Wal-Mart Stores

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1187 (N.L.R.B. 2003)

WAL-MART STORES, INC. 1187
Wal-Mart Stores, Inc. and United Food and Com-
mercial Workers International Union, Local
1167 AFI–CIO, CLC. Case 21–CA–34515
August 21, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND ACOSTA
On July 17, 2002, Administrative Law Judge Lana H.
Parke issued the attached decision. The Respondent filed
exceptions, a supporting brief, and a reply brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent herewith.
The judge found that the Respondent violated Section
8(a)(1) of the Act by soliciting and/or resolving em-
ployee grievances in order to dissuade employees from
supporting the Union.1 The Respondent excepts to this
finding and asserts, among other things, that the solicita-
tions were a lawful continuance of an established prac-
tice. We find merit in the Respondent’s exceptions and
find, contrary to the judge, that the Respondent did not
violate the Act. Accordingly, we shall reverse the
judge’s decision and dismiss the complaint in its en-
tirety.2
Facts
On January 5, 2001,3 the Union filed a petition for an
election in a bargaining unit consisting of automotive,
tire and lubrication services (TLE) department employ-
ees at the Respondent’s Lake Elsinore, California store.4
Kevin Curran is the district manager for the district
that includes Lake Elsinore. Curran and Nick Fiello, di-
vision I district manager, provided general TLE oversight
through periodic visits.
The Respondent has a longstanding company program
called “Coaching By Walking Around” (CBWA).
CBWA involves managers spending time with employ-
ees at the employees’ jobs and being available to listen,
advise, and instruct. When employees at a retail store
show interest in a union, the Respondent’s policy is to

1 The complaint was issued on April 26, 2002, not May 6 as the
judge inadvertently stated.
2 There are no exceptions to the judge’s dismissal of all other com-
plaint allegations.
3 All subsequent dates are in 2001 unless otherwise indicated.
4 The filing of the unfair labor practice charges against the Respon-
dent blocked the election which had been scheduled for April 26.
send area, regional, and home office management per-
sonnel (based in Bentonville, Arkansas) to the store to
essentially engage in an election campaign, including
CBWA. A number of managers from the Bentonville
home office came to the Lake Elsinore store after the
petition was filed, and among other things, engaged in
CBWA in the TLE department.5
During the critical period, District Manager Curran,
who, as noted, visited the store periodically as part of his
regular duties, visited the store 5 days a week, with each
visit lasting several hours. During these visits, Curran
worked alongside the TLE employees. In January or
February, Curran asked employee Robert Kinnee
whether the Respondent could do anything for TLE em-
ployees.6 Kinnee told Curran that certain tools were
needed and complained that the auto bay door was stick-
ing. Curran asked Kinnee to point out the needed tools
from an equipment catalog. The tools were provided
about a month later. The Respondent also repaired the
door and other equipment. The Respondent presented
evidence of past orders for tools and past repairs, includ-
ing repairs on the bay door in the preceding year.
Analysis
An employer who has a past policy and practice of so-
liciting employees’ grievances may continue such a prac-
tice during an organizational campaign. However, an
employer cannot rely on past practice to justify solicita-
tion of grievances where the employer “significantly
alters its past manner and methods of solicitation.” See
Carbonneau Industries, 228 NLRB 597, 598 (1977).
Thus, here the issue is whether during the campaign the
Respondent solicited grievances in a manner that was
significantly altered from its past manner and methods.
The judge observed that the Respondent here appeared
to have been generally attentive to employees’ needs in
the past. She also acknowledged that Curran, on his vis-
its to any store, asked TLE employees what he could do
for them, if their equipment was working properly, and if
they needed tools. The judge found, however, that
Curran’s visits to the Lake Elsinore store had been infre-
quent until the union campaign. She found no evidence
that deficiencies in tools and equipment were addressed
as quickly before the campaign as they were during the
campaign. The judge found that the Respondent’s “so-
licitation of grievances during the critical period was
extraordinary in incident, pervasiveness, and the manage-
rial level involved.” Further, the judge stated that “it is
5 The judge has set out in her decision a full description of the vari-
ous managers’ activities during the campaign.
6 Tracy O’Neal, Lake Elsinore store manager, was with Curran at the
time of this conversation.
339 NLRB No. 153
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188
reasonable to infer that Respondent’s solicitous omni-
presence during the union campaign demonstrated Re-
spondent’s ability to address and resolve employee needs
and inherently implied a promise to remedy grievances.”
Thus, she concluded that the Respondent violated Sec-
tion 8(a)(1) by soliciting and remedying grievances in
order to persuade the employees not to support the Un-
ion. For the reasons discussed below, we reverse the
judge’s finding that the Respondent’s actions violated
Section 8(a)(1).
Both the judge and our dissenting colleague seem to
equate the change, during the critical period, in the num-
ber and level of managers engaging in CBWA, with a
change in the number and level of managers soliciting
grievances. Thus, our dissenting colleague argues that
the Respondent “flooded the Lake Elsinore store with
high-level managers who systematically solicited em-
ployee complaints, requests, and grievances.” Thus, the
dissent focuses on the number of headquarters-level
managers and others present at the facility, the amount of
time that they spent at the facility during the organiza-
tional campaign, and their participation in CBWA.
We recognize that the increased level of managerial
personnel engaging in CBWA, as well as the increased
frequency in which they were engaging in CBWA, gives
rise to a suspicion that the methods and manner of solici-
tation of grievances changed during the organizational
period. However, the record evidence does not support
that suspicion. The Respondent’s CBWA program ex-
isted before the union organizing campaign. After the
advent of that campaign, the Respondent sent district and
regional managers to engage in the election campaign.
There is nothing unlawful about this, or the fact that
these managers spent time involved in CBWA during the
campaign. Nor is it unlawful for District Manager
Curran, whose job included providing some of the gen-
eral TLE oversight through periodic visits to the facility,
to ask the employees the same type of questions during
the campaign as before. Our dissenting colleague says
that the Respondent admits that it “stepped up” the inten-
sity of the CBWA in response to the organizing cam-
paign. However, this was because the CBWA visits,
after the union campaign began, included countercam-
paigning. To this extent, the CBWA activity was
“stepped up.” As noted above, it was not unlawful to
engage in such countercampaigning. In short, there is no
record evidence to support our dissenting colleague’s
assumption that more managers engaged in CBWA
equals more solicitation of grievances.
The evidence—as opposed to the suspicions—supports
a finding of only one incident of the Respondent resolv-
ing grievances during the critical period. That incident
was substantially consistent with the Respondent’s past
practice. Thus, Curran asked employee Kinnee whether
the Respondent could do anything for TLE employees.7
This inquiry, as acknowledged by the judge, was consis-
tent with past practice. Kinnee responded that they
needed certain tools and that an auto bay door was stick-
ing. Curran had Kinnee look through a catalog and
choose the needed tools. The tools were provided about
a month later. Respondent also repaired the bay door and
other TLE equipment. The Respondent presented evi-
dence of past tool orders and past repairs including two
repairs on bay doors in the preceding year. The judge
found, however, that there was “no evidence that past
deficiencies were so quickly remedied.” But, given that
the Respondent had asked employees in the past about
tool and repair needs and had corrected the deficiencies,
it was incumbent on the General Counsel to show, in
fact, that the deficiencies here were corrected quicker
than usual.8 Thus, the evidence establishes that the oc-
currence of soliciting and remedying grievances during
the critical period was substantially consistent with past
practice. We, therefore, conclude that the Respondent
did not violate Section 8(a)(1). We shall therefore order
that the complaint be dismissed.
ORDER
The complaint is dismissed.

MEMBER WALSH, dissenting.
In direct response to the Union’s organizational cam-
paign, the Respondent flooded the Lake Elsinore store
with high-level managers who systematically solicited
employee complaints, requests, and grievances. This
was a significant departure from the Respondent’s more
limited past practice of soliciting and remedying em-
ployee grievances. I dissent from my colleagues’ refusal
to find this conduct unlawful.

7 The judge also noted that TLE employee Timothy Schaffner testi-
fied that he had overheard Curran ask “other TLE employees if they
needed tools and/or what things needed to be fixed in the department.”
However, Schaffner’s testimony was vague as to when he had over-
heard Curran’s question, the content of the conversation between
Curran and the other employees, and the number of times Schaffner
overheard such a conversation. Employee Thomas Meden testified that
Curran asked him the same type of questions during the campaign as
before the campaign. These questions were, how was Meden doing,
how was his day, and was there anything Curran could do for him.
8 The General Counsel points out that Kinnee testified that he had
not seen the catalog from which he was allowed to choose tools previ-
ously, and that he had never been asked to “order tools.” We decline
the invitation to find that Curran’s giving Kinnee a catalog to choose
the tools that he had stated were needed constituted a significant depar-
ture from the past practice of inquiring if employees needed tools.
More is needed to support such a holding.
WAL-MART STORES, INC. 1189
Background
There is no dispute about the facts. In the absence of
employee interest in a union, the Respondent’s local and
district managers occasionally engage in the practice of
“Coaching By Walking Around” (CBWA), which in-
volves soliciting information from employees about their
concerns and needs in the work environment and being
available to “instruct, listen and advise.” These manag-
ers are trained to initiate conversations with employees
and ask them how they are doing and if they need any-
thing to help them with their jobs. Only infrequently
would a high-level manager at headquarters engage in
CBWA at a store.
When employees demonstrate an interest in a union,
however, the CBWA engaged in by the managers, par-
ticularly the high-level managers, increases dramatically.
The increase in the participation of all levels of managers
in CBWA at the Lake Elsinore store in response to the
Union’s presence there is firmly established by the re-
cord. For example, in regard to the local and district
managers, Lake Elsinore Store Manager Tracy O’Neal
“frequently and unprecedentedly” worked alongside TLE
employees during the critical period, TLE District Man-
ager Curran, who normally visited Lake Elsinore a few
times a month, increased his periodic visits to 5 days a
week, 3 to 6 hours a day, comprising 80 percent of his
worktime, and Division 1 District Manager Nick Fiello,
who normally visited every few months, also signifi-
cantly increased his store visits. With respect to head-
quarters-level managers, TLE Regional Personnel Man-
ager Curtis Smith was at the store almost daily, in spite
of the fact that he had geographic responsibility for about
500 stores, and TLE Regional Manager Emily Cook was
at Lake Elsinore 10 to 11 days during the critical period,
admittedly more than at any other store.1 When the elec-
tion was put on hold, the intensity of managerial visits
decreased markedly, returning to the level at which they
had been prior to the advent of the Union’s campaign.
Analysis and Conclusions
The Board has long held that the solicitation of griev-
ances during an organizational campaign violates the
Act. The Board has stated:

[I]t is the promise, expressed or implied, to remedy the
grievances that constitutes the essence of the violation.
. . . [T]he solicitation of grievances in the midst of a un-
ion campaign inherently constitutes an implied promise
to remedy the grievances. [Laboratory Corp. of Amer-

1 In fact, Cook, who began her job with the Respondent on or about
January 26, made Lake Elsinore her very first store visit as regional
manager.
ica Holdings, 333 NLRB 284 (2001), quoting from
Maple Grove Health Care Center, 330 NLRB 775
(2000).]

The Board has also held that “where an employer al-
ready has a policy of soliciting employee grievances, ‘the
employer may continue the practice during the organiz-
ing drive, but may not significantly alter its past manner
and method of solicitation.’” DMI Distribution of Dela-
ware, 334 NLRB 409, 471 (2001). The Board has fur-
ther held, however, that “an employer cannot rely on past
practice to justify solicitation of employee grievances
where the employer significantly alters its past manner
and methods of solicitation.” Carbonneau Industries,
228 NLRB 597, 598 (1977).
My colleagues and I are in agreement with these prin-
ciples. We also agree that the Respondent has a past
practice of soliciting grievances from its employees, em-
bodied in CBWA. Contrary to my colleagues, however,
I would find that the Respondent has significantly altered
its past practice in response to the organizing campaign.
By its own admission, the Respondent significantly
“stepped-up” its CBWA in direct response to the Union’s
organizing campaign.2 This involved a dramatic increase
in management participation in CBWA, particularly
among headquarters-level managers. This altered ver-
sion of CBWA is not, contrary to my colleagues, sub-
stantially the same as the prepetition practice of CBWA.
Indeed, the employees noticed the departure from the
usual practice. Regional Personnel Manager Smith had
been at the Lake Elsinore store almost daily during the
critical period, even though he had geographic responsi-
bility for some 500 stores. Employee Kinnee mentioned
to Smith that Smith was probably getting tired of being
away from his family. Smith responded that if the em-
ployees would tell the Union that they did not want the
Union to represent them, the headquarters managers
“would all be out of [the employees’] hair.”
The increase in the number of solicitations of em-
ployee grievances, and in the level of the managers in-
volved in the solicitations, stands in stark contrast to the
Respondent’s limited solicitations in the absence of the
Union’s presence. The Respondent cannot rely on its
past practice of soliciting grievances through CBWA
because it significantly altered that practice in the context
of a union campaign.
My colleagues concede that the increased level of
managerial personnel engaging in CBWA, as well as the
increased frequency in which they were engaging in
2 The Respondent admitted “flooding” the Lake Elsinore store to en-
gage in the more intense version of CBWA precisely because of the
Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
CBWA, gives rise to a “suspicion” that the methods and
manner of solicitation of grievances changed during the
organizational period, but they nonetheless conclude that
the record evidence does not support that suspicion. In
reaching this conclusion, my colleagues err in suggesting
that an increase in solicitations cannot be found in the
absence of evidence of the specific exchanges between
managers and employees during the increased CBWA in
the critical period. Such affirmative evidence is not nec-
essary in light of the Respondent’s admissions. The Re-
spondent admits that CBWA involves asking employees
how they are doing and if there is anything they need.
The Respondent also admits that such questioning, which
is a necessary component of CBWA, is a solicitation of
grievances. The Respondent further admits that it
“stepped up” the intensity of the CBWA in direct re-
sponse to the organizing campaign. If more managers
engaged in more CBWA, it follows that more solicita-
tions occurred, regardless of the specific content of those
solicitations.
Accordingly, by departing from its more limited past
practice of soliciting and remedying employee griev-
ances, the Respondent violated Section 8(a)(1) of the
Act.

Sonia Sanchez and Robert MacKay, Esqs., for the General
Counsel.
Steven D. Wheeless and Cyrus Martinez, Esqs. of Phoenix,
Arizona, for the Respondent.
Jeffrey Wohlner, Esq., of Encino, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
LANA PARKE, Administrative Law Judge. This case was
tried in Temecula, California, on May 28 and in Lake Elsinore,
California, on May 29, 2002.1 Pursuant to charges filed by
United Food and Commercial Workers, International Union,
Local 1167, AFL–CIO, CLC (the Union), the Regional Director
for Region 21 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing (the complaint)
on May 6, 2002. The complaint alleges that Wal-Mart Stores,
Inc. (Respondent) violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act).
Issues
1. Did Respondent violate Section 8(a)(3) and (1) of the Act
during the period January through April by imposing more
onerous working conditions on its Tire Lube Express depart-
ment (TLE) employees by increasing their supervision?
2. Did Respondent violate Section 8(a)(1) of the Act during
the period January through April by threatening employees
with job loss if the Union were selected and a strike called?

1 All dates are in 2001 unless otherwise indicated.
3. Did Respondent violate Section 8(a)(1) of the Act during
the period January through April by soliciting and resolving
employee grievances in order to dissuade employees from sup-
porting the Union?
4. Did Respondent violate Section 8(a)(1) of the Act during
the period January through April by threatening employees that
it was futile to select the Union as their collective-bargaining
representative?
5. Did Respondent violate Section 8(a)(1) of the Act during
the period January through April by attributing more onerous
working conditions of increased supervision to employees’
support of the Union?
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, with an office and
place of business in Lake Elsinore, California (the Lake Elsi-
nore store), is engaged in the operation of a chain of retail de-
partment stores throughout the United States. During a repre-
sentative 12-month period ending March 31, 2002, Respondent
derived gross revenues in excess of $500,000 from its business
operations and purchased and received at the Lake Elsinore
store goods and materials valued in excess of $50,000 directly
from points located outside the State of California. 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 and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES RELEVANT
CREDIBLE EVIDENCE
Among the various departments operated in the Lake Elsi-
nore store, Respondent sells automotive products from its
automotive department and tire and lubrication services from
its auto service department, the combined departments being
known as TLE. At all relevant times, onsite TLE supervision
consisted of Willie Carter (Carter), TLE manager, and Tracy
O’Neal (O’Neal), Lake Elsinore store manager. Although not
employed onsite, Kevin Curran (Curran), district manager, and
Nick Fiello (Fiello), division I district manager provided gen-
eral TLE oversight through periodic visits.
On January 5, the Union filed a petition for election under
Section 9(c) of the Act in a unit of the following employees:

All full-time and regular part-time employees employed in
[TLE], including the department manager, support manager,
service manager, department greeter, automotive service tech-
nicians, courtesy technicians, lower back bay technicians,
upper bay technicians, tire technicians, sales associates and
stocker at the [Lake Elsinore store].

2 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
WAL-MART STORES, INC. 1191
The Regional Director for Region 21 issued a Decision and
Direction of Election on March 26. Directed for April 26, the
election was subsequently blocked by the instant unfair labor
practice charges. The period from the filing of the petition
(January 5) to the directed date of election (April 26) is referred
to herein as “the critical period.”
Respondent has a longstanding company policy referred to
as “Coaching for Success” or “Coaching By Walking Around”
(CBWA). Company policy PD-30 states that “[CBWA] can be
defined as an informal, ongoing process of helping [employees]
achieve results.” The process involves management “spending
time with [employees] where the work is done, being available
to instruct, listen and advise.” When employees at a particular
retail site show interest in a union, Respondent’s policy is to
send area, regional, and home office management personnel
(based in Bentonville, Arkansas) to the site where they engage
in CBWA. In addition to performing the functions encom-
passed in CBWA, the management employees provide educa-
tion concerning the union to onsite management personnel and
employees, share Respondent’s union policy with employees,
and are available to demonstrate an interest in employee con-
cerns.
In its employee manual, Respondent maintains it is not anti-
union but proemployee and strongly opposed to third-party
representation. Respondent states its belief that employees
should be able to resolve their problems through utilization of
Respondent’s open-door policy.
At the commencement of the critical period, the following
managers from the Bentonville, Arkansas home office came to
the Lake Elsinore store: Emily Cook (Cook), regional TLE
manager, Curtis Smith (Smith), regional manager, Gisel Ruiz
(Ruiz) and Aaron Gillingham (Gillingham), human resources.
They engaged in CBWA in the TLE department. Smith was at
the Lake Elsinore store almost daily during the critical period
where he worked alongside employees and talked with them
about their families and personal and work-related concerns.
Cook was at the store less frequently but visited during several
weeks of the critical period. During the second week in April,
she made a benefit presentation to employees, outlining and
explaining Respondent’s existing benefits. During the critical
period, O’Neal frequently and unprecedentedly worked along-
side TLE employees. Although Curran had visited the Lake
Elsinore store in the course of his normal duties before the
critical period, his visits increased to 5 days a week, 3 to 6
hours each day. While there, he worked alongside TLE em-
ployees, discussed Respondent’s open-door policy with them,
and told them he did not think they needed third party represen-
tation. Fiello significantly increased his Lake Elsinore store
visits during the critical period and worked alongside TLE em-
ployees.
At a storewide meeting in January, O’Neal told employees
that managers from headquarters were there because of the
union representation drive. In April, in response to a comment
that Smith was probably getting tired of being away from his
family, Smith told employee Robert Kinnee (Kinnee) that if
employees would tell the Union they didn’t want to be repre-
sented by the Union, “we would all be out of your hair.”
Kinnee was Respondent’s TLE service manager in the Lake
Elsinore store. In January/February, Curran and O’Neal asked
him whether Respondent could do anything for TLE employ-
ees. Employee Timothy Schaffner (Schaffner) also testified he
overheard Curran ask other TLE employees if they needed tools
and/or what things needed to be fixed in the department. In
response to Curran, Kinnee said they needed certain tools and
complained that an auto bay door was sticking. Curran asked
Kinnee to go through an equipment catalog and point out the
needed tools, which Respondent provided to employees about a
month later. Respondent repaired the sticking bay door as well
as other TLE equipment. Respondent presented evidence of
past tool orders and past repairs, including two repairs on bay
doors in the preceding year. In the past, Respondent’s manag-
ers have asked service managers about TLE tool and repair
needs.
Ruiz, labor relations manager during the critical period, pre-
sented union and strike information programs to small groups
of TLE employees in mandatory meetings, using computer-
generated visuals and handouts. She followed written notes
closely in making her oral presentation. Respectively, the
visuals concerning strikes and the notes read:

Permanent Replacement?
• When A Union Strikes To Support Its Contract
Demands, It’s Called An Economic Strike
• Company Could Hire Permanent Replacements
• When The Strike Ends, Permanent Replacements
Have The Right To Keep Their jobs—Even If The
Strikers Want Their Jobs Back!

NOTES:

• While the union has the right to call an economic
strike, Wal-Mart has the right to keep operating,
and that includes the right to hire replacement
workers to do the strikers’ jobs.
• Wal-Mart may or may not hire permanent re-
placements during a strike, But the company would
certainly have to consider its options in keeping the
store running and serving our customers. For ex-
ample, Wal-Mart could use TLE associates from
other stores.
• The longer the strike lasted, the more likely it is
that Wal-Mart would have to hire permanent
replacements.
• When the strike ends, the permanent replacements
would be entitled to keep their job [sic], even if the
strikers wanted their jobs back.

Employee John Humphrey (Humphrey) testified that at one
of the meetings conducted by Ruiz in early April, she told em-
ployees that should the Union win the election and the parties
reach impasse in negotiations, the Union could call for an eco-
nomic strike. Employees would have to comply and strike.
Respondent had the legal right to replace striking employees
and would not be required to give them their jobs back.
Kinnee recalled that during one of the meetings, Ruiz “made
it sound like we were going to go out on strike if we didn’t get
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
a contract . . . that if we were out on strike long enough other
people would take our positions . . . and when we come back
there may not be a job for us.” Although I find the employee
witnesses to be generally credible, I am mindful that listeners
often have difficulty distinguishing between what was actually
said or clearly implied as opposed to what they unwarrantedly
inferred. Here, since Ruiz used visuals, handouts, and written
notes in making her remarks, and testified in a sincere, forth-
right manner, I credit her version of what she said regarding
potential strike consequences. Moreover, I note that Kinnee’s
account is essentially corroborative of Ruiz.
Kinnee also testified that in April, he overheard Carter tell-
ing employee Alan Johnson that the TLE employees were go-
ing to find out that they wasted their time trying to get a union.
I credit Kinnee’s account.
B. Discussion
The General Counsel accurately points out that Respondent’s
stated philosophy toward union organizing is evidence of ani-
mus. Affiliated Foods, Inc., 328 NLRB 1107 (1999). As the
General Counsel concedes, the employee handbook statements
alone do not rise to the level of an unfair labor practice. See
Sunrise Health Care Corp, 334 NLRB 903 (2001). Dislike of
unions is not uncommon among employers and principles of
free speech as well as Section 8(c) of the Act permit it to be
expressed. Animosity alone without adverse employment ac-
tion does not violate the Act. It is the General Counsel’s bur-
den to show that employment actions are adverse to employees,
meaning: “more burdensome, undesirable, or unpleasant” than
formerly. King David Center, 328 NLRB 1141, 1143 (1999).
The General Counsel asserts that when Respondent’s area
and home office management personnel flooded the Lake Elsi-
nore store during the critical period, it constituted imposition of
more onerous working conditions on employees by increasing
supervision and violated Section 8(a)(3) and (1) of the Act. It
is certainly true that Respondent management came in force to
the Lake Elsinore store during the critical period and that they
did so in response to TLE employees’ union activities. How-
ever, contrary to the General Counsel’s argument, there is no
evidence that any visiting manager actually supervised or
evaluated any employee or imposed any changed working con-
dition. While the visiting managers worked alongside the TLE
employees and expressed interest and concern in their working
and personal lives, employment conditions, and supervisory
lines remained the same. Respondent may justifiably be ac-
cused of increased affability, but the General Counsel has not
cited, and my research has not revealed, any case holding geni-
ality to be a violation of the Act, however unprecedented and
widespread it may be.3 The supernumerary presence of man-
agement representatives may have been tiresome or even an-
noying to TLE employees, but I cannot find it reasonably to
have been threatening or coercive. I conclude that Respondent
did not violate Section 8(a)(3) and (1) of the Act by imposing
more onerous working conditions on the TLE employees

3 In an analogous case cited by Respondent, the Board affirmed an
administrative law judge finding that similar employer tactics did not
constitute surveillance. Beverly California Corp., 326 NLRB 232,
259–260 (1998), enfd. in pertinent part 277 F.3d 817 (7th Cir. 2000).
through increased supervision. It follows that O’Neal’s attrib-
uting the unusual management presence to employees’ union
organizing efforts is likewise permissible under the Act, as is
Smith’s statement that managers would be “out of [employees’]
hair” if employees rejected the Union.
During the critical period, Respondent managers asked TLE
employees what they could do for the employees or what they
needed and thereafter supplied requested tools and made cited
repairs. The General Counsel argues that this constitutes solici-
tation and remedy of grievances in violation of Section 8(a)(1)
of the Act. As Respondent points out, supplying tool and repair
needs is a legitimate business concern. However, doing so for
the purpose of discouraging interest in a union, or in a manner
calculated to discourage interest in a union, violates the Act.
Insight Communications Co., 330 NLRB 431, 457 (2000);
Palm Garden of North Miami, 327 NLRB 1175 (1999). The
General Counsel need not provide specific evidence of motiva-
tion or show that solicited grievances were, in fact, remedied.
“[The] solicitation of grievances in the midst of a union cam-
paign inherently constitutes an implied promise to remedy the
grievances.” Clark Distribution Systems, 336 NLRB 747, 748
(2001);4 Hospital Shared Services, 330 NLRB 317 (1990).
Grievance solicitation during an organizational campaign cre-
ates a “compelling inference,” that the employer seeks to influ-
ence employees to vote against union representation. Traction
Wholesale Center Co., 328 NLRB 1058 (1999).5
Respondent argues that its conduct during the union cam-
paign did not differ from past practice, adherence to which
vitiates any finding of unlawful grievance solicitation. See
Clark Distribution and MacDonald Machinery Co., supra. As
Respondent points out, Curran, during visits to any store, asked
TLE employees what he could do for them, if their equipment
was working properly, and if they had the tools they needed to
do their jobs. However, his visits to the Lake Elsinore store
were admittedly infrequent as compared to his presence during
the union campaign, and there is no evidence that past deficien-
cies were so quickly remedied as they were during the cam-
paign. While Respondent appears to have been generally atten-
tive to employee needs in the past, the solicitation of grievances
during the critical period was extraordinary in incidence, perva-
siveness, and the managerial level involved. See 6 West Lim-
ited Corp., 330 NLRB 527, 528–529 (2000); Flight Safety, Inc.,
197 NLRB 223 (1972). It is reasonable to infer that Respon-
dent’s solicitous omnipresence during the union campaign
demonstrated Respondent’s ability to address and resolve em-
ployee needs and inherently implied a promise to remedy
grievances. Accordingly, I conclude that Respondent violated
Section 8(a)(1) of the Act, as alleged, by soliciting and remedy-
ing grievances in order to dissuade employees from supporting
the Union.
The General Counsel contends that Respondent violated sec-
tion 8(a)(1) when Ruiz told a meeting of employees in April of
potential economic strike consequences. Ruiz’ statements were
legally accurate as far as they went. She neglected, however, to
4 Quoting Capitol EMI Music, 311 NLRB 997, 1007 (1993), enfd. 23
F.3d 399 (4th Cir. 1994).
5 Reiterated in MacDonald Machinery Co., 335 NLRB 319 (2001).
WAL-MART STORES, INC. 1193
inform employees that economic strikers who unconditionally
apply for reinstatement after permanent replacements fill their
positions retain their status as employees and are entitled to
future reinstatement, absent substantial legitimate business
justification. See Laidlaw Corp., 171 NLRB 1366 (1968).6 In
the absence of threat of reprisal or force or promise of benefit,
an employer may, under Section 8(c) of the Act, make predic-
tions about the consequences of union representation. Unless
the statements may reasonably be taken as a threat of reprisal,
an employer does not violate the Act “by truthfully informing
employees that they are subject to permanent replacement in
the event of an economic strike . . . [and] an employer may
address the subject of striker replacement without fully detail-
ing the protections enumerated in Laidlaw, so long as it does
not threaten that, as a result of a strike, employees will be de-
prived of their rights in a manner inconsistent with those de-
tailed in Laidlaw.” Eagle Comtronics, 263 NLRB 515, 515–516
(1983). Under Eagle Comtronics, an employer may “lawfully
inform employees that they ‘could’ be permanently replaced,
without telling them that they would retain employment rights.”
Unifirst Corp., 335 NLRB 706, 707 (2001) (citations omitted).
Moreover, ambiguities in such statements are resolved in the
employer’s favor if the statements are made, as here, in an at-
mosphere free from threat of retaliation. Unifirst Corp., Id.
Accordingly, I conclude that Ruiz’ statements concerning strike
consequences did not violate the Act.
The General Counsel urges that Carter’s statement that TLE
employees were going to find out they had wasted their time
trying to bring in a union unlawfully expresses futility of em-
ployee union activity. Unlawful expressions of futility gener-
ally explicitly or implicitly predict an employer intention to
obstruct bargaining. I cannot conclude that Carter’s statement
implied that Respondent would fail to bargain in good faith or
that Respondent would engage in any unlawful tactics. The
Board has found “employers’ warnings of ‘serious harm’ that
may befall employees who choose union representation are not

6 Enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970).
unlawful in and of themselves.” Reno Hilton Resorts Corp.,
319 NLRB 1154, 1155 (1995). Carter’s statement is not only
milder than a warning of “serious harm” but is susceptible of
several interpretations, including lawful ones. It is just as rea-
sonable, for example, to infer that Carter meant employees
would not be satisfied with union representation should they
achieve it as it is to infer that he meant Respondent would act to
ensure the futility of their union choice. The Board has found
an employer agent’s statement that “‘you guys would have been
better off without the Union’ . . . merely conveyed the eco-
nomic reality that if the employees had decided . . . [against the
union] they would not . . . be subject to [union] dues.” Penn
Tank Lines, Inc., 336 NLRB 1066 fn. 2 (2001). While Respon-
dent engaged in unlawful conduct in soliciting and remedying
grievances, it did not engage in the kind of activity that would
render Carter’s otherwise lawful prediction coercive. An em-
ployer has a right “to make comparisons or descriptions that are
unfavorable to a . . . union . . . [and may] express its opinion
that employees would be better off without the Union.” Lang-
dale Forest Products Co., 335 NLRB 602, 603 (2001). Ac-
cordingly, I conclude that Carter’s statement that employees
would find they wasted their time trying to bring in a union did
not violate Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By soliciting and/or resolving employee grievances during
the period January through April, 200, Respondent engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. Respondent has not violated the Act as otherwise alleged
in the complaint.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]