Wal-Mart Stores, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1287 (N.L.R.B. 2004)

WAL-MART STORES, INC.
343 NLRB No. 127
1287
Wal-Mart Stores, Inc. and United Food and Com-
mercial Workers International Union, AFL–
CIO. Case 19–CA–27720
December 16, 2004
DECISION AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On November 8, 2002, Administrative Law Judge Bur-
ton Litvack issued his decision in this case, finding that
the Respondent violated Section 8(a)(1) of the Act by (a)
requiring employee Ken Stanhope to continue participat-
ing in an investigatory interview concerning a matter that
Stanhope reasonably believed could lead to discipline,
after his request for the presence of his own witness had
been denied; and (b) discharging Stanhope for exercising
his right to a witness at an investigatory interview that
he reasonably believed could lead to discipline. The Re-
spondent filed exceptions, a supporting brief and a reply
brief, the General Counsel filed an answering brief, and
the Charging Party filed exceptions, a supporting brief
and 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 exceptions1 and briefs, and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order
Remanding.2
The judge found that under Epilepsy Foundation of
Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant
part 268 F.3d 1095 (D.C. Cir. 2001), cert. denied 536
U.S. 904 (2002), the Respondent violated Section 8(a)(1)
by requiring employee Stanhope to continue an investi-
gatory interview on March 16, 2001,3 after Stanhope’s
request for a witness at the interview had been denied.4
The judge further found that the Respondent violated
Section 8(a)(1) by terminating Stanhope on March 17
after he refused to attend a subsequent investigatory in-
terview without the presence of a witness. With respect
to this latter finding, the judge stated in his conclusions
of law that Stanhope was discharged because of his “re-
quest” for the presence of a witness at an investigatory
interview. However, the judge thereafter stated in the

1 No exceptions were filed to the judge’s finding that the Respon-
dent’s discharge of Stanhope did not violate Sec. 8(a)(3) of the Act.
2 The Respondent’s motion for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
3 All dates hereafter are in 2001 unless stated otherwise.
4 The judge found that although Stanhope requested the presence of
a “witness,” it was understood that he was, in fact, requesting the pres-
ence of an employee representative.
remedy section of his decision that Stanhope was dis-
charged “because he refused to participate in an investi-
gatory interview . . . unless Respondent granted his re-
quest for the presence of his own witness.” Thus, it is
unclear from his decision whether the judge found that
Stanhope was discharged because of his request for a
witness at the investigatory interview on March 16 or for
his refusal on March 17 to attend an investigatory inter-
view without a witness present. Under Epilepsy Founda-
tion this lack of clarity was not fatal because both the
request for a witness and the refusal to attend the investi-
gatory interview without the witness constituted pro-
tected activity, and therefore discharging Stanhope for
either of these actions would be unlawful under that case.
After the issuance of the judge’s decision, the Board
issued its decision IBM Corp., 341 NLRB 1288 (2004),
overruling Epilepsy Foundation and holding that an em-
ployee not represented by a union does not have a statu-
tory right to the presence of a coworker at an investiga-
tory interview which the employee reasonably believes
could lead to discipline.5 While holding that an em-
ployer in a nonunion workplace need not accede to its
employees’ requests for the presence of a coworker, the
Board also recognized that such employees retain the
right under Section 7 of the Act to seek such representa-
tion, and cannot be disciplined for making such a re-
quest. IBM, supra at 1295.
It is clear that, under IBM, the Respondent was not ob-
ligated to grant Stanhope’s March 16 request for a wit-
ness at the investigatory interview, and it could lawfully
require Stanhope to continue that investigatory interview
without the presence of his requested witness. Accord-
ingly, we reverse the judge’s finding, and shall dismiss
the complaint allegation, that the Respondent violated
Section 8(a)(1) by requiring Stanhope to continue an
investigatory interview on March 16 after denying his
request for a witness.
With respect to the judge’s finding that the Respondent
violated Section 8(a)(1) by discharging Stanhope on
March 17, we find it necessary to remand this issue to the
judge. As explained above, it is unclear from the judge’s
decision whether the judge found that Stanhope was dis-
charged for requesting a witness on March 16 or for re-
fusing to participate in an investigatory interview without
a witness on March 17. Because the judge’s findings are
based on Epilepsy Foundation, which was overruled in
IBM, and because under IBM the lawfulness of Stan-
hope’s discharge depends on whether he was discharged
for his March 16 request or his March 17 refusal, a re-
mand is required. On remand, the judge will apply the

5 Members Liebman and Walsh dissented from that decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1288
principles of IBM, supra, and clarify whether Stanhope’s
request for the presence of a witness was a motivating
factor in the Respondent’s decision to discharge him and,
if so, whether the Respondent would have discharged
Stanhope even in the absence of that protected conduct.6
ORDER
IT IS ORDERED that the complaint allegations that the
Respondent violated Section 8(a)(1) of the Act by requir-
ing Kevin Stanhope to participate in an investigatory
interview after denying his request for a witness at the
interview, and that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Kevin Stanhope
for his union activity, are dismissed.
IT IS FURTHER ORDERED that the complaint allegation
that the Respondent violated Section 8(a)(1) of the Act
by discharging Kevin Stanhope for his protected con-
certed activity is severed and remanded to Administra-
tive Law Judge Burton Litvack for the purposes de-
scribed above.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules shall be applicable.
CHAIRMAN BATTISTA, dissenting in part.
I disagree with the majority that a remand is necessary
with respect to the allegation concerning the Respon-
dent’s discharge of employee Kevin Stanhope. I find
that dismissal of this 8(a)(1) allegation is warranted un-
der IBM Corp., 341 NLRB 1288 (2004).
The facts show that, on March 16, 2001,1 after receiv-
ing an employee complaint about the workplace conduct
of employee Ken Stanhope, the Respondent’s manager,
Bruce Manderson, asked Stanhope to come back into the
training room, so that he and fellow manager, Marlene
Munsell, could discuss something with Stanhope. Stan-
hope replied that he would go back with them, but
warned them that if the conversation “turns into some-
thing I don’t like” he would ask for an independent wit-
ness. Manderson replied that his request for a witness

6 At this stage, we need not address our dissenting colleague’s con-
tention that, even assuming Stanhope’s request for a coworker/witness
was a motivating factor in his discharge, the Respondent would have
discharged Stanhope in any event for conduct not protected by the Act.
Any findings of fact concerning the validity of the Respondent’s asser-
tions about other factors leading to Stanhope’s discharge are com-
pletely premature in the absence of appropriate findings and analysis
about the extent to which Stanhope’s protected conduct under IBM was
a factor in his discharge.
1 All dates hereafter are in 2001 unless stated otherwise.
would be denied. The three of them walked back to the
training room. Munsell began by informing Stanhope
that a report had been filed stating that Stanhope had
used foul language. Munsell asked Stanhope what he
could tell her about it. Stanhope responded by stating
that he wanted his own witness at the meeting. Munsell
replied that although he had the right to ask for a witness,
she had the right to deny his request. Manderson added
that if Stanhope insisted on having a witness, they would
send him home and they would continue the investiga-
tion without his input. Stanhope denied that he used foul
language, and stood up to leave the room. Manderson
told Stanhope to sit down, and Stanhope did so. Munsell
then asked Stanhope if he had a heated conversation with
an employee. Stanhope replied that he did not know
what she was talking about. Manderson told Stanhope
that he was being sent home for the day so that the Re-
spondent could continue its investigation and so that
Stanhope could be given the opportunity to prepare a
written statement.
Following the meeting, the Respondent’s officials de-
cided that if Stanhope would not provide a written state-
ment of the incident, the Respondent would make a deci-
sion on the information available to the Respondent.
The next day, Manderson approached Stanhope and
asked that he follow him to his office. Stanhope refused
to do so without a witness present. Manderson replied
that Stanhope could not have a witness, and again asked
that he come to his office to speak about the incident.
Stanhope again refused to do so without a witness, and
told Manderson to just fire him right now. Manderson
replied that the investigation would be concluded without
Stanhope’s input. Manderson asked Stanhope if he had a
written statement, and Stanhope replied that he would
not write one. Manderson then told Stanhope he was
terminated for creating a hostile work environment and
using foul language.
Manderson credibly testified that Stanhope’s refusal to
cooperate in the investigation was a factor in the decision
to discharge Stanhope, and that his statements concern-
ing his insistence on a witness were part of his refusal to
cooperate. In addition to the refusal to cooperate,
Manderson testified to other factors that led to Stan-
hope’s termination as well, specifically, his failure to
supply a statement, his use of profanity, and the com-
plaining employee’s distress over the underlying incident
which she reported to the Respondent. Significantly,
Manderson also testified that Stanhope would not have
been terminated on March 17 if he had submitted a writ-
ten statement of position.
The judge found that under Epilepsy Foundation of
Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant
WAL-MART STORES, INC. 1289
part 268 F.3d 1095 (D.C. Cir. 2001), cert. denied 536
U.S. 904 (2002), the Respondent’s refusal of Stanhope’s
March 16 request for a witness violated Section 8(a)(1).
However, as noted by the majority, the Board overruled
Epilepsy Foundation in IBM, supra, which held that an
employer in a nonunion workplace need not accede to an
employee’s request for a coworker at an investigatory
interview. Thus, as the majority correctly finds, under
IBM, the Respondent’s denial of Stanhope’s request for a
witness on March 16, and its requirement that Stanhope
continue the investigatory interview without the presence
of his requested witness, were both lawful.
With respect to the discharge of Stanhope on March
17, however, the majority erroneously contends that a
remand is necessary to determine whether, under IBM,
Stanhope’s request for a witness was a motivating factor
in the Respondent’s decision to discharge him and, if so,
whether Stanhope would have been terminated in the
absence of that protected conduct. Contrary to the ma-
jority’s contention, the record clearly shows that even
assuming Stanhope’s request was a motivating factor in
the decision to discharge, the Respondent would have
discharged Stanhope even in the absence of the request.
There were at least three reasons for discharging Stan-
hope, all of which were unprotected activity. First, Stan-
hope refused to attend the meeting without a witness.
Second, Stanhope refused to supply a statement. Third,
absent any rebuttal from Stanhope, the Respondent found
that Stanhope used profanity and caused distress to a
complaining employee. Even assuming arguendo that a
fourth reason for the discharge was Stanhope’s request
for a witness, I think it clear that Stanhope would have
been fired for the three reasons (at least collectively).
Accordingly, rather than further prolong this matter,2 I
would assess the evidence and dismiss the complaint
now.
Stephanie Cottrell, Esq., for the General Counsel.
Paul M. Ostroff, Esq. (Lane, Powell, Spears & Lubersky), of
Portland, Oregon, for the Respondent.
Christyne L. Neff, Esq., of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The unfair la-
bor practice charge in the above-captioned matter was filed by
United Food and Commercial Workers International Union (the
Charging Party), on September 6, 2001. Based on the filing,
after an investigation, on April 29, 2002, the Regional Director
of Region 19 of the National Labor Relations Board (the
Board), issued a complaint, alleging that Wal-Mart Stores, Inc.

2 The events occurred almost 4 years ago.
(the Respondent), had engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act). The Respondent timely filed an an-
swer, denying the commission of the alleged unfair labor prac-
tices. Pursuant to a notice of hearing, a trial on the merits of
the alleged unfair labor practices was held before the above-
named administrative law judge on June 27 and 28, 2002, in
Anchorage, Alaska. All parties were afforded the right to call
witnesses on their behalf, to examine and to cross-examine
witnesses, to offer into the record any relevant documentary
evidence, to argue legal positions orally, and to file post-
hearing briefs. The latter documents were filed by counsel for
each of the parties and have been closely examined by the
above administrative law judge. Accordingly, based upon the
entire record in the case, including the posthearing briefs and
my observation of the testimonial demeanor of each of the wit-
nesses,1 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, maintains an office and place of
business in Wasilla, Alaska, at which location it is engaged in
the business of the retail sale of merchandise. During the 12-
month period immediately preceding the issuance of the instant
complaint, in the normal course and conduct of its business
operations described above, Respondent had gross sales of
goods and services valued in excess of $500,000 and purchased
and caused to be transferred and delivered to its Wasilla,
Alaska facility goods and materials, valued in excess of $5000,
directly from sources located outside the State of Alaska. Re-
spondent admits that it has been, at all times material herein, an
employer within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
Respondent admits that the Charging Party is now, and has
been at all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. ISSUES
The complaint alleges that, prior to and during an investiga-
tory interview, which employee Ken Stanhope had reason to
believe would result in disciplinary action being taken against
him, Respondent denied his request to have a witness present
during said interview and engaged in acts and conduct violative
of Section 8(a)(1) of the Act by conducting that interview of
Stanhope notwithstanding his request. The complaint further
alleges that Respondent violated Section 8(a)(1) of the Act by
terminating Stanhope because he asserted his right to have a
witness present during the above investigatory interview and,
alternatively, that Respondent violated Section 8(a)(1) and (3)
of the Act by discharging Stanhope because he engaged in un-
ion activity and to discourage other employees from doing so.

1 Notwithstanding that he was present during the entire hearing, the
alleged discriminatee, Kenneth Stanhope, did not testify at the hearing.
Accordingly, there is no record evidence as to his version of the events
herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1290
Respondent denied the commission of the alleged unfair labor
practices and alleges that it terminated Stanhope for cause.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, a corporation with its national headquarters lo-
cated in Bentonville, Arkansas, operates a nationwide chain of
department stores at which it sells merchandise at retail, includ-
ing one such retail store located in Wasilla, Alaska. Marlene
Munsell is the store manager for Respondent at its Wasilla
facility, and Bruce Manderson is the co-manager of the facility.
Respondent’s Wasilla facility is a typical Wal-Mart retail de-
partment store, and, depending upon the season, approximately
350 to 400 individuals, termed associates, are employed there.
Finally, its employees at the Wasilla, Alaska store are not rep-
resented by any labor organization, and the events at issue
herein occurred during the second week of March 2001.
Cynthia (Cindy) Adams, who is a sales representative at Re-
spondent’s Wasilla facility in the electronics department, testi-
fied that, prior to March 10, she had spoken to alleged dis-
criminatee Stanhope on four or five occasions during which the
latter inquired as to the health of her father, an employee at the
Wasilla store, who was, at the time, on a workman’s compensa-
tion leave-of-absence.2 According to Adams, on the above
date, she was working, and, at approximately 5 p.m., while
walking to the employees’ breakroom for her lunch,3 she en-
countered Stanhope in the hallway near the claims and layaway
departments.4 Stanhope,5 who was coming toward her appar-
ently from the breakroom, approached and “asked how my dad
was doing. I answered him. I said my father was doing fine.
He then . . . asked about the workers comp case. I told him I
could not really say much about it because I didn’t know, that I
hadn’t talked to my dad recently about it. He [replied] . . . your
dad should take advantage of it and enjoy workers comp and he
should milk the system for all it’s worth.” As this was similar
to what Stanhope had previously said to her, Adams “kind of
laughed it off”; however, “then he started getting agitated, he
proceeded to go off about a certain member of management . . .
assistant manager Tony.”6 Adams testified, “he was angry and
. . . saying that Tony was a f–king prick and that Tony would
stab you in the back at any opportunity he got. . . . He then
started talking generally about management and about how they
all would stab you in the back and how they all were f–king

2 According to Bruce Manderson, while at work one day, Adams’ fa-
ther had been the victim of an assault by a coworker’s husband.
3 Adams was off the clock at the time of the incident with Stanhope.
There is no evidence as to whether Stanhope was on nonwork time.
4 The claims and layaway departments are located off of a hallway in
the rear of the store. Access to this hallway is through a door from the
sales floor. This is clearly a public area of the store as, according to
Adams, customers commonly are in the layaway department arranging
to pay for items for which they cannot afford “right then.”
5 At the time Munsell became the store manager in December 2000,
Stanhope was a department manager at the Wasilla facility. Shortly
thereafter, he resigned from that position and became an associate in
the food department.
6 Apparently, everyone employed at one of Respondent’s retail
stores is referred to by his or her first name and title.
pricks and just the same thing. He was just very angry at man-
agement.” Then, “he said that . . . if the union were in charge
that we wouldn’t be having these problems, referring to man-
agement. . . . I was getting upset . . . and so he brought up my
father and said that my father was pro-union and that I would
be good to listen to him.” As she was “shocked” by Stanhope’s
comment, Adams did not respond. At this point, observing a
group of employees walking towards them, Adams moved
away from Stanhope and joined the group, and the conversation
abruptly ended. Adams further testified that she became ex-
tremely upset by her encounter with Stanhope, and, asked by
counsel for the General Counsel what upset her, Adams ex-
plained, “I was upset about the conversation. I was scared.
Because at one point during the conversation he got in my face
and he kept swearing. And he would come towards me and I
would step back. And that happened twice that he came to-
ward, and I stepped back.” She added that Stanhope moved
closer to her “when he started talking about Tony.” He “low-
ered down into my face. . . . And I stepped back because I felt
he was violating my space . . . and he stepped towards me and
. . . he was still talking about Tony and I stepped back into the
wall right against claims right there.”7
Adams reported for work on Sunday, March 11. At first, she
said nothing about what had occurred with Stanhope the previ-
ous day, but, becoming “sicker and sicker” thinking about it,
she approached her supervisor, Linda Morton, and described
what had happened. While relating the incident, Adams cried
and appeared to be “very upset,” and Morton requested that
Adams accompany her to speak to Co-manager Bruce Mander-
son.8 They entered Manderson’s office and, with the office
door closed, Adams informed Manderson about her encounter
with Stanhope. Manderson testified, “She said that Ken had
asked her how her father was doing and . . . how she was doing.
She told me that during the course of their conversation, Ken
became very animated, very passionate, started to talk about
management in the store and how he used foul language . . . she
told me that the conversation was something that was very
uncomfortable.” According to Manderson, Adams said that,
after asking how her father was doing, the conversation turned
“strange” when Stanhope began speaking about management
and “the union”; that Stanhope began using the “F word”; that
he used the “F word” in reference to management and the em-
ployees’ “need to have a union”; and that Stanhope told her to
ask her father, who was prounion, about the union.9 When

7 In answer to a question from me, Adams asserted that, while speak-
ing to her, Stanhope became red-faced and was “flinging his arms
around.”
According to Store Manager Munsell, Stanhope weighed signifi-
cantly more at the time of the incident than at the time of the hearing.
8 The meeting with Manderson was in accord with Respondent’s so-
called “open door policy.” According to Munsell, pursuant to this
policy, associates are permitted to seek out managers and confidentially
discuss matters of concern to them. Issues, which may be raised, range
from potential discipline matters, such as harassment, to employee
benefits and merchandising problems, such as customers obtaining
products, which are normally not carried by Respondent.
9 Asked how Adams said the incident ended, Manderson testified
“she told Mr. Stanhope that her lunch was getting cold and she needed
WAL-MART STORES, INC. 1291
Adams completed her story, Manderson requested that she
write a statement about her confrontation with Stanhope and
told her he “would look into the incident. As to why he in-
structed Adams to draft a written statement, regarding the inci-
dent, Manderson testified that it was his intent to commence an
investigation to ascertain whether Respondent’s store policy
had been violated10 and that, for investigations of potential
discipline problems, “the procedure is to ask for a written
statement from the complainant, get all of the information you
can from that . . . person . . . and then . . . investigate the com-
plaint, interview . . . any potential witnesses and then interview
the . . . person that the complaint is brought against.”11
The next day, March 12, Adams and Morton returned to
Manderson’s office, and Adams submitted her written descrip-
tion of the Stanhope incident. In pertinent part, it reads as fol-
lows:
Then on Saturday 3/10/01 I was on lunch. I was going up to
get a drink from McDonalds I had started some pizza in the
microwave and asked Carol to take it out for me when it was
done. I was going around the corner by claims and layaway
when Ken came around the other way from layaway back to
where I was. He passed me then stopped. He said “Hey how
is your dad?” I turned said “he is doing good he has his days
but he is good today.” He asked if my dad was coming back
to work, how his appointment went and if he was coming
back to work. All of which I answered. He then out of no-
where [asked] what I thought of the union? I was at first con-
fused and just looked at him. I did answer by saying that I did
not want a union. He said that my dad was pro-union and I
should listen to my dad. I said with some surprise my dad
told you he was pro-union. He changed the subject (sort of)
by going on about me finding out for myself. He gave me
some internet site to check out. I said I would cause I was

to buy a soda. And she maneuvered past him.” Further, while stating
that Adams described Stanhope as hovering over her, he denied Adams
said anything about Stanhope touching her or backing her against a
wall.
10 Respondent’s associate handbook contains various workrules, the
violation of which may result in discipline including termination.
These include:
9. Profanity has no place at work, wherever your work location or
whatever the circumstances. It will not be tolerated
Further, as set forth in the handbook, Respondent maintains a “Har-
assment/Inappropriate Conduct policy,” which states that “associates
who engage in any type of harassment or inappropriate conduct on
Wal-Mart property, at Wal-Mart sponsored functions, or while travel-
ing on behalf of the Company whether “on the clock” or not will be
subject to disciplinary action up to and including termination.”
11 In investigating Adams’ complaint against Stanhope, Manderson
implemented Respondent’s “Coaching for Improvement policy,” which
is a four-step progressive disciplinary procedure (step one is a verbal
coaching, step two is a written coaching, step three is a decisionmaking
day during which the associate is given a day off with pay to decide if
he or she will make the required improvement in his or her job per-
formance, and step four is termination. The policy also establishes an
investigatory procedure for determining if discipline is warranted, and
the procedure includes obtaining from the associate, who has engaged
in the alleged misconduct, “his/her side of the story and any additional
facts.”
feeling scared and not sure how to respond. He then started
talking about how lousy Walmart [sic] management was. He
said that Walmart was all [f–king] pricks and that they would
[f–king] lie to your face without ever batting an eye. That all
Walmart management was this way. And so we needed a un-
ion to stop management and to make it safe for associates. He
during this got in my face. I stepped back 2 times feeling very
uncomfortable. He never touched me but two times I tried to
leave he followed me. I finally said I was missing my lunch
and my pizza was getting cold. He went to the break room. I
went to get my drink and go eat. He was still going off in the
break room. I told Carol . . . what just happened. She said
that it didn’t surprise her that she knew he was pro union. Oh
sorry. This happened around 5:45–6:00 pm that night. I just
don’t like feeling scared of what happened. He made me feel
like he was going to talk to me about it again. I am scared of
him and really just want him to leave me alone. I have noth-
ing against him personally. I hope this is what you wanted . . .
I have tried to blow him off on the past times. I just can’t
blow him off anymore. I am scared of him and the way he
talks gets more intense and venomous each time we talk. I
don’t feel that’s right.
According to Manderson,12 he reviewed the statement that
Cindy had written13 and asked her if it was a full and accurate
statement of the incident. “She said yes. I . . . asked how she
was doing, if she was okay. She told me that she was still very
upset about the incident. She told me that she felt . . . sick to
her stomach in seeing Mr. Stanhope in the store. She was very
nervous, she was afraid of having to talk with [him] again.”
Asked if Adams was specific with regard to what Stanhope said
or did to upset her, Manderson said she mentioned “his use of
foul language . . . during the course of the conversation” and
“the way he got into her face.”14 Then, Manderson requested
that Adams draft another statement regarding the incident “be-
cause when I asked her how she was feeling that day . . . she
relayed her feelings to me and that was not written down in the
first statement.” Respondent’s comanager averred that this was
consistent with Respondent’s coaching for improvement inves-
tigatory procedure—obtaining “a full account” of how the inci-
dent affected the complaining employee.
Later that day or the next morning, as instructed, accompa-
nied by Morton, Adams came to Manderson’s office and gave
him her second statement regarding her encounter with Stan-
hope. After reading through the document, he asked Adams if
she had mentioned everything regarding how the incident had
affected her. Then, Manderson “discussed with her the investi-
gation process and . . . that we would [then] . . . interview Mr.
Stanhope, we would maintain confidentiality and when we got
all of the information about the incident we would make a deci-

12 Earlier in the day, Manderson had informed Store Manager Mun-
sell of Adams’ complaint against Stanhope and advised her he was
treating it as a potential violation of Respondent’s harass-
ment/inappropriate conduct policy.
13 Manderson testified that the written statement was generally con-
sistent with what Adams had reported to him the day before and that he
did not believe Adams had omitted anything pertinent.
14 The foul language was the word “fuck.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1292
sion and then . . . relay to her when the decision was made.”
Also, Manderson assured Adams he would not tell Stanhope
who had made the complaint against him.15
After meeting with Adams, Manderson spoke to Munsell in
the store’s training room, which is located in the rear of the
building, informed her he had obtained a second statement from
Adams, and asked her to review both of Adams’ statements
regarding the incident with Stanhope. He added that they
needed to schedule a meeting with Stanhope, and they decided
to meet with him the next morning.16 Later that day, Mander-
son and Munsell telephoned Respondent’s district manager,
Gary Harvey, and informed him of the investigation which they
were conducting. Manderson testified that such is mandatory
during an investigation into a possible violation of the harass-
ment/inappropriate conduct policy.17
On Friday, March 16, Manderson next testified, he ap-
proached Stanhope18 in the food department where the latter
was stacking the cooler. “I told [him] there was something I
needed to discuss with him and I asked him to come back to the
training room and told him that myself and Marlene needed to
. . . go over something with him.” Stanhope responded, “I’ll go
back with you but if the conversation turns into something I
don’t like I’ll ask for an independent witness. . . . I told him I
didn’t think that was necessary and asked him to come to the
back with me.” Manderson admitted that, at this point, he did
say to Stanhope that his request for a witness would be denied
“because of the open door policy.”19 Stanhope and Manderson
walked back to the training room where they were met by Mun-
sell. According to Manderson, the three of them spoke in the
training room for no more than 10 minutes. Munsell began,
informing Stanhope that Respondent had a report that he had
been using foul language and asked him what he could tell her
about it.20 At this point, Stanhope stated that he wanted his

15 Manderson testified that Morton remained present at all times be-
cause a female was the complaining party, and he wanted a female
present as a witness. Also, according to Manderson, in any harassment
investigation, two managers must be present.
16 At some point prior to meeting with Stanhope, Munsell met with
Adams, Manderson, and Morton in the training room in order for Mun-
sell herself to hear from Adams. According to Munsell, “she was very
upset, shaking and crying, told me that on Saturday when she was
going out to get a drink Ken . . . approached her by the claims depart-
ment, started talking to her and got very upset, agitated, said . . . she
needed to listen to her dad, she needed to form a union, something
about . . . upper management. She . . . was very scared and . . . was
trying to get away from . . . Stanhope and he kept after her. And he
wouldn’t let [her] get by.”
17 Asked if they must inform the district manager of other types of
misconduct investigations, Manderson stated they must do so in matters
of theft, workplace violence, sexual harassment, and other “serious”
issues between associates.
18 There is no record evidence that Stanhope had any prior discipli-
nary history.
19 Manderson testified that he based his response upon a memo,
which Respondent had distributed to managers, regarding employee
requests for witnesses during investigatory interviews. In said memo,
Respondent stated its policy is “They have the right to ask for one but
we have the right to refuse.”
20 Respondent has a computer-based learning program, which all
employees are required to view and to learn. Said program includes a
own witness to be present at the meeting, and Munsell re-
sponded that he had the right to ask but she had the right to
deny Stanhope’s request. Munsell added that Respondent
maintained an open door policy and desired to maintain confi-
dentiality. Manderson interjected that if Stanhope insisted upon
having a witness, they would send him home and “we would
continue the investigation without his input.” To this, Stanhope
said he did not use foul language and stood up as if to leave the
room. Manderson told him to sit down, and Stanhope did so.
Munsell then asked if Stanhope recalled having a heated con-
versation with another associate the previous Saturday. Stan-
hope responded that he did not know what she was talking
about and asked who Respondent had convinced to concoct
something against him. At this point, “I told him that we were
sending him home for the day so that we could continue our
investigation and to give him a chance to . . . write a written
statement [of his recollection of an incident the previous Satur-
day]. And we . . . could discuss it tomorrow.”
Marlene Munsell’s version of the meeting with Stanhope
contradicts that of Manderson. According to her, Manderson
accompanied the employee to the training room where she was
waiting. She began the conversation, telling Stanhope that a
coworker had reported his use of foul language and intimidat-
ing language toward Adams on Saturday. Stanhope replied that
he wanted someone sitting with him during the meeting. Mun-
sell responded, telling the employee “that you have the right to
ask, I have the right to deny. If you decide not to talk to me . .
. that’s fine with me, you can go ahead and leave, I will con-
tinue this investigation without your input . . . he just laughed at
me and said . . . what have you guys fabricated. . . . I told him
. . . we have not fabricated anything. I’m just following up on
an open door issue that was brought to my attention. I just need
. . . your side of the story. . . . He said . . . why don’t you just
terminate me? And I said that’s not the way I work. I like to
listen to the other side of the story. But if you don’t want to
talk to us that’s fine, you can leave. And Allen asked him to
write a statement and that he could go home for the day.”
Stanhope had no response, and “he just kept on laughing at us,”
saying “terminate me . . . do it right now.”21 Asked initially if
she had adhered to company policy during the above meeting
with Stanhope, Munsell stated, “I was following our open door
and our confidentiality policy,”22 and then asked if Respondent
had a policy when employees requested witnesses during inves-
tigatory interviews, she echoed Manderson, stating “what we
do is just tell them that . . . they have the right to ask and we
have the right to deny.”23

detailed description of Respondent’s harassment and inappropriate
conduct policies. Stanhope took the required computer courses. In
addition, of course, Stanhope received a copy of Respondent’s hand-
book upon being hired.
21 Munsell conceded that, in her pretrial affidavit, she failed to men-
tion informing Stanhope he could leave after he requested a witness.
22 Munsell explained the relationship between Respondent’s confi-
dentiality and open door policies as follows—“When an associate
brings something to our attention [such as harassment] . . . we treat that
very confidential and we only release information as needed.”
23 Munsell explained that, because individuals, who utilize the open
door policy, are granted confidentiality, Respondent is obligated to
WAL-MART STORES, INC. 1293
In the latter regard, Munsell believed she was adhering to
Respondent’s policy. Thus, in a document, dated August 24,
2000, Respondent explicated its policy and practice, regarding
nonunion employees who request witnesses during investiga-
tory interviews, in light of the Supreme Court’s decision in
NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), and the
Board’s decision in Epilepsy Foundation of Northeast Ohio,
331 NLRB 676 (2000), enfd. in relevant part 268 F.3d 1095
(D.C. Cir. 2001), cert. denied 122 S.Ct. 2356 (2002). The
document states:
Wal-Mart’s Position:
• At Wal-Mart, our associates have the benefit of us-
ing the open door policy
• This allows them the opportunity to talk one on one
to any member of management regarding any situa-
tion while maintaining confidentiality
• As a result, it is not necessary for associates to have
a co-worker present and a co-worker will not be al-
lowed to attend
Management’s Role:
1. If an associate requests to have a co-worker pre-
sent tell the associate that we do not believe this
would be appropriate.
2. If an associate will not attend the meeting with-
out a co-worker, DO NOT force the associate to
attend.
3. Inform the associate you will continue the inves-
tigation without their input , , ,
After Stanhope left the store, Munsell and Manderson to-
gether telephoned their regional personnel manager, Stacy
Simon, whose office is at corporate headquarters in Benton-
ville, Arkansas. They informed Simon of what they were do-
ing, the investigation of the incident between Adams and Stan-
hope, and what had just occurred that day and faxed copies of
Adams’ statements to her. According to Manderson, the three
management officials decided that, if Stanhope failed to pro-
vide a written statement of his version of the incident, “we
would have to make a decision based on the information we
had at hand.” After speaking to Simon, Munsell and Mander-
son telephoned Gary Harvey and informed him of what had
occurred that day.
According to Manderson, the next morning, Saturday, March
17, after Stanhope reported for work, accompanied by an assis-
tant manager and with, at his request, a police officer standing
nearby, Manderson approached Stanhope in the food depart-
ment and asked the latter to follow him to his office. Stanhope
responded that he would not go anywhere to meet with
Manderson unless he had a witness present. Respondent’s co-
manager replied that Stanhope could not have a witness as this
was a personal confidential matter and again asked him to come
to his office to speak about the incident. Stanhope reiterated
his refusal to do unless he had a witness present, and said “just
go ahead and fire me right here, right now. And I said that’s

adhere to a right to ask/right to deny policy when witnesses are re-
quested. She could think of no instance when Respondent would grant
a request for a witness in the above circumstances.
not how private and . . . confidential business is handled . . . . I
asked him I’d like to discuss it with you in private, he said no.
And I told him that, if that’s what he wanted to do I would have
to conclude the investigation without his input and then I asked
him . . . if he had written a statement because . . . he did not
want to talk to me or give me any verbal input. . . . He told me
that he didn’t have one and he told me I didn’t ask him to write
one and even if I had, he wasn’t going to write one anyway.
And, at that point . . . I told him I was terminating him for cre-
ating a hostile work environment and using foul language.”24
There is record evidence that Stanhope’s refusal to partici-
pate in the investigatory interview without the presence of his
own witness constituted a factor in Respondent’s decision to
discharge him. Thus, Respondent considered Stanhope’s con-
duct on Friday and Saturday as refusing to cooperate in its in-
vestigation of Adams’ allegations, and, when asked to explain
Respondent’s rationale underlying this conclusion, Manderson
stated “he gave us nothing to the contrary to refute Cindy’s
claim,” and “he gave us no information when . . . we asked him
questions . . . about Cindy’s assertions.” Asked if insisting
upon having a witness present and not providing anything
without one comprised Stanhope’s refusal to cooperate,
Manderson admitted “that was part of it.” Asked what was the
other part, he responded, “[Stanhope] did not supply us with a
written statement.”25 Then, after initially denying that Stan-
hope’s refusal to cooperate in the investigation without having
his own witness present constituted a factor, Manderson listed
the following as factors underlying Respondent’s decision to
terminate him—Stanhope’s refusal to cooperate, Stanhope’s
failure to supply a statement, Adams becoming distraught over
what occurred during her confrontation with Stanhope, and the
latter’s use of profanity during said incident.26 Finally,
Manderson conceded that he could not distinguish between the
weight Respondent accorded each of the foregoing factors in
deciding to terminate Stanhope. In contrast to Manderson,
Store Manager Munsell specifically denied that Respondent’s
decision to discharge Stanhope at all concerned his demand for
a witness during the investigatory interview.

24 According to Manderson, this was one of the scenarios, which he,
Munsell, and Simon had discussed the day before.
Munsell testified that the three management officials reached two
decisions during their telephone conversation—”. . . one that if Mr.
Stanhope brought the statement in that we were going to sit down and
look at it. And . . . if he did not bring a statement, we were going to
take what we already had and . . . terminate [him].” She further testi-
fied that the reason for the decision to terminate Stanhope was their
belief he had engaged in “gross misconduct” as his actions toward
Adams “intimidated” her, he used “severe foul language,” and he “in-
vaded” her space.
25 Manderson conceded that, if Stanhope had cooperated in the in-
vestigation by providing a written statement of his position, he would
not have been terminated on March 17.
26 In contrast to Manderson, Munsell listed the following factors un-
derlying Stanhope’s “gross misconduct—” causing Adams to feel in-
timidated, invading her space, use of foul language, and causing emo-
tional distress severe enough to interfere with Adams’ ability to work.
Significantly, Munsell conceded that Adams never said she demanded
that Stanhope back off at any point during their confrontation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1294
Munsell further denied that Stanhope’s alleged comments to
Adams about the need for a union were a factor in Respon-
dent’s decision to discharge him. In this regard, according to
Manderson, Respondent’s management policy book instructs its
store managers to telephone its so-called “union hotline” when-
ever union activity is uncovered at one of Respondent’s retail
stores. While agreeing that statements, such as those attributed
to Stanhope should trigger such a response, Manderson could
not recall if he called the hotline number after hearing Adams’
version of events and was not aware if anyone else contacted
the hotline. Also, while being aware of the above instructions
upon the advent of union activity, Munsell specifically denied
contacting the union hotline.
In support of its contention that Stanhope was discharged for
legitimate reasons, Respondent offered evidence that other
associates have been terminated for engaging in misconduct
similar to that assertedly committed by Stanhope. In this re-
gard, David Shepherd, who had been the Wasilla store manager
for Respondent prior to Munsell, testified that associate, Lisa
Reed, was terminated in February 1998 for “misconduct of
inappropriate workplace behavior.” The record establishes that,
on the day of her discharge, Reed was given a final written
coaching warning, concerning her use of the epithet “mother F”
during a lunchtime conversation with an associate, and that she
immediately went onto the sales floor and confronted the asso-
ciate. According to Shepherd, Reed “used . . . the word fucking
on the floor towards [the] associate she was mad at . . . and in
the very same statement threatened . . . him that if he ever went
to management again about her . . . she’d make sure she took
care of herself.” Reed was immediately terminated. Further,
Respondent offered into the record documentary evidence that,
besides Reed, six other associates also have been discharged for
similar misconduct. Thus, on October 12, 2000, Jeannie Weir
was discharged for using the “F” word on the sales floor imme-
diately after receiving a decisionmaking day for her use of pro-
fanity; on July 24, 2000, Harold Starbird was discharged for
“creating a hostile work environment by using the F word and
by inappropriate touching of female associates”; on July 7,
1999, Brian Serjeant was terminated for “use of profanity to-
ward an assistant manager;” on April 18, 1999, Steven
Humphries was discharged after being “overheard using inap-
propriate language and suggestive remarks toward another per-
son” on December 21, 1997, Dieter Schafer was discharged for
“use of inappropriate language to another associate”; and, on
September 6, 1996, Mike Daniels was terminated for use of
“abusive language” and “disrespect for the individual.”
During rebuttal, counsel for the General Counsel offered
evidence that, in contrast to Respondent’s treatment of Stan-
hope, prior to their respective terminations, all but two of the
above associates had engaged in acts of misconduct, similar to
that which resulted in their eventual terminations,27 and re-
ceived lesser degrees of discipline. Thus, prior to his discharge,
within a 6-month period, associate Starbird received two writ-
ten coaching for improvement warnings for saying to a supervi-

27 While Associates Brian Serjeant and Steven Humphries were im-
mediately terminated from their jobs, each was deemed eligible for
rehire.
sor, who assigned him to perform work, “F—k it, that’s too
much f—ken work.” and for having “invaded associates space
by showing physical attention to them.” Three days before his
discharge, Associate Schafer received a written coaching warn-
ing for having retorted “F—k you” to another associate, who
had “teased” him. Six months prior to his discharge, Associate
Daniels had been given a final written coaching warning for “. .
. using direct and profane language toward his fellow associ-
ates, and, on the day before her discharge, Associate Weir re-
ceived a decisionmaking day for “use of inappropriate language
(foul language) on the sales floor and directed to other associ-
ates.” Moreover, associate Donell Polk, who was terminated
by Respondent on January 25, 1998, for threatening another
associate “that he would kick his butt if he went to management
again about him,” previously had received a second written
coaching for using profanity during an argument with another
associate and a decisionmaking day for becoming “upset” and
“using the F word” toward another associate. Further, during
cross-examination, Munsell admitted that the use of profanity
does not always precipitate discharge. Thus, Crystal Beatty,
merely was given a written coaching for publicly berating an-
other associate and using profanity. Finally, the record dis-
closes that associate, Henry Estes, was disciplined, but not
discharged, for speaking in a derogatory and threatening man-
ner and that associate, Norma Young, was disciplined, but not
terminated, for suggesting to another associate that they settle a
heated dispute outside.28
B. Legal Analysis
The instant complaint initially alleges that Respondent vio-
lated Section 8(a)(1) of the Act by, after having denied his re-
quest for the presence of his own witness, conducting its inves-
tigatory interview with Stanhope in the Wasilla store training
room on March 16. In this regard, the only record evidence of
what occurred comes from the respective testimony of Store
Manager Munsell and Co-manager Manderson; however, they
contradicted each other particularly as to Munsell’s response to
Stanhope’s demand for a witness and as to what occurred
thereafter. While neither management official appeared to be
an inherently incredible witness, Manderson’s demeanor, while
testifying, was that of a more candid witness, and I note that,
while, Munsell’s version of the meeting with Stanhope gener-
ally comported with Respondent’s legal position, Manderson’s
testimony was inordinately deleterious to Respondent’s legal
position. Accordingly, I shall rely on Manderson’s version of
the meeting with Stanhope and find that, on March 16, after the
former approached Stanhope and requested him to attend a
meeting with Munsell, the employee demanded the presence of
“an independent witness”; that Manderson denied his request
based upon Respondent’s “open door policy:” that Munsell
began the meeting by informing Stanhope Respondent pos-

28 If permitted counsel for Respondent would have called witnesses,
who would have testified that Associate Estes’ misconduct did not
include invading the space of another associate, his misconduct was not
repeated, and his misconduct did not impair the work of another associ-
ate; that Associate Beatty had used foul language but not the F word;
and that Associate Young had used no foul language nor invaded the
space of another employee.
WAL-MART STORES, INC. 1295
sessed a “report” he had been using foul language and asking
him about it”; and that Stanhope, who had studied Respon-
dent’s computer-based program on its harassment and inappro-
priate conduct policies and who had been given Respondent’s
handbook, in which the use of profanity is expressly prohibited,
at the time of his hire, again demanded the presence of “his
own witness” at the meeting. I further find that Munsell replied
to Stanhope, stating he had the right to ask but she had the right
to deny his request and adding that Respondent had an open
door policy and desired to maintain confidentiality; that
Manderson interjected, telling Stanhope, if he insisted upon
having a witness, Respondent would send him home and con-
tinue the investigation without his input; that Stanhope then
denied using foul language and stood as if to leave; that
Manderson ordered the employee to sit down; that Munsell then
asked if Stanhope recalled having a “heated conversation” with
another associate the prior Saturday; that Stanhope specifically
denied such an incident, said he did not know what Munsell
was talking about, and asked who had made such an allegation
against him; and that, at this point, the meeting ended with
Manderson telling Stanhope to leave the store and go home to
enable Respondent to continue its investigation and to give him
a chance to draft a written statement of his recollection of the
alleged incident.
In NLRB v. J. Weingarten, Inc., supra, the Supreme Court
held that an employer violates Section 8(a)(1) of the Act by
denying an employee’s request that his union representative be
present during an investigatory interview, which the employee
reasonably believes might result in disciplinary action against
him. Subsequently, in Materials Research Corp., 262 NLRB
1010 (1982), the Board concluded that, in a nonunion setting,
employees were entitled to the same rights, enunciated by the
Supreme Court in J. Weingarten, Inc., as employees, who are
represented by a union; however, in Sears, Roebuck & Co., 274
NLRB 230 (1974), the Board reversed itself, holding that the
Weingarten principles do not apply in circumstances where
there is no recognized or certified union. Then, in Epilepsy
Foundation of Northeast Ohio, supra, the Board again reversed
itself and returned to the rule set forth in Materials Research—
“that Weingarten rights are applicable in the nonunionized
workplace as well as the unionized workplace.” Id. at 678.
With regard to his or her Weingarten rights, an employee’s
right to the presence of a union representative or an employee
representative arises only upon his or her request for such rep-
resentation. Alltell Pennsylvania, Inc., 316 NLRB 1155, 1158
(1995); Seattle-First National Bank, 268 NLRB 1479, 1480
(1984). Further, once the employee makes a valid request for
representation, the burden is upon the employer to either (1)
grant the request; (2) discontinue the interview; or (3) offer the
employee the choice between continuing the interview unac-
companied by a representative or having no interview at all.
Alltell of Pennsylvania, supra; Consolidated Freightways
Corp., 264 NLRB 541, 542 (1982); General Motors Corp., 251
NLRB 850, 857 (1980).
Analysis of what occurred during the March 16 interview
discloses that Respondent effectively eviscerated Stanhope’s
Section 7 rights and engaged in conduct violative of Section
8(a)(1) of the Act. Thus, Respondent does not dispute that its
purpose for desiring to meet with Stanhope was to investigate
the allegations of Cindy Adams against him. I have found that,
after the commencement of the March 16 meeting and after
Munsell explained that the purpose of the meeting was to seek
his response to a report he had used foul language, Stanhope
immediately requested the presence of his own witness. While
Stanhope failed to specifically request the presence of an “em-
ployee representative,” in his posthearing brief, counsel for
Respondent concedes that “this request constituted a request for
representation.” Further, given that Stanhope was conversant
with Respondent’s policy, prohibiting the use of profanity at
the workplace, and its harassment and inappropriate conduct
policy, I have no doubt, and also find, that he was well aware of
the implications of Munsell’s statement, regarding the reason
for the meeting—the distinct possibility discipline would be
imposed against him by Respondent. Therefore, I believe that,
at this point in the meeting, it was incumbent upon Respondent
to have either granted Stanhope’s request, terminated the meet-
ing, or given the employee the choice of continuing the meeting
without the presence of a witness or having no meeting at all.
Munsell chose neither option, merely responding that Stanhope
had the right to ask but she had the right to deny his request for
the presence of his own representative. Contrary to counsel for
Respondent, as Munsell failed to explicitly inform Stanhope of
either of the foregoing options, her response was not an accu-
rate statement of the law. Rather, nothing she said would have
permitted Stanhope to understand she was terminating the
meeting, and the more reasonable interpretation of her com-
ment was that Munsell and Manderson intended to continue the
meeting without permitting Stanhope to have his own witness
present. Respondent’s actions demonstrate that this view is
correct. Thus, moments later, after Manderson threatened him
with a decisionmaking day if he persisted in demanding the
presence of his own witness,29 when Stanhope stood as if to
leave the room, Manderson ordered him to sit, and Munsell
continued the interview, asking Stanhope if he recalled a heated
conversation with another associate the previous Saturday. In
these circumstances, by denying Stanhope’s request for the
presence of his own witness and continuing its investigatory
interview with him, Respondent denied the employee his rights,
pursuant to J. Weingarten, Inc., supra, and, thereby, engaged in
conduct violative of Section 8(a)(1) of the Act. Epilepsy Foun-
dation of Northeast Ohio, supra; Williams Pipeline Co., 315
NLRB 1, 5 (1994).

29 Manderson immediately followed Munsell’s comment, threatening
Stanhope that, if he persisted in demanding a witness, they would send
him home and continue the investigation without his input. I agree
with counsel for the Charging Party that sending an employee home for
the day is the last step in Respondent’s progressive disciplinary policy.
Thus, it appears that Manderson threatened Stanhope with discipline if
he persisted in invoking his Sec. 7 right to have a representative present
during the investigatory interview. While the General Counsel did not
allege this as an unfair labor practice, I must express my agreement
with counsel for the Charging Party that the “choice” presented to
Stanhope eviscerated his Sec. 7 rights. I note that it was obviously in
his best interest to cooperate in Respondent’s investigation of Adams’
allegations; however, he could not do so unless he waived his rights
under J. Weingarten, Inc.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1296
Turning to Respondent’s discharge of Stanhope, counsel for
the General Counsel posits alternatively that Respondent termi-
nated Stanhope because he attempted to invoke his Weingarten
rights in violation of Section 8(a)(1) of the Act and that Re-
spondent terminated Stanhope because it believed he was en-
gaged in union activities and in order to discourage other em-
ployees from likewise supporting a union in violation of Sec-
tion 8(a)(1) and (3) of the Act. With regard to the alleged vio-
lation of Section 8(a)(1) of the Act, based on the credible testi-
mony of Manderson, I find that, on March 16, after sending
Stanhope home for the remainder of the day in order to prepare
a statement concerning the allegations against him, Munsell and
Manderson spoke to Respondent’s Regional personnel man-
ager, Simon and together determined that, if the alleged dis-
criminatee failed to provide such a statement, Munsell and
Manderson should consider Cindy Adams’ version of her con-
frontation with Stanhope as fact and immediately discharge the
latter. I further find that, on the following day (Saturday),
Stanhope reported for work; that Manderson approached the
employee and asked the latter to accompany him to the office;
that Stanhope refused to do so unless he was afforded permis-
sion to have his own witness present; that Manderson denied
his request, stating the subject was “a personal confidential
matter”; that Stanhope reiterated his request for the presence of
a witness and suggested Manderson should just go ahead and
fire him; that the latter replied “if that’s what he wanted, I
would have to conclude the investigation without his input” and
asked for the written statement, which he had requested Stan-
hope to prepare; that the latter responded he had no such state-
ment and would not draft one; and that Manderson then
abruptly terminated the alleged discriminatee.
Whether in a union or nonunion context, it is, of course, pat-
ently unlawful for an employer to terminate an employee be-
cause he/she invokes his/her Weingarten rights, which are
guaranteed to employees by Section 7 of the Act. Epilepsy
Foundation of Northeast Ohio, supra at 680; Circuit-Wise, Inc.,
308 NLRB 1091, 1109 (1992); Salt River Valley Water Users
Assn., 262 NLRB 970 (1982). In determining whether the dis-
charge of an employee was, in fact, motivated by the em-
ployee’s exercise of his/her Weingarten rights, the analytical
test for assessing the employer’s motivation is that which was
enunciated by the Board in Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). Safeway Stores, 303
NLRB 989, 995 (1993). Under this approach, the General
Counsel must establish, by a preponderance of the evidence,
that the employee’s invocation of his/her Weingarten rights was
a motivating factor in the employer’s conduct. Once such a
showing has been made, the burden shifts to the employer to
demonstrate that the same action would have been taken in the
absence of or notwithstanding the employee’s actions, pro-
tected by the Act. Id. In concluding that the General Counsel
has established a prima facie showing of unlawful animus, the
Board will not quantitatively analyze the effect of the unlawful
motive, and the evidence of such is sufficient to make the acts
and conduct, at issue, violative of the Act. Wright Line, supra
at 1089 fn. 4. Finally, once the burden has shifted to the em-
ployer, the crucial inquiry is not whether the employer could
have engaged in the alleged unlawful acts but, rather, whether
the employer would have done so in the absence of the em-
ployee’s invocation of his Weingarten rights. Structural Com-
posites Industries, 304 NLRB 729 (1991). Herein, I have pre-
viously concluded that Stanhope exercised a right guaranteed
by Section 7 of the Act when, after being informed of the pur-
pose for the March 16 investigatory interview by Store Man-
ager Munsell, he requested the presence of his own witness and
that Respondent unlawfully denied his request and continued
the interview. Further, Co-manager Manderson admitted that
Stanhope’s refusal to cooperate in the investigation of Adams’
allegations was a factor in Respondent’s discharge decision and
that Stanhope’s insistence upon the presence of a witness dur-
ing the investigatory interview on March 16 “was a part of it.”
In these circumstances, I am persuaded that the General Coun-
sel has made a prima facie showing that Respondent discharged
Stanhope because he exercised his Weingarten rights.
In the above circumstances, the burden shifted to Respondent
to establish that it would have discharged Stanhope notwith-
standing his invocation of his Weingarten rights. In this regard,
Respondent contends that it discharged Stanhope because he
used foul language, intimidated Adams, and invaded Adams’
space during his alleged confrontation with her on March 11
and that, in discharging Stanhope, it was adhering to an estab-
lished past practice of terminating employees who engaged in
similar misconduct. I note there is record evidence that, during
the alleged incident between Stanhope and Adams, the former
referred to Respondent’s managers as “f—ken pricks,” said
managers would “f—ken lie,” and twice moved close enough to
Adams so as to force her to step back, and that Adams became
upset over what had occurred.30 Nevertheless, Manderson ad-
mitted that Stanhope’s refusal to cooperate in the investigation
was also a factor in Respondent’s discharge decision; that the
alleged discriminatee’s invocation of his Weingarten rights was
a “part” of his refusal to cooperate, and, most significantly, that
he could not distinguish between the significance of each of the
foregoing factors. Moreover, I note that Stanhope’s alleged
misconduct appears merely to have consisted of his two profane
utterances31 and his close proximity to Adams unaccompanied

30 A comparison of Cindy Adams’ testimony at trial and her written
statement to Respondent, regarding the incident, reveals that the two
accounts of her asserted confrontation with Stanhope are utterly incon-
sistent and contradictory. Thus, her two versions conflict as to how the
conversation began, what was said, and how it concluded. Moreover, I
note that, while she recalled Stanhope as being red-faced and flinging
his arms about in answering a question from me, she failed to describe
Stanhope’s appearance in her account to Manderson. The foregoing
convinces me that little credence may be placed in Adams’ account of
the alleged March 10 incident, including its occurrence. Nevertheless,
there is no dispute that she provided a written account of what assert-
edly occurred to Respondent, and the record establishes that Munsell
and Manderson took it seriously to the point of alerting higher man-
agement officials and seeking to obtain Stanhope’s version of events.
Accordingly, while not believing it to be reliable or truthful, as Re-
spondent acted upon Adams’ written version of events, I shall likewise
rely on it as the precipitating document for what occurred herein.
31 In contrast to the situation in Aluminum Co. of America, 338
NLRB 20 (2002), I do not believe Stanhope’s two utterances, no matter
WAL-MART STORES, INC. 1297
by any threats or physical gestures or contact. Felix Industries,
331 NLRB 144, 146 (2000). In this regard, I note that not even
Manderson found Adams’ account particularly iniquitous or
vile and that he actually asked her to draft a second document
more expressive of her feelings after the incident. As to Re-
spondent’s assertion that it acted in accord with its past prac-
tice, while there exists record evidence that Respondent had
previously discharged, at least, eight employees for use of pro-
fanity, including the word “f—k,” in the workplace and for
other inappropriate conduct, only two associates were immedi-
ately terminated, the remainder of the associates, who were
discharged, initially received lesser levels of discipline for simi-
lar misconduct, including use of the word “f—k,” prior to ter-
mination, and other employees received discipline but were not
terminated for engaging in similar misconduct. Respondent
asserts that Stanhope’s alleged misconduct was so severe as to
warrant immediate discharge; however, while I recognize not
all instances of misconduct are the same and deserve different
levels of discipline, I cannot find that Stanhope’s alleged mis-
conduct differed in degree so substantially from similar acts of
misconduct, which did not result in immediate discharge, to
conclude that, rather than disciplining him with a lesser degree
of discipline, Respondent would have immediately terminated
the alleged discriminatee notwithstanding its unlawful motiva-
tion. In these circumstances, given Manderson’s management
position with Respondent, I believe that his admissions must be
accorded significant weight as to Respondent’s motivation for
terminating Stanhope. Therefore, I believe, and find, that, on
March 17, Respondent discharged Stanhope because he failed
to cooperate in the investigation of Cindy Adams’ allegation by
invoking his Weingarten rights—a precipitating factor equal in
weight to any other—and that, in such circumstances, Respon-
dent engaged in conduct violative of Section 8(a)(1) of the Act.
Epilepsy Foundation of Northeast Ohio, supra; Circuit-Wise,
Inc., supra.
The General Counsel’s alternative allegation is that Respon-
dent terminated Stanhope because of his union sympathies and
to discourage other employees from supporting a union in vio-
lation of Section 8(a)(1) and (3) of the Act. With regard to this
allegation, at the hearing, in answer to my question, counsel for
the General Counsel stated that her underlying theory is in ac-
cord with the Supreme Court’s decision in Burnup & Sims, Inc.,
379 U.S. 21 (1964)—when the alleged misconduct for which
the employer terminates an employee occurs during the course
of protected concerted activity. However, in her posthearing
brief, counsel for the General Counsel inexplicably departed
from this theory and, instead, urged as the appropriate theory
the Wright Line, supra, approach, which is utilized in resolving
cases in which the respondent’s motivation for engaging in the
alleged unlawful conduct is disputed—a so-called dual motive
situation. Counsel for the Charging Party adhered to the Gen-
eral Counsel’s theory, as stated at the hearing, and argued this
allegation, utilizing the Burnup & Sims analysis. Perhaps an-
ticipating counsel for the General Counsel’s change of course,
counsel for Respondent used both analytical approaches to

how distasteful, may be viewed as a “profane outburst” or as “repeated,
sustained, ad hominem profanity.” Id. at 22.
assertedly debunk the alleged unfair labor practice; however, he
urged use of a Wright Line analysis “as the most appropriate
approach.” I agree with counsel for the General Counsel and
counsel for Respondent that this allegation is best analyzed
using the Wright Line approach. Thus, unlike the factual situa-
tions in Felix Industries, supra,32 and in Aluminum Co. of Amer-
ica, supra,33 Respondent’s motivation for discharging Stanhope
is directly at issue and is disputed herein.34 The General Coun-
sel asserts that Respondent’s discharge of Stanhope was moti-
vated by its belief that the alleged discriminatee engaged in
union activity and supported union representation, and, in con-
trast, Respondent contends that its discharge of Stanhope was
motivated by his misconduct during the incident with Adams.
In such a dual motive situation, the Wright Line analytical ap-
proach is appropriate and, indeed, mandated.35
Respondent contends that it discharged Stanhope for using
foul language toward Cindy Adams and for intimidating and

32 In Felix Industries, an employee’s asserted misconduct (calling a
supervisor a “f—king kid”) occurred during a conversation, between
the employee and the supervisor, regarding the former’s rights under a
collective-bargaining agreement. The issue, before the Board, was
whether the employee engaged in such opprobrious misconduct so as to
cause his activities to lose their protection under the Act. Id.
33 In Aluminum Corp. of America, while in the process of initiating
grievances against his supervisors, an employee uttered a “tirade” of
expletives against the supervisors. The employee was terminated for
misconduct. Recognizing that the filing of contractual grievances is
protected concerted activity, in assessing the legality of the discharge,
the Board was confronted with “a critical threshold issue about the
relationship of his protected activity to their otherwise unprotected
activity,” and whether the use of profanity removed the Act’s protec-
tion. Id. at 21 and 22.
34 Put another way, in neither of the cited cases was the employer’s
motive for disciplining the alleged discriminatee at issue.
35 I have previously explained the burden shifting analysis generally
required under Wright Line, supra. As discussed by the Board in
Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999), utilizing the
Wright Line analysis in order to establish a violation under Sec. 8(a)(1)
and (3) of the Act, the General Counsel must prove, by a preponderance
of the evidence, that antiunion animus was a motivating factor in Re-
spondent’s discharge of Stanhope. Once the showing has been made,
the burden shifts to Respondent to demonstrate that the same action
would have taken place notwithstanding Stanhope’s believed support
for a union. To sustain its initial burden, that of persuading the Board
that Respondent acted out of antiunion animus, the General Counsel
must show (1) that Stanhope engaged in union activities, (2) that Re-
spondent knew or suspected his involvement in activities in support of
a union, and (3) that Stanhope’s prounion sympathies and activities
were a substantial or motivating factor underlying his discharge by
Respondent. Such motive may be demonstrated by circumstantial
evidence as well as by direct evidence and is a factual issue. FPC
Moldings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enfg. 314
NLRB 1169 (1994). Further, pretextual discharge cases should be
viewed as those in which “the defense of business justification is
wholly without merit” (Wright Line, supra at 1089 fn. 5), and the “bur-
den shifting” analysis of Wright Line need not be utilized. Arthur
Manderson and Co., 291 NLRB 39 (1989). In this regard, “it is . . .
well settled . . . when a respondent’s stated motive for its actions is
found to be false, the circumstances warrant the inference that the true
motive is an unlawful one that the respondent desires to conceal.”
Fluor Daniel, Inc., 304 NLRB 970, 970 (1991); Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1298
invading her space during their alleged March 11 confrontation.
The record contains two accounts of this incident, Adams’ tes-
timony36 during the trial and her written statement, which she
drafted for Respondent and submitted to Co-manager Mander-
son 2 days after the asserted confrontation. As stated above,
these accounts are utterly inconsistent and antithetical—in par-
ticular regarding how the confrontation began, what was said,
and how she ended it. Given her demeanor and the record con-
tradictions and inconsistencies, I find it difficult to give cre-
dence to whatever Adams wrote or said. However, as stated
above, given Respondent’s reliance on Adams’ version of
events in commencing its investigation of Stanhope’s alleged
misconduct, I shall credit her written statement in determining
what occurred. Accordingly, I find that, on March 10, while in
the lunchroom on her lunchbreak eating pizza, Adams decided
to buy a soda at the McDonald’s restaurant inside the store; that
she left the lunchroom and was walking in the hallway near the
claims and layaway departments when she encountered Stan-
hope, who appeared to be walking in the direction of the lunch-
room; that, as he passed by Adams, Stanhope asked about her
father; that Adams responded he was doing well that day; and
that they continued speaking about her father. I further find
that Stanhope then changed the subject, asking what she
thought about the union; that, although feeling “confused” by
his question, Adams replied she did not want a union; that
Stanhope replied her father was prounion and she should listen
to her father; that Adams responded “with some surprise my
dad told you he was pro-union”; that Stanhope said she should
find out for herself and mentioned an internet site to “check
out”; that Adams said she would do so; and that Stanhope next
mentioned how “lousy” Respondent’s management was, saying
“Respondent’ was all f—ken pricks and . . . they would f—ken
lie to your face without ever batting an eye. . . . And so we
needed a union to stop management and to make it safe for
associates.” Further, I find that, as he talked, Stanhope moved
closer to Adams; that, while he never touched her, she became
uncomfortable and twice moved back from him; and that she
ended the conversation saying she was missing her lunch, her
pizza was becoming cold, and she wanted to purchase a soda.
Finally, I find that Respondent utilized Adams’s written version
of the alleged incident between herself and Stanhope during its
investigation of her allegations.
Clearly, after briefly discussing Adams’ father’s health, the
entire exchange between Stanhope and Adams pertained to
representation by a union. Thus, Stanhope asked what Adams
thought about representation by a union; Adams said she did
not want to represented by a union; Stanhope said her father
was prounion and she should listen to him; Adams expressed
surprise as to how Stanhope could be aware of her father’s
union sympathies; and, after he informed Adams about where
on the internet she could learn about union representation,
Stanhope inveighed against Respondent’s management and
then suggested such was the reason Respondent’s associates
required protection by a union. From the foregoing, I find that

36 Adams failed to impress me as testifying in a candid manner. To
the contrary, she seemed to be a mendacious witness, one who could
not be trusted.
Stanhope was engaged in union activities—seeking to deter-
mine a coworker’s union sympathies, informing her about his
own union sympathies and his perception of the necessity of
union representation for Respondent’s associates, and attempt-
ing to conscribe her in a campaign for union representation.
Inasmuch as Adams informed Munsell and Manderson regard-
ing Stanhope’s solicitation of her support for union representa-
tion, clearly Respondent became aware of his activities and
could form a belief as to his union sympathies. In these cir-
cumstances, the critical issue is whether counsel for the General
Counsel has established that Respondent was motivated by
Stanhope’s prounion sympathies and his apparent support for
union representation in discharging him. In this regard, I note
that there is no direct or explicit record evidence, establishing
unlawful animus. Further, while I question what occurred dur-
ing her alleged confrontation with Stanhope, there is no record
evidence that Respondent solicited Adams to fabricate the oc-
currence of the incident or Stanhope’s behavior during it. BJ’s
Wholesale Club, 318 NLRB 684 fn. 2 (1995). Moreover, one
may legitimately question whether Respondent was at all con-
cerned about Stanhope’s union sympathies. Thus, apparently,
neither Munsell nor Manderson telephoned Respondent’s “un-
ion hotline” to report union activity at the Wasilla store. Also,
Respondent does, in fact, maintain rules, about which Stanhope
was well aware, prohibiting the use of profanity and harassment
of other employees at its stores and has disciplined employees
for violating them. Nevertheless, counsel for the General
Counsel argues that one may infer Respondent’s unlawful ani-
mus from its termination of Stanhope, which, “was a departure
from its established past treatment of such incidents, as well as
its progressive discipline practice” and “from its treatment of
Stanhope in comparison to other employees Respondent disci-
plined for using profanity.” In requesting that an inference of
unlawful animus be drawn, I believe that, initially, counsel for
the General Counsel must have established that the stated mo-
tive for Respondent’s actions was “wholly without merit” and
“false.” Fluor Daniel Corp., supra; Wright Line, supra.
Herein, however, I have found that Stanhope twice uttered pro-
fane comments in speaking to Adams and twice moved close
enough to Adams so as to force her to step back from him, that
Respondent maintains rules, prohibiting such conduct, and that
Respondent has regularly disciplined employees for use of
profanity toward coworkers or supervisors. Moreover, besides
discharging Stanhope without previously disciplining him for
similar misconduct, Respondent also immediately terminated
two other associates, Brian Serjeant and Steven Humphries, for
use of profanity and inappropriate language and, as with Stan-
hope, there is no record evidence of previous discipline of ei-
ther individual for similar misconduct. Thus, while I have dif-
ficulty accepting Respondent’s defense that it would have im-
mediately discharged Stanhope based on what Cindy Adams
alleged, I cannot, and do not, find that it is a meretricious asser-
tion, leading to the conclusion Respondent was concealing its
actual, unlawful motivation. In these circumstances, as there is
no direct record evidence establishing that Respondent was
unlawfully motivated in discharging Stanhope or acts and con-
duct from which to infer unlawful animus, I do not believe that
the General Counsel has met its burden of proof by establishing
WAL-MART STORES, INC. 1299
a prima facie showing that Respondent was unlawfully moti-
vated in discharging Stanhope. Therefore, I find the General
Counsel’s alternative allegation, that Respondent terminated
Stanhope in violation of Section 8(a)(1) and (3) of the Act, is
without merit.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. By requiring that its employees, who have a reasonable
belief that the matters to be discussed may result in their disci-
pline, continue to participate in investigatory interviews after
denying their request for the presence of their own witness,
Respondent engaged in acts and conduct violative of Section
8(a)(1) of the Act.
4. By discharging its employees because they request the
presence of their own witness before participating in an investi-
gatory interview, which they reasonably believe may result in
discipline against them, Respondent engaged in acts and con-
duct violative of Section 8(a)(1) of the Act.
5. The above-described unfair labor practices are unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
I have found that Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act. Accord-
ingly, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative actions designed to
effectuate the purposes and policies of the Act. I have found
that Respondent unlawfully discharged its employee, Ken
Stanhope, because he refused to participate in an investigatory
interview, which he reasonably believed might result in disci-
pline against him, unless Respondent granted his request for the
presence of his own witness. Accordingly, as in Epilepsy
Foundation of Northeast Ohio, supra, and Circuit-Wise, Inc.,
supra, I shall recommend that Respondent be ordered to offer
Stanhope reinstatement to his former position or, if said posi-
tion no longer exists, to a substantially equivalent position
without impairing his seniority or any other rights and privi-
leges. I shall further recommend that Respondent be ordered to
make Stanhope whole for any loss of earnings and benefits
resulting from his unlawful discharge on March 17, 2001, until
the date he is offered reinstatement. Stanhope’s backpay shall
be computed in the manner established by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest com-
puted as in New Horizons for the Retarded, 283 NLRB 1173
(1987). I shall further recommend that Respondent be ordered
to expunge any records, regarding Stanhope’s refusal to partici-
pate in an investigatory interview unless Respondent granted
his request for the presence of his own witness and his dis-
charge. Finally, I shall recommend that Respondent be ordered
to post a notice, setting forth its obligations herein.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended37
ORDER
The Respondent, Wal-Mart Stores, Inc., Wasilla, Alaska, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Requiring that its employees, who have a reasonable be-
lief that the matters to be discussed may result in their disci-
pline, continue to participate in investigatory interviews after
their request for the presence of their own witness has been
denied.
(b) Discharging its employees because they request the pres-
ence of their own witness before participating in an investiga-
tory interview, which they reasonably believe may result in
discipline against them.
(c) 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 offer, offer Ken
Stanhope immediate reinstatement to his former position or, if
said position no longer exists, to a substantially equivalent posi-
tion without prejudice to his seniority or other rights and privi-
leges and make him whole, with interest, in the manner set
forth in the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove from
its files any references to Ken Stanhope’s refusal to participate
in an investigatory interview without the presence of his own
witness and to his unlawful discharge and, within 3 days there-
after, notify Stanhope, in writing, that this has been done and
that neither his refusal to participate in an investigatory inter-
view nor his discharge will be used against him 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
Wasilla, Alaska retail store copies of the attached notice
marked “Appendix.”38 Copies of the notice, on forms provided
by the Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for

37 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.
38 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1300
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since March 17, 2001.
(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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT require that our employees, who have a reason-
able belief that the matters to be discussed may result in their
discipline, continue to participate in investigatory interviews
after their request for the presence of their own witness has
been denied by us.
WE WILL NOT discharge our employees because they request
the presence of their own witness before participating in an
investigatory interview which they reasonably believe may
result in discipline against them.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Ken Stanhope full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make Stanhope whole
for any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the date of the
Board’s Order, expunge from our files any references to Ken
Stanhope’s refusal to participate in an investigatory interview
after we denied his request for the presence of his own witness
and to his unlawful discharge and WE WILL, within 3 days there-
after, notify Stanhope, in writing, such has been done and that
his discharge will not be used against him in any way.
WAL-MART STORES, INC.