Wal-Mart Stores, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 9, 2014

32-CA-090116 (N.L.R.B. Dec. 9, 2014)

JD-69-14 Bentonville, AR UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES WAL-MART STORES, INC. Cases 32-CA-090116 32-CA-092512 32-CA-092858 32-CA-094004 and 32-CA-094011 32-CA-094381 32-CA-096506 32-CA-111715 THE ORGANIZATION UNITED FOR RESPECT AT WALMART (OUR WALMART) Catherine Ventola and David Foley, Esqs., for the General Counsel. Lawrence Katz and Erin Bass, Esqs., for the Respondent. Deborah Gaydos and Joey Hipolito, Esqs., for the Charging Party. DECISION STATEMENT OF THE CASE GEOFFREY CARTER, Administrative Law Judge. This case was tried in Oakland, California on September 8-11, 2014. The Organization United for Respect Walmart (OUR Walmart) filed the charges at issue here on the following dates: Case Charge Filing Date 32-CA-090116 September 26, 2012 (amended on November 19, 2013) 32-CA-092512 November 2, 2012 32-CA-092858 November 8, 2012 32-CA-094004 November 30, 2012 32-CA-094011 November 30, 2012 32-CA-094381 December 6, 2012 32-CA-096506 January 16, 2013 JD-69-14 2 32-CA-111715 August 21, 20131 On February 25, 2014, the General Counsel issued two complaints, one covering cases 32-CA- 094004 and 32-CA-094011, and the other covering cases 32-CA-092512, 32-CA-092858 and 32-CA-094381. In an amended consolidated complaint filed on April 15, 2014, the General 5 Counsel combined the two original complaints and added case 32-CA-090116. Finally, on May 16, 2014, the General Counsel issued a second amended consolidated complaint covering all eight cases listed above. In the second amended consolidated complaint, the General Counsel alleged that Wal-10 Mart Stores, Inc. (Respondent or Walmart) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by taking the following actions in 2012, at Walmart store 2418 in Placerville, California and/or at Walmart store 3455 in Richmond, California: enforcing its California dress code policy selectively and disparately against an employee who formed, joined or assisted OUR Walmart and/or the United Food and Commercial Workers union; engaging in 15 surveillance and/or creating the impression of surveillance of employees’ protected activities in connection with an OUR Walmart protest; making various statements that had a reasonable tendency to coerce employees in the exercise of their rights under Section 7 of the Act; and unlawfully disciplining six employees because they engaged in a work stoppage on November 2, 2012, and to discourage employees from engaging in those or other protected concerted 20 activities. The General Counsel also alleged that Walmart violated Section 8(a)(1) of the Act by maintaining two overly broad dress code policies (one that was in effect in 2012, and the other that took effect in 2013) for its California employees.2 Respondent filed a timely answer denying the violations alleged in the second amended consolidated complaint. 25 On the entire record, 3 including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, OUR Walmart and Respondent, I make the following 1 All events in this case occurred in 2012, unless otherwise indicated. 2 The General Counsel withdrew the allegations in paragraphs 6(c)(1)-(2) and 7(a) of the complaint. (Transcript (Tr.) 7, 469-470.) Since the allegations in paragraphs 6(c)(1)-(2) of the complaint are the only allegations in the charge filed in Case 32-CA-096506, the General Counsel moved that I sever Case 32-CA-096506 from this proceeding. (GC Posttrial Br. at 1.) I hereby grant the General Counsel’s motion to sever, which was unopposed. 3 The transcripts in this case generally are accurate, but I hereby make the following corrections to the record: page 149, l. 24: Respondent’s attorney Lawrence Katz (Katz) was the speaker; page 150, l. 1: Katz was the speaker; page 204, l. 20: “out” should be “ought”; page 250, l. 18: the Administrative Law Judge was the speaker; page 330, l. 17: should say “Sustained as to form.”; page 363, l. 9: “3” should be “30”; page 397, l. 4: “objective” should be “subjective”; page 602, l. 14: should say “it’s not something” instead of “it’s something”; page 656, l. 23: should say “Sustained as to form.”; page 667, l. 20: “sleeping” should be “sweeping”; and page 729, l. 8: “should not” should say “should.” I also note that on October 17, 2014, I issued an order directing the parties to file corrected versions of certain exhibits to redact personal identifiable information and other confidential information. Pursuant to that order, Respondent submitted the following corrected exhibits: Joint (Jt.) Exhs. 24, 28. I have replaced the original copies of those exhibits in my exhibit file with the corrected versions. Since the electronic file still contains both the original and corrected exhibits, I recommend that the Board take appropriate steps to ensure that the original exhibits are handled in a way that will ensure they (and the personal identifiable and/or confidential information they contain) remain confidential. JD-69-14 3 FINDINGS OF FACT4 I. JURISDICTION 5 Respondent, a corporation with an office and place of business in Bentonville, Arkansas, as well as various stores throughout the United States (including Placerville and Richmond, California), engages in the retail sale and distribution of consumer goods, groceries and related products and services. In the twelve-month period ending December 31, 2012, Respondent derived gross revenues in excess of $500,000. During the same time period, Respondent 10 purchased and received products, goods and materials at its Richmond, California facility that were valued in excess of $5,000 and came directly from points outside of the State of California. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 15 II. ALLEGED UNFAIR LABOR PRACTICES A. Background Since in or about 2010 or 2011, a group of current and former Walmart employees has 20 participated in the Organization United for Respect at Walmart (OUR Walmart) to advocate for various changes in working conditions, benefits and workplace policies at Walmart. (Tr. 44-45, 80-81.) In connection with this effort, OUR Walmart has received extensive advice and support from the United Food and Commercial Workers union (UFCW), even though OUR Walmart is not itself a union and does not “represent” employees for collective-bargaining purposes. 25 UFCW’s support for OUR Walmart has included, but is not limited to: assistance with creating OUR Walmart; financial support; staffing support, such as UFCW employees who are assigned to work with OUR Walmart on the “Making Change at Walmart” campaign; advice on strategy; and networking support, including contacting community groups to support or join OUR Walmart members when they engage in strikes, protests or other “actions” as part of the Making 30 Change at Walmart campaign. (Joint (Jt.) Exh. 22; see also Tr. 118.) Although Walmart has over 4,000 stores, the events in this case generally relate to two stores in northern California: Walmart store 2418, located in Placerville, California; and Walmart store 3455, located in Richmond, California.35 B. Placerville, California - June/July 2012 1. The June 1, 2012 protest at store 2418 40 On June 1, a group of approximately 24-30 OUR Walmart members and community supporters met on the sidewalk in front of Walmart store 2418 in Placerville, California to 4 Although I have included several citations in the findings of fact to highlight particular testimony or exhibits, I emphasize that my findings and conclusions are not based solely on those specific record citations, but rather are based on my review and consideration of the entire record for this case. JD-69-14 4 protest, carry signs, distribute leaflets and advocate for Walmart to provide its associates5 with better working conditions, wages and healthcare. (Tr. 81-83, 594, 596, 651-652.) While at the protest, associate Lawrence Carpenter observed store manager Tammy Hileman, along with a few assistant managers, exit the store and use their cell phones to text and make telephone calls. (Tr. 87-90, 93-94, 109, 598.) Approximately 45 minutes later, Carpenter observed Hileman 5 return to the sidewalk. Carpenter testified that Hileman appeared to hold a black, shiny item that looked like a cell phone and use it to scan the protesters (as if she were taking a picture). (Tr. 90-91, 93, 109-114.) Carpenter made his observations from the opposite end of the sidewalk from where Hileman was positioned (from a distance of up to 30 feet), and while both he and Hileman stood in front of the protesters who were also present on the sidewalk. (Tr. 97-98, 111; 10 see also Jt. Exh. 1(a) (photograph of the sidewalk in front of the store); GC Exh. 2(a) (same).) Hileman denied taking any photographs or video recordings of the protest, and also denied stretching her arms in front of her body (as if to scan for a photograph or video) during the protest. Hileman added that, at that time, she carried her cell phone in a pink cover. (Tr. 15 597-599.) Similarly, assistant manager Lance Snodgrass, who spent most of the day monitoring the protest, did not observe Hileman take any videos or photographs of the protest, and did not see Hileman hold her arms out in front of her with something in her hand at the protest. (Tr. 650, 652, 655, 659-660, 664-665.) 20 2. Late June 2012 - Barbara Collins attends protest in Los Angeles In late June, Barbara Collins traveled to Los Angeles to participate in a march/rally with OUR Walmart members and community supporters. Collins, who was working as an electronic sales associate in Walmart’s store 2418 in Placerville, California, did not tell anyone in 25 management about her plans to attend the rally. (Tr. 44-45, 49.) However, Collins did ask approximately ten other OUR Walmart members at the Placerville store if they would also like to attend the rally, and was generally an open and vocal supporter of OUR Walmart. (Tr. 51-52, 73.) In addition, another OUR Walmart member who was attending the Los Angeles rally told various (unidentified) people in the Placerville store that she and Collins would be attending the 30 rally.6 (Tr. 66.) 3. Early July 2012 - Collins’ interactions with supervisor Susan Stafford At the end of one of Collins’ shifts in the second week of July, overnight assistant 35 manager Susan Stafford asked Collins how her trip to Los Angeles was. Collins was surprised by Stafford’s question (since she had not told Stafford or anyone else in management that she was going to the Los Angeles rally), but responded that the trip was great. When Collins and Stafford went to the assistant manager’s office to turn in Collins’ keys to the electronics area, Stafford asked Collins if she was worried that Walmart would close the Placerville store if OUR 40 Walmart became too big. Collins responded that she did not believe Walmart would close the 5 Walmart calls its employees “associates.” I have used the same terminology in this decision. 6 I decline Respondent’s request that I take judicial notice of newspaper articles that were published about the Los Angeles protest. (See R. Posttrial Br. at 11 & fn. 3) The newspaper articles are not probative of any material issues that relate to the Los Angeles protest, and the record establishes that many associates at the Placerville store knew about the Los Angeles protest. JD-69-14 5 store, since such a store closure had only happened once before at a store in Canada. No one else was present during this conversation, which lasted less than one minute.7 (Tr. 45-47, 54-55, 57, 410; see also Tr. 412 (noting that if Stafford was the assistant manager on duty when Collins finished her shift, Stafford would be the one to take Collins’ keys to the electronics area).) 5 C. Walmart’s Dress Code Policies 1. Overview Since at least July 19, 2010, Walmart has maintained that the purpose of its dress code “is 10 to provide the parameters for an atmosphere that is professional but at the same time relaxed.” (Jt. Exhs. 30, p. 1; 31, p. 1.) Explaining further, Walmart’s dress code policies state as follows: Dressing for the work environment not only allows us to demonstrate pride in ourselves, but influences how our company is perceived by others, whether they are customers or 15 fellow associates. It has an impact on our performance as well as on the performance of those around us. Our emphasis is that each associate should be neat and clean and take pride in their appearance. Walmart requires its associates to dress in a manner that is professional, relaxed, and 20 appropriate to the facility[.] (Id.; see also Jt. Exh. 33, p. 1 (Walmart’s workplace standards policy, which states that Walmart strives “to provide a work environment that is clean, safe and allows associates to focus on being productive and providing excellent customer/member satisfaction. All associates are expected 25 to present themselves in a professional manner that promotes respect and trust in the workplace, enhances customer/member loyalty and avoids the appearance of impropriety”); Tr. 537, 632 (noting that Walmart aims to provide excellent customer service and maintain a family friendly environment).) 30 2. The July 2010 dress code for Walmart’s California employees On July 19, 2010, Walmart issued the following dress code guidelines for hourly associates in its stores located in California: 35 Dress Code 7 Stafford denied making these remarks to Collins, but I did not find the material portions of Stafford’s testimony to be credible. For example, when asked if she had ever heard anything about the June 1 OUR Walmart protest, Stafford denied hearing anything about it even though the protest was a significant event at the Placerville store. (Tr. 419.) Further, Stafford gave varied responses when asked whether Collins met with her to turn in keys to the electronics area in July 2012, stating initially that she did not remember any occasions where Collins was leaving and gave Stafford keys, but later stating that if she did meet with Collins in July 2012, their interactions would have been limited to returning keys, asking about electronics, or saying goodnight. (Compare Tr. 412 with Tr. 418-419.) Based on these inconsistencies, I did not find Stafford’s memory of the events of July 2012 (including her interactions with Collins) to be reliable. JD-69-14 6 Walmart facilities Any short sleeve or long sleeve solid blue shirt/blouse or solid green shirt/blouse of your choosing, in any shade of blue or green, and in good condition. 5  Sleeveless shirts/blouses are not allowed.  Examples of acceptable shirt/blouse styles include, but are not limited to, t-shirts, sweaters, sweatshirts, polo-style shirts and button down shirts.  You may wear white long sleeve shirts/blouses under short sleeve solid blue or green shirts/blouses10  You are not required to tuck in your shirt/blouse. Solid tan, in any shade, and solid brown, in any shade, pants, skirts, or skorts of your choosing in good condition. Skirt or skort length must be no shorter than three (3) inches above the knee.15  Examples of acceptable pants styles and fabrics include, but are not limited to, cargos, capris, denim, and corduroy. If your position requires you to go outside while on the clock, you may wear any hat, 20 jacket or coat of your choosing in good condition; no color or style restrictions apply. If your position, which includes, but is not limited to Front-End Cashier, People Greeter, Garden Center Cashier, requires you to wear a sweater or jacket inside the building for warmth reasons, you may wear any sweater or jacket of your choosing in good condition; 25 no color or style restrictions apply. Logos or graphics on shirts/blouses, pants, skirts, hats, jackets or coats are not permitted, except the following, so long as the logo or graphic is not offensive or distracting: 30 1. A Walmart logo of any size; 2. A clothing manufacturer’s company emblem no larger than the size of the associate’s name badge; or 3. logos allowed under federal or state law. 35 You are not required to purchase or wear any clothing from Walmart or the online catalog. Clothing can be purchased from any merchant of your choosing. If you feel you are under pressure from management to purchase or wear clothing from Walmart or the online catalog, you are obligated to immediately contact the company’s Ethics Hotline, your Market Human Resource Manager, or your Regional Human Resource Director.40 (Jt. Exh. 30, pp. 2-3; see also Jt. Exh. 30, p. 6 (setting forth a dress code exception that allowed “Maintenance, Cart Attendant/Courtesy associates, Overnight Receiving, Unloader, In- Stock/ICS Team and Assembler positions” to wear blue denim jeans).) 45 The July 19, 2010 dress code remained in effect at all material times until February 7, 2013, when Walmart issued an updated dress code. (See Jt. Exh. 31; see also Tr. 12 (Walmart JD-69-14 7 agreed that the July 19, 2010 dress code remained in effect at all material times until at least September 14, 2012).) In practice, Walmart permitted associates to have logos on clothing (including OUR Walmart and UFCW pins and lanyards) as long as the logo was smaller than the Walmart name tag (2 x 3 inches). (Tr. 566-568, 629-630.) 5 3. August/September 2012 - Raymond Bravo’s alleged dress code violations at the Richmond, California Walmart (store 3455) In 2012, Raymond Bravo was employed as an overnight maintenance associate in Walmart’s Richmond, California store. Bravo became an OUR Walmart member on January 23, 10 2012. (Tr. 333, 335.) When Bravo began working at Walmart in 2011, he initially complied with the dress code, which he understood required khaki pants and a blue shirt.8 However, after completing his probationary period and noticing that his coworkers were not complying with the dress code, 15 Bravo began wearing clothes to work that did not comply with the dress code (such as a black thermal shirt, instead of a blue or green shirt as required by the dress code). Generally, Bravo wore noncompliant clothing to work for three out of his four weekly shifts at the store. (Tr. 335- 337; Jt. Exh. 30, pp. 2-3.) 20 At approximately 11:00 p.m.9 on August 21, Bravo arrived at work wearing khaki pants, and a green OUR Walmart t-shirt on top of a black thermal shirt. (Tr. 338; Jt. Exh. 27 (August 21, clip 1).) After clocking in, Bravo attended a pre-shift meeting led by assistant manager Peggy Licina. Licina did not comment about Bravo’s attire, nor did any other member of Walmart management. (Tr. 340.) Bravo accordingly began his shift and worked for two hours 25 without incident, and then went to the front entrance of the store (at approximately 1:04 a.m. on August 22) because it was time for his break. At approximately 1:07 a.m., Licina arrived at the front entrance and unlocked the door to allow Bravo and other associates to go outside. Licina did not comment about Bravo’s attire. (Tr. 339-341, 369, 371; Jt. Exh. 27 (August 22, clip 2).) However, when Bravo reentered the store at approximately 1:11 a.m. to resume working, Licina 30 directed Bravo to take off his OUR Walmart shirt. (Tr. 341-342; Jt. Exh. 27, clip 2.) Bravo complied, and completed his shift wearing his black thermal shirt without further comment from Licina. (Tr. 342; Jt. Exh. 27 (August 22, clip 1).) On September 14, Bravo arrived at work wearing grey khaki shorts, and a white shirt that 35 had a Mexican flag and the words “UFCW, Un Voice, Un Vision, Un Union” written on the back, and that had an emblem on the left hand side of the front of the shirt. (Tr. 343; Jt. Exh. 27 (September 14, clip 1 (10:51 p.m.) and clip 2 (10:59 p.m.).) While clocking in, Bravo encountered overnight maintenance associate S., who was wearing a black shirt, and overnight maintenance associate D., who was wearing sweatpants. (At trial, Bravo could not recall the 40 color of D.’s shirt.) When Bravo, S. and D. attended a safety meeting led by Licina at the start of their shift, Licina told Bravo to take his white shirt off, or she’d be speaking to him “in a 8 Multiple witnesses agreed that the Richmond store only permitted blue shirts (notwithstanding the July 2010 dress code, which also permitted green shirts). (Tr. 270, 336, 629, 668; compare Jt. Exh. 30, p. 3.) 9 The times that I reference in this section correspond to the times stated on the surveillance videos that the parties submitted as Joint Exhibit 27. JD-69-14 8 different tone.” Licina did not say anything about S.’s or D.’s attire. (Tr. 343-345, 369; Jt. Exh. 27 (September 14, clip 2).) Bravo complied by removing his white UFCW shirt and putting on a blue shirt, and completed his shift with no one in management commenting about the fact that he was wearing shorts while on duty.10 (Tr. 346; Jt. Exh. 27 (September 15, clip 1 (1:01 a.m.).) Meanwhile, a Walmart official reported as follows to Walmart’s Labor Relations department: 5 “[Overnight] maintenance associate wore anti-Walmart t-shirt to work.” (Jt. Exh. 56, p. 4.) 4. Dress code violations by other employees The evidentiary record shows that Walmart was generally inconsistent with enforcing its 10 dress code policy at the Richmond, California store. On occasion, Walmart managers did: speak to individual employees about wearing the wrong color shirt; or ask certain employees to turn their shirts inside-out to obscure logos that did not comply with the dress code. (Tr. 323, 668- 669.) On the other hand, there were occasions where employees wore shirts or other items that did not comply with the dress code, and did so without objection or comment by managers who 15 observed the noncompliant clothing.11 (Tr. 346 (Bravo’s khaki shorts), 702 (Victor Mendoza’s blue and white checkerboard flannel shirt); GC Exh. 6.) And, on at least one occasion, two assistant managers at the Richmond Walmart were observed wearing clothing that did not comply with the dress code. (Jt. Exh. 50, p. 1; see also Tr. 570-572.) 20 Mendoza habitually violated the dress code on his Tuesday night to Wednesday morning shift, because for that shift he always wore a blue shirt with the words “Free Hugs” written on the front in large letters. A manager did ask Mendoza about the Free Hugs shirt when Mendoza first began his practice of wearing that shirt, but thereafter Mendoza continued to wear his shirt on a weekly basis without further inquiry or comment. (Tr. 701-703, 719-720; GC Exh. 6.) 25 Similarly, Mendoza frequently violated the dress code on his Thursday night to Friday morning shift, as he often wore a blue and white checkerboard-patterned flannel shirt to work for that shift. Although a manager (Momlesh “Atlas” Chandra) once told Mendoza to remove the flannel shirt because of the checkerboard pattern, Mendoza resumed wearing the shirt on future days without comment from any supervisors (including Chandra). (Tr. 702, 714; GC Exh. 6; see also 30 Tr. 703 (noting that Mendoza also wore a San Francisco 49ers shirt at work a few times).) 5. The February 2013 dress code for Walmart’s California employees On February 7, 2013, Walmart issued the following updated dress code guidelines for 35 hourly employees in its stores located in California: 10 Walmart allowed certain employees to wear shorts during the summer months, but overnight maintenance associates were not included in the list of employees covered by this exception. (Jt. Exh. 30, p. 6 (noting that the store manager may authorize the following employees to wear shorts in the summer months: “Cart Attendant/Courtesy associates, Garden Center associates, Receiving associates who unload trucks, ICS Team members who do not work on the sales floor, Overnight Stockers in a non-24 hour facility, [Tire, Lube and Express (TLE)] Service Writers and TLE associates who work in the shop area”).) 11 The evidentiary record establishes that at around 11:00 pm, Walmart dims the lights at its Richmond, California store. (Tr. 368, 670.) There is no evidence that assistant manager Peggy Licina (who did not testify), or any other manager, had difficulty seeing what color or type of clothing that employees were wearing during times when the lights were dimmed. JD-69-14 9 Dress Code Walmart facilities 5 Any short sleeve or long sleeve solid blue shirt/blouse or solid white shirt/blouse of your choosing, in any shade of blue or white, and in good condition. This blouse/shirt should be the outermost customer facing garment.  Sleeveless shirts/blouses are not allowed.10  Examples of acceptable shirt/blouse styles include, but are not limited to, t-shirts, sweaters, sweatshirts, polo-style shirts and button-down shirts.  You may wear white long sleeve shirts/blouses under short sleeve solid blue or white shirts/blouses  You are not required to tuck in your shirt/blouse.15 Solid tan, in any shade, solid brown, in any shade, and solid black pants, skirts, or skorts of your choosing in good condition. Skirt or skort length must be no shorter than knee length. 20  Examples of acceptable pants styles and fabrics include, but are not limited to, cargos, capris and corduroy.  Examples of unacceptable pant styles and fabrics include, but are not limited to, jeans, sweatpants, denim and fleece. 25 While working outside the building (the building includes the garden center), you may wear any hat, jacket or coat of your choice in good condition; no color or style restrictions apply. If you work in a position such as Front-End Cashier, People Greeter, Garden Center 30 Cashier, you may wear a sweater or jacket inside the building for warmth reasons. Your sweater or jacket must be in good condition and, if it is your outermost garment, it must be solid blue or solid white. You may also wear a sweater or jacket in good condition of any color if you wear it underneath a solid blue or solid white garment otherwise permitted by this dress code (blouse/shirt/sweater/jacket). Your outermost garment must 35 always be solid blue or solid white in any shade. Walmart logos of any size are permitted. Other small, non-distracting logos or graphics on shirts/blouses, pants, skirts, hats, jackets or coats are also permitted, subject to the following:40  The logo or graphic must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional messaging.  Except for a clothing manufacturer’s company emblem no larger than the size of your company name badge, the logo or graphic must not represent45 JD-69-14 10 - Any business engaged in the commercial sale of products or services to the public, including but not limited to a competitor or supplier; or - Any product or service offered for commercial sale to the public, whether in Walmart or elsewhere5 You are not required to purchase or wear any clothing from Walmart or the online catalog. Clothing can be purchased from any merchant of your choosing. If you feel you are under pressure from management to purchase or wear clothing from Walmart or the online catalog, you are obligated to immediately contact the company’s Ethics Hotline, 10 your Market Human Resource Manager, or your Regional Human Resource Director. (Jt. Exh. 31, p. 2; see also Jt. Exh. 60 (summarizing the 2013 update to Walmart’s California dress code, and noting that exceptions to the dress code may be considered for medical or religious reasons).) The February 7, 2013 dress code has been in effect at all material times 15 since at least February 21, 2013. (Tr. 13.) As with the July 2010 dress code, Walmart permitted associates to have logos on clothing (including OUR Walmart and UFCW pins and lanyards) as long as the logo was smaller than the Walmart name tag (2 x 3 inches). (Tr. 566-568, 629-630.) D. Overview of the Summer/Fall 2012 Richmond, CA Store Remodeling Project20 In August 2012, Walmart began a remodeling project at its Richmond, California store to give the store an upgrade (e.g., installing new floor tiling, rearranging counters, cleaning). Following its customary framework for such projects, Walmart assigned a field project manager (Malcolm Hutchins) to oversee the remodeling work, and also assigned a team of five field 25 project supervisors (including Art Van Riper) to supervise (and also participate in) the remodeling at the store on a daily basis. (Tr. 230, 351, 472-477, 482; see also R. Exhs. 6-7; Jt. Exh. 24.) In practice, Hutchins created the remodeling schedule (i.e., the schedule for when 30 remodeling work would be done in the various store departments), prepared and communicated daily work plans to the field project supervisors, and visited the Richmond store periodically to ensure that the project ran smoothly, stayed on schedule and stayed within budget. (Tr. 474-475, 478-479, 481-485; R. Exhs. 6-7.) Field project supervisors such as Van Riper were responsible for working with remodeling team associates to systematically complete the tasks on the daily 35 work plans that Hutchins prepared. Accordingly, field project supervisors: led daily meetings to tell associates about the work that was scheduled; trained associates on how to do certain tasks; decided which remodeling associates to assign to each task; and patrolled the store to supervise associates and ensure that the remodeling team was working effectively.12 Periodically, field 12 I decline Walmart’s request that I draw an adverse inference against the General Counsel for not calling an associate who worked directly with Van Riper to testify about Van Riper’s job responsibilities. (See R. Posttrial Br. at 20.) The parties presented ample evidence about that issue through other witnesses, including Hutchins, who was Van Riper’s supervisor, and Semetra Lee, who worked on the remodeling team and was familiar with the work that field project supervisors performed at the Richmond store. JD-69-14 11 project supervisors also worked alongside associates to carry out the assigned work.13 (Tr. 231- 232, 280-282, 328-331, 485-490, 503, 509-510, 620-621; Jt. Exh. 37.) Although the remodeling team managers had an active role in planning and completing the remodeling project, the Richmond store managers were responsible for handling personnel 5 matters that related to remodeling associates. Accordingly, Richmond store management hired associates to work on the remodeling project (based on the pre-established remodeling project budget), with all of the remodeling associates having temporary status.14 In addition, Richmond store management handled all matters relating to employee orientation, compensation and discipline (with input from field project supervisors and/or the field project manager as 10 appropriate), and store managers also had the authority to assign non-remodeling work to remodeling associates if those associates completed their remodeling assignments before the end of their shift. (Tr. 282, 474-481, 488, 491-494, 614-619, 677-678; Jt. Exh. 24.) Hutchins and Richmond store management worked together to set the schedules for 15 remodeling associates. Remodeling associates worked on two shifts: one during the day (from 7:00 or 8:00 a.m. to 4:00 or 5:00 p.m.); and one overnight (from 10:00 p.m. to 7:00 a.m.). (Tr. 480-483.) Van Riper worked the overnight shift. (Tr. 497.) E. September/October 2012 - Remodeling Associate Conflicts with20 Field Project Supervisor Van Riper 1. Initial conflicts Early in the Richmond store remodeling project, remodeling associates became unhappy 25 with how they were being treated by field project supervisor Van Riper. Specifically, associates noted that Van Riper yelled at them, called them “lazy,” and told them that they were the worst remodeling crew that he had ever worked with. (Tr. 233-234, 330; Jt. Exh. 57(c), pp. 8-9, 11- 12 (assistant manager heard Van Riper yell at the remodeling crew and state that the crew was lazy and the worst he had ever worked with); Jt. Exh. 57(e), pp. 10-11 (field project supervisor 30 heard Van Riper yell at the remodeling crew, and also heard him tell the remodeling crew that they were a bunch of “lazy ass workers”); Jt. Exh. 57(g), pp. 7-8.) In addition, some associates were offended when Van Riper stated “if it was up to me, I would put that rope around your neck” when associate Markeith Washington put a rope around his (Washington’s) waist to assist with moving a heavy counter.15 Washington laughed Van Riper’s comment off, but also told 35 13 When not assigned to a field project, field project supervisors return to their “home store” where they supervise associates as instructed by the store manager. (Tr. 495-496; see also Jt. Exh. 38, pp. 1, 3, 11.) 14 Temporary associates on remodeling projects typically end their employment with Walmart at the conclusion of the remodeling project. Store managers retain the option, however, to offer store-based jobs to remodeling associates, and may consider the opinions of field project supervisors in making those hiring decisions. (Tr. 493-494.) 15 Van Riper denied making this statement when he was interviewed by market human resources manager Janet Lilly. (Tr. 554-555; Jt. Exh. 57(f), p. 13.) I have given little weight to Van Riper’s denial because multiple employees corroborated Washington’s report about the incident, and because Walmart did not call Van Riper to testify at trial, despite Van Riper still being one of Walmart’s employees. In this connection, I note that I take no position on whether Van Riper’s statement was racist in nature (as some associates maintained), since I need not resolve that issue to address the National Labor Relations Act JD-69-14 12 Van Riper that what he (Van Riper) said was not right. (Tr. 234-235, 285; Jt. Exh. 57(a), p. 9; Jt. Exh. 57(b), p. 12.) 2. October 11-12, 2012 - Van Riper’s remarks when associates returned from strike 5 On October 9-10, remodeling associates Demario Hammond, Misty Tanner and Markeith Washington joined other Richmond store associates (including Raymond Bravo) in an OUR Walmart sponsored strike “to protest Walmart’s attempts to silence Associates who have spoken out against things like Walmart’s low take home pay, unpredictable work schedules, unaffordable health benefits and Walmart’s retaliation against those Associates who have spoken 10 out.” (Jt. Exh. 14; see also Tr. 156-157, 348, 382; Jt. Exh. 40.) At approximately 10:00 p.m. on October 11, Bravo, Hammond, Tanner and Washington returned to the Richmond Walmart to read and deliver a “return to work letter” that communicated their “unconditional offers to return to our positions with Walmart for our next 15 scheduled shifts.” (Jt. Exh. 15; see also Tr. 118-119, 156-157, 186-187, 197, 201, 349; Jt. Exh. 61.) The returning associates were accompanied by a delegation of approximately seven UFCW employees (including Mabel Tsang and Ellouise Patton) and community supporters. Initially, the associates handed their letter to assistant manager Atlas Chandra. Presumably because many of the associates were part of the remodeling crew, Chandra called Van Riper over to speak to 20 the associates. (Tr. 11-12, 119, 158-159, 349, 393; Jt. Exh. 61.) When Van Riper became agitated, UFCW employee Mabel Tsang recorded the following exchange with her cell phone: Van Riper (VR): I don’t want to hear it. It concerns union activities. I’m sorry, I’m out of it. You go talk to the store manager or public information. 25 Unknown (UK): It’s really about the law and not unions. It’s about the law - California law. VR: I don’t really want to hear about it.30 UK: You don’t want to hear about California law? VR: I don’t want to hear about unions. 35 Misty Tanner: Here Atlas. Here’s our return to work [letter]. [Chandra subsequently handed the letter to Van Riper.] UK: It’s not about unions. 40 VR: I know what California law is. I know it probably better than you do sir. Ellouise Patton (EP): Right. Finish reading the letter to him so he can start work on time.45 violations that are alleged in the complaint in this case. JD-69-14 13 M. Tanner: [Reading from a script.] I’m ready to return to my position on my next scheduled shift. If Walmart does not allow me to return to work on my next scheduled shift or retaliates against me for walking off my job its [an] unfair labor practice and I will be 5 filing a charge with the National Labor Relations Board. . . . The Board will require Walmart to reinstate me with full pay . . . 10 and benefits from today, the day I offered to return to work until the day Walmart reinstates me . . . VR: I don’t really . . . I don’t even want to hear it. You’ve been told to come back to work so get out of here - leave me alone.15 M. Tanner: [Continuing to read from script.] I struck in response to Walmart’s unlawful attempts to silence and retaliate against associates who spoke up against Walmart’s low wages, unpredictable schedules and unaffordable benefits. Therefore I’m entitled to reinstate my 20 position beginning . . . . . . VR: I have a job to do.25 UK: Yes sir. I appreciate that. We understand. You’ve got a job to do. M. Tanner: I’ll be back to work tonight. . . . Thank you. 30 EP: [Sarcastically] Thank you sir, you have been most gracious. (Jt. Exhs. 7(a)-(b); see also Tr. 119-122, 159-161, 166, 179; Jt. Exh. 61.)16 At this point, Tsang stopped her cell phone recording because she believed that the return 35 to work delegation had concluded. However, Van Riper was not finished, and responded to Patton’s remark by saying “Don’t thank me. If it were up to me, I’d shoot the union.”17 (Tr. 123, 16 The transcript of this conversation in the record (Jt. Exh. 7(b)) is generally accurate. The conversation provided here generally tracks that transcript, except for a few non-substantive corrections that I made based on the video recordings in the record (Jt. Exhs. 7(a), 63). 17 I have credited Tsang’s account of Van Riper’s remark because Tsang presented detailed and credible testimony, and because she was already in the role of monitoring Van Riper’s conduct when he made the remark about shooting the union (and thus was tuned in to precisely what Van Riper was saying). In addition, Tsang’s account was largely corroborated by Hammond’s report and Bravo’s testimony. (See Jt. Exh. 57(b), p. 13 (Hammond); Tr. 350 (Bravo).) I have given less weight to Patton’s testimony that Van Riper said “You people ought to be shot,” because she demonstrated difficulty with recalling some of the details about the interaction with Van Riper. (Tr. 204-207.) JD-69-14 14 190-192, 350; Jt. Exh. 57(b), p. 13.) Tsang resumed recording the events and recorded the following remarks: EP: Really? Okay, did everyone hear that? Okay, so let’s let these people go to work.5 . . . VR: If I had my way the union would be . . . I used to work for a union. 10 Mabel Tsang: I was recording and I stopped it right at . . . (Jt. Exh. 8(b); see also Tr. 177-178 (noting that at some point, Patton asked Van Riper if his remark about unions was a threat, and that Van Riper responded “no”), 187-188, 190-193.) Notwithstanding this confrontation, the four returning strikers returned to work on their next 15 scheduled shifts and were not disciplined for participating in the October 2012 strike. (Tr. 157- 158, 202, 382-383.) At approximately 2:00 a.m. on October 12 (during the same overnight shift that began on October 11), Van Riper and field project supervisor Carlita Jackson called all remodeling 20 associates to a meeting. At the meeting, Van Riper announced that the remodeling associates were back from their strike, but would not be working with the remodeling crew and instead would be working with the store.18 Van Riper added that although OUR Walmart was trying to unionize Walmart, that (unionization) was never going to happen. Next, Van Riper told the remodeling associates that they should not talk to the returning strikers. When Jackson and 25 associate Semitra Lee asked Van Riper what he meant by that, Van Riper said that remodeling associates should not talk to returning strikers “about the situation.” Finally, Lee asked what was going to happen to the returning strikers. Van Riper responded that they would be looking for new jobs.19 (Tr. 237-240, 286, 288-289.) 30 3. October 17, 2012 - associates submit written complaint about Van Riper On October 17, six associates (Bravo, Hammond, Tanner, L.S., Washington and Timothy Whitney) signed and submitted a letter to Walmart to complain about Van Riper. The letter stated as follows:35 We the Associates at Store #3455 in Richmond, California, are outraged at the behavior of Art Van Riper, a manager from Home Office. By using racist remarks and threats of physical violence towards Associates he has created a work environment that is threatening, harassing and intimidating.40 18 In future shifts, the remodeling associates who participated in the October 2012 strike rejoined the remodeling crew. (Tr. 289.) 19 Lee’s account of Van Riper’s remarks at the October 12, 2012 meeting was not rebutted by any other evidence. JD-69-14 15 Because he is a manager from Home Office his behavior is either condoned by Walmart, or Walmart is unaware they have a manager representing them who uses racist comments and threatens associates with physical violence. Neither is acceptable. Because this behavior is outrageous and unacceptable, we call on Walmart to do the following: 5 1. Walmart remove Home Office remodel manager Art Van Riper. We also want a public apology from him to all associates in the store and want all managers of this store to attend a cultural competency training. 2. Because much of his behavior was directed at temporary associates helping us 10 remodel and improve our store, and because Walmart will be staffing up Store #3455 for the holiday season, we want any temporary Associate who is ready and willing to take a position at Store #3455, be given first option for any available positions at the store after the completion of the remodel. If no positions are available, a list of current temporary associates will be created 15 and called when new positions are available before the job is open to the public. 3. Store manager Robert Wainaina meets with members of OUR Walmart to discuss the above issues.20 (Jt. Exh. 9; see also Tr. 354, 391, 400, 407.) For reasons that are not clear, market human resources manager Janet Lilly did not receive a copy of the October 17 letter until on or about October 31. Lilly forwarded the letter to Walmart’s labor relations department, which in turn forwarded it to Hutchins for review and comment (since Hutchins was Van Riper’s supervisor).25 (Tr. 519-520; see also R. Exh. 8; Jt. Exh. 42.) F. November 2, 2012 - Associate Work Stoppage at the Richmond, CA Store 1. Preparation for work stoppage30 In mid-October, OUR Walmart members and UFCW staff met on two occasions to discuss and prepare for a work stoppage/protest that they planned to hold at the Richmond, California Walmart on November 2. The principal reason for the work stoppage was to protest Van Riper’s treatment of the remodeling associates, and the meeting participants selected 35 November 2 for the work stoppage because the Richmond store’s grand reopening was scheduled that day (and thus the work stoppage/protest would also provide a good opportunity for OUR Walmart to state its cause). (Tr. 240-242, 291-293, 354-355; see also R. Exh. 3 (UFCW staff email dated October 29, 2012, listing the protest at the Richmond store as an upcoming event).) 40 At approximately 11:00 p.m. on November 1, Tanner approached assistant manager Tennille Tune asked Tune to send her home. Tanner explained that if she remained at the Richmond store, she would organize the work stoppage planned for the early morning of November 2. Tanner added that she might be able to call off the work stoppage if Tune could 45 promise that the remodeling associates would be offered permanent positions with Walmart after the remodeling project concluded. Tune declined Tanner’s request to be sent home, and notified JD-69-14 16 Walmart’s labor relations department of the work stoppage/protest plans. In addition, Tune altered her plans for the staff that night, to have them prioritize removing boxes and other obstacles from the floor before the work stoppage began. (Tr. 624-627; Jt. Exhs. 44-45.) 2. The grand reopening5 In the early morning on November 2, Richmond store personnel were in the process of completing their remodeling work and readying the store for its grand reopening, which was scheduled to begin that day at 6:00 a.m. when the store opened to the public. (Tr. 124, 142, 240, 351; see also Tr. 270, 501-502 (noting that the remodeling project did not fully conclude until 10 around November 7.) Walmart personnel characterized the grand reopening as a “big deal” for the store, with new meat and produce departments available for the first time, and vendors and costumed characters present to interact with customers and their families. (Tr. 541, 631-632.) 3. Lilly begins open door meetings concerning Van Riper15 Shortly after 3:00 a.m. on November 2, Lilly and market asset protection manager Paul Jankowski arrived at the Richmond store to support the store in its grand reopening, and also to interview associates (under Walmart’s open door policy) about their complaints and concerns about Van Riper. (Tr. 520-522, 574-575, 624, 681-682, 694; Jt. Exh. 58.) Lilly and 20 Jankowski’s first interview was with associate Washington. During that interview, Tanner knocked on the door and announced that she wanted to check on Washington. Tanner left after Washington confirmed that he was okay and wished to continue the meeting. (Tr. 525-527, 683-684; Jt. Exh. 58; see also Jt. Exh. 57(a) (notes from open door session with Washington).)20 25 4. Work stoppage activities inside the Richmond Walmart21 At approximately 5:24 a.m., Bravo, Hammond, Lee, Tanner, Washington and Whitney stopped the work that they were doing at the Richmond Walmart and walked to the customer service waiting area of the store (located immediately to the right of the first floor store entrance) 30 to begin a work stoppage/protest.22 The store was not yet open to the public (opening hours began at 6:00 a.m.), and the customer service area was empty, save for one individual who was sitting in the customer service area and left shortly after the work stoppage began. Bravo, Hammond, Lee, Tanner, Washington and Whitney were all still on the clock when they began their work stoppage. Meanwhile, the remodeling associates that did not participate in the work 35 stoppage continued to stock and clean the store for the grand reopening. (Tr. 125, 244-245, 300, 20 Due to other events that required her attention on November 2, Lilly did not finish investigating the associates’ complaints about Van Riper until November 16. As part of her investigation, Lilly met with associates Hammond and Whitney in open door meetings on November 7 (Bravo, Lee, Stewart and Tanner declined Lilly’s requests to meet). Lilly also met with Hutchins, Jackson, Tune and Van Riper. (Tr. 269, 296, 498, 545-546; 557-558; Jt. Exhs. 51, 57(b)-(g).) The results of Lilly’s investigation are not relevant to the complaint allegations in this case. 21 The times that I reference in this section correspond to the times stated on the surveillance videos that the parties submitted as Joint Exhibit 26(a)-(b). 22 The customer service area has a long counter with three computers/cash registers, and a few seats for customers. A chest-high wall across and to the right of the customer service counter separates most of the customer service waiting area from the rest of the store. (Tr. 437-438; Jt. Exh. 12(b).) JD-69-14 17 351, 378, 562, 627-628, 672-674; Jt. Exhs. 26(a) (clip 3), 26(b) (clips 2-3, 5); see also Jt. Exh. 16 (indicating that at some point on November 2, the work stoppage participants resubmitted their letter to Walmart regarding Van Riper’s conduct).)23 At around 5:29 a.m., Lilly and Jankowski entered the customer service area and greeted 5 the associates who were participating in the work stoppage. Lilly asked the work stoppage participants what they wanted, and offered to meet with them individually under Walmart’s open door policy to discuss their concerns. The work stoppage participants refused Lilly’s offer because they wanted to discuss their concerns as a group, and Lilly was not willing to do so because of Walmart’s practices with its open door policy and her belief that associates’ 10 confidential information should not be shared in a group setting. The work stoppage participants also refused Lilly’s request that they return to work, and continued to wait in the customer service area. (Tr. 252-253, 298-300, 358, 387-388, 534-537; Jt. Exhs. 26(a) (clip 3), 26(b) (clips 2-3, 5), 58-59; see also Tr. 516-518, 631 (agreeing that Walmart handles open door meetings on an individual basis); Tr. 326-327.) At around 6:00 a.m., Lilly repeated her requests15 that the work stoppage participants meet with her individually to discuss their concerns, and that they return to work - the work stoppage participants again refused to meet with Lilly unless she agreed to meet with them as a group, and again refused to return to work. (Tr. 537-538.) Shortly after the store opened at 6:00 a.m., four non-associates (a mixture of UFCW staff 20 and community members) entered the store and joined the work stoppage participants in the customer service area. After arriving, the non-associates and work stoppage participants displayed an 8-10 foot long green banner that stated: Stand Up25 Live Better ForRespect.org OUR Walmart Organization United for Respect at Walmart 30 (Jt. Exhs. 13(e)-(f).) Initially (at approximately 6:03 a.m.), the protesters held the banner in such a way that much of the front of the customer service counter was blocked.24 However, at 6:05 a.m., the protesters moved the banner to the back of the customer service area, thereby leaving most of the customer service counter unblocked. (Tr. 256, 305-306, 355-356, 539-540, 563, 685; Jt. Exhs. 26(a) (clip 3), 26(b) (clips 2-3, 5), 58.)35 Over the next several minutes, protesters periodically left the customer service area to exit the store, and then later returned. For example, at approximately 6:10 a.m., Lee left the customer service area for approximately five minutes to conduct a media interview in the parking lot.25 Similarly, at approximately 6:16 a.m., UFCW staff delivered signs and OUR Walmart t-40 23 Although Van Riper’s time at the Richmond store was coming to an end because the remodeling project was nearly concluded, associates were concerned that Van Riper might mistreat associates in other stores where he might be assigned in the future. (Tr. 243, 354.) 24 During this timeframe, there were no customers in the customer service area. A Walmart associate briefly walked behind the customer service counter without difficulty or incident. (Jt. Exh. 26(a), clip 3 (6:04 a.m.).) 25 Coincidentally, while Lee was standing behind a parked news vehicle doing her interview, Van Riper JD-69-14 18 shirts to the protesters in the customer service area, and took photographs of the protest inside the store (notwithstanding Jankowski’s warnings that the protesters could not take photos or hold signs, and that the protesters were trespassing and should leave the store). At times, up to 15-19 protesters (including the six associates who were continuing their work stoppage) were present in the customer service area. (Tr. 127-129, 146-152, 163-165, 258-259, 303-304, 311, 539, 688-5 689; Jt. Exhs. 12(a)-(b), 13(d)-(f), 26(a) (clips 1-3), 26(b) (clips 2-3, 5), 58-59.) Some of the UFCW staff and community members held signs and distributed leaflets outside of the store, as a protest conducted in support of (and in conjunction with) the work stoppage/protest that was in progress inside the store. Since the protesters outside the store were near a storage area for shopping carts (such that someone wanting to retrieve a cart would have to walk around the 10 protesters), Walmart asked one of its greeters to assist customers with getting carts.26 (Tr. 180- 185, 321, 325, 540-542, 629, 685-687; Jt. Exhs. 13(a)-(c), 29, 58; R. Exh. 4.) At approximately 6:29 a.m., Bravo, Hammond, Lee, Tanner, Washington, Whitney and two community members left the customer service area and stood in front of a display located in 15 the store aisle leading from the first floor store entrance (Walmart refers to this aisle as “Action Alley” because the store features advertisements in that area - the display was approximately 20 feet from the entrance doors).27 By this point, Bravo, Tanner and Lee had donned green OUR Walmart t-shirts, and Bravo was displaying a 3-by-2-foot sign that stated “ULP Strike.” Three other protesters remained in the customer service area, where they continued to display the green 20 banner. Upon seeing the protesters move to Action Alley, Lilly and Jankowski approached and told them that they were blocking customers from entering and shopping in the store, and asserted that the protesters should either return to the customer service area or leave the store. Lilly added that she would prefer that the protesters simply leave the store. In response, at 6:32 a.m., the protesters left Action Alley and returned to the customer service area (to some brief 25 applause from one of the protesters who had stayed behind in that area). (Tr. 260-262, 308-309, 316, 318-319, 357-358, 374-376, 542-545, 687-688; Jt. Exhs. 13(g), 26(a) (clip 3), 26(b) (clips 2-3, 5), 58-59.) At approximately 6:37 a.m., two uniformed police officers entered the store and spoke 30 with Lilly and Jankowski, and later, a representative of the protesters. After some discussion, the protesters agreed that they would leave the store after the six associates clocked out. Accordingly, the six associates left the customer service area at 6:38 a.m. to clock out, while UFCW staff and community supporters remained in and around the customer service area. All protesters (including the six associates) left the store by 6:52 a.m. (slightly before the end of the35 left the store and entered his car, which was parked next to the news vehicle. Van Riper yelled at Lee to move as he backed out his car, and then left the parking lot. (Tr. 264-265, 304-305; Jt. Exh. 26(a) (clip 1).) 26 Customer service desk associate Maria Della Maggiora also testified about retrieving carts from the cart storage area outside of the front of the store. Specifically, Maggiora testified that although no one prevented her from retrieving shopping carts, she did not feel comfortable retrieving carts because protesters tried to speak to her about OUR Walmart. (Tr. 431-433.) I have given little weight to Maggiora’s subjective reactions to the protest because they are not relevant to my analysis of the issues in this case. 27 Lee estimated that the display was only 10 feet from the main entrance (Tr. 318.), but I have not credited her testimony on that point because the video footage in the record shows that there was no display located within ten feet of the main entrance. JD-69-14 19 associates’ scheduled shifts, which ran until 7:00 a.m. for remodeling associates, and 8:00 a.m. for Bravo). Some associates (e.g., Bravo, Lee) joined in circulating petitions, leafleting and protesting outside of the first floor store entrance. (Tr. 263, 265, 320-321, 325-326, 355, 376, 378, 691-692; Jt. Exhs. 26(a) (clip 3), 26(b) (clips 2-5), 29, 58-59.) At no point during the work stoppage did Walmart (through Lilly, Jankowski or another manager) warn the six associates that 5 they must leave the store or face being disciplined. (Tr. 265, 361.) From 6:00 a.m. onward, Maria Della Maggiora was the Walmart associate assigned to work at the customer service desk.28 Although the customer service counter was open and accessible, Maggiora did her work elsewhere in the store during the protest. Maggiora testified 10 that she avoided the customer service area because the area was noisy while the protesters were present. Other associates, however, periodically walked behind the customer service desk without apparent difficulty, and only a limited number of customers entered the store during the protest (and the video footage does not show that any of those customers sought assistance at the customer service desk). (Tr. 266, 311-312, 358, 377, 422, 425, 430; Jt. Exhs. 26(a) (clip 3), 15 26(b) (clips 2-3, 5); see also Tr. 310 (Lee acknowledged that with 15 or more people in a small enclosed area such as the customer service area, “voices carry a little bit”).) 5. Protest continues outside the Richmond Walmart second floor entrance29 20 As part of the Richmond Walmart’s November 2 grand reopening, the store had arranged for a few vendors to set up tables in a large concrete walking area to the left of the second floor store entrance. Consistent with that plan, vendors began arriving and setting up tables at around 7:23 a.m.. (Jt. Exhs. 26(a) (clip 4), 26(b) (clip 1), 58-59.) 25 At approximately 7:29 a.m., OUR Walmart members, UFCW staff and community supporters (including Bravo and other protesters who participated in the protest activities near the first floor entrance) began protesting in the same concrete walking area.30 Initially, the demonstrators formed a line facing the parking lot, stretching a 15-foot long white banner (also 28 Normally, the customer service desk does not open until 7:00 a.m., and thus customers are rarely in the customer service area between 6:00 and 7:00 a.m. (Tr. 266, 361-362; GC Exhs. 3, 5; see also Tr. 633 (noting that the customer service area is not that busy between 6:00 a.m. and 8:00 a.m.).) Walmart opened the customer service desk earlier on November 2 because of the grand reopening. (Tr. 443-444.) I have given little weight to Maggiora’s testimony that she normally sees 8 or 9 customers in the customer service area between 6:30 a.m. and 9:00 a.m. (See Tr. 429.) Much of Maggiora’s testimony was vague and therefore unreliable, and in any event, her testimony on this point is not probative because the estimate that she provided for the amount of customer traffic at the customer service desk covers a time period that extends well beyond the time (6:52 a.m.) that the work stoppage ended. 29 The times that I reference in this section are taken from the time clock provided at the top of the video feed in Joint Exhibit 26(a), clip 4. I note that Joint Exhibit 26(b), clip 1 shows many of the same events, but its time clock lags four minutes behind (such that an event at 9:00 a.m. on Joint 26(a), clip 4 would appear at 9:04 a.m. on Joint Exhibit 26(b), clip 1). 30 Mall security personnel informed Jankowski that it was permissible for the protesters to protest outside of the first and second floor entrances to the Richmond Walmart store. (Tr. 695; Jt. Exh. 58; see also Tr. 321 (a Walmart manager informed the associates that they had to leave the store, but did not have to leave the mall property outside). JD-69-14 20 used in the protest outside the first floor entrance) and a smaller green banner (also used during the work stoppage) across the protest line. The long white banner stated: On Strike Walmart: End the Retaliation5 When they were facing the parking lot, the protesters were standing in the concrete walking area approximately 30 feet in front of where the vendors were setting up their tables. (Tr. 401-403, 406, 542, 689-690; Jt. Exhs. 26(a) (clip 4), 26(b) (clip 1), 58.) 10 After changing their alignment a couple of times (alternating between facing the parking lot and turning the line perpendicular to the parking lot), at approximately 7:39 a.m. the protesters moved their banners to stretch perpendicular to the parking lot, with the ends of the line curved slightly to make a long, flat “U”-shaped formation. With this alignment, the protesters left room for one or two people to walk between them and the first vendor table, and 15 left approximately five feet for people to pass between the protesters and the parking lot. Because the protesters were located well to the left of the store entrance, it was also possible for pedestrians coming from the parking lot to walk through a lined crosswalk area in the driveway and directly to the store entrance, thereby passing the protest line altogether. (Tr. 401-405; R. Exh. 5; Jt. Exhs. 26(a) (clip 4), 26(b) (clip 1).)20 At approximately 8:02 a.m., one or two protesters began distributing leaflets to individuals who passed through the concrete walking area. At around the same time (at 8:04 a.m.), the protesters holding the green banner moved to a different area of the concrete walkway, opening up 10-12 feet between the remaining line of protesters and the first vendor table. And, 25 by 8:08 am, the protesters had put away the green banner and concentrated the protest line behind the longer white banner, thereby leaving half of the concrete walkway clear. (Jt. Exhs. 26(a) (clip 4), 26(b) (clip 1).) At around 8:15 a.m., several protesters left the area, and the protesters that remained 30 began to wrap up their activities. Specifically, at around 8:23 a.m., the remaining protesters put away the long white banner and simply stood together in small groups (leaving 80% of the concrete walkway clear). All protest activity ended by 9:01 a.m., and at approximately 9:07 a.m., the protesters loaded their banners and signs into a sports utility vehicle. (Jt. Exhs. 26(a) (clip 4), 26(b) (clip 1), 58.)35 Throughout the exterior protest, a light load of customer traffic proceeded in and out of the second floor store entrance without incident. The vendor tables were also up and running and open for visitors, but saw limited traffic. One news vehicle parked at the end of the concrete walking area to cover the event, and then left the area once the protesters began to disperse. (Jt.40 Exhs. 26(a) (clip 4), 26(b) (clip 1).) JD-69-14 21 G. Developments after the November 2 Work Stoppage 1. Work stoppage participants offer to return to work On November 2, Bravo gave Walmart personnel a letter communicating his 5 unconditional offer to return to work. Bravo and Lee returned to work at 11:00 p.m. on November 2 without incident.31 On November 4, Hammond, Lee, Tanner and Washington also gave Walmart a letter communicating their unconditional offers to return to work (Whitney did not sign the letter). (Tr. 268-269, 390; Jt. Exhs. 17-18.) 10 2. Walmart disciplines the six associates who participated in the work stoppage Under Walmart’s disciplinary policy, a coaching is a tool that Walmart uses to “provide instruction and assistance to [associates] if [their] job performance fails to meet the reasonable expectations and standards for all associates in the same or similar position or if [the associates’] 15 conduct violates a company policy or interferes or creates a risk of interfering with the safe, orderly and efficient operation of [Walmart’s] business.” Although Walmart has three levels of coaching (first, second and third written coachings) that associates typically progress through if they are coached on multiple occasions (i.e., an associate who has an active first written coaching will normally receive a second written coaching if the need for another coaching arises), 20 supervisors have the discretion to skip levels of coaching if they determine a higher level of coaching is warranted based on the particular circumstances. (Jt. Exh. 6, p. 1.) Between November 5 and 8, Walmart disciplined each of the work stoppage participants with a two-level coaching, such that Hammond, Lee, Tanner, Washington and Whitney received 25 a second written coaching (because they had no active coachings at the time), while Bravo received a third written coaching (because he had an active first written coaching at the time). Before deciding to issue two-level coachings, Lilly searched Walmart’s online coaching records and performed a “consistency search” to review what level of coaching Walmart used when associates committed similar infractions in the past. Based on that search, Lilly found that 30 multiple associates in the Richmond store had either skipped levels or had been coached for similar infractions, and therefore determined that the proposed two-level coaching would be appropriate for the associates who participated in the work stoppage. (Tr. 560-561.) Each associate’s coaching document stated as follows: 35 Reason(s) [for coaching]: Inappropriate Conduct, Unauthorized Use of Company Time Observations of Associate’s Behavior and/or Performance:40 31 Bravo did attempt to complete his shift in the morning on November 2 (after the work stoppage concluded), but was told he could not do so without first participating in an open door meeting. Bravo declined, and instead returned to work on his next scheduled shift (in the evening on November 2). (Tr. 390.) JD-69-14 22 Abandoned work immediately befor[e] Grand Opening event and refused to return to work after being told to do so. [T]hen engaged in a sit-in on the sales floor and physically occupied a central work area. [T]hen joined with a pre- coordinated flash mob during Grand Opening to further take over, occupy, and deny access to the main customer pathway through the front of the store. Refused 5 to stop/leave when told to do so. Impact of Associate’s Behavior: Disrupted business and customer service operations during key Grand Opening 10 event and interfered with your co-workers’ ability to do their jobs. Created a confrontational environment in our store with customers and co-workers at a time when we were trying to make a crucial first impression with potential long term customers; likely lost customers as a result. 15 Behavior Expected Of Associate: Work as directed and do not attempt to occupy Walmarts property, disrupt operations, or interfere with customer service or co-workers job tasks. You are encouraged, but not required to use the company’s Open Door to address any 20 issues you want to share. (Jt. Exh. 19; see also Tr. 266-268, 322, 359-361, 558-565, 587; Jt. Exh. 20 (Bravo’s pre- existing first written coaching, given on August 19, 2012 for attendance/punctuality problems).) Walmart emphasized that it disciplined the associates for unauthorized use of company time (not 25 using their time on the clock to do productive work), and not because of the work stoppage. (Tr. 268, 322, 565.) Walmart’s coaching paperwork includes an “Action Plan” that associates may complete to respond to the coaching, or articulate how they will correct the problems or concerns set forth 30 in the coaching. (See Jt. Exh. 6.) Bravo, Lee, and Whitney left their action plans blank, while Tanner did not report for work after November 2, and thus was not present to enter an action plan when her coaching was issued. Washington wrote: “just get back to work and stay [focused].” And Hammond stated: “I only participated in the sit-in because I was tired of the verbal abuse and other unfair labor practices made by Art [Van Riper] from Store Planning. 35 With that being said, I will continue to work hard as I move forward here at Walmart. I have always done my best and more since I started here and I love working here. I hope this doesn’t reflect negatively on my work ethic because I will still be knocking out pallets like crazy. I apologize for my inappropriate behavior and this will not happen again.” (Jt. Exh. 19; see also Tr. 558, 561, 563.) 40 3. November 7 - remodeling project concludes On November 7, Walmart informed the remodeling associates at the Richmond store that the remodeling project had concluded and that the associates would receive their last checks in 45 the mail. Accordingly, Hammond, Washington and Whitney worked their final day on November 8, while Tanner and Lee worked their final days on November 2 and 7, respectively. JD-69-14 23 Of the 27 associates who worked on the remodeling project between August 13 and November 8, only one associate (associate C.R.) was placed directly into a permanent position at the store. (Tr. 270, 279-280, 283; Jt. Exhs. 23, 25 pp. 56-60.) DISCUSSION AND ANALYSIS5 A. Witness Credibility A credibility determination may rely on a variety of factors, including the context of the witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or 10 admitted facts, inherent probabilities and reasonable inferences that may be drawn from the record as a whole. Relco Locomotives, Inc., 358 NLRB No. 37, slip op. at 12; see also Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006) (noting that an ALJ may draw an adverse inference from a party’s failure to call a witness who may reasonably be assumed to be favorably disposed to a party, and who could reasonably be expected to corroborate its version of 15 events, particularly when the witness is the party’s agent). Credibility findings need not be all- or-nothing propositions - indeed, nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a witness’ testimony. Relco Locomotives, 358 NLRB No. 37, slip op. at 12. My credibility findings are set forth above in the findings of fact for this decision.20 B. The Placerville Store 1. Complaint allegations and applicable legal standard 25 The General Counsel alleges that, on or about June 1, 2012, Walmart unlawfully engaged in surveillance and/or created the impression of surveillance by photographing or videotaping associates (or appearing to do so) while the associates engaged in a protest at the Placerville store. (GC Exh. 1(bb), par. 6(a)(1).) 30 The General Counsel also alleges that, in or about the second week of July 2012, Walmart implicitly threatened an associate by asking the associate if she was afraid Walmart might close its Placerville store if too many associates joined OUR Walmart. (GC Exh. 1(bb), par. 6(a)(2).) 35 Under Section 7 of the Act, employees have the right to engage in concerted activities for their mutual aid or protection. Section 8(a)(1) of the Act makes it unlawful for an employer (via statements, conduct, or adverse employment action such as discipline or discharge) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. Relco Locomotives, 358 NLRB No. 37, slip op. at 12 (2012), enfd. 734 F. 3d. 764 (8th Cir. 2013). 40 In general, the test for evaluating whether an employer’s conduct or statements violate Section 8(a)(1) of the Act is whether the statements or conduct have a reasonable tendency to interfere with, restrain or coerce union or protected activities. Id. Apart from a few narrow exceptions (none of which apply in this case), an employer’s subjective motivation for its 45 conduct or statements is irrelevant to the question of whether those actions violate Section 8(a)(1) of the Act. See Station Casinos, LLC, 358 NLRB No. 153, slip op. at 18-19 (2012). JD-69-14 24 2. Did Walmart violate the Act by engaging in surveillance or creating the impression of surveillance on June 1, 2012? A supervisor’s routine observation of employees engaged in open Section 7 activity on 5 company property does not constitute unlawful surveillance. However, an employer violates Section 8(a)(1) when it surveils employees engaged in Section 7 activity by observing them in a way that is out of the ordinary and thereby coercive. Indicia of coerciveness include the duration of the observation, the employer’s distance from its employees while observing them, and whether the employer engaged in other coercive behavior during its observation. Farm Fresh 10 Company, Target One, LLC, 361 NLRB No. 83, slip op. at 18-19. The Board’s test for determining whether an employer has created an unlawful impression of surveillance is whether, under all the relevant circumstances, reasonable employees would assume from the statement or conduct in question that their union or other 15 protected activities have been placed under surveillance. Id.; see also New Vista Nursing & Rehabilitation, 358 NLRB No. 55, slip op. at 10 (2012) (noting that the standard for creating an unlawful impression of surveillance is met “when an employer reveals specific information about a union activity that is not generally known, and does not reveal its source”); Flexsteel Industries, 311 NLRB 257, 257 (1993) (noting that an employer creates an impression of 20 surveillance by indicating that it is closely monitoring the degree of an employee’s union involvement). The standard is an objective one, based on the rationale that employees 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 union activities, and in what particular ways. Farm Fresh Company, Target One, LLC, 361 NLRB No. 83, slip op. at 18-19. 25 In this case, the General Counsel fell short of establishing facts demonstrating that Walmart unlawfully engaged in surveillance or created the impression of surveillance at the June 1 protest. Although several people participated in the protest, the General Counsel relied solely on the testimony of associate Carpenter, who testified that from a distance of up to 30 feet, he 30 saw store manager Hileman hold a black, shiny object in her hands and make a scanning motion as if she was photographing or videotaping the protesters. (Findings of Fact (FOF) Section II(B)(1).) Although Carpenter was a candid witness, I find that the General Counsel did not present 35 enough evidence to establish that Hileman videotaped, photographed, or made a scanning motion towards protesters as alleged on June 1.32 First, Carpenter’s account was tentative and uncorroborated. Carpenter admitted to being up to 30 feet away from Hileman when he made his observations, and also admitted that he was uncertain about exactly what he saw Hileman holding in her hands when she allegedly made the scanning motion. And, although several other 40 protesters were present on the sidewalk when the alleged surveillance occurred, the General Counsel did not call any other witnesses to corroborate Carpenter’s account. Second, Hileman credibly denied videotaping, photographing or scanning the protesters as alleged, and drew support in her denial from Snodgrass, who was present for the majority of the protest and did not 32 The General Counsel does not claim that Hileman or other Walmart managers engaged in unlawful surveillance when they were merely present at the protest and speaking on their cell phones. JD-69-14 25 see Hileman take photographs or videos, and did not see her make any scanning motions. (FOF, Section II(B)(1).) In light of the weaknesses in Carpenter’s testimony, and Hileman’s credible denial, I cannot find that Hileman unlawfully engaged in surveillance, nor can I find that Hileman 5 engaged in conduct that would reasonably create the impression of surveillance as the General Counsel alleges.33 Accordingly, I recommend that the allegation in paragraph 6(a)(1) be dismissed. 3. Did Walmart violate the Act when Stafford asked Collins if she was concerned that the 10 Placerville store might close if too many associates joined OUR Walmart? The Board has explained that an employer may lawfully communicate to its employees carefully phrased predictions about “demonstrably probable consequences beyond [the employer’s] control” that unionization will have on the company, provided that the predictions 15 are based on objective facts. However, if the employer implies that it may or may not take action solely on its own initiative for reasons unrelated to economic necessities and known only by the employer, then the employer’s prediction is a threat of retaliation that violates Section 8(a)(1) of the Act. Daikichi Sushi, 335 NLRB 622, 623-624 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Thus, if an employer predicts, without any supporting objective facts, that its company 20 could close if employees unionize, the employer violates Section 8(a)(1) because its prediction communicates an unlawful message that the employer might decide on its own initiative to shut down operations if its employees unionize. Id. at 624 (noting that it is not a defense if the employer’s prediction of plant closure is couched as a possibility instead of a certainty); see also Dlubak Corp, 307 NLRB 1138, 1151-1152 (1992) (finding that the employer violated Section 25 8(a)(1) by warning employees, without a basis in objective fact, that the plant could close if employees selected the union as their collective-bargaining representative), enfd. 5 F.3d 1488 (3d Cir. 1993). As set forth in the findings of fact, in early July 2012, assistant store manager Stafford 30 asked associate (and OUR Walmart supporter) Collins if she (Collins) was concerned that Walmart might close the Placerville store if OUR Walmart grew too large. (FOF, Section II(B)(3).) Although Stafford’s raised the prospect of plant closure in the form of a question, Stafford’s question implicitly communicated that plant closure might be a risk if OUR Walmart grew too large. More important, the asserted risk of plant closure was not based on any objective 35 facts - instead, the implication was that Walmart might close the Placerville store if Walmart believed OUR Walmart was gaining too much traction. A reasonable employee confronted with such a risk would be more likely to avoid supporting OUR Walmart. Accordingly, I find that Stafford’s statement to Collins violated Section 8(a)(1) of the Act because Stafford’s statement 33 I note that even if Carpenter’s and Hileman’s testimony were equally credible, Walmart would prevail on this issue because the General Counsel bears the burden of proving the allegations in the complaint by a preponderance of the evidence. See Central National Gottesman, 303 NLRB 143, 145 (1991) (finding that the General Counsel did not meet its burden of proof because the testimony that the allegation occurred was equally credible as the testimony that denied the allegation); Blue Flash Express, 109 NLRB 591, 591-592 (1954) (same), questioned on other grounds Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997). JD-69-14 26 about the risk of plant closure had reasonable tendency to interfere with, restrain or coerce associates in their union or protected activities.34 C. Dress Code Allegations 5 1. Complaint allegations and applicable legal standards The General Counsel alleges that Walmart violated Section 8(a)(1) of the Act by: (a) maintaining its July 2010 dress code for California associates until at least September 10 14, 2012 (GC Exh. 1(bb), par. 6(d)); (b) maintaining its February 2013 dress code for California associates (GC Exh. 1(bb), par. 6(f)); and 15 (c) applying its July 2010 dress code for California associates selectively and disparately insofar as Walmart applied it to an employee (Raymond Bravo) who formed, joined or assisted OUR Walmart and/or the United Food and Commercial Workers, while not enforcing it against other associates (GC Exh. 1(bb), par. 6(e)). 20 Regarding the General Counsel’s allegations that Walmart’s dress code policies were facially unlawful (GC Exh. 1(bb), pars. 6(d), (f)), it is well established that employees have a statutorily protected right to wear union insignia on their employer’s premises, including buttons, t-shirts and other articles of clothing. Stabilus, Inc., 355 NLRB 866, 868 (2010); W San Diego, 348 NLRB 372, 373 (2006). However, an employer may lawfully restrict the wearing of union 25 insignia where “special circumstances” justify the restriction. Special circumstances justify restrictions on union insignia or apparel when their display may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees. The employer bears the burden of proving such special 30 circumstances. Stabilus, 355 NLRB at 868; W San Diego, 348 NLRB at 373; see also Nordstrom, Inc., 264 NLRB 698, 701-702 (1982) (noting that customer exposure to union insignia, standing alone, is not a special circumstance that permits an employer to prohibit employees from displaying union insignia). 35 2. Did Walmart violate Section 8(a)(1) by maintaining its July 2010 California dress code? As indicated in the complaint, the General Counsel asserts that the following language in Walmart’s July 2010 dress code for California associates is facially unlawful: 34 The cases that Walmart cited about warnings of plant closure are distinguishable. In the cases that Walmart cited, the Board did not find that predictions of plant closure violated the Act because the employee initiated the discussion, and the supervisors explicitly stated that they were providing their personal opinions about the risks of unionization. See Selkirk Metalbastos, 321 NLRB 44, 52 (1996), enf. denied on other grounds, 116 F.3d 782 (5th Cir. 1997) ; Standard Products Co., 281 NLRB 141, 151 (1986), enf. denied in part on other grounds, 824 F.2d 291 (4th Cir. 1987). Those factors are not present here, as Stafford initiated the discussion with Collins, and Stafford did not qualify her remarks as merely opinion. JD-69-14 27 Logos or graphics on shirts/blouses, pants, skirts, hats, jackets or coats are not permitted, except the following, so long as the logo or graphic is not offensive or distracting: 1. A Walmart logo of any size;5 2. A clothing manufacturer’s company emblem no larger than the size of the associate’s name badge; or 3. logos allowed under federal or state law. (FOF, Section II(C)(2); see also GC Exh. 1(bb), par. 6(d).)10 Based on the applicable case law, I find that Walmart’s July 2010 dress code is facially unlawful because it is overbroad and unduly infringes on the rights of associates to wear union insignia. The July 2010 dress code explicitly prohibits associates from wearing all logos except for Walmart logos, clothing manufacturer logos, and “logos allowed under federal or state law.” 15 The exception for “logos allowed under federal or state law,” however, does not save the dress code from violating Section 8(a)(1) of the Act, because the Board has explained that an employer may not validate an overbroad work rule by placing the burden on employees to determine their legal rights. Trailmobile, Division of Pullman, 221 NLRB 1088, 1089 (1975) (holding that an employer’s work rule that prohibited solicitation and distribution on company premises “except 20 as provided by law” was unlawfully overbroad because the rule prohibited solicitation and distribution in nonwork areas during nonwork time, and the employer could not place the burden on employees to determine their rights under the rule). In its posttrial brief, Walmart maintains that the logo restrictions in its dress code are 25 justified because the dress code, together with Walmart’s workplace standards policy, ensures that associates are professional, neat and clean in their appearance, and thus dress in a manner that supports Walmart’s public image of providing excellent customer service in a family- friendly environment. (See R. Posttrial Br. at 33.) In support of its argument, Walmart relies on case law that supports the proposition that an employer may demonstrate special circumstances 30 by proving that union insignia would unreasonably interfere with an employer’s established public image. See, e.g., W San Diego, 348 NLRB at 372-373 & fn. 4 (finding that the employer lawfully restricted hotel personnel from wearing any uniform adornments, including union buttons and other insignia, in public areas of the hotel, and noting that the employer invested between $88,000 and $100,000 in 2004 and 2005 on uniforms aimed at achieving a “trendy, 35 distinct and chic look”); United Parcel Service, 195 NLRB 441, 441 & fn. 2, 449 (finding that the employer lawfully restricted its drivers from wearing a union button while exposed to customers and the general public, noting that the employer invested $3.75 million per year to provide and maintain uniforms to preserve its public image of a neatly uniformed driver). 40 Although “public image” may be a valid justification for restricting union insignia, I find that Walmart fell short of establishing the “public image” special circumstances defense in this case. First, the evidentiary record shows that Walmart was generally loose with enforcing its dress code policy. (FOF, Section II(C)(2).) Where that is the case, the “public image” justification fails because the Board has held that an employer may not use an inconsistently 45 applied uniform policy to establish special circumstances. Airport 2000 Concessions, LLC, 346 NLRB 958, 960 (2006). JD-69-14 28 Second, the evidentiary record does not show that Walmart’s July 2010 dress code is sufficiently strict, standardized and formal to be covered by the case law (noted above) in which the Board has found that an employer is justified in restricting employees’ right to wear union insignia to protect the employer’s public image when employees work in areas where they may 5 come in contact with the public. Under Walmart’s policy, employees select the clothing they will wear to comply with Walmart’s broad-brush dress code - the record does not show that Walmart has invested considerable resources in developing (much less providing uniforms for) an employee “look” to portray to the public. As a result, Walmart’s public image justification simply falls short, because its July 2010 dress code is not part of a comprehensive public image 10 business plan akin to what the Board has required when finding that union insignia would unreasonably interfere with an employer’s public image. See Raley’s Inc., 311 NLRB 1244, 1250 (1993) (explaining that public image concerns did not justify a large retail grocery store’s dress code because “[t]he aprons and smocks of [the grocery store’s] cashiers, clerks, and meatcutters worn over employee selected white shirts, dark slacks, and shoes are simply not the 15 equivalent of traditional uniforms in the sense of distinctive clothing intended to identify the wearer as member of a certain organization or group. Thus, the employee appearance produced by conformity to [the grocery store’s] dress code does not rise to the level of the liveries and uniforms of the world class restaurants or United Parcel Services drivers either in appearance or in tradition.”); see also FOF, Section II(C).)20 And third, Walmart’s July 2010 dress code is overbroad because it not only prohibits union insignia for associates who work in public areas of the store, but also prohibits union insignia for associates in situations where any public image concern is limited or nonexistent (e.g., when associates work in nonpublic areas of the store, or when associates work while the 25 store is closed to the public altogether, such as from midnight to 6:00 a.m. at the Richmond store). Target Corp., 359 NLRB No. 103, slip op. at 22 (2013) (rejecting the employer’s argument that its ban on all buttons was justified to preserve its public image and business plan, and noting that the ban was overbroad because it applied to overnight employees who worked when the store was closed to the public); W San Diego, 348 NLRB at 374 (finding that the hotel 30 did not demonstrate that its prohibition on wearing union insignia was justified by special circumstances in nonpublic areas of the hotel, where employees would not be seen by the public and thus the hotel’s public image was not at issue).35 Accordingly, for the foregoing reasons, I find that Walmart violated Section 8(a)(1) by 35 maintaining its July 2010 dress code, a facially overbroad policy that unduly restricted associates’ right to wear union insignia. 40 35 In this connection, I note that Walmart did not show that it would be impractical for associates to don or doff union insignia when moving between the public and nonpublic areas of the store (or when the store opened or closed). A mere hypothetical impracticality with removing union insignia does not justify a blanket, property-wide prohibition on union insignia. See W San Diego, 348 NLRB at 374. JD-69-14 29 3. Did Walmart violate Section 8(a)(1) by maintaining its February 2013 California dress code? As indicated in the complaint, the General Counsel asserts that the following language in Walmart’s February 2013 dress code for California associates is facially unlawful:5 Walmart logos of any size are permitted. Other small, non-distracting logos or graphics on shirts/blouses, pants, skirts, hats, jackets or coats are also permitted, subject to the following . . . 10 (FOF, Section II(C)(4) (noting that the February 2013 dress code goes on to say that “[t]he logo or graphic must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional messaging”); see also GC Exh. 1(bb), par. 6(f).) Like the July 2010 dress code discussed above, I find that Walmart’s February 2013 dress 15 code is facially unlawful because it is overbroad and unduly infringes on the rights of associates to wear union insignia. Although the February 2013 dress code differs from the July 2010 version in that the February 2013 dress code does not explicitly prohibit union insignia or other logos, it remains overbroad because it requires logos to be “small” and “non-distracting.” Those restrictions do not find sufficient support in the Board’s case law36 - to the contrary, the Board 20 has upheld the right of employees to wear union insignia of a variety of sizes, including insignia sizes much larger than Walmart’s limitation that any logos must be smaller than associates’ 2 x 3 inch name tags. See, e.g., Serv-Air, Inc., 161 NLRB 382, 401-402, 416-417 (1966) (finding that the employer violated the Act by prohibiting assorted union insignia that included: an improvised, crudely printed, paper badge that was 3 inches in diameter; a 2.25 inch red button; 25 and 14-inch signs that two employees taped to their backs), enfd. 395 F. 2d 557 (10th Cir. 1968), cert. denied, 393 U.S. 840 (1968). Furthermore, for the same reasons noted above regarding the July 2010 dress code, Walmart fell short of demonstrating that the logo restrictions in its February 2013 dress code are 30 justified by Walmart’s desire to foster a public image of providing excellent customer service in a family-friendly environment. Specifically, Walmart did not establish its “public image” justification because Walmart: has not applied its February 2013 dress code consistently; did not show that its February 2013 dress code is part of a comprehensive public image business plan similar to those that the Board has recognized in prior cases; and applies its dress code not only 35 to associates when they are in public areas of the store, but also to associates when they are working in nonpublic areas and when the store is closed to the public. (See Discussion and Analysis, Section (C)(2), supra.) Therefore, I find that Walmart violated Section 8(a)(1) by 36 The Board has observed in the past that certain union insignia do not interfere with a company’s public image because the union insignia are small, neat and inconspicuous. See Nordstrom, Inc., 264 NLRB 698, 701 (1982) (noting that the union pin at issue was “muted in tone, discrete in size and free from provocative slogans or mottos”); see also United Parcel Service, 312 NLRB 596, 597 (1993), enf. denied 41 F.3d 1068 (6th Cir. 1994). It does not follow, however, that union insignia must be small, neat or inconspicuous to be protected, particularly in workplaces where (as here) the employer has not implemented a comprehensive public image business plan. JD-69-14 30 maintaining its February 2013 dress code, a facially overbroad policy that unduly restricted associates’ right to wear union insignia.37 4. Did Walmart violate Section 8(a)(1) by disparately and selectively applying it to associate Raymond Bravo in August and September 2012?5 Separate and apart from its arguments that Walmart’s July 2010 and February 2013 California dress codes were facially unlawful, the General Counsel asserts that Walmart violated Section 8(a)(1) of the Act by applying the July 2010 dress code selectively and disparately against Raymond Bravo to restrict Bravo’s protected activities. See Stabilus, Inc., 355 NLRB10 836, 837-840 (2010) (employer violated Section 8(a)(1) of the Act by enforcing its uniform policy in selective and overbroad manner against union supporters, and in a disparate manner against Section 7 activity). I find that the evidentiary record supports the General Counsel’s argument. Walmart 15 generally did not object to associates’ attire (including Bravo’s attire) in 2012 when they wore noncompliant clothing such as black shirts, khaki shorts or sweat pants. Similarly, Walmart supervisors generally did not object when associate Victor Mendoza wore (in 2012): a blue shirt with the words “Free Hugs” written in large white letters on the front of the shirt; or a blue and white checkerboard flannel shirt.38 However, when Walmart supervisor Peggy Licina saw Bravo 20 wearing a green OUR Walmart t-shirt (on August 21, 2012) and saw Bravo wearing a white t- shirt with UFCW logos (on September 14, 2012), she suddenly became more strict with the dress code and directed Bravo to remove the shirts. Notably, in each instance, Licina did not object to Bravo continuing to wear other clothing (a black thermal shirt, and khaki shorts) that did not comply with the dress code. (FOF, Section II(C)(3).) By applying the July 2010 dress code in 25 this disparate manner (i.e., by invoking the dress code when Bravo wore noncompliant clothing with OUR Walmart or UFCW logos, but not when Bravo or other associates wore other noncompliant clothing), Walmart violated Section 8(a)(1) of the Act as alleged in paragraph 6(e) of the complaint. 30 37 The General Counsel also argued that Walmart’s February 2013 dress California code is a facially unlawful work rule that reasonably tends to chill employees’ exercise of their Section 7 rights. See GC Posttrial Br. at 48-50; see also First Transit, Inc., 360 NLRB No. 72, slip op. at 1, fn. 1 (2014) (citing Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004), and describing the legal standard that applies when such challenges to work rules are at issue); Hitachi Capital America Corp., 361 NLRB No. 19, slip op. at 2-3 (2014) (same, and noting that “the Board gives the rule a reasonable reading and refrains from reading particular phrases in isolation”). Since I have found that the February 2013 dress code is facially unlawful because it improperly restricts employees’ Section 7 right to wear union insignia, I decline to rule on the General Counsel’s alternate (work rule) theory for why the February 2013 dress code is unlawful. 38 When Walmart supervisors did object upon seeing an associate wearing a shirt with a noncompliant logo, Walmart’s addressed the issue by permitting the associate to continue wearing the shirt, but with the shirt turned inside out to hide the logo. (FOF, Section II(C)(2).) JD-69-14 31 D. The Richmond Store - Alleged Unlawful Threats 1. Complaint allegations and applicable legal standard The General Counsel alleges that Walmart (through field project supervisor Van Riper) 5 violated Section 8(a)(1) of the Act by: (a) on or about October 11, threatening associates that he (Van Riper) would shoot the union when some associates returned from striking at Walmart’s Bentonville, Arkansas headquarters (GC Exh. 1(bb), par. 6(b)(1));10 (b) on or about October 12, threatening associates that: Walmart would never be union and thereby informing associates that it would be futile for them to select OUR Walmart as their collective-bargaining representative (GC Exh. 1(bb), par. 6(b)(2)(A));3915 (c) on or about October 12, threatening associates by telling them that the associates returning from strike would be looking for new jobs (GC Exh. 1(bb), par. 6(b)(2)(B)); and 20 (d) on or about October 12, prohibiting associates from speaking to associates returning from strike about the returning strikers’ activities on behalf of OUR Walmart (GC Exh. 1(bb), par. 6(b)(2)(C)). 39 I am not persuaded by Respondent’s argument that I should dismiss this futility allegation on the ground that it is not closely related to the allegations in an underlying unfair labor practice charge. (See R. Posttrial Br. at 31.) To decide whether complaint allegations are closely related to the allegations in a timely filed charge, the Board evaluates whether the complaint allegations are factually and legally related to the charge. Redd-I, Inc., 290 NLRB 1115, 1116 (1988). In an unfair labor practice charge that was timely filed on November 2, OUR Walmart asserted that Walmart violated the Act by: threatening associates on or about October 9 that it would fire all OUR Walmart members who walked off the job in a workplace action; and, on or about October 11, telling associates not to speak to associates who participated in a strike. (See GC Exh. 1(c).) I find that the futility allegation in the complaint is factually related to the November 2 charge because the complaint alleges (and clarifies) that Van Riper made statements about futility in the same October 12 meeting in which he threatened that associates returning from strike would be looking for new jobs, and prohibited associates from speaking to the returning strikers about their activities on behalf of OUR Walmart. I also find that the futility allegation in the complaint is legally related to the November 2 charge because it was part of the remarks that Van Riper made to associates on October 12, essentially in response to the buzz in the workplace that arose when associates returned from a strike and announced their unconditional offer to return to work a few hours before the October 12 meeting. As the Board has explained, the “legally related” prong of the Redd-I test is satisfied “where the two sets of allegations demonstrate similar conduct, usually within the same time period with a similar object, or there is a causal nexus between the allegations and they are part of a chain or progression of events, or they are part of an overall plan to undermine union activity.” SKC Electric, Inc., 350 NLRB 857, 858 (2007) (citing Carney Hospital, 350 NLRB 627, 630 (2007).) Since the futility allegation in the complaint satisfies both prongs of the Redd-I test (as it demonstrates conduct that is similar to the other alleged coercive statements that Van Riper made at the October 12 meeting), I will consider the merits of that allegation. JD-69-14 32 As previously noted, the test for evaluating whether an employer’s conduct or statements violate Section 8(a)(1) of the Act is whether the statements or conduct have a reasonable tendency to interfere with, restrain or coerce union or protected activities. Farm Fresh Company, Target One, LLC, 361 NLRB No. 83, slip op. at 14 5 5. Was Van Riper one of Walmart’s agents? As an initial matter, Walmart denies that Van Riper was one of its supervisors or agents, as those terms are defined in Board precedent. On the question of whether Van Riper was 10 Walmart’s agent, “[t]he Board applies the common law principles of agency in determining whether an employee is acting with apparent authority on behalf of the employer when that employee makes a particular statement or takes a particular action.” Pan Oston Co., 336 NLRB 305, 305 (2001) (collecting cases and other supporting authority). “Apparent authority results from a manifestation by the principal to a third party that creates a reasonable belief that the 15 principal has authorized the alleged agent to perform the acts in question.” Id. at 305-306. “Either the principal must intend to cause the third person to believe the agent is authorized to act for him, or the principal should realize that its conduct is likely to create such a belief.” Id. at 306. “The Board’s test for determining whether an employee is an agent of the employer is whether, under all of the circumstances, employees would reasonably believe that the employee 20 in question was reflecting company policy and speaking and acting for management,” taking into account “the position and duties of the employee in addition to the context in which the behavior occurred.” Id. “The Board may find agency where the type of conduct that is alleged to be unlawful is related to the duties of the employee. . . . In contrast, the Board may decline to find agency where an employee acts outside the scope of his or her usual duties.” Id. “Although not 25 dispositive, the Board will consider whether the statements or actions of an alleged employee agent were consistent with statements or actions of the employer. The Board has found that such consistencies support a finding of apparent authority.” Id. And finally, the Board has emphasized that “an employee may be an agent of the employer for one purpose but not another.” Id. 30 Applying that standard, I find that Van Riper was one of Walmart’s agents.40 Walmart gave Van Riper the responsibility to manage the work that the remodeling crew performed, and the responsibility to keep the remodeling project moving forward. Consistent with those responsibilities, Van Riper held daily meetings with remodeling associates, at which he 35 announced the tasks that they would be working on for the day. Van Riper also trained associates on how to carry out various assignments, and had the discretion to assign particular associates to daily tasks as he deemed necessary to complete the work as efficiently as possible. In addition, although Richmond store managers generally had authority over remodeling associates in personnel matters, when members of the remodeling team returned from strike and 40 made their unconditional offer to return to work on October 11, Richmond store assistant manager Atlas Chandra called Van Riper over to handle the matter, thereby indicating that Van Riper was the proper recipient of the associates’ offers to return to work.41 (FOF, Section II(D), 40 Since I find that Van Riper was one of Walmart’s agents during the relevant time period, I need not address the parties’ arguments about whether Van Riper was a supervisor under Section 2(11) of the Act. 41 I have considered the fact that Van Riper also tried to pass the buck when Chandra directed the JD-69-14 33 (E)(2).) Given the extent of Van Riper’s responsibilities, associates would reasonably believe that Van Riper had the authority to speak and act as Walmart’s agent regarding the associates assigned to the remodeling project. See SAIA Motor Freight, Inc., 334 NLRB 979, 979 (2001) (finding that a foreman was an agent vested with apparent authority, and noting that the foreman, inter alia, assigned and directed the employees’ work, and conducted employee meetings at 5 which he discussed employment-related matters); Cooper Industries, 328 NLRB 145, 146 (1999) (finding that three hourly paid “facilitators” were agents who had actual and apparent authority to act on the employer’s behalf because the employer vested the facilitators with authority to implement the employer’s policies on the production floor, and because the employer held out the facilitators as the “primary conduits for communications between management and team 10 employees on a wide variety of employment and production matters”), enfd. 8 Fed. Appx. 610 (9th Cir. 2001).) 6. Did Walmart (through Van Riper) make statements or engage in conduct that violated Section 8(a)(1)?15 Having established that Van Riper was Walmart’s agent, I now turn to the merits of the allegations that Van Riper made four statements that violate Section 8(a)(1). At the outset, I note that Walmart did not call Van Riper to testify at trial, even though he remained one of Walmart’s associates at the time. Furthermore, although the record includes a written statement that Van 20 Riper provided when Lilly interviewed him about his interactions with the Richmond store remodeling crew, Van Riper’s written statement does not address any of the statements at issue here. Thus, the only questions are whether the General Counsel’s witnesses were credible in their testimony about what Van Riper said, and if so, whether Van Riper’s statements violated the Act. 25 As indicated in the findings of fact, I credited witness Mabel Tsang’s testimony about the specific words that Van Riper used when associates presented him with a return to work letter on October 11. Tsang was actively keeping track of Van Riper’s behavior and comments when he told associates “If it were up to me, I’d shoot the union,” and Tsang’s testimony on that point 30 was credible and was corroborated by Raymond Bravo’s testimony and Demario Hammond’s written statement (given during Walmart’s investigation of Van Riper’s interactions with associates). Although Walmart points out that other witnesses differed from Tsang about Van Riper’s exact words, Tsang’s account remains credible, and I note in any event that the other witnesses all agreed that Van Riper made a statement that threatened associates with physical 35 violence because they supported a union.42 (FOF, Section II(E)(2).) I therefore find that returning strikers to speak to Van Riper. The fact remains, however, that when Chandra instructed associates to speak to Van Riper when the associates offered to return to work, a reasonable associate would have concluded that Van Riper had the authority to handle the matter (based on Chandra’s actions, and based on Van Riper’s general authority over the remodeling team). 42 Contrary to Walmart’s argument in its posttrial brief, Van Riper’s remark that “if it were up to me, I’d shoot the union” cannot be excused as a mere statement of opinion, a flip or intemperate remark, or hyperbole that no reasonable employee could have taken seriously. See R. Posttrial Br. at 23-27; see also, e.g., Trailmobile Trailer, LLC, 343 NLRB 95, 95 (2004) (noting that flip and intemperate remarks are protected as free speech by Section 8(c) of the Act); Mid-State, Inc., 331 NLRB 1372, 1372 (2000) (supervisor’s statements to employees about kicking a union representative’s ass, or filling the union representative’s butt with lead did not violate the Act, because the context for those statements was such JD-69-14 34 Walmart, through Van Riper’s remarks on October 11, violated Section 8(a)(1) of the Act as alleged in the complaint. See Farm Fresh Company, Target One, LLC, 361 NLRB No. 83, slip op. at 14 (explaining that an employer’s statements or conduct violate Section 8(a)(1) if they have a reasonable tendency to interfere with, restrain or coerce union or protected activities). 5 Lee’s testimony about Van Riper’s statements at the October 12 meeting was credible and was not rebutted by any other evidence. As a result, the evidentiary record establishes that Van Riper told associates that: Walmart would never unionize; the remodeling crew should not talk to returning strikers about the situation; and that the returning strikers would be looking for new jobs. (FOF, Section II(E)(2).) Based on well established Board precedent, each of those 10 statements violated Section 8(a)(1) of the Act. See Farm Fresh Company, Target One, LLC, 361 NLRB No. 83, slip op. at 18 (explaining that an employer violates Section 8(a)(1) if it communicates to employees that they risk their job security if they support a union); Pacific Coast M.S. Industries, 355 NLRB 1422, 1438-1439 (2010) (explaining that an employer violates Section 8(a)(1) when it permits employees to discuss nonwork-related subjects during worktime, 15 but prohibits employees from discussing union-related matters); Goya Foods, 347 NLRB 1118, 1128-1129 (2006), enfd 525 F.3d 1117 (11th Cir. 2008) (explaining that an employer may not tell employees that it would be futile for them to support a union). In sum, each of Van Riper’s statements discussed here had a reasonable tendency to 20 interfere with, restrain or coerce associates in the exercise of their Section 7 rights. Accordingly, I find that the General Counsel established that Walmart (through Van Riper) violated Section 8(a)(1) of the Act as alleged in paragraph 6(b)(1)-(2) of the complaint. E. The Richmond Store - Alleged Unlawful Disciplinary Coachings25 1. Complaint allegations and applicable legal standard Last, the General Counsel alleges that from November 4-7, Walmart unlawfully issued two-level coachings to associates Raymond Bravo, Semetra Lee, Demario Hammond, Misty 30 Tanner, Markeith Washington and Timothy Whitney because those associates engaged in a protected work stoppage on November 2, and to discourage associates from engaging in those or other protected activities. (GC Exh. 1(bb), pars. 7(b), (d)-(e).) To establish that an adverse employment action violates Section 8(a)(1) of the Act, the 35 General Counsel must demonstrate that: the employee engaged in activity that is “concerted” within the meaning of Section 7 of the Act; the respondent knew of the concerted nature of the employee’s activity; the concerted activity was protected by the Act; and the respondent’s decision to take adverse action against the employee was motivated by the employee’s protected, that the statements would not reasonably tend to coerce employees in the exercise of their Section 7 rights). Instead, the evidentiary record shows that out of anger after having to deal with associates who were returning from a strike, Van Riper essentially communicated to associates that future protected activity could put associates at risk for unspecified reprisals (even if it was clear that he would not actually “shoot” OUR Walmart supporters). As such, Van Riper’s statement violated Section 8(a)(1) of the Act. See Jax Mold & Machine, Inc., 255 NLRB 942, 946 (1981) (supervisor’s remarks about shooting union supporters were made in anger and were believable, and thus violated Section 8(a)(1) of the Act), enfd. 683 F.2d 418 (11th Cir. 1982). JD-69-14 35 concerted activity. Relco Locomotives, 358 NLRB No. 37, slip op. at 12, 17; see also id. at 14 (observing that “[e]vidence of suspicious timing, false reasons given in defense, failure to adequately investigate alleged misconduct, departures from past practices, tolerance of behavior for which the employee was allegedly fired, and disparate treatment of the discharged employees all support inferences of animus and discriminatory motivation”). If the General Counsel 5 succeeds in making an initial showing of discrimination, then the respondent has the opportunity to demonstrate, by a preponderance of the evidence, that it would have taken the adverse employment action against the employee even in the absence of the employee’s protected concerted activities. Id. at 12. 10 The Board has held that while on-the-job work stoppages may be a form of economic pressure that is protected under Section 7 of the Act, not all work stoppages are protected because at some point “an employer is entitled to exert its private property rights and demand its premises back.” Quietflex Mfg. Co., 344 NLRB 1055, 1056 (2005) (quoting Cambro Mfg. Co., 312 NLRB 634, 635 (1993). “To determine at what point a lawful on-site work stoppage loses 15 its protection, a number of factors must be considered, and the nature and strength of competing employee and employer interests must be assessed.” Quietflex, 344 NLRB at 1056. Those factors include: (1) the reason the employees have stopped working;20 (2) whether the work stoppage was peaceful; (3) whether the work stoppage interfered with production, or deprived the employer access to its property; (4) whether employees had adequate opportunity to present grievances to management;25 (5) whether employees were given any warning that they must leave the premises or face discharge; (6) the duration of the work stoppage; (7) whether employees were represented or had an established grievance procedure; (8) whether employees remained on the premises beyond their shift;30 (9) whether employees attempted to seize the employer’s property; and (10) the reason for which employees were ultimately discharged. Id. at 1056-1057; see also Los Angeles Airport Hilton Hotel & Towers, 360 NLRB No. 128, slip op. at 2-4 (2014) (citing Quietflex Mfg. Co.).35 2. Did Walmart violate the Act when it issued disciplinary coachings to the six associates who participated in the November 2 work stoppage? The General Counsel and Charging Party maintain that since Bravo, Hammond, Lee, 40 Tanner, Washington and Whitney engaged in a protected work stoppage on November 2, Walmart violated the Act when it disciplined them for “inappropriate conduct” and “unauthorized use of company time” based on their actions during the work stoppage. To address the merits of that claim, I now consider the ten Quietflex factors to assess whether the work stoppage was protected by the Act.4345 43 Walmart suggests that instead of considering this matter under Quietflex, I should consider this case JD-69-14 36 Factor one (the reason the employees stopped working): The evidentiary record shows that the six associates stopped working because of their ongoing concerns about Van Riper and his treatment of associates. In that connection, I note that the associates did not receive a response from Walmart when they submitted a letter outlining their concerns about Van 5 Riper on October 17, two weeks before the work stoppage. To be sure, as Walmart observes, associates also hoped to use the work stoppage to publicize OUR Walmart and its efforts to advocate for various changes in working conditions, benefits and workplace policies at Walmart. It is also clear that associates selected November 2, the day of the Richmond store grand reopening, as the day for the work stoppage because it would be a good day to publicize their 10 concerns and OUR Walmart’s goals to a large audience. (FOF, Section II(E)(3), (F)(1), (4).) Factor two (whether the work stoppage was peaceful): Based on the evidentiary record, which includes extensive video footage of the work stoppage inside the Richmond Walmart and protest activities that occurred outside the store, I find that the work stoppage was 15 peaceful. There is no evidence that associates or their supporters were violent or unruly in any manner. (FOF, Section II(F)(4)-(5).) Factor three (whether the work stoppage interfered with production or deprived the employer access to its property): During the portion of the work stoppage that occurred before 20 the store opened at 6:00 a.m., the work stoppage had a minimal effect on Walmart’s operations. Walmart had access to all of its property (including the customer service area), and the production of other associates was only affected to the limited extent that Walmart had to streamline its remodeling crew work to focus on preparing store aisles and shelves for the grand reopening (e.g., by ensuring that all freight was removed from the floor and properly stored). 25 (FOF, Section II(F)(4); see also Los Angeles Airport Hilton Hotel & Towers, 360 NLRB No. 128, slip op. at 5 (2014) (explaining that for purposes of factor 3 in the Quietflex analysis, the focus is on “whether striking employees interfere with production or the provision of services by preventing other employees who are working from performing their duties,” since striking under Restaurant Horikawa, 260 NLRB 197 (1982), and similar cases. (See R. Posttrial Br. at 61-63.) The Board’s decision in Restaurant Horikawa, however, does not involve a work stoppage. Instead, Restaurant Horikawa involved a demonstration that began outside of a restaurant, and then lost the protection of the Act when thirty demonstrators (including one off duty employee) entered the restaurant for 10-15 minutes and “seriously disrupted” the business by “parading boisterously about during the dinner hour when patronage was at or near its peak” before confronting the restaurant manager in the restaurant’s administrative offices. Restaurant Horikawa, 260 NLRB 197, 197-198 (1982); see also Thalassa Restaurant, 356 NLRB No. 129, slip op. at 1 fn. 3 (2011) (agreeing that an off duty restaurant employee engaged in protected activity when he and a group of nonemployees entered the restaurant during evening dining hours to deliver a letter protesting the employer’s alleged labor law violations; the Board noted that there was no evidence that the group: disturbed the handful of customers present, blocked the egress or ingress of anyone, was violent or caused damage, or prevented any other employees from performing their work). Although I take Walmart’s point that the work stoppage in this case was augmented from 6:00 to 6:52 a.m. by assorted non-associates who entered the Richmond Walmart to support the associates in their work stoppage, I find that facts of that nature are best considered within the Quietflex framework because it is undisputed that the six associates were on duty and were engaged in a work stoppage while in the store. Walmart’s arguments about any disruption that the associates and their supporters caused relate to the Quietflex factors and the nature and strength of the associates’ and Walmart’s interests. JD-69-14 37 employees do not forfeit the Act’s protection by withholding their own services) (emphasis in original). Once the store opened, Walmart continued to have access to its property and maintain production even though 10-14 non-associates entered the store to support the work stoppage5 periodically between 6:00 and 6:52 a.m. Apart from a 3-minute visit to Action Alley that did not cause disruption, the work stoppage remained confined to the customer service area, leaving the rest of the store unaffected. As for the customer service area, the record shows that Walmart associates had access to the customer service counter as needed during the work stoppage (notwithstanding customer service associate Maggiora’s subjective decision to avoid the area, 10 and the 2-minute period when protesters blocked the front of the customer service counter). Furthermore, the record does not show that any customers attempted to access, or were prevented from accessing (due to noise, crowding or otherwise), the customer service area, which is not surprising since the customer service area generally does not open until 7:00 a.m. and only has limited traffic at that early hour. (FOF, Section II(F)(4).)15 Finally, I do not give weight to the fact that the work stoppage occurred on the same day as the Richmond store’s grand reopening. Although Walmart maintains that the decision to hold the work stoppage during the grand reopening made the work stoppage more disruptive, the Board has held that “the protected nature of [a] work stoppage is not vitiated by the effectiveness 20 of its timing.” Atlantic Scaffolding Co., 356 NLRB No. 113, slip op. at 3 (2011) (explaining that the basic principles underlying the Act include the right of employees to withhold their labor in seeking to improve the terms of their employment, and the right to use economic weapons such as work stoppages as part of the free play of economic forces that should control collective bargaining).25 Factor four (whether employees had adequate opportunity to present grievances to management): The six associates who participated in the work stoppage presented their grievances about Van Riper to Walmart on October 17, over two weeks before the work stoppage. They did not receive a response from Walmart, however, until the morning of the 30 work stoppage, when Lilly and Jankowski (before and during the work stoppage) offered to meet with the associates individually under Walmart’s open door policy to discuss the associates’ concerns. It is undisputed that Lilly, citing Walmart’s open door policy and concerns about employee confidentiality, refused the associates’ requests to meet with her as a group. It is also undisputed, however, that Walmart ultimately used its open door policy to meet with willing 35 associates on an individual basis from November 2-7 to hear their concerns about Van Riper. For purposes of the Quietflex analysis, the Board has indicated that an open door policy may provide an adequate opportunity for employees to present grievances to management, particularly where the evidentiary record shows that the employer has an established past 40 practice of using its open door policy to consider and resolve group grievances. See HMY Roomstore, 344 NLRB 963, 963 fn. 2 & 965 (2005) (citing Cambro Mfg. Co., 312 NLRB at 636). However, the Board has also indicated that if an employer’s open door policy has been used to address only individual complaints of employees, and not group complaints, then the open door policy carries less weight. See HMY Roomstore, 344 NLRB at 963 fn. 2 & 965. 45 JD-69-14 38 Here, I find that Walmart’s open door policy carries less weight as an opportunity for the work stoppage participants to present their grievances to management because, as Walmart essentially admits, the open door policy does not allow for group action. (FOF, Section II(F)(3)-(4).) Factor five (whether employees were given any warning that they must leave the 5 premises or face discipline): It is undisputed that Walmart did not warn the six associates that they must leave the store or face discipline. Instead, the record shows that when Walmart, assisted by two police officers who were present, instructed the associates to leave the store, the associates agreed to do so, and left the store after clocking out. (FOF, Section II(F)(4).) 10 Factor six (the duration of the work stoppage): The work stoppage in this case began at 5:24 a.m. and ended at 6:52 a.m., and thus lasted for a total of 88 minutes. The store was open to the public for 52 minutes of the work stoppage (i.e., from 6:00 to 6:52 a.m.). (FOF, Section II(F)(4).) 15 Factor seven (whether employees were represented or had an established grievance procedure): The six associates that participated in the work stoppage were members of OUR Walmart, but were not represented in a formal sense (i.e., for collective-bargaining purposes) by OUR Walmart, the UFCW, or any other union. As noted above (in connection with factor four), while Walmart did offer associates the opportunity to voice their concerns about Van Riper 20 individually to Lilly and Jankowski through Walmart’s open door policy, Walmart does not have an established grievance procedure for group complaints. (FOF, Section II(A), (E)(2), (F)(1), (3)-(4).) Factor eight (whether employees remained on the premises beyond their shift): It is 25 undisputed that all six associates clocked out and left the inside of the store by 6:52 a.m., before the end of their shifts. Although at least two of the associates subsequently joined OUR Walmart protest activities that were ongoing outside of the Richmond store, the evidentiary record shows that both mall security personnel and Walmart managers accepted that the protesters had a right to continue their activities outside the store. (FOF, Section II(F)(4)-(5).)30 Factor nine (whether employees attempted to seize the employer’s property): There is no evidence that associates attempted to seize Walmart’s property during the work stoppage. Walmart associates who did not participate in the work stoppage remained free to continue working throughout their shifts, and once the store opened, customers had full access to all areas 35 of the store. (FOF, Section II(F)(4).) Factor ten (the reason for which employees were ultimately disciplined): Walmart issued a two-level disciplinary coaching to each of the six associates who participated in the work stoppage, stating that each of the six associates engaged in inappropriate conduct and 40 unauthorized use of company time. In support of the disciplinary coachings, Walmart explicitly referred to the associates’ activities during the work stoppage, noting that the associates abandoned work, refused to return to work after being told to do so, and engaged in a sit-in on the sales floor that (in Walmart’s view) disrupted business and customer service operations during the Richmond store grand reopening event.44 (FOF, Section II(G)(2).)45 44 Walmart asserted that the work stoppage was particularly disruptive because once the store opened at JD-69-14 39 Considering the ten Quietflex factors as a whole, I find that the November 2 work stoppage is protected by the Act. Factors 1, 2, 3, 5, 6, 8, 9 and 10 clearly favor the six associates. The associates stopped working to protest Van Riper’s treatment of associates on the remodeling crew, and also to protest alleged retaliation and unfair labor practices. All of those reasons were 5 fair game for concerted action.45 See Cambro Mfg. Co., 312 NLRB at 636 (observing that employees were entitled to persist for a reasonable period of time in a peaceful in-plant work stoppage that focused on specific, job-related complaints and caused little disruption of production by those who continued to work). In addition, the work stoppage: was peaceful; had limited (if any) impact on Walmart’s operations and access to its property; ended promptly when 10 Walmart and the associates agreed that the associates would clock out and leave the store (before their shifts ended); and was limited in duration (88 minutes).46 See Los Angeles Airport Hilton Hotel & Towers, 360 NLRB No. 128, slip op. at 4 & fn. 16 (noting that employees are entitled to engage in work stoppages for a reasonable period of time, and collecting cases where work stoppages of up to 5½ hours were protected by the Act); HMY Roomstore, 344 NLRB at 963 fn. 15 2, 965 (45-60 minute work stoppage was protected, in part because the employees complied immediately when the employer asserted its property rights and directed the employees to leave the store). It is also clear that Walmart disciplined associates because they participated in the work stoppage. Although Walmart asserted that the discipline was based on “inappropriate conduct” and “unauthorized use of company time,” the discipline paperwork is clear that 20 Walmart disciplined the six associates based on their protected work stoppage activities (e.g., abandoning work, refusing to return to work, and engaging in the work stoppage). (See FOF, Section II(G)(2); see also Quietflex Mfg. Co., 344 NLRB at 1055 fn. 1 (noting that refusing to work during a work stoppage is protected activity); Cambro Mfg. Co., 312 NLRB at 636-637 (same, but noting that after a reasonable period of time the employer may instruct employees to 25 either return to work or clock out and leave the premises).) The remaining Quietflex factors (factors 4 and 7, which both relate to grievance procedures) are neutral, at best. Although Walmart has an established open door policy that it offered to the associates during the work stoppage, that offer was somewhat belated since it came 30 on the day of the work stoppage, more than two weeks after the associates submitted their October 17 letter calling for Walmart to take action to address Van Riper’s conduct. In addition, 6:00 a.m., non-associates joined the six associates in protesting inside the store. (See R. Posttrial Br. at 61-62.) Although the non-associates added to the size of the protest inside the store (adding up to 10-13 people to the group at times), I do not find that the work stoppage/protest became unduly disruptive after the non-associates arrived. To the contrary, the non-associates remained in the customer service area (apart from two non-associates who joined the six associates for their 3-minute visit to Action Alley), and generally limited their activities to taking and posing for photographs, holding signs, and providing a representative to negotiate the agreement with Walmart that the six associates would clock out and leave the store (thereby ending the work stoppage). (FOF, Section II(F)(4).) 45 I am not persuaded by Walmart’s contention that the work stoppage/protest was merely a publicity vehicle for OUR Walmart. While publicity was certainly a bonus for OUR Walmart if it materialized, that does not change the fact that the work stoppage participants raised assorted concerns that relate to the terms and conditions of their employment (as noted above). 46 Protest activities did continue outside of the store until 9:07 a.m. Those activities, however, occurred on mall property, and thus did not infringe on Walmart’s private property rights. (See FOF, Section II(F)(4)-(5).) JD-69-14 40 consistent with Walmart’s past practices with open door meetings, Lilly only offered to meet with associates on an individual basis - thus, Lilly’s offer to meet under the open door policy was arguably inadequate, since the offer was predicated on the associates giving up their right to act as a group. Compare HMY Roomstore, 344 NLRB at 963 fn. 1, 965 (work stoppage was valid despite the employer’s open door policy, which had been used to resolve individual 5 problems, but not group problems) with Cambro Mfg. Co., 312 NLRB 634, 636 (1993) (giving weight to the employer’s open door policy because the employer had an established past practice of allowing employees to meet as a group with the company president). Viewing the 10 Quietflex factors as a whole, I find that the associates’ right to participate in their (limited) work stoppage outweighs Walmart’s rights as the property owner, and I accordingly find that the 10 November 2 work stoppage was protected by the Act. Since the November 2 work stoppage was protected by the Act, Walmart could not discipline associates for participating in the work stoppage without running afoul of Section 8(a)(1) of the Act. Walmart, however, did just that, because as noted above, the discipline 15 paperwork demonstrates Walmart disciplined the six associates based on their protected work stoppage activities (e.g., abandoning work, refusing to return to work, and engaging in the work stoppage). In light of the strong prima facie case that Walmart unlawfully disciplined the six associates for engaging in the protected November 2 work stoppage, and the lack of any evidence that Walmart would have disciplined the six associates even in the absence of their 20 participation in the work stoppage, I find that Walmart violated Section 8(a)(1) of the Act when it disciplined Bravo, Hammond, Lee, Tanner, Washington and Whitney. See Molon Motor & Coil Corp., 302 NLRB 138, 139 (1991), enfd. 965 F. 2d 523 (7th Cir. 1992). CONCLUSIONS OF LAW25 1. By, in or about the second week of July 2012, implicitly threatening an associate by asking the associate if she was afraid Walmart might close its Placerville, California store if too many associates joined OUR Walmart, Walmart violated Section 8(a)(1) of the Act. 30 2. By at least until September 14, 2012, maintaining a July 2010 dress code for California associates that was facially overbroad because it unduly restricted associates’ right to wear union insignia, Walmart violated Section 8(a)(1) of the Act. 3. By, since about February 2013, maintaining a February 2013 dress code for California 35 associates that was facially overbroad because it unduly restricted associates’ right to wear union insignia, Walmart violated Section 8(a)(1) of the Act. 4. By, on or about August 21 and September 14, 2012, selectively and disparately applying its July 2010 dress code for California associates to Richmond, California store 40 associate Raymond Bravo when he wore clothing with OUR Walmart or UFCW logos, but not when Bravo or other associates wore other clothing that did not comply with the dress code, Walmart violated Section 8(a)(1) of the Act. 5. By, or about October 11, threatening Richmond, California store associates (through 45 Van Riper) that it would “shoot the union,” Walmart violated Section 8(a)(1) of the Act. JD-69-14 41 6. By, on or about October 12, threatening Richmond, California store associates that Walmart would never be union and thereby informing associates that it would be futile for them to select OUR Walmart as their collective-bargaining representative, Walmart violated Section 8(a)(1) of the Act. 5 7. By, on or about October 12, threatening Richmond, California store associates by telling them that the associates returning from strike would be looking for new jobs, Walmart violated Section 8(a)(1) of the Act. 8. By, on or about October 12, prohibiting Richmond, California store associates from 10 speaking to associates returning from strike about the returning strikers’ activities on behalf of OUR Walmart, Walmart violated Section 8(a)(1) of the Act. 9. By, on or about November 4-7, unlawfully issuing two-level disciplinary coachings to associates Raymond Bravo, Semetra Lee, Demario Hammond, Misty Tanner, Markeith 15 Washington and Timothy Whitney because those associates engaged in a protected work stoppage on November 2, and to discourage associates from engaging in those or other protected activities, Walmart violated Section 8(a)(1) of the Act. 10. By committing the unfair labor practices stated in conclusions of law 1-9 above, 20 Walmart has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 11. I recommend dismissing the complaint allegations that are not addressed in the Conclusions of Law set forth above (to the extent that those allegations have not been severed 25 from this consolidated case). REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall order 30 it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Since certain unfair labor practices only apply to particular stores, I will require Respondent to post separate notices that apply to: Placerville, California store 2418; Richmond, California store 3455; and all California stores. 35 I will also require Respondent, to rescind its unlawful July 2010 and February 2013 California dress codes. Respondent may comply with this aspect of my order by rescinding the unlawful dress code provision(s) and republishing a California employee dress code at its California stores without the unlawful provision. Since republishing the California employee dress code for all California stores could be costly, Respondent may supply the associates at its 40 California stores either with an insert to the California dress code stating that the unlawful policy has been rescinded, or with a new and lawfully worded policy on adhesive backing that will cover the unlawfully broad policy, until it republishes the California dress code either without the unlawful provision or with a lawfully-worded policy in its stead. Any copies of the California dress codes that are printed with the unlawful July 2010 and/or February 2013 45 language must include the insert before being distributed to associates at Respondent’s California stores. World Color (USA) Corp., 360 NLRB No. 37, slip op. at 2 (2014) (citing 2 Sisters JD-69-14 42 Food Group, 357 NLRB No. 168, slip op. at 8 fn. 32 (2011); Guardsmark, LLC, 344 NLRB 809, 812 & fn. 8 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007). In addition to the standard remedies that I described above, the General Counsel requested that I also order Respondent to have a representative read a copy of the notice to 5 associates in each of its California stores during work time. The Board has required that a notice be read aloud to employees where an employer’s misconduct has been sufficiently serious and widespread that reading of the notice will be necessary to enable employees to exercise their Section 7 rights free of coercion. This remedial action is intended to ensure that employees will fully perceive that the respondent and its managers are bound by the requirements of the Act. 10 Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 21. Applying that standard, I do not find that Respondent’s misconduct in this case was sufficiently serious and widespread to warrant an order requiring the notice to be read aloud to employees by one of Respondent’s representatives at each of its California stores. Although I 15 have found that Respondent committed two unfair labor practices that affect all California stores (maintaining two facially overbroad dress codes), this case does not involve widespread misconduct at all of Respondent’s California stores, and I find that a standard notice posting remedy will be sufficient to address those violations and ensure that associates are advised of their Section 7 rights. 20 I also find that a standard notice posting remedy will be sufficient to address the violations at Placerville, California store 2418. Only one additional unfair labor practice occurred at the Placerville store in this case - the unlawful threat of plant closure. That violation may also be addressed with a standard notice posting.25 However, I do find that a notice reading remedy is warranted at Richmond, California store 3455 in this case. Respondent’s misconduct at the Richmond, California store was sufficiently serious and widespread to warrant an order requiring the notice to be read aloud to associates in the presence of the manager of store 3455. The evidentiary record shows that in 30 addition to maintaining two unlawfully overbroad dress codes, Respondent repeatedly took swift action against Richmond, California store associates who supported OUR Walmart, including: twice directing Bravo to remove union insignia in a disparate and selective manner; threatening associates who participated in a strike in October 2012; threatening other associates that the returning strikers would be looking for new jobs; directing associates not to speak to returning 35 strikers about their activities in support of OUR Walmart; telling associates that it would be futile to select OUR Walmart as their collective-bargaining representative; and issuing unlawful two-level disciplinary coachings to six associates who participated in a protected work stoppage. In light of those serious and widespread actions, I agree that a notice reading is necessary to assure employees at Richmond, California store 3455 that they may exercise their Section 7 40 rights free of coercion. Accordingly, I will require that the remedial notice in this case be read aloud to employees in English and Spanish by Respondent’s store 3455 manager or, at Respondent’s option, by a Board agent in Respondent’s store 3455 manager’s presence. Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 21. 45 JD-69-14 43 On these findings of fact and conclusions of law and on the entire record, I issue the following recommended47 ORDER 5 Respondent, Walmart Stores, Inc., Bentonville, Arkansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from 10 (a) Threatening associates by asking them if they are afraid Walmart might close Placerville, California store 2418 if too many associates join OUR Walmart. (b) Maintaining a July 2010 dress code for California associates that is facially overbroad because it unduly restricts associates’ right to wear union insignia.15 (c) Maintaining a February 2013 dress code for California associates that is facially overbroad because it unduly restricts associates’ right to wear union insignia. (d) Selectively and disparately applying its July 2010 dress code for California associates 20 to Richmond, California store 3455 associates when they wear clothing with OUR Walmart or UFCW logos, but not when they wear other clothing that does not comply with the dress code. (e) Threatening Richmond, California store associates that it would “shoot the union.” 25 (f) Threatening Richmond, California store associates that Walmart would never be union and thereby informing associates that it would be futile for them to select OUR Walmart as their collective-bargaining representative. (g) Threatening Richmond, California store associates by telling them that associates 30 returning from strike would be looking for new jobs. (h) Prohibiting Richmond, California store associates from speaking to associates returning from strike about the returning strikers’ activities on behalf of OUR Walmart. 35 (i) Issuing disciplinary coachings to associates because they engaged in a protected work stoppage, and to discourage associates from engaging in those or other protected activities. (j) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.40 47 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 purposes. JD-69-14 44 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the overbroad policy in its July 2010 California employee dress code that unduly restricts associates’ right to wear union insignia. 5 (b) Rescind the overbroad policy in its February 2013 California employee dress code that unduly restricts associates’ right to wear union insignia. (c) Furnish all current employees in its California stores with inserts for its California employee dress code that (1) advise that the unlawful July 2010 and February 2013 policies have10 been rescinded, or (2) provide the language of a lawful policy; or (in the alternative) publish and distribute to employees at its California stores revised copies of its California employee dress code that (1) do not contain the unlawful policies, or (2) provide the language of a lawful policy. (d) Within 14 days from the date of the Board’s Order, remove from its files any 15 references to the November 2012 two-level disciplinary coachings that Respondent issued to Raymond Bravo, Demario Hammond, Semetra Lee, Misty Tanner, Markeith Washington and Timothy Whitney because those associates engaged in a protected work stoppage on November 2, and to discourage associates from engaging in those or other protected activities, and within 3 days thereafter notify Raymond Bravo, Demario Hammond, Semetra Lee, Misty Tanner, 20 Markeith Washington and Timothy Whitney in writing that this has been done and that the disciplinary coachings will not be used against them in any way. (e) Within 14 days after service by the Region: post at store 2418 in Placerville, California, copies of the attached notice marked “Appendix A”; post at store 3455 in Richmond, 25 California, copies of the attached notice marked “Appendix B”; and post at all other California stores copies of the attached notice marked “Appendix C.”48 Copies of the notices, on forms provided by the Regional Director for Region 32, after being signed by Respondent’s authorized representative, shall be posted by Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In 30 addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respondent has 35 gone out of business or closed one or more of the facilities involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the appropriate notice (Appendix A, B or C) to all current associates and former associates employed by Respondent at the closed facilities at any time since July 8, 2012. 40 48 If this Order is enforced by a judgment of a United States court of appeals, the words in the notices reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” JD-69-14 45 (f) Within 14 days after service by the Region, hold a meeting or meetings at Respondent’s Richmond Store 3455, scheduled to have the widest possible attendance, at which the attached notice marked “Appendix B” shall be read to employees in both English and Spanish, by Respondent’s store 3455 manager or, at Respondent’s option, by a Board agent in Respondent’s store manager’s presence.5 (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. 10 IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. December 9, 2014 15 ____________________ Geoffrey Carter Administrative Law Judge20 JD-69-14 APPENDIX A (PLACERVILLE, CALIFORNIA STORE 2418) NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten associates by asking them if they are afraid Walmart might close Placerville, California store 2418 if too many associates join OUR Walmart. WE WILL NOT maintain a July 2010 dress code for California associates that is facially overbroad because it unduly restricts associates’ right to wear union insignia. WE WILL NOT maintain a February 2013 dress code for California associates that is facially overbroad because it unduly restricts associates’ right to wear union insignia. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL rescind the overbroad policy in our July 2010 California employee dress code that unduly restricts associates’ right to wear union insignia. WE WILL rescind the overbroad policy in our February 2013 California employee dress code that unduly restricts associates’ right to wear union insignia. WE WILL furnish all current associates in our California stores with inserts for our California employee dress code that (1) advise that the unlawful July 2010 and February 2013 policies have been rescinded, or (2) provide the language of a lawful policy; or (in the alternative) WE WILL publish and distribute to employees at our California stores revised copies of our California employee dress code that (1) do not contain the unlawful policies, or (2) provide the language of a lawful policy. WALMART STORES, INC. (Employer) JD-69-14 Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. Oakland Federal Bldg., 1301 Clay Street, Room 300-N, Oakland, CA 94612-5211 (510) 637-3300, Hours: 8:30 a.m. to 5 p.m. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/32-CA-090116 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (510) 637-3253. JD-69-14 APPENDIX B (RICHMOND, CALIFORNIA STORE 3455) NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain a July 2010 dress code for California associates that is facially overbroad because it unduly restricts associates’ right to wear union insignia. WE WILL NOT maintain a February 2013 dress code for California associates that is facially overbroad because it unduly restricts associates’ right to wear union insignia. WE WILL NOT selectively and disparately applying our July 2010 dress code for California associates to Richmond, California store associates when they wear clothing with OUR Walmart or UFCW logos, but not when they wear other clothing that does not comply with the dress code. WE WILL NOT threaten Richmond, California store associates that we will “shoot the union.” WE WILL NOT threaten Richmond, California store associates that Walmart will never be union and thereby inform associates that it would be futile for them to select OUR Walmart as their collective-bargaining representative. WE WILL NOT threaten Richmond, California store associates by telling them that associates returning from strike will be looking for new jobs. WE WILL NOT prohibit Richmond, California store associates from speaking to associates returning from strike about the returning strikers’ activities on behalf of OUR Walmart. WE WILL NOT issue disciplinary coachings to associates because they engage in protected work stoppages, and to discourage associates from engaging in those or other protected activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce associates in the exercise of the rights guaranteed them by Section 7 of the Act. JD-69-14 WE WILL remove from our files any references to the unlawful November 2012 two-level disciplinary coachings that we issued to associates Raymond Bravo, Demario Hammond, Semetra Lee, Misty Tanner, Markeith Washington and Timothy Whitney because they engaged in a protected work stoppage on November 2, 2012, and to discourage associates from engaging in those or other protected activities, and WE WILL notify Raymond Bravo, Demario Hammond, Semetra Lee, Misty Tanner, Markeith Washington and Timothy Whitney in writing that this has been done and that the unlawful disciplinary coachings will not be used against them in any way. WE WILL rescind the overbroad policy in our July 2010 California employee dress code that unduly restricts associates’ right to wear union insignia. WE WILL rescind the overbroad policy in our February 2013 California employee dress code that unduly restricts associates’ right to wear union insignia. WE WILL furnish all current associates in our California stores with inserts for our California employee dress code that (1) advise that the unlawful July 2010 and February 2013 policies have been rescinded, or (2) provide the language of a lawful policy; or (in the alternative) WE WILL publish and distribute to employees at our California stores revised copies of our California employee dress code that (1) do not contain the unlawful policies, or (2) provide the language of a lawful policy. WALMART STORES, INC. (Employer) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. Oakland Federal Bldg., 1301 Clay Street, Room 300-N, Oakland, CA 94612-5211 (510) 637-3300, Hours: 8:30 a.m. to 5 p.m. JD-69-14 The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/32-CA-090116 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (510) 637-3253. JD-69-14 APPENDIX C (CALIFORNIA STORES) NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain a July 2010 dress code for California associates that is facially overbroad because it unduly restricts associates’ right to wear union insignia. WE WILL NOT maintain a February 2013 dress code for California associates that is facially overbroad because it unduly restricts associates’ right to wear union insignia. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL rescind the overbroad policy in our July 2010 California employee dress code that unduly restricts associates’ right to wear union insignia. WE WILL rescind the overbroad policy in our February 2013 California employee dress code that unduly restricts associates’ right to wear union insignia. WE WILL furnish all current associates in our California stores with inserts for our California employee dress code that (1) advise that the unlawful July 2010 and February 2013 policies have been rescinded, or (2) provide the language of a lawful policy; or (in the alternative) WE WILL publish and distribute to employees at our California stores revised copies of our California employee dress code that (1) do not contain the unlawful policies, or (2) provide the language of a lawful policy. WALMART STORES, INC. (Employer) Dated By (Representative) (Title) JD-69-14 The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. Oakland Federal Bldg., 1301 Clay Street, Room 300-N, Oakland, CA 94612-5211 (510) 637-3300, Hours: 8:30 a.m. to 5 p.m. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/32-CA-090116 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (510) 637-3253.