Wal-Mart Stores, Inc.

National Labor Relations Board - Board Decisions

Dec 23, 2019

368 N.L.R.B. 146 (N.L.R.B. 2019)

368 NLRB No. 146
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Wal-Mart Stores, Inc. and the Organization United for
Respect at Walmart (Our Walmart). Cases 13–
CA–114222 and 32–CA–111715
December 16, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN, AND EMANUEL
On December 9, 2014 and June 4, 2015, Administrative
Law Judge Geoffrey Carter issued the attached decisions.1
In both cases, the Respondent filed exceptions and a sup-
porting brief, the General Counsel and the Charging Party
filed answering briefs, and the Respondent filed reply
briefs. The Charging Party also filed exceptions and a
supporting brief, and the Respondent filed an answering
brief.
The National Labor Relations Board has considered the
decisions and the records in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,2 find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
The issue presented in this case is whether the Respond-
ent violated Section 8(a)(1) by maintaining two dress code
policies that limit—but do not prohibit—the wearing of
union insignia. One policy is maintained nationwide and
the other is maintained only at the Respondent’s Califor-
nia stores.3 The policies are content-neutral and explicitly
grant employees the right to wear “small, non-distracting
logos or graphics . . . no larger than the size of your [em-
ployee] name badge” (the “logos or graphics” policies).
Under these policies, employees are allowed to display
union insignia, and it is undisputed that employees have
displayed “OUR Walmart” insignia that comply with the
policies.4 Specifically, the Respondent has permitted

1 On November 12, 2015, the Board granted the Respondent’s motion
to sever Case 32–CA–111715 from Case 32–CA–090116, et al., and to
consolidate it with Case 13–CA–114222. As explained below, the con-
solidated cases involve dress code policies that, as relevant here, contain
identical language.
2 The Respondent’s argument that the judge improperly rejected its
proffered expert testimony and accompanying report is moot in light of
our disposition of this case.
3 The Respondent adopted the nationwide policy in February 2013
and modified it in May 2014 and September 2014. The Respondent ex-
cepts on due process grounds to the judge’s consideration of the Septem-
ber 2014 policy because the complaint does not specifically reference it.
We find that the lawfulness of the September 2014 policy is properly
before the Board because the issue is closely related to the allegations of
the complaint and was fully and fairly litigated at the hearing. See Per-
gament United Sales, Inc., 296 NLRB 333, 334 (1989), enfd. 920 F.2d
130 (2d Cir. 1990). The complaint language sufficiently notified the
employees to wear logos or graphics that are no larger than
employees’ name badges (2.25 inches by 3.5 inches) and
“non-distracting,” including OUR Walmart buttons, pins,
and wristbands. Employee supporters of OUR Walmart
have also worn a 1.5-inch diameter button displaying the
following message: “Colossians 4:1 ‘Masters, provide
your slaves with what is right and fair, because you know
that you also have a Master in heaven.’” The Respondent
disallowed a 3.5-inch diameter OUR Walmart button be-
cause of its size, but it also disallowed the display of a 3-
by-5-inch photograph worn in remembrance of an em-
ployee who died in an automobile accident. The judge
found that the Respondent failed to show special circum-
stances for requiring logos and graphics to be “small” and
“non-distracting,” and he concluded that the Respondent
violated Section 8(a)(1) by maintaining its logos or
graphics policies.
As explained below, we find that the appropriate ana-
lytical framework for determining the lawfulness of the
Respondent’s logos or graphics policies is the Board’s test
for facially neutral employer policies set forth in Boeing
Co., 365 NLRB No. 154 (2017). Applying Boeing, we
reverse the judge’s decision and find the policies lawful
insofar as they apply to areas of the Respondent’s stores
where its employees encounter customers in the course of
performing their jobs.5 As to those areas, the Respond-
ent’s legitimate justifications for maintaining the poli-
cies—to enhance the customer shopping experience and
protect its merchandise from theft or vandalism—out-
weigh the adverse impact on employees’ Section 7 rights.
However, no such showing has been made with respect to
areas away from the selling floor, where the Respondent’s
business justifications for its logos or graphics policies are
much weaker. Accordingly, we find that the Respondent
violated Section 8(a)(1) by maintaining the logos or
graphics policies in areas other than the selling floor.
Respondent of the specific conduct at issue (maintaining a policy “since
at least May 2013” allowing only “small and non-distracting” insignia)
and the underlying theory of liability (interference with Sec. 7 rights in
violation of Sec. 8(a)(1)). The policy was received into evidence, and
the Respondent’s counsel acknowledged at the hearing that the com-
plaint “is aimed at a particular phrase in the [Respondent’s] dress code,”
identified that language as “small, non-distracting logos and graphics,”
and explained that any changes thereafter to the policy would not “impact
the particular phraseology.” Finally, the Respondent also had the oppor-
tunity to present, and did present, evidence at the hearing regarding the
September 2014 policy.
4 “OUR Walmart” is an acronym for Organization United for Respect
at Walmart, which is aligned with the United Food and Commercial
Workers International Union.
5 For shorthand purposes, and because the term is a familiar one in
Board precedent, we will refer to these areas, including restrooms and
hallways leading to areas where sales occur, as “the selling floor.”
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I.
The Supreme Court long ago affirmed the Section 7
right of employees to wear union buttons and other insig-
nia. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–
803 (1945). But this right is not absolute. The Board has
evaluated the lawfulness of facially neutral work rules that
prohibit the wearing of all union buttons and insignia by
examining whether the employer has shown special cir-
cumstances for the prohibition.6 In such cases, the in-
fringement on Section 7 rights is incontrovertible, and the
employer must therefore prove that special circumstances
exist justifying the ban for it to be lawful. This “special
circumstances” test inherently involves a balancing of

6 See, e.g., USF Red Star, Inc., 339 NLRB 389, 391 (2003) (“[A] ban
on wearing union insignia violates the Act unless it is justified by special
circumstances.”) (emphasis added); United Parcel Service, 312 NLRB
596, 597 (1993) (“In the absence of ‘special circumstances,’ the prohibi-
tion by an employer against the wearing of union insignia violates Sec-
tion 8(a)(1) of the Act.”) (emphasis added), enf. denied 41 F.3d 1068 (6th
Cir. 1994); The Ohio Masonic Home, 205 NLRB 357, 357 (1973) (“In
the absence of ‘special circumstances,’ the promulgation of a rule pro-
hibiting the wearing of [union] insignia is violative of Section 8(a)(1).”)
(emphasis added), enfd. 511 F.2d 527 (6th Cir. 1975); Floridan Hotel of
Tampa, 137 NLRB 1484, 1486 (1962) (“The promulgation of a rule pro-
hibiting the wearing of [union insignia] constitutes a violation of Section
8(a)(1) in the absence of evidence of ‘special circumstances’ . . . .”) (em-
phasis added), enfd. 318 F.2d 545 (5th Cir. 1963).
7 See, e.g., Medco Health Solutions of Las Vegas, Inc., 364 NLRB
No. 115, slip op. at 5 (2016) (“The special circumstances test reflects a
balancing of the employer's interests and the employees' Section 7
rights.”), enf. denied in relevant part and remanded 701 F.3d 710 (D.C.
Cir. 2012); Albertson’s Inc., 272 NLRB 865, 866 (1984) (“Under the
protection of Section 7 of the Act, employees may wear union buttons or
other emblems at work to demonstrate union adherence. This employee
right is balanced against an employer's right to operate its business . . . .”
) (internal footnote omitted), enf. denied mem. 17 F.3d 39 (9th Cir.
1994); see also In-N-Out Burger, Inc. v. NLRB, 894 F.3d 707, 715 (5th
Cir. 2018) (“The Board has explained the ‘special circumstances’ excep-
tion as reflecting a ‘balancing’ of employees' Section 7 rights and em-
ployers' potentially conflicting managerial interests.”); Southern New
England Telephone Co. v. NLRB, 793 F.3d 93, 96 (D.C. Cir. 2015) (“The
‘special circumstances’ exception to Section 7 is designed ‘to balance
the potentially conflicting interests of an employee's right to display un-
ion insignia and an employer's right to limit or prohibit such display.’”)
(quoting Nordstrom, Inc., 264 NLRB 698, 700 (1982)).
8 Although our colleague contends that this “mischaracterizes” the
special circumstances test, this is precisely how the Fifth Circuit de-
scribed it in In-N-Out Burger, 894 F.3d at 715 (“But the Board does not
conduct an open-ended balancing analysis anew in every case; rather, it
has developed a framework that guides the ‘special circumstances’ in-
quiry and reinforces its limited scope.”).
9 The Board has found special circumstances to justify restrictions on
union insignia “when their display may jeopardize employee safety,
damage machinery or products, exacerbate employee dissension, or un-
reasonably interfere with a public image that the employer has estab-
lished, or when necessary to maintain decorum and discipline among em-
ployees.” Komatsu America Corp., 342 NLRB 649, 650 (2004).
10 This is particularly true in a facial challenge to a policy that is not a
total ban because the Board must analyze it without the benefit of
employees’ Section 7 rights and the employer’s legitimate
business interests, as a finding of special circumstances
means that the employer’s justifications for the policy are
sufficiently weighty that the balance must tip in favor of
permitting the ban.7 Accordingly, determining whether a
special circumstance exists justifying a particular insignia
ban obviates the need to conduct an open-ended balancing
analysis anew in every case.8 If the prohibition falls
within the scope of a recognized special circumstance, it
is lawful.9
Where, as here, the Employer maintains a facially neu-
tral rule that limits the size and/or appearance of union
buttons and insignia that employees can wear but does not
prohibit them, a different analysis is required.10
knowing the particular union graphic or insignia in question and the con-
text in which it would be worn. See W San Diego, 348 NLRB 372, 373
(2006) (finding special circumstances after examining the size and con-
tent of a specific union button and the workplace environment in which
employee sought to wear it); Pathmark Stores, Inc., 342 NLRB 378, 379
(2004) (finding special circumstances after examining the content of the
union’s message on its T-shirts and hats). Where all union buttons and
insignia are prohibited, it can be assumed that the restriction bars even
the smallest and most innocuous union button or insignia. Such is not
the case where the employer explicitly permits employees to wear some
union insignia.
It is understandable, then, why the cases our colleague relies on to
purportedly support her assertion that the Board applies the special cir-
cumstances test to partial bans on union insignia did not involve facial
challenges to a size-and-appearance policy—like the sole allegation in
this case—but rather as-applied challenges to outright bans of specific
union insignia. In Republic Aviation, cited by our colleague, the Su-
preme Court held that the employer unlawfully prohibited employees
from wearing a specific UAW–CIO union steward button. 324 U.S. at
795, 803. But neither the Court nor the Board in that case was presented
with an allegation challenging the facial lawfulness of a rule permitting
the wearing of buttons, including union steward buttons, and only re-
stricting those of a certain size and appearance. This is just as true for
the other cases cited by our colleague. See Holladay Park Hospital, 262
NLRB 278, 279 (1982) (employer applied its dress code to prohibit the
wearing of yellow union ribbons while permitting the wearing of non-
union-related red and green ribbons); Davison Paxon Co., 191 NLRB 58,
59, 61 (1971) (employer applied its dress regulations to prohibit em-
ployee from wearing a yellow button with black lettering stating, “Vote
[Yes] Retail Clerks Union AFL–CIO”), enf. denied 462 F.2d 364 (5th
Cir. 1972) (reversing the Board to hold that employer’s prohibition
against wearing the button on the selling floor of a retail establishment
was “clearly reasonable”); Gray-Syracuse, Inc., 170 NLRB 1684, 1687-
1689 (1968) (employer applied rule against union campaigning during
work hours to prohibit the wearing of a union button stating “JOIN” and
“VOTE” in red and “ORGANIZING COMMITTEE” in dark blue);
Fabri-Tek, Inc., 148 NLRB 1623, 1624-1625 (1964) (employer applied
company rule to prohibit the wearing of a 3-inch diameter metallic button
stating “VOTE I.B.E.W.” in red and a 2-inch diameter red, white, and
blue “vari-vue” button stating “VOTE” or “I.B.E.W.” depending on the
angle from which it was viewed), enf. denied 352 F.2d 577 (8th Cir.
1965) (reversing the Board to hold that employer’s prohibition against
wearing “attention-attracting” union buttons during worktime was “en-
tirely reasonable”).
Instructively, in the cases cited by our colleague, the Board was able
to consider the specific buttons or other insignia that employees were
WAL-MART STORES, INC. 3
Necessarily, because the infringement on Section 7 rights
is less severe, the employer’s legitimate justifications for
maintaining the restriction do not need to be as compelling
for its policy to pass legal muster, and justifications other
than the recognized special circumstances may suffice. In
such cases, we will apply the analytical framework in Boe-
ing, supra.11 Under Boeing, if a policy, reasonably inter-
preted, would potentially interfere with Section 7 rights,
the Board considers two factors: “(i) the nature and extent
of the potential impact on NLRA rights, and (ii) legitimate
justifications associated with the [policy].” 365 NLRB
No. 154, slip op. at 3. The Board will find that “the [pol-
icy’s] maintenance . . . violate[s] Section 8(a)(1) if . . . the
justifications are outweighed by the adverse impact on
rights protected by Section 7.” Id., slip op. at 16.12 Limi-
tations on the display of union insignia short of outright
prohibitions will vary in the extent to which they serve le-
gitimate employer interests and the degree to which they
interfere with Section 7 rights.13 Thus, they will “warrant

barred from wearing and analyze the impact that those specific buttons
or insignia would reasonably have in the particular workplaces involved.
Here, in a facial challenge to a size-and-appearance policy, we do not
have the benefit of knowing that context and must rule on the legality of
the Respondent’s logos or graphics policies in the abstract. For instance,
the Respondent determined that a 3.5–inch diameter OUR Walmart but-
ton violated its logos or graphics policies for being too large. However,
the General Counsel never alleged that the Respondent unlawfully pro-
hibited employees from wearing that OUR Walmart button. Hence, the
type of as-applied challenge that was in the cases cited by our colleague
is not before us.
11 Despite our colleague’s assertion, this is not “import[ing] the Boe-
ing framework” into a new area of Board law. In Boeing, the Board
stated that it would apply the standard articulated in that case to deter-
mine the lawfulness of all facially neutral policies, rules, and handbook
provisions that do not expressly restrict Sec. 7 activity, were not adopted
in response to NLRA-protected activity, and have not been applied to
restrict NLRA-protected activity. 365 NLRB No. 154, slip op. at 1 fn.
4; see also PAE Applied Technologies, LLC, 367 NLRB No. 105, slip op.
at 2 fn. 6. First, the Respondent’s logos or graphics policies are facially
neutral; they apply to all logos and graphics, without in any way distin-
guishing union logos or graphics. Second, by expressly permitting the
wearing of logos or graphics of a certain size and appearance, including
union insignias, the policies cannot be said to explicitly restrict Sec. 7
activity. Moreover, the General Counsel did not allege that the policies
were adopted in response to NLRA-protected activity or applied to re-
strict NLRA-protected activity. Therefore, Boeing is the proper test for
determining the lawfulness of the Respondent’s logos or graphics poli-
cies.
12 As noted above, the special circumstances test for total bans on un-
ion insignia does not involve an explicit balancing in each case. Never-
theless, it reflects a determination that where special circumstances are
found to exist, the employer’s interests outweigh the interference with
the exercise of Sec. 7 rights. Thus, it is consistent with the principles of
Boeing.
13 Our colleague contends that we ignore decades of Board precedent
holding that any limitation on the display of union insignia—not just a
complete prohibition—is presumptively unlawful in the absence of spe-
cial circumstances. But the cases she cites in support of that claim in-
volved total bans, not partial restrictions such as the policies at issue in
individualized scrutiny in each case” as Boeing Category
2 rules. Id., slip op. at 4.
II.
Applying Boeing, we find that the Respondent lawfully
maintained its graphics or logos policies on the selling
floor of its stores. The policies, when reasonably inter-
preted, would potentially interfere with employees’ Sec-
tion 7 right to display some union insignia. Nonetheless,
the adverse effect is relatively minor. Employees are free
to wear any union message they want, subject to the poli-
cies’ size and appearance limitations, and they have done
so without interference. Nothing in the Respondent’s
logos or graphics policies denies employees that right.
The only qualifications are that employees’ union insignia
cannot be larger than their name badges (2.25 by 3.25
inches) or distracting.14
On the other side of the balance, the Respondent has of-
fered evidence of its legitimate justifications for its logos
or graphics policies: providing its customers with a
this case. See Long Beach Memorial Medical Center, Inc. d/b/a Long
Beach Memorial Medical Center & Miller Children’s and Women’s
Hospital Long Beach, 366 NLRB No. 66, slip op. at 1-3 (2018) (em-
ployer failed to demonstrate special circumstances for total bans on pins,
badges, professional certifications, and badge reels not approved by the
employer), enfd. mem. 774 Fed.Appx. 1 (D.C. Cir. 2019); Boch Honda,
362 NLRB 706, 707 (2015) (employer failed to demonstrate special cir-
cumstances for total ban, applicable to employees who have contact with
the public, on “wear[ing] pins, insignias, or other message clothing”),
enfd. 826 F.3d 558 (1st Cir. 2016); Albis Plastics, 335 NLRB 923, 924
(2001) (employer demonstrated special circumstances for total ban on
displaying unauthorized stickers, including union stickers, on safety hel-
mets or “bump caps”), enfd. mem. 67 Fed.Appx. 253 (5th Cir. 2003);
Mayrath Co., 132 NLRB 1628, 1630 (1961) (employer failed to demon-
strate special circumstances to justify ordering employees not to wear
union buttons), enfd. in part 319 F.2d 424 (7th Cir. 1963). It is more than
reasonable for the Board to analyze a content-neutral policy permitting
display of logos or graphics subject to size-and-appearance restrictions
under a different standard than a comprehensive prohibition of all union
insignia (as in Long Beach Memorial Medical Center, Boch Honda, and
Mayrath) or an outright ban on displaying a specific union insignia (as
in Albis Plastics and the cases cited in fn. 10, above). Under the former,
employees may display union insignia, and no specific union insignia is
prohibited. The same cannot be said under the latter.
We also observe that, taken to its logical conclusion, our colleague’s
view that any employer policy restricting the wearing of union insignia
is presumptively unlawful would render presumptively unlawful a policy
that bars employees, in the presence of customers on a selling floor, from
wearing the largest or most distracting union insignia imaginable, such
as a pro-union sandwich board or a button 6 inches in diameter encircled
with flashing lights. Moreover, it is not self-evident that any currently
recognized special circumstance would rebut the presumptive unlawful-
ness of such an obviously commonsensical size-and-appearance policy.
Thus, our colleague’s position appears to be not merely that all size-and-
appearance policies are presumptively unlawful, but that they are unlaw-
ful, period.
Member Emanuel dissented in part in Long Beach Memorial Medical
Center, supra, but agrees that it is inapplicable here.
14 As a comparator, the employees’ name badges are roughly the same
size as a standard credit card, which is 2.125 by 3.375 inches.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
satisfactory shopping experience by making store employ-
ees readily identifiable to customers and protecting its
merchandise from theft and vandalism.15 The Respond-
ent’s director of human resources, LaTonia George, testi-
fied that “first and foremost,” the reason for requiring
logos and graphics to be smaller than an employee’s name
badge and nondistracting was to “ensure that the name
badge or the [Respondent’s] logo was the most visible
thing to the customer” so that nothing would detract from
“customer service.” In addition, George also testified that
the policies promote “asset protection” by ensuring that
store employees are easily identified by the Respondent’s
asset protection personnel. The Respondent’s market as-
set protection manager, Tina Longfellow, similarly testi-
fied that an unobstructed name badge “helps us identify .
. . who is an associate, who is not an associate” and that
“one of the most identifying factors is the name badge.”
Longfellow testified that easy identification of employees
through the name badge is necessary because of past inci-
dents in which thieves dressed in the Respondent’s uni-
form broke into security cases on the electronic sales floor
or acted as if they were assisting customers with carry-
outs by loading carts with merchandise and walking out
the front door with them.
In evaluating the lawfulness of the policies at issue, the
Board must be mindful of the considerations underlying
the Respondent’s adoption of its restrictions on logos and
graphics. The Board must not second-guess the Respond-
ent’s decisions as to how it should run its business—pro-
vided, of course, that those decisions do not unreasonably
interfere with the exercise of Section 7 rights. As the
owner and operator of a chain of retail stores, the Re-
spondent has a compelling interest in providing its cus-
tomers with a satisfying shopping experience, and
measures that facilitate the prompt identification of em-
ployees who may be able to assist them serve that interest.
Additionally, the Respondent has an interest in ensuring
that its security personnel can readily identify who is and
who is not an employee to protect against vandalism or
theft of its inventory from store shelves. These are funda-
mental employer interests that serve the primary objective
of any retailer, which is to enhance the customer

15 Needless to say, we reject our colleague’s perfunctory assertion that
this evidence is somehow “superficial, subjective, and conclusory.” To
the contrary, we have no reason to doubt that the testimony of the Re-
spondent’s witnesses accurately reflects the modern-day concerns of a
nationwide retailer.
16 Contrary to our colleague’s claim, there is no requirement that the
Board find that a union insignia rule is either lawful or unlawful with
respect to its entire establishment, including both public and nonpublic
areas. See W San Diego, 348 NLRB at 373-374 (union insignia rule
found lawful with respect to public areas of an establishment but unlaw-
ful with respect to nonpublic areas).
experience and ensure the security of the store’s inventory.
And we find that these legitimate justifications for main-
taining the logos or graphics policies on the selling floor
of its stores outweigh the comparatively minor adverse
impact of the policies on employees’ Section 7 rights. Ac-
cordingly, the Respondent’s maintenance of its logos or
graphics policies does not violate the Act to the extent the
policies are limited to the selling floor.
III.
The Respondent asserts that its legitimate business jus-
tifications for its logos or graphics policies are just as rel-
evant with respect to those areas of its stores where its em-
ployees do not encounter customers in the course of per-
forming their jobs—i.e., areas away from the selling floor.
On this point, we disagree.16 The Respondent’s interest in
making it easier for customers to identify its employees
only applies where customers encounter the Respondent’s
employees, not in areas away from the selling floor, such
as loading docks and other “employees only” areas. And
the Respondent’s interest in ensuring that its employees
are readily identifiable as such by its security personnel
applies primarily on the selling floor.17
The judge noted that many of the Respondent’s con-
cerns carry less weight away from the selling floor be-
cause employees can be easily identified by asset protec-
tion and other security personnel based on their employee
uniforms. The Respondent claims that the uniform is no
backstop because thieves dress in Walmart uniforms to
pose as employees and steal merchandise. However, the
examples given by Longfellow of this happening involved
theft of merchandise from the sales floor, not from areas
away from the selling floor. And as noted above, in areas
away from the selling floor, security personnel can di-
rectly confront anyone they do not recognize, regardless
of whether the individual is wearing a Walmart uniform.
The Respondent also asserts that the logos or graphics pol-
icies need to be maintained away from the selling floor to
prevent employees from distracting their coworkers,
thereby impairing their focus and lessening their produc-
tivity. However, the whole point of wearing a large or
distracting union or “OUR Walmart” button in an “em-
ployees only” area is to catch the attention of coworkers
17 The record does include testimony that nonemployees sometimes
enter “employees only” areas, and therefore the Respondent’s interest in
ensuring that its security personnel can distinguish employees from non-
employees is not strictly limited to the selling floor. However, whereas
security personnel must be discreet on the selling floor, they are under
no such constraint in “employees only” areas, where nonemployees have
no right to be. Thus, if security personnel are unsure whether an individ-
ual in an “employees only” area is or is not an employee, that individual
can be directly confronted.
WAL-MART STORES, INC. 5
in order to communicate a message that is protected by the
Act. Thus, the Respondent’s justification comes uncom-
fortably close to an admission of a purpose to interfere
with Section 7 activity. But even setting that aside, we
find this claim of reduced productivity too speculative to
justify a restriction on the insignia employees can wear in
areas not accessible to customers.
Lastly, the Respondent argues that the logos or graphics
policies lawfully apply away from the selling floor be-
cause employees working in those areas may be periodi-
cally required to enter the selling floor. However, the
Board has recognized that, in such circumstances, an em-
ployee could simply remove a button prior to stepping
onto the selling floor and that “the mere hypothetical im-
practicality of detaching a removable union insignia when
moving between areas” does not, by itself, warrant apply-
ing the same restriction on the wearing of union buttons
and insignia in public and nonpublic areas of an establish-
ment. See W San Diego, 348 NLRB at 374.18
Because the Respondent’s logos or graphics policies are
not narrowly tailored to serve its legitimate business justi-
fications, we find, as to areas other than the selling floor,
that those justifications are outweighed by the infringe-
ment on Section 7 rights. We therefore find that the poli-
cies are overly broad and violate Section 8(a)(1) to the ex-
tent they are not limited to the selling floor.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Wal-Mart Stores, Inc., Bentonville, Arkansas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining the overly broad provisions in its Feb-
ruary 2013, May 2014, and September 2014 National
Dress Code and its February 2013 California Dress Code
that unduly restrict employees’ right to display union in-
signia when and where employees ordinarily will not
come in contact with or be observed by customers of the
Respondent.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

18 We recognize, as the record establishes and as common experience
confirms, that many of the Respondent’s employees move back and forth
between areas where customers are encountered and areas where they
are not. Consistent with our decision, the Respondent may mandate that
oversized and distracting logos and graphics worn in an area not fre-
quented by customers must be removed before employees enter the sell-
ing floor. In addition, in light of the realities of the Respondent’s work-
place, our decision is limited to logos and graphics that are easily affixed
and removed. It simply would not be practical for an employee wearing
an oversized or distracting logo or graphic that cannot be easily removed
to comply with the Respondent’s logos or graphics policies when he or
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind, to the extent applicable in each state and
the District of Columbia, the overly broad provisions in its
February 2013, May 2014, and September 2014 National
Dress Code and its February 2013 California Dress Code
that unduly restrict employees’ right to display union in-
signia when and where employees ordinarily will not
come in contact with or be observed by customers of the
Respondent.
(b) Furnish all current employees in its stores in the
United States with an insert for its applicable employee
dress code that (1) advises that the unlawful provision re-
garding logos or graphics has been rescinded or (2) pro-
vides a lawfully worded provision on adhesive backing
that will cover the unlawful provision, or publish and dis-
tribute to employees at its stores in the United States re-
vised copies of its employee dress code that (1) do not
contain the unlawful provision or (2) provide a lawfully
worded provision.
(c) Within 14 days after service by the Region, post at
all its stores in the United States where the unlawful dress
code policies are in effect copies of the attached notice
marked “Appendix.”19 Copies of the notice, on forms pro-
vided by the Regional Directors for Region 13 and Region
32, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out
of business or closed one or more of the facilities involved
in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
associates and former associates employed by the
she enters the selling floor. For that reason, the Respondent may cate-
gorically prohibit, in all areas, the display of oversized and distracting
logos and graphics that cannot be easily affixed or removed, such as
shirts that have logos or graphics printed on them. See Casa San Miguel,
320 NLRB 534, 540 (1995) (employer lawfully prohibited employees
from wearing, in all areas, uniforms with union insignia printed on them).
19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent at the closed facilities at any time since Feb-
ruary 7, 2013.
(d) Within 21 days after service by the Regions, file
with the Regional Directors for Region 13 and Region 32
a sworn certification of a responsible official on a form
provided by the Regions attesting to the steps that the Re-
spondent has taken to comply.
Dated, Washington, D.C. December 16, 2019
John F. Ring, Chairman
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
For almost 75 years, the Board has adhered to the prin-
ciple, expressly endorsed by the Supreme Court in Repub-
lic Aviation Corp. v. NLRB,1 that an employer may not
limit or ban employees’ display of union insignia at work
absent a showing by the employer that “special circum-
stances” exist. As the Supreme Court properly recog-
nized, wearing union insignia—whether as an expression
of solidarity, protest, or simply pride of affiliation–is at the
core of the activity the National Labor Relations Act is in-
tended to protect. The Republic Aviation test is grounded
in the presumption that employers’ efforts to restrict these
rights should be viewed with skepticism, and that employ-
ers should bear the burden of justifying such restrictions.
Today, the majority brushes aside Republic Aviation
and its progeny and applies the less demanding standard
from its deeply flawed decision in Boeing Co.2 to find that
the Respondent’s restriction of its employees’ Section 7
right to wear union insignia was lawful. Under the

1 324 U.S. 793 (1945).
2 365 NLRB No. 154 (2017).
3 When an agency reverses its own precedent, the Supreme Court has
held, it must “provide a reasoned explanation for the change.” Encino
Motorcars, LLC v. Navarro, ___ U.S. ___, 136 S. Ct. 2117, 2125-2126
(2016). Having neglected relevant precedent entirely, the majority has
obviously failed to satisfy this requirement.
4 Central Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972), citing
Peyton Packing Co., 49 NLRB 828 (1943), enfd. 142 F.2d 1009 (5th Cir.
1944). As the Board explained early on:
majority’s new approach, it seems that employers are now
presumptively permitted to restrict the wearing of union
insignia (so long as they do not ban such activity alto-
gether) based on any “legitimate justification.” The bur-
den now rests on the General Counsel to prove that em-
ployees’ protected interests have been adversely affected,
and that the adverse effect on Section 7 rights outweighs
the employer’s proffered justification. This turns Repub-
lic Aviation on its head—disregarding the Supreme
Court’s guidance and ignoring several decades of Board
precedent.3 For those reasons alone, the majority’s deci-
sion is fundamentally flawed.
Additionally, though, I fear that today’s decision signals
the majority’s intention to import the Boeing frame-
work—which is less protective of Section 7 rights—into
other well-settled areas of Board law that currently require
their own subject-matter specific analyses. That surely
would not be a welcome development for workers, and is
yet another reason I must respectfully dissent.
I.
Section 7 of the National Labor Relations Act guaran-
tees employees “the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.” Sec-
tion 8(a)(1) protects these rights by making it an unfair la-
bor practice for an employer “to interfere with, restrain or
coerce employees in the exercise of the rights guaranteed”
by Section 7. Since the earliest days of the Act, the Board
has recognized “the importance of freedom of communi-
cation to the free exercise of organization rights.”4 And as
the Supreme Court has held, “organization rights are not
viable in a vacuum; their effectiveness depends in some
measure on the ability of employees to learn the ad-
vantages and disadvantages of organization from others.”5
One such critical form of communication has been em-
ployees’ display of union insignia at work. A survey of
Board decisions demonstrates the ways in which workers
have displayed union insignia in furtherance of Section 7
It is clear that employees cannot realize the benefits of the right to self-
organization guaranteed them by the Act, unless there are adequate av-
enues of communication open to them whereby they may be informed
or advised as to the precise nature of their rights under the Act and of
the advantages of self-organization, and may have opportunities for the
interchange of ideas necessary to the exercise of their right to self-or-
ganization.
LeTourneau Co. of Georgia, 54 NLRB 1253, 1260 (1944).
5 Central Hardware, above, 407 U.S. at 543.
WAL-MART STORES, INC. 7
rights, including in support of organizing campaigns,6
demonstrating solidarity,7 and advocating for issues dur-
ing collective bargaining.8 In Republic Aviation itself, the
Supreme Court affirmed that “the right of employees to
wear union insignia at work has long been recognized as
a reasonable and legitimate form of union activity, and the
[employer’s] curtailment of that right is clearly violative
of the Act.”9
At the same time, the Board and the courts have recog-
nized that employees’ right to display union insignia at
work is not absolute. The Republic Aviation Court recog-
nized:
[The Board must adjust] the undisputed right of self-or-
ganization assured to employees under the Wagner Act
and the equally undisputed right of employers to main-
tain discipline in their establishments. Like so many oth-
ers, these rights are not unlimited in the sense that they
can be exercised without regard to any duty which the
existence of rights in others may place upon employer or
employee.10
Republic Aviation established the Board’s longstanding
approach to balancing these rights—a presumption that
any employer limitation on the display of union insignia
is invalid, with the burden on the employer to establish
special circumstances to justify its action.11 As Professors
Gorman and Finkin have explained, this approach “re-
flect[s] a substantive judgment that inhibitions on em-
ployee activities on behalf of the union inherently do ‘in-
terfere’ with and ‘restrain’ the exercise of their section 7
rights and that the burden to justify that inhibition should
properly lie with the employer when its needs are not im-
mediately obvious.”12

6 See, e.g., Malta Construction Co., 276 NLRB 1494, 1498 (1985),
enfd. 806 F.2d 1009 (11th Cir. 1986); Mayrath Co., 132 NLRB 1628,
1643 (1961), enfd. in relevant part 319 F.2d 424 (7th Cir. 1963).
7 See, e.g., Mt. Clemens General Hospital, 335 NLRB 48, 49 (2001),
enfd. 328 F.3d 837 (6th Cir. 2003). See generally John W. Teeter, Jr.,
Banning the Buttons: Employer Interference with the Right to Wear Un-
ion Insignia in the Workplace, 80 Ky. L.J. 377, 379 (1992) (“By engag-
ing in this simple act of reaffirmation, the worker assures both herself
and others that they belong to an entity devoted to protecting their statu-
tory rights, economic interests, and quest for dignity in their work.”).
8 See, e.g., Mead Corp., 314 NLRB 732, 732 (1994), enfd. 73 F.3d
74 (6th Cir. 1996) (wearing buttons to pressure employer into a favorable
successor agreement); Holladay Park Hospital, 262 NLRB 278, 278
(1982) (wearing white and blue buttons and yellow ribbons to support
the union’s bargaining position).
9 324 U.S. at 802 fn. 7. See also In-N-Out Burger, Inc. v. NLRB, 894
F.3d 707, 714 (5th Cir. 2018) (“Since the Act's earliest days, it has been
recognized that Section 7 protects the right of employees to wear items—
such as buttons, pins, and stickers—relating to terms and conditions of
employment (including wages and hours), unionization, and other pro-
tected matters.”), cert. denied 139 S.Ct. 1259 (mem), enfg. 365 NLRB
No. 39 (2017).
It is noteworthy that Republic Aviation—like the case at
issue today—involved a partial ban, rather than a com-
plete ban on union insignia. Republic discharged three
employees for wearing union steward buttons after being
directed to remove them, and “sought to justify the prohi-
bition [by] giving assurance that employees were free to
wear other types of union buttons.”13 Indeed, Republic
argued expressly to the Court that:
Petitioner freely permitted the wearing of other types of
U.A.W. buttons, and there is no showing that the privi-
lege of displaying the steward buttons would have legit-
imately aided the self-organization of the employees.
The Board's failure to perform its required function of
balancing the conflicting interests on this issue is under-
lined by its conclusion that the prohibition was a “cur-
tailment” of the employees’ right “to wear union insig-
nia at work.”14
Both the Board in its underlying decision and, subse-
quently, the Supreme Court were unpersuaded. The Board
concluded that Republic, “by adopting and enforcing the
prohibition against the wearing of steward buttons, inter-
fered with, restrained, and coerced its employees, within
the meaning of . . . the Act.”15 The Court adopted this
conclusion, implicitly rejecting the argument that Repub-
lic’s toleration of some union insignia – those without the
steward label – made its partial ban lawful.
Given the scope of the Court’s ruling, the Board’s anal-
ysis in all subsequent insignia restriction cases – including
those, like Republic Aviation, involving partial bans16—
has started from the premise that any limitation is pre-
sumptively invalid. The Respondent thus bears the burden
10 324 U.S. at 797-798.
11 Id. at 803-804 and fn. 10. See Peyton Packing Co., 49 NLRB 828,
843–844 (finding that, in the context, “a rule must be presumed to be an
unreasonable impediment to self-organization and therefore discrimina-
tory in the absence of evidence that special circumstances make the rule
necessary in order to maintain production or discipline.”).
12 Robert A. Gorman, Matthew W. Finkin, Basic Text on Labor Law,
Sec. 8.2 (2d ed. 2004).
13 Republic Aviation, 51 NLRB 1186, 1188 (1943).
14 Brief for Republic Aviation Corporation, 1944 WL 42256.
15 51 NLRB at 1188.
16 See, e.g., Holladay Park Hospital, 262 NLRB 278, 278-279 (apply-
ing “special circumstances” where employer permitted wearing small
union buttons but prohibited larger ribbons in support of bargaining);
Davison Paxon Co., 191 NLRB 58, 61 (1971) (same where employer
permitted small union buttons but prohibited larger, gaudier union but-
tons), enf. denied 462 F.2d 364 (5th Cir. 1972); Gray-Syracuse, Inc., 170
NLRB 1684, 1687-1689 (1968) (same where employer permitted UAW
brooch, but prohibited organizing committee button); Fabri-Tek, Inc.,
148 NLRB 1623, 1624-1628 (1964) (same where employer permitted
smaller union buttons but prohibited larger buttons), enf. denied 352 F.2d
577 (8th Cir. 1965).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of establishing special circumstances, regardless of
whether it imposed a complete or partial ban on insignia.17
The Board, moreover, has emphasized that the special
circumstances exception is narrow.18 Accordingly, the
Board has consistently held that customer exposure to un-
ion insignia, standing alone, is not a special circumstance
which permits an employer to prohibit display of such in-
signia.19 Nor is the requirement that employees wear a
uniform always a special circumstance justifying an insig-
nia prohibition.20 Further, and regardless of the context,
“[u]nless the size of the union button worn by an employee
is related to the impairment of production or discipline,
the size of the button is immaterial.”21
Equally important, the Board has consistently held, re-
gardless of the context, that an employer’s assertion of
special circumstances “must be established by substantial
evidence in the record.”22 “[A]n employer who presents
only generalized speculation or subjective belief about po-
tential disturbance . . . or disruption of operations fails to
establish special circumstances justifying a ban on union
insignia.”23 Finally, even where a rule may be based upon
special circumstances, the rule must be narrowly drawn to
restrict the wearing of union insignia only in areas or un-
der circumstances which justify the rule.24
II.
Under those established principles, the present case
should be routine. It requires nothing more than the appli-
cation of the Board’s longstanding, Supreme Court-ap-
proved “special circumstances” doctrine to a straightfor-
ward, familiar fact pattern involving an employer re-
striction on insignia. Thus, the Respondent—a large na-
tional retailer—promulgated dress codes requiring that all
insignia be small, non-distracting, and “no larger than the
size of your employee name badge,” which measured 2.25
inches by 3.5 inches. These dress codes did not distin-
guish between public and nonpublic areas of the store. In
support of its restrictions, the Respondent has asserted
several special circumstances, including the need for easy
employee identification and the prevention of distractions
to customers.25 The Respondent’s argument also rests in

17 Pathmark Stores, Inc., 342 NLRB 378, 379 (2004).
18 E & L Transport Co., 331 NLRB 640, 640 fn. 3 (2000).
19 P.S.K. Supermarkets, Inc., 349 NLRB 34, 35 (2007) (citing cases).
20 Id.
21 Loray Corp., 184 NLRB 557, 577 (1970).
22 Washington State Nurses Assn. v. NLRB, 526 F.3d 577 (2008).
23 Danbury HCC, 360 NLRB 937, 938 (2014), enfd. sub nom. Health-
Bridge Management, LLC v. NLRB, 798 F.3d 1059 (D.C. Cir. 2015). See
also Medco Health Solutions of Las Vegas, Inc., 364 NLRB No. 115, slip
op. at 4 (2016) (“[T]he Board requires more than conjecture about cus-
tomers’ negative reactions to employees' Section 7 activity to find special
circumstances.”), enf. denied in relevant part and remanded 701 F.3d 710
(D.C. Cir. 2012).
large part on its assertion that its burden should be less
substantial because it permitted the display of some insig-
nia; namely, that “where the employer allows employees
ample opportunity to express their union sentiments
through the display of union insignia, the balance shifts in
favor of the employer’s legitimate business objectives.”
The judge, applying the “special circumstances” frame-
work, reached the only permissible conclusion on the facts
presented here–that the Respondent’s restrictions violated
Section 8(a)(1). At the outset, he properly rejected the Re-
spondent’s assertion that a different standard should ap-
ply, noting that “the Board already recognizes the employ-
er's interests in the existing legal standard that applies to
union insignia—that is, the Board recognizes that while
employees have a Section 7 right to wear union insignia,
employers may restrict that right if the restrictions are jus-
tified by special circumstances.” From there, the judge
carefully evaluated the Respondent’s arguments that the
display of insignia hindered employee identification and
distracted customers, finding that the Respondent failed to
present “evidence of a significant or widespread problem”
with either. He thus concluded that the Respondent’s spe-
cial circumstances arguments “fall flat.”
Finally, the judge found that, even assuming the Re-
spondent’s concerns about visibility and customer experi-
ence were valid, its policies were “not narrowly tailored to
those concerns.” Specifically, he observed that the Re-
spondent’s restrictions did not differentiate between the
sales floor—where employees interact with customers–
and nonpublic areas of the store—where most of the Re-
spondent’s concerns would be moot. The judge thus
properly concluded that the Respondent’s dress code lan-
guage “is overly broad, is not justified by special circum-
stances, and places unlawful restrictions on associates
Section 7 right to wear union insignia.”26
III.
Adopting the judge’s well-reasoned findings here under
established law would be simple—and correct. Instead, as
stated above, the majority asserts that “a different analysis
is required” where an employer maintains a rule that
24 Sunland Construction Co., 307 NLRB 1036, 1040 (1992).
25 The Respondent’s California dress code similarly required that all
logos be “small [and] non-distracting,” and did not distinguish between
public and nonpublic areas. In addition to asserting the justifications
stated above, the Respondent asserted as to its California code that it was
necessary to protect its public image.
26 The judge reached the same conclusions as to the Respondent’s Cal-
ifornia policy, finding that the Respondent did not establish a public im-
age justification under special circumstances and that it “violated Section
8(a)(1) by maintaining its February 2013 dress code, a facially overbroad
policy that unduly restricted associates' right to wear union insignia.”
WAL-MART STORES, INC. 9
places limitations on the display of union insignia but does
not prohibit them. In an attempt to rationalize this distinc-
tion, the majority contends—with scant explanation and
no case support—that “because the infringement on Sec-
tion 7 rights is less severe, the employer’s legitimate jus-
tifications for maintaining the restrictions do not need to
be as compelling for its policy to pass legal muster, and
justifications other than the recognized ‘special circum-
stances’ may suffice.” To this end, the majority an-
nounces that, in cases like this one, the Board will hence-
forth apply the analytical framework for facially neutral
rules in Boeing Co.,27 which requires the Board to con-
sider: (1) the nature and extent of the potential impact on
employees’ NLRA rights; and (2) employers’ legitimate
justifications associated with the policy. The Board will
then, the majority holds, find that the policy’s mainte-
nance violates Section 8(a)(1) only if “the justifications
are outweighed by the adverse impact on rights protected
by Section 7.”
Applying this new framework, the majority finds that
the Respondent lawfully restricted the size and appearance
of union insignia on the selling floor of its stores. The
majority maintains that the “adverse effect [on Section 7
rights] is relatively minor” because “[e]mployees are free
to wear any union message they want, subject to the poli-
cies’ size and appearance limitations, and they have done
so without interference.” At the same time, it finds that
the Respondent “has offered evidence of its legitimate jus-
tifications” for its policies. To support this point, the ma-
jority cites testimony from the Respondent’s managers af-
firming the importance of customer service and ensuring
that store employees are easily identified in order to pro-
tect store assets and cautions that “[t]he Board must not
second-guess the Respondent’s decisions as to how it
should run its business.” The majority nonetheless freely

27 365 NLRB No. 154, slip. op at 3.
28 Although I agree with the majority’s conclusion that the Respond-
ent’s limitation on the display of union insignia in nonpublic areas of its
stores was unlawful, I reach that conclusion under the “special circum-
stances” analysis, not the majority’s unsupported extension of the Boeing
framework to this situation.
29 In truth, this is hardly a novel scenario in the annals of Board law,
and the Board has always applied the “special circumstances” frame-
work. See supra fn. 16.
30 The majority too suggests that the “special circumstances” test does
not apply here because the allegation is a facial challenge to the Respond-
ent’s rule rather than an as-applied challenge to an outright ban on union
insignia. But the Board has never made such a distinction; it has applied
“special circumstances” in both contexts. See, e.g., Long Beach Memo-
rial Medical Center, Inc. d/b/a Long Beach Memorial Medical Center &
Miller Children’s and Women’s Hospital Long Beach, 366 NLRB No.
66, slip op. at 1-3 (2018), enfd. mem. 774 Fed.Appx. 1 (D.C. Cir. 2019)
(analyzing facial challenge to employer’s badge restriction under “spe-
cial circumstances.”). And for good reason – in this particular context,
facial and as-applied challenges are functionally identical. The guiding
endorses the Respondent’s decisions, based on its judg-
ment that enhancing the customer experience and ensuring
the security of the store’s inventory “are fundamental em-
ployer interests that serve the primary objective of any re-
tailer.” In the end, the majority concludes that these legit-
imate justifications are not outweighed by the “compara-
tively minor adverse impact of the policies on employees’
Section 7 rights” and that the Respondent’s maintenance
of these policies therefore “does not violate the Act to the
extent the policies are limited to the selling floor.”
As to areas other than the selling floor, the majority
finds that “the Respondent’s policies are not narrowly tai-
lored to serve its legitimate business justifications.” So, at
least as to these nonpublic areas, the majority concludes
that the Respondent’s insignia policies are “overly broad
and violate Section 8(a)(1),” and orders the Respondent to
cease and desist from maintaining these policies only as
they apply to nonpublic areas.
IV.
The majority’s decision, particularly with respect to the
selling floor of the Respondent’s stores, rests on a series
of false premises.28 The most glaring of these is its appar-
ent belief that the Respondent’s partial insignia restriction
presents a novel scenario that somehow falls outside the
ambit of Republic Aviation.29 But, as explained above,
Republic Aviation was itself a partial restriction case.
Surely there can be no question about the appropriate test
to apply here when a nearly identical scenario existed in
the Supreme Court case that embraced the “special cir-
cumstances” approach in the first place.30 Instead, the ma-
jority essentially adopts as law an argument that the Court
rejected in Republic Aviation: that an employer’s willing-
ness to permit the display of some union insignia warrants
a more forgiving assessment of its asserted justification
for banning other union insignia.
principle in both situations is the one set forth in Republic Aviation – that
any limitation on the display of union insignia is presumptively unlawful.
The only difference is that in an as-applied scenario, an employee has
actually displayed an insignia that runs afoul of the employer’s rule. (In
fact, the Respondent here did, pursuant to its policy, prohibit an em-
ployee from wearing a 3.5-inch diameter union button, but the General
Counsel did not allege a violation of the Act on that basis.) Accordingly,
the distinction that the majority relies on is meaningless.
Contrary to the majority, it also does not matter that in as-applied
cases, unlike here, the Board is “able to consider the specific buttons or
other insignia that employees were barred from wearing and analyze the
impact that those specific buttons would reasonably have in the particular
workplaces involved.” Pursuant to Republic Aviation, once any limita-
tion on Sec. 7 rights has been established, the only relevant consideration
is whether the Respondent can prove special circumstances. The major-
ity’s novel assertion that the nature and extent of an employer’s prohibi-
tion on the display of insignia is somehow relevant to the Board’s inquiry
itself represents a fundamental departure from this longstanding prece-
dent.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
But even putting aside that inconsistency with Republic
Aviation itself, the majority’s approach would still run
afoul of longstanding Board principles. It ignores decades
of Board precedent holding that any limitation on the dis-
play of union insignia is presumptively unlawful – regard-
less of whether an employer permits other related Section
7 activity.31 It upends the Board’s traditional framework
by abandoning that presumption and, instead, requiring
the General Counsel to first prove that Section 7 rights
have been adversely affected. And it all but negates the
“special circumstances” standard by holding that an em-
ployer need only produce some lesser justification for a
partial ban on the display of union insignia. But, as ex-
plained above, an employer’s willingness to tolerate some
union insignia does not give it a freer hand to restrict other
protected displays that it views less favorably, nor does it
render an employer’s interference with protected rights
“less severe,” as the majority asserts.32 Taken together,
these changes turn the Board’s traditional framework on
its head and effectively treat the display of union insignia
more as a privilege to be granted by the employer on the
terms it chooses, rather than as an essential Section 7 right
that—pursuant to federal labor law—requires accommo-
dation. The net effect is the marginalization of a critical

31 See, e.g., Boch Honda, 362 NLRB 706, 707 (2015), enfd. 826 F.3d
558 (1st Cir. 2016) (“[A] rule that curtails employees' Section 7 right to
wear union insignia in the workplace must be narrowly tailored to the
special circumstances justifying maintenance of the rule, and the em-
ployer bears the burden of proving such special circumstances.”) (em-
phasis added); Albis Plastics, 335 NLRB 923, 924 (2001), enfd. mem.
67 Fed.Appx. 253 (5th Cir. 2003) (“The Board has held that, in the ab-
sence of ‘special circumstances,’ an employer's prohibition of or limita-
tion on the display of union insignia violates Section 8(a)(1).”) (emphasis
added); Mayrath Co., 132 NLRB 1628, 1629-1630 (“[R]ules which in-
terfere with this right [to wear insignia] . . . are presumptively invalid in
the absence of special circumstances.”) (emphasis added).
32 As pointed out above, the majority’s views echo the employer’s un-
availing argument in Republican Aviation that “there is no showing that
the privilege of displaying the steward buttons [in addition to generic
union buttons] would have legitimately aided the self-organization of the
employees.” See also The Southern New England Telephone Co., 356
NLRB 883, 883 (2011), enf. denied 793 F.3d 93 (D.C. Cir. 2015) (“that
the Respondent did not otherwise extensively interfere with employees'
right to support the Union adds nothing to its ‘special circumstances’ de-
fense.”); Malta Construction Co., 276 NLRB at 1494 (finding unlawful
employer’s prohibition on helmet stickers even where it “allowed its em-
ployees to wear union insignia on articles of their personal attire, such as
T-shirts.”); Caterpillar Tractor Co. (Joliet, Ill.), 113 NLRB 553 (1955)
(expressly rejecting “special circumstances” argument based on asser-
tion that employer “permitted its employees to display the other [union]
campaign badges.”), enf. denied. 230 F.2d 357 (7th Cir. 1956).
And, as explained, under Board law as well “it is irrelevant that the
[employer] allowed employees to wear other union insignia that it
deemed acceptable.” Caterpillar, Inc., 321 NLRB 1178 (1996), vacated
pursuant to settlement March 19, 1998, citing Holladay Park Hospital,
262 NLRB at 279. As the Board has observed, “It certainly does not lie
in the mouth of [the employer] to tell the Union, or [the employer’s] em-
ployees, how to exercise their rights under the Act.” Monarch Machine
statutory right—one that “furthers the right [of employ-
ees] to communicate [effectively] with one another re-
garding self-organization at the jobsite.”33
The majority also mischaracterizes the nature of the
Board’s traditional test in its assertion that the “special cir-
cumstances” framework “obviates the need to conduct an
open-ended balancing test anew in every case. If the pro-
hibition falls within the scope of a recognized special cir-
cumstance, it is lawful.” Certainly, the Board has
acknowledged broad categories of cases in which employ-
ers have established special circumstances justifying lim-
its on union insignia.34 But in every case—including in
the judge’s well-reasoned decision here—the Board en-
gaged in a rigorous, fact-specific inquiry to determine
whether the employer had actually established the pres-
ence of special circumstances in the context of its work-
place.35 By contrast, the majority’s decision today effec-
tively discards a fact-specific analysis for one that plainly
tips the balance toward employer interests and makes it
exceedingly difficult to prove unlawful interference. In-
deed, the majority’s apparent willingness to rely on super-
ficial, subjective, and conclusory remarks as “evidence”
of an employer justification is indicative of a shift away
from fact-based scrutiny rather than toward it.
Tool Co., 102 NLRB 1242, 1249 (1953) (rejecting “special circum-
stances” argument based on employer’s assertion that “employees have
adequate means of communication with other employees—the Union
meeting hall, newspaper announcements, mailing lists, the bulletin
boards provided by the Company.”), enfd. 210 F.2d 183 (6th Cir. 1954),
cert. denied 347 U.S. 967 (1954). See also Page Avjet Corp., 275 NLRB
773, 777-778 (1985) (rejecting “special circumstances” argument where
employer asserted that posting photographs of the stewards on the union
bulletin board was an acceptable alternative to wearing steward badges).
If anything, an employer’s willingness to tolerate some insignia con-
stitutes a tacit acknowledgement that the display of insignia does not ac-
tually interfere with its business and would seem to require an even more
robust explanation of why it must restrict other insignia, not a weaker
one.
33 Meijer, Inc. v. NLRB, 130 F.3d 1209, 1212 (6th Cir. 1997), quoting
Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978), enfg. 318
NLRB 50 (1995).
34 See, e.g., P.S.K. Supermarkets, Inc., 349 NLRB 34, 35 (Special cir-
cumstances might exist where union insignia “jeopardize employee
safety, damage machinery or products, exacerbate employee dissension,
or unreasonably interfere with a public image that the employer has es-
tablished, as part of its business plan, through appearance rules for its
employees.”).
35 For this reason, I reject the majority’s assertion that my position is
tantamount to finding that “all size-and-appearance policies are . . . un-
lawful, period.” Consistent with the Board’s longstanding jurisprudence,
an employer always has the opportunity to rebut the General Counsel’s
showing of a presumptively unlawful restriction by establishing a spe-
cific and objective special circumstance to justify its policy. The fact
that there is not a “currently recognized special circumstance” that would
encompass a prohibition on a prounion sandwich board or a large button
with flashing lights surely would not preclude an employer from present-
ing a persuasive “special circumstances” argument with regard to either
in the appropriate case.
WAL-MART STORES, INC. 11
V.
But even if one were to accept the majority’s decision
to import the Boeing framework here, the majority’s ap-
plication of the framework fails on its own terms. First,
the majority’s finding that the Respondent’s insignia re-
striction is overbroad as to nonpublic areas of its stores
should be the end of the inquiry. As the Board stated in
Times Publishing Co., 240 NLRB 1158, 1160 (1979),
enfd. 605 F.2d 847 (5th Cir. 1979), “once a rule is found
to be generally invalid, it is invalid for all purposes and
cannot be applied as valid in part to a specific area.”36 The
majority should follow this approach here and find the Re-
spondent’s overbroad rule unlawful in its entirety.
But this is not the only flawed aspect of the majority’s
Boeing analysis. The majority’s balancing of the impact
on workers’ rights when compared to the employer’s as-
serted interests is predictably skewed. The majority gives
short shrift to employees’ statutory rights, ignoring dec-
ades of caselaw—including Supreme Court precedent—
underscoring the strength of employees’ right to wear in-
signia at work and the inherent interference that any limi-
tation on that right entails. At the same time, the majority
accepts as persuasive the very same assertions by the Re-
spondent that the judge who tried the case found to “fall
flat.” To this end, it relies on facile, nonspecific testimony
by the Respondent’s managers that comes nowhere close
to establishing a concrete factual predicate for the Re-
spondent’s restrictive policies.37 And, as pointed out
above, the majority relies on its own views regarding the
“fundamental interests that serve the primary objective of
any retailer.” The end result is a decision that so badly
misreads Board precedent regarding Section 7 rights and
accepts with so little scrutiny the Respondent’s

36 In that case, the Board found that “even if the [employer’s] lobby
were a working area, the Respondent's no-distribution rule as it applied
to the lobby would be invalid because Respondent's no-distribution rule
is overly broad and invalid for all purposes.” Id. at 1158. In so doing, it
specifically reversed the judge’s underlying holding that the employer’s
rule was unlawfully overbroad generally but “valid to the extent that it
applies to the lobby area.” Times Publishing Co., 231 NLRB 207, 208
(1977), enfd. in part and remanded in part 576 F.2d. 1107 (5th Cir. 1978).
See also, e.g., Boch Honda, above, 362 NLRB at 709; G4S Secure Solu-
tions (USA), Inc., 364 NLRB No. 92 (2016).
37 Puzzlingly, the majority also opines that “[t]he Respondent may
categorically prohibit, in all areas, the display of oversized and distract-
ing logos and graphics that cannot be removed”– a statement that is both
unrelated to any issue raised in this case and expressly contrary to Board
law. Under the “special circumstances” standard, the Board has never
created any categorical prohibition on any type of insignia; to the con-
trary, as stated above, “[u]nless the size of the union button worn by an
employee is related to the impairment of production or discipline, the
size of the button is immaterial.” See supra fn. 21. In other words, in
every case, the Board assesses whether the employer has met its “special
circumstances” burden. Certainly, the majority’s assertion is not sup-
ported by Casa San Miguel, 320 NLRB 534, 540 (1995), which the
justifications for curbing them as to be arbitrary. What the
law and the facts presented here actually demonstrate is
that the judge correctly found that the Respondent violated
Section 8(a)(1) by maintaining its overbroad insignia
rules, and I would adopt that finding.
VI.
Today’s decision—though arising in one focused, rela-
tively narrow area of the law—carries with it broader im-
plications for the Board’s jurisprudence in all employer
rules cases. Until now, the Board’s approach in cases in-
volving insignia—under Republic Aviation—and its ap-
proach in general rules cases—formerly under Lutheran
Heritage Village-Livonia38—have existed in entirely sep-
arate analytical boxes, and for good reason. The Board’s
“special circumstances” approach in insignia cases carries
with it the imprimatur of the Supreme Court, which years
ago affirmed “the right of employees to wear union insig-
nia . . . as a reasonable and legitimate form of union activ-
ity.”39 In place of that approach, the majority imposes an
alien framework—Boeing—that subverts one of the cen-
tral rights under the Act while introducing unnecessary
uncertainty into a long-settled area of the law.
My suspicion is that today’s decision foreshadows what
will be an ongoing effort to dilute other subject-matter
specific rule analyses by smuggling the Boeing framework
into places where it simply does not belong.40 The most
pressing question is whether the majority now plans to ap-
ply Boeing in all instances where an employer prohibits
some—but not all—Section 7 activity, even beyond insig-
nia cases. This prospect is especially troubling in light of
the majority’s apparent propensity in applying Boeing to
find that employer rules have a “relatively minor” impact
on protected rights.41
majority relies on. There, the Board simply adopted the judge’s narrow
finding that an employer established special circumstances in support of
its refusal to permit employees from wearing, in a hospital setting, uni-
forms printed with prounion messages. The Board did not purport to set
forth any categorical rule.
38 343 NLRB 646 (2004), overruled in relevant part by Boeing Co.,
above.
39 Republic Aviation Corp. v. NLRB, above, 324 U.S. at 802 fn. 7.
40 Contrary to my colleagues, there is truly nothing inevitable about
the application of Boeing in this case. That case involved the lawfulness
of a no-camera rule and not—as here—an insignia restriction that has
long been analyzed under the Republic Aviation framework. And Boeing
overruled Lutheran Heritage, which has never been applied in this con-
text. (Tellingly, the Board has continued to apply the “special circum-
stances” test in facial challenges to insignia rules post-Boeing. See Long
Beach Memorial Medical Center, Inc., 366 NLRB No. 66, slip op. at 1-
3.) If nothing else, today’s decision confirms my characterization of
Boeing as a “secret rulemaking in the guise of adjudication,” as that de-
cision put into place a flawed set of principles that now apply far beyond
the factual context of that case. 365 NLRB No. 154, slip op. at 30.
41 See LA Specialty Produce Co., 368 NLRB No. 93, slip op. at 3-4
(2019).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
But even apart from these wider considerations, today’s
decision cannot stand. It is inconsistent with Supreme
Court precedent. It brushes aside decades of Board law
applying the “special circumstances” test in all insignia
cases without explaining the departure from precedent.
And it produces a result that substantially devalues the
Section 7 rights of employees. Accordingly, I dissent.
Dated, Washington, D.C. December 16, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain the overly broad provisions in
our February 2013, May and September 2014 National
Dress Code and our February 2013 California Dress Code
that unduly restrict your right to display union insignia
when and where you ordinarily will not come in contact
with or be observed by our customers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind, to the extent applicable in each state
and the District of Columbia, the overly broad provisions
in our February 2013, May and September 2014 National
Dress Code and our February 2013 California Dress Code
that unduly restrict your right to display union insignia
when and where you ordinarily will not come in contact
with or be observed by our customers.
WE WILL furnish all current employees in our stores
with an insert for our applicable employee dress code that
(1) advises that the unlawful provision regarding logos or
graphics has been rescinded or (2) provides a lawfully
worded provision on adhesive backing that will cover the
unlawful provision, or WE WILL publish and distribute to
all current employees at our stores where the unlawful
dress code provisions have been or are in effect revised
copies of our employee dress code that (1) do not contain
the unlawful provision or (2) provide a lawfully worded
provision.
WAL-MART STORES, INC.
The Board’s decision can be found at
www.nlrb.gov/cases/13-CA-114222 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Vivian Perez Robles, Esq., for the General Counsel.
Lawrence Katz and Erin Bass, Esqs., for the Respondent.
Joey Hipolito, Esq., for the Charging Party.
DECISION
GEOFFREY CARTER, Administrative Law Judge. In this case,
the parties contest whether Walmart Stores, Inc. (Walmart or Re-
spondent) violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by maintaining dress codes that state, in per-
tinent part:
Walmart logos of any size are permitted. Other small, non-dis-
tracting logos or graphics on shirts, pants, skirts, hats, jackets
or coats are also permitted[.]
The General Counsel asserts that the dress code language is un-
lawfully overly broad because the language that permits logos
only if they are “small” and “non-distracting” violates Walmart
associates’ right to wear union insignia in the workplace.
Walmart, meanwhile, asserts that its policy on logos is justified
by special circumstancesµ—specifically, Walmart’s need to en-
sure that associates’ name tags are visible to customers and other
associates, and Walmart’s need to avoid distractions that would
detract from the customer experience. As set forth more fully
below, I find that Walmart’s dress code language regarding logos
violates Section 8(a)(1) of the Act because it is overly broad, is
not justified by special circumstances, and places unlawful re-
strictions on associates’ Section 7 right to wear union insignia.
WAL-MART STORES, INC. 13
STATEMENT OF THE CASE
The Organization United for Respect at Walmart (OUR
Walmart or Charging Party) filed the charge underlying this case
on September 26, 2013, and the General Counsel issued a con-
solidated complaint on October 20, 2014 (covering this case and
Case 13–CA–110452). The General Counsel amended the con-
solidated complaint on March 17, 2015. Respondent filed timely
answers denying the alleged violations in the consolidated com-
plaint.
On April 14, 2015, I accepted a settlement between Walmart
and OUR Walmart that resolved the allegation in Case 13–CA–
110452 (subject to compliance with the settlement agreement).
That same day, I severed this case (Case 13–CA–114222) from
the consolidated complaint, and this case proceeded to trial on
April 23, 2015, in Chicago, Illinois.
Notably, this is not the first time that the parties have litigated
the lawfulness of Walmart’s dress code language concerning
logos. Indeed, in September 2014, the parties litigated the law-
fulness of virtually identical dress code language in Case 32–
CA–090116 et al., albeit with a different evidentiary record and
concerning a dress code that only applied in California. Alt-
hough I found the dress code at issue in Case 32–CA–090116 to
be facially unlawful (see Walmart Stores, Inc., 32–CA–090116
(December 9, 2014), slip op. at 29–30), I considered the merits
of this case independently and based on the evidentiary record
that the parties presented at trial on April 23, 2015.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, OUR Walmart and Respondent, I make the
following
FINDINGS OF FACT2
I. JURISDICTION
Respondent, a corporation with an office and place of business
in Bentonville, Arkansas, as well as various stores throughout
the United States (including Chicago, Illinois), engages in the
retail sale and distribution of consumer goods, groceries and re-
lated products and services. In the twelve-month period ending
December 31, 2013, Respondent derived gross revenues in ex-
cess of $500,000. During the same time period, Respondent pur-
chased and received products, goods and materials at its Chi-
cago, Illinois facility that were valued in excess of $5000 and
came directly from points outside of the State of Illinois.

1 The transcripts in this case generally are accurate, but I hereby make
the following correction to the record: p. 33, L. 18: “subject of” should
be “subjective.”
2 Although I have included several citations in the findings of fact to
highlight particular testimony or exhibits, I emphasize that my findings
and conclusions are not based solely on those specific record citations,
but rather are based on my review and consideration of the entire record
for this case.
3 The following geographic areas had “state-specific” dress code pol-
icies and thus were not covered by any of the February 2013 and May
2014 dress codes in the record: Arizona; California; Louisiana; Massa-
chusetts; Mississippi; Missouri; and New Jersey. (Jt. Exhs. 1–9 (p. 1);
13). The District of Columbia was covered by certain versions of the
February 2013 and May 2014 dress code, but was not covered by other
versions. (Compare Jt. Exhs. 1–3 (District of Columbia covered by dress
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Walmart’s Dress Code Language on Logos
In February 2013, Walmart adopted a revised dress code for
all hourly associates in its stores in all states (except for seven
states that had state-specific policies).3 Under that dress code,
associates who are working (i.e., not on a rest or meal break)
must wear a Walmart nametag that is either clipped to the asso-
ciate’s shirt or attached to a break-away lanyard. For the most
part, Walmart associates also must wear a dark blue shirt and a
pair of brown khaki pants (the shade of each clothing item may
vary, and associates are responsible for purchasing these items).
(Jt. Exh. 1, pp. 1–2; Tr. 71–72, 79, 91, 161, 182, 211, 231, 241).
The dress code sets forth the following guidelines regarding
logos on clothing:
Walmart logos of any size are permitted. Other small, non-dis-
tracting logos or graphics on shirts, pants, skirts, hats, jackets
or coats are also permitted.4
(Jt. Exh. 1, p. 2).5 Although Walmart updated its dress code in
May 2014, Walmart kept the same language regarding clothing
logos that was in its February 2013 dress code. (See Jt. Exh. 9,
p. 2).
In September 2014, Walmart modified its dress code language
about clothing logos to state as follows:
Walmart logos of any size are permitted. Other small, non-dis-
tracting logos or graphics on shirts, pants, skirts, capris, skorts,
dresses, hats, jackets or coats are also permitted if they are no
larger than the size of your associate name badge[.]
(Jt. Exh. 10–11, p. 2) Walmart also announced in the September
2014 dress code that all associates would be required to wear a
company-issued a sleeveless Walmart blue vest with a Walmart
“spark” logo on the back. Walmart resumed using vests (it had
last done so in 2007) because it intended for the vests to serve as
another means for customers and coworkers to identify Walmart
associates. (Jt. Exhs. 10–11, p. 2; Tr. 71, 86–88, 90–91, 106–
107, 191–192).
B. Walmart’s Rationale and Parameters for its Dress Code
code) with Jt. Exhs. 4–9 (District of Columbia not covered by dress code
because it has its own policy)). The September 2014 dress code (dis-
cussed infra), meanwhile, covered all “states” except for the District of
Columbia and New York, which had “state-specific” policies. (Jt. Exhs.
10–11 (p. 1)).
4 The dress code also states that “[t]he logo or graphic must not reflect
any form of violent, discriminatory, abusive, offensive, demeaning, or
otherwise unprofessional messaging.” (Jt. Exh. 1 (p. 2)). The General
Counsel does not take issue with that portion of the dress code in this
case. (Tr. 30–31.)
5 The record includes multiple versions of the February 2013 dress
code that reflect modifications that are not material to the issues in this
case. Each of those versions of the dress code contains the same lan-
guage regarding logos. (See Jt. Exhs. 1–8.)
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Language about Logos
In the interest of ensuring that customers, coworkers and loss
prevention personnel can easily identify Walmart associates,
Walmart requires its associates to wear nametags while on duty,
and requires that any non-Walmart logos be “small” and “non-
distracting.” (Tr. 70, 79–80, 94–95, 104, 161–162, 165–166,
178, 192). Walmart defines “small” logos as any logos that are
not larger than the Walmart nametag, which is a 2.25–inch long
by 3.5–inch wide plastic card with room for the associate’s first
name.6 (R. Exhs. 2, 2(a) (showing a blue and white nametag, as
well as a yellow badge backer); Tr. 65–68, 198, 207, 231, 241–
242; see also Jt. Exhs. 10–11, p. 2 (September 2014 dress code,
stating explicitly that logos must not be larger than the Walmart
nametag)).
There is no evidence that Walmart has an established defini-
tion for what logos qualify as “non-distracting.” Walmart does
have general goals of providing great customer service and keep-
ing its customers focused on shopping, but when questions have
arisen about whether an associate’s appearance or attire is dis-
tracting to the customer experience, Walmart managers have
handled those questions on an ad-hoc basis (with the assistance
of Walmart’s labor relations department if requested). (Tr. 51–
53, 94, 98–100).
Walmart expects its associates to comply with the nametag
and dress code logo requirements at all times when they are on
duty, even at times when the associate is not in contact with cus-
tomers because the associate is working in a non-public area of
the store or is working while the store is closed to the public.7
(Tr. 78, 80, 95, 113–114, 190–191, 221, 237–238, 252; see also
Tr. 102–104 (noting that Walmart has approximately 4,500
“supercenters” and “discount stores,” and that approximately
2,900 of those stores are open 24 hours); 216, 225, 249 (provid-
ing examples of stores that close at or after 10 p.m. and reopen
at 6 or 7 a.m.)). Walmart applies its dress code to associates who
are assigned to work in non-public areas of the store because
those associates periodically may be required to go to the sales
floor as part of their job duties, and may interact with customers
at those times. (Tr. 167–171, 195–197, 205–208, 214–216, 229–
231, 248–249). As for associates who work overnight shifts that
span times when the store is closed to the public, Walmart ap-
plies its dress code to those associates because they may interact
with customers during the portions of their shift when the store
is open, and because the dress code and nametag requirement
assists managers in identifying associates at all times, including

6 Walmart associates also wear a “badge backer” card that is pinned
beneath the nametag and shows the associate’s job title. The portion of
the badge backer that is visible beneath the nametag is 1.25–inches long
and 2.75–inches wide. (R. Exhs. 2, 2(a); Tr. 65–68). There is no evi-
dence that Walmart uses the badge backer, or the portion of the badge
backer that is visible when worn under the nametag, to assess whether
logos are “small” enough to comply with the dress code. (See Tr. 66
(distinguishing between Walmart nametags and badge backers); Tr. 207,
231, 241–242 (explaining that logos must be smaller than the Walmart
nametag)).
7 Consistent with its requirement that associates comply with the
dress code whenever they are on duty, Walmart does not allow its asso-
ciates to don or doff clothing or other items with logos when moving
between public and non-public areas of the store, or when the store opens
when the store is closed. (Tr. 217–218, 226–227, 249–250).
C. Examples of how Walmart has Interpreted and Applied its
Dress Code to Logos
To illustrate how it has interpreted its dress code to permit
“small” and “non-distracting” logos and prohibit logos that do
not comply with those limitations, Walmart provided examples
of how it has applied its dress code to various logos since Febru-
ary 2013.
Examples of logos that Walmart has permitted
 OUR Walmart buttons, pins and wristbands that are
smaller than the Walmart nametag (Tr. 75–77, 242,
244–245, 247–248; R. Exh. 1 (pp. 2708–2709,
2879–2880, 2928–2930, 3093–3094, 3161, 3808,
3900, 4021–4022); see also id. (April 16, 2015 tran-
script, pp. 16–19, 54);
 A 1.5–inch diameter green button with the following
wording: “Colossians 4:1 ‘Masters, provide your
slaves with what is right and fair, because you know
that you also have a Master in heaven.” (R. Exh. 3;
Tr. 61–64 (noting that OUR Walmart supporters
were wearing the button));
 A 2–inch by 2–inch photograph that associates wore
in remembrance of an associate who was killed in an
automobile accident (Tr. 198–204, 206–207 (noting
that this smaller photograph replaced a larger one
that did not comply with the dress code logo size re-
strictions)); and
 Assorted pins and buttons (e.g., buttons with family
photographs, smiley faces or the Easter bunny) that
were smaller than the Walmart nametag (Tr. 231–
232, 242).
 Examples of logos that Walmart has determined vi-
olate its dress code
 A 3–inch by 5–inch photograph that associates wore
in remembrance of an associate who was killed in an
automobile accident (Tr. 198–204, 206–207 (noting
that Walmart deemed this photograph of the de-
ceased associate to be too large and thus potentially
distracting for customers, and allowed associates to
replace it with the smaller 2–inch by 2–inch version
or closes its doors to the public. Although some of Walmart’s witnesses
testified that it would not be possible for associates to don or doff items
(such as buttons, clothing or other items with union insignia) while on
duty because of time constraints (see Tr. 220, 228–229, 250–251), I have
given that testimony little weight because the witnesses made no distinc-
tion between items that could easily be removed (such as a hat or other
item worn on the surface of other clothing), and items that might require
more privacy (and thus more time) to remove. See Casa San Miguel,
320 NLRB 534, 540 (1995) (distinguishing between union insignia that
an employee printed on her uniform, which made it impractical to re-
move when going between nonpatient and patient care areas of the hos-
pital, and other items that, for example, an employee might attach to his
or her uniform and be able to remove).
WAL-MART STORES, INC. 15
described above));
 A handwritten message on an associate’s knuckles
and palms that stated “Stop, don’t shoot,” where the
message was the same width as the Walmart name-
tag (Tr. 212–214, 222 (noting that Walmart deemed
the message to be too distracting for customers));
 A 3–inch by 5–inch piece of paper (the back of a
store receipt) on which an associate drew a hammer
and sickle and wrote “Comrade [name]. How may
the Communist Party help you?” (R. Exh. 7; Tr.
232–237 (noting that Walmart determined that the
note violated the dress code because it was both too
large and distracting));
 An 8.5–inch by 11–inch piece of paper with a draw-
ing of a cat roasting a marshmallow, worn by an as-
sociate underneath his nametag (Tr. 183–185 (not-
ing that Walmart determined this drawing/logo vio-
lated the dress code because it was too large); see
also R. Exh. 6); and
 A 3.5–inch diameter OUR Walmart button (Tr.
243–244 (noting that Walmart determined that the
button violated the dress code because it was too
large); R. Exh. 8).
III. ADMISSIBILITY OF WALMART’S PROFFERED EXPERT
TESTIMONY
During trial, Walmart called Dwight Hill to testify as an expert
witness. Over the General Counsel’s objection concerning
whether Mr. Hill qualified as an expert witness under Federal
Rule of Evidence 702 (FRE 702), I permitted Mr. Hill to testify
and accepted his report into the record, but I did so only provi-
sionally, subject to any arguments that the parties might make in
their posttrial briefs concerning Mr. Hill’s qualifications as an
expert and the admissibility of his testimony and report. (Tr.
134–135). Now that the parties have briefed the issue, I return
to the question of whether Mr. Hill’s testimony and report are
admissible under FRE 702.
Under FRE 702, “[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify
in the form of an opinion or otherwise if: (a) the expert’s scien-
tific, technical or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data; (c) the tes-
timony is the product of reliable principles and methods; and (d)
the expert has reliably applied the principles and methods to the
facts of the case.” Fed. Rule of Evidence 702; see also Fluor
Daniel, Inc., 350 NLRB 702, 713 (2007). “Whether to permit
expert testimony is a question that is committed to the discretion
of the trial judge.” California Gas Transport, 355 NLRB 465,
465 fn.1 (2010).
Based on Mr. Hill’s extensive experience as a retailer and as
a consultant to retailers, I find that he is qualified as an expert
witness in the areas of retail strategy and the customer experi-
ence. (See R. Exh. 5 and Tr. 117–128 (indicating that Mr. Hill
has over 25 years of experience with merchandise planning, cus-
tomer strategy, enterprise cost reduction, workforce
management and other areas)). However, I also find that Mr.
Hill’s testimony and report should be excluded under FRE 702
because the specialized knowledge that he offered does not assist
me, as the trier of fact, with understanding the evidence or deter-
mining any facts in issue in this case. In essence, Mr. Hill as-
serted in his testimony and report that retailers seek to minimize
customer distractions and keep their customers focused on shop-
ping, and hopefully, buying. In connection with that goal, retail-
ers have their employees follow dress codes and wear name tags
to: make the employees easily identifiable to customers who
need assistance (as well as to coworkers and loss prevention per-
sonnel); and avoid inciting conversations between customers and
employees that are not relevant to the customer’s shopping ac-
tivities. (R. Exh. 5; Tr. 135–147.) None of those points are so
complex that they require explanation by an expert witness; in-
deed, Walmart’s managerial witnesses made the same points ef-
fectively in their own testimony (a fact that also makes Mr. Hill’s
testimony and report cumulative and therefore inadmissible).
(See, e.g. Tr. 70–73, 79–80, 85–96, 160–161, 165–166 (testi-
mony of: senior director of labor relations Jaime Durand; direc-
tor of human resources support LaTonia George; and market as-
set protection manager Tina Longfellow); see also Findings of
Fact (FOF), Sections II(B)–(C), supra)). Accordingly, I hereby
reclassify Mr. Hill’s testimony as an offer of proof and reclassify
Mr. Hill’s report (R. Exh. 4) as a rejected exhibit, and I will dis-
regard both in my substantive analysis.
Discussion and Analysis
A. Witness Credibility
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’ de-
meanor, the weight of the respective evidence, established or ad-
mitted facts, inherent probabilities and reasonable inferences that
may be drawn from the record as a whole. Farm Fresh Co., Tar-
get One, LLC, 361 NLRB No. 83, slip op. at 13–14 (2014); see
also Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022
(2006) (noting that an ALJ may draw an adverse inference from
a party’s failure to call a witness who may reasonably be as-
sumed to be favorably disposed to a party, and who could rea-
sonably be expected to corroborate its version of events, partic-
ularly when the witness is the party’s agent). Credibility findings
need not be all-or-nothing propositions — indeed, nothing is
more common in all kinds of judicial decisions than to believe
some, but not all, of a witness’ testimony. Farm Fresh Co., Tar-
get One, LLC, 361 NLRB No. 83, slip op. at 14. To the extent
that I have made them (since most of the facts in this case are
undisputed), my credibility findings are set forth above in the
findings of fact for this decision.
B. Is Walmart’s Dress Code Language Regarding Logos Fa-
cially Unlawful?
1. Complaint allegation and applicable legal standard
The General Counsel alleges that since at least May 2013,
Walmart has violated Section 8(a)(1) of the Act by maintaining
the following rule in its dress code guidelines in all states except
those with state-specific policies: “Wal-Mart logos of any size
are permitted. Other small, non-distracting logos or graphics on
shirts, hats, jackets or coats are also permitted, subject to the
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
following . . .” (GC Exh. 1(e), par. V(a)).
As the Board reiterated in a recent decision, it is well settled
that an employer violates Section 8(a)(1) when it prohibits em-
ployees from wearing union insignia at the workplace, absent
special circumstances. Boch Honda, 362 NLRB No. 83, slip op.
at 2 (2015). The Board has found special circumstances justify-
ing proscription of union insignia and apparel when their display
may jeopardize employee safety, damage machinery or products,
exacerbate employee dissension, or unreasonably interfere with
a public image that the employer has established, as part of its
business plan, through appearance rules for its employees. How-
ever, a rule that curtails employees’ Section 7 right to wear union
insignia in the workplace must be narrowly tailored to the special
circumstances justifying maintenance of the rule, and the em-
ployer bears the burden of proving such special circumstances.
Id.; see also Stabilus, Inc., 355 NLRB 866, 868 (2010); W San
Diego, 348 NLRB 372, 373 (2006); Nordstrom, Inc., 264 NLRB
698, 701–702 (1982) (noting that customer exposure to union in-
signia, standing alone, is not a special circumstance that permits
an employer to prohibit employees from displaying union insig-
nia).
In its posttrial brief, Walmart argued that I should apply a hy-
brid legal standard that combines the legal standard that the
Board applies when considering work rules (see Lutheran Herit-
age Village-Livonia, 343 NLRB 646, 646–647 (2004)) with the
legal standard that the Board applies when considering re-
strictions on employees’ Section 7 right to wear union insignia
(see Boch Honda, supra). See Walmart Posttrial Br. at 4 (relying
on the D.C Circuit’s decision in World Color (U.S.A.) Corp. v.
NLRB, 776 F.3d 17, 20 (D.C. Cir. 2015) as the basis for its pro-
posed hybrid legal standard); Lutheran Heritage Village-Livo-
nia, 343 NLRB at 646–647 (explaining that for work rules, the
analysis begins with whether the rule is unlawful because it ex-
plicitly restricts activities protected by Section 7, and, if neces-
sary then turns to the question of whether the work rule is unlaw-
ful because employees would reasonably construe the language
to prohibit Section 7 activity, the rule was promulgated in re-
sponse to union activity, or the rule has been applied to restrict
the exercise of Section 7 rights).
There is no support in Board law for Walmart’s proposed hy-
brid standard. To the extent that the D.C. Circuit applied a hy-
brid standard when analyzing questions about union insignia in
World Color, I respectfully submit that the D.C. Circuit did so in
error. Compare World Color (U.S.A.) Corp. v. NLRB, 776 F.3d
at 19–20 (recognizing that employees have a Section 7 right to
wear union insignia unless special circumstances are present, but
then analyzing the case using the Lutheran Heritage legal stand-
ard for work rules) with Guard Publishing Co. v. NLRB, 571
F.3d 53, 61 (D.C. Cir. 2009) (explaining that “[w]hen [an em-
ployer] bans the wearing of union insignia, the employer bears

8 In connection with its initial argument, Walmart maintains that the
Act does not require retailers to tolerate large, distracting and/or absurd
union insignia. That argument, however, mischaracterizes the positions
of the General Counsel and Charging Party, who merely maintain that
Walmart’s February 2013, May 2014 and September 2014 dress code
restrictions on logos are unlawfully overly broad. If the General Counsel
and Charging Party prevail on that point, such a result does not mean that
anything goes when it comes to union insignia. To the contrary, Walmart
the burden of overcoming the presumption of an unfair labor
practice by demonstrating that special circumstances exist”). In
any event, since I am bound to follow Board precedent, I will
apply the legal standard that the Board reiterated in Boch Honda
concerning employees’ Section 7 right to wear union insignia.
2. Analysis
As its initial argument, Walmart asserts that the Act should
allow employers (and particularly retailers) to set forth some rea-
sonable limits on union insignia to avoid disruption in the work
and shopping environment.8 (See Walmart Posttrial Br. at 4–9).
It suffices to observe, in response, that the Board already recog-
nizes the employer’s interests in the existing legal standard that
applies to union insignia – that is, the Board recognizes that
while employees have a Section 7 right to wear union insignia,
employers may restrict that right if the restrictions are justified
by special circumstances.
Turning, then, to the question of whether Walmart’s dress
codes are unlawful, the evidentiary record establishes that, since
February 2013, Walmart has maintained dress code language
that prohibits associates from wearing logos, including union in-
signia, that are “distracting” and/or are larger than Walmart’s
2.25–inch by 3.5–inch nametag. (FOF, Section II(A)–(B); see
also FOF, Section II(C) (indicating that Walmart permits “non-
distracting” union insignia that are smaller than the Walmart
nametag). Since Walmart’s dress code imposes limits on its as-
sociates’ Section 7 right to wear union insignia, the dress code is
overly broad and is unlawful unless the dress code language con-
cerning logos is justified by special circumstances. See Boch
Honda, 362 NLRB 706, 707.
In this case, Walmart asserts that its dress code language about
logos meets the special circumstances requirement because
Walmart has an interest in ensuring: that its associates can easily
be identified through their nametags by customers, coworkers
and loss prevention personnel; and that noncompliant logos do
not distract the customer from his or her shopping experience.
(See Walmart Posttrial Br. at 9; FOF, section II(B)).
Viewing the evidence as a whole, I find that Walmart failed to
show that the limitations that it places on logos (including union
insignia) are justified by special circumstances. First, Walmart
did not show that its concerns about logos impacting nametag
visibility and the customer experience constitute special circum-
stances. Specifically, Walmart did not present any evidence of a
significant or widespread problem with associates wearing union
insignia or other logos that actually made it difficult or impossi-
ble for others to see their Walmart nametags.9 Nor did Walmart
present evidence of a significant or widespread problem with
customers being distracted by logos worn by associates. Given
the lack of such evidence, much less evidence that would justify
the limitations on union insignia based on special circumstances
would remain free to craft a revised dress code that addresses its concerns
and complies with the Act.
9 As an aside on this point, I note that it is not hard to envision a wide
variety of union insignia that associates could wear that would be larger
than their Walmart nametag, but yet pose little or no risk of obscuring or
distracting attention from their Walmart nametags (union insignia on
hats, arm bands, leg bands, shirt sleeves, and medium-sized buttons come
to mind, among other possibilities).
WAL-MART STORES, INC. 17
that the Board has recognized in other cases (e.g., the need to
protect employee safety, avoid damage to machinery or prod-
ucts, avoid exacerbating employee dissension, or protect a public
image that the employer established as part of its business
plan),10 Walmart’s concerns about nametag visibility and the
customer experience fall flat. See Malta Construction Co., 276
NLRB 1494, 1495 (1985) (rejecting a special circumstances de-
fense because the employer failed to prove that allowing union
insignia on its orange hardhats would make it difficult for the
employer to identify its employees), enfd. 806 F.2d 1009 (11th
Cir. 1986); Nordstrom, Inc., 264 NLRB at 701–702 (noting that
customer exposure to union insignia, standing alone, is not a spe-
cial circumstance that permits an employer to prohibit employ-
ees from displaying union insignia); compare Albis Plastics, 335
NLRB 923, 923–925 (2001) (employer’s prohibition of union
stickers on hardhats was permissible because the employer
demonstrated that the limitation was justified by special circum-
stances in the form of a legitimate strategy to promote plant
safety), enfd. 67 Fed.Appx. 253 (5th Cir. 2003).
Second, even if one assumes, arguendo, that Walmart has
valid concerns about logos affecting nametag visibility and the
customer experience that could constitute special circumstances,
Walmart’s dress code language regarding logos is not narrowly
tailored to those concerns. For example, Walmart requires all
union insignia to be smaller than or equal to the size of
Walmart’s 2.25–inch by 3.5–inch nametag, irrespective of the
content or nature of the insignia. By imposing such a strict size
limitation on union insignia, Walmart runs afoul of multiple
Board cases in which the Board has upheld the right of employ-
ees to wear union insignia of a variety of types and sizes, includ-
ing insignia sizes much larger than Walmart’s nametags.11 See,
e.g., A T & T Connecticut, 356 NLRB 883, 883 (2011) (finding
that the employer violated the Act when, in the absence of spe-
cial circumstances justifying the limitation, the employer prohib-
ited its technicians from wearing white T-shirts with the words
“Inmate #” written on the front in “relatively small print,” and
with two vertical stripes and the words “Prisoner of A T $ T” on
the back); United Rentals, 349 NLRB 853, 853 fn. 2, 860–861
(2007) (finding that a dress code was unlawful because it pro-
hibited employees from wearing hats, shirts, sweatshirts and
jackets with the union’s logo); Northeast Industrial Service Co.,
320 NLRB 977, 979–980 (1996) (same, regarding a dress code
rule that prohibited union hardhat stickers that were 3 inches in
diameter); Serv-Air, Inc., 161 NLRB 382, 401–402, 416–417
(1966) (same, regarding an employer that prohibited various

10 In its posttrial brief, Walmart explicitly stated that it “does not con-
tend that its rule regarding logos and graphics is justified by ‘public im-
age’ as defined in Board law.” (Walmart Posttrial Br. at 11 fn.4).
11 The Board has observed in the past that certain union insignia do
not interfere with a company’s public image because the union insignia
are small, neat and inconspicuous. See Nordstrom, Inc., 264 NLRB at
701 (noting that the union pin at issue was “muted in tone, discrete in
size and free from provocative slogans or mottos”); see also United Par-
cel Service, 312 NLRB 596, 597 (1993), enf. denied 41 F.3d 1068 (6th
Cir. 1994). It does not follow, however, that union insignia must be
small, neat or inconspicuous to be protected, particularly where (as here)
the employer has not justified such size restrictions with special circum-
stances.
union insignia, including an improvised, crudely printed, paper
badge that was 3 inches in diameter, and 14-inch signs that two
employees taped to their backs), enfd. 395 F.2d 557 (10th Cir.
1968), cert. denied, 393 U.S. 840 (1968).
In addition, Walmart restricts union insignia not only when
associates are on the sales floor and thus in a position to interact
with customers, but also when associates are working in nonpub-
lic areas of the store or when the store is closed to the public
altogether. (See FOF, Section II(B)). When associates are on
duty but not in contact with customers, Walmart’s concerns
about the customer experience are moot, and Walmart’s con-
cerns about the associate being identifiable to coworkers and loss
prevention personnel are addressed by the fact that the associate
would still be wearing the customary khaki pants, blue shirt and
Walmart nametag (as well as a Walmart vest, after September
2014). Further, while Walmart pointed out that all associates
may interact with customers during their shifts when their job
duties require them to go on the sales floor, Walmart did not
show that it would be impractical for those associates to simply
remove or cover their union insignia while interacting with the
public. See FOF, section II(B), fn.7, supra (discussing the testi-
mony that Walmart presented about the feasibility of donning
and doffing union insignia); see also Target Corp., 359 NLRB
953, 974 (2013) (rejecting the employer’s argument that its ban
on all buttons was justified to preserve its public image and busi-
ness plan, and noting that the ban was overly broad because it
applied to overnight employees who worked when the store was
closed to the public); W San Diego, 348 NLRB at 374 (finding
that the hotel did not demonstrate that its prohibition on wearing
union insignia was justified by special circumstances in nonpub-
lic areas of the hotel where employees would not be seen by the
public and thus the hotel’s public image was not at issue, and
noting that a mere hypothetical impracticality with removing un-
ion insignia did not justify the hotel’s prohibition on union insig-
nia).
In light of these shortcomings in Walmart’s proffered special
circumstances, I find that Walmart’s concerns about logos are
outweighed by the associates’ Section 7 right to wear union in-
signia in the workplace. I therefore find that Walmart violated
Section 8(a)(1) by maintaining its February 2013, May 2014 and
September 2014 dress code language requiring logos to be
“small” and “non-distracting.” The offending dress code lan-
guage regarding logos is overly broad, is not justified by special
circumstances, and places unlawful restrictions on associates’
Section 7 right to wear union insignia.12
12 The General Counsel and Charging Party also argued that
Walmart’s February 2013, May 2014 and September 2014 dress codes
are facially unlawful work rules that reasonably tend to chill associates’
exercise of their Section 7 rights. See GC Posttrial Br. at 7–8; CP
Posttrial Br. at 6; see also Lutheran Heritage Village-Livonia, 343 NLRB
at 646–647 (describing the legal standard that applies when challenges
to work rules are at issue). Since I have found that Walmart’s February
2013, May 2014 and September 2014 dress codes are facially unlawful
because they improperly restrict associates’ Section 7 right to wear union
insignia, I decline to address the parties’ arguments concerning the
Board’s “work rule” legal standard.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. By, since about February 2013, maintaining February
2013, May 2014 and September 2014 dress codes that unlaw-
fully limit associates’ right to wear union insignia, Walmart vio-
lated Section 8(a)(1) of the Act.
2. By committing the unfair labor practice stated in conclu-
sion of law 1 above, Walmart has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the poli-
cies of the Act.
I will also require Respondent to rescind its unlawful February
2013, May 2014 and September 2014 dress codes. Respondent
may comply with this aspect of my order by rescinding the un-
lawful dress code provision and republishing an associate dress
code at its affected stores (i.e., all stores in the United States)13
without the unlawful provision. Since republishing the dress
code for all affected stores could be costly, Respondent may sup-
ply the associates at its stores either with an insert to the dress
code stating that the unlawful provision has been rescinded, or
with a new and lawfully worded provision on adhesive backing
that will cover the unlawfully broad provision, until Respondent
republishes the dress code either without the unlawful provision
or with a lawfully-worded provision in its stead. Any copies of
the dress codes that are printed with the unlawful February 2013,
May 2014 and/or September 2014 language must include the in-
sert before being distributed to associates at Respondent’s af-
fected stores. Boch Honda, 362 NLRB No. 83, slip op. at 4;
Guardsmark, LLC, 344 NLRB 809, 811–812 & fn. 8 (2005),
enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007).
In addition to the standard remedies that I described above,
the General Counsel requested that I also order Respondent to
have a representative read a copy of the notice to associates in
each of its affected stores during work time. The Board has re-
quired that a notice be read aloud to employees where an em-
ployer’s misconduct has been sufficiently serious and wide-
spread that reading of the notice will be necessary to enable em-
ployees to exercise their Section 7 rights free of coercion. This
remedial action is intended to ensure that employees will fully
perceive that the respondent and its managers are bound by the
requirements of the Act. Farm Fresh Co., Target One, LLC, 361
NLRB 848, 868.
Applying that standard, I do not find that Respondent’s mis-
conduct in this case was sufficiently serious and widespread to
warrant an order requiring the notice to be read aloud to employ-
ees by one of Respondent’s representatives at each of its affected

13 At least one version of the dress code was applicable in every state
and the District of Columbia. (See Jt. Exhs. 1–11 (listing, on the first
page of each policy, the jurisdictions that had “state-specific” dress codes
when the dress code was issued).
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
stores. Although I have found that Respondent committed one
unfair labor practice that affects all stores in the United States,
the unfair labor practice is somewhat technical in nature, and this
case does not involve widespread misconduct (beyond the sin-
gular violation here) at the affected stores. Accordingly, I find
that a standard notice posting remedy will be sufficient to ad-
dress the dress code violation at issue here and ensure that asso-
ciates are advised of their Section 7 rights.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
Respondent, Walmart Stores, Inc., Bentonville, Arkansas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining its February 2013, May 2014 and September
2014 dress code provisions for associates that are overly broad
and unlawfully restrict associates’ right to wear union insignia.
(b) In any like or related manner interfering with, restraining,
or coercing associates in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind, to the extent applicable in each state and the Dis-
trict of Columbia, the overly broad provisions in its February
2013, May 2014 and September 2014 associate dress codes that
unduly restrict associates’ right to wear union insignia.
(b) Furnish all current associates in its stores in the United
States with an insert for its applicable associate dress code that
(1) advises that the unlawful provision regarding logos and union
insignia has been rescinded, or (2) provides a lawfully worded
provision on adhesive backing that will cover the unlawful pro-
vision; or (in the alternative) publish and distribute to associates
at its stores in the United States revised copies of its associate
dress code that (1) do not contain the unlawful provision, or (2)
provide a lawfully worded provision.
(c) Within 14 days after service by the Region, post at all
stores in the United States copies of the attached notice marked
“Appendix.”15 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by Respond-
ent’s authorized representative, shall be posted by Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the no-
tices shall be distributed electronically, such as by email, posting
on an intranet or an internet site, and/or other electronic means,
if Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by 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, Respondent has gone out of business or closed one
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.
15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
WAL-MART STORES, INC. 19
or more of the facilities involved in these proceedings, Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current associates and former associates employed
by Respondent at the closed facilities at any time since February
7, 2013.
(d) 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 Re-
spondent has taken to comply.
Dated, Washington, D.C. June 4, 2015
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 notice.
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 maintain our February 2013, May 2014 and Sep-
tember 2014 dress code provisions for associates that are overly
broad and unlawfully restrict associates’ right to wear union in-
signia.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce associates in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations Act.
WE WILL rescind, to the extent applicable in each state and the
District of Columbia, the overly broad provisions in our Febru-
ary 2013, May 2014, and September 2014 associate dress codes
that unduly restrict associates’ right to wear union insignia.
WE WILL furnish all current associates in our stores with an
insert for our applicable associate dress code that (1) advises that
the unlawful provision regarding logos and union insignia has
been rescinded, or (2) provides a lawfully worded provision on
adhesive backing that will cover the unlawful provision; or (in
the alternative) WE WILL publish and distribute to associates at
our stores revised copies of our associate dress code that (1) do
not contain the unlawful provision, or (2) provide a lawfully
worded provision.
WAL-MART STORES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/13-CA-114222 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1099
14th Street, N.W., Washington, D.C. 20570, or by calling (202)
273-1940.

1 All events in this case occurred in 2012, unless otherwise indicated.
Catherine Ventola and David Foley, Esqs., for the General
Counsel.
Lawrence Katz and Erin Bass, Esqs., for the Respondent.
Deborah Gaydos and Joey Hipolito, Esqs., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GEOFFREY CARTER, Administrative Law Judge. This case was
tried in Oakland, California on September 8–11, 2014. The Or-
ganization United for Respect Walmart (OUR Walmart) filed the
charges at issue here on the following dates:
CaseCharge Filing Date
32–CA–090116 September 26, 2012 (amended on
November 19, 2013)
32–CA–092512 November 2, 2012
32–CA–092858 November 8, 2012
32–CA–094004 November 30, 2012
32–CA–094011 November 30, 2012
32–CA–094381 December 6, 2012
32–CA–096506 January 16, 2013
32–CA–111715 August 21, 20131
On February 25, 2014, the General Counsel issued two com-
plaints, one covering cases 32–CA–094004 and 32–CA–094011,
and the other covering cases 32–CA–092512, 32–CA–092858
and 32–CA–094381. In an amended consolidated complaint
filed on April 15, 2014, the General Counsel combined the two
original complaints and added Case 32–CA–090116. Finally, on
May 16, 2014, the General Counsel issued a second amended
consolidated complaint covering all eight cases listed above.
In the second amended consolidated complaint, the General
Counsel alleged that Wal-Mart Stores, Inc. (Respondent or
Walmart) violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by taking the following actions in 2012, at
Walmart store 2418 in Placerville, California and/or at Walmart
store 3455 in Richmond, California: enforcing its California
dress code policy selectively and disparately against an em-
ployee who formed, joined or assisted OUR Walmart and/or the
United Food and Commercial Workers union; engaging in sur-
veillance and/or creating the impression of surveillance of em-
ployees’ protected activities in connection with an OUR
Walmart protest; making various statements that had a reasona-
ble tendency to coerce employees in the exercise of their rights
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
under Section 7 of the Act; and unlawfully disciplining six em-
ployees because they engaged in a work stoppage on November
2, 2012, and to discourage employees from engaging in those or
other protected concerted activities. The General Counsel also
alleged that Walmart violated Section 8(a)(1) of the Act by main-
taining two overly broad dress code policies (one that was in ef-
fect in 2012, and the other that took effect in 2013) for its Cali-
fornia employees.2 Respondent filed a timely answer denying
the violations alleged in the second amended consolidated com-
plaint.
On the entire record, 3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, OUR Walmart and Respondent, I make the
following
FINDINGS OF FACT4
I. JURISDICTION
Respondent, a corporation with an office and place of business
in Bentonville, Arkansas, as well as various stores throughout
the United States (including Placerville and Richmond, Califor-
nia), engages in the retail sale and distribution of consumer
goods, groceries and related products and services. In the
twelve-month period ending December 31, 2012, Respondent
derived gross revenues in excess of $500,000. During the same
time period, Respondent purchased and received products, goods
and materials at its Richmond, California facility that were val-
ued in excess of $5,000 and came directly from points outside of
the State of California. Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since in or about 2010 or 2011, a group of current and former
Walmart employees has participated in the Organization United
for Respect at Walmart (OUR Walmart) to advocate for various
changes in working conditions, benefits and workplace policies
at Walmart. (Tr. 44–45, 80–81.) In connection with this effort,
OUR Walmart has received extensive advice and support from
the United Food and Commercial Workers union (UFCW), even
though OUR Walmart is not itself a union and does not

2 The General Counsel withdrew the allegations in paragraphs
6(c)(1)–(2) and 7(a) of the complaint. (Transcript (Tr.) 7, 469–470.)
Since the allegations in paragraphs 6(c)(1)–(2) of the complaint are the
only allegations in the charge filed in Case 32–CA–096506, the General
Counsel moved that I sever Case 32–CA–096506 from this proceeding.
(GC Posttrial Br. at 1.) I hereby grant the General Counsel’s motion to
sever, which was unopposed.
3 The transcripts in this case generally are accurate, but I hereby make
the following corrections to the record: page 149, l. 24: Respondent’s
attorney Lawrence Katz (Katz) was the speaker; page 150, l. 1: Katz was
the speaker; page 204, l. 20: “out” should be “ought”; page 250, l. 18:
the Administrative Law Judge was the speaker; page 330, l. 17: should
say “Sustained as to form.”; page 363, l. 9: “3” should be “30”; page 397,
l. 4: “objective” should be “subjective”; page 602, l. 14: should say “it’s
not something” instead of “it’s something”; page 656, l. 23: should say
“Sustained as to form.”; page 667, l. 20: “sleeping” should be “sweep-
ing”; and page 729, l. 8: “should not” should say “should.”
“represent” employees for collective-bargaining purposes.
UFCW’s support for OUR Walmart has included, but is not lim-
ited to: assistance with creating OUR Walmart; financial sup-
port; staffing support, such as UFCW employees who are as-
signed to work with OUR Walmart on the “Making Change at
Walmart” campaign; advice on strategy; and networking sup-
port, including contacting community groups to support or join
OUR Walmart members when they engage in strikes, protests or
other “actions” as part of the Making Change at Walmart cam-
paign. (Joint (Jt.) Exh. 22; see also Tr. 118.)
Although Walmart has over 4,000 stores, the events in this
case generally relate to two stores in northern California:
Walmart store 2418, located in Placerville, California; and
Walmart store 3455, located in Richmond, California.
B. Placerville, California—June/July 2012
1. The June 1, 2012 protest at store 2418
On June 1, a group of approximately 24–30 OUR Walmart
members and community supporters met on the sidewalk in front
of Walmart store 2418 in Placerville, California to protest, carry
signs, distribute leaflets and advocate for Walmart to provide its
associates5 with better working conditions, wages and
healthcare. (Tr. 81–83, 594, 596, 651–652.) While at the pro-
test, associate Lawrence Carpenter observed store manager
Tammy Hileman, along with a few assistant managers, exit the
store and use their cell phones to text and make telephone calls.
(Tr. 87–90, 93–94, 109, 598.) Approximately 45 minutes later,
Carpenter observed Hileman return to the sidewalk. Carpenter
testified that Hileman appeared to hold a black, shiny item that
looked like a cell phone and use it to scan the protesters (as if she
were taking a picture). (Tr. 90–91, 93, 109–114.) Carpenter
made his observations from the opposite end of the sidewalk
from where Hileman was positioned (from a distance of up to 30
feet), and while both he and Hileman stood in front of the pro-
testers who were also present on the sidewalk. (Tr. 97–98, 111;
see also Jt. Exh. 1(a) (photograph of the sidewalk in front of the
store); GC Exh. 2(a) (same).)
Hileman denied taking any photographs or video recordings
of the protest, and also denied stretching her arms in front of her
body (as if to scan for a photograph or video) during the protest.
Hileman added that, at that time, she carried her cell phone in a
pink cover. (Tr. 597–599.) Similarly, assistant manager Lance
I also note that on October 17, 2014, I issued an order directing the
parties to file corrected versions of certain exhibits to redact personal
identifiable information and other confidential information. Pursuant to
that order, Respondent submitted the following corrected exhibits: Joint
(Jt.) Exhs. 24, 28. I have replaced the original copies of those exhibits
in my exhibit file with the corrected versions. Since the electronic file
still contains both the original and corrected exhibits, I recommend that
the Board take appropriate steps to ensure that the original exhibits are
handled in a way that will ensure they (and the personal identifiable
and/or confidential information they contain) remain confidential.
4 Although I have included several citations in the findings of fact to
highlight particular testimony or exhibits, I emphasize that my findings
and conclusions are not based solely on those specific record citations,
but rather are based on my review and consideration of the entire record
for this case.
5 Walmart calls its employees “associates.” I have used the same
terminology in this decision.
WAL-MART STORES, INC. 21
Snodgrass, who spent most of the day monitoring the protest, did
not observe Hileman take any videos or photographs of the pro-
test, and did not see Hileman hold her arms out in front of her
with something in her hand at the protest. (Tr. 650, 652, 655,
659–660, 664–665.)
2. Late June 2012—Barbara Collins attends protest in
Los Angeles
In late June, Barbara Collins traveled to Los Angeles to par-
ticipate in a march/rally with OUR Walmart members and com-
munity supporters. Collins, who was working as an electronic
sales associate in Walmart’s store 2418 in Placerville, California,
did not tell anyone in management about her plans to attend the
rally. (Tr. 44–45, 49.) However, Collins did ask approximately
ten other OUR Walmart members at the Placerville store if they
would also like to attend the rally, and was generally an open and
vocal supporter of OUR Walmart. (Tr. 51–52, 73.) In addition,
another OUR Walmart member who was attending the Los An-
geles rally told various (unidentified) people in the Placerville
store that she and Collins would be attending the rally.6 (Tr. 66.)
3. Early July 2012—Collins’ interactions with supervisor Su-
san Stafford
At the end of one of Collins’ shifts in the second week of July,
overnight assistant manager Susan Stafford asked Collins how
her trip to Los Angeles was. Collins was surprised by Stafford’s
question (since she had not told Stafford or anyone else in man-
agement that she was going to the Los Angeles rally), but re-
sponded that the trip was great. When Collins and Stafford went
to the assistant manager’s office to turn in Collins’ keys to the
electronics area, Stafford asked Collins if she was worried that
Walmart would close the Placerville store if OUR Walmart be-
came too big. Collins responded that she did not believe
Walmart would close the store, since such a store closure had
only happened once before at a store in Canada. No one else was
present during this conversation, which lasted less than one mi-
nute.7 (Tr. 45–47, 54–55, 57, 410; see also Tr. 412 (noting that
if Stafford was the assistant manager on duty when Collins fin-
ished her shift, Stafford would be the one to take Collins’ keys
to the electronics area).)
C. Walmart’s Dress Code Policies
1. Overview
Since at least July 19, 2010, Walmart has maintained that the
purpose of its dress code “is to provide the parameters for an at-
mosphere that is professional but at the same time relaxed.” (Jt.
Exhs. 30, p. 1; 31, p. 1.) Explaining further, Walmart’s dress
code policies state as follows:

6 I decline Respondent’s request that I take judicial notice of news-
paper articles that were published about the Los Angeles protest. (See
R. Posttrial Br. at 11 & fn. 3) The newspaper articles are not probative
of any material issues that relate to the Los Angeles protest, and the rec-
ord establishes that many associates at the Placerville store knew about
the Los Angeles protest.
7 Stafford denied making these remarks to Collins, but I did not find
the material portions of Stafford’s testimony to be credible. For exam-
ple, when asked if she had ever heard anything about the June 1 OUR
Walmart protest, Stafford denied hearing anything about it even though
the protest was a significant event at the Placerville store. (Tr. 419.)
Dressing for the work environment not only allows us to
demonstrate pride in ourselves, but influences how our com-
pany is perceived by others, whether they are customers or fel-
low associates. It has an impact on our performance as well as
on the performance of those around us. Our emphasis is that
each associate should be neat and clean and take pride in their
appearance.
Walmart requires its associates to dress in a manner that is pro-
fessional, relaxed, and appropriate to the facility[.]
(Id.; see also Jt. Exh. 33, p. 1 (Walmart’s workplace standards
policy, which states that Walmart strives “to provide a work en-
vironment that is clean, safe and allows associates to focus on
being productive and providing excellent customer/member sat-
isfaction. All associates are expected to present themselves in a
professional manner that promotes respect and trust in the work-
place, enhances customer/member loyalty and avoids the appear-
ance of impropriety”); Tr. 537, 632 (noting that Walmart aims to
provide excellent customer service and maintain a family
friendly environment).)
2. The July 2010 dress code for Walmart’s
California employees
On July 19, 2010, Walmart issued the following dress code
guidelines for hourly associates in its stores located in California:
Dress Code
Walmart facilities
Any short sleeve or long sleeve solid blue shirt/blouse or solid
green shirt/blouse of your choosing, in any shade of blue or
green, and in good condition.
 Sleeveless shirts/blouses are not allowed.
 Examples of acceptable shirt/blouse styles include, but
are not limited to, t-shirts, sweaters, sweatshirts, polo-
style shirts and button down shirts.
 You may wear white long sleeve shirts/blouses under
short sleeve solid blue or green shirts/blouses
 You are not required to tuck in your shirt/blouse.
Solid tan, in any shade, and solid brown, in any shade, pants,
skirts, or skorts of your choosing in good condition. Skirt or
skort length must be no shorter than three (3) inches above the
knee.
 Examples of acceptable pants styles and fabrics in-
clude, but are not limited to, cargos, capris, denim,
and corduroy.
Further, Stafford gave varied responses when asked whether Collins met
with her to turn in keys to the electronics area in July 2012, stating ini-
tially that she did not remember any occasions where Collins was leaving
and gave Stafford keys, but later stating that if she did meet with Collins
in July 2012, their interactions would have been limited to returning
keys, asking about electronics, or saying goodnight. (Compare Tr. 412
with Tr. 418–419.) Based on these inconsistencies, I did not find Staf-
ford’s memory of the events of July 2012 (including her interactions with
Collins) to be reliable.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
If your position requires you to go outside while on the clock,
you may wear any hat, jacket or coat of your choosing in good
condition; no color or style restrictions apply.
If your position, which includes, but is not limited to Front-End
Cashier, People Greeter, Garden Center Cashier, requires you
to wear a sweater or jacket inside the building for warmth rea-
sons, you may wear any sweater or jacket of your choosing in
good condition; no color or style restrictions apply.
Logos or graphics on shirts/blouses, pants, skirts, hats, jackets
or coats are not permitted, except the following, so long as the
logo or graphic is not offensive or distracting:
1. A Walmart logo of any size;
2. A clothing manufacturer’s company emblem no larger than
the size of the associate’s name badge; or
3. logos allowed under federal or state law.
You are not required to purchase or wear any clothing from
Walmart or the online catalog. Clothing can be purchased from
any merchant of your choosing. If you feel you are under pres-
sure from management to purchase or wear clothing from
Walmart or the online catalog, you are obligated to immedi-
ately contact the company’s Ethics Hotline, your Market Hu-
man Resource Manager, or your Regional Human Resource
Director.
(Jt. Exh. 30, pp. 2–3; see also Jt. Exh. 30, p. 6 (setting forth a
dress code exception that allowed “Maintenance, Cart At-
tendant/Courtesy associates, Overnight Receiving, Unloader, In-
Stock/ICS Team and Assembler positions” to wear blue denim
jeans).)
The July 19, 2010 dress code remained in effect at all material
times until February 7, 2013, when Walmart issued an updated
dress code. (See Jt. Exh. 31; see also Tr. 12 (Walmart agreed
that the July 19, 2010 dress code remained in effect at all material
times until at least September 14, 2012).) In practice, Walmart
permitted associates to have logos on clothing (including OUR
Walmart and UFCW pins and lanyards) as long as the logo was
smaller than the Walmart name tag (2 x 3 inches). (Tr. 566–568,
629–630.)
3. August/September 2012 – Raymond Bravo’s alleged dress
code violations at the Richmond, California Walmart (store
3455)
In 2012, Raymond Bravo was employed as an overnight
maintenance associate in Walmart’s Richmond, California store.
Bravo became an OUR Walmart member on January 23, 2012.
(Tr. 333, 335.)
When Bravo began working at Walmart in 2011, he initially
complied with the dress code, which he understood required
khaki pants and a blue shirt.8 However, after completing his

8 Multiple witnesses agreed that the Richmond store only permitted
blue shirts (notwithstanding the July 2010 dress code, which also permit-
ted green shirts). (Tr. 270, 336, 629, 668; compare Jt. Exh. 30, p. 3.)
9 The times that I reference in this section correspond to the times
stated on the surveillance videos that the parties submitted as Joint Ex-
hibit 27.
10 Walmart allowed certain employees to wear shorts during the sum-
mer months, but overnight maintenance associates were not included in
probationary period and noticing that his coworkers were not
complying with the dress code, Bravo began wearing clothes to
work that did not comply with the dress code (such as a black
thermal shirt, instead of a blue or green shirt as required by the
dress code). Generally, Bravo wore noncompliant clothing to
work for three out of his four weekly shifts at the store. (Tr. 335–
337; Jt. Exh. 30, pp. 2–3.)
At approximately 11 p.m.9 on August 21, Bravo arrived at
work wearing khaki pants, and a green OUR Walmart t-shirt on
top of a black thermal shirt. (Tr. 338; Jt. Exh. 27 (August 21,
clip 1).) After clocking in, Bravo attended a pre-shift meeting
led by assistant manager Peggy Licina. Licina did not comment
about Bravo’s attire, nor did any other member of Walmart man-
agement. (Tr. 340.) Bravo accordingly began his shift and
worked for two hours without incident, and then went to the front
entrance of the store (at approximately 1:04 a.m. on August 22)
because it was time for his break. At approximately 1:07 a.m.,
Licina arrived at the front entrance and unlocked the door to al-
low Bravo and other associates to go outside. Licina did not
comment about Bravo’s attire. (Tr. 339–341, 369, 371; Jt. Exh.
27 (August 22, clip 2).) However, when Bravo reentered the
store at approximately 1:11 a.m. to resume working, Licina di-
rected Bravo to take off his OUR Walmart shirt. (Tr. 341–342;
Jt. Exh. 27, clip 2.) Bravo complied, and completed his shift
wearing his black thermal shirt without further comment from
Licina. (Tr. 342; Jt. Exh. 27 (August 22, clip 1).)
On September 14, Bravo arrived at work wearing grey khaki
shorts, and a white shirt that had a Mexican flag and the words
“UFCW, Un Voice, Un Vision, Un Union” written on the back,
and that had an emblem on the left hand side of the front of the
shirt. (Tr. 343; Jt. Exh. 27 (September 14, clip 1 (10:51 p.m.)
and clip 2 (10:59 p.m.).) While clocking in, Bravo encountered
overnight maintenance associate S., who was wearing a black
shirt, and overnight maintenance associate D., who was wearing
sweatpants. (At trial, Bravo could not recall the color of D.’s
shirt.) When Bravo, S. and D. attended a safety meeting led by
Licina at the start of their shift, Licina told Bravo to take his
white shirt off, or she’d be speaking to him “in a different tone.”
Licina did not say anything about S.’s or D.’s attire. (Tr. 343–
345, 369; Jt. Exh. 27 (September 14, clip 2).) Bravo complied
by removing his white UFCW shirt and putting on a blue shirt,
and completed his shift with no one in management commenting
about the fact that he was wearing shorts while on duty.10 (Tr.
346; Jt. Exh. 27 (September 15, clip 1 (1:01 a.m.).) Meanwhile,
a Walmart official reported as follows to Walmart’s Labor Rela-
tions department: “[Overnight] maintenance associate wore anti-
Walmart t-shirt to work.” (Jt. Exh. 56, p. 4.)
4. Dress code violations by other employees
The evidentiary record shows that Walmart was generally
the list of employees covered by this exception. (Jt. Exh. 30, p. 6 (noting
that the store manager may authorize the following employees to wear
shorts in the summer months: “Cart Attendant/Courtesy associates, Gar-
den Center associates, Receiving associates who unload trucks, ICS
Team members who do not work on the sales floor, Overnight Stockers
in a non-24 hour facility, [Tire, Lube and Express (TLE)] Service Writers
and TLE associates who work in the shop area”).)
WAL-MART STORES, INC. 23
inconsistent with enforcing its dress code policy at the Rich-
mond, California store. On occasion, Walmart managers did:
speak to individual employees about wearing the wrong color
shirt; or ask certain employees to turn their shirts inside-out to
obscure logos that did not comply with the dress code. (Tr. 323,
668–669.) On the other hand, there were occasions where em-
ployees wore shirts or other items that did not comply with the
dress code, and did so without objection or comment by manag-
ers who observed the noncompliant clothing.11 (Tr. 346 (Bravo’s
khaki shorts), 702 (Victor Mendoza’s blue and white checker-
board flannel shirt); GC Exh. 6.) And, on at least one occasion,
two assistant managers at the Richmond Walmart were observed
wearing clothing that did not comply with the dress code. (Jt.
Exh. 50, p. 1; see also Tr. 570–572.)
Mendoza habitually violated the dress code on his Tuesday
night to Wednesday morning shift, because for that shift he al-
ways wore a blue shirt with the words “Free Hugs” written on
the front in large letters. A manager did ask Mendoza about the
Free Hugs shirt when Mendoza first began his practice of wear-
ing that shirt, but thereafter Mendoza continued to wear his shirt
on a weekly basis without further inquiry or comment. (Tr. 701–
703, 719–720; GC Exh. 6.) Similarly, Mendoza frequently vio-
lated the dress code on his Thursday night to Friday morning
shift, as he often wore a blue and white checkerboard-patterned
flannel shirt to work for that shift. Although a manager (Mom-
lesh “Atlas” Chandra) once told Mendoza to remove the flannel
shirt because of the checkerboard pattern, Mendoza resumed
wearing the shirt on future days without comment from any su-
pervisors (including Chandra). (Tr. 702, 714; GC Exh. 6; see
also Tr. 703 (noting that Mendoza also wore a San Francisco
49ers shirt at work a few times).)
5. The February 2013 dress code for Walmart’s
California employees
On February 7, 2013, Walmart issued the following updated
dress code guidelines for hourly employees in its stores located
in California:
Dress Code
Walmart facilities
Any short sleeve or long sleeve solid blue shirt/blouse or solid
white shirt/blouse of your choosing, in any shade of blue or
white, and in good condition. This blouse/shirt should
be the outermost customer facing garment.
 Sleeveless shirts/blouses are not allowed.
 Examples of acceptable shirt/blouse styles include,
but are not limited to, t-shirts, sweaters, sweatshirts,
polo-style shirts and button-down shirts.
 You may wear white long sleeve shirts/blouses under
short sleeve solid blue or white shirts/blouses
 You are not required to tuck in your shirt/blouse.
Solid tan, in any shade, solid brown, in any shade, and solid
black pants, skirts, or skorts of your choosing in good

11 The evidentiary record establishes that at around 11 p.m, Walmart
dims the lights at its Richmond, California store. (Tr. 368, 670.) There
is no evidence that assistant manager Peggy Licina (who did not testify),
condition. Skirt or skort length must be no shorter than knee
length.
 Examples of acceptable pants styles and fabrics in-
clude, but are not limited to, cargos, capris and cordu-
roy.
 Examples of unacceptable pant styles and fabrics in-
clude, but are not limited to, jeans, sweatpants, denim
and fleece.
While working outside the building (the building includes the
garden center), you may wear any hat, jacket or coat of your
choice in good condition; no color or style restrictions apply.
If you work in a position such as Front-End Cashier, People
Greeter, Garden Center Cashier, you may wear a sweater or
jacket inside the building for warmth reasons. Your
sweater or jacket must be in good condition and, if it is
your outermost garment, it must
be solid blue or solid white. You may also wear a sweater
or jacket in good condition of
any color if you wear it underneath a solid blue or solid
white garment otherwise permitted by this dress code
(blouse/shirt/sweater/jacket). Your outermost garment must
always be solid blue or solid white in any shade.
Walmart logos of any size are permitted. Other small, non-dis-
tracting logos or graphics on shirts/blouses, pants, skirts, hats,
jackets or coats are also permitted, subject to the
following:
 Except for a clothing manufacturer’s company em-
blem no larger than the size of your company name
badge, the logo or graphic must not represent
 Any business engaged in the commercial sale of
products or services to the public, including but not
limited to a competitor or supplier; or
 Any product or service offered for commercial sale to
the public, whether in Walmart or elsewhere
You are not required to purchase or wear any clothing from
Walmart or the online catalog. Clothing can be purchased from
any merchant of your choosing. If you feel you are under pres-
sure from management to purchase or wear clothing from
Walmart or the online catalog, you are obligated to immedi-
ately contact the company’s Ethics Hotline, your Market Hu-
man Resource Manager, or your Regional Human Resource
Director.
(Jt. Exh. 31, p. 2; see also Jt. Exh. 60 (summarizing the 2013
update to Walmart’s California dress code, and noting that ex-
ceptions to the dress code may be considered for medical or re-
ligious reasons).) The February 7, 2013 dress code has been in
effect at all material times since at least February 21, 2013. (Tr.
13.) As with the July 2010 dress code, Walmart permitted asso-
ciates to have logos on clothing (including OUR Walmart and
UFCW pins and lanyards) as long as the logo was smaller than
the Walmart name tag (2 x 3 inches). (Tr. 566–568, 629–630.)
or any other manager, had difficulty seeing what color or type of clothing
that employees were wearing during times when the lights were dimmed.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D. Overview of the Summer/Fall 2012 Richmond, CA Store Re-
modeling Project
In August 2012, Walmart began a remodeling project at its
Richmond, California store to give the store an upgrade (e.g., in-
stalling new floor tiling, rearranging counters, cleaning). Fol-
lowing its customary framework for such projects, Walmart as-
signed a field project manager (Malcolm Hutchins) to oversee
the remodeling work, and also assigned a team of five field pro-
ject supervisors (including Art Van Riper) to supervise (and also
participate in) the remodeling at the store on a daily basis. (Tr.
230, 351, 472–477, 482; see also R. Exhs. 6–7; Jt. Exh. 24.)
In practice, Hutchins created the remodeling schedule (i.e., the
schedule for when remodeling work would be done in the vari-
ous store departments), prepared and communicated daily work
plans to the field project supervisors, and visited the Richmond
store periodically to ensure that the project ran smoothly, stayed
on schedule and stayed within budget. (Tr. 474–475, 478–479,
481–485; R. Exhs. 6–7.) Field project supervisors such as Van
Riper were responsible for working with remodeling team asso-
ciates to systematically complete the tasks on the daily work
plans that Hutchins prepared. Accordingly, field project super-
visors: led daily meetings to tell associates about the work that
was scheduled; trained associates on how to do certain tasks; de-
cided which remodeling associates to assign to each task; and
patrolled the store to supervise associates and ensure that the re-
modeling team was working effectively.12 Periodically, field
project supervisors also worked alongside associates to carry out
the assigned work.13 (Tr. 231–232, 280–282, 328–331, 485–
490, 503, 509–510, 620–621; Jt. Exh. 37.)
Although the remodeling team managers had an active role in
planning and completing the remodeling project, the Richmond
store managers were responsible for handling personnel matters
that related to remodeling associates. Accordingly, Richmond
store management hired associates to work on the remodeling
project (based on the pre-established remodeling project budget),
with all of the remodeling associates having temporary status.14
In addition, Richmond store management handled all matters re-
lating to employee orientation, compensation and discipline
(with input from field project supervisors and/or the field project
manager as appropriate), and store managers also had the author-
ity to assign non-remodeling work to remodeling associates if
those associates completed their remodeling assignments before
the end of their shift. (Tr. 282, 474–481, 488, 491–494, 614–
619, 677–678; Jt. Exh. 24.)
Hutchins and Richmond store management worked together

12 I decline Walmart’s request that I draw an adverse inference against
the General Counsel for not calling an associate who worked directly
with Van Riper to testify about Van Riper’s job responsibilities. (See R.
Posttrial Br. at 20.) The parties presented ample evidence about that is-
sue through other witnesses, including Hutchins, who was Van Riper’s
supervisor, and Semetra Lee, who worked on the remodeling team and
was familiar with the work that field project supervisors performed at the
Richmond store.
13 When not assigned to a field project, field project supervisors return
to their “home store” where they supervise associates as instructed by the
store manager. (Tr. 495–496; see also Jt. Exh. 38, pp. 1, 3, 11.)
14 Temporary associates on remodeling projects typically end their
employment with Walmart at the conclusion of the remodeling project.
to set the schedules for remodeling associates. Remodeling as-
sociates worked on two shifts: one during the day (from 7 or 8
a.m. to 4 or 5 p.m.); and one overnight (from 10 p.m. to 7 a.m.).
(Tr. 480–483.) Van Riper worked the overnight shift. (Tr. 497.)
E. September/October 2012 – Remodeling Associate
Conflicts with Field Project Supervisor Van Riper
1. Initial conflicts
Early in the Richmond store remodeling project, remodeling
associates became unhappy with how they were being treated by
field project supervisor Van Riper. Specifically, associates
noted that Van Riper yelled at them, called them “lazy,” and told
them that they were the worst remodeling crew that he had ever
worked with. (Tr. 233–234, 330; Jt. Exh. 57(c), pp. 8–9, 11–12
(assistant manager heard Van Riper yell at the remodeling crew
and state that the crew was lazy and the worst he had ever worked
with); Jt. Exh. 57(e), pp. 10–11 (field project supervisor heard
Van Riper yell at the remodeling crew, and also heard him tell
the remodeling crew that they were a bunch of “lazy ass work-
ers”); Jt. Exh. 57(g), pp. 7–8.) In addition, some associates were
offended when Van Riper stated “if it was up to me, I would put
that rope around your neck” when associate Markeith Washing-
ton put a rope around his (Washington’s) waist to assist with
moving a heavy counter.15 Washington laughed Van Riper’s
comment off, but also told Van Riper that what he (Van Riper)
said was not right. (Tr. 234–235, 285; Jt. Exh. 57(a), p. 9; Jt.
Exh. 57(b), p. 12.)
2. October 11–12, 2012—Van Riper’s remarks when associ-
ates returned from strike
On October 9–10, remodeling associates Demario Hammond,
Misty Tanner and Markeith Washington joined other Richmond
store associates (including Raymond Bravo) in an OUR Walmart
sponsored strike “to protest Walmart’s attempts to silence Asso-
ciates who have spoken out against things like Walmart’s low
take home pay, unpredictable work schedules, unaffordable
health benefits and Walmart’s retaliation against those Associ-
ates who have spoken out.” (Jt. Exh. 14; see also Tr. 156–157,
348, 382; Jt. Exh. 40.)
At approximately 10 p.m. on October 11, Bravo, Hammond,
Tanner and Washington returned to the Richmond Walmart to
read and deliver a “return to work letter” that communicated
their “unconditional offers to return to our positions with
Walmart for our next scheduled shifts.” (Jt. Exh. 15; see also Tr.
118–119, 156–157, 186–187, 197, 201, 349; Jt. Exh. 61.) The
returning associates were accompanied by a delegation of
Store managers retain the option, however, to offer store-based jobs to
remodeling associates, and may consider the opinions of field project su-
pervisors in making those hiring decisions. (Tr. 493–494.)
15 Van Riper denied making this statement when he was interviewed
by market human resources manager Janet Lilly. (Tr. 554–555; Jt. Exh.
57(f), p. 13.) I have given little weight to Van Riper’s denial because
multiple employees corroborated Washington’s report about the inci-
dent, and because Walmart did not call Van Riper to testify at trial, de-
spite Van Riper still being one of Walmart’s employees. In this connec-
tion, I note that I take no position on whether Van Riper’s statement was
racist in nature (as some associates maintained), since I need not resolve
that issue to address the National Labor Relations Act violations that are
alleged in the complaint in this case.
WAL-MART STORES, INC. 25
approximately seven UFCW employees (including Mabel Tsang
and Ellouise Patton) and community supporters. Initially, the
associates handed their letter to assistant manager Atlas Chandra.
Presumably because many of the associates were part of the re-
modeling crew, Chandra called Van Riper over to speak to the
associates. (Tr. 11–12, 119, 158–159, 349, 393; Jt. Exh. 61.)
When Van Riper became agitated, UFCW employee Mabel
Tsang recorded the following exchange with her cell phone:
Van Riper (VR):I don’t want to hear it. It concerns union ac-
tivities. I’m sorry, I’m out of it. You go talk to the store man-
ager or public information.
Unknown (UK):It’s really about the law and not unions. It’s
about the law—California law.
VR: I don’t really want to hear about it.
UK: You don’t want to hear about California law?
VR: I don’t want to hear about unions.
Misty Tanner: Here Atlas. Here’s our return to work
[letter]. [Chandra subsequently handed the letter to Van
Riper.]
UK: It’s not about unions.
VR: I know what California law is. I know it probably
better than you do sir.
Ellouise Patton (EP): Right. Finish reading the letter to
him so he can start work on time.
M. Tanner: [Reading from a script.] I’m ready to return
to my position on my next scheduled shift. If Walmart does
not allow me to return to work on my next scheduled shift
or retaliates against me for walking off my job its [an] unfair
labor practice and I will be filing a charge with the National
Labor Relations Board.
. . .
The Board will require Walmart to reinstate me with full
pay . . . and benefits from today, the day I offered to return
to work until the day Walmart reinstates me . . .
VR:I don’t really . . . I don’t even want to hear it.
You’ve been told to come back to work so get out of here –
leave me alone.
M. Tanner:[Continuing to read from script.] I struck in
response to Walmart’s unlawful attempts to silence and re-
taliate against associates who spoke up against Walmart’s
low wages, unpredictable schedules and unaffordable ben-
efits. Therefore I’m entitled to reinstate my position begin-
ning . . .
. . .
VR:I have a job to do.

16 The transcript of this conversation in the record (Jt. Exh. 7(b)) is
generally accurate. The conversation provided here generally tracks that
transcript, except for a few non-substantive corrections that I made based
on the video recordings in the record (Jt. Exhs. 7(a), 63).
17 I have credited Tsang’s account of Van Riper’s remark because
Tsang presented detailed and credible testimony, and because she was
already in the role of monitoring Van Riper’s conduct when he made the
remark about shooting the union (and thus was tuned in to precisely what
Van Riper was saying). In addition, Tsang’s account was largely
UK:Yes sir. I appreciate that. We understand. You’ve
got a job to do.
M. Tanner:I’ll be back to work tonight. . . . Thank you.
EP:[Sarcastically] Thank you sir, you have been most
gracious.
(Jt. Exhs. 7(a)–(b); see also Tr. 119–122, 159–161, 166,
179; Jt. Exh. 61.)16
At this point, Tsang stopped her cell phone recording because
she believed that the return to work delegation had concluded.
However, Van Riper was not finished, and responded to Patton’s
remark by saying “Don’t thank me. If it were up to me, I’d shoot
the union.”17 (Tr. 123, 190–192, 350; Jt. Exh. 57(b), p. 13.)
Tsang resumed recording the events and recorded the following
remarks:
EP: Really? Okay, did everyone hear that? Okay, so
let’s let these people go to work.
. . .
VR:If I had my way the union would be . . . I used to
work for a union.
Mabel Tsang:I was recording and I stopped it right at
. . .
(Jt. Exh. 8(b); see also Tr. 177–178 (noting that at some point,
Patton asked Van Riper if his remark about unions was a threat,
and that Van Riper responded “no”), 187–188, 190–193.) Not-
withstanding this confrontation, the four returning strikers re-
turned to work on their next scheduled shifts and were not disci-
plined for participating in the October 2012 strike. (Tr. 157–158,
202, 382–383.)
At approximately 2 a.m. on October 12 (during the same over-
night shift that began on October 11), Van Riper and field project
supervisor Carlita Jackson called all remodeling associates to a
meeting. At the meeting, Van Riper announced that the remod-
eling associates were back from their strike, but would not be
working with the remodeling crew and instead would be working
with the store.18 Van Riper added that although OUR Walmart
was trying to unionize Walmart, that (unionization) was never
going to happen. Next, Van Riper told the remodeling associates
that they should not talk to the returning strikers. When Jackson
and associate Semitra Lee asked Van Riper what he meant by
that, Van Riper said that remodeling associates should not talk
to returning strikers “about the situation.” Finally, Lee asked
what was going to happen to the returning strikers. Van Riper
responded that they would be looking for new jobs.19 (Tr. 237–
240, 286, 288–289.)
3. October 17, 2012–associates submit written complaint about
corroborated by Hammond’s report and Bravo’s testimony. (See Jt. Exh.
57(b), p. 13 (Hammond); Tr. 350 (Bravo).) I have given less weight to
Patton’s testimony that Van Riper said “You people ought to be shot,”
because she demonstrated difficulty with recalling some of the details
about the interaction with Van Riper. (Tr. 204–207.)
18 In future shifts, the remodeling associates who participated in the
October 2012 strike rejoined the remodeling crew. (Tr. 289.)
19 Lee’s account of Van Riper’s remarks at the October 12, 2012
meeting was not rebutted by any other evidence.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Van Riper
On October 17, six associates (Bravo, Hammond, Tanner,
L.S., Washington and Timothy Whitney) signed and submitted a
letter to Walmart to complain about Van Riper. The letter stated
as follows:
We the Associates at Store #3455 in Richmond, California,
are outraged at the behavior of Art Van Riper, a manager from
Home Office. By using racist remarks and threats of physical
violence towards Associates he has created a work environment
that is threatening, harassing and intimidating.
Because he is a manager from Home Office his behavior
is either condoned by Walmart, or Walmart is unaware they
have a manager representing them who uses racist com-
ments and threatens associates with physical violence. Nei-
ther is acceptable. Because this behavior is outrageous and
unacceptable, we call on Walmart to do the following:
1. Walmart remove Home Office remodel manager Art Van
Riper. We also want a public apology from him to all associ-
ates in the store and want all managers of this store to attend a
cultural competency training.
2. Because much of his behavior was directed at temporary
associates helping us remodel and improve our store, and be-
cause Walmart will be staffing up Store #3455 for the holiday
season, we want any temporary Associate who is ready and
willing to take a position at Store #3455, be given first option
for any available positions at the store after the completion of
the remodel. If no positions are available, a list of current tem-
porary associates will be created and called when new positions
are available before the job is open to the public.
1. Store manager Robert Wainaina meets with members
of OUR Walmart to discuss the above issues.
(Jt. Exh. 9; see also Tr. 354, 391, 400, 407.) For reasons that are
not clear, market human resources manager Janet Lilly did not
receive a copy of the October 17 letter until on or about October
31. Lilly forwarded the letter to Walmart’s labor relations de-
partment, which in turn forwarded it to Hutchins for review and
comment (since Hutchins was Van Riper’s supervisor). (Tr.
519–520; see also R. Exh. 8; Jt. Exh. 42.)
F. November 2, 2012—Associate Work Stoppage at the Rich-
mond, CA Store
1. Preparation for work stoppage
In mid-October, OUR Walmart members and UFCW staff met
on two occasions to discuss and prepare for a work stoppage/pro-
test that they planned to hold at the Richmond, California
Walmart on November 2. The principal reason for the work
stoppage was to protest Van Riper’s treatment of the remodeling
associates, and the meeting participants selected November 2 for
the work stoppage because the Richmond store’s grand

20 Due to other events that required her attention on November 2,
Lilly did not finish investigating the associates’ complaints about Van
Riper until November 16. As part of her investigation, Lilly met with
associates Hammond and Whitney in open door meetings on November
7 (Bravo, Lee, Stewart and Tanner declined Lilly’s requests to meet).
Lilly also met with Hutchins, Jackson, Tune and Van Riper. (Tr. 269,
reopening was scheduled that day (and thus the work stop-
page/protest would also provide a good opportunity for OUR
Walmart to state its cause). (Tr. 240–242, 291–293, 354–355;
see also R. Exh. 3 (UFCW staff email dated October 29, 2012,
listing the protest at the Richmond store as an upcoming event).)
At approximately 11 p.m. on November 1, Tanner approached
assistant manager Tennille Tune asked Tune to send her home.
Tanner explained that if she remained at the Richmond store, she
would organize the work stoppage planned for the early morning
of November 2. Tanner added that she might be able to call off
the work stoppage if Tune could promise that the remodeling as-
sociates would be offered permanent positions with Walmart af-
ter the remodeling project concluded. Tune declined Tanner’s
request to be sent home, and notified Walmart’s labor relations
department of the work stoppage/protest plans. In addition, Tune
altered her plans for the staff that night, to have them prioritize
removing boxes and other obstacles from the floor before the
work stoppage began. (Tr. 624–627; Jt. Exhs. 44–45.)
2. The grand reopening
In the early morning on November 2, Richmond store person-
nel were in the process of completing their remodeling work and
readying the store for its grand reopening, which was scheduled
to begin that day at 6 a.m. when the store opened to the public.
(Tr. 124, 142, 240, 351; see also Tr. 270, 501–502 (noting that
the remodeling project did not fully conclude until around No-
vember 7.) Walmart personnel characterized the grand reopen-
ing as a “big deal” for the store, with new meat and produce de-
partments available for the first time, and vendors and costumed
characters present to interact with customers and their families.
(Tr. 541, 631–632.)
3. Lilly begins open door meetings concerning Van Riper
Shortly after 3 a.m. on November 2, Lilly and market asset
protection manager Paul Jankowski arrived at the Richmond
store to support the store in its grand reopening, and also to in-
terview associates (under Walmart’s open door policy) about
their complaints and concerns about Van Riper. (Tr. 520–522,
574–575, 624, 681–682, 694; Jt. Exh. 58.) Lilly and Jankowski’s
first interview was with associate Washington. During that in-
terview, Tanner knocked on the door and announced that she
wanted to check on Washington. Tanner left after Washington
confirmed that he was okay and wished to continue the meeting.
(Tr. 525–527, 683–684; Jt. Exh. 58; see also Jt. Exh. 57(a) (notes
from open door session with Washington).)20
4. Work stoppage activities inside the Richmond Walmart21
At approximately 5:24 a.m., Bravo, Hammond, Lee, Tanner,
Washington and Whitney stopped the work that they were doing
at the Richmond Walmart and walked to the customer service
waiting area of the store (located immediately to the right of the
296, 498, 545–546; 557–558; Jt. Exhs. 51, 57(b)–(g).) The results of
Lilly’s investigation are not relevant to the complaint allegations in this
case.
21 The times that I reference in this section correspond to the times
stated on the surveillance videos that the parties submitted as Joint Ex-
hibit 26(a)–(b).
WAL-MART STORES, INC. 27
first floor store entrance) to begin a work stoppage/protest.22 The
store was not yet open to the public (opening hours began at 6
a.m.), and the customer service area was empty, save for one in-
dividual who was sitting in the customer service area and left
shortly after the work stoppage began. Bravo, Hammond, Lee,
Tanner, Washington and Whitney were all still on the clock
when they began their work stoppage. Meanwhile, the remodel-
ing associates that did not participate in the work stoppage con-
tinued to stock and clean the store for the grand reopening. (Tr.
125, 244–245, 300, 351, 378, 562, 627–628, 672–674; Jt. Exhs.
26(a) (clip 3), 26(b) (clips 2–3, 5); see also Jt. Exh. 16 (indicating
that at some point on November 2, the work stoppage partici-
pants resubmitted their letter to Walmart regarding Van Riper’s
conduct).)23
At around 5:29 a.m., Lilly and Jankowski entered the cus-
tomer service area and greeted the associates who were partici-
pating in the work stoppage. Lilly asked the work stoppage par-
ticipants what they wanted, and offered to meet with them indi-
vidually under Walmart’s open door policy to discuss their con-
cerns. The work stoppage participants refused Lilly’s offer be-
cause they wanted to discuss their concerns as a group, and Lilly
was not willing to do so because of Walmart’s practices with its
open door policy and her belief that associates’ confidential in-
formation should not be shared in a group setting. The work
stoppage participants also refused Lilly’s request that they return
to work, and continued to wait in the customer service area. (Tr.
252–253, 298–300, 358, 387–388, 534–537; Jt. Exhs. 26(a) (clip
3), 26(b) (clips 2–3, 5), 58–59; see also Tr. 516–518, 631 (agree-
ing that Walmart handles open door meetings on an individual
basis); Tr. 326–327.) At around 6 a.m., Lilly repeated her re-
quests that the work stoppage participants meet with her individ-
ually to discuss their concerns, and that they return to work—the
work stoppage participants again refused to meet with Lilly un-
less she agreed to meet with them as a group, and again refused
to return to work. (Tr. 537–538.)
Shortly after the store opened at 6 a.m., four non-associates (a
mixture of UFCW staff and community members) entered the
store and joined the work stoppage participants in the customer
service area. After arriving, the non-associates and work stop-
page participants displayed an 8–10 foot long green banner that
stated:
Stand Up
Live Better

22 The customer service area has a long counter with three comput-
ers/cash registers, and a few seats for customers. A chest-high wall
across and to the right of the customer service counter separates most of
the customer service waiting area from the rest of the store. (Tr. 437–
438; Jt. Exh. 12(b).)
23 Although Van Riper’s time at the Richmond store was coming to
an end because the remodeling project was nearly concluded, associates
were concerned that Van Riper might mistreat associates in other stores
where he might be assigned in the future. (Tr. 243, 354.)
24 During this timeframe, there were no customers in the customer
service area. A Walmart associate briefly walked behind the customer
service counter without difficulty or incident. (Jt. Exh. 26(a), clip 3 (6:04
a.m.).)
25 Coincidentally, while Lee was standing behind a parked news ve-
hicle doing her interview, Van Riper left the store and entered his car,
ForRespect.org
OUR Walmart
Organization United for Respect at Walmart
(Jt. Exhs. 13(e)–(f).) Initially (at approximately 6:03 a.m.), the
protesters held the banner in such a way that much of the front
of the customer service counter was blocked.24 However, at 6:05
a.m., the protesters moved the banner to the back of the customer
service area, thereby leaving most of the customer service coun-
ter unblocked. (Tr. 256, 305–306, 355–356, 539–540, 563, 685;
Jt. Exhs. 26(a) (clip 3), 26(b) (clips 2–3, 5), 58.)
Over the next several minutes, protesters periodically left the
customer service area to exit the store, and then later returned.
For example, at approximately 6:10 a.m., Lee left the customer
service area for approximately five minutes to conduct a media
interview in the parking lot.25 Similarly, at approximately 6:16
a.m., UFCW staff delivered signs and OUR Walmart t-shirts to
the protesters in the customer service area, and took photographs
of the protest inside the store (notwithstanding Jankowski’s
warnings that the protesters could not take photos or hold signs,
and that the protesters were trespassing and should leave the
store). At times, up to 15–19 protesters (including the six asso-
ciates who were continuing their work stoppage) were present in
the customer service area. (Tr. 127–129, 146–152, 163–165,
258–259, 303–304, 311, 539, 688–689; Jt. Exhs. 12(a)–(b),
13(d)–(f), 26(a) (clips 1–3), 26(b) (clips 2–3, 5), 58–59.) Some
of the UFCW staff and community members held signs and dis-
tributed leaflets outside of the store, as a protest conducted in
support of (and in conjunction with) the work stoppage/protest
that was in progress inside the store. Since the protesters outside
the store were near a storage area for shopping carts (such that
someone wanting to retrieve a cart would have to walk around
the protesters), Walmart asked one of its greeters to assist cus-
tomers with getting carts.26 (Tr. 180–185, 321, 325, 540–542,
629, 685–687; Jt. Exhs. 13(a)–(c), 29, 58; R. Exh. 4.)
At approximately 6:29 a.m., Bravo, Hammond, Lee, Tanner,
Washington, Whitney and two community members left the cus-
tomer service area and stood in front of a display located in the
store aisle leading from the first floor store entrance (Walmart
refers to this aisle as “Action Alley” because the store features
advertisements in that area – the display was approximately 20
feet from the entrance doors).27 By this point, Bravo, Tanner and
Lee had donned green OUR Walmart t-shirts, and Bravo was dis-
playing a 3–by–2–foot sign that stated “ULP Strike.” Three
which was parked next to the news vehicle. Van Riper yelled at Lee to
move as he backed out his car, and then left the parking lot. (Tr. 264–
265, 304–305; Jt. Exh. 26(a) (clip 1).)
26 Customer service desk associate Maria Della Maggiora also testi-
fied about retrieving carts from the cart storage area outside of the front
of the store. Specifically, Maggiora testified that although no one pre-
vented her from retrieving shopping carts, she did not feel comfortable
retrieving carts because protesters tried to speak to her about OUR
Walmart. (Tr. 431–433.) I have given little weight to Maggiora’s sub-
jective reactions to the protest because they are not relevant to my anal-
ysis of the issues in this case.
27 Lee estimated that the display was only 10 feet from the main en-
trance (Tr. 318.), but I have not credited her testimony on that point be-
cause the video footage in the record shows that there was no display
located within ten feet of the main entrance.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other protesters remained in the customer service area, where
they continued to display the green banner. Upon seeing the pro-
testers move to Action Alley, Lilly and Jankowski approached
and told them that they were blocking customers from entering
and shopping in the store, and asserted that the protesters should
either return to the customer service area or leave the store. Lilly
added that she would prefer that the protesters simply leave the
store. In response, at 6:32 a.m., the protesters left Action Alley
and returned to the customer service area (to some brief applause
from one of the protesters who had stayed behind in that area).
(Tr. 260–262, 308–309, 316, 318–319, 357–358, 374–376, 542–
545, 687–688; Jt. Exhs. 13(g), 26(a) (clip 3), 26(b) (clips 2–3, 5),
58–59.)
At approximately 6:37 a.m., two uniformed police officers en-
tered the store and spoke with Lilly and Jankowski, and later, a
representative of the protesters. After some discussion, the pro-
testers agreed that they would leave the store after the six asso-
ciates clocked out. Accordingly, the six associates left the cus-
tomer service area at 6:38 a.m. to clock out, while UFCW staff
and community supporters remained in and around the customer
service area. All protesters (including the six associates) left the
store by 6:52 a.m. (slightly before the end of the associates’
scheduled shifts, which ran until 7 a.m. for remodeling associ-
ates, and 8 a.m. for Bravo). Some associates (e.g., Bravo, Lee)
joined in circulating petitions, leafleting and protesting outside
of the first floor store entrance. (Tr. 263, 265, 320–321, 325–
326, 355, 376, 378, 691–692; Jt. Exhs. 26(a) (clip 3), 26(b) (clips
2–5), 29, 58–59.) At no point during the work stoppage did
Walmart (through Lilly, Jankowski or another manager) warn
the six associates that they must leave the store or face being
disciplined. (Tr. 265, 361.)
From 6 a.m. onward, Maria Della Maggiora was the Walmart
associate assigned to work at the customer service desk.28 Alt-
hough the customer service counter was open and accessible,
Maggiora did her work elsewhere in the store during the protest.
Maggiora testified that she avoided the customer service area be-
cause the area was noisy while the protesters were present. Other
associates, however, periodically walked behind the customer
service desk without apparent difficulty, and only a limited num-
ber of customers entered the store during the protest (and the
video footage does not show that any of those customers sought
assistance at the customer service desk). (Tr. 266, 311–312, 358,
377, 422, 425, 430; Jt. Exhs. 26(a) (clip 3), 26(b) (clips 2–3, 5);
see also Tr. 310 (Lee acknowledged that with 15 or more people
in a small enclosed area such as the customer service area,

28 Normally, the customer service desk does not open until 7 a.m.,
and thus customers are rarely in the customer service area between 6 and
7 a.m. (Tr. 266, 361–362; GC Exhs. 3, 5; see also Tr. 633 (noting that
the customer service area is not that busy between 6 a.m. and 8 a.m.).)
Walmart opened the customer service desk earlier on November 2 be-
cause of the grand reopening. (Tr. 443–444.)
I have given little weight to Maggiora’s testimony that she normally
sees 8 or 9 customers in the customer service area between 6:30 a.m. and
9 a.m. (See Tr. 429.) Much of Maggiora’s testimony was vague and
therefore unreliable, and in any event, her testimony on this point is not
probative because the estimate that she provided for the amount of cus-
tomer traffic at the customer service desk covers a time period that ex-
tends well beyond the time (6:52 a.m.) that the work stoppage ended.
“voices carry a little bit”).)
5. Protest continues outside the Richmond Walmart second
floor entrance29
As part of the Richmond Walmart’s November 2 grand reo-
pening, the store had arranged for a few vendors to set up tables
in a large concrete walking area to the left of the second floor
store entrance. Consistent with that plan, vendors began arriving
and setting up tables at around 7:23 a.m.. (Jt. Exhs. 26(a) (clip
4), 26(b) (clip 1), 58–59.)
At approximately 7:29 a.m., OUR Walmart members, UFCW
staff and community supporters (including Bravo and other pro-
testers who participated in the protest activities near the first
floor entrance) began protesting in the same concrete walking
area.30 Initially, the demonstrators formed a line facing the park-
ing lot, stretching a 15–foot long white banner (also used in the
protest outside the first floor entrance) and a smaller green ban-
ner (also used during the work stoppage) across the protest line.
The long white banner stated:
On Strike
Walmart: End the Retaliation
When they were facing the parking lot, the protesters were stand-
ing in the concrete walking area approximately 30 feet in front
of where the vendors were setting up their tables. (Tr. 401–403,
406, 542, 689–690; Jt. Exhs. 26(a) (clip 4), 26(b) (clip 1), 58.)
After changing their alignment a couple of times (alternating
between facing the parking lot and turning the line perpendicular
to the parking lot), at approximately 7:39 a.m. the protesters
moved their banners to stretch perpendicular to the parking lot,
with the ends of the line curved slightly to make a long, flat “U”-
shaped formation. With this alignment, the protesters left room
for one or two people to walk between them and the first vendor
table, and left approximately five feet for people to pass between
the protesters and the parking lot. Because the protesters were
located well to the left of the store entrance, it was also possible
for pedestrians coming from the parking lot to walk through a
lined crosswalk area in the driveway and directly to the store en-
trance, thereby passing the protest line altogether. (Tr. 401–405;
R. Exh. 5; Jt. Exhs. 26(a) (clip 4), 26(b) (clip 1).)
At approximately 8:02 a.m., one or two protesters began dis-
tributing leaflets to individuals who passed through the concrete
walking area. At around the same time (at 8:04 a.m.), the pro-
testers holding the green banner moved to a different area of the
concrete walkway, opening up 10–12 feet between the remaining
line of protesters and the first vendor table. And, by 8:08 am,
29 The times that I reference in this section are taken from the time
clock provided at the top of the video feed in Joint Exhibit 26(a), clip 4.
I note that Joint Exhibit 26(b), clip 1 shows many of the same events, but
its time clock lags four minutes behind (such that an event at 9 a.m. on
Joint 26(a), clip 4 would appear at 9:04 a.m. on Joint Exhibit 26(b), clip
1).
30 Mall security personnel informed Jankowski that it was permissible
for the protesters to protest outside of the first and second floor en-
trances to the Richmond Walmart store. (Tr. 695; Jt. Exh. 58; see also
Tr. 321 (a Walmart manager informed the associates that they had to
leave the store, but did not have to leave the mall property outside).
WAL-MART STORES, INC. 29
the protesters had put away the green banner and concentrated
the protest line behind the longer white banner, thereby leaving
half of the concrete walkway clear. (Jt. Exhs. 26(a) (clip 4), 26(b)
(clip 1).)
At around 8:15 a.m., several protesters left the area, and the
protesters that remained began to wrap up their activities. Spe-
cifically, at around 8:23 a.m., the remaining protesters put away
the long white banner and simply stood together in small groups
(leaving 80% of the concrete walkway clear). All protest activity
ended by 9:01 a.m., and at approximately 9:07 a.m., the protest-
ers loaded their banners and signs into a sports utility vehicle.
(Jt. Exhs. 26(a) (clip 4), 26(b) (clip 1), 58.)
Throughout the exterior protest, a light load of customer traf-
fic proceeded in and out of the second floor store entrance with-
out incident. The vendor tables were also up and running and
open for visitors, but saw limited traffic. One news vehicle
parked at the end of the concrete walking area to cover the event,
and then left the area once the protesters began to disperse. (Jt.
Exhs. 26(a) (clip 4), 26(b) (clip 1).)
G. Developments after the November 2 Work Stoppage
1. Work stoppage participants offer to return to work
On November 2, Bravo gave Walmart personnel a letter com-
municating his unconditional offer to return to work. Bravo and
Lee returned to work at 11 p.m. on November 2 without inci-
dent.31 On November 4, Hammond, Lee, Tanner and Washing-
ton also gave Walmart a letter communicating their uncondi-
tional offers to return to work (Whitney did not sign the letter).
(Tr. 268–269, 390; Jt. Exhs. 17–18.)
2. Walmart disciplines the six associates who participated in the
work stoppage
Under Walmart’s disciplinary policy, a coaching is a tool that
Walmart uses to “provide instruction and assistance to [associ-
ates] if [their] job performance fails to meet the reasonable ex-
pectations and standards for all associates in the same or similar
position or if [the associates’] conduct violates a company policy
or interferes or creates a risk of interfering with the safe, orderly
and efficient operation of [Walmart’s] business.” Although
Walmart has three levels of coaching (first, second and third
written coachings) that associates typically progress through if
they are coached on multiple occasions (i.e., an associate who
has an active first written coaching will normally receive a sec-
ond written coaching if the need for another coaching arises),
supervisors have the discretion to skip levels of coaching if they
determine a higher level of coaching is warranted based on the
particular circumstances. (Jt. Exh. 6, p. 1.)
Between November 5 and 8, Walmart disciplined each of the
work stoppage participants with a two-level coaching, such that
Hammond, Lee, Tanner, Washington and Whitney received a
second written coaching (because they had no active coachings
at the time), while Bravo received a third written coaching (be-
cause he had an active first written coaching at the time). Before
deciding to issue two-level coachings, Lilly searched Walmart’s
online coaching records and performed a “consistency search” to

31 Bravo did attempt to complete his shift in the morning on Novem-
ber 2 (after the work stoppage concluded), but was told he could not do
so without first participating in an open door meeting. Bravo declined,
review what level of coaching Walmart used when associates
committed similar infractions in the past. Based on that search,
Lilly found that multiple associates in the Richmond store had
either skipped levels or had been coached for similar infractions,
and therefore determined that the proposed two-level coaching
would be appropriate for the associates who participated in the
work stoppage. (Tr. 560–561.) Each associate’s coaching doc-
ument stated as follows:
Reason(s) [for coaching]:
Inappropriate Conduct, Unauthorized Use of Company Time
Observations of Associate’s Behavior and/or Performance:
Abandoned work immediately befor[e] Grand Opening event
and refused to return to work after being told to do so. [T]hen
engaged in a sit-in on the sales floor and physically occupied a
central work area. [T]hen joined with a pre-coordinated flash
mob during Grand Opening to further take over, occupy, and
deny access to the main customer pathway through the front of
the store. Refused to stop/leave when told to do so.
Impact of Associate’s Behavior:
Disrupted business and customer service operations during key
Grand Opening event and interfered with your co-workers’
ability to do their jobs. Created a confrontational environment
in our store with customers and co-workers at a time when we
were trying to make a crucial first impression with potential
long term customers; likely lost customers as a result.
Behavior Expected of Associate:
Work as directed and do not attempt to occupy Walmarts prop-
erty, disrupt operations, or interfere with customer service or
co-workers job tasks. You are encouraged, but not required to
use the company’s Open Door to address any issues you want
to share.
(Jt. Exh. 19; see also Tr. 266–268, 322, 359–361, 558–565, 587;
Jt. Exh. 20 (Bravo’s pre-existing first written coaching, given on
August 19, 2012 for attendance/punctuality problems).)
Walmart emphasized that it disciplined the associates for unau-
thorized use of company time (not using their time on the clock
to do productive work), and not because of the work stoppage.
(Tr. 268, 322, 565.)
Walmart’s coaching paperwork includes an “Action Plan” that
associates may complete to respond to the coaching, or articulate
how they will correct the problems or concerns set forth in the
coaching. (See Jt. Exh. 6.) Bravo, Lee, and Whitney left their
action plans blank, while Tanner did not report for work after
November 2, and thus was not present to enter an action plan
when her coaching was issued. Washington wrote: “just get back
to work and stay [focused].” And Hammond stated: “I only par-
ticipated in the sit-in because I was tired of the verbal abuse and
other unfair labor practices made by Art [Van Riper] from Store
Planning. With that being said, I will continue to work hard as I
move forward here at Walmart. I have always done my best and
and instead returned to work on his next scheduled shift (in the evening
on November 2). (Tr. 390.)
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
more since I started here and I love working here. I hope this
doesn’t reflect negatively on my work ethic because I will still
be knocking out pallets like crazy. I apologize for my inappro-
priate behavior and this will not happen again.” (Jt. Exh. 19; see
also Tr. 558, 561, 563.)
3. November 7—remodeling project concludes
On November 7, Walmart informed the remodeling asso-
ciates at the Richmond store that the remodeling project
had concluded and that the associates would receive their
last checks in the mail. Accordingly, Hammond, Wash-
ington and Whitney worked their final day on November
8, while Tanner and Lee worked their final days on No-
vember 2 and 7, respectively. Of the 27 associates who
worked on the remodeling project between August 13
and November 8, only one associate (associate C.R.) was
placed directly into a permanent position at the store.
(Tr. 270, 279–280, 283; Jt. Exhs. 23, 25 pp. 56–60.)
DISCUSSION AND ANALYSIS
A. Witness Credibility
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’ de-
meanor, the weight of the respective evidence, established or ad-
mitted facts, inherent probabilities and reasonable inferences that
may be drawn from the record as a whole. Locomotives, Inc.,
358 NLRB 298, 309 (2012), see also Roosevelt Memorial Medi-
cal Center, 348 NLRB 1016, 1022 (2006) (noting that an ALJ
may draw an adverse inference from a party’s failure to call a
witness who may reasonably be assumed to be favorably dis-
posed to a party, and who could reasonably be expected to cor-
roborate its version of events, particularly when the witness is
the party’s agent). Credibility findings need not be all-or-noth-
ing propositions—indeed, nothing is more common in all kinds
of judicial decisions than to believe some, but not all, of a wit-
ness’ testimony. Relco Locomotives, supra. My credibility find-
ings are set forth above in the findings of fact for this decision.
B. The Placerville Store
1. Complaint allegations and applicable legal standard
The General Counsel alleges that, on or about June 1, 2012,
Walmart unlawfully engaged in surveillance and/or created the
impression of surveillance by photographing or videotaping as-
sociates (or appearing to do so) while the associates engaged in
a protest at the Placerville store. (GC Exh. 1(bb), par. 6(a)(1).)
The General Counsel also alleges that, in or about the second
week of July 2012, Walmart implicitly threatened an associate
by asking the associate if she was afraid Walmart might close its
Placerville store if too many associates joined OUR Walmart.
(GC Exh. 1(bb), par. 6(a)(2).)
Under Section 7 of the Act, employees have the right to en-
gage in concerted activities for their mutual aid or protection.
Section 8(a)(1) of the Act makes it unlawful for an employer (via
statements, conduct, or adverse employment action such as dis-
cipline or discharge) to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in Section 7. Relco
Locomotives, 358 NLRB 298, 309 (2012), enfd. 734 F.3d. 764
(8th Cir. 2013).
In general, the test for evaluating whether an employer’s con-
duct or statements violate Section 8(a)(1) of the Act is whether
the statements or conduct have a reasonable tendency to interfere
with, restrain or coerce union or protected activities. Id. Apart
from a few narrow exceptions (none of which apply in this case),
an employer’s subjective motivation for its conduct or state-
ments is irrelevant to the question of whether those actions vio-
late Section 8(a)(1) of the Act. See Station Casinos, LLC, 358
NLRB 1556, 1573–1574 (2012).
2. Did Walmart violate the Act by engaging in surveillance or
creating the impression of surveillance on June 1, 2012?
A supervisor’s routine observation of employees engaged in
open Section 7 activity on company property does not constitute
unlawful surveillance. However, an employer violates Section
8(a)(1) when it surveils employees engaged in Section 7 activity
by observing them in a way that is out of the ordinary and thereby
coercive. Indicia of coerciveness include the duration of the ob-
servation, the employer’s distance from its employees while ob-
serving them, and whether the employer engaged in other coer-
cive behavior during its observation. Farm Fresh Co., Target
One, LLC, 361 NLRB 848,865–866.
The Board’s test for determining whether an employer has
created an unlawful impression of surveillance is whether, under
all the relevant circumstances, reasonable employees would as-
sume from the statement or conduct in question that their union
or other protected activities have been placed under surveillance.
Id.; see also New Vista Nursing & Rehabilitation, 358 NLRB
473, 483 (2012) (noting that the standard for creating an unlaw-
ful impression of surveillance is met “when an employer reveals
specific information about a union activity that is not generally
known, and does not reveal its source”); Flexsteel Industries, 311
NLRB 257, 257 (1993) (noting that an employer creates an im-
pression of surveillance by indicating that it is closely monitor-
ing the degree of an employee’s union involvement). The stand-
ard is an objective one, based on the rationale that employees
should be free to participate in union organizing campaigns with-
out the fear that members of management are peering over their
shoulders, taking note of who is involved in union activities, and
in what particular ways. Farm Fresh Co., Target One, LLC, 361
NLRB 848, 861–862.
In this case, the General Counsel fell short of establishing
facts demonstrating that Walmart unlawfully engaged in surveil-
lance or created the impression of surveillance at the June 1 pro-
test. Although several people participated in the protest, the
General Counsel relied solely on the testimony of associate Car-
penter, who testified that from a distance of up to 30 feet, he saw
store manager Hileman hold a black, shiny object in her hands
and make a scanning motion as if she was photographing or vid-
eotaping the protesters. (Findings of Fact (FOF) Section
II(B)(1).)
Although Carpenter was a candid witness, I find that the Gen-
eral Counsel did not present enough evidence to establish that
Hileman videotaped, photographed, or made a scanning motion
WAL-MART STORES, INC. 31
towards protesters as alleged on June 1.32 First, Carpenter’s ac-
count was tentative and uncorroborated. Carpenter admitted to
being up to 30 feet away from Hileman when he made his obser-
vations, and also admitted that he was uncertain about exactly
what he saw Hileman holding in her hands when she allegedly
made the scanning motion. And, although several other protest-
ers were present on the sidewalk when the alleged surveillance
occurred, the General Counsel did not call any other witnesses
to corroborate Carpenter’s account. Second, Hileman credibly
denied videotaping, photographing or scanning the protesters as
alleged, and drew support in her denial from Snodgrass, who was
present for the majority of the protest and did not see Hileman
take photographs or videos, and did not see her make any scan-
ning motions. (FOF, sec. II(B)(1).)
In light of the weaknesses in Carpenter’s testimony, and Hi-
leman’s credible denial, I cannot find that Hileman unlawfully
engaged in surveillance, nor can I find that Hileman engaged in
conduct that would reasonably create the impression of surveil-
lance as the General Counsel alleges.33 Accordingly, I recom-
mend that the allegation in paragraph 6(a)(1) be dismissed.
3. Did Walmart violate the Act when Stafford asked Collins if
she was concerned that the Placerville store might close if too
many associates joined OUR Walmart?
The Board has explained that an employer may lawfully com-
municate to its employees carefully phrased predictions about
“demonstrably probable consequences beyond [the employer’s]
control” that unionization will have on the company, provided
that the predictions are based on objective facts. However, if the
employer implies that it may or may not take action solely on its
own initiative for reasons unrelated to economic necessities and
known only by the employer, then the employer’s prediction is a
threat of retaliation that violates Section 8(a)(1) of the Act.
Daikichi Sushi, 335 NLRB 622, 623–624 (2001), enfd. 56
Fed.Appx. 516 (D.C. Cir. 2003). Thus, if an employer predicts,
without any supporting objective facts, that its company could
close if employees unionize, the employer violates Section
8(a)(1) because its prediction communicates an unlawful mes-
sage that the employer might decide on its own initiative to shut
down operations if its employees unionize. Id. at 624 (noting
that it is not a defense if the employer’s prediction of plant clo-
sure is couched as a possibility instead of a certainty); see also
Dlubak Corp, 307 NLRB 1138, 1151–1152 (1992) (finding that
the employer violated Section 8(a)(1) by warning employees,
without a basis in objective fact, that the plant could close if em-
ployees selected the union as their collective-bargaining

32 The General Counsel does not claim that Hileman or other Walmart
managers engaged in unlawful surveillance when they were merely pre-
sent at the protest and speaking on their cell phones.
33 I note that even if Carpenter’s and Hileman’s testimony were
equally credible, Walmart would prevail on this issue because the Gen-
eral Counsel bears the burden of proving the allegations in the complaint
by a preponderance of the evidence. See Central National Gottesman,
303 NLRB 143, 145 (1991) (finding that the General Counsel did not
meet its burden of proof because the testimony that the allegation oc-
curred was equally credible as the testimony that denied the allegation);
Blue Flash Express, 109 NLRB 591, 591–592 (1954) (same), questioned
on other grounds Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C.
Cir. 1997).
representative), enfd. 5 F.3d 1488 (3d Cir. 1993).
As set forth in the findings of fact, in early July 2012, assistant
store manager Stafford asked associate (and OUR Walmart sup-
porter) Collins if she (Collins) was concerned that Walmart
might close the Placerville store if OUR Walmart grew too large.
(FOF, Section II(B)(3).) Although Stafford’s raised the prospect
of plant closure in the form of a question, Stafford’s question
implicitly communicated that plant closure might be a risk if
OUR Walmart grew too large. More important, the asserted risk
of plant closure was not based on any objective facts – instead,
the implication was that Walmart might close the Placerville
store if Walmart believed OUR Walmart was gaining too much
traction. A reasonable employee confronted with such a risk
would be more likely to avoid supporting OUR Walmart. Ac-
cordingly, I find that Stafford’s statement to Collins violated
Section 8(a)(1) of the Act because Stafford’s statement about the
risk of plant closure had reasonable tendency to interfere with,
restrain or coerce associates in their union or protected activi-
ties.34
Dress Code Allegations
1. Complaint allegations and applicable legal standards
The General Counsel alleges that Walmart violated Section
8(a)(1) of the Act by
(a) maintaining its July 2010 dress code for California associ-
ates until at least September 14, 2012 (GC Exh. 1(bb), par.
6(d));
(b) maintaining its February 2013 dress code for California as-
sociates (GC Exh. 1(bb), par. 6(f)); and
(c) applying its July 2010 dress code for California associates
selectively and disparately insofar as Walmart applied it to an
employee (Raymond Bravo) who formed, joined or assisted
OUR Walmart and/or the United Food and Commercial Work-
ers, while not enforcing it against other associates (GC Exh.
1(bb), par. 6(e)).
Regarding the General Counsel’s allegations that Walmart’s
dress code policies were facially unlawful (GC Exh. 1(bb), pars.
6(d), (f)), it is well established that employees have a statutorily
protected right to wear union insignia on their employer’s prem-
ises, including buttons, t-shirts and other articles of clothing.
Stabilus, Inc., 355 NLRB 866, 868 (2010); W San Diego, 348
NLRB 372, 373 (2006). However, an employer may lawfully
restrict the wearing of union insignia where “special circum-
stances” justify the restriction. Special circumstances justify
34 The cases that Walmart cited about warnings of plant closure are
distinguishable. In the cases that Walmart cited, the Board did not find
that predictions of plant closure violated the Act because the employee
initiated the discussion, and the supervisors explicitly stated that they
were providing their personal opinions about the risks of unionization.
See Selkirk Metalbastos, 321 NLRB 44, 52 (1996), enf. denied on other
grounds, 116 F.3d 782 (5th Cir. 1997) ; Standard Products Co., 281
NLRB 141, 151 (1986), enf. denied in part on other grounds, 824 F.2d
291 (4th Cir. 1987). Those factors are not present here, as Stafford ini-
tiated the discussion with Collins, and Stafford did not qualify her re-
marks as merely opinion.
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
restrictions on union insignia or apparel when their display may
jeopardize employee safety, damage machinery or products, ex-
acerbate employee dissension, unreasonably interfere with a
public image that the employer has established, or when neces-
sary to maintain decorum and discipline among employees. The
employer bears the burden of proving such special circum-
stances. Stabilus, 355 NLRB at 868; W San Diego, 348 NLRB
at 373; see also Nordstrom, Inc., 264 NLRB 698, 701–702
(1982) (noting that customer exposure to union insignia, stand-
ing alone, is not a special circumstance that permits an employer
to prohibit employees from displaying union insignia).
2. Did Walmart violate Section 8(a)(1) by maintaining its July
2010 California dress code?
As indicated in the complaint, the General Counsel asserts that
the following language in Walmart’s July 2010 dress code for
California associates is facially unlawful:
Logos or graphics on shirts/blouses, pants, skirts, hats, jackets
or coats are not permitted, except the following, so long as
the logo or graphic is not offensive or distracting:
1. A Walmart logo of any size;
2. A clothing manufacturer’s company emblem no larger than
the size of the associate’s name badge; or
3. logos allowed under federal or state law.
(FOF, sec. II(C)(2); see also GC Exh. 1(bb), par. 6(d).)
Based on the applicable case law, I find that Walmart’s July
2010 dress code is facially unlawful because it is overbroad and
unduly infringes on the rights of associates to wear union insig-
nia. The July 2010 dress code explicitly prohibits associates
from wearing all logos except for Walmart logos, clothing man-
ufacturer logos, and “logos allowed under federal or state law.”
The exception for “logos allowed under federal or state law,”
however, does not save the dress code from violating Section
8(a)(1) of the Act, because the Board has explained that an em-
ployer may not validate an overbroad work rule by placing the
burden on employees to determine their legal rights. Trailmo-
bile, Division of Pullman, 221 NLRB 1088, 1089 (1975) (hold-
ing that an employer’s work rule that prohibited solicitation and
distribution on company premises “except as provided by law”
was unlawfully overbroad because the rule prohibited solicita-
tion and distribution in nonwork areas during nonwork time, and
the employer could not place the burden on employees to deter-
mine their rights under the rule).
In its posttrial brief, Walmart maintains that the logo re-
strictions in its dress code are justified because the dress code,
together with Walmart’s workplace standards policy, ensures
that associates are professional, neat and clean in their appear-
ance, and thus dress in a manner that supports Walmart’s public
image of providing excellent customer service in a family-
friendly environment. (See R. Posttrial Br. at 33.) In support of
its argument, Walmart relies on case law that supports the prop-
osition that an employer may demonstrate special circumstances
by proving that union insignia would unreasonably interfere with
an employer’s established public image. See, e.g., W San Diego,
348 NLRB at 372–373 & fn. 4 (finding that the employer law-
fully restricted hotel personnel from wearing any uniform adorn-
ments, including union buttons and other insignia, in public areas
of the hotel, and noting that the employer invested between
$88,000 and $100,000 in 2004 and 2005 on uniforms aimed at
achieving a “trendy, distinct and chic look”); United Parcel Ser-
vice, 195 NLRB 441, 441 & fn. 2, 449 (finding that the employer
lawfully restricted its drivers from wearing a union button while
exposed to customers and the general public, noting that the em-
ployer invested $3.75 million per year to provide and maintain
uniforms to preserve its public image of a neatly uniformed
driver).
Although “public image” may be a valid justification for re-
stricting union insignia, I find that Walmart fell short of estab-
lishing the “public image” special circumstances defense in this
case. First, the evidentiary record shows that Walmart was gen-
erally loose with enforcing its dress code policy. (FOF, sec.
II(C)(2).) Where that is the case, the “public image” justification
fails because the Board has held that an employer may not use
an inconsistently applied uniform policy to establish special cir-
cumstances. Airport 2000 Concessions, LLC, 346 NLRB 958,
960 (2006).
Second, the evidentiary record does not show that Walmart’s
July 2010 dress code is sufficiently strict, standardized and for-
mal to be covered by the case law (noted above) in which the
Board has found that an employer is justified in restricting em-
ployees’ right to wear union insignia to protect the employer’s
public image when employees work in areas where they may
come in contact with the public. Under Walmart’s policy, em-
ployees select the clothing they will wear to comply with
Walmart’s broad-brush dress code—he record does not show
that Walmart has invested considerable resources in developing
(much less providing uniforms for) an employee “look” to por-
tray to the public. As a result, Walmart’s public image justifica-
tion simply falls short, because its July 2010 dress code is not
part of a comprehensive public image business plan akin to what
the Board has required when finding that union insignia would
unreasonably interfere with an employer’s public image. See
Raley’s Inc., 311 NLRB 1244, 1250 (1993) (explaining that pub-
lic image concerns did not justify a large retail grocery store’s
dress code because “[t]he aprons and smocks of [the grocery
store’s] cashiers, clerks, and meatcutters worn over employee se-
lected white shirts, dark slacks, and shoes are simply not the
equivalent of traditional uniforms in the sense of distinctive
clothing intended to identify the wearer as member of a certain
organization or group. Thus, the employee appearance produced
by conformity to [the grocery store’s] dress code does not rise to
the level of the liveries and uniforms of the world class restau-
rants or United Parcel Services drivers either in appearance or in
tradition.”); see also FOF, sec. II(C).)
And third, Walmart’s July 2010 dress code is overbroad be-
cause it not only prohibits union insignia for associates who
work in public areas of the store, but also prohibits union insignia
for associates in situations where any public image concern is
limited or nonexistent (e.g., when associates work in nonpublic
areas of the store, or when associates work while the store is
closed to the public altogether, such as from midnight to 6 a.m.
at the Richmond store). Target Corp., 359 NLRB 953, 974
(2013) (rejecting the employer’s argument that its ban on all but-
tons was justified to preserve its public image and business plan,
and noting that the ban was overbroad because it applied to
WAL-MART STORES, INC. 33
overnight employees who worked when the store was closed to
the public); W San Diego, 348 NLRB at 374 (finding that the
hotel did not demonstrate that its prohibition on wearing union
insignia was justified by special circumstances in nonpublic ar-
eas of the hotel, where employees would not be seen by the pub-
lic and thus the hotel’s public image was not at issue).35
Accordingly, for the foregoing reasons, I find that Walmart
violated Section 8(a)(1) by maintaining its July 2010 dress code,
a facially overbroad policy that unduly restricted associates’
right to wear union insignia.
Did Walmart violate Section 8(a)(1) by maintaining its Febru-
ary 2013 California dress code?
As indicated in the complaint, the General Counsel asserts that
the following language in Walmart’s February 2013 dress code
for California associates is facially unlawful:
Walmart logos of any size are permitted. Other small, non-dis-
tracting logos or graphics on shirts/blouses, pants, skirts, hats,
jackets or coats are also permitted, subject to the following . . .
(FOF, sec. II(C)(4) (noting that the February 2013 dress code
goes on to say that “[t]he logo or graphic must not reflect any
form of violent, discriminatory, abusive, offensive, demeaning,
or otherwise unprofessional messaging”); see also GC Exh.
1(bb), par. 6(f).)
Like the July 2010 dress code discussed above, I find that
Walmart’s February 2013 dress code is facially unlawful be-
cause it is overbroad and unduly infringes on the rights of asso-
ciates to wear union insignia. Although the February 2013 dress
code differs from the July 2010 version in that the February 2013
dress code does not explicitly prohibit union insignia or other
logos, it remains overbroad because it requires logos to be
“small” and “non-distracting.” Those restrictions do not find
sufficient support in the Board’s case law36 – to the contrary, the
Board has upheld the right of employees to wear union insignia
of a variety of sizes, including insignia sizes much larger than
Walmart’s limitation that any logos must be smaller than associ-
ates’ 2 x 3 inch name tags. See, e.g., Serv-Air, Inc., 161 NLRB
382, 401–402, 416–417 (1966) (finding that the employer vio-
lated the Act by prohibiting assorted union insignia that in-
cluded: an improvised, crudely printed, paper badge that was 3
inches in diameter; a 2.25 inch red button; and 14-inch signs that

35 In this connection, I note that Walmart did not show that it would
be impractical for associates to don or doff union insignia when moving
between the public and nonpublic areas of the store (or when the store
opened or closed). A mere hypothetical impracticality with removing
union insignia does not justify a blanket, property-wide prohibition on
union insignia. See W San Diego, 348 NLRB at 374.
36 The Board has observed in the past that certain union insignia do
not interfere with a company’s public image because the union insignia
are small, neat and inconspicuous. See Nordstrom, Inc., 264 NLRB 698,
701 (1982) (noting that the union pin at issue was “muted in tone, dis-
crete in size and free from provocative slogans or mottos”); see also
United Parcel Service, 312 NLRB 596, 597 (1993), enf. denied 41 F.3d
1068 (6th Cir. 1994). It does not follow, however, that union insignia
must be small, neat or inconspicuous to be protected, particularly in
workplaces where (as here) the employer has not implemented a com-
prehensive public image business plan.
two employees taped to their backs), enfd. 395 F. 2d 557 (10th
Cir. 1968), cert. denied, 393 U.S. 840 (1968).
Furthermore, for the same reasons noted above regarding the
July 2010 dress code, Walmart fell short of demonstrating that
the logo restrictions in its February 2013 dress code are justified
by Walmart’s desire to foster a public image of providing excel-
lent customer service in a family-friendly environment. Specif-
ically, Walmart did not establish its “public image” justification
because Walmart: has not applied its February 2013 dress code
consistently; did not show that its February 2013 dress code is
part of a comprehensive public image business plan similar to
those that the Board has recognized in prior cases; and applies
its dress code not only to associates when they are in public areas
of the store, but also to associates when they are working in non-
public areas and when the store is closed to the public. (See Dis-
cussion and Analysis, Section (C)(2), supra.) Therefore, I find
that Walmart violated Section 8(a)(1) by maintaining its Febru-
ary 2013 dress code, a facially overbroad policy that unduly re-
stricted associates’ right to wear union insignia.37
3. Did Walmart violate Section 8(a)(1) by disparately and se-
lectively applying it to associate Raymond Bravo in August and
September 2012?
Separate and apart from its arguments that Walmart’s July
2010 and February 2013 California dress codes were facially un-
lawful, the General Counsel asserts that Walmart violated Sec-
tion 8(a)(1) of the Act by applying the July 2010 dress code se-
lectively and disparately against Raymond Bravo to restrict
Bravo’s protected activities. See Stabilus, Inc., 355 NLRB 836,
837–840 (2010) (employer violated Section 8(a)(1) of the Act by
enforcing its uniform policy in selective and overbroad manner
against union supporters, and in a disparate manner against Sec-
tion 7 activity).
I find that the evidentiary record supports the General Coun-
sel’s argument. Walmart generally did not object to associates’
attire (including Bravo’s attire) in 2012 when they wore noncom-
pliant clothing such as black shirts, khaki shorts or sweat pants.
Similarly, Walmart supervisors generally did not object when as-
sociate Victor Mendoza wore (in 2012): a blue shirt with the
words “Free Hugs” written in large white letters on the front of
the shirt; or a blue and white checkerboard flannel shirt.38 How-
ever, when Walmart supervisor Peggy Licina saw Bravo wearing
37 The General Counsel also argued that Walmart’s February 2013
dress California code is a facially unlawful work rule that reasonably
tends to chill employees’ exercise of their Sec. 7 rights. See GC Posttrial
Br. at 48–50; see also First Transit, Inc., 360 NLRB 619, 619 fn. 1 (2014)
(citing Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004),
and describing the legal standard that applies when such challenges to
work rules are at issue); Hitachi Capital America Corp., 361 NLRB 123,
124–125 (2014) (same, and noting that “the Board gives the rule a rea-
sonable reading and refrains from reading particular phrases in isola-
tion”). Since I have found that the February 2013 dress code is facially
unlawful because it improperly restricts employees’ Section 7 right to
wear union insignia, I decline to rule on the General Counsel’s alternate
(work rule) theory for why the February 2013 dress code is unlawful.
38 When Walmart supervisors did object upon seeing an associate
wearing a shirt with a noncompliant logo, Walmart’s addressed the issue
by permitting the associate to continue wearing the shirt, but with the
shirt turned inside out to hide the logo. (FOF, sec. II(C)(2).)
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a green OUR Walmart t-shirt (on August 21, 2012) and saw
Bravo wearing a white t-shirt with UFCW logos (on September
14, 2012), she suddenly became more strict with the dress code
and directed Bravo to remove the shirts. Notably, in each in-
stance, Licina did not object to Bravo continuing to wear other
clothing (a black thermal shirt, and khaki shorts) that did not
comply with the dress code. (FOF, sec. II(C)(3).) By applying
the July 2010 dress code in this disparate manner (i.e., by invok-
ing the dress code when Bravo wore noncompliant clothing with
OUR Walmart or UFCW logos, but not when Bravo or other as-
sociates wore other noncompliant clothing), Walmart violated
Section 8(a)(1) of the Act as alleged in paragraph 6(e) of the
complaint.
D. The Richmond Store—Alleged Unlawful Threats
1. Complaint allegations and applicable legal standard
The General Counsel alleges that Walmart (through field pro-
ject supervisor Van Riper) violated Section 8(a)(1) of the Act by:
(a) on or about October 11, threatening associates that he (Van
Riper) would shoot the union when some associates returned
from striking at Walmart’s Bentonville, Arkansas headquarters
(GC Exh. 1(bb), par. 6(b)(1));
(b) on or about October 12, threatening associates that:
Walmart would never be union and thereby informing associ-
ates that it would be futile for them to select OUR Walmart as
their collective-bargaining representative (GC Exh. 1(bb), par.
6(b)(2)(A));39
(a) on or about October 12, threatening associates by telling
them that the associates returning from strike would be looking
for new jobs (GC Exh. 1(bb), par. 6(b)(2)(B)); and
(b) on or about October 12, prohibiting associates from speak-
ing to associates returning from strike about the returning strik-
ers’ activities on behalf of OUR Walmart (GC Exh. 1(bb), par.
6(b)(2)(C)).
As previously noted, the test for evaluating whether an em-
ployer’s conduct or statements violate Section 8(a)(1) of the Act
is whether the statements or conduct have a reasonable tendency

39 I am not persuaded by Respondent’s argument that I should dismiss
this futility allegation on the ground that it is not closely related to the
allegations in an underlying unfair labor practice charge. (See R.
Posttrial Br. at 31.) To decide whether complaint allegations are closely
related to the allegations in a timely filed charge, the Board evaluates
whether the complaint allegations are factually and legally related to the
charge. Redd-I, Inc., 290 NLRB 1115, 1116 (1988).
In an unfair labor practice charge that was timely filed on November
2, OUR Walmart asserted that Walmart violated the Act by: threatening
associates on or about October 9 that it would fire all OUR Walmart
members who walked off the job in a workplace action; and, on or about
October 11, telling associates not to speak to associates who participated
in a strike. (See GC Exh. 1(c).) I find that the futility allegation in the
complaint is factually related to the November 2 charge because the com-
plaint alleges (and clarifies) that Van Riper made statements about futil-
ity in the same October 12 meeting in which he threatened that associates
returning from strike would be looking for new jobs, and prohibited as-
sociates from speaking to the returning strikers about their activities on
behalf of OUR Walmart.
to interfere with, restrain or coerce union or protected activities.
Farm Fresh Company, Target One, LLC, 361 NLRB 848, 861
2. Was Van Riper one of Walmart’s agents?
As an initial matter, Walmart denies that Van Riper was one
of its supervisors or agents, as those terms are defined in Board
precedent. On the question of whether Van Riper was Walmart’s
agent, “[t]he Board applies the common law principles of agency
in determining whether an employee is acting with apparent au-
thority on behalf of the employer when that employee makes a
particular statement or takes a particular action.” Pan Oston Co.,
336 NLRB 305, 305 (2001) (collecting cases and other support-
ing authority). “Apparent authority results from a manifestation
by the principal to a third party that creates a reasonable belief
that the principal has authorized the alleged agent to perform the
acts in question.” Id. at 305–306. “Either the principal must
intend to cause the third person to believe the agent is authorized
to act for him, or the principal should realize that its conduct is
likely to create such a belief.” Id. at 306. “The Board’s test for
determining whether an employee is an agent of the employer is
whether, under all of the circumstances, employees would rea-
sonably believe that the employee in question was reflecting
company policy and speaking and acting for management,” tak-
ing into account “the position and duties of the employee in ad-
dition to the context in which the behavior occurred.” Id. “The
Board may find agency where the type of conduct that is alleged
to be unlawful is related to the duties of the employee. . . . In
contrast, the Board may decline to find agency where an em-
ployee acts outside the scope of his or her usual duties.” Id.
“Although not dispositive, the Board will consider whether the
statements or actions of an alleged employee agent were con-
sistent with statements or actions of the employer. The Board has
found that such consistencies support a finding of apparent au-
thority.” Id. And finally, the Board has emphasized that “an
employee may be an agent of the employer for one purpose but
not another.” Id.
Applying that standard, I find that Van Riper was one of
Walmart’s agents.40 Walmart gave Van Riper the responsibility
to manage the work that the remodeling crew performed, and the
responsibility to keep the remodeling project moving forward.
I also find that the futility allegation in the complaint is legally related
to the November 2 charge because it was part of the remarks that Van
Riper made to associates on October 12, essentially in response to the
buzz in the workplace that arose when associates returned from a strike
and announced their unconditional offer to return to work a few hours
before the October 12 meeting. As the Board has explained, the “legally
related” prong of the Redd-I test is satisfied “where the two sets of alle-
gations demonstrate similar conduct, usually within the same time period
with a similar object, or there is a causal nexus between the allegations
and they are part of a chain or progression of events, or they are part of
an overall plan to undermine union activity.” SKC Electric, Inc., 350
NLRB 857, 858 (2007) (citing Carney Hospital, 350 NLRB 627, 630
(2007).) Since the futility allegation in the complaint satisfies both
prongs of the Redd-I test (as it demonstrates conduct that is similar to the
other alleged coercive statements that Van Riper made at the October 12
meeting), I will consider the merits of that allegation.
40 Since I find that Van Riper was one of Walmart’s agents during the
relevant time period, I need not address the parties’ arguments about
whether Van Riper was a supervisor under Section 2(11) of the Act.
WAL-MART STORES, INC. 35
Consistent with those responsibilities, Van Riper held daily
meetings with remodeling associates, at which he announced the
tasks that they would be working on for the day. Van Riper also
trained associates on how to carry out various assignments, and
had the discretion to assign particular associates to daily tasks as
he deemed necessary to complete the work as efficiently as pos-
sible. In addition, although Richmond store managers generally
had authority over remodeling associates in personnel matters,
when members of the remodeling team returned from strike and
made their unconditional offer to return to work on October 11,
Richmond store assistant manager Atlas Chandra called Van
Riper over to handle the matter, thereby indicating that Van
Riper was the proper recipient of the associates’ offers to return
to work.41 (FOF, Section II(D), (E)(2).) Given the extent of Van
Riper’s responsibilities, associates would reasonably believe that
Van Riper had the authority to speak and act as Walmart’s agent
regarding the associates assigned to the remodeling project. See
SAIA Motor Freight, Inc., 334 NLRB 979, 979 (2001) (finding
that a foreman was an agent vested with apparent authority, and
noting that the foreman, inter alia, assigned and directed the em-
ployees’ work, and conducted employee meetings at which he
discussed employment-related matters); Cooper Industries, 328
NLRB 145, 146 (1999) (finding that three hourly paid “facilita-
tors” were agents who had actual and apparent authority to act
on the employer’s behalf because the employer vested the facil-
itators with authority to implement the employer’s policies on
the production floor, and because the employer held out the fa-
cilitators as the “primary conduits for communications between
management and team employees on a wide variety of employ-
ment and production matters”), enfd. 8 Fed. Appx. 610 (9th Cir.
2001).)
3. Did Walmart (through Van Riper) make statements or en-
gage in conduct that violated Section 8(a)(1)?
Having established that Van Riper was Walmart’s agent, I
now turn to the merits of the allegations that Van Riper made
four statements that violate Section 8(a)(1). At the outset, I note
that Walmart did not call Van Riper to testify at trial, even
though he remained one of Walmart’s associates at the time.
Furthermore, although the record includes a written statement
that Van Riper provided when Lilly interviewed him about his
interactions with the Richmond store remodeling crew, Van
Riper’s written statement does not address any of the statements
at issue here. Thus, the only questions are whether the General
Counsel’s witnesses were credible in their testimony about what

41 I have considered the fact that Van Riper also tried to pass the buck
when Chandra directed the returning strikers to speak to Van Riper. The
fact remains, however, that when Chandra instructed associates to speak
to Van Riper when the associates offered to return to work, a reasonable
associate would have concluded that Van Riper had the authority to han-
dle the matter (based on Chandra’s actions, and based on Van Riper’s
general authority over the remodeling team).
42 Contrary to Walmart’s argument in its posttrial brief, Van Riper’s
remark that “if it were up to me, I’d shoot the union” cannot be excused
as a mere statement of opinion, a flip or intemperate remark, or hyperbole
that no reasonable employee could have taken seriously. See R. Posttrial
Br. at 23–27; see also, e.g., Trailmobile Trailer, LLC, 343 NLRB 95, 95
(2004) (noting that flip and intemperate remarks are protected as free
speech by Section 8(c) of the Act); Mid-State, Inc., 331 NLRB 1372,
Van Riper said, and if so, whether Van Riper’s statements vio-
lated the Act.
As indicated in the findings of fact, I credited witness Mabel
Tsang’s testimony about the specific words that Van Riper used
when associates presented him with a return to work letter on
October 11. Tsang was actively keeping track of Van Riper’s
behavior and comments when he told associates “If it were up to
me, I’d shoot the union,” and Tsang’s testimony on that point
was credible and was corroborated by Raymond Bravo’s testi-
mony and Demario Hammond’s written statement (given during
Walmart’s investigation of Van Riper’s interactions with associ-
ates). Although Walmart points out that other witnesses differed
from Tsang about Van Riper’s exact words, Tsang’s account re-
mains credible, and I note in any event that the other witnesses
all agreed that Van Riper made a statement that threatened asso-
ciates with physical violence because they supported a union.42
(FOF, sec. II(E)(2).) I therefore find that Walmart, through Van
Riper’s remarks on October 11, violated Section 8(a)(1) of the
Act as alleged in the complaint. See Farm Fresh Company, Tar-
get One, LLC, 361 NLRB 848, 861 (explaining that an em-
ployer’s statements or conduct violate Section 8(a)(1) if they
have a reasonable tendency to interfere with, restrain or coerce
union or protected activities).
Lee’s testimony about Van Riper’s statements at the October
12 meeting was credible and was not rebutted by any other evi-
dence. As a result, the evidentiary record establishes that Van
Riper told associates that: Walmart would never unionize; the
remodeling crew should not talk to returning strikers about the
situation; and that the returning strikers would be looking for
new jobs. (FOF, sec. II(E)(2).) Based on well-established Board
precedent, each of those statements violated Section 8(a)(1) of
the Act. See Farm Fresh Co., Target One, LLC, 361 NLRB 848,
865 (explaining that an employer violates Section 8(a)(1) if it
communicates to employees that they risk their job security if
they support a union); Pacific Coast M.S. Industries, 355 NLRB
1422, 1438–1439 (2010) (explaining that an employer violates
Section 8(a)(1) when it permits employees to discuss nonwork-
related subjects during worktime, but prohibits employees from
discussing union-related matters); Goya Foods, 347 NLRB
1118, 1128–1129 (2006), enfd 525 F.3d 1117 (11th Cir. 2008)
(explaining that an employer may not tell employees that it
would be futile for them to support a union).
In sum, each of Van Riper’s statements discussed here had a
reasonable tendency to interfere with, restrain or coerce
1372 (2000) (supervisor’s statements to employees about kicking a union
representative’s ass, or filling the union representative’s butt with lead
did not violate the Act, because the context for those statements was such
that the statements would not reasonably tend to coerce employees in the
exercise of their Section 7 rights). Instead, the evidentiary record shows
that out of anger after having to deal with associates who were returning
from a strike, Van Riper essentially communicated to associates that fu-
ture protected activity could put associates at risk for unspecified repris-
als (even if it was clear that he would not actually “shoot” OUR Walmart
supporters). As such, Van Riper’s statement violated Section 8(a)(1) of
the Act. See Jax Mold & Machine, Inc., 255 NLRB 942, 946 (1981)
(supervisor’s remarks about shooting union supporters were made in an-
ger and were believable, and thus violated Section 8(a)(1) of the Act),
enfd. 683 F.2d 418 (11th Cir. 1982).
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
associates in the exercise of their Section 7 rights. Accordingly,
I find that the General Counsel established that Walmart
(through Van Riper) violated Section 8(a)(1) of the Act as al-
leged in paragraph 6(b)(1)–(2) of the complaint.
E.. The Richmond Store—Alleged Unlawful
Disciplinary Coaching
1. Complaint allegations and applicable legal standard
Last, the General Counsel alleges that from November 4–7,
Walmart unlawfully issued two-level coachings to associates
Raymond Bravo, Semetra Lee, Demario Hammond, Misty Tan-
ner, Markeith Washington and Timothy Whitney because those
associates engaged in a protected work stoppage on November
2, and to discourage associates from engaging in those or other
protected activities. (GC Exh. 1(bb), pars. 7(b), (d)–(e).)
To establish that an adverse employment action violates Sec-
tion 8(a)(1) of the Act, the General Counsel must demonstrate
that: the employee engaged in activity that is “concerted” within
the meaning of Section 7 of the Act; the respondent knew of the
concerted nature of the employee’s activity; the concerted activ-
ity was protected by the Act; and the respondent’s decision to
take adverse action against the employee was motivated by the
employee’s protected, concerted activity. Relco Locomotives,
358 NLRB No. 37, slip op. at 12, 17; see also id. at 14 (observing
that “[e]vidence of suspicious timing, false reasons given in de-
fense, failure to adequately investigate alleged misconduct, de-
partures from past practices, tolerance of behavior for which the
employee was allegedly fired, and disparate treatment of the dis-
charged employees all support inferences of animus and discrim-
inatory motivation”). If the General Counsel succeeds in making
an initial showing of discrimination, then the respondent has the
opportunity to demonstrate, by a preponderance of the evidence,
that it would have taken the adverse employment action against
the employee even in the absence of the employee’s protected
concerted activities. Id. at 12.
The Board has held that while on-the-job work stoppages may
be a form of economic pressure that is protected under Section 7
of the Act, not all work stoppages are protected because at some
point “an employer is entitled to exert its private property rights
and demand its premises back.” Quietflex Mfg. Co., 344 NLRB
1055, 1056 (2005) (quoting Cambro Mfg. Co., 312 NLRB 634,
635 (1993). “To determine at what point a lawful on-site work
stoppage loses its protection, a number of factors must be

43 Walmart suggests that instead of considering this matter under Qui-
etflex, I should consider this case under Restaurant Horikawa, 260
NLRB 197 (1982), and similar cases. (See R. Posttrial Br. at 61–63.)
The Board’s decision in Restaurant Horikawa, however, does not in-
volve a work stoppage. Instead, Restaurant Horikawa involved a
demonstration that began outside of a restaurant, and then lost the pro-
tection of the Act when thirty demonstrators (including one off duty em-
ployee) entered the restaurant for 10–15 minutes and “seriously dis-
rupted” the business by “parading boisterously about during the dinner
hour when patronage was at or near its peak” before confronting the res-
taurant manager in the restaurant’s administrative offices. Restaurant
Horikawa, 260 NLRB 197, 197–198 (1982); see also Thalassa Res-
taurant, 356 NLRB No. 129, slip op. at 1 fn. 3 (2011) (agreeing that an
off duty restaurant employee engaged in protected activity when he and
a group of nonemployees entered the restaurant during evening dining
considered, and the nature and strength of competing employee
and employer interests must be assessed.” Quietflex, 344 NLRB
at 1056. Those factors include:
(1) the reason the employees have stopped working;
(2) whether the work stoppage was peaceful;
(3) whether the work stoppage interfered with produc-
tion, or deprived the employer access to its property;
(4) whether employees had adequate opportunity to pre-
sent grievances to management;
(5) whether employees were given any warning that they
must leave the premises or face discharge;
(6) the duration of the work stoppage;
(7) whether employees were represented or had an estab-
lished grievance procedure;
(8) whether employees remained on the premises beyond
their shift;
(9) whether employees attempted to seize the employer’s
property; and
(10) the reason for which employees were ultimately dis-
charged.
Id. at 1056–1057; see also Los Angeles Airport Hilton Hotel &
Towers, 360 NLRB 1080,1081–1083 (2014) (citing Quietflex
Mfg. Co.).
2. Did Walmart violate the Act when it issued disciplinary
coachings to the six associates who participated in the Novem-
ber 2 work stoppage?
The General Counsel and Charging Party maintain that since
Bravo, Hammond, Lee, Tanner, Washington and Whitney en-
gaged in a protected work stoppage on November 2, Walmart
violated the Act when it disciplined them for “inappropriate con-
duct” and “unauthorized use of company time” based on their
actions during the work stoppage. To address the merits of that
claim, I now consider the ten Quietflex factors to assess whether
the work stoppage was protected by the Act.43
Factor one (the reason the employees stopped working): The
evidentiary record shows that the six associates stopped working
because of their ongoing concerns about Van Riper and his treat-
ment of associates. In that connection, I note that the associates
did not receive a response from Walmart when they submitted a
letter outlining their concerns about Van Riper on October 17,
two weeks before the work stoppage. To be sure, as Walmart
observes, associates also hoped to use the work stoppage to
hours to deliver a letter protesting the employer’s alleged labor law vio-
lations; the Board noted that there was no evidence that the group: dis-
turbed the handful of customers present, blocked the egress or ingress of
anyone, was violent or caused damage, or prevented any other employees
from performing their work).
Although I take Walmart’s point that the work stoppage in this case
was augmented from 6 to 6:52 a.m. by assorted non-associates who en-
tered the Richmond Walmart to support the associates in their work stop-
page, I find that facts of that nature are best considered within the Quiet-
flex framework because it is undisputed that the six associates were on
duty and were engaged in a work stoppage while in the store. Walmart’s
arguments about any disruption that the associates and their supporters
caused relate to the Quietflex factors and the nature and strength of the
associates’ and Walmart’s interests.
WAL-MART STORES, INC. 37
publicize OUR Walmart and its efforts to advocate for various
changes in working conditions, benefits and workplace policies
at Walmart. It is also clear that associates selected November 2,
the day of the Richmond store grand reopening, as the day for
the work stoppage because it would be a good day to publicize
their concerns and OUR Walmart’s goals to a large audience.
(FOF, Section II(E)(3), (F)(1), (4).)
Factor two (whether the work stoppage was peaceful): Based
on the evidentiary record, which includes extensive video foot-
age of the work stoppage inside the Richmond Walmart and pro-
test activities that occurred outside the store, I find that the work
stoppage was peaceful. There is no evidence that associates or
their supporters were violent or unruly in any manner. (FOF,
sec. II(F)(4)–(5).)
Factor three (whether the work stoppage interfered with pro-
duction or deprived the employer access to its property): During
the portion of the work stoppage that occurred before the store
opened at 6 a.m., the work stoppage had a minimal effect on
Walmart’s operations. Walmart had access to all of its property
(including the customer service area), and the production of
other associates was only affected to the limited extent that
Walmart had to streamline its remodeling crew work to focus on
preparing store aisles and shelves for the grand reopening (e.g.,
by ensuring that all freight was removed from the floor and
properly stored). (FOF, Section II(F)(4); see also Los Angeles
Airport Hilton Hotel & Towers, 360 NLRB 1080, 1085 (2014)
(explaining that for purposes of factor 3 in the Quietflex analysis,
the focus is on “whether striking employees interfere with pro-
duction or the provision of services by preventing other employ-
ees who are working from performing their duties,” since strik-
ing employees do not forfeit the Act’s protection by withholding
their own services) (emphasis in original).
Once the store opened, Walmart continued to have access to
its property and maintain production even though 10–14 non-as-
sociates entered the store to support the work stoppage periodi-
cally between 6 and 6:52 a.m. Apart from a 3–minute visit to
Action Alley that did not cause disruption, the work stoppage
remained confined to the customer service area, leaving the rest
of the store unaffected. As for the customer service area, the
record shows that Walmart associates had access to the customer
service counter as needed during the work stoppage (notwith-
standing customer service associate Maggiora’s subjective deci-
sion to avoid the area, and the 2–minute period when protesters
blocked the front of the customer service counter). Furthermore,
the record does not show that any customers attempted to access,
or were prevented from accessing (due to noise, crowding or oth-
erwise), the customer service area, which is not surprising since
the customer service area generally does not open until 7 a.m.
and only has limited traffic at that early hour. (FOF, sec.
II(F)(4).)
Finally, I do not give weight to the fact that the work stoppage
occurred on the same day as the Richmond store’s grand reopen-
ing. Although Walmart maintains that the decision to hold the
work stoppage during the grand reopening made the work stop-
page more disruptive, the Board has held that “the protected na-
ture of [a] work stoppage is not vitiated by the effectiveness of
its timing.” Atlantic Scaffolding Co., 356 NLRB 21, 23 (2011)
(explaining that the basic principles underlying the Act include
the right of employees to withhold their labor in seeking to im-
prove the terms of their employment, and the right to use eco-
nomic weapons such as work stoppages as part of the free play
of economic forces that should control collective bargaining).
Factor four (whether employees had adequate opportunity to
present grievances to management): The six associates who par-
ticipated in the work stoppage presented their grievances about
Van Riper to Walmart on October 17, over two weeks before the
work stoppage. They did not receive a response from Walmart,
however, until the morning of the work stoppage, when Lilly and
Jankowski (before and during the work stoppage) offered to meet
with the associates individually under Walmart’s open door pol-
icy to discuss the associates’ concerns. It is undisputed that
Lilly, citing Walmart’s open door policy and concerns about em-
ployee confidentiality, refused the associates’ requests to meet
with her as a group. It is also undisputed, however, that Walmart
ultimately used its open door policy to meet with willing associ-
ates on an individual basis from November 2–7 to hear their con-
cerns about Van Riper.
For purposes of the Quietflex analysis, the Board has indicated
that an open door policy may provide an adequate opportunity
for employees to present grievances to management, particularly
where the evidentiary record shows that the employer has an es-
tablished past practice of using its open door policy to consider
and resolve group grievances. See HMY Roomstore, 344 NLRB
963, 963 fn. 2 & 965 (2005) (citing Cambro Mfg. Co., 312 NLRB
at 636). However, the Board has also indicated that if an em-
ployer’s open door policy has been used to address only individ-
ual complaints of employees, and not group complaints, then the
open door policy carries less weight. See HMY Roomstore, 344
NLRB at 963 fn. 2 & 965.
Here, I find that Walmart’s open door policy carries less
weight as an opportunity for the work stoppage participants to
present their grievances to management because, as Walmart es-
sentially admits, the open door policy does not allow for group
action. (FOF, sec. II(F)(3)–(4).)
Factor five (whether employees were given any warning that
they must leave the premises or face discipline): It is undisputed
that Walmart did not warn the six associates that they must leave
the store or face discipline. Instead, the record shows that when
Walmart, assisted by two police officers who were present, in-
structed the associates to leave the store, the associates agreed to
do so, and left the store after clocking out. (FOF, Section
II(F)(4).)
Factor six (the duration of the work stoppage): The work
stoppage in this case began at 5:24 a.m. and ended at 6:52 a.m.,
and thus lasted for a total of 88 minutes. The store was open to
the public for 52 minutes of the work stoppage (i.e., from 6 to
6:52 a.m.). (FOF, sec. II(F)(4).)
Factor seven (whether employees were represented or had an
established grievance procedure): The six associates that par-
ticipated in the work stoppage were members of OUR Walmart,
but were not represented in a formal sense (i.e., for collective-
bargaining purposes) by OUR Walmart, the UFCW, or any other
union. As noted above (in connection with factor four), while
Walmart did offer associates the opportunity to voice their con-
cerns about Van Riper individually to Lilly and Jankowski
through Walmart’s open door policy, Walmart does not have an
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
established grievance procedure for group complaints. (FOF,
sec. II(A), (E)(2), (F)(1), (3)–(4).)
Factor eight (whether employees remained on the premises
beyond their shift): It is undisputed that all six associates clocked
out and left the inside of the store by 6:52 a.m., before the end of
their shifts. Although at least two of the associates subsequently
joined OUR Walmart protest activities that were ongoing outside
of the Richmond store, the evidentiary record shows that both
mall security personnel and Walmart managers accepted that the
protesters had a right to continue their activities outside the store.
(FOF, sec. II(F)(4)–(5).)
Factor nine (whether employees attempted to seize the em-
ployer’s property): There is no evidence that associates at-
tempted to seize Walmart’s property during the work stoppage.
Walmart associates who did not participate in the work stoppage
remained free to continue working throughout their shifts, and
once the store opened, customers had full access to all areas of
the store. (FOF, Section II(F)(4).)
Factor ten (the reason for which employees were ultimately
disciplined): Walmart issued a two-level disciplinary coaching
to each of the six associates who participated in the work stop-
page, stating that each of the six associates engaged in inappro-
priate conduct and unauthorized use of company time. In sup-
port of the disciplinary coachings, Walmart explicitly referred to
the associates’ activities during the work stoppage, noting that
the associates abandoned work, refused to return to work after
being told to do so, and engaged in a sit-in on the sales floor that
(in Walmart’s view) disrupted business and customer service op-
erations during the Richmond store grand reopening event.44
(FOF, sec. II(G)(2).)
Considering the ten Quietflex factors as a whole, I find that the
November 2 work stoppage is protected by the Act. Factors 1,
2, 3, 5, 6, 8, 9 and 10 clearly favor the six associates. The asso-
ciates stopped working to protest Van Riper’s treatment of asso-
ciates on the remodeling crew, and also to protest alleged retali-
ation and unfair labor practices. All of those reasons were fair
game for concerted action.45 See Cambro Mfg. Co., 312 NLRB
at 636 (observing that employees were entitled to persist for a
reasonable period of time in a peaceful in-plant work stoppage
that focused on specific, job-related complaints and caused little
disruption of production by those who continued to work). In
addition, the work stoppage: was peaceful; had limited (if any)
impact on Walmart’s operations and access to its property; ended
promptly when Walmart and the associates agreed that the asso-
ciates would clock out and leave the store (before their shifts
ended); and was limited in duration (88 minutes).46 See Los

44 Walmart asserted that the work stoppage was particularly disrup-
tive because once the store opened at 6 a.m., non-associates joined the
six associates in protesting inside the store. (See R. Posttrial Br. at 61–
62.) Although the non-associates added to the size of the protest inside
the store (adding up to 10–13 people to the group at times), I do not find
that the work stoppage/protest became unduly disruptive after the non-
associates arrived. To the contrary, the non-associates remained in the
customer service area (apart from two non-associates who joined the six
associates for their 3–minute visit to Action Alley), and generally limited
their activities to taking and posing for photographs, holding signs, and
providing a representative to negotiate the agreement with Walmart that
Angeles Airport Hilton Hotel & Towers, 360 NLRB 1080, 1084
and fn. 16 (noting that employees are entitled to engage in work
stoppages for a reasonable period of time, and collecting cases
where work stoppages of up to 5-1/2 hours were protected by the
Act); HMY Roomstore, 344 NLRB at 963 fn. 2, 965 (45–60 mi-
nute work stoppage was protected, in part because the employees
complied immediately when the employer asserted its property
rights and directed the employees to leave the store). It is also
clear that Walmart disciplined associates because they partici-
pated in the work stoppage. Although Walmart asserted that the
discipline was based on “inappropriate conduct” and “unauthor-
ized use of company time,” the discipline paperwork is clear that
Walmart disciplined the six associates based on their protected
work stoppage activities (e.g., abandoning work, refusing to re-
turn to work, and engaging in the work stoppage). (See FOF,
sec. G)(2); see also Quietflex Mfg. Co., 344 NLRB at 1055 fn. 1
(noting that refusing to work during a work stoppage is protected
activity); Cambro Mfg. Co., 312 NLRB at 636–637 (same, but
noting that after a reasonable period of time the employer may
instruct employees to either return to work or clock out and leave
the premises).)
The remaining Quietflex factors (factors 4 and 7, which both
relate to grievance procedures) are neutral, at best. Although
Walmart has an established open door policy that it offered to
the associates during the work stoppage, that offer was some-
what belated since it came on the day of the work stoppage, more
than 2 weeks after the associates submitted their October 17 let-
ter calling for Walmart to take action to address Van Riper’s con-
duct. In addition, consistent with Walmart’s past practices with
open door meetings, Lilly only offered to meet with associates
on an individual basis—thus, Lilly’s offer to meet under the open
door policy was arguably inadequate, since the offer was predi-
cated on the associates giving up their right to act as a group.
Compare HMY Roomstore, 344 NLRB at 963 fn. 1, 965 (work
stoppage was valid despite the employer’s open door policy,
which had been used to resolve individual problems, but not
group problems) with Cambro Mfg. Co., 312 NLRB 634, 636
(1993) (giving weight to the employer’s open door policy be-
cause the employer had an established past practice of allowing
employees to meet as a group with the company president).
Viewing the 10 Quietflex factors as a whole, I find that the asso-
ciates’ right to participate in their (limited) work stoppage out-
weighs Walmart’s rights as the property owner, and I accord-
ingly find that the November 2 work stoppage was protected by
the Act.
Since the November 2 work stoppage was protected by the
the six associates would clock out and leave the store (thereby ending the
work stoppage). (FOF, Section II(F)(4).)
45 I am not persuaded by Walmart’s contention that the work stop-
page/protest was merely a publicity vehicle for OUR Walmart. While
publicity was certainly a bonus for OUR Walmart if it materialized, that
does not change the fact that the work stoppage participants raised as-
sorted concerns that relate to the terms and conditions of their employ-
ment (as noted above).
46 Protest activities did continue outside of the store until 9:07 a.m.
Those activities, however, occurred on mall property, and thus did not
infringe on Walmart’s private property rights. (See FOF, Section
II(F)(4)–(5).)
WAL-MART STORES, INC. 39
Act, Walmart could not discipline associates for participating in
the work stoppage without running afoul of Section 8(a)(1) of
the Act. Walmart, however, did just that, because as noted
above, the discipline paperwork demonstrates Walmart disci-
plined the six associates based on their protected work stoppage
activities (e.g., abandoning work, refusing to return to work, and
engaging in the work stoppage). In light of the strong prima facie
case that Walmart unlawfully disciplined the six associates for
engaging in the protected November 2 work stoppage, and the
lack of any evidence that Walmart would have disciplined the
six associates even in the absence of their participation in the
work stoppage, I find that Walmart violated Section 8(a)(1) of
the Act when it disciplined Bravo, Hammond, Lee, Tanner,
Washington and Whitney. See Molon Motor & Coil Corp., 302
NLRB 138, 139 (1991), enfd. 965 F.2d 523 (7th Cir. 1992).
CONCLUSIONS OF LAW
1. By, in or about the second week of July 2012, implicitly
threatening an associate by asking the associate if she was afraid
Walmart might close its Placerville, California store if too many
associates joined OUR Walmart, Walmart violated Section
8(a)(1) of the Act.
2. By at least until September 14, 2012, maintaining a July
2010 dress code for California associates that was facially over-
broad because it unduly restricted associates’ right to wear union
insignia, Walmart violated Section 8(a)(1) of the Act.
3. By, since about February 2013, maintaining a February
2013 dress code for California associates that was facially over-
broad because it unduly restricted associates’ right to wear union
insignia, Walmart violated Section 8(a)(1) of the Act.
4. By, on or about August 21 and September 14, 2012, selec-
tively and disparately applying its July 2010 dress code for Cal-
ifornia associates to Richmond, California store associate Ray-
mond Bravo when he wore clothing with OUR Walmart or
UFCW logos, but not when Bravo or other associates wore other
clothing that did not comply with the dress code, Walmart vio-
lated Section 8(a)(1) of the Act.
5. By, or about October 11, threatening Richmond, California
store associates (through Van Riper) that it would “shoot the un-
ion,” Walmart violated Section 8(a)(1) of the Act.
6. By, on or about October 12, threatening Richmond, Cali-
fornia store associates that Walmart would never be union and
thereby informing associates that it would be futile for them to
select OUR Walmart as their collective-bargaining representa-
tive, Walmart violated Section 8(a)(1) of the Act.
7. By, on or about October 12, threatening Richmond, Cali-
fornia store associates by telling them that the associates return-
ing from strike would be looking for new jobs, Walmart violated
Section 8(a)(1) of the Act.
8. By, on or about October 12, prohibiting Richmond, Cali-
fornia store associates from speaking to associates returning
from strike about the returning strikers’ activities on behalf of
OUR Walmart, Walmart violated Section 8(a)(1) of the Act.
9. By, on or about November 4–7, unlawfully issuing two-
level disciplinary coachings to associates Raymond Bravo,
Semetra Lee, Demario Hammond, Misty Tanner, Markeith
Washington and Timothy Whitney because those associates en-
gaged in a protected work stoppage on November 2, and to
discourage associates from engaging in those or other protected
activities, Walmart violated Section 8(a)(1) of the Act.
10. By committing the unfair labor practices stated in conclu-
sions of law 1–9 above, Walmart has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
11. I recommend dismissing the complaint allegations that are
not addressed in the Conclusions of Law set forth above (to the
extent that those allegations have not been severed from this con-
solidated case).
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the poli-
cies of the Act. Since certain unfair labor practices only apply
to particular stores, I will require Respondent to post separate
notices that apply to: Placerville, California store 2418; Rich-
mond, California store 3455; and all California stores.
I will also require Respondent, to rescind its unlawful July
2010 and February 2013 California dress codes. Respondent
may comply with this aspect of my order by rescinding the un-
lawful dress code provision(s) and republishing a California em-
ployee dress code at its California stores without the unlawful
provision. Since republishing the California employee dress
code for all California stores could be costly, Respondent may
supply the associates at its California stores either with an insert
to the California dress code stating that the unlawful policy has
been rescinded, or with a new and lawfully worded policy on
adhesive backing that will cover the unlawfully broad policy, un-
til it republishes the California dress code either without the un-
lawful provision or with a lawfully-worded policy in its stead.
Any copies of the California dress codes that are printed with the
unlawful July 2010 and/or February 2013 language must include
the insert before being distributed to associates at Respondent’s
California stores. World Color (USA) Corp., 360 NLRB 227.
229 (2014) (citing 2 Sisters Food Group, 357 NLRB 1816, 1823
fn. 32 (2011); Guardsmark, LLC, 344 NLRB 809, 812 & fn. 8
(2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007).
In addition to the standard remedies that I described above,
the General Counsel requested that I also order Respondent to
have a representative read a copy of the notice to associates in
each of its California stores during work time. The Board has
required that a notice be read aloud to employees where an em-
ployer’s misconduct has been sufficiently serious and wide-
spread that reading of the notice will be necessary to enable em-
ployees to exercise their Section 7 rights free of coercion. This
remedial action is intended to ensure that employees will fully
perceive that the respondent and its managers are bound by the
requirements of the Act. Farm Fresh Co., Target One, LLC, 361
NLRB 848, 868.
Applying that standard, I do not find that Respondent’s mis-
conduct in this case was sufficiently serious and widespread to
warrant an order requiring the notice to be read aloud to employ-
ees by one of Respondent’s representatives at each of its Califor-
nia stores. Although I have found that Respondent committed
two unfair labor practices that affect all California stores (main-
taining two facially overbroad dress codes), this case does not
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
involve widespread misconduct at all of Respondent’s California
stores, and I find that a standard notice posting remedy will be
sufficient to address those violations and ensure that associates
are advised of their Section 7 rights.
I also find that a standard notice posting remedy will be suffi-
cient to address the violations at Placerville, California store
2418. Only one additional unfair labor practice occurred at the
Placerville store in this case—the unlawful threat of plant clo-
sure. That violation may also be addressed with a standard no-
tice posting.
However, I do find that a notice reading remedy is warranted
at Richmond, California store 3455 in this case. Respondent’s
misconduct at the Richmond, California store was sufficiently
serious and widespread to warrant an order requiring the notice
to be read aloud to associates in the presence of the manager of
store 3455. The evidentiary record shows that in addition to
maintaining two unlawfully overbroad dress codes, Respondent
repeatedly took swift action against Richmond, California store
associates who supported OUR Walmart, including: twice di-
recting Bravo to remove union insignia in a disparate and selec-
tive manner; threatening associates who participated in a strike
in October 2012; threatening other associates that the returning
strikers would be looking for new jobs; directing associates not
to speak to returning strikers about their activities in support of
OUR Walmart; telling associates that it would be futile to select
OUR Walmart as their collective-bargaining representative; and
issuing unlawful two-level disciplinary coachings to six associ-
ates who participated in a protected work stoppage. In light of
those serious and widespread actions, I agree that a notice read-
ing is necessary to assure employees at Richmond, California
store 3455 that they may exercise their Section 7 rights free of
coercion. Accordingly, I will require that the remedial notice in
this case be read aloud to employees in English and Spanish by
Respondent’s store 3455 manager or, at Respondent’s option, by
a Board agent in Respondent’s store 3455 manager’s presence.
Farm Fresh Co., Target One, LLC, 361 NLRB 848, 868.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended47
ORDER
Respondent, Walmart Stores, Inc., Bentonville, Arkansas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening associates by asking them if they are afraid
Walmart might close Placerville, California store 2418 if too
many associates join OUR Walmart.
(b) Maintaining a July 2010 dress code for California associ-
ates that is facially overbroad because it unduly restricts associ-
ates’ right to wear union insignia.
(c) Maintaining a February 2013 dress code for California as-
sociates that is facially overbroad because it unduly restricts as-
sociates’ right to wear union insignia.
(d) Selectively and disparately applying its July 2010 dress
code for California associates to Richmond, California store
3455 associates when they wear clothing with OUR Walmart or

47 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
UFCW logos, but not when they wear other clothing that does
not comply with the dress code.
(e) Threatening Richmond, California store associates that it
would “shoot the union.”
(f) Threatening Richmond, California store associates that
Walmart would never be union and thereby informing associates
that it would be futile for them to select OUR Walmart as their
collective-bargaining representative.
(g) Threatening Richmond, California store associates by tell-
ing them that associates returning from strike would be looking
for new jobs.
(h) Prohibiting Richmond, California store associates from
speaking to associates returning from strike about the returning
strikers’ activities on behalf of OUR Walmart.
(i) Issuing disciplinary coachings to associates because they
engaged in a protected work stoppage, and to discourage associ-
ates from engaging in those or other protected activities.
(j) 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 effectu-
ate the policies of the Act.
(a) Rescind the overbroad policy in its July 2010 California
employee dress code that unduly restricts associates’ right to
wear union insignia.
(b) Rescind the overbroad policy in its February 2013 Cali-
fornia employee dress code that unduly restricts associates’ right
to wear union insignia.
(c) Furnish all current employees in its California stores with
inserts for its California employee dress code that (1) advise that
the unlawful July 2010 and February 2013 policies have been
rescinded, or (2) provide the language of a lawful policy; or (in
the alternative) publish and distribute to employees at its Cali-
fornia stores revised copies of its California employee dress code
that (1) do not contain the unlawful policies, or (2) provide the
language of a lawful policy.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any references to the November 2012 two-
level disciplinary coachings that Respondent issued to Raymond
Bravo, Demario Hammond, Semetra Lee, Misty Tanner,
Markeith Washington and Timothy Whitney because those asso-
ciates engaged in a protected work stoppage on November 2, and
to discourage associates from engaging in those or other pro-
tected activities, and within 3 days thereafter notify Raymond
Bravo, Demario Hammond, Semetra Lee, Misty Tanner,
Markeith Washington and Timothy Whitney in writing that this
has been done and that the disciplinary coachings will not be
used against them in any way.
(e) Within 14 days after service by the Region: post at store
2418 in Placerville, California, copies of the attached notice
marked “Appendix A”; post at store 3455 in Richmond, Califor-
nia, copies of the attached notice marked “Appendix B”; and post
at all other California stores copies of the attached notice marked
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.
WAL-MART STORES, INC. 41
“Appendix C.”48 Copies of the notices, on forms provided by the
Regional Director for Region 32, after being signed by Respond-
ent’s authorized representative, shall be posted by Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the no-
tices shall be distributed electronically, such as by email, posting
on an intranet or an internet site, and/or other electronic means,
if Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by 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, Respondent has gone out of business or closed one
or more of the facilities involved in these proceedings, Respond-
ent shall duplicate and mail, at its own expense, a copy of the
appropriate notice (Appendix A, B, or C) to all current associates
and former associates employed by Respondent at the closed fa-
cilities at any time since July 8, 2012.
(f) Within 14 days after service by the Region, hold a meeting
or meetings at Respondent’s Richmond Store 3455, scheduled to
have the widest possible attendance, at which the attached notice
marked “Appendix B” shall be read to employees in both English
and Spanish, by Respondent’s store 3455 manager or, at Re-
spondent’s option, by a Board agent in Respondent’s store man-
ager’s presence.
(g) 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 Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. December 9, 2014
APPENDIX A
(PLACERVILLE, CALIFORNIA
STORE 2418)
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 notice.
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 threaten associates by asking them if they are
afraid Walmart might close Placerville, California store 2418 if
too many associates join OUR Walmart.

48 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judgment
WE WILL NOT maintain a July 2010 dress code for California
associates that is facially overbroad because it unduly restricts
associates’ right to wear union insignia.
WE WILL NOT maintain a February 2013 dress code for Cali-
fornia associates that is facially overbroad because it unduly re-
stricts associates’ right to wear union insignia.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations Act.
WE WILL rescind the overbroad policy in our July 2010 Cali-
fornia employee dress code that unduly restricts associates’ right
to wear union insignia.
WE WILL rescind the overbroad policy in our February 2013
California employee dress code that unduly restricts associates’
right to wear union insignia.
WE WILL furnish all current associates in our California stores
with inserts for our California employee dress code that (1) ad-
vise that the unlawful July 2010 and February 2013 policies have
been rescinded, or (2) provide the language of a lawful policy;
or (in the alternative) WE WILL publish and distribute to employ-
ees at our California stores revised copies of our California em-
ployee dress code that (1) do not contain the unlawful policies,
or (2) provide the language of a lawful policy.
WAL-MART STORES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/32-CA-090116 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1099
14th Street, N.W., Washington, D.C. 20570, or by calling (202)
273-1940.
APPENDIX B
(RICHMOND, CALIFORNIA
STORE 3455)
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 notice.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 maintain a July 2010 dress code for California
associates that is facially overbroad because it unduly restricts
associates’ right to wear union insignia.
WE WILL NOT maintain a February 2013 dress code for Cali-
fornia associates that is facially overbroad because it unduly re-
stricts associates’ right to wear union insignia.
WE WILL NOT selectively and disparately applying our July
2010 dress code for California associates to Richmond, Califor-
nia store associates when they wear clothing with OUR Walmart
or UFCW logos, but not when they wear other clothing that does
WE WILL NOT threaten Richmond, California store associates that
we will “shoot the union.”
WE WILL NOT threaten Richmond, California store associates
that Walmart will never be union and thereby inform associates
that it would be futile for them to select OUR Walmart as their
collective-bargaining representative.
WE WILL NOT threaten Richmond, California store associates
by telling them that associates returning from strike will be look-
ing for new jobs.
WE WILL NOT prohibit Richmond, California store associates
from speaking to associates returning from strike about the re-
turning strikers’ activities on behalf of OUR Walmart.
WE WILL NOT issue disciplinary coachings to associates be-
cause they engage in protected work stoppages, and to discour-
age associates from engaging in those or other protected activi-
ties.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce associates in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL NOT remove from our files any references to the un-
lawful November 2012 two-level disciplinary coachings that we
issued to associates Raymond Bravo, Demario Hammond,
Semetra Lee, Misty Tanner, Markeith Washington and Timothy
Whitney because they engaged in a protected work stoppage on
November 2, 2012, and to discourage associates from engaging
in those or other protected activities, and WE WILL notify Ray-
mond Bravo, Demario Hammond, Semetra Lee, Misty Tanner,
Markeith Washington and Timothy Whitney in writing that this
has been done and that the unlawful disciplinary coachings will
not be used against them in any way.
WE WILL rescind the overbroad policy in our July 2010 Cali-
fornia employee dress code that unduly restricts associates’ right
to wear union insignia.
WE WILL rescind the overbroad policy in our February 2013
California employee dress code that unduly restricts associates’
right to wear union insignia.
WE WILL furnish all current associates in our California stores
with inserts for our California employee dress code that (1) ad-
vise that the unlawful July 2010 and February 2013 policies have
been rescinded, or (2) provide the language of a lawful policy;
or (in the alternative) WE WILL publish and distribute to em-
ployees at our California stores revised copies of our California
employee dress code that (1) do not contain the unlawful poli-
cies, or (2) provide the language of a lawful policy.
WAL-MART STORES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/32-CA-090116 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1099
14th Street, N.W., Washington, D.C. 20570, or by calling (202)
273-1940.
APPENDIX C (CALIFORNIA STORES)
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 notice.
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 maintain a July 2010 dress code for California
associates that is facially overbroad because it unduly restricts
associates’ right to wear union insignia.
WE WILL NOT maintain a February 2013 dress code for Cali-
fornia associates that is facially overbroad because it unduly re-
stricts associates’ right to wear union insignia.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations Act.
WE WILL rescind the overbroad policy in our July 2010 Cali-
fornia employee dress code that unduly restricts associates’ right
to wear union insignia.
WE WILL rescind the overbroad policy in our February 2013
California employee dress code that unduly restricts associates’
right to wear union insignia.
WE WILL furnish all current associates in our California stores
with inserts for our California employee dress code that (1)
WAL-MART STORES, INC. 43
advise that the unlawful July 2010 and February 2013 policies
have been rescinded, or (2) provide the language of a lawful pol-
icy; or (in the alternative) WE WILL publish and distribute to em-
ployees at our California stores revised copies of our California
employee dress code that (1) do not contain the unlawful poli-
cies, or (2) provide the language of a lawful policy.
WAL-MART STORES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/32-CA-090116 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1099
14th Street, N.W., Washington, D.C. 20570, or by calling (202)
273-1940.