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.