Wal-Mart Stores

National Labor Relations Board - Board Decisions

Sep 25, 2001

335 N.L.R.B. 1310 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1310
Wal-Mart Stores, Inc. and United Food and Com-
mercial Workers International Union. Case 16–
CA–20578
September 25, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On February 7, 2001, Administrative Law Judge Wil-
liam N. Cates issued the attached bench decision. The
General Counsel and the Charging Party filed exceptions
and supporting briefs, the Respondent filed cross-
exceptions and a supporting brief, the Charging Party
and the Respondent filed answering briefs, and the
Charging Party filed a reply 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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions, and to adopt the recommended Order as
modified.1
We adopt the judge’s finding that sporting goods de-
partment manager, Lewie Spearman, was a statutory su-
pervisor. In finding that Spearman possessed the author-
ity to effectively recommend rewards for employees at
the Respondent’s Lubbock, Texas store, we rely on the
testimony of Spearman, and his predecessor in the posi-
tion, Arturo Castillo, that they evaluated and effectively
recommended rewarding department employees. Casti-
llo testified that, with regard to performance appraisals,
the sporting goods department manager makes the de-
termination as to the appropriate rating on the appraisal
and there is a direct link between this rating and the rate
of pay increase, if any, for the appraised employee. See
Elmhurst Extended Care, 329 NLRB 535 (1999). Al-
though higher management (the assistant store manager)
typically is present when the appraisal is completed and
must sign the appraisal, the role of the sporting goods
department manager at the Lubbock store is not “merely
advisory and preliminary,” but instead is an exercise of
independent judgment that effectively determines a term
and condition of employment. Compare, Children’s
Farm Home, 324 NLRB 61 (1997) (team leaders held not
supervisors when their role in evaluating employees was
merely advisory and preliminary and was subject to “in-
dependent investigation” by superiors). In finding that
the sporting goods department manager at the Lubbock
store exercised independent judgment in the appraisal
process, we note that the role of an assistant store man-
ager in the evaluation process may, as a practical matter,
vary from store to store. Thus, the Respondent’s district
manager, David Craig, testified that each assistant store
manager “is going to be different on how they specifi-
cally handle” the evaluation process with department
managers and, indeed, that he (Craig) did not know spe-
cifically the manner in which a performance evaluation is
handled at the Lubbock store. Accordingly, our finding
as to Spearman’s supervisory status is limited to his au-
thority to, at the least, effectively recommend pay raises
in connection with the appraisal process at the Lubbock
store. In light of this finding, we find it unnecessary to
consider whether or not Spearman had authority to exer-
cise any other supervisory indicia.

1 We shall modify the judge’s recommended Order and notice to
conform to Board practice.
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., Lubbock, Texas, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(c).
(c) 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. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT solicit you to submit grievances to the
Company in order to interfere with your rights guaran-
teed by the Act.
WE WILL NOT interrogate you about your union ac-
tivities or desires.
335 NLRB No. 103
WAL-MART STORES 1311
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WAL-MART STORES, INC.
Robert G. Levy II, Esq., for the Government.
J. Richard Hammett, Esq., for the Company.
George Wiszynski, Esq., for the Union.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is
an interfering with employee rights case. At the close of a 1-
day trial in Lubbock, Texas, on January 18, 2001, and after
hearing oral argument by the Government and the Company
counsel,1 I issued a Bench Decision pursuant to Section
102.35(a)(10) of the National Labor Relations Board’s (the
Board) Rules and Regulations setting forth findings of fact and
conclusions of law. This certification of that Bench Decision,
along with the Order which appears below, triggers the time
period for filing an appeal (exceptions) to the Board.
For the reasons (including credibility determinations) stated
by me on the record at the close of the trial, I found Wal-Mart
Stores, Inc. (the Company), violated Section 8(a)(1) of the Na-
tional Labor Relations Act, (the Act), when on or about March
27, 2000, it, acting through one of its supervisors and agents,
interrogated an employee about the employee’s union activities;
and, solicited an employee to submit grievances to the Com-
pany in order to interfere with employee rights guaranteed by
the Act. I concluded the Government failed to establish by
creditable evidence that the Company, acting through one of its
supervisors and agents, created the impression among its em-
ployees their activities on behalf of United Food and Commer-
cial Workers Union (the Union) were under surveillance. Ac-
cordingly, I dismissed that complaint allegation. I also con-
cluded the Company did not violate the Act when two of its
supervisors and agents told an individual employed by the
Company he could not be involved with the Union, could not
attend union meetings, or support the Union. I concluded that
the individual upon whom the supervisors and agents placed
union restrictions was himself also a supervisor within the
meaning of Section 2(11) of the Act.
I certify the accuracy of the portion of the transcript, as cor-
rected,2 pages 253 to 279, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSIONS OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act; that it vio-
lated the Act in the particulars and for the reasons stated at trial
and summarized above and that its violations have affected and,

1 Counsel for the Union adopted the Government counsel’s argument
and did not argue.
2 I have corrected the transcript pages containing my Bench Decision
and the corrections are as reflected in attached Appendix C [omitted
from publication.].
unless permanently enjoined, will continue to affect commerce
within the meaning of Section 2(2) and (6) of the Act.
Having found that the Company has engaged in certain un-
fair labor practices, I find it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
I recommend the Company be ordered, within 14 days after
service by the Region, to post an appropriate “Notice to Em-
ployees,” copies of which are attached hereto as “Appendix B”
for a period of 60 consecutive days in order that employees
may be apprised of their rights under the Act and the Com-
pany’s obligation to remedy its unfair labor practices.
On these conclusions of law, and on the entire record, I issue
the following recommended 3
ORDER
The Company, Wal-Mart Stores, Inc., Lubbock, Texas, its
officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Interrogating employees about their union activities.
(b) Soliciting employees to submit grievances to the Com-
pany in order to interfere with employee rights guaranteed by
the Act.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Regional Director of
Region 16 of the National Labor Relations Board, post at its
Lubbock, Texas, facility, copies of the attached notice marked
“Appendix B.”4 Copies of the notice, on forms provided by the
Regional Director for Region 16 after being signed by the
Company’s authorized representative shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that during the pendency of these pro-
ceedings the Company has gone out of business or closed the
facility involved in these proceedings, the Company shall du-
plicate and mail, at its own expense, a copy of the Notice to
Employees, to all employees employed by the Company on or
at any time since March 27, 2000.
(b) Within 21 days after service by the Region, file with the
Regional Director for Region 16 of the National Labor Rela-
tions Board sworn certification of a responsible official on a
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
4 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 1312
form provided by the Region attesting to the steps that the
Company has taken to comply.
IT IS FURTHER ORDERED that the complaint be, and
hereby is, dismissed insofar as it alleges violations of the Act
not specifically found.
APPENDIX A
253
(CONTRACTOR’S NOTE: The following proceedings
were held AFTER 6:00 p.m.:)

JUDGE CATES: On the record. This is my decision in the
matter of Wal-Mart Stores, Inc., Hereinafter Company, Case
16-CA-20578. First, I wish to thank the parties for the presen-
tation of the evidence. Each of you are a credit to the party or
interest you represent. It has been a pleasure being
254
in Lubbock, Texas.
This is an unfair labor practice case prosecuted by the Na-
tional Labor Relations Board, hereinafter Board, acting General
Counsel, hereinafter Government Counsel, acting through the
Regional Director for Region 16 of the Board, following an
investigation by Region 16’s staff.
The Regional Director for Region 16 of the Board issued a
complaint and notice of hearing, hereinafter complaint, on Oc-
tober 30, 2000, based upon an unfair labor practice charge filed
by the United Food & Commercial Workers International Un-
ion, hereinafter Union, on August 10, 2000.
Certain facts herein are admitted, stipulated or undisputed. It
is essential that I set forth certain of those facts, which I shall
now do. It is admitted the Company is a Delaware corporation
with a store located in Lubbock, Texas, where it is engaged in
the business of retail merchandising. During the twelve months
preceding the issuance of the complaint herein, a representative
period, the company purchased and received at its above refer-
enced location goods and materials valued in excess of
$50,000.00 directly from suppliers located outside the State of
Texas, and during the same period derived gross revenues in
excess of $500,000.00.
The parties admit the Company has been at all times material
herein, and continues to be, an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the
255
National Labor Relations Act as amended, hereinafter Act. The
parties admit the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
The parties admit that district manager David Eugene Craig,
hereinafter District Manager Craig or Craig, and Store Manager
Barry Dales Hart, hereinafter Store Manager Hart or Hart, are
supervisors within the meaning of Section 2(11) and agents of
the Company within the meaning of Section 2(13) of the Act.
The specific contested complaint allegations are that on or
about March 27, 2000, the Company, by District Manager
Craig, created the impression among its employees that their
Union activities were under surveillance, interrogated an em-
ployee about the employee’s Union activities, and solicited an
employee to submit grievances to the Company.
It is also alleged that on or about June 7, 2000, Craig inter-
fered with an employee’s right to engage in Union activities by
advising the employee he could not be involved with the Union.
It is also alleged that on or about June 7, 2000, Store Manager
Hart interfered with an employee’s right to engage in Union
activities by advising that the employee could not attend Union
meetings or support the Union. It is alleged that the Com-
pany’s actions outlined violates Section 8(a)(1) of the Act.
The Company denies having violated the Act in any manner
256
alleged in the complaint. However, the Company admits that
the comments outlined in Paragraphs 7(b) and (c) of the com-
plaint were stated to an employee on the date in question. And
I use the term “employee” only to identify that it was made to
an individual.
In other words, the Company admits that District Manager
Craig advised that the employee could not be involved with the
Union, and it admits that Store Manager Hart advised an em-
ployee that the employee could not attend Union meetings or
support the Union.
The Company admits those allegations with this caveat: The
person to whom District Manager Craig and Store Manager
Hart was speaking, the Company contends, was a supervisor
within the meaning of the Act.
The Government, on the other hand, along with the charging
party, contend that the individual to whom the comments were
made was an employee within the meaning of the Act and not a
supervisor.
I only go to lengths to explain that because the outcome of
Sections 7(b) and (c) of the complaint turn on whether or not an
individual was a supervisor or not within the meaning of the
Act, the individual being Mr. Spearman who was the sporting
goods department manager for a limited period of time.
Before I get into that, let me state that this case, as in most
cases, requires that I make credibility determinations.
257
Stated differently, there are some conflicts in the testimony.
Some are minor, while others are a little more substantial. I am
not unmindful that when witnesses are recalling the same
events, they will recall them in a slightly different manner, with
each believing, and perhaps rightly so, that they are truthfully
recalling what occurred.
In arriving at my credibility determinations, I carefully ob-
served the witnesses as they testify and have utilized such in
arriving at the facts herein. I have also considered each wit-
ness’ testimony in relation to other witnesses’ testimony and in
light of the exhibits that were presented herein.
If there is any evidence that might seem to contradict cred-
ited facts or the facts that I specifically rely on, I have not ig-
nored such evidence, but rather have discredited it or rejected it
as not being reliable or trustworthy. I have considered the en-
tire record in arriving at the facts herein.
I shall address the complaint allegations in the same order
that they appear in the complaint. At Paragraph 7(a) of the
complaint, it is alleged that District Manager Craig, on or about
March 27, 2000, created the impression among its employees
WAL-MART STORES 1313
that their Union activities were under surveillance, interrogated
an employee about the employee’s Union activities, and solic-
ited an employee to submit grievances to the Company. The
Government relies primarily on the testimony of Employee
Gomez with respect to the March 27, 2000 allegations.
258
Employee Gomez testified that when she came to work on
March 27, 2000, that various associates in the store approached
her and told her that they had been called in to a meeting with
management at which the Union was discussed.
Employee Gomez testified that a short while after being at
work, she was, in fact, called in to a meeting in one of the man-
agers’ offices, and she was certain with respect to two of the
individuals that were present at the meeting, namely that Dis-
trict Manager Craig was present, as well as an individual named
Rene Sosa, and she identified Sosa as being a regional area or
district manager for shoes that were sold in the store.
Employee Gomez testified that after she came in and certain
pleasantries were exchanged that District Manager Craig asked
her if she had heard about anything going on in the store. Go-
mez testified she responded about the Union fliers and about
the Union, or words to that effect, and she testified that she
expressed what she knew about the fliers and the Union meet-
ings.
She even stated that she had been invited to Union meetings
that were being held at Mr. Spearman’s house, but that she had
not had an opportunity or had not availed herself of an opportu-
nity to attend any of those meetings at that time. Gomez testi-
fied that in this same meeting she was asked by District Man-
ager Craig how she was doing in her new job and if she liked
her new job. She said that everything was fine and

259

she was happy with her job. Gomez further testified that Dis-
trict Manager Craig asked her if she needed help with any prob-
lems in the store.
Gomez testified that she expressed with respect to the Union
that she wanted to hear a little bit about the Union, but she
wasn’t too certain about whether or not she would be interested
in having the Union speak on her behalf because she was kind
of an independent, free spirit that spoke on her own behalf, and
she wasn’t certain whether she needed the assistance of anyone
else to speak on her behalf.
District Manager Craig acknowledges that such a meeting
took place on March 27, 2000, and that he had meetings not
only with Gomez, but with other employees, and that he had
meetings with other employees in the office before he met with
Gomez and after he met with Gomez.
District Manager Craig denied that he asked if she had at-
tended any Union meetings. He testified that the Union was
mentioned first by Employee Gomez. District Manager Craig
testified that the purpose of his visit with Gomez, as well as the
meeting with other employees, was to ascertain if they had any
concerns that needed to be addressed, and he explained that the
reason he met in the office, in management’s office, as opposed
to just walking out on the floor and speaking with Gomez, was
that he wanted to avoid any interruptions either by other associ-
ates or by customers that might be in the store.
260
District Manager Craig acknowledged that he knew of Union
activity going on in the store and that he believed he first
learned of such activity perhaps as early as December of 1999.
Spearman testified that he also met with District Manager
Craig in March of 2000, and that the subject matter of the fliers
being distributed in the store was mentioned by District Man-
ager Craig, even to the extent of the name of the individual
distributing them. Mr. Spearman acknowledges that he was
involved in the distribution of some of the fliers and of some of
the Union activity that was taking place at the store.
The question then becomes, did the actions of District Man-
ager Craig, in meeting with the employees and specifically with
Gomez, overstep the bounds of what he may have done under
Section 8(c) of the Act and move into an unlawful category?
I am persuaded that based on the credited testimony of Go-
mez, and I believed her to be a credible witness, that District
Manager Craig overstepped the bounds of legality, specifically
when he asked a question of Gomez if she had heard about
anything going on in the store.
In the context of the time, the Union activity going on, the
fliers and the other meetings, I don’t think it is incumbent on
him to have to ask, “Have you heard anything about the Union
going on in the store,” because as soon as he mentioned it, Go-
mez immediately responded about the Union fliers and about
the meetings at Spearman’s house.
261
The test for determining the legality of employee interroga-
tion regarding Union sympathy is whether, under all the cir-
cumstances, the interrogation reasonably tends to restrain or
interfere with employees in the exercise of their statutory
rights. Mathews ReadyMix, Inc., 324 NLRB 1005 at 1007
(1997).
I am persuaded that the interrogation violated the Act be-
cause it took place in the management office by a very high
official of the company. There was no valid purpose explained
for seeking out the information and the truthfulness of Em-
ployee Gomez’s response, that sure, she knew about fliers from
the Union and she knew about meetings at Spearman’s house;
she just hadn’t had an opportunity to attend any such meetings.
So I find as alleged in Paragraph 7(a) in the complaint that
the Company, through District Manager Craig, unlawfully in-
terrogated an employee about the employee’s Union activities.
Secondly, did the Company, through District Manager Craig,
solicit an employee to submit grievances to the Company? I am
persuaded he did, again in the context of the meeting taking
place where it did, during the time when Union activity was
going on at the store, and I base that on Gomez’s testimony that
District Manager Craig asked her if she needed any help with
any problems in the store, and did she like her job, and was
everything going fine.
This appears to have been the first occasion when

262

District Manager Craig had the employees into a management
office, one at a time, to ask them about any problems they
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1314
might have with the Company and whether they needed help
with those problems.
As the Board noted in Embassy Suites Resort, 309 NLRB
1313 at 1316, it is well established that when an employer insti-
tutes a new practice of soliciting employee grievances during a
Union organizational campaign, which is what was happening
here, there is a compelling inference that he is implicitly prom-
ising to correct those inequities he discovers as a result of his
inquiries, and, likewise, urging on his employees that the com-
bined inquiry and correction will make Union representation
unnecessary.
So I am persuaded that the Company, through District Man-
ager Craig, unlawfully solicited an employee to submit griev-
ances to the Company.
It is also alleged in that same complaint paragraph that the
Company, through District Manager Craig, created the impres-
sion among its employees that their Union activities were under
surveillance.
The Board’s test for determining whether an employer has
created an impression of surveillance is whether the employee
would reasonably assume from the statement or statements
made that his or her Union activities have been or had been
placed under surveillance.

263

In that regard, the Board does not require employees to at-
tempt to keep their activities secret before an employer can be
found to have created an unlawful impression of surveillance.
Further, the Board does not require that an employer’s words,
on their face, reveal that the employer acquired its knowledge
of the employee’s activities by unlawful means.
The idea behind finding an impression of surveillance as a
violation of Section 8(a)(1) of the Act is that the employee
should be free to participate in Union organizing campaigns
without the fear that members of management are peering over
their shoulders taking note of who is involved in the Union
activities and in what particular ways.
The case citing that proposition is Tres, T-R-E-S, Estrellas,
E-S-T-R-E-L-L-A-S, another word, D-E O-R-O, 329 NLRB
[50] No. 3, decided September 3, 1999. That is the standard
that the Government has to meet to prove an impression of
surveillance, and I am not persuaded the Government carried its
burden in this case.
I am not persuaded that anything that Gomez testified to
would constitute an impression of surveillance by the Company
through District Manager Craig. I decline to rely on the testi-
mony of Spearman to the extent that his testimony might sup-
port any such creation of an impression of surveillance. So I
shall dismiss Paragraph 7(a)(i) of the complaint.

264

I now move to Paragraphs 7(b) and (c) of the complaint, and
as I indicated earlier in my bench decision, the outcome of
these two complaint paragraphs depend on whether or not
Spearman was a supervisor within the meaning of the Act.
The Company contends that Spearman was a supervisor
within the meaning of the Act when he served in the function
and in the capacity as the department manager of the sporting
goods department in the Lubbock, Texas store.
The Government and the Union, as charging party, contend
that Spearman was not a supervisor within the meaning of the
Act, that he did not exercise or have any of the authorities nu-
merated in the Act that would indicate an individual was a su-
pervisor within the meaning of the Act.
Before I address the facts and apply the law with respect to
whether Spearman was a supervisor within the meaning of the t
during the six weeks’ time frame that he was the department
manager in the sporting goods department, let me briefly out-
line the burdens that are present with respect to supervisory
status.
First, let me briefly allude to two sections of the Act. Section
2(3) of the Act excludes, “any individual employed as a super-
visor from the definition of employee,” Section 2(11) of the Act
defines, “supervisor,”as—and I am quoting now—any individ-
ual having authority, in the interest of the employer, to hire,

265

transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, 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 authority is not of a merely routine or clerical nature, but
requires the use of independent judgment, close quote. That is
the statutory definition of a supervisor.
I note that in enacting Section 2(11), Congress emphasized
its intention that only truly supervisory personnel vested with,
quote, genuine management prerogatives, quote close, should
be considered supervisors and not, quote, straw bosses, lead-
men, set-up men and other minor supervisory employees, close
quote. S. Rep. No. 105, 80Cong., 1st Sess. (1947).
With respect to the burdens, it is well settled that the burden
of proving supervisory status rests on the party asserting that
such supervisory status exists. Ohio Masonic Home, 295
NLRB 373 (1989). Thus, any lack of evidence in the record is
construed against the party asserting supervisory status. For
that principle, see Elmhurst, E-L-M-H-U-R-S-T, Extended
Care Facilities, Inc., 329 NLRB [535] No. 55, Slip Opinion at
Page 2, Footnote 8 (1999).
In making determinations regarding supervisory status under
Section 2(11) of the Act, the Board has a duty not to construe
the statutory language too broadly because the

266

individual found to be a supervisor is denied employee rights
protected under the Act. St. Francis Medical Center-West, 323
NLRB 1046 (1997).
Section 2(11) is to be read in the disjunctive and the posses-
sion of any one of the authorities listed in that section places
the employee invested with this authority in the supervisory
class. Ohio Power Co. v. NLRB, 176 F.2d 385 at 387 (6th Cir.
1949), cert. denied 338 U.S. 899 (1949).
The status of supervisor under the Act is determined by an
individual’s duties, not by his or her title or job classification.
New Fern Restorium Co., 175 NLRB 142 (1969). It is well
settled that an employee cannot be transformed into a supervi-
sor merely by the vesting of a title and theoretical power to
perform one or more of the enumerated functions in Section
WAL-MART STORES 1315
2(11) of the Act. Advanced Mining Group, 260 NLRB 483
(1982).
Section 2(11)’s disjunctive listing of supervisory indicia does
not alter the essential conjunctive requirement that a supervisor
must exercise independent judgment in performing the enumer-
ated functions. Regardless of the specific kind of supervisory
authority at issue, its exercise must involve the use of true in-
dependent judgment in the employer’s interest before such
exercise of authority becomes that of a supervisor.

267

The mere fact that an employees complain to a specific em-
ployee about working conditions is not an indicia of supervi-
sory status if there is no evidence the employee complained to
was empowered to act on behalf of management in resolving
such complaints.
Neither is it significant that employees report to a specific
employee when they are going to be absent, since the receipt of
such reports is in and of itself no more than a clerical function.
The scheduling of overtime, vacations and absences may be a
supervisory function if it involves the use of independent judg-
ment.
The rule is quite clearly established in Board precedent that
possession of authority consistent with any indicia of Section
2(11), not the exercise of that authority, is the evidentiary
touchstone. And that principle is pointed out very clearly to me
in Allstate Insurance Co., 332 NLRB [759] No. 66, at Slip
Opinion Page 2 [760], September 29, 2000, which was a case
of mine.
The question now becomes was Spearman a supervisor,
within the meaning of the Act, in the sporting goods department
as sporting goods department manager from May 13, 2000 to
mid June of 2000.
Store Manager Hart described the duties of the department
manager, and more specifically the sporting goods department
manager, as follows: He said that the department manager had

268

authority to take disciplinary action against employees, to rec-
ommend commendations for employees, to evaluate employees
at the end of 90 days or to provide them their yearly evaluation,
and that the yearly evaluation would determine what, if any,
raise in pay the employees would receive. Store Manager Hart
testified that the department manager, specifically in the sport-
ing goods department, ordered merchandise, that he guided the
direction of those who worked under him, that the department
manager met with the other managers in management meetings,
that he dealt with the assistant manager pertinent to his depart-
ment as to staffing levels, and that he could report whether or
not an employee was doing a satisfactory job in the department.
I think employees in this particular store are referred to as asso-
ciates.
Spearman testified that a typical day in his life as a depart-
ment manager in the sporting goods department consisted of the
following actions. He would come in in the morning and check
to see what freight was on the floor that would need to be
shelved or placed in some manner so that the floors would be
clear and clean for customers to proceed through the store.
He estimated that checking the freight and cleaning the floor
would take approximately two to three hours of his time, that
he also would proceed to the back of the store to ascertain what
paperwork might be there that needed to be processed by the
sporting department manager, that he would

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meet with Hart and other department managers, that he would
review out-of-stock reports, as well as check the computer to
see if there had been any price changes sent down by corporate
headquarters.
He would also review such other reports as out-of-stock re-
ports, and he would estimate that his time spent on the paper-
work would run somewhere between an eighth and a quarter of
his workday.
Spearman testified that he also coordinated the assignments
of the employees in his department, that he made assignments
to them and instructed them on how things were to be done. He
noted, however, that the employees in his department were
older, long-term employees that required little instruction, but
that he did provide such. He also testified that the department
supervisor before him, an individual Castillo, told him that he
was responsible for evaluating employees.
Spearman denied that he had the authority to grant time off
or to change schedules or hours of work or the reduction of
hours that had taken place at the store during his tenure as the
department manager.
Sporting Goods Department Manager Castillo testified that
he was the department manager before Spearman became the
manager; that, in fact, he recommended that Spearman become
the manager of that department when he, Castillo, left the

270

department and went on to other responsibilities with the Com-
pany.
Castillo testified that he was present with Spearman for the
first two weeks of Spearman’s six weeks’ tour as the depart-
ment manager, and he testified that he tried to convey to
Spearman what his duties were and what needed to be accom-
plished as the department manager; he explained items such as
making sure the aisles were filled properly, seasonal merchan-
dise was displayed, to order merchandise for the department,
matters of that type.
He explained certain of his own duties also, that he had
evaluated employees, “he” being Castillo, that he had func-
tioned in that department sort of as a store within a store, with
the department being responsible for its merchandise and for
the profit that was generated from the particular department.
Castillo testified that one of the specific things that he did
with respect to training Spearman for his duties as the sporting
goods department manager was the preparation of evaluations,
and that he filled out the written portion of an evaluation and
had Spearman sign it.
The evaluation in question was the yearly evaluation of an
employee named Jesse Roa, R-O-A, that is set forth in Respon-
dent’s Exhibit 30. The Strengths and Areas for Improvement
set forth in that performance appraisal were

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1316
written in by Department Manager Castillo, but Mr. Spearman
signed as the supervisor for Jesse Roa. Spearman acknowledge
that he was the one who signed the performance appraisal of
the individual in question.
Castillo did a performance appraisal for employee Cox as re-
flected in Respondent’s Four. In that, he rated Cox met expec-
tations. Castillo signed off on it as well as a supervisor above
him and by Store Manager Hart. Castillo testified that he also
provided a Coaching for Improvement to Employee Boswell,
which was a written coaching, and that he, as well as Boswell,
signed off on it, and in addition the next level of supervision,
Supervisor Wildcat also signed off on it.
Among other things that Castillo told Spearman about his
functions and duties as the department manager in the sporting
goods department was that he needed to interact with the asso-
ciates in the department to ascertain what people were good at
so that he could best utilize his associates, and to keep an eye
out for price changes and other paper matters that needed to be
done.
District Manager Craig testified that he specifically told De-
partment Manager Spearman, along with other department
managers in a meeting of department managers, that among
other responsibilities they had, they were responsible for the
training of associates, assisting in the coaching for improve-
ment process by making recommendations, conducting

272

research and participating in coachings, to follow-up on all
assigned work activities, to assist the salaried managers in
completing performance appraisals, and recognizing associates;
that is, recognizing them for good performances that they may
have done.
Craig testified that certain training requirements were man-
datory and indicated that after Spearman became the depart-
ment manager in the sporting department that Spearman com-
pleted training in Diversity Awareness, Hourly Supervisory
Labor Relations testing, and Team Building.
Based on the outline of what Spearman testified he per-
formed as his functions and the performance functions he was
told he was required to perform and his training by Castillo,
was Spearman a supervisor within the meaning of the Act in his
short tenure as sporting goods department manager?
The evidence persuades me that the Company has met its
burden of establishing that Spearman was a supervisor within
the meaning of the Act for the following reasons, among others:
If you take a comparison of the ratio of employees to supervi-
sors, you find that the company at this location has approxi-
mately 450 employees, but only 150 to 200 of them are present
in the store at any one time. Dividing down that for supervi-
sory purposes, you have one manager, two co-managers, six
assistant store managers. You have approximately 40 depart-
ments, with each assistant store manager being in charge

273

of approximately six departments.
If you take the 150 to 200 employees in the store at any
given time, and assume for the sake of discussion that all assis-
tant store managers are present at all times, you have a ratio of
33 employees to each assistant store manager, if there is no one
beneath them, such as the department managers, that are super-
visors within the meaning of the Act.
The sporting goods department had approximately six to
eight employees. Assume the lower number six and you have
the department manager also included, that is seven employees
that an assistant store manager would be required to manage in
addition to all of the other employees in the other five or six
departments, ever how many each one has. Then the ratio
would indicate that each assistant store manager is managing
about 33 employees.
So I am persuaded that the ratio of employees to manage-
ment mitigates in favor of the finding that the store manager at
this particular store in the sporting department, Mr. Spearman,
was a supervisor within the meaning of the Act. The authority
that Mr. Spearman acknowledges having and having been
trained in the evaluation of employees was a very strong factor
in my determining that he was a supervisor within the meaning
of the Act. He made an evaluation on an employee as part of
the training by the previous department manager for Mr.
Spearman becoming a department manager, specifically the

274

performance appraisal of Jesse Roa.
The Government contends that his input was always over-
ruled or subject to someone else overruling it, that someone
else always signed each performance appraisal, and that, hence,
Spearman should not be considered a supervisor within the
meaning of the Act.
The mere fact that another higher level management person
must be present when these performance appraisals are given
and that the higher level management must also sign-off on the
appraisal does not detract, in my opinion, from the clear fact
that the department manager is having a substantial and effec-
tive input into the evaluation performance that an employee is
given and that performance evaluation determines the amount,
if any, pay raise that the associate or employee will get.
I am fully persuaded that the department manager, specifi-
cally in the sports department at the store in question, directed
the work of the employees who worked for him.
Much was made by the Government and the charging party
that other managers walked through the area and could correct
or point out matters that might need to be corrected or changed
in the department. Again, I don’t find that to distract from the
conclusion that the department manager directed the work of
those six to eight employees who performed work for him in
the sports department.

275

It is clear to me that Mr. Spearman, in this particular case,
had the authority to have effective input into the evaluation of
employees, that he directed the work of others, that he was held
out to the associates in the department to be a supervisor. The
Board places a degree of reliance on whether the individual is
held out to the employees to be a supervisor as a consideration
to be reviewed in determining whether an individual meets any
of the criteria outlined in the Act that would constitute a super-
visor.
The Government also contends that even if Spearman had
supervisory authority, some indicia of it as outlined in the Act,
WAL-MART STORES 1317
he was never told that and that he can’t have any authority if he
doesn’t know about it.
The evidence in this case refutes such an argument, because
Castillo and Spearman both acknowledge that he was given
instruction on performance appraisal evaluations and, as Casti-
llo testified, it was done as a training tool between he and
Spearman so that Spearman would know how to prepare and
evaluate employees in the future.
Also, I am persuaded that District Manager Craig outlined
duties to Spearman, some of which duties would constitute a
supervisor within the meaning of the Act, and that is again in
disciplining employees—this company chooses to call it coach-
ing—coaching in the form of verbal coaching as well as written
coaching, and in the follow-up and direction of work

276

assigned to the individuals or associates in the sporting goods
department.
Further indication that Spearman knew that he was a super-
visor within the meaning of the Act and that such was conveyed
to him was the training that he was required to take, which,
among other things, involved the Labor Relations Supervisory
Test as well as the Diversity Awareness and Team Building
training which supervisors, including department managers,
were required to take.
I am persuaded that the Company has met its burden of es-
tablishing that at the applicable time herein Spearman was a
supervisor within the meaning of the Act in his assigning of the
work to the employees in his department as well as his evaluat-
ing of those employees.
Much was made of the fact that he had not hired or fired any
employees, but the evidence indicates that very few employees
had been hired in that department in an extended period of time
and that Spearman was on the job as a department manager for
only six weeks.
Further, the Government makes much of the fact that some
of the recommendations that Mr. Spearman made were over-
ruled by higher management, and specifically that he made the
recommendation that an Employee Cosby, I believe it was, be
moved out of the sporting goods department and that an em-
ployee from the grocery department be moved in.

277

First, I am unpersuaded that the fact that a recommendation
made by a supervisor is, in some instances, rejected, that that
somehow makes them less than a supervisor. I am persuaded
that there would be very few supervisors that will always make
a decision that 100 percent of the time will be upheld by higher
management, specifically in the Spearman case because what
Mr. Spearman wanted to do was to remove from his department
an employee who had sought the department manager position
unsuccessfully and to replace him with an employee that Mr.
Spearman felt would be more favorable to him in the depart-
ment.
The Company gave a valid explanation for the overruling of
Spearman’s recommendation on that because they said the
employee was a very capable employee, just hadn’t been cho-
sen for that particular job, and that he knew the sporting de-
partment, and that his overall benefit to the store would be that
he remain there, and that the employee from the grocery de-
partment could not be transferred in because the employee from
the grocery department had to have consecutive hours; he
couldn’t take a break in his hours on the days that he worked.
So the Company gave explanations for their declining to fol-
low Spearman’s recommendations that, in my opinion, do not
reflect on whether or not he was a supervisor within the mean-
ing of the Act, but rather that the store’s overall

278

management indicated, in this particular case, Department
Manager Spearman’s recommendations should be overruled or
not followed.
Having concluded that Department Manager Spearman was a
supervisor within the meaning of Section 2(11) of the Act, I
shall then accordingly dismiss Paragraphs 7(b) and (c) of the
complaint.
The Court Reporter is required within ten days to provide me
a copy of the transcript and exhibits in this matter, and when I
am provided that, I will certify my decision to the Board, out-
lining the pages of the transcript that constitute my decision.
It is my understanding that the appeal period runs from that
time forward, but I urge you to follow the Board’s rules and
regulations rather than rely on my understanding of them.
When I certify the decision to the Board, I will attach thereto
a notice that I shall order the Company to post for the specified
period involving the violations of the Act that I found with
respect to the Company’s unlawfully interrogating employees
and unlawfully soliciting employees to submit grievances to the
Company.
That notice will be attached thereto with the recommenda-
tion to the Board that you be required to post it so that employ-
ees may know of your violations of the Act and your require-
ment to remedy those.

279

Let me say that it has been a pleasure to be in Lubbock,
Texas, and this trial is closed.
(Proceedings adjourned at 8:00 p.m., this date.)