Wal-Mart Stores, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 2003

340 N.L.R.B. 220 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220
Wal-Mart Stores, Inc. and United Paperworkers In-
ternational Union. Cases 18–CA–14757 and 18–
CA–15017
September 17, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On December 14, 1999, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
Respondent filed exceptions and a supporting 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions
and to adopt the recommended Order as modified and
set forth in full below.2
The Respondent’s exceptions relate only to the
judge’s findings that the Respondent (1) threatened em-
ployee Deborah Hager in violation of Section 8(a)(1) of
the Act, (2) changed the work schedule of employee
Sherry Nelson3 in violation of Section 8(a)(3) and (1) of
the Act, and (3) instructed its 22 department managers
that they could not participate in union activities, that it
would be unlawful for them to do so, and that they were
to report union activity to management, in violation of
Section 8(a)(1) of the Act. For the reasons set forth by
the judge, we affirm his findings that the Respondent
unlawfully threatened employee Deborah Hager. For
the reasons set forth below, we find that the Respondent
changed the schedule of employee Sherry Nelson in
violation of Section 8(a)(3) and (1) of the Act, and that
the Respondent’s instructions to four department man-
agers who were not statutory supervisors violated Sec-
tion 8(a)(1) of the Act.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Neither the General Counsel nor the Charging Party has filed ex-
ceptions. Although the Respondent has filed exceptions, it has not
excepted to the judge’s findings that it violated Sec. 8(a)(1) of the Act
by implementing and maintaining a broad rule prohibiting employees
from discussing their wages and benefits among themselves and by
telling employees that they would be terminated if they did so.
3 Occasionally, the judge mistakenly referred to this employee as
Shirley Nelson.
I. SHERRY NELSON’S SCHEDULE CHANGE
A. Relevant Facts
This case involves the Respondent’s Store 1609 in
Grand Rapids, Michigan. Sherry Nelson was a sales
associate in the store’s lawn and garden department.
From October 1995 until October 1, 1998,4 she worked
from 6 a.m. until 3 p.m. on Mondays through Fridays,
even though the work hours on Nelson’s printed sched-
ule were from 7 a.m. until 4 p.m., and included some
weekends. Nelson’s department manager, Shirley
Heaton, and Store Manager Mike Shockley had full
knowledge of the hours that Nelson actually worked.
Effective October 1, 1998, Shockley changed Nelson’s
schedule to require her to work from 7 a.m. until 4 p.m.,
and to work on weekends. The judge found that
Shockley changed Nelson’s schedule because of her
union activity in violation of Section 8(a)(3) of the Act.
We agree with the judge’s finding.
In late 1997, the Union5 began a campaign to organize
the retail work force, including department managers, at
Store 1609. In late January or early February 1998, Nel-
son distributed to sales associates and some department
managers information about unions she gathered from
the internet and encyclopedias. In addition, she fre-
quently talked to employees about unions and also at-
tended union meetings. The Respondent does not dis-
pute that it knew of these union activities by Nelson. On
one occasion, Nelson even informed Store Manager
Shockley that she was going to encourage other employ-
ees to attend union meetings.
In late February or early March, Shockley told another
employee, Deborah Hager, that he and the assistant store
manager, Rachelle Branstrom, took personally the Un-
ion’s organizational drive. In March or April, Shockley
told Nelson he did not understand why the employees
were seeking out a union because the employee com-
plaints that he had heard about were petty. Nelson dis-
agreed with Shockley, and suggested that a group of
employees should get together and raise their problems
with the Respondent’s headquarters management in
Bentonville, Arkansas. Shockley advised Nelson that a
group visit to headquarters would not be possible.
On Thursday, October 1, Assistant Store Manager
Branstrom asked Nelson why she had come in at 6
rather than at 7 a.m., and advised her that starting im-
mediately she must begin working 7 a.m. to 4 p.m. in
accordance with the printed schedule, which also re-
quired Nelson to work on the weekend. Nelson pro-
tested to Branstrom that Shockley had always approved
4 All dates hereafter are in 1998 unless otherwise noted.
5 United Paperworkers International Union.
340 NLRB No. 31
WAL-MART STORES 221
her deviation from the printed schedule, but Branstrom
refused to permit her to work her former schedule. Nel-
son also complained to Shockley about the schedule
change, but nothing was done to restore her former
schedule.
On October 5, stocker Robbie Bartick was in at 6 a.m.
doing the work that Nelson had previously done during
that time. Bartick, who reported directly to Shockley
rather than to Branstrom, was not working according to
her printed schedule. She was permitted to vary from
the printed schedule for transportation reasons and so
that she could pick up her mail at the post office before
it closed.
B. Discussion
The complaint alleges that Nelson’s schedule change
violated Section 8(a)(3) and (1) of the Act. To prove
such an allegation, the General Counsel has the initial
burden of establishing that the employee’s protected
activity was a motivating factor in the Respondent’s
decision. See Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management, 462 U.S. 393 (1983). The elements
commonly required to support such a showing are union
activity by the employee, employer knowledge of that
activity, and antiunion animus by the employer. Briar
Crest Nursing Home, 333 NLRB 935, 936 (2001).
The judge found that the General Counsel had met his
burden by showing that: Nelson distributed literature
and talked to employees about unions and attended un-
ion meetings; the Respondent knew of this protected
activity by Nelson; and the Respondent had exhibited
antiunion animus in Shockley’s statement to Nelson that
he could not understand why the employees wanted to
organize. The judge also relied on the timing of the
schedule change shortly after Shockley was served with
the unfair labor practice complaint,6 and on the Respon-
dent’s disparate treatment of Nelson. For the reasons
stated below, we agree with the judge that the General
Counsel has met his burden of establishing that Nelson’s
protected activity was a motivating factor in the Re-
spondent’s decision to change her schedule.
It is undisputed that Nelson engaged in the protected
activity found by the judge and that the Respondent

6 Shockley was served with a copy of the complaint on or about July
30. Paragraph 5(e) of the complaint specifically alleges that Shockley
unlawfully solicited grievances from employees and implied a promise
of benefit by suggesting that employees form a committee to discuss
their problems with headquarters. Thus, although Nelson is not specifi-
cally named in the complaint, the complaint allegations unquestionably
pertain to Nelson. Shockley admitted that he and the other managers
discussed changing Nelson’s schedule in late July-early August.
knew of it. In addition, the Respondent’s antiunion
animus has been sufficiently established by its inde-
pendent violations of Section 8(a)(1) of the Act. This
includes the Respondent’s unlawful implementation of a
broad rule prohibiting employees from discussing their
wages and benefits among themselves and the directive
that employees would be terminated for doing so; it also
includes the Respondent’s implicit threat to employee
Deborah Hager that she would be fired for her union
activity. We also find, in agreement with the judge, that
the Respondent’s antiunion animus was demonstrated by
the Respondent’s disparate treatment of Nelson7 and the
timing of the schedule change shortly after Shockley
received the complaint. Thus, we find that the General
Counsel met his initial burden under Wright Line.
Our dissenting colleague argues that the General
Counsel did not meet his Wright Line burden. He main-
tains that the General Counsel failed to establish that the
Respondent knew that Nelson was a union supporter
because Nelson’s activity did not identify her as a union
supporter, but consisted merely of neutral discussions
and sharing of neutral information about unions. Our
colleague finds that the fact that the Respondent may
have viewed Nelson as a “fence-sitter” precludes a find-
ing of unlawful discrimination against her. We dis-
agree.8
Section 8(a)(3) does not require that an employee be
explicitly prounion to be protected against discrimina-
tion, but rather prohibits all employer discrimination in
terms and conditions of employment that is intended to
discourage or encourage employees’ union support.
See, e.g., Dawson Carbide Industries, 273 NLRB 382,
389 (1984), enfd. 782 F.2d 64 (6th Cir. 1986) (“The
Board has held in the context of a union organizing
drive that an employer’s [adverse action against] un-
committed, neutral, or inactive employees in order to . . .
discourage employee support for the union is violative
of Section 8(a)(3) of the Act.”) Thus, under Section
7 At least two other employees, Robbie Bartick and Carol Riendeau,
were allowed to work hours different from those set forth in their
printed schedules in order to accommodate their personal schedules.
Also, there is no evidence that, aside from Nelson, any other employees
had their schedules changed around this time.
8 Our colleague insists that Nelson engaged in only union-neutral con-
duct, and that there is no evidence establishing that the Respondent knew
or even suspected that Nelson was a supporter of the Union. It is difficult
to imagine how the Respondent could not have considered Nelson to be
prounion, especially given that Nelson constantly focused the employees’
attention on the Union by distributing union literature and engaging em-
ployees in conversation about the Union, invited employees to the Un-
ion’s meetings, and stated to Store Manager Shockley that employee
group action should be taken when she responded to Shockley’s statement
that he did not understand why the employees were seeking out a union
because the employees’ complaints were so petty.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
8(a)(3), even if, as our colleague contends, Nelson were
a “fence-sitter” and the Respondent believed her to be
such, a finding of discrimination would not be precluded
if adverse action was taken against her in order to dis-
courage employee support for the Union.
In order to satisfy the elements of union activity and
employer knowledge in this case, the General Counsel
had only to show that the Respondent knew that Nelson
had engaged in union activity. Whether Nelson was a
“fence-sitter” or an active union supporter, she engaged
in union activity and there is no dispute that the Respon-
dent was aware of that activity. Thus, the cases relied
on by our dissenting colleague are distinguishable. See
Amber Foods, Inc., 338 NLRB 712, 714 (2002); Webco
Industries, 334 NLRB 608, 608–609 (2001). In those
cases, the General Counsel did not merely fail to show
that the employer knew whether the employees were
active union supporters or “fence-sitters,” but failed to
show that the employer knew that the employees had
engaged in any protected activity at all. Here, by con-
trast, the Respondent does not dispute that it knew that
Nelson engaged in protected activity.
Furthermore, although Nelson’s attendance at union
meetings is sufficient to establish the Wright Line ele-
ment of employee union activity, Nelson did much more
than attend union meetings. Nelson also distributed to
her fellow employees printed materials on unions, and
frequently talked with the employees about the Union,
all of which the Respondent admits it knew. These ac-
tivities focused the employees’ attention on the Union,
its organizing campaign and union-related issues. Addi-
tionally, Nelson directly assisted the Union by inviting
employees to the Union’s meetings, and she specifically
advised Shockley that she was inviting employees to
union meetings. Further, when Shockley stated to Nel-
son that he did not understand why the employees were
seeking out a union because the employee complaints
were petty, Nelson disagreed with him and suggested
that a group of employees should get together and raise
their problems with the Respondent’s headquarters.
Nelson’s union activities and her statements to Shockley
supportive of employee group action are generally not
the type of conduct that would endear an employee to an
employer that harbors antiunion animus, such as the
Respondent.
In sum, the General Counsel has met his burden of
showing that Nelson engaged in protected activity, that
the Respondent knew she engaged in that activity, and
that the Respondent demonstrated antiunion animus.
For these reasons, we agree with the judge that the Gen-
eral Counsel has met his burden of showing that Nel-
son’s protected activity was a motivating factor in the
Respondent’s change of her schedule.
Once the General Counsel met his burden of showing
the Respondent’s unlawful motivation for Nelson’s
schedule change, the burden shifted to the Respondent
to prove its affirmative defense that it would have taken
the same action in the absence of Nelson’s protected
activity. See Wright Line, supra, 251 NLRB at 1089;
Briar Crest Nursing Home, supra, 333 NLRB at 936.
For the reasons set forth by the judge, we agree that the
Respondent failed to meet its burden.
Accordingly, we find that Nelson’s schedule change
violated Section 8(a)(3) and (1) of the Act.
II. THE RESPONDENT’S INSTRUCTIONS TO
DEPARTMENT MANAGERS
A. Background
Store Manager Shockley was directly responsible for
the operation of the store as a whole. The store had ap-
proximately 33 separate merchandising areas of differ-
ent sizes containing different types and amounts of
products. These merchandising areas were divided into
three separate and stable groups, each of which was
overseen by one of three assistant store managers, who,
after some period of oversight, rotated over a different
group. The three assistant store managers reported to
Shockley.
Each department manager in this case reported to the
assistant store manager of the group that included the
department manager’s merchandising area(s). In the
three groups, there were a total of 23 department man-
agers, only 22 of whom are at issue here.9 Most of the
department managers were responsible for one mer-
chandising area, but a few were responsible for more
than one. The department managers worked in their
departments primarily during the day, Monday through
Friday.
The departments were also staffed by sales associate
employees (associates or employees), who worked days,
evenings, and weekends. At any one time, there were
approximately 90 associates working in the store, al-
though some of those, such as cashiers, stockers and
maintenance workers, worked in nonmerchandising de-
partments.

9 One of the 23 department managers simultaneously held a support
team manager position. The six to eight support team managers helped
the assistant store managers with a wide range of duties while simulta-
neously holding other positions for the Respondent. The counsel for
the General Counsel conceded that the department manager who was
also a support team manager was a statutory supervisor. Thus, the
counsel for the General Counsel did not allege that the Respondent’s
instructions to that individual violated Sec. 8(a)(1).
WAL-MART STORES 223
In late 1997 and early 1998, some associates in Store
1609 began an organizing campaign to seek representa-
tion by the Union. On several occasions in February of
1998, the Respondent instructed the 22 department man-
agers that they could not participate in union activities,
that it would be unlawful for them to do so, and that
they were to report union activity to management. The
Respondent does not dispute that it gave those instruc-
tions to the department managers, or that the instructions
would be unlawful if given to nonsupervisory employ-
ees. Rather, the Respondent argues that its instructions
do not violate the Act because the department managers
are supervisors pursuant to Section 2(11) of the Act.
B. Discussion
If the department managers were statutory supervi-
sors, the Respondent’s instructions to them would be
lawful. See Harvey’s Resort Hotel, 271 NLRB 306, 307
(1984) (finding that employer’s instructions to floormen
not to discuss the union or attend union meetings did not
violate the Act due to floormen’s previously determined
status as statutory supervisors). Section 2(11) of the Act
defines who is a “supervisor” of the employer in the
disjunctive; exercise of any one of the listed indicia is
sufficient to confer supervisory status.10 Entergy Sys-
tems & Services, 328 NLRB 902 (1999); Queen Mary,
317 NLRB 1303 (1995), enfd. sub nom NLRB v. RMS
Foundation, Inc., 113 F.3d 1242 (9th Cir. 1997). To
confer supervisory status, any Section 2(11) authority
must be used on behalf of management, with independ-
ent judgment, and not in a routine or clerical manner.
See Masterform Tool Co., 327 NLRB 1071 (1999);
Bowne of Houston, 280 NLRB 1222, 1223 (1986). It is
the possession of authority to engage in any of the func-
tions listed in Section 2(11), not the actual exercise of
that authority, which determines whether an individual
is a supervisor. Pepsi-Cola Co., 327 NLRB 1062, 1064
(1999); Fred Meyer Alaska, Inc., 334 NLRB 646, 649
fn. 8 (2001).
Because the Act excludes any “supervisor” of the em-
ployer from the definition of “employee” entitled to the
Act’s protections, the Board has a duty not to construe
supervisory status too broadly. Phelps Community
Medical Center, 295 NLRB 486, 492 (1989); Adco Elec-
tric, 307 NLRB 1113, 1120 (1992), enfd. 6 F.3d 1110

10 Sec. 2(11) of the Act provides:
The term ‘supervisor’ means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
(5th Cir. 1993). Thus, the burden of proving supervi-
sory status is on the party asserting it, in this case the
Respondent. Chevron U.S.A., 309 NLRB 59, 62 (1992).
The judge found that the 22 department managers at
issue in this case were not supervisors under Section
2(11) of the Act. He thus found that the Respondent’s
instructions to them—not to participate in union activi-
ties, that it would be unlawful for them to do so, and to
report union activity to management—violated Section
8(a)(1) of the Act.
The record contains individualized testimony about
the functions of 10 of the 22 department managers; 8
department managers testified about their own func-
tions, and 2 department managers’ functions were de-
scribed by sales associates working with them. Neither
party requested that the 22 department managers be
treated as a class, and the judge specifically elicited the
name and department of each of the 22 department man-
agers at issue. The Respondent contends that its 22 de-
partment managers are supervisors, relying only on their
Section 2(11) authority to reward, assign, responsibly
direct, and discipline employees.
We find that the Respondent did not meet its burden
of proving that the following 4 department managers are
statutory supervisors: Carol Riendeau, the department
manager of hardware; Chris Reak, the department man-
ager of stationery; Danny Dome, the department man-
ager of paper goods, chemicals, and furniture; and
Raegan Sack, the department manager of housewares.
We so find because the Respondent has not demon-
strated that those 4 department managers used independ-
ent judgment to reward or effectively recommend re-
warding associates, assign or responsibly direct them, or
discipline or effectively recommend disciplining them.
Rewarding
The evidence shows that the Respondent evaluated as-
sociates in writing on a yearly basis. The Respondent
used the final overall rating on an associate’s annual
performance evaluation to determine the associate’s pay
raise for the following year: an outstanding final overall
rating automatically resulted in a 6-percent raise, an
above-standard rating automatically resulted in a 5-
percent raise, a standard rating automatically resulted in
a 4-percent raise, and a below-standard rating automati-
cally resulted in no raise. Assistant store managers were
often present during the associates’ yearly performance
discussions, signed the final evaluations, and had ulti-
mate responsibility for their completion. Some assistant
store managers, however, delegated most of the evalua-
tion functions to department managers.
Riendeau (hardware) testified that she identified asso-
ciates’ strengths and weaknesses for her assistant store
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
manager but did not know or decide the associates’ final
performance rating. Virginia Pittack, an associate in
stationery, testified that the store manager Shockley,
rather than Department Manager Reak, conducted Pit-
tack’s annual performance evaluations and decided her
overall performance rating. Because only the final
overall performance rating was directly linked to an as-
sociate’s pay increase, the above evidence fails to estab-
lish that Riendeau or Reak effectively recommended
rewarding associates.11 See Ryder Truck Rental, 326
NLRB 1386, 1387 fn. 9 (1998) (finding that technicians
in charge were not statutory supervisors in part because
there was no evidence that their input into employee
evaluations involved any recommendations regarding
pay increases); compare Wal-Mart Stores, 335 NLRB
1310 (2001) (finding that department manager was a
statutory supervisor because he determined employees’
final performance rating, which was directly linked to
their rate of pay increase).
Accordingly, we find that the Respondent failed to
show that Riendeau, Reak, Dome, or Sack rewarded or
effectively recommended rewarding employees within
the meaning of Section 2(11) of the Act.
Assignment and Responsible Direction
The evidence shows that Riendeau (hardware) worked
with one other employee during the day and there was
no evidence that she responsibly directed or assigned
work to that employee. Riendeau also testified that she
left notes for the night crew about work that was unfin-
ished at the end of her shift.12 Yet, the work was often
left undone, she completed the work herself, and no
consequences were imposed on the night crews for not
completing the work. Likewise, Dome (paper goods,
chemicals, and furniture) only worked with other associ-
ates 1–2 hours a day, and he did not assign them work
nor direct them in their work. Although he initially left
notes for the night crew about work left undone, the
work often remained undone for 3 or 4 days. When this
problem was not resolved after Dome raised it with up-
per management, he stopped leaving the notes.
Similarly, Barbara Hueston, an associate in house-
wares, generally worked evenings and weekends, while
Sack, the department manager, worked during the week-

11 There is no record evidence regarding the authority of Dome (pa-
per goods, chemicals, and furniture) or Sack (housewares) to recom-
mend rewarding associates through final performance ratings. Al-
though the Respondent argues that some department managers recom-
mended that associates receive merit increases apart from annual per-
centage pay increases, there is no evidence indicating that department
managers Riendeau, Reak, Dome, or Sack possessed such authority.
12 When Riendeau was absent, the departmental associate who
worked with her left similar notes for the night crew.
days. Sack primarily directed Hueston by leaving her
written instructions about the tasks that needed to be
done, which included putting away and preparing the
inventory, straightening shelves and labels, cleaning,
and assisting customers. No evidence was adduced that
there were adverse consequences to Hueston if she did
not perform the written tasks requested by Sack.
There was no evidence that Sack’s, Riendeau’s, or
Dome’s written notes, assignment, or direction required
the exercise of independent judgment.13 Thus, we find
that the Respondent failed to show that Sack, Riendeau,
Dome, or Reak assigned or responsibly directed em-
ployees within the meaning of Section 2(11) of the Act.
Discipline
The evidence shows that Riendeau (hardware) talked
to an employee with an assistant store manager present
about the employee’s poor attendance and its effects on
the department. However, the assistant store manager,
not Riendeau, issued a written warning to the employee.
This evidence does not show that Riendeau disciplined
or effectively recommended disciplining employees.14
See Ten Broeck Commons, 320 NLRB 806, 808, 812–
813 (1996) (although licensed practical nurses (LPNS)
and a nursing supervisor met with employees accused of
serious misconduct, LPNs did not effectively recom-
mend discipline where the director of nursing and nurs-
ing supervisor determined the discipline).
We find that the Respondent failed to show that Rien-
deau, Reak, Dome, or Sack disciplined or effectively
recommended disciplining employees within the mean-
ing of Section 2(11) of the Act.
Thus, the Respondent did not demonstrate that Rien-
deau, Reak, Dome, or Sack possessed supervisory au-
thority to reward, assign, responsibly direct, or disci-
pline employees, or effectively to recommend such ac-
tions. Nonetheless, the Respondent implicitly argues
that those four department managers are statutory super-
visors because the Respondent has demonstrated that
other department managers possessed such supervisory
authority. However, the Respondent did not request that
the judge treat the 22 department managers as a class.
Under the Respondent’s “Store within a Store” (SWAS)
approach, each department, by design, is managed dif-
ferently, so we cannot assume that the authority of every
department manager is the same. Further, despite being
the party with greatest access to personnel records and
to other potentially relevant evidence regarding depart-
13 No evidence addressed the authority of Reak (stationery) to assign
or responsibly direct associates.
14 No evidence addressed the authority of Reak (stationery), Dome
(paper goods, chemicals, and furniture), or Sack (housewares) to disci-
pline or effectively recommend disciplining associates.
WAL-MART STORES 225
ment managers’ functions, the Respondent did not intro-
duce evidence indicating that the department managers
possessed uniform supervisory authority as a class.
To the contrary, the Respondent’s store manager,
Shockley, testified that only some department managers
determined associates’ final performance rating. He
also conceded that assistant store managers had ultimate
authority over performance evaluations, and that they
only delegated that authority to department managers
from time to time. Likewise, the department manager of
pets, Linda Grinde, testified that whether she possessed
authority to determine the final performance ratings of
associates depended on who was her assistant store man-
ager. Clearly, the record evidence fails to demonstrate
that all the department managers possessed uniform su-
pervisory authority. Thus, even assuming arguendo that
the Respondent has demonstrated that other department
managers possessed supervisory authority, we have no
basis for inferring that Riendeau, Reak, Dome, or Sack
possessed it. Compare Pepsi-Cola Co., supra, 327
NLRB at 1064 (finding all account representatives to be
statutory supervisors because all possessed the same
authority to discharge employees even though some had
not been presented with the opportunity to exercise that
authority); Fred Meyer Alaska, Inc., supra, 334 NLRB
646, 649 & fns. 8, 9 (finding all meat and seafood man-
agers to be statutory supervisors because all possessed
authority to hire and/or to effectively recommend hiring
even though some had not been presented with the op-
portunity to exercise that authority).
For all the above reasons, we find that the Respondent
has failed to demonstrate that department managers
Riendeau, Reak, Dome, and Sack are supervisors under
Section 2(11) of the Act.15 Accordingly, we find that
the Respondent’s instructions to them—that they could
not participate in union activities, that it would be
unlawful for them to do so, and that they were to report
union activity to management—violated Section 8(a)(1)
of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Wal-
Mart Stores, Inc., Grand Rapids, Minnesota, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Cease and desist from

15 We find it unnecessary to decide the supervisory status of the re-
maining 18 department managers because doing so would not materi-
ally affect the Order.
(a) Implementing and maintaining a broad rule pro-
hibiting employees from discussing their wages and
benefits among themselves.
(b) Telling employees that they are not permitted to
discuss their wages and benefits among themselves and
threatening them with termination if they do so.
(c) Telling its department managers who are not statu-
tory supervisors that they cannot participate in union
activities, that it would be unlawful for them to do so,
and to report union activity to management.
(d) Implicitly threatening Deborah Hager or any other
employees that they could be terminated because of their
union activity.
(e) Changing the work schedule of Sherry Nelson or
any other employees because of their union activity.
(f) 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule prohibiting employees from dis-
cussing their wages and benefits among themselves.
(b) Return Sherry Nelson to the schedule that she was
working prior to October 1, 1998.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful change
of Sherry Nelson’s work schedule, and within 3 days
thereafter, notify her in writing that this has been done
and that the schedule change will not be used against her
in any way.
(d) Within 14 days of service by the Region, post at
its facility in Grand Rapids, Minnesota, copies of the
attached notice marked “Appendix.”16 Copies of the
notice, on forms provided by the Regional Director for
Region 18, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
employees employed by the Respondent at any time
since March 14, 1998.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps the Respondent has taken to com-
ply.

CHAIRMAN BATTISTA, dissenting in part.
I agree with my colleagues in all respects, except for
their adoption of the judge’s finding that the Respondent
violated Sec. 8(a)(3) and (1) by changing the work
schedule of Sherry Nelson on October 1, 1998, because
of her union activity. Contrary to the judge, I find that
the General Counsel has not established that the Re-
spondent knew that Nelson was a union supporter.
Therefore, I conclude that the General Counsel failed to
establish a prima facie case under Wright Line1 that un-
ion activity was a motivating factor behind the decision
to change her work schedule.
Sherry Nelson was a sales associate who worked
Monday through Friday in the lawn and garden depart-
ment, from 6 a.m. to 3 p.m. In October 1998, after the
organizational campaign commenced, the Respondent
changed her hours to 7 a.m. to 4 p.m., Monday through
Friday, including some weekend work. The judge found
that this change was made in response to Nelson’s sup-
port for the Union. I disagree.
Nelson was a participant in the organizational cam-
paign at the Respondent’s store, but not in a manner that
identified her as a union supporter. She passed out un-
ion related literature, but this literature did not advocate
a position supportive of the Union. It was simply gener-
alized information gathered from the internet and ency-
clopedias. Nelson distributed it for the purpose of edu-
cating her fellow employees about the role that unions
play in the work force.
This conduct could not have caused the Respondent to
believe that Nelson was a union supporter. In any event,
she dispelled any such notion in conversations that she
had with store manager Shockley. In one conversation,
she told Shockley of her intent to attend a union meeting
just “to find out what the [Union] was all about . . . be-
cause . . . I wanted to know what I was voting on.”
Shockley actually encouraged her to go to the meeting
and stated that “everybody should go and find out about
it and make that decision.” In a later conversation, Nel-
son told Shockley that she was still undecided about the
Union and “didn’t know one way or another” and that

1 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
“[s]he just had a lot of questions herself and she was
curious.”
I conclude from these conversations and from her
leafletting activity that Nelson was a “fence-sitter” with
respect to supporting the Union and that the Respondent
knew that. There is no evidence that Nelson ever
changed her neutral view.
The judge found that a particular allegation of the July
30 complaint “unquestionably pertain[s] to Nelson,”
identifying her as a union supporter. The allegation in
question is that Shockley unlawfully solicited grievances
from employees by suggesting that they form a group to
discuss their problems with individuals from the Re-
spondent’s home office in Arkansas. Assuming ar-
guendo that Shockley would infer that the complaint
referred to his alleged conversation with Nelson and
others, that would not establish that Shockley knew that
Nelson was prounion. An employer could solicit anti-
union employee to stay that way, neutral employees to
be antiunion, and prounion employees to change their
minds. As I have shown, Nelson had expressed neutral-
ity to Shockley.
The majority seems to suggest that Nelson’s activities
indicated a prounion bent, noting that she broached to
Shockley the idea of forming a group of employees to
meet with the Respondent about employee complaints. I
disagree. Where, as here, an employee suggests in the
midst of an organizing campaign that employee com-
plaints can be dealt with through nonunion group action,
I am inclined to view that employee as one who sees no
need for a union.
My colleagues say that it is “undisputed” that Nelson
engaged in protected activity and that the Respondent
knew of this. This reference can only mean the alleg-
edly protected activity of talking about the Union as a
neutral, as distinguished from prounion conduct. My
colleagues then make the assertion that the Respondent
violated Section 8(a)(3) by changing Nelson’s hours in
response to her talking about the Union. The main prob-
lem with this assertion is that it is not made by the Gen-
eral Counsel. The General Counsel sought to show that
Nelson engaged in prounion activity, and was punished
therefor. Further the cases cited by my colleagues do
not support the proposition that an employer violates
Section 8(a)(3) by taking action against an employee in
retaliation for her neutral stance. As stated in Bay Cor-
rugated Container, 310 NLRB 450, 451 (1993), the
principle of Dawson Carbide is that, “in the context of a
union organizing drive, the discharge of a neutral em-
ployee in order to facilitate or cover up discriminatory
conduct against a known union supporter is violative of
Section 8(a)(3) and (1) of the Act.” As the Sixth Circuit
WAL-MART STORES 227
explained, adverse action taken against neutral employ-
ees in these situations

can best be analogized to the issue of liability when
innocent employees are laid off in mass with em-
ployees discharged for their union activities. In
those cases, it is well established that a showing that
the Company discharged each employee for union
activities is not necessary for finding § 8(a)(1) and
(3) violations if the cause of the discharges is anti-
union activities.

NLRB v. Rich’s Precision Foundry, 667 F.2d 613, 628
(1981).
Thus, the violations found with respect to the neutral
employees in Dawson Carbide and Bay Corrugated
Container were not committed, as the majority suggests,
in order to encourage neutral employees to oppose the
union; rather, the violations were based on the theory
that they were innocent “pawns in an unlawful design”
(Dawson Carbide at 389) directed against others whom
the employer knew to have engaged in prounion activity.
Here, however, the General Counsel did not contend,
and the judge did not find, that the schedule of neutral
employee Nelson was unlawfully changed as part of an
unlawful design directed at known union supporters.
Accordingly, in the absence of evidence that the Re-
spondent knew that Nelson engaged in prounion activ-
ity, Dawson Carbide does not support the majority’s
finding of a violation.
Accordingly, in the absence of evidence that Nelson
engaged in any conduct supportive of the Union’s posi-
tion in the organizational campaign, there can be no
finding that Respondent knew that she supported the
Union. This is a critical element that the General Coun-
sel must prove to sustain a prima facie case under
Wright Line that the Respondent’s decision to change
Nelson’s work schedule was unlawfully motivated.
Amber Foods, Inc., 338 NLRB 712, 714 (2002); Webco
Industries, 334 NLRB 608, 609 (2001).
My colleagues seek to distinguish Amber and Webco
on the ground that the General Counsel failed to show in
those cases that the employer knew that the employees
engaged in any protected activity. By contrast, my col-
leagues say that the Respondent knew that Nelson en-
gaged in “union talk” activity. However, as discussed
above, this theory is not argued by the General Counsel
and, in any event, is not supported by the cited cases.
For the reasons set forth above, I find that the General
Counsel has failed to establish that the Respondent knew
or even suspected that Nelson was a supporter of the
Union. Accordingly, I would dismiss the Section
8(a)(3) allegation regarding Nelson.2
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 any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT implement and maintain a broad rule
prohibiting employees from discussing their wages and
benefits among themselves.
WE WILL NOT tell employees that they are not per-
mitted to discuss their wages and benefits among them-
selves or threaten to terminate them if they do so.
WE WILL NOT tell our department managers who
are not statutory supervisors that they cannot participate
in union activities, that it would be unlawful for them to
do so, and to report union activity to management.
WE WILL NOT implicitly threaten Deborah Hager or
any other employees with termination because of their
union activity.
WE WILL NOT change the work schedule of Sherry
Nelson or any other employees because of their union
activity.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind the rule prohibiting employees
from discussing their wages and benefits among them-
selves.
WE WILL return Sherry Nelson to the schedule she
was working prior to October 1, 1998.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful change of Sherry Nelson’s work schedule,
and WE WILL, within 3 days thereafter, notify her in

2 Because I would dismiss this allegation based on the absence of
the Respondent’s knowledge of Nelson’s prounion activities, it is un-
necessary to consider the judge’s finding of Respondent’s animus.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
writing that we have done so and that we will not use the
schedule change against her in any way.
WAL-MART STORES, INC.

Karen Nygren Wallin, Esq., for the General Counsel.
Paul J. Zech, Esq., of Minneapolis, Minnesota, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge.
This case was tried in Grand Rapids, Minnesota, on April 26–
27, 1999, and in Minneapolis, Minnesota, on May 24, 1999.
The United Paperworkers International Union (Union)1 filed
charges and amended charges on March 2, June 12, and July
30, 1998, in Case 18–CA–14757 against Wal-Mart Stores, Inc.
(Respondent or Wal-Mart). A complaint was issued on July
30, 1998, alleging that the Respondent violated Section 8(a)(1)
of the Act by threatening, interrogating, and soliciting griev-
ances from employees.2 The Respondent timely filed an an-
swer to the complaint.
On October 5, the Union filed an additional charge against
the Respondent in Case 18–CA–15017,3 which was amended
on November 17, 1998, and January 27, 1999. On January 28,
1999, a complaint was issued on this charge alleging that the
Respondent violated Section 8(a)(1)(3) and (4) of the Act by
threatening employee Shirley Nelson and by discriminatorily
changing her scheduled workdays and hours. The Respondent
timely filed an answer to this complaint.
Also, on January 28, 1999, an order consolidating the cases
and notice of hearing was issued.4 The parties have been af-
forded a full opportunity to appear, present evidence, examine
and cross-examine witnesses, and file briefs.
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
The Respondent, a corporation, is a national retailer with a
store located in Grand Rapids, Minnesota, where during the
year ending December 31, 1998, it purchased and received
goods valued in excess of $50,000 directly from points located
outside the State of Minnesota and derived gross revenues in
excess of $500,000. The 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.

1 At the hearing, the Union’s name was corrected to reflect a formal
name change to Paper and Allied Chemical and Energy Workers Inter-
national Union (PACE) (Tr. 6, 9).
2 The complaint was again amended at the hearing to add the name
of Store Manager Mike Schockley to subpar. 5(b) and also to add a
subpar. 5(i). (Tr. 6, 9–10).
3 On October 6, an order was issued indefinitely postponing the
hearing scheduled in Case 18–CA–14757.
4 All dates are in 1998, unless otherwise indicated.
The Respondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. SECTION 10(B) MOTION TO DISMISS
At the hearing, the General Counsel moved to amend the
complaint in Case 18–CA–14757 to add paragraph 5(i) which
alleges that since on or about January 1999 the Respondent has
unlawfully threatened employees in violation of Section
8(a)(1) of the Act by including the following statement at the
bottom of their individualized profit sharing and benefits state-
ment: “This is confidential information for you and your fam-
ily and should not be shared with other associates/partners.”
The motion was granted over Respondent’s objection. In its
brief at page 40, fn. 8, Respondent renewed its objection and
moved to dismiss paragraph 5(i) of the complaint on the basis
that it is time barred by Section 10(b) of the Act.
The evidence discloses that the allegations in paragraph 5(i)
are closely related to the allegations contained in paragraph
5(h) of the complaint. Both paragraphs concern an alleged
threat to discipline employees for discussing their wages and
benefits in violation of Section 8(a)(1). Paragraph 5(i) involves
a written publication, containing an alleged threat, authorized
by a management official. Paragraph 5(h) involves an alleged
verbal threat made by a manager. Thus, I find that the alleged
unlawful conduct in both paragraphs involves the same legal
theory, arises from the same sequence of events, and entails
the same defense by Respondent. Reddl, Inc., 290 NLRB
1115, 1116 (1988).
Accordingly, I deny the Respondent’s renewed motion to
dismiss the allegations in paragraph 5(i) of the complaint.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of the Case
In late 1997, the Union sought to organize the Respondent’s
retail work force, including department managers, at its store
in Grand Rapids, Minnesota. The Respondent took the position
that the department managers were supervisors within the
meaning of Section 2(11) of the Act. At various times and in
various meetings, the Respondent’s management officials told
the department managers that they could not participate in the
organizing campaign because they were supervisors and there-
fore it would be unlawful. Also, the department managers were
told to report any union activity to management. Thus, the
primary issues in this case are (1) whether the department
managers are Section 2(11) supervisors and (2) whether the
statements made by the Respondent’s management officials
unlawfully interfered rights protected by Section 7 of the Act.
In the course of the organizing campaign, the Respondent’s
store manager had several conversations with the employees,
individually and in small groups, concerning his views on
unions and problems within the store. The store manager also
told the employees that they were not allowed to discuss their
wages and benefits with each other, and if they did, they could
be subject to discipline. Thus, additional issues exist as
whether the employees were unlawfully interrogated and
threatened and whether the store manager unlawfully solicited
grievances from the employees.
WAL-MART STORES 229
Finally, one employee, Shirley Nelson, was particularly
visible and vocal in the course of the union campaign. She
undertook a very studied approach to learning about unions
and the Union and she frequently discussed what she had
learned with the other employees and the store manager.
For many years, the posted schedule reflected that Nelson
was to work 7 a.m.–4 p.m., during the week, and every other
weekend. Instead, and with the approval and concurrence of
her department manager and the store manager, she actually
worked 6 a.m.–3 p.m., and no weekends.
In late September 1998, Nelson was subpoenaed to testify in
an upcoming Board hearing. Shortly thereafter, a support team
manager intimated to Nelson that her schedule arrangement
might be in jeopardy and suggested that she get it approved in
writing by her department manager. A few hours later, an as-
sistant department manager informed Nelson that effective
immediately she was to work 7 a.m.–4 p.m., and every other
weekend in accordance with the posted schedule. Thus, there
is an issue of whether the support team manager threatened
Nelson by implying that her schedule was under close scrutiny
and whether her schedule was changed because she was about
to testify at a Board hearing and/or because of her union activ-
ity.
B. Case 18–CA–14717
1. Background
Wal-Mart Stores, Inc. is the largest retailer in the United
States with headquarters in Bentonville, Arkansas. In 1990, it
opened Wal-Mart Store 1609 in Grand Rapids, Minnesota. In
February 1998, Store Manager (SM) Mike Shockley was di-
rectly responsible for the operations of Store 1609.5 Reporting
to him were three assistant store managers (ASM): Mark
Sayre, Jeff Breth, and Rachelle Branstrom.6 All of these posi-
tions are salaried.
Store 1609 (Store) has a personnel manager (PM), Barb Su-
nell, who interviews applicants, trains employees, oversees
employee benefits, maintains personnel and training records,
and assists the ASMs and the SM. There are eight support
team managers (STM) in store 1609, who actually perform
two jobs. They are primarily responsible for certain positions
in the Store7 and secondarily responsible as backups to the
ASMs, as needed. STM’s can open and close the store if asked
to do so by the SM and ASMs, staff the customer courtesy
desk, and make bank deposits. The PM and STMs are paid on
an hourly basis.
The store has approximately 33 separate merchandising ar-
eas divided into 23 departments, which are divided into three
groups, with one ASM responsible for each group on a rotat-
ing basis. Certain departments, such as shoes, jewelry, phar-
macy, and snack bar, are called speciality divisions. They rent

5 Schockley reported to District Manager (DM) Robert Morey, who
oversaw the merchandising operations of Store 1609 and eight other
Wal-Mart stores in the area.
6 Sayre was transferred to another Wal-Mart store in the summer
1998. He was replaced by ASM Elizabeth Iallonardo.
7 In 1998, the primary positions held by the STMs were stocker,
unloader, sales associate, department manager, overnight receiving
manager, and personnel manager.
space in the store, maintain their own profit-and-loss state-
ments, budget and payroll, and report to separate district man-
agers (i.e., they are not overseen by DM Morey).
All departments, including speciality departments, have a
department manager (DPM) and in some cases the DPM over-
sees more than one merchandising area. The DPMs are paid on
an hourly basis and work primarily during the day, Monday
through Friday. The departments are staffed by hourly paid
sales associates (SA), who work days, evenings, and week-
ends. Specialty sales associates are subject to the same terms
and conditions of employment as all other sales associates.
The remainder of the store’s work force is comprised of cus-
tomer service managers and cashiers at the front of the store,
greeters, unloaders, soft or hardlines processors (stockers) who
work the store during the day, overnight stockers, office sup-
port staff, and maintenance.
2. The Wal-Mart approaches
Wal-Mart utilizes various approaches to facilitate the opera-
tion of the Store and to improve performance. One such ap-
proach is called a store within a store (SWAS). SWAS was
designed to encourage the DPMs to take responsibility for
running their respective departments. The DPMs are allowed
to review sales figures, lower prices to be competitive, and
adjust their inventories as needed. DPMs can also review
weekly SWAS computer printouts to track merchandise and
sales.
DPMs are also encouraged to utilize two other approaches
to improve employee performance. The first, “coaching for
success” (or “coaching by walking around”), is an informal
ongoing process which seeks to give the employee instruc-
tional guidance and feedback on the sales floor. The second
approach is “coaching for improvement”, a formal disciplinary
process, which is used when “coaching for success is unsuc-
cessful. There are five levels of “coaching for improvement”:
verbal coaching, first written coaching, second written coach-
ing, decision making coaching/final written coaching, and
termination.
Finally, certain computer based learning (CBL) modules
are available to the DPMs. These training modules provide an
overview of topics such as recruiting the best, delegation,
coaching for improvement, diversity awareness, performance
reviews, and team building. These courses are not available to
sales associates and stockers.
3. Department managers’ responsibilities
The job description for DPMs discloses that their responsi-
bilities include involvement with planning, assigning and di-
recting work, appraising performance, rewarding and coaching
sales associates, and addressing complaints and resolving
problems. The document also specifies that DPMs “assist
Management with Stocker’s performance reviews, coaching
and commendations.” (Jt. Exh’s. 5, 85, 89, 90, and 94.)
a. Interviewing and hiring
The Respondent has a five-step interview process, which
originates with PM Sunell. At step one, Sunell screens the
prospective employee. At step two, a member of the interview
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
screening committee interviews the applicant.8 At step three,
the applicant completes a standardized personality survey, the
results of which are discussed with an ASM or the SM at step
four. The last step is a drug test. Sunell testified that the proc-
ess could end at any step, except the drug test. If an applicant
passes the drug test, they are hired. (Tr. 451.)
DPMs who participate in the interview process make rec-
ommendations, which sometimes are followed. PM Sunell
testified that DPMs do not have the authority to hire or fire
sales associates, only the SM has that authority. (Tr. 463, 465.)
She also testified that an applicant may or may not be hired,
even though a DPM has recommended them for hire. (Tr.
452.) DPM Heidi Johnson, who was on the interview screen-
ing committee in 1998, stated that she although she made rec-
ommendations as to whether an applicant should be hired, the
final decision rested with “management.” (Tr. 481–482.)
Not all DPMs have participated in the interview process and
DPMs do not necessarily interview applicants for openings in
their respective departments. DPM Carol Riendeau (hardware
and paint) testified that she was involved with the interview of
only one applicant in the 4 years she has been a DPM. (Tr.
156–157). Riendeau, and DPMs Simmonette (shoes) and
Camilli (sporting goods) testified that applicants have been
hired for their departments that they never interviewed, and
never met, until Sunell brought them to the department. (Tr.
107, 157, 593.)
b. Discipline
DPMs have not been uniformly involved with the discipli-
nary process. More notably, for those who have used the proc-
ess, their involvement has not extended beyond the second
level, i.e., the first written coaching. DPM Burt testified that,
after verbal coaching failed, she issued a first written coaching
to a pharmacy employee for punching out early. (Tr. 386–
388.) The disciplinary form was countersigned by the chief
pharmacist. (R. Exh. 9, p. 273.) DPM Heidi Johnson testified
that she gave a first written warning to a jewelry department
associate for leaving merchandise in an unsecure location. (Tr.
486.) While she can initiate verbal coaching on her own (level
one), she must touch base with the SM or specialty DM before
initiating a written coaching. (Tr. 487.) DPM Riendeau testi-
fied that after an unsuccessful attempt at verbally coaching a
hardware associate for abusing sick leave, ASM Mark Sayer
gave the associate the first written coaching. Although Rien-
deau did not complete the disciplinary form, she was present
when the ASM reviewed it with the sales associate. (Tr. 154.)
DPM Mindy Simonette is the only DPM to testify about an
attempt to terminate an associate. She testified that, after con-
ferring with specialty DM Bast, she gave a sales associate a
first written warning for poor performance. When the associate
failed to improve, Simonette recommended to Bast that the
associate be terminated. Bast told her to prepare the termina-
tion papers. ASM Branstrom, however, countermanded that

8 Sunell testified that the interview screening committee is com-
prised of five employees selected by management. (Tr. 455.) In 1998,
the committee members were Kim Shannon (invoice clerk) and Laurie
Bonham (claims clerk) both office support staff and DPMs Heidi John-
son (jewelry), Amy Martyre, and Danita Camilla (automotive).
directive, telling Simonette that she was not allowed to make
that decision. (Tr. 110.) After Simonette conveyed Bran-
strom’s comments to Bast, the associate still was not termi-
nated. Instead, he was transferred to a cashier position in the
front end. In another instance, ASM Branstrom allowed Si-
monette to sit-in on the exit interview of a shoe associate, who
was being terminated. Branstrom conducted the interview,
Simonette observed. (Tr. 111–112.) Afterwards, SM Shockley
told Branstrom that Simonette should not have been allowed to
sit in.9
c. Performance evaluations
The Respondent has a written policy procedure for conduct-
ing associate performance evaluations. The PM alerts the
ASM/immediate supervisor that an evaluation is due, the
ASM/immediate supervisor completes and conducts the
evaluation, the SM reviews the evaluation, approves or denies
any recommended increase, signs the evaluation, and gives it
to the PM. The PM keys the evaluation rating into the com-
puter and files the evaluation. (R. Exh. 12, p. 309.) Although
the policy specifically defines the respective responsibilities of
the PM, ASM, and SM, there is no defined role for a DPM.
Rather, the written procedures state that the ASM should
check with the DPM and/or immediate supervisor before con-
ducting the evaluation.
Evaluation ratings are used to determine pay raises. An out-
standing rating warrants a 6-percent raise; above-standard
rating warrants a 5-percent raise; a standard rating a 4-percent
raise; and a below standard rating warrants no raise.10
SM Shockley testified that some DPMs have done perform-
ance evaluations and, of those, sometimes the DPMs are in-
volved in determining the ratings. (Tr. 307, 309.) Shockley
added, however, that the ASM has ultimate responsibility for
getting evaluations done. (Tr. 370.) He also explained that
sometimes ASMs delegate the responsibility for completing
evaluations to the DPMs. In the pharmacy, a specialty depart-
ment, DPM Anna Burt testified that she regularly does the
evaluations for the associates in her department. She also testi-
fied that the chief pharmacist must sign the evaluation form
and that he has the final say. Burt added, however, that he
seldom, if ever, has disagreed with her assessment. In contrast,
DPM Riendeau (paints/hardware) testified that although ASMs
have asked her to evaluate the strengths and weaknesses of
sales associates, she turned the information over to the ASM,
who completed the evaluation form. Riendeau stated that she
has never determined the rating for an associate, has never
been advised afterwards of the final ratings, and does not
9 In the summer 1998, SM Shockley terminated two lawn and garden
associates without the knowledge of lawn and garden DPM Shirley
Heaton. When Heaton found out about the terminations the next day,
she expressed her dissatisfaction to Shockley because she was not
involved in the decision.
10 In addition to pay raises tied to performance evaluations, a sales
associate can receive a merit pay increase. Merit increases have to be
approved first by the SM or in the case of a specialty department, the
specialty DM and the SM. (Tr. 501.) Some DPMs have successfully
recommended merit pay increases for sales associates.
WAL-MART STORES 231
know when a raise is given. She also has not participated in an
evaluation conference.
d. Assigning tasks
DPMs assign tasks on a daily basis to sales associates. In
the smaller departments (pets, toys, stationary, softlines, health
& beauty, chemicals/paper/furniture), the DPMs work primar-
ily alone during the day. (Tr. 149, 190.) They may leave writ-
ten instructions (a “to-do” list) for the evening department
associate(s) or store floater associate(s) assigned to that de-
partment. (Tr. 152, 190.) If the evening associate does not
complete the listed tasks, the DPM may work on them the next
day or an associate may work on it again the following eve-
ning. In the pharmacy, a speciality department, DPM Burt
testified that there were approximately six associates in her
department in 1998, who she delegated work to depending on
what displays needed attention and who was available to work
the counter. In a larger department, like lawn & garden, which
had approximately 15 associates in 1998, DPM Shirley Heaton
testified that she directs the daily work of associates and
makes assignments based on individual staff members’
strengths and schedules. (Tr. 545.) In most cases, regardless of
the department, the DPM performs many of the same work
tasks as the associates, often working along side of them.
Sporting Goods DPM Danita Camilla testified that in 1998
there were seven associates in her department. She neverthe-
less unloaded freight and stocked shelves like the sales associ-
ates. She also delegated these tasks to associates based on their
capabilities and experience.
e. Scheduling
In nonspecialty departments, large and small, the scheduling
of sales associates is accomplished by a computer program
called preferred scheduling. The schedule is usually generated
about 3 weeks in advance of the week to be worked and the
printed schedule is posted by the breakroom. In some depart-
ments (e.g., lawn and garden, and sporting goods), the DPMs
have adjusted associate schedules to meet department schedul-
ing needs, even though SM Shockley testified that upper man-
agement approval is required before doing so. (Tr. 348.)11
DPMs have borrowed associates from other departments with
the concurrence of the other DPM to fill scheduling needs and
can lend out associates to other departments for the same rea-
son. Sporting Goods DPM Camilla testified that there have
been times when she has sent home associates for lack of work
and that she does not need upper management’s approval to do
so.
In the pharmacy, a specialty department, DPM Burt testified
that the chief pharmacist gives her the numbers she needs to
manage the staff and the gross hours available. She works up a
schedule from that. She has to make sure that the department is
covered, and at the same time stay within budget. If the de-
partment needs extra staff, she needs the approval of the spe-
cialty DM or she sometimes asks the PM to find help from
another department. DPM Burt testified that associates used to
contact her when they called in sick, but recently her specialty

11 At another point in the hearing, SM Shockley testified that DPMs
can change schedule without prior approval. (Tr. 370.)
DM told her that the associates needed to contact the PM. In
the jewelry department, DPM Heidi Johnson testified that she
and her specialty DM determine how many man-hours are
needed to staff the department depending on the projected
increase in sales versus the hourly wages of the associates.
Together they set the staffing policy, but she works out the
actual schedule.
Lawn and Garden DPM Sherry Heaton testified that if she
needs help in her department she could arrange with another
DPM to borrow an associate and upper management would not
be involved, so long as extra staff time was not required. If
someone calls in sick, Heaton has the option of borrowing
from another department or calling in a lawn and garden asso-
ciate. Similarly, Sporting Goods DPM Danita Camilla testified
that although associates are scheduled by computer, she could
rearrange the schedule to get coverage, by asking associates to
change shifts or by borrowing associates from another depart-
ment after asking the associate and the respective DPM. She
does not need prior approval from an ASM.
4. The organizing campaign
In late 1997, the Union sought to organize the retail work
force at Store 1609, including the DPMs. Employee Deb
Hager initiated the organizing drive by contacting the Union.
She talked to coworkers about joining the Union, enlisted their
help, and solicited signatures on union authorization cards. At
least four DPMs signed authorization cards.
In January 1998, ASM Mark Sayre became aware that some
employees had signed union authorization cards. He phoned
the Respondent’s union hotline to report the occurrence. That
triggered a phone call from Mark Shafer in corporate head-
quarters to DM Morey. Shafer told Morey that he and some
other corporate officials would arrive in Grand Rapids that
weekend to assess the situation. The next day, Friday, SM
Shockley spoke with Morey, who advised him to remain calm
and wait for corporate assistance. Two days later, Sunday,
Shafer along with two other corporate officials, met with
Morey, Shockley, and the three ASMs to plan a strategy. A
special meeting of all stores personnel above the sales associ-
ate level was arranged for the following day at a nearby motel.
The next day, Monday, a special meeting was held at the
Rainbow Inn attended by Shafer, his corporate staff, Morey,
Shockley, the three ASMs, PM Sunell, all the STMs, and all
the DPMs. Morey had heard rumors that some DPMs were
involved in the union organizing campaign. He, along with
Shafer, told the DPMs that they could not participate in the
union activity because they were supervisors. If they went to
union meetings they would be breaking the law. Morey also
told the DPMs that they should report any union activity.
Later the same day, at a regular daily meeting, Shockley
told the sales associates that a union was attempting to organ-
ize the employees and that the Store did not need a union. For
the next week or so, various personnel from the corporate of-
fice visited the Store daily, greeting employees, watching them
work, and generally acting overly friendly.
In the weeks following the Rainbow Inn meeting, Shockley
and the ASMs reinforced the idea that DPMs could not par-
ticipate in union activities. DPM Simmonette testified that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
ASM Branstrom told her that she was a supervisor and could
not vote for a union. (Tr. 112.) DPM Danny Dome stated that
after the Rainbow Inn meeting, he told ASM Mark Sayre that
he wanted to hear both sides of the argument, but Sayre told
him that if he went to a union meeting he would be violating
federal law. (Tr. 187.) A short time later, on February 3, Dome
attended a DPM meeting led by DM Morey, who reiterated
that if a DPM heard of any union activity they should report it.
(Tr. 188.) DPM Riendeau recalled attending small group meet-
ings in mid-February 1998, where Shockley explained his
opposition to the Union. When Riendeau stated her desire to
go to a union meeting to hear the other side of the story,
Shockley told her she could not go to union meetings. (Tr.
168–169.) According to Riendeau, she then asked Shockley if
the employees could take a group complaint to corporate
headquarters. Shockley dismissed the idea out-of-hand.
5. Sherry Nelson’s involvement with the union
Sales Associate Sherry Nelson quickly became involved in
the union organizing campaign. She attended union meetings
and distributed literature to other employees, including DPMs.
She researched information about unions on the internet and
discussed her findings with store personnel, including SM
Shockley.
On one occasion, Nelson told Shockley that she was going
to encourage other employees, and some DPMs, to attend the
union meetings. Shockley told it was all right for sales associ-
ates to attend, but DPMs were supervisors and therefore they
could not get involved. (Tr. 214.)
Nelson testified that during one of her conversations with
Shockley about the Union, he told her that he could not under-
stand the need for a union because the complaints that he had
heard about were pretty petty. (Tr. 215.) Nelson stated that she
disagreed, and pointed out to him that the complaints were
serious and could not be handled at the store level. She further
testified that at that point Shockley suggested that she organize
a panel to go to corporate headquarters in Bentonville, Arkan-
sas or have some corporate representatives visit the store.
When she asked Shockley about the employee panel a few
days later, he told her it would not be possible. (Tr. 216.) In
contrast, Shockley testified that the idea of going to the corpo-
rate offices was Nelson’s idea. He denied having told Nelson
to organize a panel. For demeanor reasons, I credit Shockley’s
testimony on this issue.
C. Case 18–CA–15017
For years, Nelson had worked 6 a.m.–3 p.m., in the lawn
and garden department with the consent of her DPM, Shirley
Heaton, even though the official computer generated schedule
showed her as working 7 a.m.–4 p.m. On or about September
24, 1998, Nelson received a subpoena to testify in a Board
hearing.
On Thursday, October 1, STM Vicki Johnson and Nelson
were talking in the break room. When Johnson asked Nelson
about her 6 a.m.–3 p.m. schedule, Nelson told her that it had
been approved by SM Shockley. According to Nelson, John-
son then suggested that she might want to get the approval
confirmed in writing.
A few hours later, ASM Branstrom questioned Nelson about
her hours and informed her that starting immediately she must
be begin working 7 a.m.–4 p.m. in accordance with the com-
puter generated schedule. It also meant that Nelson had to
work the upcoming weekend. Nelson immediately complained
to her DPM Heaton, pointing out that she had tickets for a
concert on the weekend. Although Heaton found a substitute to
work for Nelson over the weekend, she told Nelson that the
matter was out of her hands. Nelson began working her new
hours the following Monday.
When Nelson reported to work at 7 a.m. on Monday, she
noticed that Stocker Robbie Bartick was performing the duties
that she normally performed at 6 a.m. in the lawn and garden
department. Upon further inquiry, Nelson learned that Bar-
tick’s new assignment was to unload freight in the lawn and
garden department starting at 6 a.m. Although Nelson com-
plained to Heaton, Shockley, and Morey about the change in
hours, nothing was done about it.
IV. ANALYSIS AND FINDINGS
A. The Supervisory Issue
Section 2(11) of the Act defines a supervisor as:

Any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such au-
thority is not of a routine or clerical nature, but requires
the use of independent judgement.

The statutory language is disjunctive, and the exercise of
any one of the listed indicium is sufficient to find that an indi-
vidual is a supervisor. Energy Systems & Services, 328 NLRB
902 (1999). The duties must be exercised with independent
judgment on behalf of management and not in a routine man-
ner. Masterform Tool Co., 327 NLRB 1071 (1999). The Board
does not construe supervisory status too broadly because the
employee who is deemed a supervisor loses his protections
under the Act. Tree-Free Fiber Co., 328 NLRB 389 (1999).
Finally, the burden of proving supervisory status is on the
party asserting that such status exists. Chevron U.S.A., 309
NLRB 59, 62 (1992).
1. Hiring
The evidence discloses that DPMs do not have the authority
to hire or fire employees. (Tr. 463, 465.) Those decisions are
made by the SM. As for hiring, DPMs have limited involve-
ment in the interview process. At best, a DPM may participate
as one of five members on the interview screening committee.
Under that arrangement sometimes their recommendations as a
member of the screening committee have been followed;
sometimes they have not. Often the DPM on the interview
screening committee interviews an applicant for a position in
an unspecified department or a department other than the
DPM’s department. Indeed, sometimes DPMs are not involved
at all in interviewing applicants for their departments. Rien-
deau, Simmonette, and Camilli all testified that applicants
WAL-MART STORES 233
have been hired for their department that they met for the first
time when PM Sunell brought them to the department
2. Firing
As for firing, DPMs play no role in firing employees. DPM
Simonette testified that she once recommended to her special-
ity DM that a marginally productive employee be terminated.
Although he concurred and instructed her to prepare the neces-
sary paperwork, ASM Branstrom told her she was not allowed
to make that decision. The associate was not terminated, but
was transferred to another department. In another instance,
ASM Branstrom allowed Simonette to sit in on the exit inter-
view of a sales associate who was being terminated. After-
ward, SM Shockley told Branstrom that Simonette should not
have been allowed to sit in either. Lawn and Garden DPM
Heaton had no involvement in the firing of two associates in
her department by SM Shockley. She was irked that he took
such action without consulting her and without considering
whether they should have been coached or given a first written
warning.
3. Discipline
The DPMs involvement in the disciplinary process (“coach-
ing for improvement”)12 is equally circumscribed and widely
varies between departments. While the evidence shows that
some DPM’s have verbally coached employees, only a few
have issued a first written warning (the second step of the Re-
spondent’s five-step disciplinary process). In those few in-
stances, they first had to obtain the approval of upper man-
agement before proceeding. DPM Burt testified that she
needed to get the chief pharmacist to countersign her form (R.
Exh. 9, p. 273) and DPM Johnson testified that she must touch
base with the SM or speciality DM before initiating a written
coaching. Most revealing is the lack of evidence showing in-
volvement by a DPM beyond the first written warning phase.
4. Evaluations
With respect to performance evaluations, the Respondent
has a written policy, which specifically defines the respective
responsibilities of the PM, ASMs, and SM, but does not define
a specific role for a DPM. Shockley testified that ASMs are
ultimately responsible for getting evaluations done and that
they sometimes delegate that responsibility to a DPM. His
testimony that “some” DPMs have done performance evalua-
tions and that “sometimes” they are involved in determining
ratings is revealing. The evidence shows that no DPM, acting
alone, has the authority to evaluate a sales associate. All re-
quire the countersignature of upper management somewhere
along the line. Even though DPM Burt testified that she regu-
larly does the evaluations for associates in her department and
that her assessments are seldom disturbed, she conceded that
the chief pharmacist must countersign the form because he has
the final say. DPM Riendeau testified that while she has pro-
vided information evaluating the strengths and weaknesses of
sales associates to ASMs, the ASMs complete the form. She
does not determine the rating nor even know what it is. Thus,

12 Most DPMs take part in “coaching for success,” which precedes
the disciplinary stage of Coaching for Improvement.
the evidence shows that some DPMs have had some input in
the evaluation process and that sometimes they are involved in
determining ratings.
5. Scheduling
The undisputed evidence shows that scheduling is done
largely by computer 3 weeks in advance. Although the DPMs
have some flexibility, after the computer schedule is posted, to
borrow and lend sales associates to meet workflow peaks and
valleys and to fill-in gaps, their ability to do so is limited.13
At one point, SM Shockley testified that the DPMs cannot
adjust the computer schedule by themselves, but must obtain
approval of upper management. (Tr. 348.) He later contra-
dicted himself by testifying that DPMs can change the sched-
ule without obtaining higher approval, referring to DPM
Shirley Heaton to illustrate the point. (Tr. 370.) But Heaton
testified that she lost control of scheduling in April 1998. (Tr.
550, 566.) The limitations imposed on Heaton’s authority to
alter the computer schedule are illustrated by the events sur-
rounding the rescheduling of Sherry Nelson. For years, Nelson
worked from 6 a.m.–3 p.m., with Heaton’s consent, encour-
agement, and approval, even thought the computer schedule
reflected her hours as 7 a.m.–4 p.m. Then, in late September
1998, Nelson’s hours were changed by store management
without Heaton’s knowledge or consent. Although Heaton
admittedly was upset, she told Nelson that the matter was out
of her hands. Thus, the evidence supports a reasonable infer-
ence that the DPMs have had much less latitude to alter sched-
ules since April 1998.14
6. Task direction
Although DPMs provide direction to the sales associates
and assign them tasks to do, these are routine decisions, which
do not involve the exercise of independent judgment. The “to-
do” lists are a good example of the type of directions given by
the DPMs. The lists reflect instructions such as “leave inside
end cap empty for tide—on tonites trucks, and Dept. #17 work
in any furniture that will go-neatly and right side up!” (R.Exh.
13(a).) Also, “the blacks on the tables need to be done tonight
Amy and I did the 3 tables by the Halloween stuff and the 3
tables by men’s wear . . . wipe down all cupboards. Amy and I
did insides.” (R. Exh. 9.) In the lawn and garden department,
DPM Shirley Heaton wrote down the delegation of duties by
shifts, i.e., “8–5 shift-stocking inside; 9–6 shift-parking lot,
stock inside. Dusting displays; . . . closing shift-Bagged goods
13 The undisputed evidence discloses that DPMs have absolutely no
authority to issue or approve overtime. Shockley testified that he sel-
dom approves overtime because it is a reflection of poor management.
14 The evidence shows, however, that in the pharmacy department (a
specialty department), the chief pharmacist gives the DPM the gross
number of hours that she can schedule in accordance with the depart-
ment’s budget. She then sets the schedule within the parameters set by
the chief pharmacist, subject to his approval. (Tr. 380, 390.) In another
specialty department (jewelry), the evidence shows that the DPM,
along with her DM, sets staffing policy by which the DPM then sched-
ules the sales associates. (Tr. 480.) Thus, even in a specialty department
where the DPM has greater latitude to schedule sales associates, the
scheduling must be done within set parameters subject to approval by
higher management.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 234
area, stocking inside. Closing Card.” The instructions also
state “[t]his is an outline of what’s expected on you every day.
You will have additional projects each day on top of these,
such as; unloading trucks, merchandising plants, and etc.” (R.
Exh. 10, p. 279.) The credible evidence discloses that some-
times these instructions are carried out, sometimes they are
not, but more often than not, the DPM completes the tasks or
part of the task the next day. Thus, I find that it is not the level
of decision making that would warrant a finding of supervi-
sory status.
7. Training
The CBL training modules that the DPMs attend before or
during their tenure as DPM, provide a basic overview of vari-
ous functions that the DPM may participate in, but do not alter
the DPM’s actual involvement as described above. If anything,
some of the CBL underscore the limited involvement, input,
and discretion that DPMs have in areas germane to determin-
ing supervisory status. For example, the Respondent on brief
at page 30 partially cites an excerpt from the Food Service
Dept. Mgr. Overview Lesson for the proposition that it confers
upon the DPM the authority to effectively recommend hiring.
A review of the complete citation (Jt. Exh. 2, p. 316) however,
suggests just the opposite.

Store Management does the interviewing and hiring of the
Food Service associates. They follow the same guidelines
used in hiring Associates for other departments in the
store. Some Managers may ask you to sit in on the inter-
view, or to actually perform the interview. Some Manag-
ers may allow you to do your own interviewing and hir-
ing. Participating in the interview allows you to be in-
cluded in the decision of who is hired for your department
and gives you the opportunity to choose the type of per-
son you need to service your Customer. [Emphasis
added.]

This excerpt, relied upon by the Respondent, falls short of
establishing that DPMs have the authority to, and effectively
do, recommend hiring. It is also inconsistent with record evi-
dence reflecting their actual involvement, or lack thereof, in
that process. Thus, the fact that DPMs are required at some
point to attend these CBL training modules does not confer
upon them supervisory status.15
In sum, the evidence discloses that the DPMs do not exer-
cise their responsibility with independent judgment or perform
such duties that would confer supervisory status. Accordingly,
I find that the DPMs are not supervisors within the meaning of
Section 2(11) of the Act.
B. Case 18–CA–14757:ULPs
1. Unlawfully prohibiting the discussion of wages
SM Shockley testified that the Respondent once had a for-
mal policy forbidding associates from discussing wages, which

15 Nor does the fact that DPMs are paid 50 cents more than sales as-
sociates confer supervisory status. Pay differential is a secondary indicia
of supervisory status and, in the absence of primary indicia of supervi-
sory status as enumerated in Sec. 2(11), is insufficient to establish super-
visory status. Masterform Tool Co., 327 NLRB 1071, 1072 (1999).
was eliminated 5 years ago. (Tr. 279.) The credible evidence
shows, however, that in a benefits and compensation statement
issued on or about January 1, 1999, the Respondent told em-
ployees in writing that the contents therein was confidential
information and should not be shared with other associates.
(GC Exh. 2.) Thus, the evidence supports a reasonable infer-
ence that the policy exists today.
In addition, DPM Riendeau testified that Shockley told her
that talking about wages was not allowed by the Respondent
and that it could be grounds for termination. Although
Shockley admitted that he told associates not to discuss their
wages with each other, he denied that he told them that it
could or would result in discipline. His testimony is unpersua-
sive. Three current sales associates, Virginia Pittack, Deb
Hager, and Barb Hueston, corroborated Riendeau’s testimony
and I find that their testimony is apt to be particularly reliable.
(Tr. 28, 80, 50.) Farris Fashions, 312 NLRB 547, 554 (1993),
enfd. 32 F. 3d 373 (8th Cir. 1994). For this, and demeanor
reasons, I credit the testimony of Riendeau that Shockley
threatened disciplinary action if the sales associates discussed
their wages.
Accordingly, I find that the Respondent has violated Section
8(a)(1) of the Act by telling employees that they were not al-
lowed to discuss wages and benefits and that they could be
terminated for doing so as alleged in paragraph 5(h) of the
complaint in Case 18–CA–14757. Main Street Terrace Care
Center, 327 NLRB 522, 525 (1999).
With respect to the allegations in paragraph 5(i) of the com-
plaint, I find that while the sentence contained in the wage and
benefit statement does not constitute a threat, it does unlaw-
fully interfere with the Section 7 rights of the employees.
Franklin Iron & Metal Corp., 315 NLRB 819 (1994); Inde-
pendent Stations Co., 284 NLRB 394, 396 (1987). Accord-
ingly, I find that the Respondent has violated Section 8(a)(1)
of the Act by maintaining a rule prohibiting the discussion of
wages and benefits.
2. Unlawfully restricting DPMs from participating in union
organizing activity
The undisputed evidence shows that DM Morey, as well as
ASMs Sayre and Breths told the DPMs that they could not
participate in union activities and that it would be unlawful for
them to do so. In addition, DM Morey testified that he told
DPMs to report union activity. DPM Dome testified that DM
Morey also told the DPMs to break up conversations about the
Union between employees, but Morey denied doing so. (Tr.
532.) For demeanor reasons, I credit Morey’s testimony that
he did not instruct the DPMs to break up conversations.16
I nevertheless find that by telling the DPMs that they were
not allowed to participate in union activity and that they
should report union activity to management, the Respondent
violated Section 8(a)(1) of the Act as alleged in paragraphs
5(a), 5(b), and 5(c) of the complaint.
16 I therefore shall recommend that the allegation in par. 5(c) of the
complaint concerning the alleged instruction by DM Morey to break up
conversation between two or more employees be dismissed.
WAL-MART STORES 235
3. Alleged threats by corporate office staff
DPM Danny Dome testified that at the morning meeting at
the Rainbow Inn on or about February 2, 1998, someone un-
familiar to him from the corporate offices spoke to the DPMs
about the Union’s organizing drive. The unidentified speaker
stated that unions had tried without success to organize Wal-
Mart before and while he did not know much about this Union,
Wal-Mart usually won their cases. The General Counsel ar-
gues that these statements constitute a threat concerning the
futility of organizing or bargaining. I disagree. I do not infer a
threat from the statement. Rather, I find that the statement
expressed a view and opinion protected by Section 8(c) of the
Act. I therefore shall recommend that the allegations of para-
graph 5(d) of the complaint be dismissed.
4. Alleged solicitation of grievances by SM Shockley
DPM Riendeau testified that in mid-February 1998, she at-
tended a small group meeting held by SM Shockley during
which he expressed his opposition to the Union. She further
testified that in the course of the meeting, she asked Shockley
if the employees could take a group complaint to corporate
headquarters in the form of a grass roots type process.17 (Tr.
167, 171). Riendeau stated that when she recommended that a
panel go to corporate headquarters, Shockley dismissed the
idea.
In contrast, Nelson testified that in one of the many conver-
sations that she initiated with Shockley about the Union, she
told him that the employees’ complaints were serious and that
they could not be handled at the store level because he,
Shockley, had no control over them. According to Nelson,
Shockley suggested organizing a panel to go to corporate
headquarters or having some corporate representative visit the
store. (Tr. 215.) Shockley, however, denied that he suggested
organizing an employee panel. Rather, he testified that Nelson
suggested taking a group of associates to the home office to
get information and that all he did was point out that a grass
roots was coming up soon. He also denied initiating the idea of
a panel going to the corporate headquarters. (Tr. 272–274.) I
credit Shockley’s version of the conversation and how it oc-
curred. His testimony that Nelson viewed the trip to corporate
headquarters as another way to obtain information is consistent
with her own testimony that she was intent on obtaining both
sides of the story through research and speaking to other peo-
ple. Moreover, the evidence shows that the topic of a panel
going to corporate headquarters came up within the context of
one of Nelson’s many informal discussions with Shockley
about unions. There is no evidence that Shockley initiated the
conversation or that he solicited Nelson for complaints.
Accordingly, I shall recommend the dismissal of the allega-
tions in paragraph 5(e) of the complaint.

17 The evidence shows that the Respondent conducts an annual proc-
ess called “grass roots” which allows associates to express their con-
cerns and complaints. The associates complete a confidential survey,
the results of which are tallied, and a small group of employees gets
together to discuss problems and how to resolve them.
5. alleged directive to avoid associating with employees who
supported the Union
Paragraph 5(f) of the complaint alleges that STM Vicky
Johnson informed employees that management had instructed
her not to associate with certain employees because of their
support for the Union. Vicky Johnson denied the allegation.
For demeanor reasons, I credit her denial. In addition, the
General Counsel, who did not produce any credible evidence
to support the allegation or rebut Johnson’s denial, indicated in
her brief at page 41, footnote 19, that she was withdrawing the
allegation. Accordingly, I shall recommend the dismissal of
the allegation contained in paragraph 5(f) of the complaint.
6. Alleged interrogation concerning union support and the
threat of firing
Paragraph 5(g) alleges that SM Shockley interrogated em-
ployees regarding their support for the Union and told them
that the home office thought that they should be fired because
of their union support. On brief, the General Counsel argues
that during a performance evaluation in February–March 1998,
Shockley unlawfully questioned Sales Associate Deb Hager
about her union support. The evidence shows that Hager was a
known, active union supporter. She was the employee who
contacted the Union to start the organizing drive. The evidence
also shows that Hager received an above standard rating and
an above average pay increase. Hager testified that she asked
Shockley if the rating and pay increase had anything to do
with the Union and he said, No. (Tr. 69–70.) She also testified
that Shockley told her that he took the organizing drive per-
sonally and so did ASM Branstrom. (Tr. 71.)
Hager also testified that she told Shockley that when the
persons from corporate headquarters recently visited the Store,
she attempted to discuss the Union with them, but they did not
respond. (Tr. 73.) She then asked Shockly why they would not
discuss the Union with her. Shockley responded that they had
asked him to do so, but he declined. (Tr. 75.) He also com-
mented that they questioned why he had not fired her for her
union activity. Shockley purportedly told them that he did not
want to fire her because she was a good worker. Hager testi-
fied that at that point Shockley asked her why she thought the
Union would be good for Wal-Mart, but as she began to an-
swer he changed the subject. (Tr. 75.)
This evidence does not establish a violation of the Act.
Rather, it shows that Hager initiated and continued the conver-
sation about the Union and that she asked questions of
Shockley. Eventually he inquired why she thought the Union
would be good for the Store, but before she could answer the
question, he changed the subject and did not pursue the topic
further. The nature of the question was open, general, and
nonthreatening. Sunnyvale Medical Clinic, 277 NLRB 1217–
1218 (1985). Accordingly, I find that the Respondent did not
unlawfully interrogate Hager as alleged in paragraph 5(g) of
the complaint and therefore I shall recommend the dismissal of
the interrogation allegations.
On the other hand, I find that Shockley implicitly threatened
Hager by telling her that upper management had asked him to
talk to her about the Union and then inquired as to why he had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 236
not fired her for union activity.18 I find that his comment
unlawfully implied that she could be fired because of her un-
ion activity. Accordingly, I find that the Shockley unlawfully
threatened Debra Hager in violation of Section 8(a)(1) of the
Act as alleged in paragraph 5(g) of the complaint.
C. Case 18–CA–15017
1. Evidence of an unlawfully motivated schedule change
The allegations of the complaint in Case 18–CA–15017 per-
tain solely to the October 1, 1998, schedule change of sales
associate Shirley Nelson.19 The undisputed evidence shows
that Nelson was a union supporter, known as such to the Re-
spondent, and that the Respondent was opposed to the Union.
Indeed, SM Shockley explained to Nelson and other employ-
ees that he opposed the Union and could not understand why
the employees wanted to organize. Thus, in addition to pro-
tected union activity and knowledge thereof, evidence of ani-
mus exists.
The evidence also shows that Nelson was treated differently
than other employees. Nelson’s actual work schedule of 6
a.m.–3 p.m. had been approved by her DPM, Shirley Heaton,
because they worked well together (Tr. 546). It was also ap-
proved by SM Shockley. Her schedule nevertheless was
changed in order to adhere to the computer-generated sched-
ule, while other employees for personal reasons continued
working schedules, which deviated from the computer sched-
ule. For example, Robbie Bartick, who immediately assumed
Nelson’s duties of sorting freight at 6 a.m., was scheduled by
the computer to work 8 a.m.–5 p.m., but actually worked 6
a.m.–3 p.m. in order to transport her son and pick up her mail
at the post office before it closed. (Tr. 649, 654.) Likewise,
DPM Riendeau was scheduled by the computer to work 7
a.m.–4 p.m., but actually worked 6 a.m.–3 p.m. in order to
accommodate her personal schedule. Thus, even though Bar-
tick and Riendeau were not working the posted schedule for
nonbusiness related reasons, their schedules were not changed
to conform to the computer schedule.
Nor does the evidence show that any other employee had
their schedules changed around the same time. Although DM
Morey testified that the scheduling was changed storewide,
Shockley was could not state who, if any, or how many, other
sales associates had their schedules changed. (Tr. 340–341.)
While Branstrom testified that in the health & beauty depart-
ment, she rescheduled some employees to provide coverage
early and late in the day (Tr. 618), she did not explain whether
their actual work schedules were at variance with the computer
schedule.
The timing of the decision to change Nelson’s schedule also
supports an inference that the change was unlawfully moti-
vated. On July 30, 1998, Shockley received a copy of the
complaint in Case 18–CA–14757, which specified a hearing

18 Shockley denied that upper management ever instructed him to
fire an employee because they supported a union. (Tr. 277.) However,
he did not deny that he told Hager that the persons from corporate
headquarters asked him why he had not fired her.
19 The undisputed evidence shows that Nelson did not suffer any loss
of hours, overtime or pay as a result of the change in her schedule.
date of October 13, 1998. (Tr. 343.) Although her name was
not specifically mentioned in the complaint, the allegations
contained in paragraph 6(c) unquestionably pertain to Nelson.
Shockley testified that in late July–early August, he and the
other managers discussed changing Nelson’s schedule. (Tr.
339.) He and ASM Branstrom also testified that sales associ-
ates and DPMs had long complained about Nelson’s schedule.
Neither explained, however, why no change was made until
after a complaint was issued. Thus, the timing of the decision
to reschedule Nelson further supports a reasonable inference
that the decision to change Nelson’s schedule was unlawfully
motivated.
Accordingly, I find that the General Counsel has satisfied
her initial evidentiary burden under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). The burden now shifts to the Respondent
to show that it had legitimate nondiscriminatory reasons for
changing Nelson’s schedule or that it would have changed her
schedule even in the absence of her union activity.
2. The pretextual reasons for the change
The Respondent preliminary argues that Bartick’s stocker
position was different from Nelson’s sales association position
in that the former was responsible for placing merchandise on
the shelf, while the latter performed that function, but also
assisted customers. But Heaton testified that even though Nel-
son was classified as a sales associate, she was used mostly as
a stocker placing merchandise out on the shelves because that
is where Heaton, the department manager, needed her the
most. (Tr. 548.) Thus, the evidence supports a reasonable in-
ference that the difference in classifications, as far as Bartick
and Nelson were concerned, was actually a difference in name
only.
The Respondent principally argues that Nelson was required
to work the posted schedule because there was a growing need
for personnel on the weekends. DM Shockley testified that he
needed more coverage on the weekends. (Tr. 284.) He also
stated that employees were not getting good direction on the
weekends and that Nelson was probably the most qualified
sales associate to help out on the weekends. Morey likewise
testified that the Store needed more coverage on the weekends.
However, he stated that he was concerned because Heaton, the
department manager, was working almost every weekend, and
Nelson was not. He further stated that he was irritated because
“we were almost forcing our department manager to work the
weekends just for customer service.” (Tr. 529.)20
But Heaton testified that she worked Monday–Friday, and
sometimes on Saturdays, at her discretion. (Tr. 547–548.) She
also testified that she was upset when Nelson’s schedule was
changed because she needed Nelson to unload freight during
the week. (Tr. 550–551.) Even Morey conceded that most of
the Store’s freight arrives during the week. (Tr. 533–534.)
According to Heaton, she would have preferred if Nelson’s
schedule had not been changed “because they took her away
20 Morey’s testimony that Heaton was working every weekend con-
flicts with Shockley’s assertion that employees were not getting good
direction on the weekends because who, other than the department
manager, is better qualified to direct the work force.
WAL-MART STORES 237
from me, where I wanted her to work.” (Tr. 551.) Thus, con-
trary to Morey’s assertions, Heaton was not being “forced to
work” on the weekends and Heaton also thought that there was
a greater need for Nelson to work during the week.
The Respondent also asserts that Nelson was required to
work from 7–4 p.m., rather than 6 a.m.–3 p.m., in order to
provide coverage later in the day. Shockley testified that Nel-
son was needed to cover a gap in the evening. (Tr. 286.) His
testimony was contradicted by ASM Branstrom who stated
that there would have been coverage in the lawn and garden
department regardless of whether Nelson left at 3 or 4 p.m.
(Tr. 652.)
Thus, viewed as a whole shows that Nelson was needed
more during the week than on weekends and that scheduling
her to start an hour later did little, if anything, to improve the
operation of the department.
In addition, the conflicting testimony of the Respondent’s
managers, and its department manager, raise questions about
who actually made the decision to change Nelson’s schedule.
ASM Branstrom testified that she decided that everyone in the
departments for which she was responsible, including lawn
and garden, would follow the posted schedule. (Tr. 620.)
Somewhat differently, Shockley testified that “the whole man-
agement team” was involved in the decision to change Nel-
son’s schedule, including Shirley Heaton (Tr. 285.) In contrast,
however, Heaton testified that she had no forewarning that
Nelson’s schedule was going to be changed. (Tr. 550–551.)
She was surprised and upset to find out after the fact about the
change. (Tr. 551–552.) In essence, she was told after the fact
“this is what we’re doing.” (Tr. 551.) For demeanor reasons, I
credit Heaton’s testimony on this point.
Finally, the Respondent argues that Nelson’s schedule was
changed because of complaints by employees and department
managers. Shockley testified that employees had complained
that Nelson was not working weekends. (Tr. 335–336.) Bran-
strom testified that some department managers had complained
for almost 2 years about Nelson working side-by-side with
Heaton during the week. (Tr. 613, 617, 636.) Neither individ-
ual explained why the Respondent waited until the middle of a
union organizing drive to change a long standing practice,
known and condoned by management, of allowing Nelson to
work other than the posted schedule.
I therefore find that based on the evidence viewed as a
whole that the Respondent’s reasons for changing Sherry Nel-
son’s schedule are pretextual. Accordingly, I find that her
scheduled was changed on October 1, 1998, because of her
union activity in violation of Section 8(a)(1) of the Act.
3. The alleged 8(a)(4) violation
The complaint also alleges that Nelson’s schedule was
changed because she had been subpoenaed to appear and tes-
tify at the hearing on October 13, 1998. This allegation fails
because there is no evidence that any one connected with the
decision to change her schedule had knowledge of the sub-
poena prior to October 1.
Branstrom credibly testified that the decision to change Nel-
son’s schedule was made in early September. Nelson received
the subpoena on September 24. Shockley was on vacation at
the time. (Tr. 237.) On Thursday, October 1, Branstrom spoke
to Nelson about changing her schedule. Nelson testified that
she told Branstrom and Shockley about the subpoena around
the beginning of October. (Tr. 216.) Shockley heard about the
subpoena after he returned from vacation on Monday, October
5. There is no evidence that Nelson told Branstrom or anyone
else about the subpoena before her schedule was changed.
Accordingly, I shall recommend that the dismissal of the al-
legations contained in paragraph 6(c) of the complaint.
4. The alleged threat by STM Vicky Johnson
Nelson testified that on October 1, sometime before she was
told by Branstrom that her schedule was being changed, she
had a conversation in the breakroom with STM Vicky Johnson
about her work schedule. According to Nelson, Johnson asked
Nelson why she worked 6 a.m.–3 p.m., rather than the posted
schedule. When Nelson explained that the early shift had been
approved by Heaton and Shockley, Johnson told her to have a
manager sign her schedule, otherwise it may come back to
haunt her. (Tr. 217.) Johnson did not recall the conversation
and with some prompting from the Respondent’s counsel
eventually denied that it ever occurred. For demeanor reasons,
I do not credit her denial and I find that the conversation did
occur as described by Nelson.
There is no evidence, however, that Johnson made the
statement in a threatening manner or that she even mentioned
the Union during her conversation with Nelson. Nor is there
any evidence that she stated or implied what the ramifications
might be if Nelson did not get her 6 a.m.–3 p.m. schedule ap-
proved in writing. Rather, the evidence does shows that Nel-
son and Johnson were engaged in casual conversation in an
open area (the breakroom).
Thus, contrary to the General Counsel’s assertions, I do not
find that Johnson’s comment was an prediction or statement of
intent regarding the Respondent’s planned discriminatory
treatment of Nelson in violation of Section 8(a)(1) of the Act.
Accordingly, I shall recommend the dismissal of the allega-
tions of paragraph 5 of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent’s department store managers are not su-
pervisors within the meaning of Section 2(11) of the Act.
4. The Respondent has violated Section 8(a)(1) of the Act
by engaging in the following conduct:
(a) Implementing and maintaining a broad rule prohibiting
employees from discussing wages and benefits among them-
selves.
(b) Telling employees that they are not permitted to discuss
their wages and benefits among themselves and threatening
them with termination if they do so.
(c) Telling its department managers that they could not par-
ticipate in union activities and that it would be unlawful for
them to do so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 238
(d) Telling its department managers to report union activity
to management.
(e) Implicitly threatening that an employee could be fired
because of her union activity.
5. The Respondent has violated Section 8(a)(3) of the Act
by changing the work schedule of Sherry Nelson because of
her union activity.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent did not otherwise engage in any other
unfair labor practices alleged in the consolidated complaints in
violation of the Act.
REMEDY
Having found that the 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.
Having found that the Respondent changed the work sched-
ule of Sherry Nelson in violation of Section 8(a)(3) and (1) of
the Act, I shall recommend that the Respondent be ordered to
return Sherry Nelson to the work schedule she followed prior
to October 1, 1998, and to refrain from changing her work
schedule or the work schedule of any other employee for dis-
criminatory reasons.
[Recommended Order omitted from publication.]