearby. When Eagen approached the managers, he
asked Graves if he had had spoken with Mulack about the sub-
ject of their discussion the previous day. Graves said that he
had not. Mulack asked what Eagen wanted to discuss. Eagen
told Mulack that the crew had not unloaded the truck the previ-
ous night. He went on to add:

What I talked to Gary about yesterday was this new method
of measuring. This method is bullshit. You are not accom-
plishing anything.

Mulack then explained that he had not directed the crew leader
to measure or how to measure. He had simply directed that he
wanted “numbers.” Eagen testified that he responded:

Well, you are getting the blame for it because Bill is telling us
that this is your idea and there’s better ways of doing it than
this because at times it’s borderline unsafe. The customers
don’t like it. And to be honest with you, my aisle, which was
one of the best aisles in the grocery department and you said
so, at the end of the morning now looks like shit.

Mulack corrected him and told him rather than to use the
word “shit,” he should say “crap” and then he smiled. Mulack
then asked Eagen for his suggestions on what were his sugges-
tions for measurement. Eagen testified that after he gave Mu-
lack a number of suggestions, Mulack replied: “Those were
some good ideas. Let me get with Bill. You hang in here.
Don’t go home. Tell the other guys to hang around and I’ll get
back to you.” Eagen recalled that he did not raise his voice and

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
he maintained a distance of approximately three feet during the
conversation.
Approximately 30 minutes later, Hale told Eagen that Mu-
lack wanted to see him in his office. In the presence of Graves,
Mulack told Eagen: “As per Wal-Mart policy I’m terminating
you for your profanity out on the floor. I am shocked that you
used those words.” Mulack directed Eagen to surrender his
badge, tool belt, knife, and employee discount card before leav-
ing the property. Mulack presented Eagen with a written exit
interview form. When Eagen first saw the form, the explana-
tion of termination included only one sentence: “In front of
three members of management, Ed used profanity which is
against Wal-Mart policy.” When Eagen read the explanation,
he told Mulack that he had not used profanity toward anyone,
but had only used it to describe the way the aisle looked at the
end of the night. He told Mulack that the statement as written
would lead people to believe that he was “running around the
store cursing everyone out.” Eagen refused to sign the exit
interview unless Mulack included the actual words that he was
alleged to have used. Mulack then added the following to the
form: “Ed said this is bullshit and used the word shit a few
times in describing the aisle and the way of working the
freight.”
2. Respondent’s description of its knowledge of
Eagen’s union activity
Mulack does not deny that he knew that Eagen signed a un-
ion card. He recalled a conversation that he had with Eagen in
the office on April 17. Mulack recalled that while Teeter
walked in and out of the office several times during his conver-
sation with Eagen, Teeter was not present for the entire conver-
sation.4 Mulack recalled that Eagen called him directly to re-
quest a meeting. During the meeting, Eagen brought up his
concerns about the way in which Delaura treated him. Eagen
also mentioned Delaura’s horseplay and his damaging mer-
chandise. Mulack testified that during the conversation, Eagen
simply volunteered that he had signed a union card and stated
that he had done so to keep Mulack informed.
Mulack acknowledged because it is Respondent’s policy to
notify the district manager of any known union activities, he
had done so after his conversation with Eagen. He also testi-
fied that he was sure that he had told all of his store managers
that an employee had signed a union authorization card. Mu-
lack admitted that during his appraisal interview with Assistant
Manger of Training Julie Backlund, Eagen provided Tim Fitz-
patrick’s name and telephone number and volunteered that
Fitzpatrick was scheduled to be on Respondent’s sidewalk that
next weekend. Within 2 weeks of his conversation with Eagen,
two management officials from Respondent’s corporate labor
relations or personnel department visited the store. Leake told
him that they were visiting the store because of the union activ-
ity at the time and because of their concern with the name of
the union representative given by Eagen. The individuals from
corporate office remained at the Port Orange store for a day and
a half to 2 days. They provided store management with videos

4 Teeter was never called to testify to corroborate Mulack’s testi-
mony.
and training tools and they also held group meetings with em-
ployees. One of the videos shown to employees was entitled
“The Union attacks” and described the Union’s tactics and
suggested what the Union might say and do. Mulack denied
that Respondent’s corporate labor relations’ representatives
gave him any instructions as to how to handle the union activ-
ity. Mulack admitted however, that within 2 weeks after his
April 17th conversation with Eagen, he believed that the Union
would be contacting store employees.
Julie Backlund worked as an assistant manager trainee in
April 2000, and she worked during Respondent’s overnight
shift. Backlund recalled that she gave Eagen his evaluation on
April 27, 2000, at the request of Bob Teeter. While Teeter had
prepared Eagen’s evaluation, he was not able to be personally
in the store to give it to Eagen on the 27th. Backlund denied
that Assistant Manager Cheryl Cantrell had anything to do with
preparing the evaluation or that she was present in the room
when Backlund gave him the evaluation. Backlund went over
the evaluation with Eagen and then told him that if he had any
questions or anything further that he needed to discuss he could
go to her or to any other member of management. As Eagen
was exiting the room, he told her that he didn’t want to get her
involved in anything. Backlund explained that if there was a
problem, that was why she was there. She suggested that if he
didn’t feel comfortable discussing the matter with her, he
should go to somebody else. At that point, Eagen then shared
that he had signed a union card. Backlund recalled that Eagen
explained that he had signed a union card because he was work-
ing undercover for Mulack. Eagen told her that employees
were signing union cards and there was union activity in the
store. She testified that he also mentioned there was to be some
upcoming activity however she could no longer recall the de-
tails. The next morning Backlund told Mulack about her con-
versation with Eagen and District Manager Leake was con-
tacted pursuant to procedure.
District Manager Leake recalled that on April 29, 2000, he
had held a 3 a.m. meeting with the employees on the food side
of the store. Leake testified that as district manager he was
required to schedule visits to stores during third shift. Leake
explained that he scheduled the April 29 meeting to make sure
that all of the new employees knew who he was and knew how
to contact him if they needed to do so. During the meeting,
Leake explained that he was Mulack’s supervisor and that em-
ployees could discuss any issues with him at any time. Leake
recalled that as he was exiting the room after the employee
meeting, Eagen initiated a conversation with him. Eagen told
him that he thought that Respondent was a great company and
that Mulack was good store manager. Eagen added that he
appreciated Leake's coming in overnight to introduce himself to
the employees. Eagen finished by stating that Wal-Mart is a
great place to work and they didn’t need a union at Wal-Mart.
Leake denied that he had mentioned unions or union issues
with the employees in the meeting and he did not know what
prompted Eagen to make the comment. Leake denied that he
had any further conversation with Eagen other than when
Eagen later introduced another new employee to him. Leake
denied that he ever had any conversation with Eagen about
union activity in the store or about Eagen’s union activity.
WAL-MART STORES, INC. 801
3. Respondent’s evidence on Delaura’s discharge
Mulack testified that his conversation with Eagen was his
first notice that there were concerns about Delaura’s conduct.
In response to the complaints, Mulack investigated the matter
and interviewed 15 to 20 employees. All of the employees
confirmed that they had issues with Delaura and told him about
the way in which he spoke to them and the things that he had
done.5 In response to the investigation, Delaura was dis-
charged on April 20. On the same night as Delaura’s discharge,
Mulack met with all of the grocery employees. Mulack told the
employees that Delaura had been discharged and he apologized
to them for having to work under Delaura. Following the meet-
ing concerning Delaura, all of the store employees were shown
“The Union Attacks” video.
4. Respondent’s evidence on Eagen’s discharge
Mulack admitted that prior to his discharge on May 22,
Eagen had never received any discipline and that Eagen’s dis-
charge was based upon Eagen’s conduct on May 22. Mulack
recalled that on the morning of May 22, Eagen approached him
as he was talking with Gary Graves and Ken Carney on the
sales floor. Eagen walked up quickly and said that he needed to
talk with him. Mulack testified that Eagen: “got right up in my
face and he started describing the way Team Leader Bill made
a decision the night before about a truck.” Mulack recalled that
Eagen used the words “shit” and “bullshit” three to five times
and he described Eagen as aggressive in his demeanor. On
cross-examination, Mulack was asked to identify the context in
which Eagen used these words. Mulack recalled that Eagen’s
statements included: “This is bullshit,” “counters look like
shit,” and “shit way of doing things.”
Respondent’s coaching for improvement program provides
the procedure for investigating employee misconduct and for
determining the appropriate discipline. The disciplinary pro-
gression provides for a verbal coaching at level one. If the
verbal coaching is not successful in changing or correcting the
unacceptable behavior or performance, an employee will re-
ceive a level two written coaching. Level three of the discipli-
nary progression is identified as “Decision Making Day.” The
employee is informed of the deficiencies noted at earlier coach-
ing for improvement levels and the specific improvement re-
quired. The employee must complete and sign an acceptable
detailed action plan. The employee is then given a day off with
pay to decide whether he or she will make the required im-
provement. The policy also provides that employees who are
deemed to have engaged in gross misconduct are subject to
immediate termination. The policy lists 13 kinds of conduct as
examples of conduct that are usually classified as gross mis-
conduct and which may result in immediate termination. Mu-
lack testified that the coaching for improvement policy was not
used with Eagen because his conduct constituted gross miscon-
duct. Mulack testified that while “using profanity” is not in-
cluded among the list of the 13 behaviors, “Serious Harass-
ment/Inappropriate Conduct” is included.

5 Mulack testified that all of his notes from his meetings with em-
ployees had been lost or misplaced.
C. Dennis Demint’s Termination
Dennis Demint was employed by Respondent from Novem-
ber 1999, until June 25, 2002. At the time of his discharge,
Demint worked as an inventory clerk specialist or ICS. While
Demint worked on the night stocking crew in 2000, he was on a
mid shift at the time of his discharge in 2002, and worked from
1l a.m. to 8 p.m. At the time of his discharge, Demint reported
to Grocery Manager Mike Burke.
1. Demint’s description of his union and protected activity
a. Demint’s affidavit to the Board
Demint became aware of Eagen’s discharge in April 2000
when Eagen failed to report to work. Demint later learned that
the Union had filed an unfair labor practice on Eagen’s behalf.
In February 2002, Demint provided an affidavit to the Board in
conjunction with the Union’s charge concerning Eagen. The
next day after giving the affidavit, Demint saw Furniture Man-
ager Brad Horner, as he was about to clock in for work. No
one else was present during the conversation. Demint shared
that he had just given an affidavit on Eagen’s behalf. Horner
responded by stating that he felt that Eagen was trying to take
the company for a ride for money. Demint explained to Horner
that he had spoken with Eagen and that Eagen had assured him
that was not the case. Demint testified that he had not dis-
cussed any of the specifics of his testimony with Horner.
Demint recalled discussing with Horner incidents in which
other employees had used profanity.
During the same week as his conversation with Horner,
Demint telephoned his friend John Newburn and told him that
he had given testimony to the Board concerning Eagen.
Demint described Newburn as the floor supervisor for the
cleaning crew. Demint recalled that Newburn had a response
similar to Horner and expressed negative feelings about Eagen.
Demint also shared with Newburn his conversation with Eagen
and reiterated his belief that Eagen only wanted reinstatement.
During the same week Leslie Baxter visited in Demint’s
home. Demint described Baxter as a friend who was over the
unloaders in the back of the Port Orange store. During her
visit, Demint told her that he had given an affidavit for Eagen.
Baxter’s only response was “Oh, you did.” She neither asked
questions nor made any additional response.
b. Demint’s continued union activity
Demint testified that from June through December 2000, he
continued to leave fliers at the store and he also tried to talk
about the Union with a few employees. He recalled that he
continued with the same activities in 2001 as well. While
Demint testified that he collected some signed authorization
cards from employees in 2001 and early 2002, he did not iden-
tify the number. He recalled however, that after Memorial Day
in 2002, he received some additional authorization cards from
Marrs. Demint estimated that he spoke with approximately 10
to 15 employees after receiving the new cards from Marrs and
prior to his discharge in June 2002. He also estimated that he
received approximately six signed authorization cards during
this same time period.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
Approximately a month before his discharge, Demint talked
with Mike Burke on the sales floor. At the time of the conver-
sation Demint was unhappy because he had just learned that he
would have to wait a year after signing up for long-term dis-
ability insurance before it would become effective. Demint
recalled telling Burke that the only way that things were going
to change in the store would be if they could get a union. Burke
replied that if they ever had a union, he would quit. He also
added that employees at the store “had it made.”
Demint also recalled that approximately a month before his
termination, he had a conversation with someone named Barrett
and whom he identified as the manager of the store’s restaurant
area. Demint did not know Barrett’s last name. During the
conversation, Demint stated that he was going to do everything
that he could to try to “bring in a union.” Demint went on to
add that by bringing in a union, all of the managers in the store
would be replaced because Respondent would have lost control.
Barrett’s response was “Go for it.”
2. Respondent’s description of the events preceding
Demint’s discharge
Grocery Manager Mike Burke recalled that he and Demint
worked together stocking the store shelves on June 24, 2002.
While they worked, Demint told Burke what a bad week that he
was having. Demint explained that not only had his wife been
recently terminated,6 an electrical storm had damaged both his
satellite dish and telephone, and then finally his dog had died.
Approximately 30 to 45 minutes later, Burke and Demint were
working in the store’s back room. Meat employees Damin
Moore and Assistant Manager in Training Rick Wells were
working nearby in the hallway. Demint continued his earlier
conversation about his misfortune during the week. Burke
testified that he heard Demint make the statement that he could
understand how someone could go “postal.” Burke understood
Demint’s comment to refer to the bad things that had happened
to him during the week. Burke recalled that as Demint contin-
ued to talk he made a comment about “blowing this place up.”
Wells testified that at the time of the conversation, he knew
Demint but did not normally work side by side with him. Wells
recalled that when Mike Burke laughed7 at Demint’s comment,
Demint added: “No, I’m serious. I’ve got the stuff to do it.”
Both Burke and Wells recalled that Moore told Demint to re-
member him or to wait until he was not at work. Burke re-
called Demint’s saying that it is usually upper management that
gets its first. Wells recalled that Demint told Moore: “Well,
you don’t have nothing to worry about, you know, just upper
management.”
Wells testified that while Demint didn’t make any further
comments on the subject, he had thought to himself that such
comments were not funny. Moore and Wells went back to the
floor area of the store and continued their work. As they
worked, they talked about Demint’s comments and considered
whether he had been joking or was serious. Wells admitted that

6 Dianna Demint worked for Respondent from 1998 until her dis-
charge in June 2002. At the time of her discharge, she was bakery
manager and an assistant store manager. Demint testified that she was
terminated for causing a hostile work environment.
7 Burke testified that he initially thought that Demint was joking.
he wasn’t sure how serious Demint had been but he did not
want to let it go because he felt that it was his responsibility to
tell someone. Wells explained that the “Towers” had just
blown up and there had been incidents in which individuals had
gone into businesses killing people. Wells and Moore decided
that they should report the incident to management. As they
were walking toward the manager’s office they saw Comanager
Todd Maufroy and asked to speak with him. When they told
Maufroy what Demint had said, he asked them to prepare writ-
ten statements. While Wells agreed, Moore explained that he
did not feel comfortable in doing so. In declining, he cited a
hearsay account of Demint and his wife’s alleged actions at a
former place of employment. Maufroy testified that as he
spoke with Moore and Wells, Moore seemed to be visibly upset
as evidenced by his facial expression and his overall demeanor.
While Wells and Moore were still in the office, Maufroy paged
Burke to come to the office and to give his account of Demint’s
comments. When Burke told Maufroy that he thought that
Demint was joking, Burke recalled that Wells remarked that
Demint’s wife had been terminated and that he had threatened
to blow up the store. Burke testified that Wells appeared to
take Demint’s statements seriously. After Maufroy informed
Mulack of the situation, Maufroy escorted Burke, Wells, and
Moore to Mulack’s office and they again described the conver-
sation with Demint. Burke testified that when talking with
Mulack he reiterated that he thought that Demint was joking.
Both Wells and Moore however, told Mulack that they believed
that Demint was serious.
After the meeting with Burke, Wells, Moore and Maufroy,
Mulack excused Wells and Moore to return to their work area.
He asked Burke to bring Demint to his office. When Burke and
Demint entered Mulack’s office, Mulack and Maufroy met
them. Maufroy recalled that Mulack mentioned Demint’s
comments and explained that whether joking or not, such
statements were inappropriate. Burke recalled that Mulack
mentioned that because of “9/11” and the various things going
on in the world, Demint had to refrain from making comments
like that in the store. Mulack told Demint that he needed
Demint’s assurance that he would not make those types of
comments in the future. Both Maufroy and Burke recalled that
Demint said nothing in response to Mulack’s comments. Burke
recalled that Demint just stared directly at him and turned his
shoulder away to avoid looking at Mulack. After Demint’s
continued silence, Burke stated: “The man asked you a ques-
tion.” While still continuing to stare at Burke, Demint simply
stated: “I have nothing to say.” Maufroy also corroborated that
Demint offered no explanation of the alleged comments. Mau-
froy described Demint as “very placid” and without expression.
He never looked at Mulack and continued to stare at Burke
during the entire conversation. Burke recalled that Demint’s
demeanor shocked him because Demint was “acting so
strange.” When Demint made no further response, Mulack
excused him to return to work. After Demint left the room,
Burke told Mulack that he could then understand how Wells
and Moore felt and that he felt uncomfortable as well. Burke
told Mulack that he no longer believed that Demint was joking.
Mulack testified that he had been more concerned about the
alleged threat after his meeting with Demint. His concern had
WAL-MART STORES, INC. 803
also heightened after Burke told him that he no longer believed
that Demint was joking.
After talking with Demint, Mulack contacted Regional Per-
sonnel Manager Verian Booker in Respondent’s corporate of-
fice. After Mulack explained what occurred, Booker directed
him to offer Demint counseling through Respondent’s em-
ployee assistance program. In the second of several conversa-
tions throughout the afternoon, Booker directed Mulack to dis-
charge Demint. Booker also advised Mulack to have District
Loss Prevention Manager Joe Moore present at the time of
Demint’s discharge. Prior to the discharge interview, Joe
Moore arranged for a police officer to be present at the facility.
Mulack notified his store managers of the threat and advised
them to be on alert and to heighten the security of the store.
Brad Horner testified that he had been called into the office
at the time of Demint’s discharge. Prior to going to the office,
he had not known the purpose of the meeting. Horner recalled
Loss Prevention Manager Moore asking Demint about state-
ments relating to blowing up the store or something similar to
that. Horner recalled that Demint simply “smirked” and said
nothing. “I said all I was going to say yesterday and that’s it”
was the only statement that Horner recalled Demint’s making
during the meeting.
3. Respondent’s evidence concerning knowledge of Demint’s
protected activity
Barrett Worst testified that he had a conversation with
Demint in Respondent’s Radio Grill on the day of Demint’s
discharge. Worst testified that he was not sure but he believed
that he had been working as Radio Grill manager at the time of
the conversation. Worst described Demint as “high strung.”
Demint told Worst that he had just “told Bob off” and he
thought that he was about to be fired. Then Demint added
laughingly “I might just come back and blow the place up.”
Worst admitted that he had not taken Demint seriously and he
had not reported this comment to anyone. Worst also testified
that since he began working at Respondent’s facility in 1999,
he had occasionally spoken with Demint about working condi-
tions and Demint had expressed his aggravation with his em-
ployment with Respondent. Although presented as a witness
for Respondent, Worst was not asked nor did he deny that
Demint had told him that he would do all that he could to bring
in a union.
Horner testified that prior to Demint’s termination, he had
not known that Demint had given an affidavit to the Board.
Horner recalled that it had only been after Demint’s termination
that Demint told him about giving the affidavit. Demint told
him about the affidavit when Horner was visiting Demint in his
home. Horner knew that Demint supported the Union because
Demint asked him to sign a union authorization card and he had
done so. Horner recalled that this had occurred however, “way
before” Demint’s discharge.
4. Demint’s description of the events preceding his
termination
a. Demint’s testimony concerning the events of
June 24 and 25, 2002
Demint testified that the day before his discharge he was
called to the office to meet with Mulack. He remembered that
Burke was also present. Demint recalled Mulack’s saying to
him: “You can’t say you are going to take out upper level man-
agement. Okay?” Demint admitted that he said nothing in
response to Mulack and Mulack repeated the same question.
Demint further acknowledged that in addition to his saying
nothing in response to Mulack’s questions, he simply stared at
Burke. Finally, Mulack told him to return to work. Later that
same evening, Demint was returning to work from his break.
Mulack approached him and handed him a card. Mulack told
Demint that he could either talk with Mulack or he could call
the people identified on the card if he had problems. Demint
recalled that he read the card and then put it into his pocket. He
told Mulack that he didn’t like the way that Comanager Roy
DiPietrantonio had treated his wife and that he was going to
seek an attorney about it. Demint told him that he was mad
about his wife’s discharge. Demint recalled that Mulack stated
that he would be unhappy if he were Demint. Mulack urged
Demint to think about his career.
On June 25 2002, Demint was called into the office to meet
with Mulack. Demint recalled that in addition to Mulack, a
police officer and the loss prevention manager were present in
the office. Brad Horner was also present at Demint’s request.
Demint recalled that he was asked to sign the exit interview
form and that he was informed that he was terminated for gross
misconduct.
5. Demint’s testimony concerning the alleged threats
Demint recalled that he had a conversation with Burke, how-
ever it had not been on June 24, 2002.8 Demint estimated that
the conversation occurred approximately June 22. Demint
recalled that he and Burke had been working near each other on
aisle #5 of the store. During this time, he received a call from
his wife on his personal cell phone telling him that their dog
had died. Demint recalled that he told Burke “It’s been a very
bad week. Lightening took my phone out. My dog died.
Dianna got, you know, she just got previously fired.” Demint
denied making any statement about going postal when he talked
with Burke. Demint also denied that he had any conversation
with Damin Moore on the same day as his conversation with
Burke.
Demint recalled however, that he did have a conversation
with Moore on June 24. Demint testified that on June 24 he
had been loading a stock cart in the back room. Demint de-
scribed Moore as impatient as he attempted to get through the
room’s crowded space. Demint testified that their verbal inter-
change had been as follows:

And I kind of looked at him and I said, ‘You need to back it
up or I’ll take you out.’ And he kind of snickered and said

8 All of the dates concerning Demint’s alleged threats and his termi-
nation are in 2002.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
‘You’ll go postal, right?’ I said, ‘Yea. Right.’ He says ‘Like
I’m worried.’ And he laughed. So I continued to load up the
cart and at some point I said, ‘Well you better be worried be-
cause I’ve got the things to do it.’

Demint explained that he moved the cart for Moore to pass
and Moore continued into the meat freezer. Thinking about his
conversation later, Demint wondered if he might have offended
Moore. Demint went into the cooler where Moore was working
and told him: “Hey. I’m not going to take you out. I’ll just
take out upper level management.” Demint then walked away
without further comment. He acknowledged that he wouldn’t
have been able to see if there was anyone else in the cooler, as
he had not walked that far into the cooler. Demint denied that
he made any statement about going postal and that no one said
anything about blowing up the store.
III. ANALYSIS AND CONCLUSIONS
General Counsel alleges that Respondent terminated Edward
Eagen and Dennis Demint because of their activities in support
of the Union and thus violated Section 8(a)(3) of the Act. Gen-
eral Counsel also alleges that Eagen was terminated because he
concertedly complained to Respondent regarding wages, hours,
and working conditions of Respondent’s employees. General
Counsel further alleges that Respondent terminated Demint
because of his having given testimony to the Board in violation
of Section 8(a)(4) of the Act. Respondent denies knowledge of
Demint’s previous Board testimony and alleges that either
Eagen or Demint were terminated because of gross misconduct.
In Meyers Industries (Meyers II), 268 NLRB 493 (1984), the
Board stated that an employee must be engaged with or on the
authority of other employees, and not solely by or on behalf of
the employee himself to constitute “concerted” activity. Once
the activity is found to be concerted, an 8(a)(1) violation will be
found, if, in addition, the employer knew of the concerted na-
ture of the employee’s activity, the concerted activity was pro-
tected by the Act, and the adverse employment action at issue
was motivated by the employee’s protected concerted activity.
Respondent argues that Eagen’s complaints to Mulack on May
22 did not constitute concerted activity because he only com-
plained about the way in which Hale “worked the truck” the
previous night and because the case count system made the
aisles “look like shit.” Respondent asserts that no other em-
ployees accompanied Eagen when he confronted Mulack and
that there is no evidence that he was acting as a spokesperson
for any other employees on this issue.
In determining the existence of concerted activity, the Board
has considered such factors as whether the comments involved
a common concern regarding conditions of employment and
whether the issue was framed as a common concern. See Air
Contact Transport, Inc., 340 NLRB No. 81 slip op. at 12
(2003), Neff-Perkins Co., 315 NLRB 1229, 1232 (1994). In
Amelio’s, 301 NLRB 182 fn. 4 (1991), the Board stated that it
would “find that an individual is acting on the authority of other
employees where the evidence suggests a finding that the con-
cerns expressed by the individual employee are a logical out-
growth of the concerns expressed by the group.” As Counsel
for the General Counsel points out in his brief, an employee’s
complaints about the behavior of their supervisor can be con-
duct protected by Section 7 of the Act. See American Tissue
Corp., 336 NLRB 435, 448 (2001), Astro Tool & Die Corp.,
320 NLRB 1157, 1162 (1996), Hoytuck Corp., 285 NLRB 904
(1987). Eagen testified that during his discussion with Coman-
ager Graves on May 21, he asked Graves why case counts were
conducted on only his night crew. Eagen went on to question
as to whether his crew was singled out because of the age of the
crew members, their disabilities, their ethnic background, or
their union activity. Eagen testified that when he confronted
Graves with Mulack the next day, he asked if Graves had dis-
cussed these concerns with Mulack. Although Graves told
Eagen that he had not had a chance to discuss these concerns
with Mulack, Graves was never called to testify and thus never
rebutted Eagen’s description of the May 21 conversation. Re-
spondent admits that Assistant Manager Bob Teeter was a su-
pervisor and agent of Respondent at all material times. At the
time of Eagen’s conversation with Graves, Graves was one of
only two managers in the store who reported directly to Mulack
and there is no dispute that the assistant managers reported to
either Graves or Dixon. Accordingly, while Graves was not
pled as a supervisor, the record demonstrates his supervisory
status within the management hierarchy of the store. Accord-
ingly, it is undisputed that Eagen not only complained about the
case counting process to Graves, but also specifically addressed
the age, ethnicity, disability, and individual union activities of
the members of the crew. Clearly, Eagen’s comments to
Graves were on behalf of the entire crew and fell within the
scope of concerted activity. The Board does not require that an
employee have direct personal authorization from other em-
ployees in order to engage in concerted activity. Pomeroy’s,
Inc., 232 NLRB 95 (1977). Additionally, when Eagen spoke
with Mulack on May 22, he confirmed that he had complained
about the case counting process to Graves the previous day.
Eagen went on to complain about Hale and the effect of the
process not only on customers but also upon the work process.9
Accordingly, I find that Eagen was engaged in concerted activ-
ity on May 21 and 22, 2000.
The analytical framework for determining when a discharge
violates Section 8(a)(3) and (1) of the Act has been set forth by
the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); Naomi Knitting Plant, 328 NLRB 1279, 1281
(1999); Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
Wright Line is premised on the legal principle that an em-
ployer’s unlawful motivation must be established as a precondi-
tion to finding an 8(a)(3) violation. American Gardens Man-
agement Co., 338 NLRB 644 (2002). Therefore the analysis is
appropriate in cases such as this one where there is disputed
motivation. See Aluminum Co., of America, 338 NLRB 20, 21
(2002). Based upon the Wright Line analysis, the burden rests
with the General Counsel to make a prima facie showing suffi-
cient to support the inference that protected conduct was a “mo-

9 The Board has held that even a complaint made for oneself consti-
tutes protected concerted activity if the effect of the complaint is to
better conditions for all employees. Hanson Chevrolet, 237 NLRB 584
(1978).
WAL-MART STORES, INC. 805
tivating factor” in the Respondent’s decision to terminate
Eagen and Demint. To establish a prima facie case, General
Counsel must show the existence of protected activity, Respon-
dent’s knowledge of that activity, evidence of union animus,
and the link or nexus between the protected activity and the
adverse employment action. Farmer Bros. Co., 303 NLRB 638,
649 (1991).
Once such unlawful motivation is shown, the burden of per-
suasion shifts to the Respondent to prove its affirmative defense
that the alleged discriminatory conduct would have taken place
even in the absence of the protected activity. Wright Line
above at 1089. Under Wright Line, an employer cannot carry
its burden of persuasion by merely showing that it had a legiti-
mate reason for imposing discipline against an employee, but
must show by a preponderance of the evidence that the action
would have taken place even without the protected conduct.
Hicks Oils & Hicksgas, Inc., 293 NLRB 84, 85 (1989), enfd.
942 F.2d 1140 (7th Cir. 1991). In the matter before me, I find
that Respondent has met its burden of demonstrating that it
would have terminated Demint even in the absence of his pro-
tected activity. I do not find that Respondent has met this bur-
den with respect to Eagen’s discharge.
A. Whether Respondent Unlawfully Terminated Eagen
Respondent does not dispute that as early as April 17, there
was knowledge of Eagen’s union activity. Admittedly, Eagen
not only told Mulack that he signed a union card, he also identi-
fied for Julie Backlund the union representative who was in-
volved in the store organizing. Mulack admitted that within 2
weeks of his talking with Eagen, he believed that the Union
would be contacting employees. Both Mulack and Backlund
admitted that Eagen’s information on the Union organizing was
immediately communicated to District Manager Leake. Within
2 weeks of receiving the first information from Eagen, corpo-
rate labor relations’ personnel visited the store and admittedly
did so because of the union activity. Thus, there is no dispute
that not only did local management officials have knowledge of
the Union’s organizing activities at the store, but corporate
management knew as well. Mulack testified on cross-
examination that while he could not recall whether he told the
corporate visitors that Eagen was the employee who signed the
union authorization card, he added: “I probably did say the
name. I’m sure I did.” Mulack testified in Eagen’s hearing
before the Florida Department of Labor and Employment
Compensation Appeals Bureau on August 1, 2000, that at the
time of Eagen’s discharge, Eagen was the only employee for
which he had knowledge of union activity. Thus, General
Counsel has met the burden of demonstrating Respondent’s
knowledge of Eagen’s union activity.
There being no dispute that Respondent had knowledge of
Eagen’s union activity and that Respondent took adverse em-
ployment action against Eagen, the remaining element for the
General Counsel’s prima facie case is whether there is a link
between the protected activity and the adverse employment
action sufficient to support an inference of unlawful motivation.
Signature Flight Support, 333 NLRB 1250 (2001). While Gen-
eral Counsel alleges that Mulack, Teeter, and Leake interro-
gated Eagen about his union activity, there is no specific evi-
dence that Respondent harbored any animus toward Eagen for
supporting the Union. Even without direct evidence however,
the Board may infer animus from all of the circumstances.
Electronic Data Systems Corp., 305 NLRB 219 (1991). In
Handicabs, Inc., 318 NLRB 890, 897 (1995), enfd. 95 F.3d 681
(8th Cir. 1996), cert. denied 521 U.S. 1118, (1997), the Board
affirmed the administrative law judge in finding an employee’s
discriminatory discharge. While there was no direct evidence
of animus, the employee had been the only employee disposed
toward the union whose identify was known to the employer at
the time of the employee’s discharge. The fact that the em-
ployee was discharged shortly after the employer acquired
knowledge of the employee’s union activity was considered as
further support for an inference of unlawful motivation.
The record is lacking in direct evidence of animus toward
Eagen. The Board however, has in certain circumstances in-
ferred animus from the record rather than relying upon or re-
quiring direct evidence. Fluor Daniel, Inc., 304 NLRB 970
(1991). The Board has noted that such things as suspicious
timing, false reasons given in defense, failure to adequately
investigate alleged misconduct, departures from past practices,
tolerance of behavior for which the employee was allegedly
fired, and disparate treatment of the discharged employees as
support for an inference of animus and discriminatory motiva-
tion. La Gloria Oil & Gas Co., 337 NLRB 1120, 1126 (2002),
Metro Networks Inc., 336 NLRB 63, 65 (2001), Medic One,
Inc., 331 NLRB 464, 475 (2000), Adco Electric Inc., 307
NLRB 1113, 1129 (1992). The Board has further noted that
because there is seldom direct evidence of unlawful motivation,
circumstantial evidence may be relied upon to draw an infer-
ence of unlawful motivation. See Abbey’s Transportation Ser-
vices, 284 NLRB 698, 701 (1987), enfd. 837 F.2d 575 (2d Cir.
1988).
I find that the record as a whole supports an inference of
animus and unlawful motivation. The most persuasive factor in
finding an inference of animus is the timing of Eagen’s dis-
charge. It is apparent that upon learning that there was union
activity in the store, Respondent mobilized its regional and
corporate personnel to combat the union’s organizational ef-
forts. Within 2 weeks of Eagen’s admission that he had signed
a union authorization card, labor relations representatives from
Respondent’s corporate office were in the store conducting
employee meetings. Less than 2 weeks after Eagen’s disclo-
sure, Respondent’s district manager made it a point to visit the
Port Orange store for a 3 a.m. meeting with employees. Mu-
lack admitted in Eagen’s State unemployment compensation
hearing that as of the date of Eagen’s discharge, he was the
only employee specifically known to have signed a union card.
Mulack also admitted in the Board proceeding that within 2
weeks of his learning that Eagen had signed a card, he expected
the Union to contact other employees. Thus, while Respondent
responded to what appeared to be an ongoing campaign, Eagen
was the only known union supporter and he was terminated less
than 6 weeks after he made his support known.
Admittedly Eagen received no discipline prior to his dis-
charge and he was discharged without benefit of Respondent’s
progressive disciplinary policy. Respondent contends however,
that its progressive disciplinary policy was not applicable be-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
cause Eagen engaged in gross misconduct. In support of this
argument, Respondent submitted records to show that it has
also discharged 14 other employees for similar gross miscon-
duct. Respondent’s records however, do not support a finding
that other employees have been similarly treated. Eagen admit-
ted that he used the words “shit” and “bullshit” when describ-
ing the appearance of the aisles and the work process affected
by conducting case counts. While Mulack asserts that Eagen
used these words more than once, he acknowledges that the
usage was within the same context as asserted by Eagen. Nei-
ther Mulack nor any other management official testified that
Eagen used these words or any alleged profanity to describe an
individual or to address any specific individual.
Respondent’s records demonstrate that it has discharged
other employees for gross misconduct involving statements
made by the employees at Respondent’s facility. The circum-
stances in which the other employees were terminated and the
context and content of their statements are distinguishable from
the present case. Employee statements that led to discharge
involved such comments “Oh my God, you’re fucking stupid,”
“Don’t fuck with me today,” and “kiss my ass.”10 One of the
discharges based upon an employee’s profanity involved an
insubordinate response to a crew leader.11 Five discharges
resulted after an employee’s use of profanity in the presence of
customers or were based upon customer complaints.12 Two of
the discharges resulted from an employee’s specific description
of another employee.13 In one instance, the employee is al-
leged to have “lost his temper with seven associates in the Bak-
ery” and to have shown “Total lack of respect for the individ-
ual.” Rather than discharge however, the employee received a
voluntary termination and his exit interview reflected that he
would be considered for rehire.14 One of the records submitted
by Respondent reflected that on June 20, 2001, Department
Manager DeMarco requested an employee to “please help him”
with some work that he was doing. The employee responded
by shouting “Can you hold on a damn minute, I just got done
carrying out 25 rock.” The record reflects that a customer was
standing nearby and commented on the employee’s “dirty
mouth” and complained to management that she was offended.
Rather than discharging the employee, Respondent gave the
employee a decision-making day consistent with the progres-
sive discipline policy. When the employee refused to sign the
coaching for improvement form, he was terminated.15 In re-
viewing Respondent’s record of employees whose employment
was terminated for allegedly similar conduct, I note that only
one of the 14 employees was terminated prior to Eagen. I also
note that the employee was shown to have been terminated for
violation of company policy. The note in the personnel file
reflects that the employee and her husband purchased items at
one of Respondent’s registers. During the course of the pur-
chase, the employee and her husband caused a disturbance

10 R. Exhs. 21, 22, and 61.
11 R. Exh. 59.
12 R. Exhs. 22, 24, 57, 58, and 60.
13 R. Exhs. 63 and 62 alleging that the discharged employees de-
scribed other employees as “dickhead” and a “fat f—b—” respectively.
14 R. Exh. 23.
15 R. Exh. 58.
because of the prices on certain items. The written account
described the husband as loudly belligerent and argumentative.
Three customers were noted to have walked away from the
checkout line. In the course of the conversation, the employee
told the manager that she was not going to drink that “crappy
store brand.” The explanation of termination reflected that the
employee was terminated for inappropriate conduct and her
lack of respect by using profanity with the manager.16
The record also reflects that an employee was terminated on
April 9, 1997, for fighting on company property. His personnel
file however, reflects that previously on September 24, 1996,
the same employee was reprimanded for calling another em-
ployee a “bitch.” On November 29, 1996, the employee was
again reprimanded for his attitude around others and his lan-
guage.17 While an employee was documented to have used
obscene language on the sales floor on January 2, 2001, she
was given a decision-making day rather than termination.18 On
May 18, 2001, an employee was given a decision-making day
based upon other employees’ complaints that the employee
used inappropriate language and offensive comments.19 On
October 28, 2002, an employee was given a decision-making
day when the employee allegedly used the phrase “God
damned” to another employee. On December 19, 2000 an em-
ployee was terminated after provoking an argument with one of
the store’s vendors. His file reflects however that just a month
earlier, the same employee repeatedly called another employee
“asshole” in front of other employees.20 On April 10, 2001, an
employee was terminated after calling another employee
“bitch.” Respondent’s records reflect however, that Respon-
dent rehired the same employee on August 28, 2001. On No-
vember 8, 2001, he was promoted to a crew leader position.
Thus, the record evidence reflects that while Respondent has
terminated other employees for their use of profanity, the cir-
cumstances have not been similar to those involving Eagen.
When other employees have been discharged, the actual state-
ments have been different and the contexts of the statements
were different. Respondent’s records also reflect that other
employees have used profanity and were disciplined under the
coaching for improvement program rather than discharged.
Mulack testified at Eagen’s State unemployment compensation
hearing that Respondent does not have a list of words that are
defined as profanity. Mulack also admitted that it is his decision
as to what constitutes “profanity” and his determination de-
pends upon the context in which it is used.
Mulack testified that while Respondent’s corporate labor re-
lations’ representatives visited the store because of the reports
of union activity, they gave him no instructions as to how to
respond to the union activity. He also testified that when he
made the decision to terminate Eagen, he did so without con-
sulting the district manager or any other management official at
any level higher than his own store management. I do not find
Mulack’s testimony credible. To assert that he terminated the
16 R. Exh. 28.
17 U. Exh. 4.
18 U. Exh. 7.
19 U. Exh. 9.
20 GC Exh. 29.
WAL-MART STORES, INC. 807
only known union supporter without consulting either his dis-
trict manager or the corporation’s headquarters is simply not
plausible. Respondent obviously viewed the employees’ orga-
nizing activity as having a high priority inasmuch as it merited
a store visit from corporate labor relations’ personnel. As man-
ager of a store of over 500 employees, it is reasonable that he
would evaluate and consider the effect of Eagen’s discharge on
the existing union organizing. To assert that he did so without
considering Eagen’s union activity or consulting higher man-
agement supports an inference that Eagen was terminated for
reasons other than his alleged profanity.
Respondent contends that Eagen is not a credible witness and
asserts in its brief “Eagen will say whatever he thinks he needs
to say to advance his position regardless of the truth.” In part, I
agree with Respondent that much of Eagen’s testimony ap-
peared to be self-serving with obvious embellishment. His
testimony also contained conflicts and inconsistencies.21 De-
spite the inconsistencies however, Respondent’s witnesses’
corroborate that he repeatedly told Respondent’s managers
about his involvement with the union. It was in fact Backlund
who confirmed that Eagen reported the name and telephone
number of the union representative who was targeting the Port
Orange store for organizing.
Respondent argues that General Counsel has not established
a prima facie case because Respondent had no knowledge that
Eagen supported the union. Respondent contends that while
Eagen told Mulack and Backlund that he had signed a union
card, he had also done so to “keep Mulack informed.” Eagen’s
own testimony reflects that when he talked of his union activity
with management, he downplayed or minimized the extent of
his activity and that of others. Candidly, his own description of
his comments reflects an attempt to ingratiate himself to man-
agement. There is no allegation that he made any threats or
predictions related to his involvement with the Union. His
apparent cordial communication however, does not diminish
his union activity. Mulack clearly admitted that he anticipated
the Union’s attempt to contact employees and that Eagen was
the only employee known to have had contact with the Union.
Eagen not only told Mulack that he signed a union card, but he
also told Backlund and Leake. Eagen was the only employee
who appeared to be talking about the union. For Respondent to
assert that it did not know that Eagen supported the union when
he disclosed to three separate management officials that he had
signed a union card is disingenuous.
Respondent further asserts that even if Eagen was engaged in
concerted activity at the time of his discharge, his statements to
Mulack removed him from the protection of the Act. Specifi-
cally, Respondent relies upon the Board’s ruling in Atlantic
Steel Co., 245 NLRB 814, 816 (1979), where an employee was
lawfully terminated after calling his supervisor a “lying son of a
bitch.” In its brief, Respondent also cites the Board’s recent
ruling in Aluminum Co., 338 NLRB No. 3 (2002). The facts of

21 Eagen testified that he received his performance appraisal from
Assistant Manager “Cheryl” but admits that he complimented “Julie”
on her presentation of the appraisal. At the State unemployment hear-
ing, Eagen contended that he had used “bull” rather than “bullshit” in
talking with Mulack.
that case reflect that within a 3-day period, a probationary em-
ployee made a number of statements in the presence of supervi-
sors and other employees. On one occasion, the employee
stated: “Wonder how Kid Mitch (Supervisor Mitchell) is going
to fuck us now?” After observing a supervisor performing
bargaining unit work, the employee stated in reference to the
supervisor: “if the son of a bitch wanted to be a maintenance
man, to get tools, or to get his a—back in the office.” The em-
ployee continued by yelling, “so you’re telling me what we
have is chicken—shit—bosses out here.” A several minute
tirade followed, punctuated with other expletives, including
references to supervisors as “those mother fuckers” and accusa-
tions that they were trying to “pull some bullshit.” In finding
that the employee’s conduct was outside the protection of the
Act, the Board noted that none of the profane outbursts in-
volved face-to-face meetings with management where the em-
ployee sought to present his grievances. The Board noted that
the outbursts were made in employee breakrooms where the
statements could be overheard by coworkers and would rea-
sonably tend to affect workplace discipline by undermining the
authority of the supervisors subject to his vituperative attacks.
Additionally, two of the employees witnessing the tirade went
to the supervisor and voiced their opinion that he should not
tolerate that kind of behavior by an employee. I find the cir-
cumstances of these cases distinguishable from the circum-
stances of the case herein.
Respondent is correct in its assertion that an employer’s con-
duct may be so flagrant or opprobrious that it may lose the
protection of the Act even when it occurs during the course of
Section 7 activity. PPG Industries, 337 NLRB 1247 (2002),
New Process Gear, 249 NLRB 1102 (1980). Not all inappro-
priate conduct however, removes the employee from the protec-
tion of the Act. The Board and courts have found that even
foul language or epithets directed to a member of management
insufficient to remove the protection of the Act. Burle Indus-
tries, 300 NLRB 498 (1990), enfd. 932 F.2d 958 (3d Cir.
1991),22 Postal Service, 241 NLRB 389 (1979),23 Thor Power
Tool Co., 148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th Cir.
1965),24 Crown Central Petroleum Corp. v. NLRB, 430 F.2d
724 (5th Cir. 1970).25
The Board’s test for determining whether an employee en-
gaged in protected activity loses the protection of the Act in-
cludes a consideration and balancing of several factors: (1) the
place of the discussion; (2) the subject matter of the discussion;
(3) the nature of the employee’s outburst; and (4) whether the
outburst was, in any way, provoked by an employer’s unfair
labor practice. Atlantic Steel Co., 245 NLRB 814, 816–817
(1979). There is no dispute that while Eagen used such words
as “shit” or “bullshit,” he used them only in context of describ-
ing the case counting production measurement and its effect
upon the appearance of the store. Respondent does not contend
that he used these words or any profanity to describe another
22 An employee was discharged in part for calling his supervisor a
“fucking asshole.”
23 Calling an employer an “asshole.”
24 Calling an employer a “horse’s ass.”
25 Calling an employer a “damned liar.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
employee or a member of management. There was no associ-
ated insubordination to any supervisor. While the discussion
occurred in the retail area of the store, there is no evidence that
any other employees or customers overheard the conversation.
Inasmuch as Eagen had accused Graves the previous day of
instituting the case count on his crew in part because of union
activity on the crew, it may be argued that the comments were
provoked by Respondent’s unfair labor practices. Thus, credit-
ing Eagen’s description of his conversation with Mulack, I do
not find that Eagen’s remarks removed him from the protection
of the Act.
Respondent also argues that even if General Counsel has es-
tablished a prima facie case, General Counsel cannot establish
that Respondent would not have taken the same action regard-
less of any unlawful motive. Respondent contends that Eagen’s
discharge was totally consistent with Respondent’s policy on
the use of profanity in the store. In its brief, Respondent ac-
knowledges that while there is some evidence that employees
used profanity but were not terminated, such a number was
small in comparison to those who were terminated. Addition-
ally, Respondent argues that Eagen’s profanity occurred on the
sales floor in a hostile and threatening manner. As discussed
above, Respondent has presented evidence that employees have
been terminated for the use of profanity. A review of those
discharges however, reflects that the circumstances and context
of the profanity can be distinguished from the instant case.
Respondent’s discharge of other employees for the use of pro-
fanity involved primarily circumstances of insubordination or
hostile and disrespectful comments about other employees.
Additionally, I do not credit Mulack’s testimony that Eagen’s
comments were made in a hostile or threatening manner.
Eagen testified that when he spoke with Mulack, he had been
approximately three feet away and had not raised his voice.
Mulack described Eagen’s voice as aggressive although he
acknowledged that Eagen spoke in a normal speaking voice.
Mulack testified that both Graves and Ken Carney were present
during Eagen’s conversation with him on May 22. Neither
Graves nor Carney testified or corroborated Mulack’s descrip-
tion of Eagen’s conduct.
Accordingly, I do not find that Respondent has established
that it would have terminated Eagen even in the absence of his
protected and union activity. I find Respondent’s discharge of
Eagen on May 22 as violative of Section 8(a)(1) and (3) of the
Act.
B. Whether Respondent Unlawfully Interrogated Employees
In the complaint, General Counsel alleges that in late April
2000, Bob Mulack, Bob Teeter, and Steve Leake interrogated
employees about employees’ union activity. General Counsel
presented only the testimony of Edward Eagen in support of
these complaint allegations. Specifically Eagen testified that he
met with Mulack on or about April 17 to discuss his concerns
about Grocery Stock Crew Leadsperson Gary DeLaura. In
describing DeLaura’s treatment of employees on his crew,
Eagen commented that this is the kind of treatment by a super-
visor “that causes unions to come in.” Eagen alleges that Mu-
lack responded by asking “do we have union activities out
there?” Eagen also alleges that Mulack inquired as to whether
Eagen and others had signed union authorization cards and the
identity of those who had signed cards. Eagen recalled that
Teeter had been present during this conversation with Mulack.
In response to Eagen’s testimony, Mulack recalled that Eagen
told him that he had signed a union card to keep Mulack in-
formed. Mulack denied asking Eagen if he had signed a card
and denied asking if any other employees signed a card. Mu-
lack testified that as a manager for Respondent, he had been
trained on Respondent’s position on unions and he knew that he
could not ask questions or threaten or spy or “anything like
that.” Mulack also testified that Teeter had not been present
during his entire conversation with Eagen.
Eagen also testified that when he met alone with Leake after
the group stock crew meeting on or about April 30 or May 1,
Leake told him that he knew that Eagen had signed a union
card. Leake then followed up by stating that he knew that it
was illegal for him to talk with Eagen but “just between us two,
what’s going on [out] there?” Eagen recalled that he then told
Leake that other employees had signed cards but he didn’t
know their names. Eagen also opined that he didn’t think that
many employees had signed cards and he thought that with all
of the videos and DeLaura’s termination, a lot of the union
support would go away. In contrast to Eagen, Leake not only
denied having a meeting with Eagen after the group meeting,
but also denied asking Eagen any questions about the Union.
Leake testified that Eagen approached him after the meeting
and told him that Respondent’s store was a great place to work,
thanked him for coming, told him that Mulack was a good store
manager, and added, “We don’t need a union at Wal-Mart.”
The Board has determined that the issue of whether question-
ing is coercive is to be decided on the basis of all the surround-
ing circumstances. See Rossmore House Hotel, 269 NLRB
1176, 1179 (1984), enfd. sub. nom. Hotel Restaurant Employ-
ees v. NLRB, 760 F.2d 1006 (9th Cir. 1985), Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985). In analyzing the “totality of
the circumstances” several factors are considered: (1) the back-
ground of the employer; (2) the nature of the information
sought; (3) the identity of the questioner; (4) the place and
method of interrogation; and (5) the truthfulness of the reply.
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Although
“strict evaluation of each factor” is not required, the indicia
have been found as a starting point for assessing the totality of
the circumstances. See Perdue Farms, Inc., v. NLRB, 144 F.3d
830, 835 (D.C. Cir. 1998).
In its brief, Respondent cites the Board’s decision in John W.
Hancock Jr., Inc.,26 in support of its argument that Mulack did
not violated §8(a)(1) in his April 17 conversation with Eagen.
In John W. Hancock Jr., Inc., a supervisor asked an employee
how many men were at the union’s meeting the previous night.
When the employee responded that he did not know, the super-
visor dropped the subject. The Board noted that while the em-
ployer had voiced its opposition to the union before this state-
ment there had been no threats or promises related to the union.
Additionally, the Board noted that the answer to the question
would not have revealed the union sentiments of any one em-
ployee. The Board cited Board and court decisions where simi-

26 337 NLRB 1223 (2002).
WAL-MART STORES, INC. 809
lar questions gauging nothing more than numerical support for
a union have not been found to constitute unlawful interroga-
tion.27 The Board considered the fact that the questioner was a
low level supervisor who asked the question as he and the em-
ployee rode together as a part of breaktime and there was no
accompanying explicit or implicit threat of reprisal. Based
upon the totality of the circumstances, the question was not
found to be violative of the Act. In a more recent decision, the
Board affirmed the administrative law judge in finding that a
supervisor’s interrogation about the location and date of a union
meeting was not violative of the Act. While the interrogation
came from a high level supervisor, the employees were open
union activists and there was nothing intimidating or coercive
in the manner of the questioning. Although one of the employ-
ees did not answer truthfully, the judge did not find this as evi-
dence of coercion. Based upon the atmosphere of the question-
ing, the limited nature of the single question, the employees’
open union sympathies, and the absence of any threat or intimi-
dation, the judge found no violation of §8(a)(1). Superior Em-
erald Park Landfill, LLC, 340 NLRB No. 54 slip op. at 19
(2003).
Based upon the totality of the circumstances, I do not find
that Mulack interrogated Eagen in violation of §8(a)(1). While
the conversation between Eagen and Mulack occurred in an
office on Respondent’s premises, Eagen specifically initiated
the meeting. There is no allegation that Mulack was involved
in any prior unfair labor practices at this facility. The record in
fact, contains no evidence of any prior union activity at this
facility. It is without dispute that Eagen first brought up the
subject of the Union. Once Eagen brought up the subject of the
Union, Mulack asked if there was union activity in the store.
Eagen alleges that Mulack then asked him whether he had
signed a union card and then followed up as to whether other
employees had signed cards. I do not credit his testimony that
Mulack specifically asked if he signed a card. Crediting Mu-
lack in part, I find that Eagen volunteered that he signed a card.
Based upon Eagen’s own testimony, it appears that he sought
Respondent’s favor by volunteering that he had signed a union
card and by freely discussing the extent of union activity with
Mulack. Eagen does not allege that Mulack accompanied his
questions with any threats or promises. While Eagen alleges
that Teeter encouraged him to apply for DeLaura’s crew leader
position, there is no evidence that Teeter participated in the
alleged interrogation28 or that either Mulack or Teeter promised
this job or any other benefit for his information about the Un-
ion. Accordingly, I do not find the conversation as alleged by
Eagen as coercive or in violation of Section 8(a)(1) of the Act.
In describing his conversation with Leake on April 30th or
May 1, Eagen alleges that Leake began by stating that he knew
that Eagen had signed a union card. Eagen alleges that Leake
then inquired, “what’s going on out there?” Eagen acknowl-

27 Including Farr Co., 304 NLRB 203, 217 (1991); NLRB v. Cham-
pion Laboratories, Inc., 99 F.3d 223 (7th Cir. 1996), denying enforce-
ment in relevant part to 316 NLRB 1133 (1995); NLRB v. Okun Bros.
Shoe Store, Inc., 825 F.2d 102, 108 (6th Cir. 1987), denying enforce-
ment in relevant part to 275 NLRB 1019 (1985).
28 Although the complaint alleges that both Teeter and Mulack inter-
rogated employees, there is no evidence of interrogation by Teeter.
edges that he then reiterated that he signed a card and he identi-
fied that others had signed cards. Eagen testified that he then
volunteered his opinion as to how the Union’s support had been
affected by Respondent’s videos and terminating the offensive
supervisor. Again, I do not find the totality of the circum-
stances to support that Leake’s comments were coercive or
violative of the Act. Based upon Eagen’s testimony, Leake
knew that he had signed a union card before they spoke. Eagen
reiterated this fact at the beginning of the conversation and then
talked about others’ signing cards. As with his conversation
with Mulack and Backlund, Eagen appeared to seek Respon-
dent’s good graces by volunteering information about the Un-
ion’s organization. There is no evidence of any accompanying
threat or animus toward the Union or employees supporting the
Union. Accordingly, there is not sufficient evidence to support
a finding of Leake’s interrogation in violation of §8(a)(1) of the
Act.
C. Demint’s Union and Protected Activity
Based upon the testimony of Demint as well as Eagen and
Marrs, it is apparent that Demint was the employee who initi-
ated contact with the Union in April 2000. Demint alleges that
he continued to solicit authorization cards and distribute mate-
rials that he obtained from the internet even after Eagen’s dis-
charge in May 2000. Union Representative Marrs testified that
Demint contacted him around Memorial Day 2002. Marrs
explained to Demint that the previously signed authorization
cards were dated and the Union needed to resign employees if
the Union restarted the union campaign. Marrs recalled that he
gave cards to Demint during the first week of June 2002. Al-
though Marrs testified that Demint returned some of the signed
cards during the second and third weeks of June, he did not
identify the number of cards. Crediting the testimony of Eagen,
Demint, and Marrs as related to Demint’s union activity, I find
that Demint was involved in the initial organizing efforts in
2000, and that Demint continued his support for the Union with
some degree of activity until the date of his discharge.
The original charge in Case 12–CA–20882 that was filed by
the Union on June 1, 2000, alleges that Respondent unlawfully
terminated Eagen. A complaint and notice of hearing issued on
October 30, 2001, setting the matter to be heard on February
21, 2002. Demint alleges that he gave an affidavit to the Board
on behalf of Eagen in February 2002. Respondent does not
dispute that Demint provided the sworn testimony as he alleges,
but maintains that it had no knowledge of Demint’s having
done so.
D. Respondent’s Knowledge of Demint’s Union and
Protected Activity
The overall record evidence indicates that Demint was not
only engaged in activities in support of the Union but he also
provided testimony to the Board under the protection of Section
8(a)(4) of the Act. Respondent argues that the General Counsel
cannot establish an essential prong of the prima facie analysis
because there is no credible evidence that Regional Personnel
Manager Verian Booker, the decisionmaker, knew of any union
activity by Demint or that he had given an affidavit to the
Board. Booker testified that at the time that she made the deci-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
sion to terminate Demint, she had no knowledge of his union
activity or knowledge that he had given an affidavit to the
Board. Mulack testified that he was aware only generally of
union activity in 2000, and that he had no knowledge of any
activity after 2000.
In his brief, counsel for the General Counsel points to
Demint’s testimony concerning conversations with both Gro-
cery Department Manager Mike Burke and Radio Grill Man-
ager Barrett Worst to support Respondent’s knowledge of his
union activity. Demint alleged that during the week before his
discharge, he told Burke that the only way that things would
change in the store would be if they could get in a union. Burke
denied that he discussed Demint’s union activity at any time on
June 24 with Mulack or Maufroy. Burke also denied that at the
time of Demint’s statements on June 24, he was unaware that
Demint had given an affidavit or participated in the Board’s
investigation of Eagen’s unfair labor practice charge. Demint
alleges that he told Worst after his June 24 discussion with
Mulack that he was going to try to get in union in order to get
rid of the managers. Worst however, testified that during his
June 24th conversation with Demint, Demint told him that he
was “about” to be fired because of his earlier conversation with
Mulack. Worst alleges that Demint made the statement: “I
might just come back and blow up [sic] the place up.” Worst
acknowledged that he had not reported to management any of
the conversation with Demint.
With respect to Respondent’s knowledge of Demint’s union
activity, the most credible witness was City of Port Orange
Police Officer Joseph Swetz. He testified that on June 25th, his
dispatcher notified him by radio for a call of a “disgruntled
employee at Wal-Mart making threats.” Upon his arrival at the
store, he initially met with Respondent’s Loss Prevent Manager
Moore and then later with Store Manager Mulack. Respon-
dent’s representatives informed Officer Swetz that an employee
had been overheard by other employees to make threats. While
Officer Swetz did not recall which manager made the state-
ment, he recalled that he was told that there was to be an inter-
view with the employee and because of the severity of threats
the employee was to be terminated. Officer Swetz recalled that
during his conversation with Moore and Mulack, he was in-
formed of Demint’s wife’s recent termination from Wal-Mart.
He also recalled that the managers told him that “at one point”
Demint had tried to bring a union into Wal-Mart. Swetz added
however, that it was his impression that this had occurred in the
past and not at that time. He recalled that the only reference to
Demint’s union activity had been his passing out literature at
work. Based upon the credible testimony of Officer Swetz, the
record reflects that at the time of Demint’s termination, Re-
spondent was aware of Demint’s past support for the Union.
Although crediting the testimony of Officer Swetz, there is no
evidence that Respondent was aware of any resurgence of his
activities.
Demint testified that after he gave his affidavit to the Board
in February 2002 on behalf of Eagen, he shared his having done
so with Furniture Manager Brad Horner, John Newburn, and
Leslie Baxter. Horner credibly testified that he had been aware
that Demint supported the Union because Demint asked him to
sign a union card and he had done so. While Horner did not
identify whether this solicitation occurred in 2000 or later, he
recalled that it had been “way before” Demint’s discharge.
Horner denied that he knew about Demint’s having given an
affidavit to the Board until after Demint’s discharged. I credit
Horner’s testimony and I further find that there is no evidence
that Horner either reported Demint’s union or protected activity
to Respondent prior to his Demint’s discharge. Demint also
alleges that he told his friends John Newburn and Leslie Baxter
that he had given an affidavit to the Board. Demint describes
Newburn as the floor supervisor for the cleaning crew and Bax-
ter as “over the unloaders in the back of the store.” There is no
record evidence that establishes the supervisory status of either
Newburn or Baxter. Additionally, there is no evidence that
Newburn or Baxter ever communicated this information to
Mulack or to Booker prior to Demint’s discharge.
Mulack was asked if he discussed Demint’s union activity
with Verian Booker when he spoke with her prior to Demint’s
discharge. Mulack responded by stating: “No, We had no un-
ion activity outside of what happened back in April of 2000.”
Mulack then testified that at the time of Demint’s termination,
he was not aware of any organizing activity at the store by
Demint in May or June of 2002. I do not find Officer Swetz’s
credited testimony to contradict Mulack’s testimony. Based
upon the total record evidence, it is apparent that Respondent
was aware of Demint’s participation in the Union’s 2000 orga-
nizing campaign. There is insufficient evidence however, that
Respondent was aware of any renewed activity by Demint.
Additionally, there is insufficient evidence to demonstrate that
Respondent was aware that Demint had given an affidavit on
behalf of Eagen in February 2002.
E. Whether Respondent Terminated Demint in Violation
of the Act
Respondent asserts that in applying the Wright Line frame-
work to Demint’s discharge, General Counsel cannot meet its
burden of establishing a prima facie case. Respondent contends
that there is no evidence that Verian Booker, the decision-
maker, knew of Demint’s union activity or the fact that he had
given an affidavit to the Board. Respondent further asserts that
even assuming a prima facie case; Respondent has demon-
strated that it would have made the decision regardless of any
impermissible motive. As discussed above, I find that General
Counsel has demonstrated that Demint engaged in union activ-
ity and that Respondent was aware of that activity at the time of
his discharge. While Respondent may only have been aware of
Demint’s previous 2000 union activity, the union activity was
sufficient for Respondent to mention it to Officer Swetz on the
day of Demint’s discharge. Based upon such a reference to
Demint’s union activity, it is reasonable that the termination
was in part motivated by Respondent’s union animus. Accord-
ingly, General Counsel has met its burden and has established a
prima facie case that Demint’s union activity was a “motivating
factor” in Respondent’s decision to terminate Demint. Despite
the fact that Demint’s union activity may have been a motivat-
ing factor, the Respondent has nevertheless demonstrated that it
would have terminated Demint in the absence of any union or
protected activity. Wal-Mart Stores, Inc., 340 NLRB No. 83,
slip op. at 1 fn. 1 (2003).
WAL-MART STORES, INC. 811
The strongest evidence to support my conclusion that Re-
spondent would have terminated Demint in the absence of his
union activity is the testimony of Burke and Wells as well as
that of Demint. Burke credibly testified that Demint stated that
he could understand how somebody can “go postal” and fol-
lowed with a comment about “blowing the place up.” Burke
also recalled that when Damin Moore said something about
remembering him, Demint explained that it is usually upper
management that gets it first. Wells credibly testified that he
also heard Demint’s comment about going postal and blowing
up the place. Wells testified that when Burke laughed at
Demint’s comment, Demint responded: “No, I’m serious. I’ve
got the stuff to do it.” Wells also corroborated Demint’s state-
ment that his actions were directed to upper management.
Wells credibly testified that after hearing Demint’s comments,
Damin Moore and he discussed what they should do. Ulti-
mately, they decided that they could not let the comments go
without reporting them to management. The credible evidence
reflects that Respondent would not have been aware of
Demint’s comments if Wells and Moore had not decided to
report them to management. Burke testified that when he first
heard the comments, he thought that Demint was joking and he
did not report the threats to management. Burke also testified
that when Mulack and Maufroy first questioned him, he told
them that he thought that Demint was joking. Although Burke
was the grocery manager at the time of the conversation, it is
apparent that he did not immediately perceive Demint’s com-
ments in the most negative light. His testimony would demon-
strate that he, in effect, gave Demint the benefit of the doubt. I
note that this is the same supervisor to whom Demint alleged
that he had earlier reported his union support. Nevertheless,
Burke told Mulack and Maufroy that he thought that Demint
was only joking. Burke went on to testify however, that after
seeing Demint’s response when confronted by Mulack, he
changed his opinion. Burke explained: “I no longer took it as a
joke.” Burke described Demint’s demeanor as “strange” during
his meeting with Mulack, Maufroy, and Burke. Demint starred
at Burke throughout the meeting and failed to even look at Mu-
lack. Despite anything said by Mulack, Demint made no re-
sponse. Finally, Burke told Demint “The man asked you a
question.” Demint simply responded that he had nothing to
say. Burke’s description of Demint’s behavior during the June
24 meeting is further bolstered by Demint’s own testimony.
Demint admitted that during his meeting with Mulack, he said
nothing and simply starred at Burke. Demint admits that he
had a conversation with Burke about his wife’s termination, his
dog dying, and other misfortunes. He denies however, that it
occurred on June 24, and he denies that he mentioned anything
about going postal during the conversation. He admits that he
had a conversation with Moore on June 24. He testified that it
had been Moore who made the comment about his going postal
and that he had simply agreed. Demint recalled that when
Moore had allegedly laughed at the comment, he told Moore
that he better be worried because he had the things to do it.
Demint also admitted that he had told Moore: “Hey, I’m not
going to take you out. I’ll just take out upper management.”
Thus, admittedly Demint talked with Moore about “going
postal” and threatened that he would take out upper manage-
ment. He admits that he also told Moore that he had the “things
to do it.” Accordingly, Demint’s own testimony corroborates
that he made threats on June 24 and his contention that he was
joking with Moore does not diminish the admitted threat.
An employer does not meet its burden under Wright Line
merely by showing that it would have been reasonable to dis-
charge an employee for violations of work rules. The employer
must affirmatively show that such action would have been
taken in any event. Hicks Oils & Hicksgas, Inc., 293 NLRB 84,
85 (1989), enfd. 942 F.2d 1140 (7th Cir. 1991). I find that
Respondent has demonstrated that it would have terminated
Demint regardless of his union or protected activity. Respon-
dent argues in its brief that “It would fly in the face of reason
and public policy to hold that union activity can be cited as a
justification for putting an entire workforce at risk of workplace
violence.” While Demint’s past union activity may have been a
motivating factor in his termination, it is inconceivable that he
would not have been fired even in the absence of such activity.
Respondent’s policies and procedures provide that certain con-
duct may result in immediate termination. Fighting/assault or
threats as well as violation of the workplace violence policy are
identified as conduct for which there may be immediate termi-
nation. Respondent’s corporate policy on workplace violence
provides that harassment; violence, threats of violence, or other
similar conduct is unacceptable behavior and is a violation of
Company policy. The policy provides that any employee who
violates this policy will be disciplined up to and including ter-
mination from the Company. Listed among the conduct which
will not be tolerated are veiled threats of harm, intimidation,
and threatening harm or harming another person. There is no
evidence that any other employee has engaged in such threats
and has not been terminated. The Board has previously found
that an employer has not violated the Act when it has termi-
nated a known union activist for threatening or causing vio-
lence. See Stemilt Growers, 336 NLRB 987 fn. 2 (2001). Ac-
cordingly, I find that Respondent’s discharge of Demint did not
violate Section 8(a)(3), (4), and (1) of the Act as alleged in the
complaint.
CONCLUSIONS OF LAW
1. Respondent, Wal-Mart Stores, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent violated Section 8(a)(3) and (1) by discharg-
ing Edward Eagen.
3. The foregoing unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent has not engaged in any unfair labor practice
not specifically found herein.
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.
Having found the Respondent discriminatorily discharged
Edward Eagen, I shall recommend that Respondent offer him
reinstatement and make him whole for any loss of earnings and

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812
other benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest, as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended29
ORDER
The Respondent, Wal-Mart Stores, Inc., Port Orange, Flor-
ida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining employees because
they engaged in union or other protected activity.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Edward
Eagen 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 and privileges
previously enjoyed. Make Edward Eagen whole for any loss of
earnings and any other benefits suffered as a result of the dis-
crimination again him, in the manner set forth in the remedy
section of the decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter notify the employees in writing that this has

29
If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
been done and the discharges will not be used against them in
any way.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records 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.
(d) Within 14 days after service by the Region, post at its
Port Orange, Florida facility copies of the attached notice
marked “Appendix.”30 Copies of the notice, on forms provided
by the Regional Director for Region 12, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since May 22, 2000.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
30
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.”