368 NLRB No. 24 Walmart Stores, Inc. and The Organization United

368 NLRB No. 24

NOTICE: This opinion is subject to formal revision before publication in the

bound volumes of NLRB decisions. Readers are requested to notify the Ex-

ecutive Secretary, National Labor Relations Board, Washington, D.C.

20570, of any typographical or other formal errors so that corrections can

be included in the bound volumes.

Walmart Stores, Inc. and The Organization United for

Respect at Walmart (Our Walmart). Cases 16–

CA–096240, 16–CA–105873, 16–CA–108394, 16–

CA–113087, 16–CA–122578, 16–CA–124099, 21–

CA–105401, 26–CA–093558, and 13–CA–107343

July 25, 2019

DECISION AND ORDER

BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL

On January 21, 2016, Administrative Law Judge Geof-

frey Carter issued the attached decision. The Respondent

filed exceptions and a supporting brief, the General Coun-

sel and the Charging Party each filed an answering brief,

and the Respondent filed reply briefs. In addition, the

General Counsel and the Charging Party each filed cross-

exceptions and a supporting brief, the Respondent filed

answering briefs, and the General Counsel and the Charg-

ing Party each filed a reply brief.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in

light of the exceptions

and briefs and has decided to af-

firm the judge’s rulings,

findings, and conclusions only

to the extent consistent with this Decision and Order.

The central issue in this case is whether a May-June

2013 work stoppage, called the “Ride for Respect,” was

an intermittent strike unprotected by the National Labor

Relations Act. If it was, the Respondent did not violate

Section 8(a)(1) by disciplining and discharging employees

who participated in the stoppage. The judge found that it

was not an intermittent strike and accordingly held that the

Respondent violated Section 8(a)(1). We find that the

Ride for Respect was an intermittent strike and reverse the

judge’s finding.

I. FACTS

OUR Walmart is a group for Walmart employees that

the United Food and Commercial Workers Union

(UFCW) supported and helped form. OUR Walmart ini-

tially employed various tactics to publicize its broad mes-

sage of improving Walmart employees’ wages, hours,

benefits, and other working conditions, but it ultimately

In the absence of exceptions, we adopt the judge’s findings that the

Respondent violated Sec. 8(a)(1) by threatening employee Josue Mata

on November 19, 2012, at its Wheatland, Texas store that employees

who went on strike on Black Friday would be fired and that the Respond-

ent did not violate Sec. 8(a)(1) by discharging employee Louis Callahan.

We include an Order and notice limited to remedying the unexcepted to

violation at the Wheatland store.

turned to work stoppages. There were four sets of strikes

in the record. First, in October 2012, more than 58

Walmart employees at certain locations in the Los Ange-

les area went on strike. Second, on Black Friday in No-

vember 2012, there was a nationwide strike involving

about 100 employees. Third, the Ride for Respect in late

May to early June 2013 involved 100 to 130 employees

striking for 5 to 6 days so that strikers could travel to the

Respondent’s annual shareholders’ meeting to demon-

strate. Fourth, on Black Friday in November 2013, there

was a nationwide strike involving an unspecified number

of employees. At issue here, the Respondent disciplined

or discharged 54 employees who participated in the May-

June 2013 Ride for Respect for violating its attendance

policy.

II. ANALYSIS

The Board has consistently held since the Supreme

Court’s decision in Auto Workers Local 232 v. Wisconsin

Employment Relations Board (Briggs & Stratton), 336

U.S. 245 (1949), that intermittent strikes are unprotected

by the Act. In other words, intermittent strikes are not un-

lawful, but employers do not contravene the Act by disci-

plining participants in such strikes.

Simply put, an intermittent strike unprotected by the Act

is a strike pursuant to “a plan to strike, return to work, and

strike again.” Farley Candy Co., 300 NLRB 849, 849

(1990). In the rare case where there is direct evidence of

a strategy to use a series of strikes in support of the same

goal, it is a straightforward matter to find the work stop-

pages unprotected. See Honolulu Rapid Transit Co., 110

NLRB 1806, 1807–1811 (1954) (unprotected where union

admittedly designed scheme to strike only on weekends);

Pacific Telephone & Telegraph Co., 107 NLRB 1547,

1548–1550 (1954) (unprotected where “[CWA’s] an-

nounced strategy consisted of a multiplicity of little ‘hit

and run’ work stoppages deliberately calculated, in

CWA’s own words, to ‘harass the company into a state of

confusion’”).

This is one of those rare straightforward cases. There is

direct evidence of a plan to strike, return to work, and

strike again, repeatedly. All of the strikes here were in

support of the same goal of broadly improving Walmart

employees’ wages, hours, benefits, and other working

conditions. The UFCW and OUR Walmart stipulated on

the record in this case that “[t]he UFCW and OUR

We agree with the judge’s decision to grant the Respondent’s mo-

tion to enforce the terms of the parties’ protective order ensuring the con-

fidentiality of certain documents produced at the hearing.

For the reasons stated in the judge’s decision, we adopt the judge’s

findings that the Respondent did not violate Sec. 8(a)(1) by telling em-

ployees that their strike activity was “under review” or by discussing em-

ployees’ participation in strike activities during two televised interviews.

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Walmart intend to continue planning and assisting

Walmart workers in striking in a manner consistent with

the strikes that the UFCW and OUR Walmart helped plan

and assist Walmart workers hold in October and Novem-

ber 2012, June 2013, and November 2013,” effectively ad-

mitting a strategy to use a series of strikes in support of

the same goal. The Ride for Respect, the third strike un-

dertaken pursuant to this strategy, was thus an unprotected

intermittent strike, and the Respondent’s disciplining and

discharging some of the participants pursuant to its attend-

ance policy was lawful.

In finding the Ride for Respect was not an intermittent

strike, the judge incorrectly employed a multifactor anal-

ysis. The judge failed to recognize that the ultimate in-

quiry in every Board case on the subject, either explicitly

or implicitly, has been whether the work stoppage was

pursuant to a strategy to use a series of strikes in support

of the same goal. In the absence of direct evidence, the

Board has examined the surrounding circumstances to de-

termine whether work stoppages were pursuant to a plan

to strike, return to work, and strike again. For example,

work stoppages that are frequent and short in duration are

more likely to be part of a strategy of intermittent stop-

pages. Compare, e.g., Polytech, Inc., 195 NLRB 695, 696

(1972) (“[The] presumption that a single concerted refusal

to work overtime is a protected strike activity . . . should

be deemed rebutted when and only when the evidence

demonstrates that the stoppage is part of a plan or pattern

of intermittent action which is inconsistent with a genuine

strike or genuine performance by employees of the work

normally expected of them by the employer.”) and Rob-

ertson Industries, 216 NLRB 361, 362 (1975) (two work

stoppages, one in November and one in February, were

Some of the employees who participated in the Ride for Respect

had not participated in the earlier strikes. Although it was their first

strike, employees who participated in only the Ride for Respect associ-

ated themselves with the plan of intermittent action and also lost protec-

tion. See Embossing Printers, Inc., 268 NLRB 710, 723 (1984) (“[B]y

participating in only one of several walkouts he associated himself with

the intermittent activity. Thus, the Respondent could lawfully discipline

him as the others.”), enfd. 742 F.2d 1456 (6th Cir. 1984); Pacific Tele-

phone, 107 NLRB at 1550 (“Because they joined in the unprotected

strike of the traffic employees with knowledge of its planned intermittent

and hit-and-run aspects, the tollmen also removed themselves from the

protection of the Act.”).

Enfd. 560 F.2d 396 (9th Cir. 1976).

Enfd. 742 F.2d 1456 (6th Cir. 1984).

Enfd. 962 F.2d 2 (2d Cir. 1992).

Enfd. sub nom. Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355 (8th

Cir. 1989).

We therefore do not rely on the judge’s assessment of whether any

of the individual factors he reviewed weighed for or against finding the

Ride for Respect to be an unprotected intermittent strike. We also re-

verse the judge’s finding that the Respondent violated Sec. 8(a)(1) when

it read a set of prepared talking points to known strikers stating that the

Respondent did not believe “these hit-and-run work stoppages are

not a pattern of intermittent stoppages),

with Embossing

Printers, Inc., 268 NLRB 710, 722–724 (1984) (employer

lawfully locked out employees who walked out to attend

the third union meeting in about a week).

Also, work

stoppages responding to distinct employer actions or is-

sues, even if close in time, are simply not pursuant to a

plan to strike intermittently for the same goal and are

therefore protected. Compare, e.g., WestPac Electric,

Inc., 321 NLRB 1322, 1360 (1996) (three separate strikes

within 2 weeks were protected because strikes were not

“intentionally planned and coordinated”; “each strike had

its distinct origins and motivating antecedent features”),

Chelsea Homes, Inc., 298 NLRB 813, 831 (1990) (pro-

tected where two stoppages were “unique to [their] facts

and circumstances”),

and City Dodge Center, Inc., 289

NLRB 194, 194 fn. 2 (1988) (protected because actions

were “a series of reactions to steps taken by the Respond-

ent,” not “a plan to strike, return to work, and strike

again”),

with Swope Ridge Geriatric Center, 350 NLRB

64, 64 fn. 3 (2007) (two work stoppages a few weeks apart

were unprotected where “the parties were unable to reach

agreement on a wage increase . . . [and] the Union prof-

fered no alternative reason for its conduct. Thus, we find

that the strikes were part of the Union’s bargaining strat-

egy and, because the bargaining dispute continued with no

evident changed purpose, there was a reasonable basis for

finding that the pattern would continue”). The judge here

misinterpreted the Board’s examination of such facts to be

introducing factors of independent significance. It did not.

If, as here, there is direct evidence that a strike was pursu-

ant to a strategy to use a series of strikes in support of the

same goal, additional inquiry is simply unnecessary.

protected” and that if employees “participate[d] in future union-orches-

trated intermittent work stoppages,” the Respondent would treat their ab-

sences from work as unexcused. The talking points accurately described

Board law on intermittent strikes and correctly called the October and

November 2012 strikes unprotected intermittent work stoppages.

The judge found the Respondent also unlawfully disciplined employ-

ees twice before the Ride for Respect. We reverse these findings, too.

First, the judge found that the Respondent violated Sec. 8(a)(1) by dis-

criminatorily having a “personal discussion,” the lowest level warning,

with employee Victoria Martinez about her unexcused absences that in-

cluded, in part, November 20, 2012—a day that she participated in strike

activity when she was not scheduled to work. The Respondent’s inclu-

sion of November 20 was plainly a mistake, without discriminatory in-

tent, caused by Martinez calling out that day through the automated “IVR

system” even though she was not scheduled to work. The Respondent

as much as showed Martinez it was relying on the IVR report. Second,

the judge found that the Respondent violated Sec. 8(a)(1) by issuing dis-

ciplinary coachings to Marc Bowers and Colby Harris for absences dur-

ing their two-person strike during May 6–9, 2013, a few weeks before

the Ride for Respect. The Respondent’s discipline was lawful because

Bowers’ and Harris’ May 6–9 strike was also an unprotected intermittent

strike. They went on strike and returned to work with the plan to strike

WALMART STORES, INC. 3

Our dissenting colleague wrongly accuses us of expand-

ing the intermittent-strike doctrine with an unprecedented

new standard. To the contrary, we apply exactly what has

always animated our precedent, the principle that plans to

strike, return to work, and strike again are not protected

genuine strikes. Our discussion above illustrates this prin-

ciple. We do not read any of the cases our colleague

cites—largely the same cases we cite—to contradict our

reading of precedent.

Our colleague claims that precedent requires more than

just a strategy of repeated strikes to be unprotected. The

strikes, she claims, must be intended to “harass the com-

pany into a state of confusion.” We expect she means that

plans of repeated strikes must be intended to reach some

undefined threshold of disruption, but our precedent con-

tains no such rule. The “state of confusion” phrase comes

from Pacific Telephone & Telegraph Co., 107 NLRB

1547 (1954), where the Board remarked that the union’s

own publication touted its strategy of “hit and run” strikes

as promising to, quoting the publication, “harass the com-

pany into a state of confusion.” Id. at 1548 & fn. 3. The

Pacific Telephone Board was quoting the union’s publica-

tion to show the plan of repeated strikes and not setting a

threshold of disruption.

The Board repeated the “state of confusion” language in

just one later case, United States Service Industries, Inc.,

315 NLRB 285 (1994).

There, the Board parroted agree-

ment with the judge’s inartful Pacific Telephone formula-

tion that “‘hit and run’ strikes engaged in as part of a

planned strategy intended ‘to harass the company into a

state of confusion’ are not protected activity” and con-

cluded, “we also agree with the judge that in the instant

case there is no evidence that any such strategy was in

place, and that the mere fact that some employee may have

struck more than once does not render their conduct inter-

mittent striking.” In United States Service Industries,

there was no evidence that the strikes were part of any plan

to strike more than once, so we do not view the Board

there to be setting a heightened threshold of disruption be-

fore a plan of repeated strikes loses protection, and it

would be dicta if it were. Here, unlike United States Ser-

vice Industries, there is direct evidence of UFCW and Our

Walmart admitting their plan to strike repeatedly—the

critical fact to our disposition here that our colleague un-

persuasively denies.

again a few weeks later for the Ride for Respect (which they did), all in

support of the same goals.

Enfd. mem. 72 F.3d 920 (D.C. Cir. 1995). Following United States

Service Industries, three administrative law judges quoted the state-of-

confusion phrase, but it played no discernible role in their disposition of

those cases. See Allied Mechanical Services, 332 NLRB 1600, 1608

(2001); National Steel & Shipbuilding Co., 324 NLRB 499, 510 (1997),

enfd. 156 F.3d 1268 (D.C. Cir. 1998); WestPac Electric, 321 NLRB at

Contrary to what our colleague claims, a strategy to re-

turn to work from a strike only to strike again for the same

purpose is inconsistent with a genuine strike and has no

protection in the Act. See Local 232 v. Wisconsin Em-

ployment Relations Board (Briggs & Stratton), 336 U.S.

245 (1949) (“Congress [has not] confer[red an] absolute

right to engage in every kind of strike or other concerted

activity” including “intermittent stoppages”). Our col-

league takes a novel position in asserting for the first time

in the Board’s history that plans to strike, return to work,

and strike again can be legitimate economic warfare, con-

tinuing indefinitely. Congress never contemplated such

hit-and-run work stoppages in preserving the right to

strike (and the concomitant lockout) as the engine for par-

ties to resolve their differences and ultimately eliminate

obstructions to commerce and promote overall labor

peace. See NLRB v. Insurance Agents’ International Un-

ion, 361 U.S. 477, 487–489 (1960) (“The presence of eco-

nomic weapons in reserve, and their actual exercise on oc-

casion by the parties, is part and parcel of the system that

the Wagner and Taft-Hartley Acts have recognized.”). In

situations like we have here, employees are acting on a

plan to strike at times that would most negatively impact

the employer (such as Black Friday and the annual share-

holders’ meeting) and, fully intending to strike again,

quickly return to work before they could realistically lose

their jobs to permanent replacements. This random eco-

nomic warfare deprives employers of their responsive de-

fense of permanently replacing strikers. See NLRB v.

Mackay Radio & Telegraph Co., 304 U.S. 333, 345–346

(1938). The nature of these stoppages also makes it ex-

tremely difficult to address any of the employees’ specific

demands to prevent future economic harm in future sur-

prise strikes. We are far from a genuine strike.

Broadly stated, a genuine economic strike involves em-

ployees fully withholding their labor in support of de-

mands regarding their terms and conditions of employ-

ment until their demands are satisfied or they decide to

abandon the strike. At the end, employees make an un-

conditional offer to return to work and generally must be

reinstated unless they have been permanently replaced.

See, e.g., Supervalu, Inc., 347 NLRB 404, 404–406

(2006). Striking and then returning to work with the in-

tention of striking again is simply not the same. Notably,

employees are not making unconditional offers to return

1360. One of the judges even identified the Board’s use of the phrase in

United States Service Industries to be “dicta.” See National Steel, supra

at 510.

Notwithstanding the stipulated intent to continue striking in a man-

ner “consistent with” past strikes that UFCW and OUR Walmart “helped

plan and assist,” our dissenting colleague contends that this stipulation

somehow relates only to future intentions rather than an admission of

past practice. This is, to borrow her words, unsupported factfinding.

4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

to work. See Indiana Ready Mix Corp., 141 NLRB 651,

652 (1963) (offer to return to work that included a guaran-

tee that employees would not strike again for 30 days was

not unconditional).

We are certainly not suggesting that

employees who go on strike cannot go on strike again

based on even the same demands as the first. Deciding

later that circumstances warrant going on another strike is

fundamentally different than planning a strategy to strike,

return to work, and strike again for a more damaging effect

with less risk.

ORDER

The National Labor Relations Board orders that the Re-

spondent, Walmart Stores, Inc., Bentonville, Arkansas, its

officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening employees that they will be fired if they

go on strike.

(b) In any like or related manner interfering with, re-

straining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Within 14 days after service by the Region, post at

its Wheatland, Texas facility (Store 949) copies of the at-

tached notice marked “Appendix.”

Copies of the notice,

on forms provided by the Regional Director for Region 16,

after being signed by the Respondent’s authorized repre-

sentative, shall be posted by the Respondent and main-

tained for 60 consecutive days in conspicuous places in-

cluding all places where notices to employees are custom-

arily posted. In addition to physical posting of paper no-

tices, notices shall be distributed electronically, such as by

email, posting on an intranet or an internet site, and/or

other electronic means, if the Respondent customarily

communicates with its employees by such means. Rea-

sonable steps shall be taken by the Respondent to ensure

that the notices are not altered, defaced, or covered by any

other material. If the Respondent has gone out of business

or closed the facility involved in these proceedings, the

Respondent shall duplicate and mail, at its own expense, a

The Board in Indiana Ready Mix construed the union’s offer as

effectively promising to strike again in 30 days unless the parties could

reach an acceptable agreement. This is not comparable to our col-

league’s citation to Child Development Council of Northeastern Penn-

sylvania, 316 NLRB 1145 (1995), in which the Board found an offer to

return unconditional where the union reserved the right, if bargaining

proved unfruitful, to possibly strike again in 6 months. In only the latter

case, the union had not resolved to strike again.

1 3

If this Order is enforced by a judgment of a United States court of

appeals, the words in the notice reading “Posted by Order of the 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.”

copy of the notice to all current employees and former em-

ployees employed by the Respondent at the Wheatland,

Texas facility any time since November 19, 2012.

(b) Within 21 days after service by the Region, file with

the Regional Director for Region 16 a sworn certification

of a responsible official on a form provided by the Region

attesting to the steps that the Respondent has taken to com-

ply.

Dated, Washington, D.C. July 25, 2019

______________________________________

Marvin E. Kaplan, Member

______________________________________

William J. Emanuel, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

MEMBER MCFERRAN, dissenting in part.

As the Supreme Court has explained, the National La-

bor Relations Act “protect[s] the right of workers to act

together to better their working conditions,”—often this

means that unrepresented workers must “speak for them-

selves as best they” can.

Breaking with long-established

precedent, the majority today sharply cuts back on the

right of American workers—including those who lack un-

ions—to protest their job conditions by striking. To be

sure, the National Labor Relations Board has long treated

certain strike tactics that straddle the line between striking

and working as outside the protection of the Act; the “in-

herent character” of that kind of economic warfare goes

“entirely beyond the pale of proper strike activities.”

But

this case does not involve such tactics. Today’s decision,

rather, takes a legitimate protest by unrepresented work-

ers, dissatisfied with the working conditions dictated by a

giant in the retail industry, and classifies it as an unpro-

tected “intermittent” strike—even though it was buffered

by months of strike inactivity, a tiny percentage of the

I agree with my colleagues’ adoption of the judge’s finding that the

Respondent violated Sec. 8(a)(1) by threatening an employee who par-

ticipated in an October 2012 work stoppage with discharge. I also agree

that the judge correctly dismissed the allegations that the Respondent vi-

olated Sec. 8(a)(1) by telling employees that their strike activity was “un-

der review” and by discussing employees’ participation in strike activi-

ties during two televised interviews. Finally, I agree with the judge’s

decision to grant the Respondent’s motion to enforce the terms of the

parties’ protective order.

NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962).

Pacific Telephone & Telegraph Co., 107 NLRB 1547, 1548–1550

(1954).

WALMART STORES, INC. 5

work force participated, and no serious difficulties for

store operations resulted.

Because this protest is held unprotected, the majority

finds that the employer was free to discipline and dis-

charge the workers who participated. That includes 29

employees who only struck once, not intermittently. The

majority’s decision ensures that future protests at this re-

tail giant will run the risk of being deemed unprotected

under its newly-expanded view of the intermittent-strike

doctrine. It will also hamstring other nonunion workers

who might seek to use work stoppages to raise awareness

about their wages and working conditions. But the major-

ity’s view has no basis in Board precedent. Worse, it un-

dermines what the Supreme Court has called the “strong

interest of federal policy in the legitimate use of the

strike.”

The Respondent is the largest private employer in the

United States. It employs about 1.3 million employees at

its more than 4000 discount retail stores, thus employing,

on average, over 300 employees at each location. None of

its U.S. stores are unionized.

In 2010, a group of the Respondent’s employees, with

the assistance of the United Food and Commercial Work-

ers Union (UFCW), formed the Organization United for

Respect at Walmart (OUR Walmart). OUR Walmart’s

founding document, the “Declaration of Respect,” set

forth the organization’s goals, which included securing in-

creased wages, more predictable scheduling, expanded

NLRB v. Erie Resistor Corp., 373 US. 221, 235 (1963). As the Erie

Resistor Court explained:

Section 7 [of the National Labor Relations Act] guarantees, and [Sec-

tion] 8(a)(1) protects from employer interference the rights of employ-

ees to engage in concerted activities, which, as Congress has indicated,

. . . include the right to strike.

* * *

Section 13 makes clear that although the strike weapon is not an un-

qualified right, nothing in the Act except as specifically provided is to

be construed to interfere with this means of redress….

This repeated solicitude for the right to strike is predicated upon the

conclusion that a strike when legitimately employed is an economic

weapon which in great measure implements and supports the principles

of the collective bargaining system.

* * *

While Congress has from time to time revamped and redirected national

labor policy, its concern for the integrity of the strike weapon has re-

mained constant. Thus when Congress chose to qualify the use of the

strike, it did so by prescribing the limits and conditions of the abridge-

ment in exacting detail . . . by indicating the precise procedures to be

followed in effecting the interference . . . and by preserving the positive

health care access, and freedom from retaliation for the

Respondent’s employees.

OUR Walmart members initially engaged in demonstra-

tions during nonworking time to raise awareness of the or-

ganization’s goal of improving employees’ terms and con-

ditions of employment. The first OUR Walmart work

stoppages occurred at various locations in October and

November 2012.

OUR Walmart’s first major nationwide

strike occurred the day after Thanksgiving (“Black Fri-

day”), one of the Respondent’s busiest shopping days of

the year. The Respondent did not discipline or discharge

employees who participated in the October and November

work stoppages.

However, the Respondent instructed its

managers to hold one-on-one meetings with known strik-

ers and to read a set of prepared talking points stating that

the Respondent did not believe “these hit-and-run work

stoppages are protected” and that if employees “partici-

pate[d] in future union-orchestrated intermittent work

stoppages,” the Respondent would treat their absences

from work as unexcused.

Six months later, in May 2013,

between 100 and 130

OUR Walmart members from about 50 stores engaged in

a work stoppage known as the “Ride for Respect.”

least 29 of the employees who participated in the Ride for

Respect had not engaged in any prior work stoppages. Be-

ginning on May 27, employees handed in strike letters

which, similar to those in the past, listed as the reason for

the strike the Respondent’s attempts to silence and retali-

ate against employees who protested their pay, schedules,

and health benefits. They reported their absences to the

command of [Section] 13 that the right to strike is to be given a gener-

ous interpretation within the scope of the labor Act.

373 U.S. at 233–235 (citations and footnotes omitted). Section 13 of the Act,

cited by the Erie Resistor Court, provides that: “Nothing in this Act, except

as specifically provided for herein, shall be construed so as either to interfere

with or impede or diminish in any way the right to strike, or to affect the lim-

itations or qualifications on that right.” 29 U.S.C. § 163.

Around 58 employees in the Los Angeles area participated in a brief

work stoppage on October 4. Other OUR Walmart members struck on

October 9 and 10 and traveled to the Respondent’s home office in Ben-

tonville, Arkansas to demonstrate during the annual financial analysts’

meeting. Several employees at store 471 in Lancaster, Texas participated

in a spontaneous 1-day strike on November 16.

After the Black Friday strike, the Respondent filed an unfair labor

practice charge alleging that the UFCW, through its subsidiary OUR

Walmart, was engaging in unlawful recognitional picketing. In January

2013, the parties settled the charges and agreed to a 60-day “cooling off”

period during which neither UFCW nor OUR Walmart would engage in

any picketing or demonstrations.

Subsequent dates are in 2013 unless otherwise indicated.

In early May, two employees at the Lancaster, Texas store partici-

pated in a spontaneous strike that lasted for two shifts in protest over a

manager’s derogatory remarks about OUR Walmart.

6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Respondent and boarded buses to Bentonville, Arkansas,

where the Respondent’s annual shareholders’ meeting was

taking place. The buses followed caravan routes that in-

cluded stops to pick up employees at various Walmart

stores.

Once the employees arrived in Bentonville, they en-

gaged in a variety of actions to raise awareness of their

efforts to secure more favorable terms and conditions of

employment, including demonstrations, canvassing ses-

sions, and attendance at the shareholders’ meeting. Most

strikers remained in Bentonville for 5 or 6 days and then

flew back to their respective homes. During the work

stoppage, strikers completely ceased work and received no

compensation from the Respondent. No stores were

forced to close as a result of the work stoppage. At most,

eight employees at any given store struck and, in many

cases, only one or two employees from a particular store

missed work to attend the Ride for Respect. The Respond-

ent generally handled the situation by reassigning other

store employees to cover the work of those on strike.

By late June, the Respondent began holding one-on-one

disciplinary meetings with employees who missed their

scheduled shifts due to their participation in the Ride for

Respect. At the meetings, managers read verbatim from

scripts prepared by the Respondent’s corporate labor rela-

tions team and informed employees that they were being

disciplined or discharged for violating the Respondent’s

attendance policy.

After the Ride for Respect, the next OUR Walmart-co-

ordinated strike did not occur until about 6 months later,

in November 2013.

On these facts, the judge concluded that the Respondent

unlawfully discharged or disciplined employees for

Under the Respondent’s attendance policy, employees who incurred

unexcused absences were subject to discipline or discharge, depending

on how many shifts they missed and their disciplinary history.

Washington Aluminum, supra; McEver Engineering, 275 NLRB

921 (1985), enfd. 784 F.2d 634 (5th Cir. 1986).

Polytech, Inc., 195 NLRB 695, 696 (1972) (emphasis added).

Pacific Telephone, supra, 107 NLRB at 1548–1549; Honolulu

Rapid Transit Co., 110 NLRB 1806, 1811 (1954) (quoting Valley City

Furniture Co., 110 NLRB 1589 (1954), enfd. 230 F.2d 947 (6th Cir.

1956)).

Compare Swope Ridge Geriatric Center, 350 NLRB 64, 64 fn. 3

(2007) (unprotected intermittent work stoppage found where a “union

issued three strike notices and engaged in two work stoppages, the third

strike notice following only 1 day after the conclusion of the first strike”)

with United States Service Industries, 315 NLRB 285, 285 (1994) (mul-

tiple strikes months apart as part of nationwide union campaign found

protected where they were not “‘hit and run’ strikes” that were part of a

“planned strategy intended to ‘harass the company into a state of confu-

sion’”), enfd. mem. 72 F.3d 920 (D.C. Cir. 1995).

See Polytech, supra, 195 NLRB at 696 (“when employees engage

in repeated work stoppages limited to a portion of the working day, they

are plainly unwilling to assume the status of strikers—a status

absences stemming from their participation in the Ride for

Respect. As I will explain, the judge’s conclusion was

correct, notwithstanding his use of a novel multi-factor

test to determine whether the Ride for Respect was pro-

tected.

II.

Employees may not be discharged or otherwise discrim-

inated against for engaging in protected work stoppages to

protest working conditions.

Of course, not all forms of

strike activity are protected. A refusal to work will be con-

sidered unprotected intermittent strike activity “when the

evidence demonstrates that the stoppage is part of a plan

or pattern of intermittent action which is inconsistent with

a genuine strike or genuine performance by employees of

the work normally expected of them by the employer.”

That is, repetitive strikes that intentionally bring about a

condition that is “neither strike nor work” are unprotected

because they go “beyond the pale” of proper economic

weaponry.

But such a condition arises in only two cir-

cumstances: (1) when recurring strikes are deliberately

calculated to “harass the company into a state of confu-

sion,” Pacific Telephone, supra, 107 NLRB at 1548,

and

(2) when employees repeatedly strike, yet avoid assuming

the status of strikers—which means losing pay and risking

replacement—such as by remaining on the job, while re-

fusing to abide by the established work schedule.

Board

precedent makes clear that the mere fact that employees

have engaged in multiple strikes is insufficient to con-

demn their activity as unprotected.

Here, the record shows that the “inherent character” of

the OUR Walmart work stoppages was fully consistent

with a genuine strike.

This case does not involve job

actions that were “neither strike nor work,” but rather a

contemplating a risk of replacement and a loss of pay”); First National

Bank of Omaha, 171 NLRB 1145, 1151 (1968) (“Employees who choose

to withhold their services because of a dispute over scheduled hours may

properly be required to do so by striking unequivocally,” that is, by “as-

sum[ing] the status of strikers, with its consequent loss of pay and risk of

being replaced,” and cannot “simultaneously walk off their jobs but re-

tain the benefits of working.”), enfd. 413 F.2d 921 (8th Cir. 1969); Hon-

olulu Rapid Transit, supra, at 1809–1811 (regular weekend strike unpro-

tected because, just like a daily hour-long strike, it created a condition

that was neither strike nor work and was an “arrogation of the [em-

ployer’s] right to determine their schedules and hours of work”).

See United States Service Industries, supra, at 285–286 (“[T]he

mere fact that some employees struck more than one time is not sufficient

evidence on which to base a finding of unprotected intermittent strik-

ing.”); Robertson Industries, 216 NLRB 361, 362 (1975) (two work stop-

pages several months apart, where employees were “merely continuing

their earlier efforts to have their work-related problems resolved,” did

not constitute the “type of pattern of recurring stoppages which would

deprive the employees of their Section 7 rights”), enfd. 560 F.2d 396 (9th

Cir. 1976).

Pacific Telephone, supra, at 1549–1550.

WALMART STORES, INC. 7

strike, plain and simple. The evidence does not support

the conclusion that the work stoppages were intended to

“harass the company into a state of confusion.” It makes

clear, rather, that workers struck—and were prepared to

lose pay and risk replacement as a result. The work stop-

pages did not occur “for any purpose other than to protest

and seek redress for what employees considered to be un-

just working conditions.” United States Service Indus-

tries, supra, 315 NLRB at 291.

Like the work stoppages in fall 2012, the Ride for Re-

spect was driven by surrounding events (i.e., the Respond-

ent’s annual shareholders’ meeting), and it continued

OUR Walmart’s campaign to pressure the Respondent to

make changes to its working conditions and workplace

policies. Unlike cases involving true intermittent strikes,

the employees here did not strike in short succession so as

to blur the line between strike and work, thereby avoiding

the risks of being on strike.

In this respect, the employ-

ees engaged in relatively brief—but clear and complete—

work stoppages, during which they lost wages and risked

replacement by the Respondent.

No evidence suggests that the Ride for Respect was in-

tended to or created a “state of confusion.” The contrast

with cases in which the Board has found work stoppages

unprotected is clear. In Pacific Telephone, the union’s

surprise “hit and run” strikes over the course of 9 days

were designed to force the employer to arrange staffing

coverage on short notice, only to have strikers return just

as replacements arrived and then walk off the job again

after a day or two in many cases.

Here the timing of the

strikes, which coincided with significant dates or events,

was not designed to hamstring the Respondent’s opera-

tional response; rather, it was consistent with OUR

Cf. NLRB v. Blades Manufacturing Corp., 344 F.2d 998, 1001–

1002, 1005 (8th Cir. 1965) (observing that the “repetitiousness of the

intermittent walkouts within a short span of time”—three walkouts

within about 2 weeks—rendered the strikes unprotected).

See WestPac Electric, 321 NLRB 1322, 1359–1360 (1996) (no ev-

idence that three work stoppages over a two-week period were planned

so employees would have the benefit of a continuous strike action with-

out assuming the economic risks); compare John S. Swift Co., 124 NLRB

394, 396–397 (1959) (employees refused to work overtime but continued

to get paid for their work), enfd. in part 277 F.2d 641 (7th Cir. 1960).

107 NLRB at 1548, 1559. Compare WestPac Electric, supra, 321

NLRB at 1359–1360 (three strikes within a 2-week period were pro-

tected where they were not part of “hit and run” scheme nor intentionally

planned to reap the benefit of a continuous strike).

In Pacific Telephone and Telegraph, supra, 107 NLRB at 1548 &

fn. 3, the strikes were deliberately designed so that employees at more

than 200 offices walked off their jobs on different days, instead of all at

the same time, so as to minimize the financial hardship on employees

while still hampering employer operations nationwide. Here there is no

suggestion that OUR Walmart deliberately selected a subset of employ-

ees to strike, knowing and intending that their absence would cause a

disproportionate disruption to Walmart’s operations.

Walmart’s goal of raising public awareness of its cam-

paign to improve employees’ working conditions. More-

over, the Ride for Respect was not close in time to any

other strike; about 6 months had passed since the last

strike coordinated by OUR Walmart—and almost another

6 months passed before the next strike occurred. Only a

small percentage of the Respondent’s employees partici-

pated.

Each store lost a marginal number of staff (be-

tween one and eight employees out of more than 300 in-

store employees, on average), and the Respondent did not

have to close any stores. Indeed, although the judge cor-

rectly found that there is no requirement that employees

provide prior notice before going on strike,

it bears em-

phasis that the Respondent did have advance notice of the

work stoppage, giving it sufficient time to prepare for any

interruption to its operation.

What is left is the fact that some, but not all, of the dis-

criminatees in this case engaged in several work stoppages

over the course of approximately 1 year. But, as explained

above, the sole fact that the OUR Walmart work stoppages

were repeated is not enough to strip employees of the

Act’s protection.

This simply was not a situation where

a union engaged in a series of hit and run work stoppages

in a relatively short timeframe, much less a situation

where employees effectively tried to remain on the job and

strike, by refusing to work the hours expected of them.

Indeed, this case is strikingly similar to United States Ser-

vice Industries, supra, which involved unrepresented em-

ployees who engaged in multiple strikes coordinated by a

union-led nationwide campaign. Like the strikes here, the

work stoppages—three in total, over 5 months—involved

some overlapping worksites and employees.

There, the

Board found that the strikes remained protected because

See, e.g., Iowa Packing Co., 338 NLRB 1140, 1144 (2003) (“The

Act protects the right of employees to engage in concerted activities, in-

cluding the right to strike without prior notice.”).

See United States Service Industries, supra, 315 NLRB at 285–286;

Robertson Industries, supra, 216 NLRB at 362 (without more, two work

stoppages several months apart remained protected).

There is no merit to the Respondent’s exaggerated claim that the

OUR Walmart strikes somehow amounted to employees setting their

own terms and conditions of employment by “com[ing] and go[ing] as

they pleased.” Embossing Printers, 268 NLRB 710, 723 (1984), enfd.

742 F.2d 1456 (6th Cir. 1984). Inherent in the right to strike is the right

to disregard an employer’s established work schedule during a genuine

strike. The employees’ actions here stand in stark contrast to those in

Embossing Printers, where the union purposefully and unnecessarily

scheduled meetings in the middle of the work day, causing at least three

walkouts over the course of about a week.

The first strike was a 1-day strike at two worksites. The second

strike occurred about 2 months later, lasted about a week, and involved

the same sites as the first strike plus two additional buildings. Finally,

the third strike occurred about 3 months after the second strike, lasted

over a month, and involved distinct worksites and employees. 315

NLRB at 289–290, 292.

8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

there was no strategy to harass the company into a state of

confusion. Accordingly, United States Service Industries

stands for the proposition that union-coordinated strikes

that occur months apart, in general protest over working

conditions, do not constitute unprotected intermittent

strikes, absent evidence of an intent to harass the employer

into a state of confusion. There is no reason why the

Board should not follow United States Service Industries

here. The majority’s attempt to construe its central hold-

ing as mere “inartful” dicta is unpersuasive. Moreover,

contrary to the majority’s assertion otherwise, United

States Service Industries is not the only case to apply the

“state of confusion” standard from Pacific Telephone.

In short, under Board precedent, the employees who en-

gaged in the OUR Walmart work stoppages in connection

with the Ride for Respect were entitled to the protection

of the Act. Their disciplines and discharges violated Sec-

tion 8(a)(1) as alleged.

This is most emphatically true

for the 29 employees who joined the Ride for Respect, but

who had not participated in any prior work stoppages. A

single work stoppage is presumptively protected.

The

Respondent has not rebutted that presumption. It has not

shown, for example, that there was a plan to participate in

additional work stoppages in short succession that would

amount to unprotected intermittent striking.

Indeed,

given that no strikes occurred for almost 6 months follow-

ing the Ride for Respect, the Respondent would be hard-

pressed to show that these employees harbored such an in-

tention.

III.

Instead of following Board precedent, the majority an-

nounces a new standard for when repetitive strikes cross

the line and become unprotected, redefining an intermit-

tent strike as one that is pursuant to a “plan to strike, return

to work, and strike again.” This new standard may be easy

to apply, but it has no real support in our case law. And it

violates a clear, consistent, and longstanding policy of fed-

eral labor law, recognized by the Supreme Court in Erie

Resistor, supra: to preserve the effective right to strike.

See Allied Mechanical Services, 332 NLRB 1600, 1608 (2001);

National Steel & Shipbuilding Co., 324 NLRB 499, 510 (1997), enfd.

156 F.3d 1268 (D.C. Cir. 1998); WestPac Electric, supra, 321 NLRB at

1360.

I would adopt the judge’s finding that the Respondent violated Sec-

tion 8(a)(1) in February 2013 when it read talking points to employees

stating that the Respondent did not believe that “these hit-and-run work

stoppages are protected” and that if employees engaged in “future union-

orchestrated intermittent work stoppages,” their absences would be un-

excused. The Respondent did not merely warn employees about the con-

sequences of engaging in unprotected conduct, but instead mischaracter-

ized the employees’ past work stoppages as unprotected. The judge

This subjugation of employee rights to protect employer

interests is not what Congress intended.

To begin, the majority’s “plan to strike, return to work,

and strike again” formulation cannot serve as the proper

standard for identifying an unprotected intermittent strike

because it has never been applied before. Indeed, the ma-

jority derives this novel formulation from cases where re-

petitive strikes were found protected. While the absence

of a “plan to strike, return to work, and strike again” may

be enough to establish that a strike was protected, the pres-

ence of such a plan—without more—does not make a

strike unprotected.

The majority’s shorthand description of an intermittent

strike appears in two notable cases, Farley Candy Co.

and City Dodge Center.

In Farley Candy, the Board

found that three strikes over a 2-day period did not consti-

tute partial or intermittent strikes where there was no in-

tent to engage in an impermissible strike and, as to one set

of employees, their decision to strike a second time was a

mere reaction to the employer’s disparate handling of

identical employee complaints the day before.

Likewise,

in City Dodge Center, employees were found to have en-

gaged in protected activity when they struck, returned for

a single day, then struck again the next day because the

strikes amounted to a series of reactions to steps taken by

the employer.

In both cases, it was the lack of any evi-

dence suggesting a plan to strike multiple times in short

succession over the same issue, or any other evidence in-

consistent with genuine strike activity, that led the Board

to reject the argument that the strikes were unprotected.

The majority’s reading of those cases confuses what is

minimally necessary for an intermittent strike to be poten-

tially unprotected (i.e., a plan to strike, return to work, and

strike again) with what is sufficient for such a strike to ac-

tually lose the Act’s protection.

Other Board decisions, meanwhile, make plain that the

majority’s “plan to strike, return to work, and strike again”

standard is, at best, incomplete. Even the majority appears

to concede that in order for strikes to be classified as in-

termittent, there generally must be evidence that a series

of strikes was “in support of the same goal” (in the words

correctly found that employees reasonably would construe the talking

points as prohibiting them from engaging in protected strike activity.

See, e.g., Polytech, supra, 195 NLRB at 696.

Because the series of strikes described herein was protected, the

stipulation that UFCW and OUR Walmart intend to continue planning

and assisting Walmart workers in striking in a manner consistent with

such strikes does nothing to establish an intent to utilize unprotected tac-

tics.

300 NLRB 849, 849 (1990).

289 NLRB 194, 194 fn. 2 (1988), enfd. sub nom. Roseville Dodge,

Inc. v. NLRB, 882 F.2d 1355 (8th Cir. 1989).

300 NLRB at 849.

289 NLRB at 194 fn. 2, 197.

WALMART STORES, INC. 9

of the majority),

rather than reactions to intervening

events or protests over distinct issues.

And yet, even

when multiple actions with the “same goal” is present, that

still does not categorically exclude the possibility that the

strikes will retain the Act’s protection—the Board has of-

ten found that still more is required.

The majority labels

this a “novel position,” but it is the majority that mischar-

acterizes the relevant case law, which speaks for itself.

The most fundamental element that the majority’s refor-

mulation fails to account for is the decades-old rationale

underpinning the intermittent strike doctrine: that employ-

ees only forfeit the Act’s protection when they engage in

unfair economic warfare by failing to choose between

striking and working. Ironically, this “neither strike nor

The fact that the short strike in Lancaster, Texas in early May 2013

was spontaneous in nature distinguishes this work stoppage and entitles

it to protection, even if the Ride for Respect amounted to an unprotected

intermittent strike. For this additional reason, I would adopt the judge’s

finding that the resultant coachings issued to employees Marc Bowers

and Colby Harris violated Sec. 8(a)(1). The majority’s failure to

acknowledge that this spontaneous strike was triggered by different con-

cerns from those animating the series of OUR Walmart strikes and was

organized independently of those strikes amounts to unsupported fact-

finding. Furthermore, even if the November 2012 work stoppages were

unprotected, I would uphold the finding that the Respondent violated

Sec. 8(a)(1) by basing Victoria Martinez’s personal discussion, in part,

on her protected strike-support activities on November 20, given that the

Respondent specifically cited that day as foundation for the discipline.

The fact that the Respondent mistakenly believed she missed an assigned

shift, and lacked discriminatory intent, does nothing to undercut the de-

terrent effect of its actions on employees’ willingness to engage in pro-

tected activities. See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 172–

173 (1964).

See Farley Candy, supra, 300 NLRB at 849; City Dodge Center,

supra, 289 NLRB at 194 fn. 2; WestPac Electric, supra, 321 NLRB at

1359–1360 (three strikes in a 2-week period protected where “each strike

had its distinct origins and motivating antecedent features”); Chelsea

Homes, 298 NLRB 813, 831 (1990) (two refusals to work overtime about

a week apart protected where second strike was “unique to its facts and

circumstances”), enfd. mem. 962 F.2d 2 (2d Cir. 1992); Robertson In-

dustries, supra, 216 NLRB at 361–362 (two strikes several months apart

were not intermittent under alternative theory that second strike was mo-

tivated by same workload concern as the first strike but also involved

“other issues”).

See Chelsea Homes, supra, 298 NLRB at 831 (even if the two

strikes arose from the same dispute, protected in light of the Board’s de-

termination that “two stoppages, even of like nature, are insufficient to

constitute evidence of a pattern of recurring, and therefore unprotected,

stoppages”); Robertson Industries, supra, 216 NLRB at 362 (two work

stoppages protected notwithstanding that employees were “merely con-

tinuing their earlier efforts to have their work-related problems re-

solved”); see also Crenlo, Division of GF Business Equipment, 215

NLRB 872, 879 (1974) (two work stoppages on two successive days pro-

tected), enfd. in relevant part, 529 F.2d 201 (8th Cir. 1975).

For example, an employer is prohibited from conditioning strikers’

return to work on a no-strike guarantee. See Brooks, Inc., 228 NLRB

1365, 1368 (1977) (conditioning strikers’ reinstatement on agreement

not to strike for 60 days violated Sec. 8(a)(3)), enfd. in relevant part sub

nom. NLRB v. Albion Corp., 593 F.2d 936 (10th Cir. 1979). Likewise, a

union’s reservation of the right to strike in the future does not render an

work” rationale is found in both Pacific Telephone and

Honolulu Rapid Transit—seminal cases upon which the

majority heavily relies—yet it does not factor into the

analysis. Instead, the majority unpersuasively asserts that

any protest wherein employees strike, return to work, and

strike again is not a genuine strike because it does not in-

volve employees striking “until their demands are satis-

fied or they decide to abandon the strike.” Tellingly, the

majority cites no precedent in support of its definition of

a genuine strike, and that definition is in tension with prec-

edent that does exist.

As explained, the employees who

participated in the Ride for Respect were not unfairly

straddling the line between striking and working. They

waited 6 months after the 2012 Black Friday strike to take

offer to return to work conditional, at least in so far as the offer does not

amount to a mere promise of a short respite from striking. Compare

Child Development Council of Northeastern Pennsylvania, 316 NLRB

1145, 1146 (1995) (construing offer to return to work as unconditional

notwithstanding reservation of right to strike if additional bargaining

failed to produce agreement within 6 months), enfd. mem. 77 F.3d 461

(3d Cir. 1996), with Indiana Ready Mix Corp., 141 NLRB 651, 652

(1963) (construing application for reinstatement as conditional where it

only offered a 30-day respite in the strike). Indeed, the fact that a 6-

month no-strike guarantee is treated as unconditional, whereas a 30-day

guarantee is not, further supports the notion that a strike occurring 6

months apart from any other strike is not objectionably close in time to

warrant losing the Act’s protection.

Furthermore, the majority’s definition of a strike is in tension with the

Board’s understanding of a strike at the time the intermittent strike doc-

trine was first developed. Two months after deciding Pacific Telephone,

supra, the Board observed that “a strike, ‘in the commonly understood

sense of the word’” involves a disruption where, “after the initial surprise

of an unannounced walkout, the company knows what it has to do and

plans accordingly.” Textile Workers Union of America (Personal Prod-

ucts Corp.), 108 NLRB 743, 745–746 & fn. 9 (1954), enf. denied in part

on other grounds, 227 F.2d 409 (D.C. Cir. 1955). In contrast, harassing

tactics—including slowdowns and 25 walkouts over the course of about

6 months—that “disabled [the employer] from making any dependable

production plans or delivery commitments” caused a type of disruption

that was “not a concomitant of a strike.” Id. at 746 fn. 9, 764.

As explained, the strikes at issue here were not designed to interfere

with the Respondent’s ability to maintain orderly operations over the

course of the strikes, and it easily kept stores running during the Ride for

Respect. It is in this sense that the Ride for Respect did not deliberately

harass the Respondent into a “state of confusion.” The majority miscon-

strues my analysis as suggesting that the protectedness of recurrent

strikes depends on the level of general disruption they cause. I do not

advocate such an approach, which would be contrary to fundamental

principles governing strikes. See Allied Mechanical Services, 341

NLRB 1084, 1102 (2004) (rejecting intermittent strike defense and ob-

serving that “a requirement that a strike not be disruptive of an em-

ployer’s operations, or harassing to it, is a requirement that the strike not

be conducted”), enfd. 668 F.3d 758 (D.C. Cir. 2012); see also Swope

Ridge Geriatric Center, supra, 350 NLRB at 67 (finding weekend strikes

to be unprotected intermittent strikes, but rejecting argument that they

were unprotected “because they were calculated to cause the most dis-

ruption to the [employer’s] operations while providing employees the

most advantageous incentives for striking”; “[i]t is “axiomatic that the

very purpose of a strike is to cause disruption, both operationally and

economically, to an employer’s business operations”).

10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

further action, completely ceased working for 5 to 6 days,

lost wages, risked replacement, and waited almost another

6 months to strike again. This conduct reflects genuine

strike activity, not an attempt to reap the benefit of a con-

tinuous strike without the attendant risks.

Certainly, our

precedent supports making that finding, as demonstrated

by the Board’s holding in the United States Service Indus-

tries case, discussed above, that three strikes over 5

months retained the Act’s protection absent evidence of a

strategy or intent to harass the employer into a state of

confusion.

The majority intimates that the nature of the strike was

impermissible because employees reaped a disproportion-

ate benefit with reduced risk, but that position is wrong on

the facts and the law. There is nothing in the record sug-

gesting that the series of short strikes spaced months apart

was “more damaging” than a conventional strike would

have been. And the fact that employees timed their strikes

to coincide with significant business events, such as Black

Friday and the annual shareholders’ meeting, does not un-

dermine their protected nature.

Furthermore, it cannot

be said that the relatively short nature of the Ride for Re-

spect effectively eliminated the strikers’ risk of replace-

ment—the applicable standard—rather than somewhat re-

ducing that risk; nor can it be said that the Respondent was

See WestPac Electric, supra, 321 NLRB at 1360.

The majority attempts to distinguish United States Service Indus-

tries on the basis that it does not discuss whether the strikes, which were

all part of the same union campaign, as here, involved a premeditated

plan to strike repeatedly. But the absence of analysis on this supposedly

critical factual point merely exposes the hollowness of the majority’s as-

sertion that its novel standard has always been an animating principle in

the intermittent strike doctrine. The Respondent attempts to distinguish

this case on the basis that the employees’ goal or purpose shifted from

strike to strike. But this interpretation of the case is unwarranted, given

that the first strike involved a general protest of working conditions, the

second strike charged the employer with being “unfair,” and the third

strike involved “signs protesting unfair working conditions.” 315 NLRB

at 289–290, 292. Moreover, the General Counsel litigated that case un-

der the theory that all of the strikes were economic in nature, and so the

Respondent’s attempt to cast the second strike as an unfair labor practice

strike falls flat. See id. at 290.

See Atlantic Scaffolding Co., 356 NLRB 835, 837 (2011) (rejecting

argument that an “extremely disruptive” work stoppage that was “timed

to maximize its effect” on operations lost the Act’s protection “because

of the economic harm inflicted”; such a finding would be “antithetical to

the basic principles underlying the statutory scheme, i.e., the right of em-

ployees to withhold their labor in seeking to improve their terms of em-

ployment, and the use of economic weapons such as work stoppages as

part of the ‘free play of economic forces’ that should control collective

bargaining”).

See Swope Ridge Geriatric Center, supra, 350 NLRB at 67 (reject-

ing argument that employer was “effectively deprived of its right to per-

manently replace employees engaged in periodic 2-day economic

strikes” because there was “no legal impediment to permanently replac-

ing such economic strikers regardless of the length of each strike”); Jas-

per Seating Co., 285 NLRB 550, 550–551 (1987) (observing that em-

ployer faced with mid-morning walkout to protest cold and drafty

deprived of its conventional defense of replacing the strik-

ers temporarily or permanently.

The Act does not re-

quire that employees maintain a strike for any particular

length of time.

Certainly, it does not require strikers to

remain on strike long enough for their employer to find

replacements; such a requirement would make every

strike a fool’s errand.

The majority’s analysis, and the result it reaches, runs

contrary to precedent and the rationale behind the inter-

mittent strike doctrine. The result is an unwarranted ex-

pansion of that doctrine—and an unjustified curtailment

of the right to strike. Never has the Board held that so few

strikes, so isolated in time, constituted unprotected inter-

mittent strikes.

Yet the majority offers no justification

for its move. Even if the majority’s new standard were

justified, it is not even clear that it is met here. Plans for

the Ride for Respect began forming in the spring of 2013,

not before, during, or even immediately after the 2012

Black Friday action. The majority construes the stipula-

tion as an effective admission that there was a precon-

ceived plan to strike, return to work, and strike again in

support of the same goal. But this stipulation actually re-

lates to UFCW and OUR Walmart’s future intentions, not

its past designs, and is more naturally interpreted as a

“later [decision] that circumstances warrant going on

conditions “could have exercised its lawful option to replace [the strik-

ers] without significant delay or disruption to business operations”),

enfd. 857 F.2d 419 (7th Cir. 1988); First Nat’l Bank of Omaha v. NLRB,

413 F.2d 921, 925 (8th Cir. 1969) (“If the bank had acted immediately

after the walkout to replace the striking employees with other employees,

it could have done so legally.”).

See, e.g., Farley Candy, supra, 300 NLRB at 849 (work stoppages

lasting less than a single shift protected); First Nat’l Bank of Omaha, 413

F.2d at 925 (employees “are not required to institute the strike at any

particular time of the day or to maintain it for any particular period of

time to be entitled to the protection of the Act”).

See Swope Ridge Geriatric Center, supra, 350 NLRB at 64 fn. 3,

65 (weekend strikes 3 weeks apart with intent to continue unprotected);

Embossing Printers, supra, 268 NLRB at 711, 723 (at least three walk-

outs within about a week unprotected); New Fairview Hall Convalescent

Home, 206 NLRB 688, 746–747 (1973) (three short walkouts, each about

3 weeks apart, unprotected), enfd. sub nom. Donovan v. NLRB, 520 F.2d

1316 (2d Cir. 1975); John S. Swift, supra, 124 NLRB at 396–397, 412

(overtime strike that occurred 2 weeks after announcement of vote not to

work overtime unprotected); Honolulu Rapid Transit, supra, 110 NLRB

at 1808–1809 (weekend strikes nearly every week for 7 weeks unpro-

tected); Valley City Furniture, supra, 110 NLRB at 1593–1595 (single

refusal to work overtime with intent to regularly continue such tactics

unprotected); Kohler Co., 108 NLRB 207, 208 fn. 3, 218 (1954) (walk-

outs spanning 2 consecutive days with intent to continue unprotected),

enfd. 220 F.2d 3 (7th Cir. 1955); Pacific Telephone, supra, 107 NLRB at

1548, 1559 (“hit and run” strikes over a 9-day period unprotected). See

also Auto Workers Local 232 v. Wis. Employment Relations Board

(Briggs & Stratton), 336 U.S. 245, 249, 264 (1949) (27 walkouts to at-

tend midday union meetings over the course of about 20 weeks unpro-

tected), overruled on other grounds by Machinists Lodge 76 v. Wis. Em-

ployment Relations Commission, 427 U.S. 132 (1976).

WALMART STORES, INC. 11

another strike,” which the majority concedes would de-

serve protection.

This case unfortunately foreshadows the real-world

consequences the majority’s approach will have on em-

ployee rights in the future. The majority concludes that

none of the strikers who participated in the May 2013 Ride

for Respect engaged in protected activity (whether or not

they had struck previously), because: (1) that strike was a

continuation of work stoppages conducted by no more

than a couple hundred employees in October and Novem-

ber 2012; and (2) because the strikers sought the same

broad goal of improving wages, hours, benefits, and other

working conditions. The clear implication of today’s rul-

ing is that further work stoppages toward those same ends

would be treated as unprotected—at least insofar as they

are planned and coordinated by OUR Walmart (rather than

being spontaneous) and insofar as the strikes pursue the

same stated goal (rather than reflect an evolving purpose

or a reaction to intervening events). Thus, the strong im-

plication of the majority’s decision is that the Respond-

ent’s 1.3 million employees cannot stop work to protest

the most basic of employment issues (wages, scheduling,

health care), based on the prior activities of a tiny fraction

of the Respondent’s total work force. Whether employ-

ees’ rights are forfeited for a year, 2 years, or indefinitely

remains to be seen. In any event, such a result should be

unfathomable, given the Act’s “repeated solicitude for the

right to strike,” the “generous interpretation” to be

Erie Resistor, supra, 373 U.S. at 233–235. The majority’s sugges-

tion that Congress did not envision that repetitive strikes would be pro-

tected is a perverse reading of congressional intent given the deference

accorded the strike weapon generally. Moreover, it can be said defini-

tively that intermittent strikes were not in Congress’s mind when it rec-

ognized certain “limitations or qualifications” on the right to strike in

Section 13 in 1947, since the case establishing the intermittent strike doc-

trine, Briggs & Stratton, supra, was decided in 1949. See also S. Rep.

No. 80-105, at 28 (1947), reprinted in 1 NLRB, Legislative History of

the Labor-Management Relations Act, 1947, at 434 (1948) (indicating

that the amendment to Section 13 was not intended to change existing

law establishing that certain strikes are unprotected, namely, those for

illegal objectives, in breach of contract, in breach of other federal law, or

involving illegal sit-down tactics; omitting mention of intermittent strike

activity).

See, e.g., Beaird Industries, 311 NLRB 768, 769–770 (1993).

See Farley Candy, supra, 300 NLRB at 849 (separately analyzing

whether employees who struck once versus twice intended to engage in

a partial or intermittent strike); Robertson Industries, supra, 216 NLRB

at 362 (two strikes involving “different situations and different people”

were not intermittent strikes; to hold otherwise would “disallow employ-

ees to engage in more than once instance of concerted protected activity

during an indefinite period of time regardless of the variety and number

of conditions or occurrences protested and the identity of the individuals

involved”) (emphasis added).

Embossing Printers concerned mid-shift walkouts that were not

only intermittent but also unprotected partial strikes that impermissibly

accorded that right, and the “deference paid the strike

weapon by the federal labor laws.”

As explained, the result here is especially unjust with

respect to the 29 employees who only struck once. It is

well-settled that culpability for striker misconduct is eval-

uated based on an individual’s own actions.

Intermittent

strike precedents, in turn, establish that the identity of the

strikers matters when deciding whether repetitive strikes

exceed the bounds of permissible strike activity.

The

majority relies on Embossing Printers and Pacific Tele-

phone to strip these one-time strikers of their statutory pro-

tections, but those cases do not compel this result.

In the

present circumstances, even assuming there was poten-

tially unprotected intermittent strike activity, it was in-

cumbent upon the Respondent to determine whether the

one-time strikers were aware that the Ride for Respect was

part of a series of unprotected strikes before disciplining

or discharging them.

IV.

The Ride for Respect had a wholly different character

than the kinds of intermittent strikes found unprotected in

the past. Rather than acknowledge that the traditional in-

termittent-strike doctrine simply does not reach the em-

ployee conduct at issue here, the majority arbitrarily dis-

penses with the established “neither strike nor work”

framework. It imposes a new standard that sharply re-

duces the scope of protected strike conduct. The majority

does not acknowledge its departure from prior prece-

dent,

much less offer a reasoned explanation for it. Nor

usurped company time for union meetings. 268 NLRB at 722–723 (cit-

ing Gulf Coast Oil Co., 97 NLRB 1513 (1952)). Since each strike was

unprotected on its own, without respect to its intermittent nature, the

Board appropriately held that the employee who attended only one union

meeting engaged in unprotected activity because he “associated himself”

with the unlawful tactics. Id. at 723.

In Pacific Telephone, the Board withheld protection from employees

who engaged in only one “hit and run” strike, notwithstanding that they

“might have had no personal knowledge” of the overall tactics. 107

NLRB at 1551. In so doing, the Board emphasized the fact that the em-

ployer merely laid them off for the remainder of the day (when they un-

expectedly returned to work midday) in order to maintain continuity of

operations—a response the Board viewed as reasonable given that the

employer “had a right to know whether the operation was to continue for

the day or not” and the strikers were “unwilling to give this assurance.”

Id. In these circumstances, the Board concluded that the employer was

not “required to pause during the heat of the strike to examine into the

degree of knowledge of each [striker].” Id. at 1551–1552.

Compare Time Warner Cable New York City, LLC, 366 NLRB No.

116, slip op. at 3–4 (2018) (suspension of participants in unprotected un-

ion demonstration lawful where employees were aware of blocking that

rendered the gathering a violation of the no-strike clause).

As the District of Columbia Circuit has explained, “[a]n agency’s

failure to come to grips with conflicting precedent constitutes ‘an inex-

cusable departure from the essential requirement of reasoned decision

making.’” NLRB v. CNN America, Inc., 865 F.3d 740, 751 (D.C. Cir.

2017).

12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

does the majority provide any coherent rationale for why

a mere “plan to strike, return to work, and strike again”

should be held illegitimate, in the face of the strong federal

labor policy protecting the right to strike. Instead, the ma-

jority tramples the statutory rights of workers who partic-

ipated in the Ride for Respect—along with the rights of

nearly 1.3 million Walmart employees who never struck,

but who now face the real risk of discipline if they do. Be-

cause this result is untenable under the National Labor Re-

lations Act, and because it was reached without reasoned

decision-making, I dissent.

Dated, Washington, D.C. July 25, 2019

______________________________________

Lauren McFerran, Member

NATIONAL LABOR RELATIONS BOARD

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vi-

olated Federal labor law and has ordered us to post and

obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your

behalf

Act together with other employees for your bene-

fit and protection

Choose not to engage in any of these protected ac-

tivities.

WE WILL NOT threaten that you will be fired if you go

on strike.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

listed above.

WALMART STORES, INC.

Based on the violations described here, I would affirm the notice-

reading remedy ordered by the judge and would modify the remedy to

require a nationwide notice posting.

The Board’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR

code below. Alternatively, you can obtain a copy of the

decision from the Executive Secretary, National Labor

Relations Board, 1015 Half Street, S.E., Washington, D.C.

20570, or by calling (202) 273-1940.

Roberto Perez and David Foley, Esqs., for the General Counsel.

Steven Wheeless, Alan Feldman, Martina Gast, Erin Bass and

Mark Freeze, Esqs., for the Respondent.

Deborah Gaydos and Joey Hipolito, Esqs., for the Charging

Party.

DECISION

GEOFFREY CARTER, Administrative Law Judge. The allega-

tions in this case arise out of an ongoing effort by the Organiza-

tion United for Respect at Walmart (OUR Walmart or charging

party) to use strikes and other actions to induce Walmart Stores,

Inc. (Walmart or Respondent) to change the way that Walmart

interacts with and manages its associates.

Most of the allega-

tions in this case relate to a coordinated set of strikes at various

Walmart stores in May and June 2013. Collectively, the strikes

were referred to as the “Ride for Respect” because most of the

strikers traveled by bus to Bentonville, Arkansas, where they

participated in actions and protests at and around Walmart’s

headquarters during Walmart’s annual shareholders meeting.

Walmart maintains that it was lawful to discipline associates who

incurred unexcused absences to participate in the strikes because

the strikes were hit-and-run, intermittent work stoppages, and

thus were not protected by the National Labor Relations Act (the

Act). The General Counsel, on the other hand, maintains that the

strikes were protected by the Act, and asserts that Walmart vio-

lated the Act when Walmart invoked its attendance policy to dis-

cipline associates who incurred unexcused absences while they

were participating in the strikes.

As set forth below, I have determined that the May and June

2013 strikes at issue in this case were protected by the Act. I

have also determined (among other findings) that Walmart vio-

lated Section 8(a)(1) of the Act by disciplining or discharging

several associates because they were absent from work while on

strike.

Walmart uses the term “associate” instead of “employee.” (Tran-

script (Tr.) 4575, 4678–4679.)

WALMART STORES, INC. 13

STATEMENT OF THE CASE

A. Procedural History

This case was tried in multiple locations from May 19, 2014,

to September 25, 2015.

The Organization United for Respect at

Walmart (OUR Walmart) filed the charges at issue here on the

following dates:

Case Charge Filing Date

16–CA–096240 January 11, 2013

16–CA–105873 May 22, 2013 (amended on June 10, 2013)

16–CA–108394 July 2, 2013

16–CA–113087 September 10, 2013

16–CA–122578 February 14, 2014

16–CA–124099 March 7, 2014

21–CA–105401 May 17, 2013

26–CA–093558 November 20, 2012

13–CA–107343 June 17, 2013

On January 14, 2014, the General Counsel issued a consoli-

dated complaint covering cases 16–CA–096240, 16–CA–

105873, 16–CA–108394, 16–CA–113087 and 26–CA–093558.

In an amended consolidated complaint filed on March 31, 2014,

the General Counsel added Cases 13–CA–107343 and 21–CA–

105401. Finally, on May 5, 2014, the General Counsel issued a

second amended consolidated complaint covering all nine cases

listed above.

In the May 5, 2014 consolidated complaint, the General Coun-

sel alleged that Walmart violated Section 8(a)(1) of the Act by

making various statements in 2012 and 2013 that had a reasona-

ble tendency to coerce employees in the exercise of their rights

under Section 7 of the Act. The General Counsel also alleged

that Walmart violated Section 8(a)(1) of the Act by, since May

2013, promulgating and maintaining a policy that treats absences

to participate in protected strikes as unexcused absences, and by

The trial dates and locations were: May 19, June 2–5 and 16–20,

and August 25–28, 2014 (Oakland, CA); September 28—October 1,

2014 (Fort Worth, TX); November 17–20, 2014 (Seattle, WA); Decem-

ber 8–9, 2014 (New Orleans, LA); January 26–29, 2015 (Los Angeles,

CA); February 23, 2015 (Miami, FL); April 14–17 and 20, 2015 (Chi-

cago, IL); May 4, 2015 (Washington, DC); July 20, 2015 (Fort Worth,

TX); August 25, 2015 (Fort Worth, TX); and September 25, 2015 (Tel-

econference).

All events in this case occurred in 2012 and 2013, unless otherwise

indicated.

The General Counsel withdrew its allegations that Walmart violated

the Act by disciplining associates DeWitt Pollard, III (a/k/a Golden

Lebel), Maria Madrigal, Jamaad Reed, Janet Sparks, and Paul Toussaint.

(See GC Posttrial Br. at 2 fn. 3.) Accordingly, I have not included those

associates in the number of associates that the General Counsel asserted

was unlawfully disciplined or terminated because of unexcused absences

that occurred while on strike.

In general, the FVRA sets forth rules that establish who may serve

as an acting officer in an Executive agency if the agency officer is nor-

mally appointed by the President with the advice and consent of the Sen-

ate. The court in SW General held that under the FVRA, Solomon was

permitted to serve as Acting General Counsel until January 2011, when

the President nominated him for the position of General Counsel. See

SW General, 796 F.3d at 72–74 (citing and discussing 5 U.S.C. § 3345,

disciplining or terminating 55 associates for absences that pri-

marily occurred in May and June 2013, while the associates were

on strike during the Ride for Respect.

Respondent filed a timely

answer denying the violations alleged in the second amended

consolidated complaint.

B. Walmart’s Motion to Dismiss Complaint Allegations due to

Alleged Violation of the Federal Vacancies Reform Act

As part of its defense, Respondent asserts that several com-

plaint allegations should be dismissed because they are tainted

by the involvement of former Acting General Counsel Lafe Sol-

omon, who Respondent alleges served as Acting General Coun-

sel in violation of the Federal Vacancies Reform Act of 1998

(FVRA), 5 U.S.C. § 3345 et seq. (See Tr. 6770–6779; Respond-

ent (R.) Exhibit (Exh.) 308.) In particular, Respondent relies on

the decision in SW General, Inc. v. NLRB, in which the court held

that Solomon was serving in violation of the FVRA when the

complaint issued against SW General, thereby rendering the

complaint invalid and requiring the court to vacate the Board’s

order against SW General. 796 F.3d 67, 72, 82 (D.C. Cir. 2015)

(finding that Solomon served as Acting General Counsel in vio-

lation of the FVRA from January 5, 2011, to November 4,

2013).

Respondent’s FVRA arguments in this case miss the mark.

First, as indicated above, all three consolidated complaints (the

first, amended, and second amended) issued in 2014, after Rich-

ard Griffin was validly serving as the General Counsel.

Thus,

regardless of whatever Solomon’s involvement may have been

in this case during his tenure as Acting General Counsel (see R.

Exh. 308 and Tab A to Walmart’s December 15 motion to sup-

plement the record (indicating that while serving as Acting Gen-

eral Counsel, Solomon authorized the initial complaint in case

16–CA–96240, and consulted with his staff about other com-

plaint allegations in this case as those allegations were being in-

vestigated),

Solomon’s actions are not relevant to Respondent’s

and explaining that Solomon’s nomination for the position of General

Counsel disqualified him from continuing to serve as Acting General

Counsel).

Richard Griffin was sworn in as General Counsel on November 4,

2013.

In an October 22, 2015 email, the parties and I discussed Walmart’s

Freedom of Information Act (FOIA) request concerning Acting General

Counsel Lafe Solomon’s involvement in processing or deciding to issue

the complaint allegations at issue in this case. At the time, record only

included an August 21, 2015 letter denying Walmart’s FOIA request. (R.

Exh. 308.) Since Walmart’s appeal of that FOIA decision was still pend-

ing, the parties and I agreed that once the agency ruled on Walmart’s

FOIA appeal, the agency’s decision on Walmart FOIA appeal decision

would also be admitted into the evidentiary record (with the parties re-

serving their rights to argue about the weight and relevance of such a

FOIA decision).

On December 15, 2015, Walmart filed a motion to supplement the

evidentiary record with the agency’s December 4, 2015 FOIA appeal de-

cision and accompanying documents. Based on the parties’ October 22

agreement, and for good cause shown, I hereby grant Walmart’s motion

to supplement the evidentiary record and add Tab A of Walmart’s motion

(the agency’s FOIA appeal decision and accompanying documents) to

the evidentiary record for this case.

14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

FVRA defense because Griffin ultimately authorized and issued

the consolidated complaints.

Second, although the Board has not adopted the D.C. Circuit’s

reasoning in SW General, on October 5, 2015, Griffin took the

precautionary step of ratifying the issuance and continued pros-

ecution of the complaint in this case.

By taking that step, Griffin

resolved any FVRA concerns by making it clear that the General

Counsel has duly authorized the complaint allegations in this

case. See St. Francis Regional Medical Center, 363 NLRB No.

69, slip op. at 2 (2015) (finding that Griffin’s decision to ratify

the issuance and continued prosecution of the complaint ren-

dered moot any argument that the D.C. Circuit’s decision in SW

General precluded further litigation); Boeing Co., 362 NLRB

1789, 1789–1790 fn. 1 (2015) (same).

In sum, I find that General Counsel Griffin authorized and rat-

ified the consolidated complaints and all allegations therein, and

thus cured any defects in this case that relate to Solomon’s ser-

vice as Acting General Counsel before Griffin was appointed.

Accordingly, I deny Walmart’s motion to dismiss certain com-

plaint allegations on FVRA grounds.

C. Confidential and Redacted Documents

At the beginning of trial, the parties negotiated and agreed to

the terms of two protective orders in this case. The protective

orders set limits on how documents that Walmart marked or des-

ignated as confidential may be used before, during and after the

trial proceedings in this case, and also limit the disclosure of

those documents to the administrative law judge, court reporter,

General Counsel, Charging Party, related staff, and witnesses

In the same October 22, 2015 email discussed above (see fn. 7), the

parties and I agreed that the General Counsel’s October 5, 2015 “Notice

of Ratification” would be admitted into the evidentiary record, with the

parties reserving their right to argue about the weight and relevance of

that document.

Regarding the merits of Griffin’s ratification, Walmart does assert that

the ratification is limited to Case 16–CA–96240 and does not extend to

the other cases included in the consolidated complaint. (See Walmart

Posttrial Br. at 182–186) In my view, any ambiguity about the scope of

the notice of ratification (i.e., whether it covers only Case 16–CA–96240,

or instead covers all cases in the consolidated complaint) is moot because

as noted above, Griffin authorized litigation in the consolidated com-

plaint (including all cases identified therein).

I also hereby deny Walmart’s motion to reopen the record (filed

December 24, 2015) for the purpose of taking testimony from Lafe Sol-

omon about his involvement in decisions concerning the unfair labor

practice charges underlying this case. (See Walmart Posttrial Br. at 187;

Walmart Motion to Reopen the Record.) Walmart cited no authority to

support its novel request, and since the relevant question for purposes of

Walmart’s FVRA defense (assuming the reasoning in SW General ap-

plies here) is whether the General Counsel was properly serving when

the complaint issued, there is no need to reopen the record to explore

Solomon’s role while unfair labor practice charges were still being in-

vestigated. See SW General, 796 F.3d at 72 (vacating the Board’s order

because “Solomon was serving in violation of the FVRA when the com-

plaint issued”).

The transcripts and exhibits in this case generally are accurate, but

I hereby make the following corrections to the record: Page 44, ll. 1, 7:

“Right” should be “Ride”; Page 257, l. 24: “visual” should be “vigil”;

Page 258, ll. 11, 18, 23: “visual” should be “vigil”; Page 259, l. 5: “vis-

ual” should be “vigil”; Page 263, ll. 13, 16: “visual” should be “vigil”;

testifying under oath about the confidential documents. (Tr. 12–

13; General Counsel (GC) Exhibit (Exh.) 1(ii)–(jj).)

To ensure that confidential documents are not improperly dis-

closed to the public, I hereby order that the protective orders in

this case shall continue in full force and effect. See National

Football League, 309 NLRB 78, 88 (1992). To assist in identi-

fying the exhibits that have been marked or designated as confi-

dential, I have attached a list of confidential exhibits to this de-

cision as Appendix J.

I also note that over the course of the trial, the parties filed

corrected versions of several exhibits to redact personal identifi-

able information and other confidential information. I have re-

placed the original copies of those exhibits in my exhibit file with

the corrected versions, with the exception of the following cor-

rected materials that should be disregarded because they were

not admitted into evidence (and thus were submitted in error):

Joint (Jt.) Exhibits 825, 826, 828; General Counsel Exhibit

2418–32.

To the extent that 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 confiden-

tial. To assist agency personnel in that effort, a list of exhibits

that the parties corrected is included in the record as Joint Exhibit

1330.

On the entire record,

including my observation of the de-

meanor of the witnesses, and after considering the briefs filed by

Page 338, ll. 10, 23: “Right” should be “Ride”; Page 357, l. 17: “DMS”

should be “ZMS”; Page 729, l. 3: “98” should be “9a”; Page 852, l. 7:

“accident” should be “action”; Page 867, l. 12: “collation” should be “co-

alition”; Page 1070, l. 4: “of” should be “off”; Page 1113, l. 8: “police”

should be “policy”; Page 1441, l. 24: “ask you eluded” should be “as you

alluded”; Page 1525, l. 16: “do” should be “due”; Page 1527, l. 22:

“IBR” should be “IVR”; Page 1533, l. 11: “considered” should be “con-

certed”; Page 1772, l. 2: “skit” should be “script”; Page 1886, l. 8: “di-

gesting” should be “suggesting”; Page 2068, l. 9: “to seem practical”

should be “to the extent practicable”; Page 2068, l. 12: “petition” should

be “position”; Page 2731, l. 11: “298” should be “290(a)”; Page 3870, l.

16: “out” should be “without”; Page 4008, l. 5: “bid” should be “vid”;

Page 4330, l. 21: Mr. Feldman was the speaker; Page 4330, l. 23: ALJ

Carter was the speaker; Page 4330, l. 25: Mr. Feldman was the speaker;

Page 4389, ll. 6, 8: “hours” should be “aisles”; Page 4564, l. 11: ALJ

Carter was the speaker; Page 4623, l. 7: “swear” should be “share”; Page

4628, ll. 3–4: Mr. Wheeless was the speaker; Page 4837, l. 22: “house”

should be “hours”; Page 5177, l. 6: “GC 82” should be “GC 81”; Page

5232, l. 12: “now I want” should be “now I don’t want”; Page 5268, l.

23: “I have” should be “you might have”; Page 5319, l. 14: “FAL” should

be “FOE”; Page 5648, l. 17: “Gunther LaBelle” should be “Golden

Lebel”; Page 5721, l. 22: “abscesses” should be “absences”; Pages 5891–

6015 (throughout) “right for respect” should be “ride for respect”; Page

6027, l. 11: ALJ Carter was the speaker; Page 6450, l. 18: “black” should

be “back”; Page 6513, l. 24: “right” should be “ride”; Page 6808, l. 19:

“department” should be “documents”; Page 6810, l. 3: “citizen” should

be “sit-in”; Page 6855, l. 5: “took” should be “tool”; and R. Exh. 5647

Photo 1: I admitted this exhibit into evidence (see Tr. 6455–6456), and

thus the court reporter’s cover sheet indicating that the exhibit was never

offered into evidence was created in error and should be disregarded.

WALMART STORES, INC. 15

the General Counsel, OUR Walmart and Respondent, I make the

following

FINDINGS OF FACT

I. JURISDICTION

Respondent, a corporation with an office and place of business

in Bentonville, Arkansas, as well as various stores throughout

the United States, engages in the retail sale and distribution of

consumer goods, groceries and related products and services. In

the twelve-month period ending November 30, 2013, Respond-

ent derived gross revenues in excess of $500,000. During the

same time period, Respondent purchased and received products,

goods and materials at its Ennis, Texas facility that were valued

in excess of $5000 and came directly from points outside of the

State of Texas. Respondent admits, and I find, that it is an em-

ployer engaged in commerce within the meaning of Section 2(2),

(6), and (7) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES

A. Walmart - Background

1. General description

Walmart opened its doors in 1962 as a small discount retailer

in Arkansas. Walmart has grown considerably since that time,

such that by 2014, Walmart operated over 4,000 stores in the

United States, and employed over 1.3 million associates. During

the time period relevant to this case (approximately June 2011

through December 2013), Walmart associates in the United

States have not had a certified or recognized collective-bargain-

ing representative. (Jt. Exh. 28(a)–(b); Tr. 1025–1029, 1114,

1355, 5059, 5075–5076, 5080, 5980–5981.)

2. Management structure

As one would expect given its size, Walmart employs several

managers at various levels to handle store operations and manage

associates. In an individual store, Walmart typically will employ

associates in the following roles (among others) to handle store

operations:

1. Store manager – salaried associate responsible for oversee-

ing the entire store

2. Shift manager (also referred to as a co-manager) – salaried

associates who manage the entire store during their shifts

3. Assistant manager – salaried associates who manage spe-

cific areas of the store while on duty

4. Zone merchandise supervisor (ZMS) – hourly associates

who manage specific areas of the store while on duty

5. Customer service manager – hourly associates who direct

and train cashiers, and handle customer complaints

6. Department manager – hourly associates responsible for

sales floor presentation, in-stock, pricing, accuracy, and cus-

tomer service within their assigned departments

7. Sales associates – hourly associates who help customers find

and purchase items

8. Front end associates – hourly associates who help customers

Although I have included several citations in the findings of fact

and elsewhere in my decision to highlight particular testimony or exhib-

its, I emphasize that my findings and conclusions are not based solely on

check out at registers, service desk and money center

9. Inventory management team – hourly associates who handle

inventory in the back room and ensure that products are orga-

nized and available to customers

(GC Exh. 20(a); Tr. 641, 1024–1025, 1038–1040, 1043–1044,

1061–1062, 1327, 1406–1408, 1436–1438, 1585–1590, 1822–

1823, 3398, 3531–3534, 3601–3603, 4573–4578, 4676, 4679,

5451–5452, 5663–5664, 5862–5865, 5947–5948.) Above the

store level, Walmart relies on “market” level managers to moni-

tor groups of stores, “regional” managers to monitor groups of

markets, division managers to cover groups of states, and “busi-

ness unit” personnel to monitor the east, central and west regions

of the United States. (Tr. 1062–1064, 1601–1603, 3413–3416,

5066, 5077–5078.)

3. Labor relations

In addition to the managerial levels discussed above, Walmart

has a labor relations department that is staffed by a group of labor

relations managers. Walmart’s labor relations managers can be

reached on a telephone “hotline” or by email, and generally ad-

vise salaried managers on how to proceed when labor activity

(such as union talk, union literature, or visits from union organ-

izers) or low associate morale arises at their store. (Tr. 1065,

1356–1358, 1413–1414, 1604, 1802, 1848–1851, 1920–1921,

1972–1976, 3227–3228, 3419–3420, 3442, 3545, 3608–3609,

3672, 4233–4234, 4615–4617, 4716–4718, 5065–5066, 5084–

5086, 5092, 5115–5117, 5313, 5319, 5675, 5677, 5745, 5888,

5917–5919, 5960–5962, 6587–6589; see also GC Exhs. 21(a)–

(b), 32.) In addition, to maintain the union-free status of

Walmart’s facilities, labor relations managers monitor stores for

labor activity, notify store-based salaried level managers about

anticipated labor activity, and train store-based managers on how

to respond to such activity in the workplace. Among other

things, labor relations managers train store managers that while

they may not threaten, interrogate, make promises to or spy on

associates, store managers may respond to labor activity with

facts, opinions and experiences (the acronyms “TIPS” and

“FOE” are used for these aspects of the training). (Tr. 1121,

1142, 1163–1164, 1179–1180, 1412, 1630, 2044, 3225–3226,

3437, 3560–3561, 3622–3623, 4210–4211, 4233, 4594–4595,

4611–4612, 4651, 4695, 4713, 5058–5059, 5062, 5090–5091,

5100–5101, 5110; see also GC Exhs. 27(a), 27(c), 29(a), 29(c),

31(a)–(e), 32, 35(a)–(b), 71–76, 78, 108 p. 4, 2418–8, 2418–

9(a)–(b), 2609-2, 3455-9; Charging Party (CP) Exh. 7.)

4. The open door policy

Under its open door policy, Walmart “offers each associate an

opportunity to bring suggestions, observations or concerns to the

attention of any supervisor or manager without fear of retalia-

tion,” including upper level managers if (for example) lower

level managers are the subject of the associate’s concern or the

associate is dissatisfied with the outcome of the initial open door

session. Walmart has promised to “take[] all open door commu-

nications seriously,” and also has promised to promptly and

those specific record citations, but rather are based on my review and

consideration of the entire record for this case.

Additional associates work in the areas of loss prevention and asset

protection and have their own chain of command. (Tr. 3418–3419.)

16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

thoroughly “investigate any complaints or concerns that [associ-

ates] raise.” Walmart emphasizes that it will “treat concerns,

comments and complaints raised through the open door with

confidentiality and respect.” Accordingly, managers involved in

the open door “may not disclose any specific information to an-

yone not directly involved in resolving the [associate’s] con-

cern.” However, Walmart may advise or consult with individu-

als who have a need to know about the situation, including wit-

nesses who may have knowledge of the circumstances surround-

ing the concern and thus may be interviewed as part of the re-

view. (Jt. Exh. 5; see also Tr. 77–78, 646, 1093–1095, 1454,

1614, 1616, 1856–1857, 3239–3230, 3438–3439, 3624, 4229,

5159, 5402.)

In connection with its confidentiality rules, Walmart generally

allows only individual associates to participate in open door ses-

sions. Groups of associates who share the same concern(s) typ-

ically must nonetheless meet with management individually.

Consistent with those limitations, an associate may not bring a

witness to his or her open door session (for substantive input,

moral support or otherwise), even if the associate is willing to

waive any confidentiality issues. By contrast, Walmart custom-

arily will have at least two members of management present for

open door sessions, though those managers are of course bound

to follow Walmart’s policies regarding the confidentiality of

open door sessions. (Tr. 1095, 1454–1455, 1615, 3439–3440,

3625, 4230, 4597–4598, 5159, 5328, 5402–5403, 5757–5758,

5979–5980.)

5. Associate staffing and shift scheduling policies

In general, Walmart staffs its retail stores leanly, with an eye

towards providing just enough staffing to cover the various de-

partments in the store while avoiding overstaffing. Staffing lev-

els fluctuate to account for peak shopping days/times at each

store, such as the day after Thanksgiving (a.k.a. Black Friday).

(Tr. 1260, 1464, 1472, 1620–1621, 1798, 3536, 4607–4608,

5229–5230; see also Tr. 3535–3536, 4708 (noting that Walmart

stores may hire temporary associates to work during peak shop-

ping seasons).)

To create its weekly work schedules for associates, Walmart

uses a computer system (called the SMART system) that gener-

ates a tentative schedule based on historic and projected sales,

store wage budgets, associate availability forms, associate full-

time or part-time status

and other factors. Once the tentative

schedule is created (approximately four weeks in advance), as-

sistant managers in each store have the ability to make changes

to the schedule before it is finalized and posted electronically on

Walmart’s intranet site (the Wire) and associate website

(Walmartone.com) approximately three weeks in advance for as-

sociates to review. Associates may request schedule changes af-

ter the final schedule is posted, but such requests must be

In the relevant time period, an associate who worked 34 hours or

above per week was full-time, while an associate who worked less than

34 hours per week was part-time. (Tr. 1100–1101, 1794, 4607–4608,

4707, 5977; Jt. Exh. 4 (p. 1.).)

In January 2013, Walmart announced that it planned to modify its

scheduling policy to allow associates to request and receive additional

hours more easily. (Tr. 1010–1011, 2256–2257.)

approved by a salaried manager. (Tr. 301, 520–521, 523, 1067–

1068, 1102–1103, 1105–1108, 1349–1352, 1464–1470, 1616–

1623, 1796–1798, 3273–3276, 3432, 3557–3558, 3617–3620,

4223–4224, 4227, 4602–4603, 4605–4606, 4706–4707, 5228–

5230, 5386–5387, 5480–5481, 5690–5691, 5693, 5752–5753,

5756, 5973–5977; see also Tr. 1488 (noting that for busy shop-

ping days like Black Friday, the final schedule may be posted

less than 3 weeks in advance).)

Walmart expects its associates to be reliable and work their

assigned shifts, request time off at least three weeks in advance

where feasible, and when necessary, call in to notify Walmart

when they are unable to work their scheduled shifts. When an

associate does miss a scheduled shift, Walmart generally covers

for that associate on an ad hoc basis, which can include reassign-

ing associates from other areas of the store, having associates

work past the end of their scheduled shifts, or simply running the

store short-handed. Walmart stores generally do not have an es-

tablished practice of maintaining a list of associates who are on-

call to work on short notice, but managers may call individual

associates to ask if they are available to come in and work.

(Tr.

1260–1261, 1473–1474, 5388–5389.)

The “call in” (a.k.a. “call out”) procedure for associates who

are unable to work their scheduled shifts requires associates to

first dial an 800 number (also referred to as the Interactive Voice

Response (IVR) system) that directs associates to enter their

store number, and then specify the reason for their absence from

the following choices:

Code 1 – Personal injury or illness or an injury or illness affect-

ing an immediate family member;

Code 2 – Bereavement;

Code 3 – Jury duty or legal proceedings;

Code 5 – Emergency community volunteer work;

Code 6 – Severe weather, or a natural disaster such as a hurri-

cane, tornado, or earthquake; and

Code 7 – None of the above.

The automated system provides the associate with a confirma-

tion number, and then transfers the telephone call to the associ-

ate’s store, where the operator (usually an associate assigned to

the fitting room) will answer the call and then attempt to bring a

manager to the telephone. If a manager is not available (a com-

mon circumstance), the associate who will be absent ends the

telephone call and simply relies on the automated system and

confirmation number. Walmart typically does not discipline as-

sociates for failing to speak to a manager after completing their

entries on the automated system. (Jt. Exh. 2(b); Tr. 1070–1077,

1344–1346, 1458–1460, 1610–1613, 3554–3556, 3615–3617,

4214–4216, 4599–4600, 4604, 4703–4705, 4819–4820, 5469–

5470, 5478–5479, 5545, 5688–5690, 5751–5752, 5881–5883,

5964–5966; see also Jt. Exh. 0(a)(1)–(2) (describing the IVR

On rare occasions, one Walmart store may borrow associates from

another Walmart store, but because of the administrative hurdles and de-

lay associated with sharing associates (a market human resources man-

ager must coordinate the process), associate sharing typically occurs

when the store requesting additional associates has a special project, such

as annual inventory. (Tr. 300, 1433–1434, 2039, 5014, 5033–5034,

5390–5392.)

The record does not specify a “Code 4.”

WALMART STORES, INC. 17

system); GC Exh. 2418–18 (daily call-in logs from store 2418,

showing multiple entries that do not identify a manager who

spoke to the associate when the associate called to report that he

or she would be absent); GC Exh. 127(a) (p. 13) (noting that one

of the benefits of the IVR system is that it eliminates confusion

that can result if associates call the store directly and report that

no one would answer the phone or that they left a message with

a coworker).)

6. Discipline policy

In general, Walmart follows a progressive discipline policy,

under which an associate who commits a workplace infraction

receive a written “coaching” that becomes part of the associate’s

disciplinary record. In most instances, a first infraction will re-

sult in a “first written coaching” that will remain active for

twelve months from the date of the coaching. If the associate

commits another infraction while their previous coaching re-

mains active, they will receive the next level of coaching (second

written coaching, and so on), and the new coaching will remain

active for twelve months from the date of the new coaching. As-

sociates who receive a third written coaching face termination if

they commit another infraction while the third written coaching

is active.

Notably, Walmart reserves the right to skip levels of

coaching and/or terminate associates if warranted by the serious-

ness of the infraction. (Jt. Exhs. 3(a)–(b); see also Tr. 165, 261–

262, 1089–1091, 2003, 3550–3551, 3613, 4699–4700.)

When associates commit attendance-related infractions, such

as missing shifts or working incomplete shifts (e.g., due to unau-

thorized tardy arrival or early departure),

Walmart addresses

those infractions through its progressive discipline policy.

Walmart explains its method for handling attendance-related in-

fractions as follows:

Unauthorized absences

An unauthorized absence means any time you are away from

scheduled work . . . that is not approved by your supervisor or

manager[.]

. . .

Occurrences

Unauthorized absences and incomplete shifts are monitored

and may result in disciplinary action, as outlined in the chart

below. A full day absence is one occurrence. If you are absent

for up to three consecutive workdays for the same reason, we

will count it as one occurrence. Three incomplete shifts in a

rolling six-month period, through any combination of being

Before April 19, 2012, Walmart referred to the third written coach-

ing as a “D-Day” or “Decision Day” coaching. As part of the D-day

procedure, Walmart would have the associate remain at home (with pay)

for their next scheduled shift, to think about whether they wished to con-

tinue pursuing a career at Walmart. Walmart no longer uses the D-day

procedure. (Tr. 1091–1092, 3241, 4700, 5685; see also Jt. Exhs. 782–

783, 1072, 1297; Tr. 5475–5476.)

Under Walmart’s attendance/punctuality policy, an incomplete

shift occurs if an associate begins work “15 or more minutes after [the

associate’s] scheduled start time (tardy)” or leaves work “10 or more

tardy and/or leaving work early, will equal one occurrence . . .

If you have three occurrences in a rolling six-month period, you

will have the opportunity to have a personal discussion with

management regarding your attendance. If you have more than

three occurrences in a rolling six-month period, you will be

subject to disciplinary action. If you have an active coaching

for any reason (not just attendance/punctuality) you will ad-

vance to the next coaching level if you have four occurrences

in a rolling six-month period. You will continue to advance to

the next coaching level for each subsequent occurrence that re-

sults in more than three occurrences in a rolling six-month pe-

riod.

Event Result

One to three consecutive

unexcused absences (for

the same reason)

One Occurrence

Three Incomplete Shifts

(tardy or leave early in a

rolling-six month pe-

riod)

One Occurrence

Three Occurrences (in a

rolling six-month pe-

riod)

Personal Discussion

Four or More Occur-

rences (in a rolling six-

month period)

Coaching for Improvement (ad-

vancement to next coaching

level if active coaching exists)

No call/no show

If you are absent from a scheduled shift and do not report your

absence by calling the Associate Information Line, you will be

subject to disciplinary action beginning at the Second Written

coaching level if you have no other active coachings, or at the

next available coaching level if you have an active coaching.

For each additional absence for which you do not call, you will

be advanced to the next coaching level. If you are absent for

three workdays (consecutive or nonconsecutive) in a rolling

six-month period and do not report your absences by calling

the Associate Information Line, we will consider you to have

abandoned your job, which will result in your voluntary termi-

nation of employment.

(Jt. Exh. 0(a)(1); see also Jt. Exhs. 0(a)(2)–(k), 2(a), 702–712;

Tr. 1082–1086, 3241–3242, 3422–3424, 3508–3509, 4599,

4602, 4697, 5470–5474, 5680–5682, 5746, 5875–5878, 5966–

5970.)

minutes before the end of [the associate’s] scheduled shift (left early).”

(Jt. Exh. 0(a)(1), p. 1.)

Depending on the state where the store is located, Walmart recog-

nizes certain exceptions to what constitutes an unauthorized absence.

Those exceptions, as well as other state by state differences in Walmart’s

attendance and punctuality policies, are not at issue in this case.

The following examples illustrate how Walmart’s policy applies to

unauthorized absences. If an associate missed scheduled shifts on Janu-

ary 1–3, that associate would receive one occurrence. If the same asso-

ciate missed scheduled shifts on February 2–4 and February 22, the as-

sociate would receive two more occurrences, and should receive a

18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

In practice, Walmart does not always invoke its attendance

policy in a timely manner. As a result, some associates have ac-

cumulated ten, fifteen, or even twenty-nine occurrences in a 6-

month period before Walmart administers a coaching.

Walmart typically does not skip coaching levels when presented

with such a circumstance; instead, in recognition of its failure to

invoke its attendance policy earlier, Walmart imposes a single

coaching to cover the entire group of occurrences. Indeed,

Walmart management guidelines state that rule explicitly, ex-

plaining that “if a Coaching for four or more occurrences is not

issued before the associate incurs additional occurrences within

the same rolling six-month period, then [the manager] must start

with a First Written Coaching, regardless of the number of oc-

currences the associate has incurred.” (Jt. Exhs. 2(a), 2(c), 702–

712 (page 2 of each exhibit); GC Exh. 127(a) (pp. 14–15); Tr.

1083, 3509–3510, 3590–3591; see also GC Exh. 3455–8 (listing

associates in store 3455 with as many as 29 active occurrences).)

B. The United Food & Commercial Workers (UFCW)

1. The UFCW and Walmart

The UFCW is a union that represents workers in a variety of

settings, but primarily in grocery stores, meatpacking and poul-

try plants, food processing and manufacturing plants, and retail

stores. While the UFCW does not represent any Walmart asso-

ciates and since January 2013, has disavowed any intent to have

Walmart recognize or bargain with the UFCW as the representa-

tive of Walmart’s associates,

the UFCW has an interest in

Walmart’s workplace policies and practices because Walmart is

the largest private employer in the United States, and “[w]hen

big companies like Walmart slash benefits and wages, it has a

negative effect on job standards not only within the company,

[but also] throughout the entire global retail industry.” (R. Exh.

29; see also Tr. 870–871, 891, 971–972; R. Exhs. 279, ID22.)

Accordingly, the UFCW maintains that there is not a path for-

ward for the labor movement unless the labor movement deals

with Walmart. (R. Exh. 22.)

2. The “Making Change at Walmart” campaign

In light of its interest in Walmart, the UFCW anchors the

“Making Change at Walmart” campaign, which describes its

purpose as “challenging Walmart to help rebuild our economy

and strengthen families.” Although the UFCW anchors the cam-

paign, the campaign is “a coalition of Walmart associates, union

members, small business owners, religious leaders, community

organizations, women’s advocacy groups, multi-ethnic

personal discussion for having three occurrences in a 6-month period. If

the associate also missed a scheduled shift on March 15, then that asso-

ciate should receive a first written coaching for having four occurrences

in a 6-month period (assuming the associate has no active coachings).

An additional missed shift on April 3 should result in a second written

coaching. However, a missed shift on September 1 should only result in

an occurrence (and another personal discussion), because the associate

would only have three occurrences in the preceding six months (March

15, April 3 and September 1). The second written coaching, issued on

April 3, would still be active since it remains active for 1 year.

Similarly, Walmart managers may not always give associates per-

sonal discussions in a timely manner (i.e., when the associate incurs 3

occurrences in a six-month period). In those situations, Walmart man-

agers have the discretion to either have the personal discussion with the

coalitions, elected officials and ordinary citizens who believe

that changing Walmart is vital for the future of our country” and

seek to educate the public about that issue. (R. Exhs. 24, 104 p.

25; Tr. 867, 891–892, 895–896, 927–930, 940–941.) The

UFCW intended for the Making Change at Walmart campaign

to be led by Walmart associates who wanted to see change at

Walmart, and supported by community stakeholders who would

join in calling on Walmart to be a “better employer” since what

happens at Walmart sets the tone for what happens across every

aspect of private sector employment in the United States. (R.

Exh. 45, pp. 61–62; see also R. Exh. 99(c), pp. 3–4; R. Exh. 104,

p. 106; Tr. 871, 927–930, 972, 2346–2347.)

In practice, the UFCW maintains an active role within the

Making Change at Walmart campaign. For example, the UFCW

provides most of the staff for the campaign, including Dan

Schlademan, who has served as the campaign director since Jan-

uary 2010, and Andrea Dehlendorf, who has served as the assis-

tant director for the campaign. (Tr. 781, 793–794, 867–869,

915–916, 921–923, 2064–2065; R. Exhs. 45 (p. 54), 260, 306; Jt.

Exh. 1325; see also Tr. 2375–2376 (noting that while the UFCW

provide the bulk of the staff for the Making Change at Walmart

campaign, other organizations contribute staff as well).) In ad-

dition, the UFCW is active with social media, and has staff that

specializes in communicating with Walmart associates and other

interested individuals and groups online, and then assisting those

associates, individuals and groups with planning and participat-

ing in campaign events at Walmart stores in their communities.

(Jt. Exhs. 95–101, 105, 114–115, 118–119, 123, 129(a)–(b); R.

Exh. 104, pp. 43–47, 52–53, 92–95; Tr. 878–879, 891, 893–894,

902, 941, 2175–2176, 2195–2196, 2711.)

C. OUR Walmart – Background

1. OUR Walmart’s beginning

In late 2010, a group of workers in Maryland, assisted by the

UFCW, founded OUR Walmart to further the workers’ efforts to

engage with Walmart about making changes in the workplace.

Once OUR Walmart was founded, the UFCW offered extensive

support to OUR Walmart by, among other things, providing staff

to assist with conducting house calls and meetings to speak to

Walmart associates about the organization. (Tr. 875, 896–897,

963; Jt. Exh. 1; R. Exh. 48, p. 2; see also R. Exh. 45, pp. 105–

106.)

Since at least 2011, the UFCW has identified OUR Walmart

as one of the UFCW’s subsidiaries. As part of that relationship,

associate even though the associate has more than three occurrences, or

alternatively skip the personal discussion and impose the applicable

coaching (particularly if it is apparent that the associate understands

Walmart’s attendance rules based on the associate’s longevity with the

company or prior discipline for attendance). (GC Exh. 127(a), p. 14.)

In the interest of brevity, I use the term UFCW to refer to both the

UFCW International and UFCW local chapters (unless I specify other-

wise).

In a June 2012 speech, UFCW president Joseph Hansen stated that

Walmart associates’ and the UFCW’s effort to stand up to Walmart

“doesn’t end until we change Walmart where it’s a decent place to work,

with a union contract, union wages and union benefits.” (R. Exhs. 275,

ID14.)

WALMART STORES, INC. 19

the UFCW provides OUR Walmart with a wide range of support,

including: staffing and financial support; developing and setting

up OUR Walmart’s website, Facebook page and Twitter ac-

count; providing legal support on how to conduct strikes; assist-

ing with publicity; financial accounting services; transportation

and lodging (e.g., when OUR Walmart associates travel to Ben-

tonville, Arkansas or other locations for campaign events or

training); and a Dodge Nitro van that is used at demonstrations

at Walmart stores to broadcast and display OUR Walmart mes-

saging. (Tr. 80–81, 528, 681, 874–876, 888–889, 951–953, 965–

968, 988, 2711, 2832; Jt. Exh. 1; R. Exh. 45, pp. 101, 118–120;

R. Exh. 100 (a)–(c) (annual reports in which the UFCW identi-

fies OUR Walmart as a subsidiary); R. 250.) The Making

Change at Walmart campaign, meanwhile, supports OUR

Walmart by raising awareness and lending support to OUR

Walmart’s demands (e.g., by connecting community supporters

with OUR Walmart). (R. Exh. 131, pp. 73–74; R. Exh. 149, pp.

97–98; see also Tr. 488, 680–682, 938–940, 2710–2711.)

2. Organizational structure

In general, OUR Walmart membership is limited to current

and former Walmart associates who complete the necessary

membership paperwork and pay $5 each month for membership

dues (customarily by personal check, credit card, debit card or

money order). The UFCW takes the lead on collecting and pro-

cessing monthly dues payments, which go into OUR Walmart’s

bank account. (Tr. 243–244, 773, 871, 873, 963–965, 2423,

4799, 4803, 6038; R. Exh. 126.)

Although they have never been Walmart associates, UFCW

officials Dan Schlademan and Andrea Dehlendorf have held po-

sitions on OUR Walmart’s nine member executive board, includ-

ing president (Schlademan) and secretary/treasurer (Dehlen-

dorf). Current and former Walmart associates are elected to the

remaining executive board positions. (Tr. 871–873, 898, 962,

2065, 2368, 2664, 2709–2710, 2818–2819, 4801–4803; R. Exh.

45, pp. 84, 86–87, 101; see also R. Exh. 45, pp. 57–58 (noting

that Dehlendorf is in charge of the OUR Walmart aspects of the

Making Change at Walmart campaign).) As executive board

members who have prior experience with “engagement cam-

paigns” directed towards employers (i.e., campaigns designed to

induce employers to make changes in their policies), Schlade-

man and Dehlendorf frequently provide advice and proposals to

OUR Walmart’s executive board about planning, strategy and

how to execute plans that the board agrees to initiate. The entire

executive board, however, works together to develop and vote

on specific plans of action for engaging with Walmart. (Tr. 171–

172, 672–673, 782, 923–925, 942–944, 957–958, 2368–2369,

4864; R. Exh. 45, pp. 91–94, 137–138.)

Below the executive board, various UFCW organizers who

are assigned to the Making Change at Walmart campaign interact

with Walmart associates and coordinate OUR Walmart actions

in their assigned regions (including coordinating demonstra-

tions, handling the media, providing flyers and other demonstra-

tion materials, and being on site during demonstrations to com-

municate with police if that need arises). (Tr. 335–336, 915–

916, 1006, 2503–2504, 2555–2556; R. Exh. 45, pp. 98–99; R.

Exh. 104, pp. 25–26, 42; R. Exh. 131, pp. 34–37; R. Exh. 183,

pp. 92–95; R. Exh. 210, p. 48).) Current and former Walmart

associates may become OUR Walmart “leaders” if they become

active in developing OUR Walmart’s presence in their store or

geographic area. (Tr. 897–898.)

3. OUR Walmart’s engagement strategy for Walmart

Consistent with other corporate engagement campaigns, OUR

Walmart’s engagement strategy for Walmart is to arrange a se-

ries campaign events, or “compression points,” that will draw

attention to Walmart in a way that will induce Walmart to change

its policies and/or working conditions. (Tr. 586, 972–976, 1012;

R. Exhs. 30–31, 46, 79; R. Exh. 45, pp. 34–36, 76, 79–81, 135;

see also R. Exh. 45, pp. 154–155 (noting that a major national

campaign event may take three to four months to plan).) Cam-

paign events, or “actions,” include, but are not limited to: demon-

strations at Walmart stores; civil disobedience; flash mobs (such

as singing a song in a store with the goal of educating the public

or Walmart associates); associate strikes, with community mem-

bers present to support the strike; sending delegations of com-

munity supporters and OUR Walmart members to Walmart

stores to distribute leaflets and speak to associates and/or store

managers; and coordinated demonstrations at Walmart’s Ben-

tonville, Arkansas home office during Walmart’s annual share-

holders’ meeting in June or during Walmart’s annual financial

analysts’ meeting in October. (Tr. 787, 898–899, 1015–1017,

2714, 4805; Jt. Exhs. 87, 95–101, 104(a), 117; R. Exhs. 13, 15,

17–21, 25, 59.) Schlademan and Dehlendorf each recognized

early in OUR Walmart’s efforts that it would take a number of

sustained compression points over time to induce Walmart to

make changes, and thus OUR Walmart has conducted a variety

of actions since its inception, and intends to continue that strat-

egy going forward (including assisting Walmart associates in

conducting strikes consistent with the strikes that associates held

in October and November 2012, and in June and November

2013). (R. Exh. 45, pp. 82–83; Jt. Exh. 1.)

D. June 2011—OUR Walmart Activities in

Bentonville, Arkansas

1. Meeting purpose

In June 2011, OUR Walmart organized leadership meetings in

Bentonville, Arkansas. The OUR Walmart events, which were

scheduled to coincide with Walmart’s annual shareholders’

meeting at Walmart’s home office, served as the public launch

of OUR Walmart’s and the Making Change at Walmart cam-

paign’s efforts to induce Walmart to make various changes in the

workplace. (Tr. 797; GC Exh. 3(a); R. Exh. 45, pp. 128–129,

147–148; see also Jt. Exh. 95.) Associates who attended the

OUR Walmart meetings did not go on strike to do so – instead,

they simply took time off or attended when they were not sched-

uled to work. (Tr. 817.)

2. The declaration of respect

As part of the June 2011 Bentonville meetings, approximately

100 OUR Walmart leaders discussed and developed a declara-

tion setting forth OUR Walmart’s goals and demands. (R. Exh.

45, pp. 106–109; see also R. Exh. 48.) Through those discus-

sions, OUR Walmart leaders drafted and signed the following

declaration, which they presented to Walmart officials at

Walmart’s home office on June 16, 2011:

20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

OUR Walmart Declaration of Respect

We, the hourly Associates, are the life-blood of Walmart. Our

company is stronger because of the values we embrace—a

strong work ethic, compassion for one another and honesty.

Yet we are not treated with the respect we deserve.

The fundamental desire to be shown respect is what led us to

join together as OUR Walmart—an organization of Walmart

Associates, by Walmart Associates, for Walmart Associates.

We are one Organization United for Respect at Walmart.

 One of Sam Walton’s rules for building a successful

business was, “Listen to everyone in your company

and figure out ways to get them talking.” We are

following that winning philosophy. However, too

many of us do not have a true voice at our stores.

Our concerns about providing the highest quality

customer care and about making our jobs quality

jobs are ignored. Walmart should listen to OUR

Walmart, celebrate our initiative, and follow our rec-

ommendations.

 We are the foundation of the quality service and

value Walmart provides its customers. Walmart

should honor the hard work and humanity of Asso-

ciates by living up to Mr. Sam’s promise of “respect

for the individual.”

 Associates who assert their freedom of association

frequently face retribution from the company.

Walmart should allow Associates to freely join

OUR Walmart without fear of negative company ac-

tion.

 Associates who have tried to utilize Walmart’s Open

Door have found that their issues are not resolved

and confidentiality is not respected. Walmart should

ensure confidentiality in the Open Door and provide

in writing resolution to issues that are brought up and

always allow associates to bring a co-worker as a

witness.

 Walmart publicly claims that pay for full-time As-

sociates averages more than $13 per hour in some

communities, when in truth most of us work for less

than $10 per hour and are only scheduled for part-

time hours, making it difficult to support our fami-

lies. Walmart should follow through on its public

statements and pay at least $13 per hour and expand

the percentage of full-time workers.

 Our schedules are often irregular and inflexible

making it difficult to care for our families. Walmart

should make scheduling more predictable and de-

pendable.

 Too many of us are unable to access Walmart’s

health care because it is too expensive or we lack the

hours to qualify. Walmart should expand health care

coverage and continue to work to expand coverage

when health reform goes into effect, rather than tak-

ing advantage of loopholes in the law to deny cover-

age.

 Too often Associates are faced with retaliation when

speaking out about issues at work. Walmart should

honor our constitutional right to freedom of speech

and adhere to company policies that support dia-

logue and resolution.

 Walmart’s management often chooses to enforce

written policies only when it is in their own interest,

leaving Associates guessing proper protocol.

Walmart should do more to ensure managers are

properly trained on how to evenly and equitably en-

force Walmart’s written policies at all times and to

provide all Associates with a policy manual.

 Too many of us have been denied equal treatment.

Walmart should adopt affirmative policies that se-

cure full access to opportunity and equal treatment

to all Associates regardless of gender, race, sexual

orientation, gender identity, disability or age.

 Many former Walmart Associates have been termi-

nated unfairly and Walmart has a high turnover rate.

Walmart should create an Associate liaison at cor-

porate headquarters in Bentonville, Arkansas to hear

Associates’ side of the story in matters related to ter-

mination and take action as appropriate.

 We know our company has an impact around the

globe in terms of its standards and practices.

Walmart should require that suppliers and stores

around the globe operate with the highest standards

and ensure that workers’ freedom to associate is re-

spected.

We envision a future in which our company treats us, the As-

sociates of Walmart, with respect. We envision a world where

we succeed in our careers, our company succeeds in business,

our customers receive great service and value, and Walmart

and Associates share all of these goals.

And finally, we close with one more rule from Mr. Sam: “Share

your profits with all your Associates, and treat them as part-

ners.”

(GC Exh. 3(a); see also Tr. 189, 760–761, 797, 938–940, 2362–

2363, 5153–5155, 5158; GC Exh. 4; R. Exhs. 2, 17; R Exh. 45,

pp. 122–125; see also Tr. 939–940, 4919–4920, 5038–5040,

6753, 6762 (noting that OUR Walmart has remained consistent

with these goals throughout the campaign).)

E. Fall 2011 through Summer 2012—Ongoing Efforts to

Publicize OUR Walmart’s Message

In September 2011, Making Change at Walmart called for a

“National Day of Action” for OUR Walmart, on which small

groups of people from UFCW locals and community ally groups

would visit Walmart stores in their neighborhoods with the aims

of: speaking to Walmart associates about OUR Walmart and

about issues related to scheduling and hours; distributing OUR

WALMART STORES, INC. 21

Walmart literature; and encouraging associates to visit OUR

Walmart’s website. (Jt. Exh. 95; R. Exh. 59.) OUR Walmart

supporters and allies spoke to over 1,400 associates at 25 differ-

ent stores across the country, but overall the day of action pro-

duced mixed results insofar as Walmart personnel at some stores

turned OUR Walmart supporters away before they could speak

to associates, and at certain other stores, OUR Walmart support-

ers encountered associates who were not willing to talk. (R. Exh.

59.)

In early October 2011, financial analysts gathered in Benton-

ville for an annual meeting about Walmart’s financial health and

the value of Walmart stock. As part of the effort to encourage

Walmart to change its workplace policies, OUR Walmart ar-

ranged a meeting between financial analysts and Walmart asso-

ciates to present OUR Walmart’s perspective on Walmart’s rela-

tionship with its workforce. OUR Walmart also held another

demonstration at Walmart’s home office, at which around 50

OUR Walmart supporters displayed signs calling for Walmart to

(among other things) stop cutting hours and offer more opportu-

nities for associates to work full time. (R. Exhs. 18, 20, 45, pp.

129–135; Tr. 791–792; see also Tr. 793 (noting that the UFCW

paid for OUR Walmart supporters’ travel, lodging and food ex-

penses).) After reviewing an article describing OUR Walmart’s

efforts during the financial analysts’ visit, Walmart officials Da-

vid Tovar and Lee Culpepper indicated that they were “not too

worried” about OUR Walmart’s efforts. (GC Exh. 79; see also

Tr. 5165.)

In late May 2012, a group of approximately 100 OUR

Walmart members traveled to Bentonville, Arkansas to conduct

various actions during Walmart’s annual shareholders’ meeting.

As part of their activities during shareholders’ week, OUR

Walmart members spoke to Walmart associates about OUR

Walmart, signed up new OUR Walmart members, and had a rep-

resentative speak at Walmart’s shareholders’ meeting. (R. Exh.

31.) In addition, on May 31, approximately 25 OUR Walmart

members went to Walmart’s home office, where they delivered

23 signed letters to Walmart labor relations official Karen Casey.

(Tr. 798–799; GC Exhs. 80–81; R. Exhs. 19, 31; R. Exh. 45 pp.

139–141; R. Exh. 49; see also R. Exh. 45 p. 152 (noting that by

February 2012, OUR Walmart was planning actions for

Walmart’s May/June 2012 annual shareholders’ meeting).)

Each letter stated as follows:

Dear Ms. Casey:

I am here as an individual Associate and a member of [OUR

Walmart]. I am asking for an Open Door Meeting as laid out

by the company policy.

Last June many members of OUR Walmart had the oppor-

tunity to meet with you and hear your commitment to ensure

that there would be no retaliation against Associates who par-

ticipate in OUR Walmart and that our freedom to associate will

be respected by Walmart and Walmart managers.

However, I wanted to let you know that I have experienced or

Although Black Friday (the Friday after Thanksgiving) would later

become a focal point for OUR Walmart actions, OUR Walmart did not

engage in any actions on Black Friday in 2011. (R. Exh. 45, p. 157.)

witnessed retaliation in my store. Many other members of

OUR Walmart report the same.

I am here to ask that you work with me on the following solu-

tions:

1) That Walmart reinstates the employment of Angela Wil-

liamson and Wessa Milien, leaders of OUR Walmart.

2) That Walmart remove the disciplines of any and all Associ-

ates who have spoken out, including Janet Sparks, Carlton

Smith, and Venanzi Luna.

3) That Walmart stop conducting anti-OUR Walmart meetings

and [having] anti-OUR Walmart slides on regular rotation on

TV screens in Associate-only areas of the store.

4) That you provide me with a copy of the Associate Policy in

written form.

(GC Exh. 81.) Casey accepted the letters, and later on May 31,

Walmart officials conducted 19 individual open door meetings

with OUR Walmart members to hear their concerns, which in-

cluded the concerns listed in the May 31 letter, as well as con-

cerns about safety, workers compensation claims that were de-

nied, scheduling, and reductions to work hours. The associates

who accepted open door meetings “conducted themselves re-

spectfully,” and at least one associate was impressed with how

quickly Walmart arranged the open door meetings. (Tr. 5169–

5177; GC Exh. 80.)

F. Fall 2012—OUR Walmart Begins Using Strikes

1. The decision to begin using strikes

At an OUR Walmart leadership meeting held on August 22–

23, 2012, OUR Walmart decided to begin using associate strikes

as an additional tactic in its efforts to induce Walmart to change

its policies. OUR Walmart made that decision because its mem-

bers did not believe that other tactics (e.g., using open door meet-

ings, and sending delegations of OUR Walmart leaders to speak

with Walmart officials) were sufficiently effective in addressing

OUR Walmart’s concerns about retaliation against OUR

Walmart members. (Tr. 4806–4808, 4884, 4886–4887, 4930–

4931; see also Tr. 817 (noting that before OUR Walmart decided

to use strikes, associates attended OUR Walmart actions when

they were not scheduled to work).)

2. OUR Walmart prepares for strikes

In connection with its decision to begin using associate strikes,

OUR Walmart made a point of training its members that when

they went on strike, they were doing so to protest Walmart’s al-

leged unfair labor practices (primarily, Walmart’s alleged retali-

ation against OUR Walmart members and other associates who

spoke out about Walmart’s employment practices). OUR

Walmart characterized its strikes as unfair labor practice (ULP)

strikes because, as it asserted in its “ULP Striker’s Toolkit”

handout, “ULP strikes protect Associates more than other strikes

because companies must put ULP strikers on the schedule after

they offer to return to work. In comparison, companies can hire

22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

others to replace Associates who strike for [economic reasons

such as] better wages or working conditions and keep them off

the schedule after they strike.” (R. Exh. 4, p. 2; see also Tr. 2110,

2207–2212.)

To ensure that its members consistently adhered to the ULP

strike strategy, OUR Walmart provided potential strikers with: a

form letter to sign and deliver to Walmart when they went on

strike; a script to read when they advised their store manager that

they were going on strike; a form letter to sign and deliver to

Walmart when strikers were ready to return to work; and a script

to read when strikers advised their store manager that they were

ready to return to work. Each of those documents emphasized

OUR Walmart’s ULP strike strategy by stating that the associ-

ates went on strike “to protest Walmart’s attempts to silence As-

sociates 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 who have

spoken out.” (R. Exh. 4, pp. 5–8; see also Tr. 215–218, 612–

613.)

Similarly, OUR Walmart advised strikers that if they made

signs to carry during a demonstration while on strike, the associ-

ates should write “Unfair Labor Practice Strike” on their sign,

and select one of the following six slogans:

I spoke out about __________ (example: understaffing or not

getting enough hours) and Walmart tried to silence me. End

the retaliation.

Stand up live better. Stop the retaliation.

Respect our freedom to speak out.

Stop silencing workers who speak out.

Walmart associates on strike against retaliation.

On strike for the freedom to speak out.

(R. Exh. 5; see also R. Exh. 4 (p. 12); R. Exh. 3782 VID1 (at the

2:00 minute mark, a UFCW organizer advises associate protest-

ers at a November 2012 action to carry signs that mention “no

retaliation,” “ULP strike” or “stop silencing us”); R. Exh. ID6;

Tr. 220–224, 615.) By contrast, associates who attended OUR

Walmart demonstrations while off-duty (as well as community

supporters) remained free to carry signs with a broader range of

economic and other messages. (See, e.g., R. Exhs. 4(a), 21, 64(c)

(showing ULP strike signs and signs with economic messages);

Tr. 2209–2230, 2826–2827).)

3. October 4, 2012 – Pico Rivera strike

On October 4, 2012, OUR Walmart held its first associate

strike. Specifically, approximately 58 associates from various

Walmart stores in Los Angeles went on strike and traveled to

Walmart Pico Rivera store 2886, where they were joined by a

large group of community supporters, off-duty Walmart associ-

ates (some of whom were OUR Walmart leaders flown in at the

UFCW’s expense), and members of organizations affiliated with

the Making Change at Walmart campaign. Once assembled, the

group formed a long picket line and marched on the sidewalk in

front of the store while chanting various slogans (e.g., “Who’s

got the power? We’ve got the power! What kind of power? Peo-

ple power!”), blowing airhorns, and carrying assorted signs. (Tr.

803–806, 891, 925, 2147–2149, 2153–2154, 2715, 2819, 4888–

4890, 4946; R. Exhs. 21, 64–65, 471 CH1, 2886 EC1; see also

R. Exh. 250 (discussing a charter bus that the UFCW planned to

rent to transport OUR Walmart members to and from events in

Los Angeles).)

As part of its outreach to the media, OUR Walmart issued a

press release about the strike (including some quotes that com-

munity supporters adopted after OUR Walmart drafted the lan-

guage) and put news reporters in touch with OUR Walmart

members and supporters for interviews if requested. OUR

Walmart also prepared email “blasts,” tweets and Facebook

posts to distribute about the October 4 strikes. (Tr. 2157–2161;

Jt. Exhs. 104(a)–(b), 105; R. Exh. 251.) Walmart officials also

spoke to members of the media and drew praise from within the

company for taking the position that the October 4 strikes had no

impact on Walmart’s business operations. (GC Exh. 82; Tr.

5186–5187.)

Later in the day on October 4, a delegation of approximately

30 demonstrators entered the Pico Rivera store and delivered a

letter advising the store manager that the strikers from that store

were making unconditional offers to return to work for their next

scheduled shifts. (Tr. 4889–4890, 4946–4947.) Strikers from

other stores also submitted “return to work” letters to Walmart.

The return to work letters stated the following rationale for the

strike:

On October 4, 2012, we did not work to protest Walmart in

response to the retaliatory unfair labor practices that Walmart

committed against its Associates in violation of the National

Labor Relations Act (“NLRA”). We are also not working to

protest Walmart’s refusal to meet with groups of Associates to

address their mutual concerns about certain conditions at the

company that affect all of them, a violation of the NLRA.

These unfair labor practices include Walmart’s attempts to si-

lence Associates who spoke out for better wages, hours, and

other working conditions, and its retaliation against those who

did speak out. As a result of Walmart’s illegal behavior, unfair

labor practice charges have been filed with the [NLRB]. We

walked off the job in protest over Walmart’s illegal actions and

in support of the unfair labor practice charges that have been

filed.

((Jt. Exhs. 94(a) (tabs 1–9), 765; see also Tr. 4805–4806.)

4. October 9–10, 2012—actions and strikes during Walmart’s

annual financial analysts’ meeting

Following the strikes in Los Angeles, OUR Walmart planned

a two-pronged strategy for engaging Walmart during Walmart’s

annual financial analysts’ meeting. First, several OUR Walmart

members went on strike at multiple store locations across the

country on or about October 9, 2012. Instead of remaining at

their home store, however, many of the strikers traveled to Ben-

tonville, Arkansas to participate in demonstrations and other

events while Walmart conducted its financial analysts’ meeting

on October 10. (See, e.g., R. Exhs. 190, 286 VID1 (clips 1-2),

292; GC Exhs. 70, 286–3; Tr. 925–926, 2573–2574, 2836–2837,

2997–2998.) The demonstrations in Bentonville took a variety

of forms, including:

 Gathering on a public street corner near Walmart’s

WALMART STORES, INC. 23

home office and chanting slogans such as “Whose

Walmart? OUR Walmart!” and “We’re on strike, we

want to speak to Mike!”

(R. Exh. 3 (clip 1); Tr. 192–

193.)

 Picketing on a public sidewalk near the location of

Walmart’s financial analysts’ meeting, while chanting

“We fired up, can’t take it no more!” (R. Exh. 3 (clip

2); Tr. 683.)

 Visiting Walmart Stores 1 and 100, where demonstra-

tors entered the store and chanted “Coach me, work

me, you will never break me. Stand up, listen up, now

it’s time to speak up. OUR Walmart’s here to say, that

Walmart’s got to listen to us!” while playing a rhythm

on assorted items from the store.

(R. Exhs. 3 (clip

4), 69; see also R. Exhs. 3 (clip 4) (showing that pro-

testers left the interior of Walmart Store 1 and resumed

chanting on a sidewalk outside the front of the store);

1 VID1, ID15; Tr. 199, 202, 684–685, 2837, 5037.)

OUR Walmart members and UFCW personnel planned, sched-

uled and facilitated most, if not all, of the activities at Walmart

stores on October 9, as well as the activities in and around Ben-

tonville on October 10. (R. Exhs. 3 (clips 1–4), 60, 69; Tr. 925–

926, 2134–2135, 2837–2838, 2997–2998, 5037–5038.)

For the most part, the associates who went on strike gave

Walmart strike letters that stated, in pertinent part:

We, the Walmart Associates whose signatures appear below,

are not working today to protest Walmart’s attempts to silence

Associates who have spoken out against things like Walmart’s

low take home pay, unpredictable work schedules, unafforda-

ble health benefits and Walmart’s retaliation against those As-

sociates who have spoken out. These Associates are members

of OUR Walmart and they will not be silenced. It is illegal for

Walmart to attempt to silence and retaliate against them and

unfair labor [practice charges] have been filed with the [NLRB]

in protest.

(Jt. Exh. 94(a) (tabs 10–19, 21–24); see also R. Exh. 230.) Sim-

ilarly, when the strike ended and the associates were prepared to

return to work after being out for approximately one to three

days, they generally gave Walmart return to work letters that re-

iterated their rationale for going on strike and communicated

their unconditional offers to return to work their next scheduled

shifts. (Jt. Exh. 94(a) (tabs 10–11, 13, 18–20, 22–25).)

Second, OUR Walmart coordinated a “National Day of Ac-

tion” on October 10, for which OUR Walmart, the UFCW and

other organizations held demonstrations or other actions at stores

across the country in support of OUR Walmart and the associates

on strike. Using email and other lines of communication, UFCW

personnel outlined the framework for local actions (generally,

gathering at Walmart stores for approximately one hour to

“Mike” was a reference to Mike Duke, who was Walmart’s CEO

at the time. (Tr. 201–202.).

OUR Walmart assigned certain demonstrators to “straighten things

up” in the store after the demonstration. (Tr. 200, 280.)

In preparing for Black Friday labor activity, Walmart defined “Pri-

ority One” stores as those that “have sizeable or active clusters of self-

leaflet, take photographs, and deliver a petition or letter to store

management), provided downloadable demonstration materials

and instructions, and publicized the schedule for store actions.

(Jt. Exh. 97; R. Exhs. 231–232, ID3, ID4, 1985 VID1, 1985

VID2, 2516 VID1, 2516 VID2, 4383 VID1, 5647 Photo 1; Tr.

2177–2178, 6447–6448, 6452–6454, 6486; see also GC Exh. 70

(Walmart summary of National Day of Action events that oc-

curred on October 8–9); R. Exh. 273 (OUR Walmart summary

of National Day of Action events that occurred on October 10).)

Walmart was somewhat prepared for the events of October 9–

10, since it learned of the upcoming strikes and actions a few

days in advance. Accordingly, Walmart encouraged its store

managers to make contingency plans for covering the work of

any associates who went on strike (e.g., by simply reassigning

associates from other parts of the store, and having managers fill

in as needed), and developed talking points for Walmart officials

and store managers to use to respond to questions (from the me-

dia or financial analysts) about OUR Walmart and/or the strikes.

(GC Exhs. 21(a), 54, 83, 2571–2; see also Tr. 5700.)

As with prior events, OUR Walmart made a concerted effort

to communicate with the media about the October 9–10 strikes

and demonstrations. Accordingly, OUR Walmart issued press

releases, sent out emails and tweets, and arranged opportunities

for strikers and community supporters to speak to the media and

other interested parties about the changes they sought at

Walmart. (Jt. Exhs. 104(c), 105–106, 109; GC Exh. 286–3, p. 2;

R. Exhs. 6, 67–68; Tr. 224–226, 2156–2163, 2177–2178.)

Walmart, meanwhile, also kept tabs on media reports, and made

a point of emphasizing to its associates and to the media that only

a small number of associates participated in the strikes and ac-

tions that OUR Walmart coordinated, and that Walmart store op-

erations were not impacted by the strikes and actions. (GC Exhs.

84–86; Tr. 5209.)

5. November 2012 – Black Friday strikes and demonstrations

Throughout November 2012, OUR Walmart continued with

its plan to hold additional actions and strikes at various Walmart

stores, including multiple actions and strikes that occurred on

Black Friday 2012, one of Walmart’s busiest shopping days. (R.

Exhs. 50, 70–76, 135, 233; Tr. 926, 2378, 2452–2457, 5229.)

OUR Walmart’s continuing efforts did not take Walmart by sur-

prise. To the contrary, Walmart was aware that more actions and

strikes were on the horizon because it continued to monitor OUR

Walmart’s activities (e.g., by sending market human resources

managers to visit “priority” stores,

receiving and responding to

calls to the labor relations hotline, and tracking OUR Walmart

announcements about upcoming events), and responded by mak-

ing contingency plans for forthcoming strikes and distributing

talking points for store managers to use when speaking to asso-

ciates about the strikes. (GC Exhs. 65–66, 68, 87–92, 94–96,

111–112, 117, 286–4; Jt. Exhs. 7(a)–(c); CP Exhs. 3, 10; Tr.

5191–5192, 5227–5228, 5294–5296.)

identified OUR Walmart supporters” and/or “have experienced OUR

Walmart/sizeable labor demonstrations.” Walmart defined “Priority

Two” stores as those for which Walmart has “received Labor Hotline

calls about associates contemplating walking out or likely to have asso-

ciates contemplating walking out (based on past involvement in labor

activity).” (GC Exh. 89, pp. 1–2.)

24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Associates who participated in November 2012 strikes gener-

ally turned in strike letters that stated as follows (or words to

similar effect):

Today, we, the Walmart associates whose signatures appear

below, are calling out.

We are not reporting to work today to protest Walmart’s at-

tempts 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 retalia-

tion against those Associates who have spoken out. These as-

sociates are members of OUR Walmart and they will not be

silenced. It is illegal for Walmart to attempt to silence and re-

taliate against them and unfair labor [practice charges] have

been filed with the National Labor Relations Board in protest.

(See, e.g., Jt. Exh. 94(a) (tab 28); see also Jt. Exhs. 94(a) (tabs

29–37, 39, 41–47, 49–51), 211, 309 (indicating that some asso-

ciates gave verbal notice to their manager that they would be go-

ing on strike); Tr. 2725–2726, 2756–2758.) The ensuing strikes

and actions took a variety of forms, including (separately, or in

combination with other strategies):

 Picketing or chanting with posterboard signs on a side-

walk or in the parking lot near a Walmart store en-

trance (with the number of picketers ranging from 5–

10 to well over 100 people) (R. Exhs. 3 (clips 5–7),

77(a)–(b), 140, 200–201, 293, 2110 VID2, 2125 Photo

1, 2125 VID1, 2204 VID1, 2452 VID1,

3782 VID1

(and R. ID6), 4383 VID2, 4383 VID3, 5129 VID1,

5129 VID2, 5404 VID1, 5417 VID1,

5434 VID1,

5437 VID1, 5647 VID1, 5781 CG1, 5781 VID1, 5781

VID2, 5891 VID1, ID8, ID9, ID11; Tr. 204–207,

2223–2224, 2579–2581, 6365–6373, 6427–6431,

6438, 6456–6460, 6487, 6517–6520);

 Holding a silent prayer vigil or other action (e.g.,

chanting, picketing and/or leafleting) outside of a

Walmart store, and then relocating to public property

to continue the action (GC Exh. 471–6; R. Exhs. 141,

242, 5402 VID1; Tr. 2725–2735, 3200–3203, 6542–

6547; see also Jt. Exh. 290(a)–(f) (showing demonstra-

tors leaving the sidewalk in front of Walmart store 471

and walking through the parking lot to exit Walmart’s

property); R. Exhs. 3397 VID1, 3397 MR1, 3397

MR2; Tr. 5584–5586, 5595–5604 (demonstrators con-

ducted their entire action on a public sidewalk and

street outside of Walmart store 3397);

 Having a delegation of OUR Walmart members and

community allies support associates when they go on

For the most part, customers remained free to enter and exit the

store notwithstanding the ongoing protest activities. However, at some

Walmart locations there were brief periods of time (from as little as a

couple of minutes to approximately 1 hour) where protesters caused con-

gestion at store entrances, store exits or parking lot lanes due to their

sheer numbers (e.g., by congregating in front of a store entrance/exit or

walking in a parking lot driving lane). During those times, customers on

foot generally could still move freely, but had to weave around the pro-

testers to reach their destination. Customers in cars occasionally had to

wait briefly for protesters to clear the driving pathway.

strike, return to work, and/or speak to store managers

about their reasons for protesting (with some delega-

tions entering the store to meet with managers, and

other delegations meeting with managers outside the

store) (R. Exhs. 77(c)–(d), 109, 149 (pp. 218–222),

150, 177, 2110 VID 1, 3455 Photo 1; Tr. 2556–2560)

and/or

 Entering the store to chant about OUR Walmart and its

goals (R. Exhs. 271, 1875 VID1, 1875 VID2, 2452

VID1, 2828 VID1, 2828 Photos 1–3, 4383 VID2, 4383

VID3, 4588 VID1, ID5, ID7, ID8.)

In total for Black Friday 2012, OUR Walmart, the UFCW and

community allies coordinated over 1,100 actions, and approxi-

mately 100 associates went on strike. As with previous OUR

Walmart actions and strikes, the UFCW provided staffing and

logistical support to facilitate the events, while Making Change

at Walmart assisted by notifying community supporters about

events and encouraging them to participate. (GC Exh. 471–6; Jt.

Exhs. 98, 112–114, 118; R. Exhs. 26–27, 45 (p. 189), 75, 104

(pp. 73–75, 85), 108, 117, 136, 138, 198, 235–239, 252–255; Tr.

953–956, 2202–2203, 2214–2215, 2226–2228, 2396–2399,

2836–2837, 3200, 5236.)

The associates who participated in the strikes leading up to

and on Black Friday 2012 generally maintained their strikes for

1 or 2 days before making unconditional offers to return to work

their next scheduled shifts. (Jt. Exh. 94(a) (tabs 26–27, 29, 31–

33, 35, 37–38, 40–54).) To offset the wages that strikers lost

while on strike, OUR Walmart provided strikers with a $50 gro-

cery gift card purchased with money raised by OUR Walmart

and the UFCW. (R. Exhs. 70, 242; Tr. 611, 998, 2182, 3141.)

During the strikes, Walmart addressed the absence of strikers

by assigning other associates in the store to cover the strikers’

work (with overtime provided as needed). (GC Exh. 471–6; Tr.

3194–3195, 3258.) In both its internal communications and its

communications with the media, Walmart maintained that its

Black Friday events were a success, and that OUR Walmart’s

Black Friday strikes and actions had little or no impact on

Walmart’s sales and operations. (GC Exhs. 39, 48, 50, 97(b), 99,

100, 118; see also GC Exh. 43(a) (David Tovar media interview,

at video times 0:37, 4:45 and 5:44, in which he predicted that the

Black Friday 2012 strikes would have no impact on Walmart’s

sales or business).)

G. November 2012 to January 2013—Walmart’s ULP

Charge against OUR Walmart

Around the time of OUR Walmart’s string of November

strikes, Walmart filed an unfair labor practice charge with the

I excluded the customer remarks on Respondent Exhibit 2452

VID1 as hearsay. (Tr. 6717–6720 (also noting that I would disregard

Section D of R. Exh. ID16 on hearsay grounds).)

In an action held in Louisville, Kentucky (coordinated by Team-

sters Local 89), demonstrators participated in a call-and-response chant,

stating: “Show me what a union looks like” (call); “This is what a union

looks like” (response). R. Exh. 5417 VID1; see also R. ID1 (noting that

discriminatee Aaron Lawson was present during this action).

WALMART STORES, INC. 25

Board to allege that the UFCW (through OUR Walmart) was en-

gaging in unlawful recognitional picketing because OUR

Walmart picketed for longer than 30 days without filing a repre-

sentation petition.

In January 2013, the UFCW (through OUR Walmart) reached

a settlement with the Board on Walmart’s unlawful recognitional

picketing charge. As part of that settlement, the UFCW agreed

to a sixty-day “cooling off” period during which it and OUR

Walmart would not engage in any picketing or demonstrations.

(GC Exhs. 102 (p. 1), 127(a) (p. 13); R. Exh. 294; see also Jt.

Exh. 1319 (video clip in which David Tovar describes, from 1:02

to 2:38 on the clip, Walmart’s rationale for asserting that the

UFCW was engaging in unlawful recognitional picketing).) The

UFCW and OUR Walmart also agreed to refrain from engaging

in any recognitional picketing without first having filed a valid

representation petition. (R. Exh. 294.) Consistent with that

agreement, OUR Walmart and Making Change at Walmart be-

gan including the following disclaimer in their literature:

“UFCW and OUR Walmart have the purpose of helping

Walmart employees as individuals or groups in their dealings

with Walmart over labor rights and standards in their efforts to

have Walmart publically commit to adhering to labor rights and

standards. UFCW and OUR Walmart have no intent to have

Walmart recognize or bargain with UFCW or OUR Walmart as

the representative of Walmart employees.” (See, e.g., Jt. Exh.

87; see also R. Exh. 294 (pp. 1–2).)

Notwithstanding the settlement, Walmart expected that OUR

Walmart and the UFCW would continue with their efforts to en-

gage with Walmart about its employment practices and policies.

(See, e.g., GC Exh. 101; Tr. 6607–6613; R. Exh. 270 (pp.

25880–25882); see also R. Exh. 142 (OUR Walmart email dis-

cussing early plans for associates to go on strike during

Walmart’s June 2013 shareholders’ meeting).)

H. February 2013—Walmart Warns Associates That it Will

Apply its Attendance Policy to Certain Types of Future Strikes

In February 2013, Walmart decided (after consulting with its

labor relations and legal teams) that the strikes that OUR

Walmart members held in October and November 2012, were

not protected by the National Labor Relations Act. Walmart also

decided that it would not discipline any associates for participat-

ing in those strikes, but would apply its attendance policy to any

future strikes. To communicate these decisions, Walmart had its

store managers contact each striker individually during one of

their shifts and read the following talking points verbatim:

1. Thanks for visiting with us _________ .

2. I need to talk with you about an attendance issue from this

past [October and/or November]. As you can see, I will be us-

ing my notes.

3. You may remember that the United Food and Commercial

Recognitional picketing includes picketing with the objective of

inducing an employer to recognize or bargain with a labor organization

as the representative of the employer’s workers. “Sec. 8(b)(7) [of the

National Labor Relations Act] proscribes recognitional picketing by a

union under any of the following conditions: where the employer has

lawfully recognized another union; where the picketing union has lost a

valid election in the preceding 12 months; and—subject to a proviso for

informational picketing—where the picketing has been conducted

Workers union and its subsidiary OUR Walmart orchestrated a

series of hit-and-run work stoppages last October and Novem-

ber.

4. As you know, you participated in ____ of those work stop-

pages on ____ .

5. It is [that/those] work stoppage[s] that I need to talk to you

about.

6. The Company believes that those union-orchestrated hit-

and-run work stoppages are not protected by federal labor law.

7. Given that, the Company would normally give you [an oc-

currence or ___ occurrences] under the attendance/punctuality

policy for the unprotected absence[s].

8. However, because of the numerous places and times that the

union orchestrated its intermittent work stoppages during Oc-

tober and November, it took the company several weeks to col-

lect all the information from [] across the country about the

work stoppages and several more weeks to analyze all the legal

issues involved in that activity.

9. All that adds up to about ____ weeks since your last inter-

mittent work stoppage.

10. And that creates a concern because the Company works

very hard to give associates timely feedback on time and at-

tendance issues that could affect their work record.

11. So in this case, the Company has decided that it will not

apply the attendance policy to your work absence(s) because of

the time it took to collect and analyze all this information from

across the country.

12. But it is very important for you to understand that the Com-

pany does not agree that these hit-and-run work stoppages are

protected, and now that it has done the legal thinking on the

subject, it will not excuse them in the future.

13. Should you participate in further union-orchestrated inter-

mittent work stoppages that are part of a common plan or de-

sign to disrupt and confuse the Company’s business operations,

you should expect that the Company will treat any such ab-

sence as it would any other unexcused absence.

14. Having said that, let me emphasize that the Company re-

spects your right to support a union and to engage in other pro-

tected, concerted activity. It also respects your right to not en-

gage in such activity.

15. But the Company does not believe that these union-orches-

trated hit-and-run work stoppages are protected activity.

16. Please remember that you can use the Open Door policy at

any time to address questions, concerns, and ideas. I cannot

guarantee you that you will get exactly what you want, but I

can guarantee that you will get a thoughtful, well-researched,

and timely response.

17. OK? Any questions?

(Jt. Exh. 6(a) (including instructions for reading the talking

without a representation petition being filed within a reasonable period

of time, not to exceed 30 days from the commencement of the picketing.”

Southwest Regional Council of Carpenters, 356 NLRB 21, 21 fn. 5

(2010); see also Local No. 3, International Brotherhood of Electrical

Workers, AFL–CIO, 325 NLRB 527, 527 fn. 1 (1998) (finding that the

union violated Section 8(b)(7)(C) by engaging in at least 30 days of in-

termittent picketing over a 12–month period without filing a petition for

an election within a reasonable time after commencing picketing).

26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

points, and responses that managers should give to certain ques-

tions that associates might ask after hearing the talking points);

see also Tr. 1219–1223, 1374–1375, 1491–1493, 1534–1536,

2762–2764, 2883–2884, 2907, 2937–2940, 2966–2967, 3109–

3111, 3143, 3214–3216, 3290–3294, 3299–3309, 3473–3478,

3521, 4133, 5242–5247, 5769–5772, 5775, 5825–5832, 6004–

6008, 6027, 6048–6050, 6591, 6613, 6623–6625; GC Exhs. 49,

57, 128 (regarding associates Jose Herrera, Darius Poston and

Carlton Smith, who are referenced in Jt. Exh. 1328 (par. I)), 471–

7, 5781–1; Jt. Exhs. 6(b), 144, 180, 193, 217, 307, 447, 975, 993,

1328 (par. I); R. Exh. 272 (pp. 1, 9, 12, 16, 22).)

I. Spring 2013—OUR Walmart Plans for the Ride for Respect

In April 2013, the 60–day “cooling off” period for OUR

Walmart and UFCW coordinated demonstrations ended. In that

same timeframe, Making Change at Walmart and OUR Walmart

coordinated a national day of action on April 24, 2013, for which

they called on OUR Walmart members and community support-

ers to visit their local stores to speak with Walmart managers,

leaflet customers, and speak to Walmart associates about sched-

uling issues and ensuring that workers receive enough hours to

make ends meet. (R. Exhs. 13, 45 (pp. 168–170); GC Exhs. 102,

127(a) (pp. 13, 18); Jt. Exh. 121; Tr. 937–938, 2257–2258.)

OUR Walmart also began refining its plans for future actions,

including a plan to transport OUR Walmart members by bus car-

avan to Bentonville for actions in late May 2013 that would co-

incide with Walmart’s annual shareholders’ meeting. (GC Exh.

102; R. Exhs. 157, 162, 256–257, 274, ID12; Tr. 269–272, 711,

2487–2490, 5248–5251; see also Tr. 2490 (noting that OUR

Walmart and Making Change at Walmart began planning the bus

caravan to Bentonville in early 2013).)

OUR Walmart’s plans for Walmart’s shareholders’ meeting

took a significant step forward in early May 2013, when Making

Change at Walmart paid for approximately 50 OUR Walmart

leaders and 12 UFCW staff to convene in Birmingham, Alabama

for a “national leadership bootcamp” from May 1–6, 2013.

the conclusion of the meeting, OUR Walmart announced that its

members “would caravan from across the country to Bentonville

to call on [Walmart] to raise wages and increase access to full

time hours so that no worker at Walmart makes less than $25,000

per year.”

OUR Walmart planned to conduct not only actions,

but also strikes lasting up to 1 week or longer as part of the

Walmart used a modified version of these talking points for asso-

ciates who used approved “replacement time” to participate in the Octo-

ber and November 2012 strikes. Walmart’s message about applying its

attendance policy to certain types of future strikes, however, remained

the same. (Jt. Exh. 307.)

Through publicly available social media sources, Walmart was

aware of which associates and UFCW staff participated in the Birming-

ham meeting. Walmart also developed a sense of which associates were

likely to participate in actions and/or strikes related to Walmart’s upcom-

ing shareholders’ meeting. (GC Exh. 24(f).)

In deciding to do the proposed bus caravan, OUR Walmart mem-

bers drew inspiration from the Freedom Rides that the Congress of Ra-

cial Equality (and subsequently, the Student Nonviolent Coordinating

Committee) organized in 1961 to protest racial segregation in interstate

bus and train stations during the civil rights movement. (See Jt. Exh. 88

(from 5:52–8:57 on the video clip), 120, 124; R. Exhs. 45 (pp. 170–171),

Bentonville caravan (with “strike pay” of $150 per week availa-

ble to strikers, paid from OUR Walmart funds). For associates

who would be going on strike, UFCW officials reiterated that

associates should describe their strike as a “ULP strike” to ensure

they had the additional legal protection that comes with being on

such a strike (as opposed to an economic strike). (Jt. Exhs. 87–

88; GC Exhs. 5(b), 24(f); R. Exhs. 45 (pp. 170–172, 176–177),

52, 82, 149 (pp. 183–184), 157, 274, 276 (at 7:55–9:05), 277 (at

0:00–0:20, 2:09–2:33 and 3:33–4:04), ID18, ID19; Tr. 88–91,

713, 879–885, 2252–2253, 2259–2264, 2357–2359, 2785–2786,

4823–4825, 4923–4924, 6054.)

J. May 28—June 10, 2013: The Ride for Respect

1. Coordination and planning

OUR Walmart named its caravan to Bentonville the “Ride for

Respect,” and after formally announcing the caravan, set about

making arrangements to pull the caravan together. First, OUR

Walmart organizers and associates took a variety of steps to as-

semble and prepare the team that would participate in the Ride

for Respect, including: circulating a strike pledge to identify as-

sociates who would be willing to go on strike and participate in

the caravan;

distributing talking points about the Ride for Re-

spect; developing media advisories about the Ride for Respect;

communicating guidelines to caravan participants about how

they should conduct themselves; and training OUR Walmart

leaders and UFCW staff to serve as “marshals” with the respon-

sibility of managing demonstrators at actions during the caravan

and serving as buffer between the demonstrators and individuals

they might encounter (e.g., Walmart personnel, police officers,

hecklers). (GC Exh. 8; Jt. Exh. 120; R. Exhs. 33, 83–88, 121,

167, 297; see also Tr. 238, 721 (noting that additional marshal

training occurred in Bentonville), 2526–2527.)

Second, OUR Walmart planned the itineraries for the buses in

the Ride for Respect. Specifically, OUR Walmart set forth seven

primary routes for the buses to travel to Bentonville (arriving on

or about June 1, 2013), with each route including prearranged

stops where the buses would pick up additional strikers and/or

join local community supporters for a meeting, rally or other ac-

tion. The seven routes were:

1. Richmond, CA → San Leandro, CA → Fremont, CA

→Palo Alto, CA → Atherton, CA → San Francisco, CA →

278 (at 0:28–0:38), 1985 VID1CM (at 0:25–0:40), 297; GC Exh. 8; Tr.

88–90, 884–885, 2785, 4824, 4838, 6050.)

The 1961 Freedom Rides are described in “Freedom Riders,” a docu-

mentary produced by PBS’ American Experience. (http://www.pbs.org/

wgbh/americanexperience/freedomriders/) Although the point is perhaps

obvious, I emphasize that I have included this information about the

Freedom Rides only to provide historical background, and not as any

evidence or commentary on the merits of the allegations in this case or

the merits of either side of the dispute between Walmart and OUR

Walmart.

The strike pledge stated: “I will not be intimidated by Walmart’s

threats and retaliation against Associates who speak out for better pay,

more hours and respect at work. I’m ready to put an end to Walmart’s

unfair labor practices. I refuse to work during the week of Walmart’s

shareholders meeting and instead will join hundreds of Associates across

the country in the Ride for Respect to Bentonville, Arkansas for

Walmart’s Annual Meeting.” (GC Exh. 8 (p. 2).)

WALMART STORES, INC. 27

Sacramento, CA → Denver, CO → Wichita, KS → Benton-

ville, AR

2. Pico Rivera, CA → La Quinta, CA → Phoenix, AZ → Al-

buquerque, NM → Clovis, NM → Bentonville, AR

3. Washington, DC → Atlanta, GA → Jackson, MS → Baton

Rouge, LA → Little Rock, AR → Conway, AR → Benton-

ville, AR

4. Miami, FL → Orlando, FL → Atlanta, GA (to join with the

Washington, DC caravan) → Jackson, MS → Baton Rouge,

LA → Little Rock, AR → Conway, AR → Bentonville, AR

5. Chicago, IL → Cincinnati, OH → Louisville, KY → St.

Louis, MO → Bentonville, AR

6. Dallas, TX → Bentonville, AR

7. Seattle, WA → Salt Lake City, UT → Denver, CO (to join

with the Richmond, CA caravan) → Wichita, KS → Benton-

ville, AR

(Jt. Exh. 124; see also R. Exhs. 118, 167, 243; Tr. 889, 2360

(noting that the UFCW paid for the transportation, meals and ho-

tel stays needed for the Ride for Respect).)

Meanwhile, Making Change at Walmart publicized the Ride

for Respect to UFCW locals and community supporters, and

called upon those groups to support the caravan and participate

in a “National Week of Action” by holding actions at Walmart

stores in their area during Walmart’s annual shareholders’ meet-

ing. (Jt. Exh. 100; R. Exhs. 25, 295.) As an example action,

Making Change at Walmart suggested that community support-

ers could spend 30 minutes at a local Walmart store, during

which time demonstrators could: distribute leaflets to Walmart

associates; ask customers to support OUR Walmart (and sign

cards to that effect); and have a delegation of demonstrators enter

the store, ask to meet with the store manager, and explain why

the demonstrators believe Walmart needs to change. (Jt. Exhs.

100–101, 123.) Making Change at Walmart also encouraged

UFCW locals to host events (such as meals, meetings and fund-

raisers) when caravan buses stopped in their communities. (Jt.

Exh. 124.)

Through a variety of sources, Walmart was aware by at least

mid-May 2013, that OUR Walmart was planning the Ride for

Respect. Accordingly, Walmart began making its own contin-

gency plans for the anticipated strikes and actions, including de-

veloping a list of associates who were likely to participate in the

Ride for Respect; preparing talking points for salaried managers

to present to associates about potential demonstrations that OUR

Walmart might stage at Walmart store locations; and instructing

Walmart personnel on how to prepare for potential demonstra-

tions and respond when encountering groups of protesters. (GC

Exhs. 24(a), 24(f) (pp. 58–59), 36, 58, 108 (pp. 3–5), 125; Tr.

1251–1252, 4620–4623.)

2. Late May 2013—strikes and caravans begin

Beginning on May 27, 2013, associates began notifying

As previously noted, the IVR system transfers associates to their

home store after providing the associate with a confirmation number for

their absence. Only a handful of the associates who called the IVR

Walmart that they were going on strike by: reading a strike script

to one of the managers at their store; delivering a strike letter to

Walmart; and/or calling the IVR system and indicating that they

would miss work (typically by selecting “other” in the automated

system as the reason for their absence, and obtaining a confirma-

tion number from the IVR system).

The strike letters generally

stated as follows (or words to similar effect):

Today, we, the Walmart associates whose signatures appear

below, are calling out.

We are not reporting to work 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 out.

It is illegal for Walmart to attempt to silence and retaliate

against them. Unfair Labor Practice[] Charges have been filed

with the National Labor Relations Board (the “NLRB”) for

Walmart’s violations of the National Labor Relations Act, 29

U.S.C. Sec. 151 (the “NLRA”). Today, we say no to

Walmart’s retaliation and attempts to silence members of OUR

Walmart who have spoken out for change. . . .

(Jt. Exhs. 94(a) (tabs 55–86, 88–100), 1327; see also GC Exh. 9

(strike script).) In many instances, the UFCW assisted associates

with their strike letters by faxing the letters to Walmart (either at

the home office or at the associate’s store). (See R. Exh. 240

(instructing UFCW personnel to make copies of strike letters in

case they were needed when associates returned from strike).)

While most strikers boarded buses to join the Ride for Re-

spect, a few strikers remained in their home areas to participate

in local actions and/or attend to personal matters. For the strikers

that did join in the caravan, their walkouts from their Walmart

stores were often events in and of themselves, since OUR

Walmart frequently sent delegations of associates and commu-

nity supporters to stores to support strikers when they walked

out. (R. Exhs. 110, 112, 119, 131 (pp. 130–133), 132, 165, 168,

183 (pp. 89–95), 184–185, 202–203, 244, 296, 298; Tr. 114–118,

452–454; see also R. Exhs. 119, 131 (pp. 130–133), 132, 183 (p.

92–94) (each indicating that OUR Walmart arranges store dele-

gations in part to create opportunities for media coverage).) The

store delegations generally involved associates and supporters:

 Assembling on the sidewalk in front of a Walmart

store and using a microphone or bullhorn to declare

that they are going on strike (followed by group chants

like “Whose Walmart, OUR Walmart!”) (R. Exhs.

112, 202, 2694 CG1, 2694 CG2, 2694 CG3, 5417 CG1

(p. 2, second photo); Tr. 6135–6138, 6144, 6298–

6300, 6307);

 Entering and walking around inside a Walmart store to

pick up strikers while (for certain protests) periodically

blowing an air horn and chanting (R. Exhs. 168–169;

Tr. 2535–2537; see also R. Exh. 168(a); Tr. 2530–

2531 (same, but with no chanting or air horn);

system during the Ride for Respect were able to speak to a salaried man-

ager (as opposed to the fitting room associate) after being transferred to

their home store.

28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

 Speaking to a manager inside the store to read a strike

letter and/or express concern about Walmart policies

and retaliation against associates (R. Exhs. 184, 202;

Tr. 2788–2789, 5607–5620, 6294–6295, 6305–6306);

 Speaking to associates inside the store about OUR

Walmart (Tr. 6136–6137, 6296–6297);

 Linking arms and walking silently through the store to

locate a manager, using a microphone to read a strike

letter to the manager, and then exiting the store and

chanting upon reaching the sidewalk in front of the

store (e.g., “We’re on strike, because we have rights!”)

(R. Exhs. 168(b), 185, 1805 VID1; Tr. 2523–2524,

4906–4907); and/or

 Reading a strike letter to a manager in the store parking

lot (after having been turned away from entering the

store by Walmart personnel and police officers citing

state trespass laws) (R. Exh. 203).

For each of these encounters, both Walmart personnel and OUR

Walmart strikers and supporters remained calm when interacting

with each other. Walmart managers did, on some occasions, ask

protesters to stop filming and/or leave the store. (See, e.g., R.

Exhs. 184, 185.)

Using a variety of resources (e.g., strike letters or reports from

Walmart stores), Walmart kept track of which associates partic-

ipated in the Ride for Respect, and also kept track of the routes

of the buses in the caravan until the buses arrived in Bentonville.

(GC Exhs. 24(c), 107, 2418–8, 2418–9(a)–(b), 3601–3; Tr.

5273–5274, 5801–5804.)

3. June 1–7, 2013: actions in Bentonville

After arriving in Bentonville, strikers, OUR Walmart mem-

bers and community supporters engaged in a variety of actions

to highlight and draw attention to their concerns about Walmart.

Those actions included:

 Meeting to prepare for the events that OUR Walmart

planned for the week in Bentonville (R. Exh. 45 (pp.

203–204).)

 Holding a silent protest on the sidewalk in front of out-

side of Walmart’s home office (with protesters wear-

ing tape with the words “on strike” over their mouths),

followed by a call-and-response “mic check” to state

that “Walmart’s attempts to silence [OUR Walmart

and its supporters] have failed,” as well as singing and

chanting (R. Exh. 3 (clip 8); Tr. 209–211);

 Canvassing local neighborhoods, businesses and

Walmart stores to speak about OUR Walmart and its

goals (R. Exh. 32; Tr. 984–985);

To attend Walmart’s shareholders’ meeting, associates either had

to own Walmart stock or be present as a proxy for another shareholder.

(Tr. 2293–2294, 4829.)

Making Change at Walmart and community supporters held local

actions in solidarity with the OUR Walmart strikers and supporters who

traveled to Bentonville. Most of the local actions focused on leafleting,

picketing and speaking to Walmart associates and customers about OUR

 Joining a protest concerning safety conditions in

Bangladeshi garment factories (Tr. 257–259);

 Traveling to Jim Walton’s home for a protest (R. Exh.

9; Tr. 126–127);

 Holding a “speak out” in front of Sam Walton’s origi-

nal 5–10 store (R. Exh. 10; Tr. 127, 344–345);

 Visiting Alice Walton’s Crystal Bridges Museum (R.

Exhs. 11, 45 (p. 205); Tr. 128, 3726);

 Attending Walmart’s shareholders’ meeting

on June

7, where OUR Walmart member Janet Sparks spoke to

the audience about Walmart associates and a proposal

that Walmart senior executives be required to hold on

to a large portion of their Walmart stock until retire-

ment (Jt. Exh. 125(a)–(b); R. Exh. 45 (pp. 179–180,

205–206); Tr. 2290–2292, 2813, 3760); and

 Conducting media interviews (Tr. 129–130, 260–261,

501.)

(See also Jt. Exh. 86 (pp. 9–13); GC Exh. 6(a); R. Exhs. 14, 32–

33; Tr. 121–130, 232–236, 341–342, 501–502, 2791–2792,

4755–4756, 4829.)

OUR Walmart posted on social media and

issued media advisories throughout the week to notify supporters

and the media about the various actions occurring in Bentonville.

(Jt. Exh. 122; R. Exhs. 87–88, 120; see also GC Exh. 123 (indi-

cating that Walmart kept track of media reports about Walmart’s

shareholders’ week, including media reports that mentioned

OUR Walmart’s events/actions.)

4. June 7–12, 2013: strikers return to work

From June 7–12, 2013, associates who went on strike during

the Ride for Respect returned home and notified their Walmart

store managers of their unconditional offers to return to work for

their next scheduled shifts.

Making Change at Walmart staff

and/or community supporters often accompanied associates

when the associates notified Walmart of their offers to return to

work. When interacting with management, most associates

turned in return to work letters that stated, in pertinent part:

This letter hereby constitutes our unconditional offers to return

to our jobs from our ULP strike beginning our next scheduled

shifts or if the schedule is not out yet, what would be our next

normal shifts. We were out on a ULP strike to protest

Walmart’s attempts to silence Associates who spoke out for

better wages, hours, and other working conditions, and

Walmart’s retaliation against those who did speak out, and to

support the ULP Charges that have been filed on their behalf.

Walmart’s actions are Unfair Labor Practices under the NLRA.

. . . We look forward to returning to work at the start of our

next shifts.

Walmart (both inside and outside of Walmart stores). (See Jt. Exh. 123;

R. Exhs. 241, 258, 271, 1893 VID1, 1893 VID2, 1893 VID3, 1893 VID4,

5647 Photo 2, 5647 VID2; Tr. 2790, 2957–2959, 6461–6470, 6491–

6492.)

Associates who traveled to Bentonville from distant locations gen-

erally returned home by airplane using tickets paid for by the UFCW.

(Tr. 131–132, 341, 1002, 2360.)

WALMART STORES, INC. 29

(Jt. Exh. 94(a) (tabs 55–57, 63, 65–68, 70, 72–79, 81–82, 84–87,

89, 91–105); R. Exh. 299; Tr. 2277–2278; see also Jt. Exh. 94(a)

(tab 62: return to work letter dated May 28, 2013).)

OUR Walmart, with the UFCW’s assistance, made strike pay

and/or gift cards available to associates who went on strike. (R.

Exhs. 82, 216, 245; Tr. 2960.)

Overall, approximately 100–130 associates and 36 Making

Change at Walmart staff members participated in the Ride for

Respect and related actions/strikes. (GC Exh. 109; Tr. 119–120,

888, 2359–2360, 5278; see also Jt. Exh. 94(a) (tabs 55–105).)

The impact on Walmart’s store operations generally involved

having to reassign associates within the store to cover the work

of associates who were on strike (and the effects that such reas-

signments had on customer service).

(GC Exh. 2609–3; see

also Tr. 5282 (acknowledging that no Walmart store was forced

to close because it could not operate without associates who were

on strike during the Ride for Respect), 5933–5934, 6213–6218,

6281–6282, 6326–6328, 6330–6332.)

K. Walmart Disciplines Associates for Missing Shifts

While on Strike

1. Early June 2013—Walmart’s initial response to

returning strikers

Walmart did not replace any associates (e.g., by filling their

positions with new hires) while they were away on strike, and

the strikers generally returned to work for their next scheduled

shifts in early/mid–June without incident. Indeed, Walmart

made a point of allowing strikers to return to work as scheduled

and instructed its managers to answer “I don’t know” if a return-

ing striker asked if he or she would face discipline. (GC Exhs.

2609–2, 2609–3; R. Exh. 216.)

2. Late June 2013—Walmart applies its discipline policy to

strike-related absences

After considering the matter, on or about June 21, 2013,

Walmart decided that it would apply its discipline policy to as-

sociates who went on strike and missed shifts during the Ride for

Respect. (See, e.g., GC Exh. 51; see also GC Exhs. 109 (noting,

on June 12, 2013, that Walmart’s labor relations, human re-

sources and operations teams were “partnering with store man-

agement to determine appropriate disciplinary action, where ap-

plicable”), 110; Tr. 5279–5280, 6623, 6626–6627.)

If Walmart determined that an associate did not provide any

notice that they would be absent (e.g., by submitting a strike let-

ter or calling in to the IVR system), then Walmart generally

treated each missed shift as a “no call/no show,” and terminated

any associate with three or more no call/no shows.

Walmart

managers communicated this information to associates with the

following talking points:

1. Thanks for coming back.

In a few stores, Walmart had to close one or two departments for

certain shifts because it did not have associates available who were

trained to handle those departments in place of the associates who were

on strike (e.g., the photo department, which requires training to operate

the photo developing machines). (See, e.g., Tr. 5355–5357.)

Under Walmart’s attendance policy, associates with one no call/no

show receive a two-level coaching that adds on to the associate’s existing

2. I need to take a few minutes to talk to you about your at-

tendance.

3. I am going to be using my notes so that I cover this infor-

mation with you accurately:

a. Since [date of first missed shift], you missed [num-

ber] scheduled shifts without reporting your absences in ad-

vance or at all to management as required by the time and

attendance policy.

b. As a result, the Company considers your failure to

report your absences to management as a no call/no show.

c. Based on the number of your absences, you will re-

ceive a [level of discipline] for your no call/no show.

d. I have filled out the coaching form here, and want to

give you a chance to review it and ask any questions. . . .

(Jt. Exh. 93 (pp. 1–2); see also Jt. Exh. 89; Tr. 1210–1211, 1215.)

By contrast, if Walmart determined that an associate did pro-

vide notice that they would be absent during the Ride for Respect

(e.g., by submitting a strike letter, speaking to a manager, or call-

ing the IVR system), then Walmart treated the missed shifts as

occurrences, and administered a personal discussion or coaching

under Walmart’s attendance policy. Walmart managers commu-

nicated this information to associates with the following talking

points:

1. Thanks for coming back.

2. I need to take a few minutes to talk to you about your at-

tendance.

3. I am going to be using my notes so that I cover this infor-

mation with you accurately:

a. Since [date of first missed shift], you have missed

[number] scheduled shifts.

b. As a result, the Company has counted your ab-

sence(s) as [number of occurrences] under the attendance

policy.

c. Based on your prior attendance and punctuality oc-

currences and your current coaching, you will receive [level

of coaching] for your time and attendance issues.

d. I have filled out the coaching form here, and want to

give you a chance to review it and ask any questions. . . .

(Jt. Exh. 93 (pp. 1, 4); see also Jt. Exh. 89; Tr. 1210–1211, 1215.)

Walmart provided managers with a list of “frequently asked

questions” that associates might pose in disciplinary meetings,

coupled with the responses that managers should give in re-

sponse to those questions. Notably, if an associate asserted that

their strike was protected by law, Walmart managers were

level of discipline, and associates with two no call/no shows receive a

three-level coaching. Thus, for example, if an associate had an active

first written coaching, and then had a no call/no show, Walmart would

issue that associate a third written coaching. (Findings of Fact (FOF),

Sec. II(A)(6), supra.)

30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

instructed to respond: “I can’t comment on anything that would

happen in the future; just that we don’t believe labor law protects

what happened during the period covered by this [coaching/ter-

mination].” (Jt. Exh. 93 (pp. 3, 5).)

Ultimately, in or about late June 2013, Walmart took the fol-

lowing action with the associates that are now claimants in this

case:

Personal discussion: Aubrietia Edick; Barbara Gertz; Char-

maine Givens-Thomas; Linda Haluska; Vanzell Johnson; John

Juanitas; Aaron Lawson;

Patricia Locks; Cynthia Murray;

Cheryl Plowe; Anna Pritchett; Vivian Sherman; Betty Shove;

Lawrence Slowey; Esmeralda (Mandy) Uvalle; Ronnie Van-

dell; Trina Vetato;

Debra Williams;

Coaching: Michael Ahles; Rose Campbell; Andrea Carr; Da-

vid Coulombe; Evelin Cruz; Matthew Gauer; Sara Gilbert; Ce-

cilia Gurule; Colby Harris;

Margaret Hooten; Marie Kanger-

Born; Victoria Martinez;

Shawnadia Mixon; Michael McKe-

own; Liai Pefua; Patricia Scott; Cody Shimmel; Jeanna Slate-

Creach;

John Smith; Amy Stinnett; Mariah Williams;

Termination (for three or more no call/no shows or because the

associate had an active third written coaching): Javon Adams;

Marc Bowers;

Raymond Bravo; Yvette Brown; Barbara Col-

lins; Christopher Collins; Pamela Davis; Norma Dobyns; Bran-

don Garrett; Jovani Gomez; Pooshan Kapil; Marie Roberty;

Dominic Ware; Tavarus Yates; and

Other (the parties dispute the nature of the action taken): Louis

Callahan; Shana Stonehouse.

(GC Exhs. 1(bb), (ff); see also GC Exh. 1(ff) (noting Walmart’s

position that personal discussions are nondisciplinary).) Upon

request, OUR Walmart (with the UFCW’s fundraising help) pro-

vided temporary hardship funds to eligible associates who were

discharged based on absences they incurred while on strike dur-

ing the Ride for Respect. (Tr. 155, 279, 571–572, 2253–2254,

2809–2810, 2956–2957, 3063–3064, 3145–3146, 3996, 3998–

3999, 4400–4401, 4450, 4767, 5559–5560.)

L. Summer/Fall 2013: OUR Walmart Continues its Efforts

1. August 2013—Summer for Respect

During the summer of 2013, Making Change at Walmart co-

ordinated the “Summer for Respect,” which called for “a deeply

committed group of labor, student and community supporters

[to] spend the summer building local OUR Walmart and Making

Change at Walmart (MCAW) support teams across the country.”

(R. Exh. 53; see also R. Exh. 157 (p. 3).) Making Change at

Walmart and OUR Walmart also organized a civil disobedience

action that was held on August 22, 2013, in Washington, D.C.

(R. Exh. 45 (pp. 180–182).)

Walmart later issued Lawson a coaching that relied in part on the

absences covered by the personal discussion.

Walmart later issued Vetato a coaching that relied in part on the

absences covered by the personal discussion.

Walmart also issued Harris a second written coaching for absences

that occurred during a strike from May 6–9, 2013, and terminated Harris

in September 2013, based in part on coachings that resulted from strike-

related absences.

2. November 2013—Black Friday actions and strikes

In November 2013, OUR Walmart and Making Change at

Walmart coordinated another round of actions and strikes at

Walmart stores for Black Friday (an idea that developed imme-

diately after the Black Friday 2012 strikes). Regarding strikes,

OUR Walmart used strike pledges and “strike raps” (talking

points to encourage associates to join the strike) to identify asso-

ciates who would go on strike in the days leading up to, and on,

Black Friday (November 29, 2013). (Jt. Exhs. 131–132; R.

Exhs. 94, 104 (pp. 182–183), 128, 134, 147, 171 (p. 2), 173, 247,

5437 Photo 2; Tr. 2307–2309, 2334–2335.) As for actions, OUR

Walmart and Making Change at Walmart encouraged commu-

nity supporters to select a Walmart store and devote time (usu-

ally one hour, including preparation time) to: send a delegation

of protesters inside the store to speak to a Walmart manager

about their concerns (and support associates if they were going

on strike during the action); distribute leaflets; and/or protest out-

side the store with signs and chanting. To build up interest over

a period of time, and to address associate concerns about the

challenges of having events on Black Friday, OUR Walmart and

Making Change at Walmart scheduled actions and strikes to oc-

cur on various days leading up to Black Friday (instead of sched-

uling all of the actions to occur on Black Friday itself). (Jt. Exhs.

129(a)–(b); R. Exhs. 89, 91–93, 114, 172, 205, 300, 302; Tr.

2295–2299, 2305–2306, 2310–2312.) Making Change at

Walmart also envisioned having community supporters engage

in civil disobedience in selected cities throughout the month of

November. (R. Exhs. 93, 95, 97; Tr. 2332–2333.)

From November 6–28, 2013, Walmart associates in various

stores turned in strike letters and went on strike, typically for one

or two days. The strike letters generally conveyed the following

message, in pertinent part:

Today, we, the Associates whose signatures appear below, are

calling out. We are not reporting to work 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 retalia-

tion against those Associates who have spoken out. These As-

sociates are members of OUR Walmart and they will not be

silenced.

It is illegal for Walmart to attempt to silence and retaliate

against them. Unfair Labor Practice[] Charges have been filed

with the National Labor Relations Board (the “NLRB”) for

Walmart’s violations of the National Labor Relations Act, 29

U.S.C. Sec. 151 (the “NLRA”). Today, we say no to

Walmart’s retaliation and attempts to silence members of OUR

Walmart who have spoken out for change. . . .

(Jt. Exhs. 94(a) (tabs 106–128, 130–132, 134–136), 1322; see

Walmart also had Martinez sign a personal discussion for absences

that occurred during strikes on November 20 and November 23, 2012.

Walmart terminated Slate-Creach in August 2013, based in part on

a coaching that resulted from strike-related absences.

Walmart also issued Bowers a third written coaching for absences

that occurred during a strike from May 6–9, 2013.

OUR Walmart did not hold any actions or strikes during Walmart’s

financial analysts’ week in October 2013. (R. Exh. 45 (pp. 156–157).)

WALMART STORES, INC. 31

also R. Exhs. 246 (pp. 1, 3–4, 8), 280–283 (discussing plans for

strikes in Maryland, and noting that the strikers would miss one

shift and could join the strike by telling their manager they were

going on a ULP strike); 284 (showing an associate calling the

IVR system and signing a strike letter), 5228 VID2 (showing as-

sociates receiving instructions on how to turn in their strike let-

ters), ID23, ID24.)

As with previous events, strikers focused on expressing con-

cern about alleged bullying, threats and retaliation by Walmart,

while other participants communicated economic messages,

with a particular focus on the wages that Walmart pays its asso-

ciates. (See, e.g., R. Exh. 94 (asserting that most Walmart asso-

ciates earn less than $25,000 per year); R. Exh. 3086 VID1

(showing protesters holding signs stating “Walmart wages hurt

America”); R. Exh. 301; Tr. 2306–2307, 2324, 4918–4919; see

also R. Exh. 285 (at 1:04, UFCW organizer reminds a striker to

tell a reporter that one of the reasons the associate is going on

strike is to protest retaliation by Walmart), ID25.) The strikes

and actions included the following activities (among others):

 Picketing, chanting and leafleting inside and/or out-

side of Walmart stores, as an independent action or to

support strikers when they walked off the job (R. Exhs.

115, 172, 271, 896 VID1, 1118 VID1, 1118 VID2,

2110 VID3, 2571 VID5, 2571 VID6, 2571 VID7, 2609

VID1, 2667 VID1, 2683 VID1, 3749 Photo 1, 3749

Photo 2, 5129 VID3, 5228 VID1, 5228 VID2, 5228

Photo 1, 5228 Photo 2, 5437 Photo 1, 5437 VID2,

5645 VID1, 5781 Photos 1–4, 5939 VID1, ID10,

ID24; Tr. 6338–6343, 6413–6418, 6504–6505, 6514–

6515);

 Holding food drives for Walmart associates (R. Exhs.

115, 5939 VID1);

 Engaging in civil disobedience, such as blocking cer-

tain streets and car traffic near a Walmart store until

arrested by law enforcement (R. Exhs. 95, 98, 159 (p.

2), 1118 VID2, 5645 VID1, 5939 Photo 1, ID10; Tr.

2336, 2339, 4916, 6505); and/or

 Having entertainers present (e.g., break dancers, musi-

cians) to energize protesters (R. Exh. 2110 VID 3,

3086 VID1)

Most associates who went on strike leading up to Black Friday

2013, submitted “return to work” letters one to three days after

they went on strike (with some even submitting return to work

letters on the same day as their strike). The return to work letters

generally stated as follows:

This letter hereby constitutes our unconditional offers to return

to our jobs from our ULP Strike beginning our next scheduled

shifts or if the schedule is not out yet, what would be our next

normal shifts. We were out on a ULP strike to protest

Walmart’s attempts to silence Associates who spoke out for

better wages, hours, and other working conditions, and

As with prior demonstrations, for the most part Walmart customers

remained free to enter and exit the store during protest activities. There

were brief periods of time (up to 45 minutes), however, during which

Walmart’s retaliation against those who did speak out, and to

support the ULP Charges that have been filed on their behalf.

Walmart’s actions are Unfair Labor Practices under the NLRA.

. . . We look forward to returning to work at the start of our

next shifts.

(Jt. Exh. 94(a) (tabs 106–109, 114, 118–121, 123–129, 133–

136).) Overall, OUR Walmart, Making Change at Walmart and

community supporters’ organized nearly 1,500 actions at

Walmart stores leading up to Black Friday 2013. (R. Exh. 159.)

3. Future strikes and actions

The UFCW and OUR Walmart have stipulated that they “in-

tend to continue planning and assisting Walmart workers in strik-

ing in a manner consistent with the strikes that the UFCW and

OUR Walmart helped plan and assist Walmart workers hold in

October and November 2012, June 2013, and November 2013.”

(Jt. Exh. 1; see also R. Exh. 5485 VID1 CG(a)–(b) (UFCW con-

vention speeches in August 2013, in which the UFCW promised

to continue supporting OUR Walmart); R. Exh. ID2 (November

2012 news article including quotes from OUR Walmart leader

Elaine Rozier and UFCW official Dan Schlademan indicating

that protests and strikes would continue until Walmart gave pro-

testers what they wanted).)

DISCUSSION AND ANALYSIS

The allegations in this case fall into two categories. First, the

General Counsel alleges that Walmart violated Section 8(a)(1)

by making a handful of statements in 2012 and 2013 that have a

reasonable tendency to chill associates in the exercise of their

Section 7 rights. I address those allegations in Section I, below.

Second, the General Counsel alleges that Walmart violated

Section 8(a)(1) by disciplining or discharging associates for

missing work time while on strike, primarily in connection with

the Ride for Respect in late May and early June 2013. I discuss

the legal issues related to those allegations and Walmart’s de-

fenses in Section II; provide additional findings of fact for indi-

vidual associates in Section III; and address the merits of each

discipline and discharge allegation in Section IV.

I. ANALYSIS OF ALLEGED UNLAWFUL STATEMENTS

A. November 2012 Warnings to Associates that Their Strike

Activity was “Under Review”

1. Additional findings of fact

On November 16, 2012, Willie Bell, Mark Bowers, Colby

Harris, Joeray Peoples and other associates at Walmart store 471

in Lancaster, Texas participated in a 1-day strike/protest. At the

beginning of the protest, Walmart requested that the protesters

leave Walmart’s property. The protesters (with the support of a

UFCW organizer) agreed to do so, but only after they conducted

a prayer vigil near the front of the store. After the prayer vigil,

associates picketed and chanted outside the store, and then

moved to a “grassy area” near Walmart’s property where they

continued picketing and chanting. The protest activities lasted

approximately one hour (with the prayer vigil lasting for

protesters caused congestion (by virtue of their sheer numbers) at partic-

ular store entrances, store exits or parking lot lanes. (See, e.g., R. Exh.

5437 VID2 (showing protester congestion in parking lot driving lane).)

32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

approximately 5 minutes of that time). (Tr. 2725–2733, 3094–

3101, 3193–3194, 3200–3203, 3255–3257; Jt. Exhs. 173,

290(a)–(f) (showing protesters walking away from the store and

through the parking lot towards the grassy area); R. Exh. 242;

see also FOF, Section II(F)(5); GC Exh. 471–6 (noting that Bow-

ers was not scheduled to work on November 16); Tr. 3266–3267

(same).)

At the direction of Walmart home office official Jaime Du-

rand, on November 17–19, 2012, shift manager LaJuan Stewart

met separately with associates Bell, Bowers, Harris and Peoples

in her office. During those brief meetings, Stewart advised Bell,

Bowers, Harris and Peoples that their conduct on November 16

was “under review.” The associates subsequently resumed work

without incident. (Tr. 2737–2739, 3101–3103, 3204, 3268–

3273; see also Tr. 3103 (noting that Walmart ultimately did not

discipline the associates based on their conduct at the November

16 strike/protest); FOF, Section II(H) (same).)

2. Complaint allegation and applicable legal standard

The General Counsel alleges that Walmart violated Section

8(a)(1) of the Act when, from November 17–19, 2012, Walmart

threatened and coerced associates at store 471 by telling them

that their strike and picketing activities were under review. (GC

Exh. 1(bb), par. 4(A)(1)–(3).)

Under Section 7 of the Act, employees have the right to en-

gage in concerted activities for their mutual aid or protection.

Section 8(a)(1) of the Act makes it unlawful for an employer (via

statements, conduct, or adverse employment action such as dis-

cipline or discharge) to interfere with, restrain, or coerce employ-

ees in the exercise of the rights guaranteed in Section 7. The test

for evaluating whether an employer’s conduct or statements vi-

olate Section 8(a)(1) of the Act is whether the statements or con-

duct have a reasonable tendency to interfere with, restrain or co-

erce union or protected activities. Farm Fresh Company, Target

One, LLC, 361 NLRB 848, 861 (2014) (noting that the em-

ployer’s subjective motive for its action is irrelevant); Yoshi’s

Japanese Restaurant & Jazz House, 330 NLRB 1339, 1339 fn.

3 (2000).

3. Analysis

The Board has recognized that employers have a legitimate

business interest in investigating facially valid complaints of em-

ployee misconduct. See Fresenius USA Mfg., Inc., 362 NLRB

1065, 1065 (2015) (discussing an investigation of alleged em-

ployee harassment); Bridgestone Firestone South Carolina, 350

NLRB 526, 528 (2007) (interrogation of employee was lawful

where it occurred as part of a legitimate investigation into

whether the employee engaged in misconduct); Consolidated

Diesel Co., 332 NLRB 1019, 1020 (2000) (noting that the em-

ployer’s initial investigation of harassment charges was permis-

sible). That basic premise is understandable, since the alleged

employee misconduct may not implicate the employee’s Section

7 rights. Moreover, even if the alleged misconduct does relate

Having ruled that Walmart did not violate the Act because Stew-

art’s statement to associates did not have a reasonable tendency to inter-

fere with, restrain or coerce associates in their union or protected activi-

ties, I need not address Walmart’s alternative argument that Stewart’s

statement was permissible because it related to certain picketing activity

to the accused employee’s Section 7 rights, Board law estab-

lishes that an employer nonetheless may discipline or discharge

an employee if the employee engages in conduct that could have

qualified as protected activity but involved misconduct that was

sufficiently egregious to remove the employee’s activities from

the Act’s protection. See Stanford Hotel, 344 NLRB 558 (2005)

(citing Atlantic Steel Co., 245 NLRB 814, 816 (1979)). In light

of those possibilities, it makes sense to afford employers some

leeway to conduct an initial investigation and make an informed

decision about whether the employee’s alleged misconduct war-

rants disciplinary or other action, taking into account the em-

ployee’s right to engage in Section 7 activity and other factors.

On the other hand, the employer’s right to investigate is not un-

limited. Where it is apparent from an initial investigation that

the employee engaged in activity that is protected by the Act, the

employer may not disregard that fact and forge ahead with the

investigation as a precursor to possible discipline. See Consoli-

dated Diesel Co., 350 NLRB at 1020 (finding that an employer’s

initial investigation of alleged employee misconduct while dis-

tributing union literature was permissible, but once that initial

investigation showed that the alleged misconduct was protected

by the Act, it was unlawful for the employer to continue the in-

vestigation before a committee that had the power to impose dis-

cipline).

Based on the guidance drawn from the Board’s case law, I find

that Walmart did not violate the Act when it informed Bell, Bow-

ers, Harris and Peoples that their November 2012 strike and pick-

eting activities were “under review.” Although there is no evi-

dence that Walmart began its review in response to a specific

complaint that the associates engaged in misconduct while on

strike, the November 16, 2012 strike was one of the first strikes

that Walmart encountered, and involved a brief disagreement

about whether the protesters could engage in their activities on

Walmart’s property. Given the unfamiliar circumstances, it was

reasonable for Walmart to make an initial assessment of how it

should respond to the associates’ activities, and Walmart did not

violate the Act by notifying the associates that it was conducting

such an assessment. Furthermore, Walmart did not suggest in

any way that its review would lead to adverse consequences for

the associates. Instead, Walmart simply notified associates of

the review. I do not find that Walmart’s decision to notify asso-

ciates of its review was the type of statement that had a reasona-

ble tendency to interfere with, restrain or coerce associates in

their union or protected activities. Accordingly, I recommend

that the allegations in paragraph 4(A)(1)–(3) of the complaint be

dismissed.

that is not protected by the Act. See Walmart Posttrial Br. at 142–148

(asserting that Stewart’s statement referred to unprotected picketing that

blocked access to Walmart’s facility and/or was confrontational and oc-

curred on Walmart’s private property).

WALMART STORES, INC. 33

B. November 2012 Media Broadcasts of Excerpts from Inter-

views of Walmart Official

1. Additional findings of fact

a. The NBC interview and news segment

On November 16, 2012, Walmart vice president of media re-

lations David Tovar conducted an interview with a representa-

tive of the NBC

television network. During that interview, To-

var made the following statements about Black Friday and how

Walmart might respond to Black Friday strikes (the interview

questions are not available because the video recording does not

include the interviewer’s voice):

[W]e think our workers are getting some really bad advice from

the unions because while they do have rights and we respect

those rights, you know, there are some actions that we will take

if people don’t follow our company policies. Just like if you

didn’t show up for work one day, I think your bosses would

want to have a conversation with you about why. Now, of

course, if you have an excused absence, if you’re sick or some-

thing like that, of course we understand that. But that’s not

what’s going on here.

. . .

We want to listen to them and we want to hear whatever their

concerns are, but, you know, not with a union representative

there. They’ve been to our home offices. We want to sit down

with them and listen to them but they don’t want to do that.

You know, every circumstance is going to be different on

Black Friday and we’re going to take those on a case-by-case

basis.

(Jt. Exh. 1318(a)–(b); see also Tr. 5108.)

On November 20, 2012, NBC broadcast its news segment

about Walmart and the Black Friday 2012 strikes and protests.

As part of the NBC news segment, NBC broadcast the following

excerpt from Tovar’s NBC interview:

[W]e think our workers are getting some really bad advice from

the unions because while they do have rights and we respect

those rights, you know, there are some actions that we will take

if people don’t follow our company policies.

(GC Exh. 44 (beginning at the 1:31 minute mark of the video).)

Associate Colby Harris saw the NBC news segment that in-

cluded Tovar’s excerpted statement, both when it originally aired

and when the clip went “viral” on Facebook. (Tr. 2746–2747.)

There is no evidence that Walmart had any control over how

NBC excerpted or used Tovar’s original interview.

b. The CBS interview and news segment

On November 19, 2012, Tovar conducted an interview with a

representative of the CBS television network. In that interview,

Tovar made the following statements about Black Friday and

how Walmart might respond to Black Friday strikes (once again,

the interview questions are not available because the video re-

cording does not include the interviewer’s voice):

Tovar actually conducted his interview with CNBC, but NBC

broadcast the news segment. For the sake of clarity, I use the term

“NBC” to refer to both CNBC and NBC.

[T]his is a big week for retailers and you know some have said

it’s called the Super Bowl of retail. We’re really excited about

Black Friday. We’re going to have a great event in our stores.

And we’re ready to serve our customers.

. . .

Yeah, I think this is just another union publicity stunt and the

numbers that they’re talking about are grossly exaggerated.

We think that the super majority of our 1.3 million associates

in the United States are going to be working on Black Friday

and they are excited to serve our customers. We don’t expect

any impact whatsoever from any of these union tactics.

. . .

[W]e have strict policies that prohibit retaliation in any way and

if any associates have any concerns about things like that, we

want to hear about them so we can look into them and take ap-

propriate action. But look, if associates are scheduled to work

on Black Friday, we expect them to show up and to do their

job. And if they don’t, depending on the circumstances, there

could be consequences.

. . .

It’s going to depend on each individual circumstance like I said.

We don’t think anything is going to impact our Black Friday

sales or anything like that. We’re prepared to have the best

Black Friday we’ve ever had. We think there may be a few

stores where there may be some actions orchestrated by the un-

ions and at those stores we’ll take those on a case-by-case basis

and handle them depending on the actions.

(Jt. Exh. 1319(a)–(b); see also Tr. 5108.)

On November 19, CBS broadcast a news segment about

Walmart and the Black Friday 2012 strikes and protests. As part

of its new segment, CBS broadcast the following excerpt from

Tovar’s CBS interview:

I think this is just another union publicity stunt and the numbers

that they’re talking about are grossly exaggerated.

. . .

[I]f associates are scheduled to work on Black Friday, we ex-

pect them to show up and to do their job. And if they don’t,

depending on the circumstances, there could be consequences.

(GC Exh. 43 (beginning at the 1:30 minute mark of the video).)

Associate Dan Hindman and five coworkers saw the CBS news

segment when (or the day after) the segment aired, and associate

Colby Harris saw the CBS news segment when it was posted on

Facebook shortly after the original broadcast. (Tr. 2746–2747,

5027–5029.)

2. Complaint allegation and applicable legal standard

The General Counsel alleges that Walmart violated Section

8(a)(1) of the Act by, on November 19 and 20, 2012, threatening

associates (through Tovar’s televised remarks) with unspecified

reprisals if they engaged in concerted activities and/or engaged

34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

in activities for mutual aid and protection. (GC Exh. 1(bb), par.

4(B)(1)–(2).)

An employer violates Section 8(a)(1) if it communicates to

employees that they will jeopardize their job security, wages or

other working conditions if they support the union. That princi-

ple holds true even if the employer does not specify the specific

nature of the reprisal—the mere threat of an unspecified reprisal

is sufficient to support a finding that the employer has violated

Section 8(a)(1). Farm Fresh Company, Target One, LLC, 361

NLRB 848, 865 (2014).

3. Analysis

In prior decisions, the Board has indicated that an employer or

union violates the Act if it makes threatening or coercive state-

ments that are publicized by the media, particularly if the speaker

had reason to know that the statements would be reported and

that employees would hear (or read) the statements. Graphic

Arts International Union, Local 32B, 250 NLRB 850, 861 (1980)

(finding that the union violated Section 8(b)(1)(A) of the Act by

making statements to the media that threatened former union

members with fines if they crossed picket lines or returned to

work during a strike), overruled in part on other grounds, Typo-

graphical Union, 270 NLRB 1386, 1386–1387 (1984); TRW-

United, Greenfield Division, 245 NLRB 1135, 1135 fn. 1, 1145

(1979) (finding that the employer’s statement, made in a televi-

sion interview that employees heard on the night before a repre-

sentation election, was coercive and objectionable because the

statement gave the false impression that the union was responsi-

ble for two plant closings); see also Monroe Auto Equipment Co.,

159 NLRB 613, 614 (1966) (finding that an employer’s press

release that was read by a local radio station did not violate the

Act because the press release “was in the permissible area of fair

comment”), enfd. 392 F.2d 559 (5th Cir. 1968), cert. denied, 393

US 934 (1968).

In this case, there is no dispute that Walmart, through Tovar,

made the statements that NBC and CBS included in their news

segments. There is also no dispute that Walmart associates heard

the portions of Tovar’s remarks in the news segments. Walmart

maintains, however, that by publishing only excerpts of Tovar’s

remarks, NBC and CBS omitted important context that has some

bearing on whether Tovar’s complete remarks had a reasonable

tendency to deter associates from engaging in protected activity.

I find that Walmart’s argument on this issue has merit con-

cerning both the NBC and CBS news segments. In his extended

remarks to both NBC and CBS, Tovar explained that associates

could face consequences for missing work but emphasized that

Walmart would evaluate those issues on a case-by-case basis and

In this connection, I note that when viewed from an objective stand-

ard, Tovar’s complete remarks to NBC and CBS (which, based on the

evidentiary record, were not communicated to associates) do not violate

Sec. 8(a)(1) of the Act. Since Tovar’s complete remarks make it clear

that Walmart planned to evaluate any strike-related absences on a case-

by-case basis based on the attendant circumstances, his complete re-

marks do not have a reasonable tendency to deter associates from engag-

ing in protected activity. Cf. Pennsylvania American Water Co., 362

NLRB 123 (2015), adopting 359 NLRB 1286, 1297 (2013) (employer

did not violate the Act when it warned employees that if they “repeatedly

refuse to cross picket lines manned by Local 537 members, such refusal

may constitute an intermittent work stoppage”).

based on the relevant circumstances. Further, in his CBS inter-

view, Tovar added that Walmart does not tolerate retaliation

against associates who engage in protected activity. Because the

NBC and CBS news segments omitted those portions of Tovar’s

remarks, the news segments gave a potentially misleading im-

pression of how Walmart planned to respond to the anticipated

Black Friday strikes. Therefore, this is not a case where the news

reports fully conveyed the meaning and context of Tovar’s re-

marks.

And, since Walmart did not exercise any control over

which portions of Tovar’s remarks that NBC and CBS chose to

include in their news segments, I do not find that Walmart is li-

able for any misunderstandings of Walmart’s position that flow

from the editing decisions made by NBC and CBS. Cf. U.S.

Electrical Motors, 261 NLRB 1343, 1344 (1982) (employer not

liable under the Act for statements in a newspaper editorial and

article that were not based on any remarks made by the employer,

and the evidence did not show that the newspaper was acting as

the employer’s agent), enfd. 722 F.2d 315 (6th Cir. 1983), cert.

denied 467 US 1216 (1984); Raytheon Co., 179 NLRB 678, 678–

679 (1969) (same, regarding statements made in a radio broad-

cast that was based on information obtained from non-company

sources). Accordingly, I recommend that the allegations in par-

agraph 4(B)(1)–(2) of the complaint be dismissed.

C. November 2012 Warning that Associates Who Went on

Strike Would Be Fired

1. Additional findings of fact

From July 2011 to May 2013, Josue Mata worked as an over-

night maintenance associate in Walmart store 949, located in

Wheatland, Texas. In December 2011, Mata became a member

of OUR Walmart, and remained a member throughout his em-

ployment at Walmart. (Tr. 2972, 2976, 2978.)

On October 9, 2012, Mata joined other OUR Walmart mem-

bers in going on strike for 2 or 3 days in connection with

Walmart’s annual financial analysts’ meeting. (Tr. 2979–2983;

Jt. Exh. 94(a) (tab 14); see also FOF, Section II(F)(4).) When

Mata returned to work after the strike, he asked store manager

Colin Warren if he (Warren) would be willing to discuss and try

to resolve some of the issues in the store. Mata added that if they

did not resolve the issues in the store, then Mata would go on

strike on Black Friday 2012. Warren promised that he and Mata

would talk about the issues in the store and told Mata that he was

welcome to return to work. (Tr. 2983–2984, 3010.)

On or about November 19, 2012, Mata was in the store’s

maintenance supply closet getting ready for his shift when assis-

tant manager Nick Yokum passed by and asked Mata to walk

In its posttrial brief, Walmart renewed its argument that the NBC

and CBS news segments with excerpts of Tovar’s interviews were not

admissible. See Walmart’s Posttrial Br. at 148–158 (arguing that the

video clips were not admissible on various grounds, including authentic-

ity, probative value, and Walmart’s rights under the First Amendment to

the U.S. Constitution and Sec. 8(c) of the Act). I stand by my decision

to admit the news segments and Tovar’s full interviews into evidence

(see Tr. 3380–3381), and only add that Walmart’s objections go to the

weight of the evidence, and not to admissibility. As noted above, I agree

that some of Walmart’s objections to the weight of the evidence have

merit and warrant dismissing the allegations in the complaint concerning

Tovar’s interviews.

WALMART STORES, INC. 35

with him. Mata agreed, and as they walked, Yokum told Mata

that he (Yokum) had orders from Walmart’s corporate office that

whoever was going to go on strike for Black Friday was going to

be fired. Mata responded that he was not afraid, and that he

would go on strike anyway. No one else was present for this

conversation.

(Tr. 2985–2987, 3005, 3007–3008.)

2. Complaint allegation and applicable legal standard

The General Counsel alleges that Walmart violated Section

8(a)(1) of the Act when, on or about November 19, 2012, it

(through Yokum) threatened and coerced associates by stating

that associates who went on strike would be fired. (GC Exh.

1(bb), par. 4(D).)

An employer violates Section 8(a)(1) if it communicates to

employees that they will jeopardize their job security, wages or

other working conditions if they support the union. That princi-

ple holds true even if the employer does not specify the specific

nature of the reprisal—the mere threat of an unspecified reprisal

is sufficient to support a finding that the employer has violated

Section 8(a)(1). Farm Fresh Company, Target One, LLC, 361

NLRB 848, slip op. at 18.

3. Analysis

Based on Mata’s credible and unrebutted testimony, I find that

Walmart violated Section 8(a)(1) of the Act when Yokum told

Mata that associates who went on strike for Black Friday would

be fired. Although Mata told Yokum that he was not afraid,

Mata’s subjective reaction does not resolve the question of

whether Yokum’s statement had a reasonable tendency to coerce

associates in the exercise of their Section 7 rights. I find that

when viewed from an objective perspective, Yokum’s warning

that associates would be terminated if they went on strike for

Black Friday had a reasonable tendency to chill associates from

exercising their Section 7 rights, and thus ran afoul of Section

8(a)(1) of the Act. Furthermore, contrary to Walmart’s conten-

tion (see Walmart’s Posttrial Br. at 165–166), I do not agree that

Yokum’s unlawful statement was an isolated incident that was

de minimis. Yokum’s unlawful statement was a warning shot

that had a reasonable tendency to deter associates from engaging

in protected activities and occurred in the context of an ongoing

conflict between Walmart and OUR Walmart in which Walmart

committed additional unfair labor practices discussed in this de-

cision.

D. February 2013 Talking Points about Associates

Participating in Future “Intermittent Work Stoppages”

1. Additional findings of fact

As previously noted, in February 2013, Walmart managers

read a prepared set of talking points to associates who partici-

pated in the October 2012 and/or November 2012 strikes

Mata provided the only testimony about his conversation with

Yokum. Yokum’s employment with Walmart ended in October 2013,

and Walmart’s counsel represented that their efforts to locate Yokum and

call him as a witness were unsuccessful. (R. Exh. 248; Tr. 4184–4185.)

T he evidentiary record establishes that Walmart managers read the

talking points at the following eleven stores: Fremont, CA (store 2989);

Paramount, CA (store 2110); Placerville, CA (store 2418); Richmond,

coordinated by OUR Walmart. The talking points stated, in per-

tinent part:

3. You may remember that the United Food and Commercial

Workers union and its subsidiary OUR Walmart orchestrated a

series of hit-and-run work stoppages last October and Novem-

ber.

. . .

6. The Company believes that those union-orchestrated hit-

and-run work stoppages are not protected by federal labor law.

. . .

11. [T]he Company has decided that it will not apply the at-

tendance policy to your work absence(s) [in October and/or

November 2012] because of the time it took to collect and an-

alyze all this information from across the country.

12. But it is very important for you to understand that the Com-

pany does not agree that these hit-and-run work stoppages are

protected, and now that it has done the legal thinking on the

subject, it will not excuse them in the future.

13. Should you participate in further union-orchestrated inter-

mittent work stoppages that are part of a common plan or de-

sign to disrupt and confuse the Company’s business operations,

you should expect that the Company will treat any such ab-

sence as it would any other unexcused absence.

14. Having said that, let me emphasize that the Company re-

spects your right to support a union and to engage in other pro-

tected, concerted activity. It also respects your right to not en-

gage in such activity.

15. But the Company does not believe that these union-orches-

trated hit-and-run work stoppages are protected activity.

16. Please remember that you can use the Open Door policy at

any time to address questions, concerns, and ideas. I cannot

guarantee you that you will get exactly what you want, but I

can guarantee that you will get a thoughtful, well-researched,

and timely response.

(Jt. Exh. 6(a) (including instructions for reading the talking

points, and responses that managers should give to certain ques-

tions that associates might ask after hearing the talking points);

see also FOF, Section II(H) (citing Tr. 1219–1223, 1374–1375,

1491–1493, 1534–1536, 2762–2764, 2883–2884, 2907, 2937–

2940, 2966–2967, 3109–3111, 3143, 3214–3216, 3290–3294,

3299–3309, 3473–3478, 3521, 4133, 5242–5247, 5769–5772,

5775, 5825–5832, 6004–6008, 6027, 6048–6050; GC Exhs. 49,

57, 128 (regarding associates Jose Herrera, Darius Poston and

Carlton Smith, who are referenced in Jt. Exh. 1328 (par. I)), 471–

7, 5781–1; Jt. Exhs. 6(b), 144, 180, 193, 217, 307, 447, 975, 993,

1328 (pars. I, VII(13)); R. Exh. 272 (pp. 1, 9, 12, 16, 22).)

CA (store 3455); Chicago, IL (store 5781); Evergreen Park, IL (store

5485); Glenwood, IL (store 5404); Laurel, MD (store 1985); Lancaster,

TX (store 471); Federal Way, WA (store 2571); and Port Angeles, WA

(store 2196). (Tr. 1218–1220, 1374, 1491–1492, 2762–2763, 2907,

2937–2940, 3109–3111, 3214–3216, 3472–3477, 4133, 5769–5771,

5826, 6004–6008, 6027; Jt. Exh. 1328 (pars. I, VII(13)); R. Exh. 272

(par. I(C)).)

36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2. Complaint allegation and applicable legal standard

The General Counsel alleges that Walmart violated Section

8(a)(1) of the Act by, in or about February 2013, reading the Feb-

ruary 2013 talking points to associates at eleven stores, and

thereby announcing a policy and interfering with associates’

rights to strike. (GC Exh. 1(bb), par. 4(E) (identifying Walmart

store numbers 471, 1985, 2110, 2418, 2571, 2989, 3455, 5404,

5485 and 5781 as places where Walmart managers read the Feb-

ruary 2013 talking points); see also Tr. 3701 (verbal amendment

to the complaint, adding store 2196 to paragraph 4(E) of the com-

plaint).)

The Board has articulated the following standard that applies

when it is alleged that an employer’s work rule violates Section

8(a)(1):

If the rule explicitly restricts Section 7 activity, it is unlawful.

If the rule does not explicitly restrict Section 7 activity, it is

nonetheless unlawful if (1) employees would reasonably con-

strue the language of the rule to prohibit Section 7 activity; (2)

the rule was promulgated in response to union activity; or (3)

the rule has been applied to restrict the exercise of Section 7

rights. In applying these principles, the Board refrains from

reading particular phrases in isolation, and it does not presume

improper interference with employee rights.

Hills & Dales General Hospital, 360 NLRB 611, 611, 616

(2014) (citing Lutheran Heritage Village-Livonia, 343 NLRB

646, 646–647 (2004)). As with all alleged Section 8(a)(1) vio-

lations, the judge’s task is to “determine how a reasonable em-

ployee would interpret the action or statement of her employer

. . . , and such a determination appropriately takes account of the

surrounding circumstances.” The Roomstore, 357 NLRB 1690,

1690 fn. 3 (2011).

3. Analysis

As a general matter, an employer in the midst of a union or-

ganizing campaign (or a worker empowerment campaign, as the

Making Change at Walmart campaign might be characterized)

permissibly may respond with its own legitimate campaign prop-

aganda, as long as the campaign propaganda is not linked to com-

ments that cross the line set by Section 8(a)(1) and become co-

ercive (from the objective standpoint of the employees, over

whom the employer has a measure of economic power). See

Farm Fresh Company, Target One, LLC, 361 NLRB No. 83, slip

op. at 18 (collecting cases); see also Section 8(c) of the Act (stat-

ing that the “expressing of any views, argument, or opinion, or

the dissemination thereof, whether in written, printed, graphic,

or visual form, shall not constitute or be evidence of an unfair

labor practice under any of the provisions of this Act . . . , if such

expression contains no threat of reprisal or force or promise of

benefit”). Further, under NLRB v. Gissel Packing Co., 395 U.S.

575, 618 (1969), an employer may make lawful predictions of

the effects of unionization if the predictions are based on objec-

tive facts and address consequences beyond an employer’s

No exceptions were taken from the administrative law judge’s rul-

ing on this issue. Pennsylvania American Water Co., 359 NLRB 1286,

1286 fn. 2.

In this connection, I note that Walmart managers also found the

February 2013 talking points to be unequivocal. For example, when

control. Farm Fresh Company, Target One, LLC, 361 NLRB

848, 865 (citing DHL Express, 355 NLRB 1399, 1400 (2010)).

With those basic premises stated, the question presented here

is whether Walmart, through its February 2013 talking points,

crossed the line between permissible propaganda and coercive

statements that violate Section 8(a)(1). Although the question is

a close one, I find that Walmart did cross the line with its Febru-

ary 2013 talking points, because Walmart associates would rea-

sonably construe the language of the talking points as prohibiting

protected Section 7 activity.

The administrative law judge’s analysis in Pennsylvania

American Water Co., 359 NLRB 1286 (2013), adopted in 362

NLRB 123 (2015), is instructive. In Pennsylvania American

Water Co., the employer sent a letter to the union to warn that it

reserved the right to take disciplinary action against employees

who refused to cross union picket lines. In connection with that

warning, the employer asserted, in pertinent part: “[I]f Local 357

employees repeatedly refuse to cross picket lines manned by Lo-

cal 357 members, such refusal may constitute an intermittent

work stoppage.” 359 NLRB 246, slip op. at 5, 12. The admin-

istrative law judge did not find that aspect of the employer’s let-

ter to be unlawful, because the employer’s statement about inter-

mittent work stoppages was “an accurate statement, one that the

union might consider.”

Id. at 12.

In my assessment, the equivocal language that the employer

used about intermittent work stoppages in Pennsylvania Ameri-

can Water Co. is what made that aspect of the employer’s warn-

ing lawful. Specifically, the employer in Pennsylvania Ameri-

can Water Co. merely stated that employees who repeatedly re-

fused to cross picket lines and report for work ran a risk that

those activities might be deemed unprotected, intermittent work

stoppages. By contrast, Walmart did not use equivocal language

in its February 2013 talking points. Instead, Walmart stated un-

equivocally that it believed that the October and November 2012

strikes were unprotected intermittent work stoppages, and added

that it would not excuse absences for such activity in the future

(and instead would treat the absences like any other unexcused

absence).

A reasonable associate confronted with that warning

would understandably construe the February talking points as

prohibiting future strikes associated with the Making Change at

Walmart campaign, irrespective of whether those strikes could

accurately be characterized as unprotected intermittent work

stoppages or (alternatively) protected strikes or work stoppages.

Accordingly, I find that through the February 2013 talking

points, Walmart violated Section 8(a)(1) of the Act by announc-

ing an unlawful work rule/policy that could reasonably be con-

strued as prohibiting Section 7 activity.

associate Joeray Peoples heard the talking points and asked if his absence

would be approved if he were to call in to strike, store manager Bobby

Delicino (store 471) responded “no,” with no further explanation noted.

(GC Exh. 471–7, p. 12.)

WALMART STORES, INC. 37

II. DISCIPLINE AND DISCHARGE ALLEGATIONS—ANALYSIS OF

LEGAL ISSUES

A. Was the May/June 2013 “Ride for Respect” a Strike

Protected by the Act?

For most of the claims in this case, the central question is

whether Walmart violated Section 8(a)(1) of the Act when it dis-

ciplined or terminated associates for missing work shifts while

they were on strike during the Ride for Respect. The answer to

that question in large part turns on whether the Ride for Respect

was protected by the Act (as the General Counsel and the Charg-

ing Party contend), or instead was not protected by the Act be-

cause the Ride for Respect was an intermittent work stoppage

that was part of a UFCW-orchestrated plan to pressure Walmart

to change its workplace policies and conditions (as Walmart con-

tends). Compare Robertson Industries, 216 NLRB 361, 361–363

(1975) (finding that it was unlawful for the employer to dis-

charge employees because they engaged in a protected strike),

enfd. 560 F.2d 396 (9th Cir. 1976) with National Steel & Ship-

building Co., 324 NLRB 499, 523–524 (1997) (explaining that

if an employee participates in an unprotected work stoppage, the

employer may discipline the employee for any misconduct asso-

ciated with the work stoppage, as long as the discipline is con-

sistent with the employer’s established policies and disciplinary

practices); see also Swope Ridge Geriatric Center, 350 NLRB

64, 68 & fn. 8 (2007) (explaining that the employer did not vio-

late the Act by issuing warnings to employees who did not com-

ply with the employer’s 2-hour call-in policy before missing

work for an unprotected strike, but noting that the warnings

would have been unlawful if the strike was protected by the Act).

Walmart bears the burden of showing that the strikes are unpro-

tected. Swope Ridge Geriatric Center, 350 NLRB at 64 fn. 3.

To establish which category best fits the Ride for Respect, a

brief review of the applicable case law is warranted and is set

forth below.

1. The protected strike or work stoppage

It is well established that, in general, the National Labor Re-

lations Act protects employees’ right to go on strike. Protected

strikes may include “conventional” strikes that a labor organiza-

tion calls to: exert economic pressure on an employer regarding

collective-bargaining demands (an economic strike); and/or pro-

test alleged unfair labor practices that an employer has

Workers who engage in unfair labor practices strikes have more

protection against being permanently replaced while on strike than do

workers who engage in economic strikes. See Spurlino Materials, LLC,

357 NLRB 1510, 1519 (2011) (explaining that unfair labor practice strik-

ers are entitled to immediate reinstatement to their former positions even

if replacements have been hired, while economic strikers who have been

replaced are not entitled to immediate reinstatement), enfd. 805 F.3d

1131 (D.C. Cir. 2015). In this case, the distinction between economic

and unfair labor practice strikers is not directly at issue because Walmart

did not replace any associates while they were on strike during the Ride

for Respect, and generally allowed all Ride for Respect strikers to return

to work before disciplining or terminating them.

Partial strikes, where an employee reports for work but refuses to

perform certain mandatory aspects of his or her job, are also not protected

by the Act. Like intermittent work stoppages, partial strikes are unpro-

tected because they bring about a condition that is “neither strike nor

committed (an unfair labor practice strike).

National Steel &

Shipbuilding Co., 324 NLRB at 509. In addition, protected

strikes may include work stoppages that employees organize by

themselves (i.e., without assistance from a union) to bring atten-

tion to their objections to certain terms and conditions of em-

ployment. Id. For example, in NLRB v. Washington Aluminum

Co., a group of seven unrepresented machine shop employees

decided to leave work when the company failed to address their

concerns about working in unusually cold weather. The Su-

preme Court recognized that the employees had the right to act

together as best they could to better their working conditions

(particularly where they did not have a bargaining representative

to present their grievances to their employer) and could not be

terminated for engaging in concerted activities that are protected

by the Act. 370 U.S. 9, 14–17 (1962).

2. The (unprotected) intermittent work stoppage

In contrast to protected strikes, the Board has held that inter-

mittent work stoppages are not protected by the Act because they

seek to create a “condition that would be neither strike nor

work.”

Pacific Telephone and Telegraph Co., 107 NLRB

1547, 1549 (1954). Consistent with that basic premise, when

determining whether strikes or work stoppages are unprotected

intermittent work stoppages, the Board evaluates whether “the

evidence demonstrates that the stoppage is part of a plan or pat-

tern of intermittent action which is inconsistent with a genuine

strike or genuine performance by employees of the work nor-

mally expected of them by the employer.”

Polytech, Inc., 195

NLRB 695, 696 (1972). The following factors are relevant to

that inquiry:

 Whether the employees engaged in a pattern of recur-

ring work stoppages, and/or demonstrated their intent

to engage in future recurring work stoppages (see

Swope Ridge Geriatric Center, 350 NLRB at 64 fn. 3,

68; New Fairview Hall Convalescent Home, 206

NLRB 688, 747 (1973) (explaining that “it is only

when employees adopt a continuing strategy of work

stoppages . . . that their activity may become ‘indefen-

sible’ and lose its protected status”));

 Whether the work stoppages were short in duration

(i.e., the work stoppages last for portions of days, or

one or two days), such that employees minimized the

work.” National Steel & Shipbuilding Co., 324 NLRB at 509; Audubon

Health Care Center, 268 NLRB 135, 136 (1983) (“A partial strike, in

which employees refuse to work on certain assigned tasks while accept-

ing pay or while remaining on the employer’s premises is a method of

striking which is not condoned by the Board.”).

In some cases, the Board has referred to unprotected intermittent

work stoppages as “hit and run” strikes engaged in as part of a planned

strategy intended to “harass the company into a state of confusion.” See,

e.g., United States Service Industries, 315 NLRB 285, 285 (1994). In

my view, that phrasing is merely an alternate description of an unpro-

tected intermittent work stoppage and does not articulate a different legal

standard. See Pacific Telephone & Telegraph Co., 107 NLRB at 1548

& fn. 3 (noting that the union described its strategy of multiple work

stoppages as a “hit and run” tactic that would succeed because it enabled

workers to maintain their financial take home pay while “harassing the

company into a state of confusion”).

38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

risks associated with being out on strike for longer pe-

riods of time (see Swope Ridge Geriatric Center, 350

NLRB at 65 (1–day strikes used); Honolulu Rapid

Transit Co., Limited, 110 NLRB 1806, 1807–1811

(1954) (to minimize their economic losses, employees

chose to work for 5 days each week, and strike only on

weekends));

 Whether the work stoppages occurred over a short pe-

riod of time (i.e., multiple work stoppages that oc-

curred in the span of a few weeks) (see Swope Ridge

Geriatric Center, 350 NLRB at 65 (union announced

three 1–day strikes over a span of six weeks, and held

two of those strikes); New Fairview Hall Convalescent

Home, 206 NLRB at 747 (citing NLRB v. Blades Man-

ufacturing Corp., 344 F.2d 998, 1005 (8th Cir. 1965)

for the proposition that the repetition of intermittent 1-

day walkouts within a short span of time (three walk-

outs in less than two weeks) rendered the walkouts un-

protected));

 Whether the work stoppages arose in response to sep-

arate and distinct concerns that employees had about

the terms and conditions of their employment (see

Westpac Electric, 321 NLRB 1322, 1359–1360 (1996)

(finding that three strikes held between August 30 and

September 16 were not intermittent work stoppages, in

part because “each strike had its distinct origins and

motivating antecedent features”); Robertson Indus-

tries, 216 NLRB at 362 (finding that two strikes were

not intermittent work stoppages, in part because the

strikes “involved different situations and different peo-

ple”);

and

 Whether the work stoppages arose from a union strat-

egy to exert additional economic pressure on the em-

ployer during collective-bargaining negotiations (see

Swope Ridge Geriatric Center, 350 NLRB at 64 fn. 3,

Walmart asserts that it is not the length of the work stoppages that

matters, but rather whether the work stoppages are pre-planned for a self-

selected duration (e.g., strikes planned for every weekend, or one day

each week). (Walmart Posttrial Br. at 132–133.) I disagree. The length

of the work stoppages is relevant because employees who go on strike

for brief periods of time minimize the risks of being out on strike for

longer periods, and thus come closer to creating a condition that is neither

strike nor work. Conversely, employees who go on strike for longer pe-

riods of time take on more of the risks associated with being on strike.

Walmart contends that the strikes do not have to “occur in close

proximity” for the intermittent work stoppage defense to apply.

(Walmart’s Posttrial Br. at 131–132.) While I agree that there certainly

is no fixed rule about how close in time the work stoppages must be

grouped to qualify as intermittent work stoppages, the extent that the

work stoppages are grouped together is certainly relevant, because it is

the grouping of work stoppages (along with their recurring nature) that

makes them intermittent, and thus closer to the line of creating a condi-

tion that is neither strike nor work.

In connection with this factor, Walmart contends that when em-

ployees make an unconditional offer to return to work after a strike, the

employees make an implied promise that they will not go on strike again

based on the same issues. (Walmart Posttrial Br. at 90–95.) I disagree.

68; Honolulu Rapid Transit Co., Limited, 110 NLRB

at 1807–1811).

Although there is ample legal support for this list of factors, I

hasten to add that each factor comes with a host of exceptions

and caveats. See National Steel & Shipbuilding Co., 324 NLRB

at 509–510 (noting that “the precise location of the line between

‘protected’ concerted work stoppages and unprotected stop-

pages, no matter how ‘concerted,’ remains a notoriously elusive

and difficult one to discern and divine,” and that “‘there is more

than enough scripture upon the subject to enable any devil to cite

some of it for his purpose’”).

First, the Board has resisted finding a pattern of recurrent, in-

termittent work stoppages where the work stoppages occur over

an indefinite period of time, involve different employees and/or

involve different concerns. In Robertson Industries, the Board

explained that while there was no “magic number as to how

many work stoppages must be reached before we can say that

they are of a recurring nature,” two 1–day work stoppages (on

November 9, 1973 and February 1, 1974) did not establish a pat-

tern of intermittent work stoppages that would deprive employ-

ees of their Section 7 rights. In addition, after noting that the two

work stoppages involved different employees and different is-

sues, the Board explained that it would not be appropriate to pre-

clude employees from engaging in “more than one instance of

concerted protected activity during an indefinite period of time

regardless of the variety and number of conditions or occur-

rences protested and the identity of the individuals involved.”

216 NLRB 361, 361–362 (1975); United States Service Indus-

tries, 315 NLRB at 285 (noting that “the mere fact that some

employees may have struck more than once does not render their

conduct intermittent striking”).

Second, although many cases discuss the impact that intermit-

tent strikes have on company operations, the Board has indicated

that the impact of such strikes is not probative of whether the

strikes are protected by the Act. “It is axiomatic that the very

purpose of a strike is to cause disruption, both operationally and

economically, to an employer’s business operations” in order to

Employees who choose to end a strike and return to work may still ad-

vocate about the issues that led them to strike in the first instance and

may also choose to go on strike in the future to “continu[e] their earlier

efforts to have their work-related problems resolved.” Robertson Indus-

tries, 216 NLRB at 362; see also Texas Gas Corp., 136 NLRB 355, 364–

365 (1962) (finding that the union made a sincere unconditional offer to

return to work, even though the union representative acknowledged that

employees might go on strike again if negotiations about employee con-

cerns failed to produce an agreement). To be sure, employers may argue

that the strikes are unprotected intermittent work stoppages, but it is by

no means a foregone conclusion that the employer will prevail in that

argument after all relevant factors have been considered. See, e.g.,

United States Service Industries, 315 NLRB at 289–291 (finding that two

strikes about unjust working conditions were protected by the Act); Chel-

sea Homes, 298 NLRB 813, 831 (1990) (finding that two strikes were

protected by the Act even if it could be said that the employees in each

strike objected to anticipated lengthy overtime assignments), enfd. 962

F.2d 2 (2d Cir. 1992); Crenlo, Division of GF Business Equipment, Inc.,

215 NLRB 872, 878–879 (finding that two strikes about the amount of a

wage increase were protected by the Act), enfd. in pertinent part, 529

F.2d 201 (8th Cir. 1975).

WALMART STORES, INC. 39

cause the employer to accede to the strikers’ demands. Accord-

ingly, it would make little sense to deem a strike unprotected

simply because the strike was effective. Swope Ridge Geriatric

Center, 350 NLRB at 67; see also Atlantic Scaffolding Co., 356

NLRB 835, 837 (2011) (holding that the protected nature of the

work stoppage in question was not vitiated by the effective tim-

ing of the work stoppage). And conversely, an unprotected in-

termittent work stoppage does not become protected simply be-

cause the employer made sufficient preparations to continue its

business operations without the employees who went on strike.

See Pacific Telephone & Telegraph Co., 107 NLRB at 1549–

1550 (explaining that “regardless of the success or failure of the

Respondent in its efforts to defend against the intermittent and

unpredictable strike and picket attacks, the inherent character of

the method used sets this [hit-and-run] strike apart from the con-

cept of protected union activity envisaged by the Act”).

And third, although the Board has indicated that the Act does

not protect intermittent work stoppages that are part of a union’s

strategy to exert additional economic pressure on an employer

during collective-bargaining negotiations, there must be evi-

dence that such a strategy was in place (as opposed to merely

evidence that the employees were represented by and/or con-

sulted with a union). United States Service Industries, 315

NLRB at 285, 291. In United States Service Industries, employ-

ees represented by the Service Employees International Union

(SEIU) held a 1–day strike (on May 30, 1990) at two worksites

to protest their working conditions. After a series of union meet-

ings and a strike vote, employees at four work sites (the two sites

where the 1–day strike occurred, plus two new ones) held a 7–

day strike from July 26 through August 2, 1990. Notwithstand-

ing the union’s involvement with the strikes (which included

providing union t-shirts, buttons and picket signs to the employ-

ees for the 7–day strike, and having its organizing director notify

the employer of the strikers’ unconditional offer to return to

work), the Board held that there was no evidence that the union

had a strategy of using intermittent work stoppages to harass the

employer during ongoing collective-bargaining negotiations. Id.

at 285, 289–291; see also id. at 292 (noting that the union assisted

employees at three different locations when they went on strike

from October 30 to December 5, 1990); Westpac Electric, 321

NLRB at 1360–1361, 1368–1370, 1372 (although the strikers

consulted with a union representative before going on three dif-

ferent strikes over an 18–day period, the evidentiary record did

Throughout the investigation and litigation of this case, Walmart

has maintained that “Board law . . . does not require a showing of ‘dis-

ruption’ to establish [an] unprotected [intermittent work stoppage].”

(GC Exh. 127(b) (p. 10) (Walmart’s September 3, 2013 position state-

ment); see also Walmart’s posttrial Br. at 128–130.) Nevertheless, since

the General Counsel and OUR Walmart maintained that Walmart could

only establish its intermittent work stoppage defense if Walmart demon-

strated that OUR Walmart’s strikes had an adverse impact on store oper-

ations, Walmart presented impact evidence at trial. (See Tr. 6779–6780;

see also, e.g., R. Exhs. 1 VID1 (video containing footage at 3:35 of a

customer yelling in response to an OUR Walmart action inside a

Walmart store), 309 (orders from state courts that granted Walmart in-

junctive relief against OUR Walmart and noted that certain OUR

Walmart actions disrupted store operations).)

As indicated above, I agree that Walmart does not have to show that

the strikes were disruptive or adversely impacted store operations as an

not show that the strikes were conducted in furtherance of a sin-

gle, underlying plan or scheme by the unions or the strikers to

use hit and run tactics intended to harass the company into a state

of confusion).

By contrast, in Swope Ridge Geriatric Center, the Board did

find that the work stoppages at issue were part of the union’s

bargaining strategy. 350 NLRB 64, 64 fn. 3, 68. Specifically, in

Swope Ridge, the union and employer were negotiating a succes-

sor collective-bargaining agreement but could not reach an

agreement on a wage increase. As a result of that disagreement,

the union announced that employees would hold a 1–day strike

on August 4 but canceled that strike (by letter dated August 2),

ostensibly to “give the [employer] and its agents ‘the opportunity

to bargain in good faith and settle the CBA between both par-

ties.’” When the disagreement about the wage increase per-

sisted, employees held 1–day strikes on August 26 and Septem-

ber 13. Id. at 64 fn. 3, 65. Viewing the evidence as a whole, the

Board agreed with the ALJ that the union arranged the intermit-

tent work stoppages as part of its underlying bargaining strategy

until the parties agreed on a contract. Because of that bargaining

strategy, and because the evidence showed that the pattern of in-

termittent strikes would continue into the future, the Board

agreed that the intermittent strikes were not protected by the Act,

and agreed that the employer did not violate the Act when it is-

sued warnings to employees for failing to comply with the em-

ployer’s call-in policy for absences. Id. at 64 fn. 3, 68; see also

National Steel & Shipbuilding Co., 324 NLRB at 507–510 (ex-

plaining that after the employer implemented the terms of its last

offer during contract negotiations, the unions adopted an “inside

game” strategy that called for various activities designed to pres-

sure the employer to make concessions at the bargaining table,

including two mid-shift work stoppages that were part of the “in-

side game” strategy and were not protected by the Act); Hono-

lulu Rapid Transit Co., Ltd., 110 NLRB at 1807–1809, 1811

(finding that the union had a strategy of holding recurring strikes

on weekends during negotiations for a new contract, and finding

that those weekend strikes were not protected by the Act); Pa-

cific Telephone & Telegraph Co., 107 NLRB at 1547–1550

(finding that, during contract negotiations, the union used a strat-

egy of holding a series of “hit and run” intermittent work stop-

pages that were not protected by the Act).

element of its defense that the strikes were unprotected intermittent work

stoppages. The General Counsel and OUR Walmart each conceded this

point in their posttrial briefs. (See GC Posttrial Br. at 102 fn. 60; CP

Posttrial Br. at 33.) For that reason, I decline Walmart’s renewed request

that I admit a video excerpt in which a customer offered her views on the

impact of an OUR Walmart demonstration that she saw. (See Walmart’s

Posttrial Br. at 43.) The customer’s statement is inadmissible hearsay

and is also irrelevant since the customer’s statement only provides evi-

dence about the impact of the demonstration. (See Tr. 6716–6720 (dis-

cussing R. Exhs. ID16 and 2452 VID1).) The other evidence in the rec-

ord that shows the impact of strikes (primarily photographs, video or tes-

timony about OUR Walmart strikes or actions) remains admissible, how-

ever, if only to provide background about the nature of the strikes in

question.

40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

3. Was the Ride for Respect protected by the Act?

I now turn to perhaps the central question in this case, con-

cerning whether the Ride for Respect was a protected strike, or

rather was an unprotected, intermittent work stoppage. To ana-

lyze that question, I will consider the factors outlined above to

evaluate whether the Ride for Respect has the customary charac-

teristics of an unprotected, intermittent work stoppage.

In this case, it is fair to say that OUR Walmart members have

engaged in a pattern of recurring strikes and have demonstrated

their intent to engage in recurring strikes in the future. Indeed,

in 2012–2013, OUR Walmart held multiple strikes in conjunc-

tion with the Making Change at Walmart campaign, including: a

1 day strike on October 4, 2012 (Pico Rivera strike); 1–3 day

strikes on or about October 9–12, 2012 (strikes during Walmart’s

financial analysts’ week); 1 day strikes on or about November

23, 2012 (Black Friday 2012 strikes); 7–10 day strikes in late

May and early June 2013 (Ride for Respect strikes); and 1 day

strikes in November 2013 (Black Friday 2013 strikes). OUR

Walmart and the UFCW have stipulated that they intend to con-

tinue planning similar strikes in the future. (FOF, Section

II(F)(3)–(5), J, L(2)–(3). )

As the list of 2012–2013 strikes indicates, many of OUR

Walmart’s strikes have been short in duration, enabling associ-

ates to limit the amount of time that they are away from work,

and thereby avoid some of the costs of being out of work during

a longer strike. The Ride for Respect strikes, however, were dif-

ferent, because associates who participated in those strikes typi-

cally were on strike for at least a full week. Ride for Respect

strikers therefore took on more risk as strikers, since they fore-

went wages for a longer period of time and faced a higher risk of

being replaced due to their extended absences from the work-

place (putting aside the question of what protections against re-

placement the strikers might have had as ULP strikers versus

economic strikers).

The Ride for Respect strike also stood apart from other OUR

Walmart strikes in that the Ride for Respect strikes were not

grouped with other strikes in a short period of time. As the evi-

dentiary record shows, OUR Walmart’s first round of strikes (in

October and November 2012) was arguably grouped in a short

period of time. After November 2012, however, OUR Walmart

did not hold any additional strikes for approximately six months,

until the discriminatees and certain other associates went on

strike in connection with the Ride for Respect in late May

2013.

Furthermore, after the Ride for Respect, OUR Walmart

did not hold any additional strikes until November 2013 (approx-

imately 5 months after the Ride for Respect).

The evidentiary record does not show that the Ride for Re-

spect strike arose from separate and distinct concerns that asso-

ciates may have had about the terms and conditions of employ-

ment. Instead, the associates submitted strike letters and return

to work letters that generally raised the same concerns that OUR

Walmart set forth in the Declaration of Respect that it presented

to Walmart in June 2011 (i.e., concerns about retaliation against

associates who speak out about wages, healthcare benefits, and

work schedules). The Ride for Respect and associated strikes

Associates Colby Harris and Marc Bowers did go on strike from

May 6–9, 2013, but they chose to go on that strike spontaneously after

therefore continued OUR Walmart’s campaign to induce

Walmart to make changes to its working conditions and work-

place policies.

Finally, there is no evidence that OUR Walmart or the UFCW

organized the Ride for Respect strikes (or any other strikes dur-

ing the Making Change at Walmart Campaign) as a strategy to

exert additional economic pressure on Walmart during collec-

tive-bargaining negotiations. It is certainly clear in the record

that the UFCW provided extensive logistic, strategic and finan-

cial support to OUR Walmart and the Making Change at

Walmart campaign. As UFCW officials have stated, the UFCW

has an interest in encouraging Walmart to change its workplace

policies because Walmart is the largest private employer in the

United States, and thus acts as a trend setter for other retail em-

ployers concerning workplace wages and standards. (FOF, Sec-

tion II(B), (C)(1)–(2).) It is also clear, however, that neither

OUR Walmart nor the UFCW represent Walmart associates for

purposes of collective bargaining. In fact, since January 2013,

the UFCW and OUR Walmart have expressly disavowed having

any intent to have Walmart recognize or bargain with UFCW or

OUR Walmart as the representative of Walmart employees.

(FOF, Section II(A)(1), (G).) Thus, although the UFCW and

OUR Walmart supported the Ride for Respect, the evidentiary

record does not show that the Ride for Respect strikes (or any

other OUR Walmart strikes in 2012–2013) were part of a strat-

egy to further contract demands during collective-bargaining ne-

gotiations. See Analysis Section II(A)(2) (discussing United

States Service Industries, 315 NLRB at 285, 289–292, where a

union supported brief strikes, but did not do so pursuant to a col-

lective-bargaining strategy).

In light of the foregoing analysis, I find that the Ride for Re-

spect strikes are protected by the Act. Although the Ride for

Respect strikes were part of a recurring set of strikes that OUR

Walmart coordinated to draw attention to an established list of

concerns about Walmart’s policies and working conditions (fac-

tors 1 and 4, above), the similarities to unprotected intermittent

work stoppages end there. Specifically, the Ride for Respect

strike was not a brief strike that enabled associates to minimize

the risks of being on strike, nor was it scheduled close in time

with a group of other strikes, such that the strikes could be

viewed as intermittent (factors 2 and 3). In addition, the eviden-

tiary record also does not show that OUR Walmart or the UFCW

used the Ride for Respect strike or any other strike as a strategy

to exert additional economic pressure on Walmart during collec-

tive-bargaining negotiations (factor 5). Considering all five fac-

tors, I find that the Ride for Respect strikes were materially dif-

ferent from strikes that the Board has identified as unprotected

intermittent work stoppages. I therefore find that Walmart failed

to prove that the Ride for Respect strikes were unprotected inter-

mittent work stoppages, and I find that the Ride for Respect

strikes are protected by the Act.

Harris took offense to remarks that a manager in his store made about

OUR Walmart. (See Analysis, Sec. III(W), infra.)

WALMART STORES, INC. 41

B. Do Any of the Alleged Discriminatees Qualify as

Statutory Supervisors?

1. Applicable legal standard

Individuals are statutory supervisors if (1) they hold the au-

thority to engage in any one of the supervisory functions listed

in Section 2(11) of the Act (i.e., the authority to hire, transfer,

suspend, lay off, recall, promote, discharge, assign, reward, dis-

cipline, responsibly direct, or adjust grievances of other employ-

ees); (2) their exercise of such authority is not of a merely routine

or clerical nature, but requires the use of independent judgment;

and (3) their authority is held in the interest of the employer. To

exercise independent judgment, an individual must at minimum

act, or effectively recommend action, free of the control of others

and form an opinion or evaluation by discerning and comparing

data. A judgment is not independent if it is dictated or controlled

by detailed instructions, whether set forth in company policies or

rules, the verbal instructions of a higher authority, or in the pro-

visions of a collective bargaining agreement. The party asserting

supervisory status has the burden of establishing such status by

a preponderance of the evidence. Conclusory evidence does not

satisfy that burden. Modesto Radiology Imaging, Inc., 361

NLRB 888, 888–889 (2014); see also Oakwood Healthcare, Inc.,

348 NLRB 686, 687, 693 (2006).

In this case, Walmart asserts that the following alleged dis-

criminatees were supervisors under Section 2(11) of the Act dur-

ing the relevant time period and thus are not covered as “employ-

ees” under the Act: Sara Gilbert; Cecelia Gurule; Michael

McKeown; and John Smith.

Each of those individuals held the

job title of “department manager” in his or her Walmart store

during the relevant time period.

2. Findings of Fact—all department managers

a. Job description

In all Walmart stores, department managers are hourly asso-

ciates who assist in operating one or more store departments.

The job descriptions for department managers list a broad array

of responsibilities, including “[s]upervis[ing] associates in the

area of responsibility by assigning duties, communicating goals,

providing feedback and followup, monitoring performance,

teaching and supporting Company policies and procedures, en-

suring compliance, and participating in the hiring, promotion,

coaching, teaching and evaluation of associates.” (See Jt. Exhs.

291, 337, 511, 739 (p. 2); see also Tr. 329–332, 3743–3745 (Gu-

rule and McKeown agreeing that they performed most, if not all,

of the job duties listed in the job description).)

The Board has recognized that certain “secondary indicia” may

support a finding of supervisory status if the evidentiary record shows

that the alleged supervisor possesses at least one of the primary indicia

of supervisory status set forth in Section 2(11) of the Act. Golden Crest

Healthcare Center, 348 NLRB 727, 730 fn. 10 (2006); Ken-Crest Ser-

vices, 335 NLRB 777, 779 (2001). Secondary indicia of supervisory sta-

tus include, but are not limited to, the individual’s: designation as a su-

pervisor; attendance at supervisory meetings; responsibility for a shift or

phase of the employer’s operation; authority to grant time off to other

employees; responsibility for inspecting the work of others; responsibil-

ity for reporting rule infractions; receipt of privileges exclusive to mem-

bers of management; and compensation at a rate higher than the

b. Role in Walmart’s hiring process

Regarding hiring, Walmart follows a three step process. At

the first round of the process, typically an hourly manager (i.e.,

a zone merchandise supervisor, customer service manager or de-

partment manager) interviews the job applicant. The hourly

manager asks the job applicant a set of predetermined questions,

and then rates the applicant’s responses on a five-level scale that

ranges from “below expectations” to “role model.” Based on the

first round interview ratings, Walmart’s computer system elimi-

nates job applicants with low scores, and forwards the remaining

applicants on for a second round interview with a salaried man-

ager. Walmart does not ask any salaried managers to review first

round interview ratings to determine if job applicants with low

ratings appropriately have been eliminated. At the third round,

either the store manager or shift manager decides whether to

make a job offer to the applicant. There is no evidence that

hourly managers who conduct first round interviews join in mak-

ing the final hiring decision (or join in any other step of the ap-

plication process). However, when making hiring decisions, the

shift manager or store manager may consider the interview rat-

ings from the applicant’s first and second round interviews. (Tr.

325–328, 1591–1593, 1697–1699, 3404–3409, 3712–3713,

3742, 3795, 3797–3800, 3883–3886; see also Tr. 3405 (describ-

ing managers’ interview ratings as “recommendations”).)

c. Performance evaluations for department managers

Walmart evaluates the performance of its department manag-

ers on an annual basis by assigning ratings (ranging from “below

expectations” to “role model”) in various “competencies,” in-

cluding:

Planning and Improvement: Plan for and Improve Team

Performance

Plans work based on business priorities and explains to others

what is needed to get work done. Identifies and oversees the

tasks needed to reach goals. Looks for and suggests ways to

improve performance and results.

Talent: Provide Information and Feedback

Guides and teaches Associates on how to perform their work.

Assigns tasks to Associates and provides the tools they need to

carry them out. Gives clear, constructive feedback on perfor-

mance to Associates and leaders. Recognizes Associates for

their positive contributions. Shows concern for Associates and

is available to meet with them. Looks for and follows up on

developmental opportunities.

employees supervised. The ratio of supervisors to employees is also a

secondary indicator of supervisory status. See Sheraton Universal Hotel,

350 NLRB 1114, 1118 (2007); Flexi-Van Service Center, 228 NLRB

956, 960 (1977).

At the beginning of trial, Walmart also alleged that Evelin Cruz

was a supervisor during the relevant time period. (Tr. 10–12.) However,

in its posttrial brief, Walmart did not argue that Cruz was a supervisor,

and thus has abandoned that argument. (See Walmart Posttrial Br. at 73–

78, 175–177 (identifying Gilbert, Gurule, McKeown, and Smith as al-

leged supervisors, but omitting Cruz).) In any event, I find that Cruz is

not a supervisor under Section 2(11) of the Act for the same reasons that

I set forth below as to Gilbert, Gurule, McKeown, and Smith.

42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

(Jt. Exhs. 338, 515–516, 741–742; see also Tr. 321, 3745–3748,

3890, 4079.) There is no evidence that department managers

suffer any specific adverse consequences to the terms and con-

ditions of their employment if the associates in their departments

do not perform well, or if they (the department managers) receive

poor ratings on the competencies in their performance evalua-

tions (including those noted above).

(Tr. 3711, 4795–4796,

4873.)

3. Findings of fact—Sara Gilbert’s job duties

From approximately late 2012 to August 2013, Sara Gilbert

worked in Walmart store 2571 in Federal Way, Washington as

the department manager for the home lines department (i.e., bed-

ding, housewares, furniture, Tupperware, paint and tools). On a

typical day in that position, Gilbert would start by taking care of

returns, and then would begin working on any notes or tasks as-

signed by the store manager, assistant manager or zone merchan-

dise supervisor. Gilbert also would order and stock freight for

the sales floor. Although three other associates were technically

beneath Gilbert in the home lines department, Gilbert’s respon-

sibility for those associates was limited to: communicating the

assignments that the store manager or assistant manager set forth

for each associate; ensuring that the associates carried out those

assignments; and, if necessary, notifying the assistant manager

of any problems that the associates were having with their as-

signments. Gilbert did not have the authority to discipline, fire,

promote, recall (from layoff), transfer or schedule the associates

in her department. (Tr. 3451, 3787, 3789–3791, 3795–3797,

3887–3890, 4060, 4078–4079.)

Occasionally, Gilbert conducted first round interviews of

Walmart job applicants when other managers were not available

to do them. Gilbert conducted eleven such interviews in 2013

when she was a department manager and conducted four inter-

views in 2011 and two interviews in 2012 when she was a cus-

tomer service manager.

(Tr. 3795, 3799–3800, 3882–3883; Jt.

Exh. 293.)

4. Findings of fact—Cecelia Gurule’s job duties

Since December 2012, Cecelia Gurule has worked as the de-

partment manager for the lawn and garden department in

Walmart store 5434, located in San Leandro, California. On a

typical day in that position, Gurule received a list of tasks from

her manager, and worked on completing those tasks, along with

her customary tasks of doing price changes, handling returns,

keeping the department clean and organized, running the cash

six associates that works in her department to carry out tasks, but

if a problem or disagreement arose (e.g., the associate did not

comply with Gurule’s request), the associate and/or Gurule

turned to the assistant manager for guidance. (Tr. 299, 302–303,

318–322, 357–359, 366–369, 1599.)

Although two witnesses (Gilbert and McKeown) testified that per-

formance evaluations affect the amount of pay raises that they may re-

ceive (see Tr. 3746, 3889–3890), Walmart did not present any specific

examples of department managers receiving adverse consequences if the

associates in their departments did not perform their duties well.

Gilbert explained that she conducted a higher number of first round

interviews in 2013 because her store was understaffed. (Tr. 3799.)

As a department manager, Gurule interviewed approximately

six job applicants in the first round of the interview process from

approximately late 2012 to mid–2013. Gurule received her in-

terview assignments sporadically, depending on which hourly

managers were available. (Tr. 304, 324–328.)

5. Findings of fact—Michael McKeown’s job duties

From approximately October 2012 to August 2013, Michael

McKeown worked as the department manager for the foods de-

partment in Walmart store 2571, located in Federal Way, Wash-

ington. In that capacity, McKeown handled price changes, or-

dering, stocking, feature planning, setting up modular displays,

returns, and freight. McKeown also assigned tasks to the two

(and occasionally three) additional associates who worked in

foods, with the assignments including routine tasks, as well as

tasks that McKeown’s supervisor identified for the day. Alt-

hough McKeown made an effort to assign tasks to the associate

who had the ability to complete the work, his assignment options

were limited because on most shifts, only McKeown and perhaps

one other associate were on duty. McKeown did not have the

authority to hire, fire, recall (from layoff), promote, transfer or

discipline associates, and did not have the authority to resolve

associate grievances. (Tr. 3703, 3705–3706, 3709–3712, 3739,

4062, 4077–4078.)

On one or two occasions in 2012 and 2013, Walmart asked

McKeown to interview a job applicant for the first round inter-

view of the application process. (Tr. 3712–3713, 3742, 3785.)

6. Findings of fact—John Smith’s job duties

During the relevant time period, John Smith worked in Fed-

eral Way, Washington store 2571 as the department manager for

the automotive, fabrics and crafts departments. As department

manager in those areas, Smith handled price changes and orders.

In addition, each day, an assistant manager provided Smith with

a list of tasks to complete, and Smith either completed the tasks

himself, or delegated the task to one of the associates in his de-

partment. (Tr. 3504–3505, 3812, 4062, 4076–4077.) There is

no evidence that Smith had the authority to hire, fire, recall (from

layoff), promote, transfer or discipline associates, nor is there ev-

idence that Smith had the authority to resolve associate griev-

ances. Somewhat frequently (12 times in 2013, and 5 times in

2012), Smith did interview job applicants in the first round of the

application process. (Jt. Exh. 513; R. Exh. 272; Tr. 3404–3409.)

7. Analysis of supervisory status

Of the 12 supervisory functions set forth in Section 2(11) of

the Act, Walmart maintains that the four department managers

discussed in this section held the authority to assign, hire and/or

responsibly direct other associates. As described below, I do not

find that Gilbert, Gurule, McKeown, or Smith held such author-

ity, and thus I find that Gilbert, Gurule, McKeown and Smith are

not supervisors within the meaning of Section 2(11) of the Act.

In analyzing whether the department managers are supervisors un-

der Sec. 2(11), I have given little weight to the job descriptions that are

in the evidentiary record. It is well established that conclusory evidence

and evidence of mere “paper authority” does not establish that an indi-

vidual is a statutory supervisor. Modesto Radiology Imaging, Inc., 361

NLRB 888, slip op. at 2 (discussing conclusory evidence); Lucky Cab

Co., 360 NLRB 271, 272 (2014) (discussing “paper authority”).

WALMART STORES, INC. 43

a. Authority to assign

The Board has explained that the term “assign” refers to the

“act of designating an employee to a place (such as a location,

department, or wing), appointing an employee to a time (such as

a shift or overtime period), or giving significant overall duties,

i.e. tasks, to an employee.” Notably, while assigning an em-

ployee to a certain department, shift or significant set of overall

tasks would generally qualify as examples of the authority to as-

sign under Section 2(11), ad hoc instructions that employees per-

form discrete tasks (e.g., telling an employee to stock bananas

before stocking oranges) do not constitute examples of the au-

thority to assign for purposes of Section 2(11). Oakwood

Healthcare, 348 NLRB at 689; see also Entergy Mississippi,

Inc., 357 NLRB 2150, 2156 (2011).

Walmart failed to show that the department managers have the

authority to assign for purposes of Section 2(11). There is no

evidence that department managers can designate associates to a

place or time for their work. The evidentiary record also does

not establish that department managers have the authority to as-

sign significant overall duties to associates. To be sure, depart-

ment managers may give instructions to the associates in their

departments, but Walmart did not show that those instructions

were anything beyond either ad hoc instructions to perform dis-

crete tasks or instructions that the department managers were

merely relaying from salaried managers. (See Analysis Section

II(B)(3)–(6), supra.)

In that connection, I also find that Walmart failed to show that

the department managers use independent judgment when mak-

ing assignments. Instead, the evidentiary record shows that de-

partment managers essentially act as a conduit for instructions

from higher level managers who create daily task lists for each

department. Indeed, Walmart did not present any evidence that

Gilbert, Gurule or Smith engaged in any analysis before passing

along tasks from the list to associates in their departments. (See

Analysis Section II(B)(3)–(4), (6), supra.) As for McKeown,

while he did testify that he considers which associates would be

best suited to complete the tasks set forth by salaried managers,

McKeown’s authority was limited to essentially deciding be-

tween whether to do the task himself, or delegate it to one of the

two other associates who would be working in the department

each day. Walmart did not develop the record regarding McKe-

own’s judgment beyond those basic facts, thus leaving the im-

pression (based on McKeown’s testimony) that McKeown’s

judgment in making assignments was limited and straightfor-

ward. (See Analysis Section II(B)(5), supra.) Since independent

judgment must involve “forming an opinion or evaluation by dis-

cerning and comparing data” and must involve a “degree of dis-

cretion that rises above ‘routine or clerical,’” I find that Walmart

fell short of demonstrating that any of the four department man-

agers (including McKeown) exercised independent judgment

when making assignments in their departments. See Croft Met-

als, Inc., 348 NLRB 717, 721 (2006); see also Cook Inlet Tug &

Barge, Inc., 362 NLRB 1153, 1153 (2015) (citing Oakwood

Healthcare, Inc., 348 NLRB at 693 and explaining that if there

is only one obvious and self-evident choice, then the assignment

is routine or clerical in nature and does not implicate independent

judgment); Modesto Radiology Imaging, Inc., 361 NLRB 888,

slip op. at 3–4 (declining to find that an alleged supervisor used

independent judgment when reassigning work to cover absent

employees because the union did not present evidence about the

procedures the alleged supervisor used or the factors she consid-

ered when making those reassignments).

b. Authority to hire

Section 2(11) of the Act also identifies the authority to hire

job applicants as one of the twelve established supervisory func-

tions. The Board has held, however, that the authority to effec-

tively recommend against hiring a job applicant also can estab-

lish supervisory authority. Sheraton Universal Hotel, 350

NLRB 1114, 1118 (2007); HS Lordships, 274 NLRB 1167, 1173

(1985). The authority to effectively recommend action (in hir-

ing, or otherwise) generally means that the recommended action

is taken without independent investigation by superiors, and not

simply that the recommendation is ultimately followed. Repub-

lican Co., 361 NLRB 93, 97 (2014) (noting that “[a]bsent addi-

tional evidence, an individual does not effectively recommend

hiring where acknowledged supervisors also interview the can-

didates”).

Walmart contends that the department managers at issue here

are supervisors because they have the authority to effectively

recommend that Walmart eliminate certain job applicants from

the hiring process by giving those applicants low ratings in their

first round interviews. I do not find that argument to be persua-

sive. First, I note that the department managers do not actually

make any recommendations about job applicants. To the con-

trary, the department managers merely evaluate the candidates’

responses to interview questions. Walmart controls which job

applicants move on to second round interviews, because

Walmart sets the computer formula that determines what first

round interview ratings qualify applicants to continue with the

job application process. (See Analysis Section II(B)(2)(b), su-

pra.) Thus, the department managers here merely provide data

for Walmart’s computer system, which in turn makes the “rec-

ommendation” that certain job applicants be eliminated from fur-

ther consideration.

Second, even if we assume arguendo that the department man-

agers essentially recommend against hiring certain job applicants

when they assign them low ratings based on the first round inter-

view, Walmart failed to show that the department managers ex-

ercise independent judgment in making those recommendations.

As noted above, to exercise independent judgment, the depart-

ment managers must, at a minimum, act, or effectively recom-

mend action, free of control of others and form an opinion or

evaluation by discerning and comparing data. That standard is

not satisfied here, because the evidentiary record shows that

Walmart uses its computer system (rather than its department

managers) to determine which job applicants should be elimi-

nated from the hiring process based on first round interview rat-

ings. (See Section II(B)(2), supra.) Accordingly, I find that Gil-

bert, Gurule, McKeown, and Smith do not possess sufficient au-

thority to hire, or sufficient authority to effectively recommend

for or against hiring Walmart job applicants.

c. Authority to responsibly to direct

To have the authority to responsibly direct, “the person direct-

ing and performing the oversight of the employee must be ac-

countable for the performance of the task by the other, such that

44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

some adverse consequence may befall the one providing the

oversight if the tasks performed by the employee are not per-

formed properly.” Oakwood Healthcare, 348 NLRB at 691–

692. “Thus, to establish accountability for purposes of responsi-

ble direction, it must be shown that the employer delegated to the

putative supervisor the authority to direct the work and the au-

thority to take corrective action, if necessary. It also must be

shown that there is a prospect of adverse consequences for the

putative supervisor if he/she does not take these steps.” Id.; see

also Cook Inlet Tug & Barge, Inc., 362 NLRB 1153, slip op. at

2–3.

Overall, Walmart did not present a strong case that the depart-

ment managers here have the authority to responsibly direct.

While the department managers are delegated some basic author-

ity to direct the work of associates in their departments,

Walmart’s evidence about any authority that department manag-

ers have to take corrective action was limited to Gilbert and Gu-

rule stating that they might notify a supervisor if one of the as-

sociates in their areas was not completing their work tasks ap-

propriately. (See Analysis, Section II(B)(3)–(6), supra.)

Beyond those shortcomings in Walmart’s proof on this issue,

Walmart did not show that department managers are accountable

for purposes of responsible direction. Specifically, there is no

evidence that department managers face a prospect of adverse

consequences if they do not take appropriate steps to direct the

associates in their departments. To be sure, Walmart presented

evidence that department manager performance evaluations in-

clude ratings on “competencies” that relate to directing and over-

seeing the work of other associates. Walmart also established

that in general, performance evaluations affect pay raises that de-

partment managers may receive each year. (See Analysis, Sec-

tion II(B)(2), supra.) Those tenuous connections, however, are

simply not enough to satisfy Walmart’s burden of proof.

The Board’s decision in Golden Crest Healthcare Center is

instructive. In that case, the Board noted that the respondent did

not present any evidence that any charge nurses experienced ma-

terial consequences to the terms and conditions of employment

(positive or negative) based on their performance in directing the

work of certified nurse assistants (CNAs). Nor did the respond-

ent present evidence that it informed charge nurses that any ma-

terial consequences might result from their performance in di-

recting CNAs. And, although the respondent pointed out that its

performance evaluation forms rated charge nurses on their per-

formance in directing CNAs, that evidence fell short because the

respondent did not show that any action might be taken as a re-

sult of the charge nurses’ ratings on that aspect of the perfor-

mance evaluation forms (either by itself, or in combination with

ratings in other areas). Accordingly, the Board found that the

In circumstances where the employees do not have an established

work schedule (e.g., because the employees are on layoff), the Board has

held that it is reasonable to require the General Counsel to show that the

employees “engaged in some overt action giving [the employer] reason-

able notice of their strike support.” Brinkerhoff Signal Drilling Co., 264

NLRB 348, 349 fn. 5 (1982); see also Rockwood & Co., 281 NLRB 862,

876 (1986), enfd. 834 F.2d 837 (9th Cir. 1987). The overt action require-

ment in this line of cases is not onerous, however, as the Board has

deemed it to be satisfied when an employee (among other possibilities)

openly participates in picketing activities (see Rockwood & Co., 281

respondent did not show that its charge nurses had the authority

to responsibly direct CNAs or other employees. 348 NLRB 727,

731 (2006).

I find that Walmart’s evidence concerning department manag-

ers’ authority to responsibly direct other associates falls short for

the same reasons that the Board articulated in Golden Crest

Healthcare Center. Walmart did not show that department man-

agers face material consequences to the terms and conditions of

their employment based on the performance of other associates

in their departments, and did not show that it might take action

against any department managers based on their performance

evaluation ratings concerning directing the work of other associ-

ates, either by itself or in combination with other ratings. I there-

fore find that Walmart did not establish that department manag-

ers have authority to responsibly direct other associates for pur-

poses of Section 2(11) of the Act.

C. Did Any Associates Provide Insufficient Notice that They

Were on Strike?

In its posttrial brief, Walmart maintained that it did not receive

adequate notice that certain discriminatees were going on strike

during the Ride for Respect. Walmart also maintained that it did

not receive adequate notice about how long certain other dis-

criminatees would be on strike beyond the day they submitted

their strike letter. (See Walmart Posttrial Br. at 84–88, 180–

182.) Both of those defenses fail, however, because the Board

has explained that “the act of going on strike is protected con-

certed activity, regardless of whether the employer had been

given notice of the strike or presented with a prior demand for a

change in working conditions.” Americorp, 337 NLRB 657,

657, 659 (2002); see also Iowa Packaging Co., 338 NLRB 1140,

1144 (2003) (noting that the Act “protects the right of employees

to engage in concerted activities, including the right to strike

without prior notice”). Thus, an employee’s strike activity is

protected even if the employee provides no prior notice to the

employer about the strike or the strike’s length, and simply with-

holds his or her services from the employer by not reporting for

work.

See, e.g., Savage Gateway Supermarket, 286 NLRB

180, 181, 183 (1987) (finding that an employee who missed two

shifts of work because she did not want to cross a picket line was

protected by the Act, even though she did not notify her em-

ployer of her reason for missing work until after she ended her

strike and learned that the employer had removed her from the

payroll), enfd. 865 F.2d 1269 (6th Cir. 1989).

With that being stated, I would be remiss if I did not also point

out that the evidentiary record shows that the discriminatees in

this case clearly notified Walmart that they were on strike (dur-

ing the Ride for Respect, and during the other strikes at issue in

NLRB at 876) or does not report for work despite a past practice of doing

so under a casual work schedule (see Connecticut Distributors, Inc., 255

NLRB 1255, 1266–1267 (1981), enforcement denied on other grounds,

681 F.2d 127 (2d Cir. 1982)).

In any event, Walmart does not contend that this exception applies to

any of the discriminatees in this case. Furthermore, as noted below the

evidentiary record shows that the discriminatees notified Walmart of

their strike activities in a variety of ways (thereby satisfying the overt

action requirement even if that requirement applied here).

WALMART STORES, INC. 45

this case). The alleged discriminatees each withheld their labor

from Walmart by not reporting for scheduled work shifts, and

also notified Walmart of their strike activities through (among

other methods) face-to-face communication; calls to the IVR

system to report that they would be absent from work; strike let-

ters; picketing; and/or return to work letters. (See Analysis, Sec-

tion III(A)–(CC), infra (describing the ways that the discrimi-

natees in this case notified Walmart that they were on strike).)

Thus, even if some form of strike notice were required under

Board law (and I reiterate that there is no such requirement),

Walmart received sufficient notice that the discriminatees were

absent from work because they were on strike.

C. Are “Personal Discussions” about Attendance a

Form of Discipline?

The Board has held that verbal warnings, coachings and rep-

rimands are forms of discipline if they are part of a disciplinary

process (e.g., a progressive disciplinary system) and lay a foun-

dation for future disciplinary action against the employee. See

Alter Care of Wadsworth Center for Rehabilitation, 355 NLRB

565, 565–566 (2010); Oak Park Nursing Care Center, 351

NLRB 27, 28 (2007); Promedica Health Systems, 343 NLRB

1351, 1351 (2004), enfd. in pertinent part 206 Fed. Appx. 405

(6th Cir. 2006), cert denied 127 S.Ct. 2033 (2007). The tell-tale

sign regarding whether a warning, coaching or reprimand lays a

foundation for future discipline is that the employer may con-

sider it at a later date when the employer is deciding whether to

impose discipline and/or what kind of discipline it should im-

pose. Promedica Health Systems, 343 NLRB at 1351–1352.

Although it is clear that a warning, coaching or reprimand is a

form of discipline if it automatically leads to discipline in the

event of a future infraction, an automatic link to future discipline

is not required. Instead, warnings, coachings and reprimands

may qualify as forms of discipline if they lay a foundation for

future discipline, even if the employer retains the discretion re-

garding whether to actually take disciplinary action. Promedica

Health Systems, 343 NLRB at 1351 (explaining that warnings

and reprimands qualify as forms of discipline if they are “taken

into consideration in determining whether further discipline is

warranted”).

Applying the Board’s legal guidelines, I find that the personal

discussions that Walmart conducts with associates about their

absences are a form of discipline. Walmart has a progressive

disciplinary system, and regarding absences, Walmart’s discipli-

nary policy specifically calls for its managers to have a personal

discussion with an associate when the associate accumulates

three occurrences in a rolling 6-month period. Further, Walmart

managers document personal discussions that they have with as-

sociates, and may consider whether an associate is familiar with

the company’s attendance rules (e.g., based on prior personal

discussions, the associate’s longevity with the company, or the

Having found that personal discussions are a form of discipline, I

add that the personal discussions in this case could support an additional,

related violation of Sec. 8(a)(1). Specifically, by conducting personal

discussions that warned associates that their absences during the Ride for

Respect would “count” as occurrences on their attendance record (and

thus could support future discipline for absenteeism), Walmart arguably

unlawfully threatened associates with unspecified reprisals for engaging

associate’s overall track record with attendance) when deciding

whether to issue a written coaching or instead have a personal

discussion with the associate for absenteeism under the progres-

sive disciplinary system. (FOF, Section II(A)(6); see also Tr.

1912, 3486–3487, 3455, 3501, 4602; Jt. Exhs. 237–239, 483–

484, 616, 978, 996, 1011, 1033, 1044, 1094–1096, 1132, 1150,

1258, 1308–1309 (examples of personal discussion logs); Jt.

Exhs. 12(a), 13(a), 14(a), 14(e), 22(a), 64, 204, 1071, 1139–

1140, 1323 (par. 6) (examples of coachings and terminations that

refer to prior personal discussions); GC Exh. 127(a) (pp. 35–36)

(same); R. Exh. 263 (same).) Since Walmart uses personal dis-

cussions about absenteeism in this manner, I find that the per-

sonal discussions constitute a form of disciplinary action because

they are part of Walmart’s disciplinary process and lay a foun-

dation for future discipline. See Good Hope Refineries, 245

NLRB 380, 384 (1979) (finding that counseling sessions about

absences were a form of discipline because counseling sessions

were memorialized in the employee’s personnel file, and because

the employer considered past counseling sessions as a factor

when deciding whether to take more serious disciplinary

measures), enfd. 620 F.2d 57 (5th Cir. 1980), cert. denied 449

US 1012 (1980).

E. Were the Discriminatees Bona Fide Strikers?

Walmart asserts that most of the discriminatees in this case

were not bona fide strikers because, while on strike, they partic-

ipated in educational, media and other nonwork related events

coordinated by the UFCW (e.g., attending community rallies,

publicity events, speeches, or organizational planning meetings)

instead of simply being on a picket line to protest a work-related

complaint. On the other hand, Walmart asserts that other dis-

criminatees were not bona fide strikers because they attended to

personal matters while on strike (e.g., by “chilling” at home,

watching television, or assisting family members). (See

Walmart Posttrial Br. at 78–84, 167, 177–180.) In short,

Walmart faults some discriminatees for doing too much while on

strike, and faults other discriminatees for doing too little.

In support of its argument that some discriminatees were not

bona fide strikers because they attended OUR Walmart and/or

UFCW events while on strike, Walmart relies on a line of cases

in which the Board has held that employers may discipline em-

ployees who walk off the job simply to attend a union meeting

or union rally during work time. See, e.g., Merrillat Industries,

Inc., 307 NLRB 1301, 1305 (1992) (finding that an employer did

not violate the Act when it warned employees that they could be

disciplined if they engaged in an unprotected sickout for the pur-

pose of enabling the employees to attend a union publicity event,

but noting that a sickout to protest pending grievances against

the employer would have been protected); GK Trucking Corp.,

262 NLRB 570, 572–574 (1982) (finding that an employer did

not violate the Act when it discharged employees who missed

in protected activity. See Lancaster Fairfield Community Hospital, 311

NLRB 401, 403 (1993) (explaining that a nondisciplinary “conference

report” that directed an employee to stop expressing complaints about

employment conditions violated Sec. 8(a)(1) because it constituted a

threat of future reprisal for protected activity). I need not consider that

alternate theory (which the General Counsel did not assert) because I

have found that personal discussions are a form of discipline.

46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

work time to attend a union meeting that was unrelated to their

concerns). That line of cases does not apply here because the

evidentiary record shows that each of the discriminatees made it

clear that they were going on strike to protest alleged retaliation

and poor working conditions at Walmart. The fact that some of

the discriminatees chose to attend OUR Walmart events while

out on strike does not change the fact that the purpose of their

strike was to protest working conditions at Walmart. (See FOF,

Section II(J)(2)–(4), supra; Analysis Section III(A)–(CC), infra.)

As for Walmart’s argument that certain strikers were not bona

fide strikers because they did too little while on strike, I am not

aware that the Board has announced any required activities that

a striker must engage in while on strike, apart from withholding

his or her labor, and later making an unconditional offer to return

to work. Each of the discriminatees in this case met those basic

requirements. To the extent that Walmart asserts that employees

must engage in additional activities (such as joining a picket line)

to prove that they are bona fide strikers, I reject that argument

because the Board implicitly has deemed employees to be bona

fide strikers even though they did very little while on strike be-

sides satisfy the basic requirements noted above. See, e.g., Sav-

age Gateway Supermarket, 286 NLRB at 181, 183 (finding that

an employee engaged in protected activity when she decided to

return home and miss work because she did not want to cross a

picket line); Connecticut Distributors, Inc., 255 NLRB 1255,

1266–1267 (1981) (finding that an employee engaged in pro-

tected activity when he did not report to work because of a picket

line, and even though the employee was on vacation for part of

the strike), enforcement denied on other grounds, 681 F.2d 127

(2d Cir. 1982).

III. DISCIPLINE AND DISCHARGE ALLEGATIONS —ADDITIONAL

FINDINGS OF FACT

In this section, I describe the strike activity of each discrimi-

natee during the Ride for Respect.

Most of the operative facts

are not in dispute. However, I note that I generally refrained

from addressing two areas. First, I generally did not deem it nec-

essary to discuss the individual reasons that certain alleged dis-

criminatees articulated for participating in the Ride for Respect.

Such a discussion was not necessary because all of the alleged

discriminatees endorsed the goals articulated in the OUR

Walmart strike letters and return to work letters that are in the

record. Second, I generally did not deem it necessary to resolve

the occasional disputes in the record about who said what when

managers met with alleged discriminatees to: receive strike let-

ters; receive return to work letters; or notify discriminatees that

In discussing the facts that relate to individual associates, I occa-

sionally note certain occasions where the associates went on strike before

the Ride for Respect in 2013 (e.g., strikes in October and/or November

2012). I have noted the prior strike activity primarily for background

purposes. To the extent that the record may show that individual associ-

ates engaged in other activities in support of the Making Change at

Walmart campaign (e.g., joining in rallies, actions, or other activities on

their own time), I do not mention those activities below. I describe the

Making Change at Walmart campaign in detail above (see FOF, Section

B–F, supra), and additional evidence about which associates joined par-

ticular campaign events is, at best, cumulative. In addition, there is no

suggestion that any of the discriminatees engaged in misconduct during

they would be disciplined or discharged. The merits of the dis-

cipline and discharge allegations in this case generally do not

hinge on those conversations, but rather hinge on whether the

discriminatees were engaged in a protected or unprotected strike

when they incurred the unexcused absences that led to the dis-

puted discipline or discharge. To the extent, however, that a par-

ticular conversation is probative, I have discussed it below.

A. Fremont, CA—Store 2989 (Juan Juanitas)

Juan (John) Juanitas began working for Walmart in 2007, and

in 2009 began working as a cart pusher in store 2989, located in

Fremont, California. (Tr. 1323, 1335–1338; R. Exh. 272.)

On May 27–28, 2013, Juanitas notified store management that

he was going on strike by submitting a strike letter and calling

the IVR system to report his absence.

Juanitas participated in

Ride for Respect events in Bentonville, Arkansas, and missed

five scheduled shifts while he was on strike. (Jt. Exhs. 15(a),

16(a), 16(d); R. Exh. 272; Tr. 1367–1369, 1381, 1385–1386.)

On June 7, Juanitas returned to work for his scheduled shift.

(Jt. Exh. 16(b)–(c); Tr. 1388.)

On or about June 9, Walmart issued Juanitas a personal dis-

cussion for attendance, citing Juanitas’ Ride for Respect strike-

related absences as part of the basis for the personal discussion.

(Jt. Exh. 29;

GC Exh. 127(a), p. 22; see also GC Exh. 1(ff)(par.

50(B)) (Respondent admitted that it “reminded [Juanitas] ver-

bally about the attendance policy”); R. Exh. 272 (same).)

B. Lakewood, CA—Store 2609 (Jovani Gomez)

In 2012–2013, Jovani Gomez worked for Walmart as a meat

department sales associate in store 2609, located in Lakewood,

California. (Tr. 4630, 4737, 4742–4743, 5382–5384.)

On May 30, 2013, Gomez signed a strike letter that notified

store management that he was going on strike. Walmart later

received a copy of the strike letter. Gomez also called Walmart’s

IVR system on May 31 to report his absence. While on strike,

Gomez participated in Ride for Respect events in: Pico Rivera,

California; Paramount, California and Bentonville, Arkansas. In

total, Gomez missed seven scheduled shifts while he was on

strike. (Jt. Exhs. 788, 791, 792; Tr. 4638, 4642–4644, 4750–

4756, 5378–5379, 5395.)

On June 9, Gomez presented store management with a letter

that reiterated that he had been on strike and communicated his

unconditional offer to return to work. That same day, Gomez

returned to work for his scheduled shift. (Jt. Exhs. 786, 789; Tr.

4636, 4642–4643, 4758–4760, 5379.)

On June 21, Walmart discharged Gomez because he had an

active third written coaching, and Gomez’s strike-related

the Making Change at Walmart campaign that rendered their participa-

tion in the Ride for Respect (or other strikes at issue here) unprotected.

Juanitas also went on strike on November 23, 2012. On that occa-

sion, Juanitas called the IVR system to report his absence, and also sub-

mitted a return to work letter dated November 23 that noted he had been

out on strike. (Jt. Exhs. 15(b), 16(d); R. Exh. 272.)

Jt. Exh. 29 bears a handwritten “communication” date of June 24,

2013, and states that Juanitas received a personal discussion for time and

attendance. (Jt. Exh. 29.) Store Manager Kapiolani Faiaipau did not

dispute the authenticity or accuracy of Joint Exhibit 29 but indicated that

he was not the one who spoke with Juanitas for the June 2013 personal

discussion. (Tr. 1370–1373.)

WALMART STORES, INC. 47

absences during the Ride for Respect (along with other absences)

constituted additional unexcused absences that called for termi-

nation under Walmart’s disciplinary policy. (Jt. Exhs. 29, 772,

778, 790; GC Exh. 2609–4; Tr. 4630–4631, 4635–4641, 4762–

4766, 5393–5401.)

C. Pico Rivera, CA—Store 2886 (Evelin Cruz and

Victoria Martinez)

In 2012–2013, Evelin Cruz and Victoria Martinez worked in

store 2886, located in Pico Rivera, California. Cruz worked as a

department manager in the photo center,

while Martinez

worked as a photo sales associate. (Tr. 4720, 4730, 4781–4782,

4784, 4880, 4900, 4933–4936, 5341, 5353, 5356.)

On October 4, November 20 and November 23, 2012, Cruz

and Martinez joined other OUR Walmart supporters in going on

strike. Cruz and Martinez notified Walmart that they were going

on strike by: calling the IVR system to report that they would be

absent for each strike; submitting a strike letter for November

20; and submitting return to work letters for October 5 and No-

vember 20. (Jt. Exhs. 762, 765–766, 768, 854–855; GC Exh.

2886–5; R. Exh. 2886 EC1; Tr. 4805–4806, 4815–4820, 4852,

4889–4893, 4942–4958.) Cruz and Martinez also signed strike

letters and return to work letters for the November 23, 2012

strike and gave those letters to an OUR Walmart organizer to

send to Walmart (as had been done with prior strikes), but it is

not clear that the organizer forwarded those letters to Walmart.

(See GC Exhs. 2886–2, 2886–3; Tr. 4817, 4821–4822.)

A few weeks later, on December 12, 2012, assistant manager

Craig Pasillas called Martinez to the office for a meeting. In that

meeting, Pasillas notified Martinez that she had four active oc-

currences on her attendance record, and had Martinez sign the

following statement:

For Associates with Four (4) or More Occurrences in

the Previous Six (6) Months

On [December 17, 2012] my manager reminded me that I have

4 active occurrences under the time and attendance policy. My

manager also told me that my next occurrence could result in

discipline and that I could receive formal discipline under that

policy right now, but that the management team decided to give

me an extra, one-time reminder notice instead. My manager

gave me a copy of the time and attendance policy and asked me

to read it and ask any questions I have. I will do that.

(Jt. Exh. 860; Tr. 4958–4963.) When Martinez asked Pasillas if

he was sure that she (Martinez) had four absences, Pasillas said

“yes.” In confirming that Martinez had four absences, Pasillas

gave Martinez a printout showing that Martinez called the IVR

system to report absences on November 20 and 23, thereby indi-

cating that those two absences resulted in two of the four active

occurrences on Martinez’s attendance record (the remaining oc-

currences resulted from accumulated tardies).

(GC Exh. 2886–

Although Cruz was a department manager, Walmart abandoned its

argument that Cruz was a statutory supervisor under Section 2(11) of the

Act during the relevant time period. (See Analysis, Section II(B), supra.)

Although Martinez did call the IVR system to report that she would

be absent on November 20, Martinez was not scheduled to work that day

and was not charged with an unexcused absence. Walmart did charge

5; Tr. 4958–4963, 4980–4981.) There is no evidence that Cruz

was called in for a similar meeting.

On May 30, 2013, Cruz and Martinez notified Walmart that

they were going on strike by submitting a strike letter and calling

the IVR system to report their absence.

Martinez also called

the IVR system each day from May 31 to June 9 (including days

on which she was not scheduled to work) to report her continued

absences during the strike. (Jt. Exhs. 763, 768, 853, 855; Tr.

4727–4728, 4823, 4825–4828, 4965–4969.)

Cruz joined other OUR Walmart supporters in riding on one

of the Ride for Respect buses and participated in Ride for Re-

spect events in: La Quinta, California; Tempe, Arizona; Clovis,

New Mexico; Oklahoma City, Oklahoma; and Bentonville, Ar-

kansas. Martinez, meanwhile, attended to some personal mat-

ters, and then flew to Bentonville on June 2 to join in Ride for

Respect activities until June 7. Cruz missed seven scheduled

shifts while on strike, while Martinez missed eight scheduled

shifts. (Jt. Exhs. 769, 856; R. Exh. 1805 VID1; Tr. 4828–4830,

4832, 4847–4852, 4903–4904, 4906, 4964–4965, 4969–4970,

4973, 4984–4987.)

On or about June 10, Cruz and Martinez (with the assistance

of an OUR Walmart organizer) presented store management

with a letter that reiterated that they had been on strike and com-

municated their unconditional offer to return to work. Cruz and

Martinez worked their scheduled shifts on June 10. (Jt. Exhs.

760, 767, 852; Tr. 4830–4831, 4854–4855, 4965–4966, 4971–

4973, 4986–4987, 5006–5007.)

On June 21, Walmart issued first written coachings to Cruz

and Martinez, citing their strike-related absences as part of the

basis for the coachings. (Jt. Exhs. 752, 844; Tr. 4721–4724,

4727, 4730–4731, 4833–4835, 4974–4977, 5342, 5349–5350.)

D. Placerville, CA—Store 2418 (Yvette Brown, Barbara Col-

lins, Norma Dobyns, Matthew Gauer, Margaret Hooten

and Amy Stinnett)

In 2012–2013, Yvette Brown, Barbara Collins (a.k.a. Barbara

Andridge—hereafter referred to as B. Collins), Norma Dobyns,

Matthew Gauer, Margaret Hooten, and Amy Stinnett each

worked in Walmart store 2418, located in Placerville, California.

During that timeframe, they held the following positions:

Brown—fabrics and crafts sales associate; B. Collins—electron-

ics sales associate; Dobyns—cashier; Gauer—sales associate;

Hooten—lawn and garden sales associate; and Stinnett—cus-

tomer service desk associate/cashier. (Tr. 372, 374–375, 466–

467, 514–515, 574, 635, 692–693, 1053–1059, 1770, 1780,

1958; R. Exh. 272.)

On May 28, 2013, Brown, B. Collins, Dobyns, Gauer, Hooten

and Stinnett signed a strike letter to notify store management that

they were going on strike (an OUR Walmart organizer faxed the

letter to Walmart on or about June 1, and again on June 8 – it is

not clear whether Walmart received the June 1 fax). Gauer,

Hooten and Stinnett also verbally notified (e.g., by reading a

Martinez with an unexcused absence on November 23. (Jt. Exhs. 853,

855–856.)

On May 21, Cruz told an assistant manager that she was not going

to come to work for a couple of weeks but stated that the reasons for her

forthcoming absence were personal. (Tr. 4846–4847.)

48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

strike script) one of the managers in the store that they were go-

ing on strike, and Brown, B. Collins, Dobyns, Gauer, Hooten,

and Stinnett called the IVR system to report that they would be

absent on May 28 (or May 27 and 29, as to Stinnett and Hooten,

respectively, since they were not scheduled to work on May 28).

(Jt. Exhs. 9(d), 10(d), 12(d), 13(c)–(d), 14(c)–(d), 52; GC Exhs.

9, 2418–4(a), 2418–8, 2418–9(a),

2418–18 (p. 26); R. Exh.

272; Tr. 386–391, 472–473, 475–478, 497–499, 533–536, 539–

540, 619–623, 649–656, 686–689, 715–720, 1161, 1165–1166,

1194–1197, 1253–1254, 1271–1272, 1791, 1888–1890, 1957–

1964, 1985–1986; see also Jt. Exh. 9(d) and GC Exh. 2418–18

(p. 22) (indicating that B. Collins also called the IVR system to

report that she would be absent on May 31); Jt. Exh. 11(d) (same,

regarding Dobyns’ calls to IVR system on June 2 and 9.)

connection with telling store management that she was going on

strike, Stinnett also notified management that she was giving two

weeks’ notice and did not plan to return to work after traveling

to Bentonville. (Tr. 1268, 1960–1962.)

While on strike, Brown, B. Collins, Dobyns, Gauer, Hooten

and Stinnett participated in Ride for Respect events in: Salt Lake

City, Utah; Denver, Colorado; and Bentonville, Arkansas.

Gauer remained in California to take care of a family situation.

Brown, Collins, Dobyns, Gauer, Hooten, and Stinnett each

missed between eight and ten scheduled shifts while on strike.

(Jt. Exhs. 9(b)–(c), 10(b)–(c), 11(b)–(c), 12(a), 13(a), 14(b)–(c),

86 (p. 3) (photo of Brown and Stinnett in Denver); R. Exhs. 9,

14 (photo of Dobyns in Bentonville), 272, 2125 VID2, ID21; Tr.

388–389, 394–395, 478–479, 500–502, 532, 538–539, 545–546,

548–550, 616, 625, 647–648, 651, 653–654, 656–657, 714, 720,

724.)

On or about June 10, Brown, B. Collins, Dobyns, Gauer,

Hooten and Stinnett read and presented store management with

a letter that reiterated that they had been on strike and communi-

cated their unconditional offer to return to work. Stinnett also

notified management that she was rescinding her two-week’s no-

tice. Brown, B. Collins, Dobyns, Gauer, Hooten, and Stinnett

then reported to work their scheduled shifts on June 11. (Jt.

Exhs. 8(a), 9(b), 10(b), 11(b), 12(b), 13(b), 14(b); R. Exh. 272;

Tr. 391–392, 479–480, 546–549, 607, 658–659, 721–727, 1226–

1227, 1962–1963.)

On June 22, Walmart issued first written coachings to Gauer

and Hooten and a second written coaching to Stinnett, citing their

Shift Manager Aaron Bornhoft clarified that contrary to his asser-

tion in GC 2418–9(a), Brown did not work on May 30. (Tr. 1225–1226;

see also Jt. Exh. 10(b).)

B. Collins and Hooten previously went on strike on October 8, 201,

and joined Brown and Gauer in going on strike on November 23, 2012.

B. Collins and Hooten submitted a strike letter for the October 8 strike,

and all of the associates listed here submitted return to work letters for

the October 8 and November 23 strikes. In addition, Brown, B. Collins,

Gauer and Hooten read a strike script to management and called the IVR

system for the November 23 strike. (Jt. Exhs. 8(b)–(c), 9(d), 10(d), 51,

70; Tr. 379–383, 531–532, 559–562, 587–597, 607–608, 663–665, 733–

738, 770–771, 807–808, 812, 1824; see also R. Exh. 3 (clips 6–7) (show-

ing the November 23, 2012 action).)

After returning to the Placerville area on June 8, Brown, B. Collins,

Dobyns and Stinnett attended a Women of Labor convention in Sacra-

mento on June 9. (Tr. 813–816, 819–820.)

strike-related absences as part of the basis for the coachings.

Walmart did not charge Gauer, Hooten and Stinnett with any

“no-call/no-show” absences because they each spoke with a

manager before going on strike. (Jt. Exhs. 12(a), 13(a), 14(a),

29; R. Exhs. 36, 38, 272; Tr. 393–395, 660–662, 1206–1208,

1215, 1226, 1279–1281, 1294–1298, 1817–1818, 1892–1893,

1962–1963, 2000–2001.)

From June 22–29, Walmart discharged Brown, B. Collins and

Dobyns for “job abandonment/three days unreported absence,”

citing their strike-related absences as part of the basis for the dis-

charges. Specifically, Walmart determined discharge was appro-

priate under its disciplinary policy because Brown, B. Collins

and Dobyns did not speak to a manager before going on strike

and thus accumulated three or more “no-call/no-show” absences

on dates during the Ride for Respect. (Jt. Exhs. 9(a), 10(a),

11(a), 29, 90; GC Exh. 2418–5(b); R. Exhs. 35, 37; Tr. 480–482,

551–557, 623–625, 728–733, 1137–1140, 1206–1207, 1214–

1215, 1271–1277, 1285–1288, 1300–1305, 1307–1309, 1771–

1778, 1780–1789, 1805–1807, 1809–1810, 1817–1818, 1891–

1893, 1951–1954.)

E. Richmond, CA—Store 3455 (Raymond Bravo,

Louis Callahan and Pamela Davis)

1. Raymond Bravo and Pamela Davis

In 2012–2013, Raymond Bravo and Pamela Davis worked in

store 3455, located in Richmond, California. Bravo worked as

an overnight maintenance associate, while Davis worked as an

overnight stocker. (Tr. 822–823, 1440–1442, 1490, 1520, 1546,

1569; R. Exh. 272.)

On May 29, Bravo notified Walmart that he was going on

strike by reading a strike script to one of the managers at his store

and faxing in a strike letter. Davis called Walmart’s IVR system

on June 2 to report her absence. (Jt. Exhs. 17(b), 22(d), 94(a) (tab

94); GC Exhs. 9, 3455–7; R. Exh. 272; Tr. 833–835, 837–838,

840, 1500.)

Bravo joined other OUR Walmart supporters in

riding on one of the Ride for Respect buses and participated in

Ride for Respect events in: Placerville, California; Colorado; and

Bentonville, Arkansas. Davis flew to Bentonville to join in the

Ride for Respect events at that location. Bravo and Davis re-

spectively missed ten and two scheduled shifts while on strike.

(Jt. Exhs. 18(b)–(c), 22(b)–(c); R. Exhs. 272, 2125 VID2, ID21;

Bravo and Davis also went on strike on October 9, 2012. In con-

nection with that strike, Bravo and Davis submitted a strike letter dated

October 9 and a return to work letter dated October 12. Bravo also called

the IVR system on October 9 to report his absence and attempted to read

a strike script to one of the managers in his store but was not successful

because the manager refused to listen. (Jt. Exhs. 17(d)–(e), 18(d), 94 (tab

10); R. Exh. 219; Tr. 846–851, 2620–2621; see also R. Exhs. 1 VID1,

ID15.) In addition, Bravo participated in a work stoppage on or about

November 2 (submitting a return to work letter dated November 2), and

Bravo and Davis participated in a strike on or about November 23 (Bravo

and Davis each called the IVR system, and Bravo also submitted a strike

letter and read strike scripts to notify Walmart of his absence and of his

unconditional offer to return to work). (Jt. Exhs. 17(c), 18(d), 22(d); GC

Exhs. 28(c), 29(c); R. Exhs. 77(a)–(d), 220, 272; Tr. 846–847, 852–853,

1488, 2622–2625.)

Davis had limited availability on her schedule, and thus at most

worked 2 days a week. (Tr. 1520–1521.)

WALMART STORES, INC. 49

Tr. 308, 340, 831, 835–837, 839–840, 1495–1497, 1568; see also

GC Exhs. 3455–6, 3455–7, 3455–12.)

On June 9, Davis presented store management with a letter

that reiterated that she had been on strike and communicated her

unconditional offer to return to work. Bravo submitted a similar

return to work letter on June 12, and read a script explaining that

he was returning to work. Davis worked her scheduled shift on

June 9, and Bravo worked his scheduled shift on June 12. (Jt.

Exhs. 17(a), 18(b), 21(a), 22(b), 94(a) (tab 94); GC Exh. 9; R.

Exh. 272; Tr. 840–843, 1500.)

On June 24, Walmart decided that it would hold both Bravo

and Davis accountable for their strike-related absences by dis-

charging Bravo and issuing a coaching to Davis.

(Jt. Exh. 29.)

On June 27, Walmart discharged Bravo because he had an ac-

tive third written coaching,

and his strike-related absences dur-

ing the Ride for Respect constituted additional unexcused ab-

sences that called for termination under Walmart’s disciplinary

policy. (Jt. Exhs. 18(a), 29, 33; Tr. 844–846, 1526, 1528–1529,

1571.)

On July 30, Walmart discharged Davis because she had an ac-

tive third written coaching, and had accrued thirteen additional

unexcused absences (including two strike-related absences dur-

ing the Ride for Respect) that called for termination under

Walmart’s disciplinary policy.

Of the thirteen unexcused ab-

sences listed on Davis’ exit interview/termination paperwork,

nine unexcused absences occurred after Davis ended her strike

and returned to work on June 9. (Jt. Exhs. 22(a), 22(e), 29; GC

Exh. 3455–4; R. Exh. 272; Tr. 1500–1502, 1524–1526, 1576–

1577.)

2. Louis Callahan

Like Bravo and Davis, Louis Callahan also worked in store

3455, located in Richmond, California during the relevant time

period. Callahan worked as an overnight stocker while em-

ployed by Walmart. (Tr. 1425, 1442, 1508, 1520, 1569; R. Exh.

272.)

On February 15, Walmart management at store 3455 issued a

third written coaching to Callahan, citing Callahan’s poor attend-

ance/punctuality. Callahan acknowledged receiving the coach-

ing. On the coaching paperwork, Walmart stated as follows

about Callahan’s attendance and performance:

Management has to assign extra task[s] to associates to get

Louis Callahan’s task[s] done when he does not report to work

when scheduled. He also gets behind in [completing] his own

task[s] when [he] reports to work late. This behavior of Louis

brings morale down in associates. The department does not get

stocked . . . which results in poor instock and loss of sales,

which affects my share for the associates.

It is not clear why Walmart indicated on June 24 that Davis would

receive a coaching (instead of being discharged), since Davis had an ac-

tive third written coaching on her disciplinary record as of June 24. (See

Jt. Exh. 22(e); see also Jt. Exh. 29 (including a handwritten note that

Davis had a third written coaching).)

In a separate case, I found Bravo’s third written coaching (issued

on November 7, 2012) to be unlawful. Walmart Stores, Inc., Case 32–

CA–090116, slip op. at 40–41 (2014).

In February 2013, Davis applied for a leave of absence for medical

reasons and missed several shifts before and after the Ride for Respect

(Jt. Exh. 20(b).)

As previously noted, on May 1–6, certain OUR Walmart as-

sociates traveled to Birmingham, Alabama to participate in a na-

tional leadership bootcamp and develop the concept for the Ride

for Respect. (FOF, Section II(I), supra.) On an undated docu-

ment that compiled photographs of the Birmingham meeting par-

ticipants, Walmart identified one of the participants as Louis

Callahan. (GC Exh. 24(f) at p. 5.) The record does not establish

whether Callahan in fact attended the meeting or was correctly

identified in the photograph. The record also does not establish

that any members of Walmart management at store 3455 were

aware that Walmart identified Callahan as one of the Birming-

ham meeting participants.

On May 28, Walmart management at store 3455 prepared an

exit interview form for Callahan. On that form, Walmart stated

that it was discharging Callahan effective May 28 because his

job performance was below company expectations. Specifically,

Callahan’s store manager did not believe that Callahan was

stocking and zoning his areas at an acceptable level. However,

Walmart did not inform Callahan that he was discharged before

Callahan left work on May 28 (the last day that Callahan worked

for Walmart). (Jt. Exhs 20(a), 20(d); R. Exh. 272; Tr. 1509,

1511–1515, 1555.)

On May 30, Callahan submitted a strike letter to Walmart.

There is no evidence that anyone at Walmart notified (or had an

opportunity to notify) Callahan at that time that he was dis-

charged. Callahan joined other OUR Walmart supporters in

traveling to Bentonville, Arkansas for the Ride for Respect, and

in participating in Ride for Respect events in Bentonville. (Jt.

Exhs. 94(a) (tab 94); R. Exhs. 272, 3455 LC1, ID13; Tr. 1515,

1555, 2636.)

On June 12, Callahan presented store management with a let-

ter that reiterated that he had been on strike and communicated

his unconditional offer to return to work. There is no evidence,

however, that Walmart allowed Callahan to return to work at that

time. A few weeks later, Callahan asked to meet with the store

manager about getting his job back. Callahan’s attempts to re-

turn to work were not successful. (Jt. Exh. 19(a); R. Exh. 272;

Tr. 1515–1517.)

F. San Leandro, CA—Store 5434 (Andrea Carr,

Cecelia Gurule and Dominic Ware)

In 2012–2013, Andrea Carr, Cecelia Gurule, and Dominic

Ware worked in store 5434, located in San Leandro, California.

Carr worked as an associate in the photo center, while Gurule

worked as a department manager in the lawn and garden depart-

ment

and Ware worked as a cart pusher. (Tr. 64–66, 302, 318,

400–402, 1599, 1694, 1699, 1701, 1703.)

while she was waiting for Walmart’s human resources office to respond

to her leave request. At the same time that Davis was missing shifts with

Walmart, however, she worked periodically as a stocker for an outside

vendor that did business at Walmart. (Tr. 1521–1523, 1556–1558; GC

Exh. 3455–8 (noting that as of May 15, Davis had 29 “active” absences

on her attendance record).)

Although Gurule was a department manager, Walmart failed to

show that she was a statutory supervisor under Sec. 2(11) of the Act dur-

ing the relevant time period. (See Discussion and Analysis, Section

II(B), supra.)

50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

On May 26, 2013, Ware called the IVR system to report his

absence, and read a strike script to one of the customer service

managers in his store (who, in turn, reported Ware’s strike to an

assistant manager). Carr notified Walmart on May 27 that she

was going on strike by calling the IVR system to report her ab-

sence and joined Ware in submitting a strike letter dated May 28.

Gurule called Walmart’s IVR system each day from June 3–7 to

report her absence. (Jt. Exhs. 23(b), 24(d), 27(d); GC Exhs. 9,

5434–1(a)–(b), 5434–20, 5434–21, 5434–22, 5434–23, 5434–

24; Tr. 100–104, 111–113, 307–308, 333, 364, 407–413, 447,

1685, 1687, 1695–1696, 1699, 1762–1763, 1927–1929.)

Carr and Ware joined other OUR Walmart supporters in riding

on one of the Ride for Respect buses, and participated in Ride

for Respect events in: Fremont, California; Richmond, Califor-

nia; San Jose, California; San Francisco, California; Sacramento,

California; Denver, Colorado; Wichita, Kansas; and Bentonville,

Arkansas.

Gurule flew directly to Bentonville to join in Ride

for Respect events there, in part because she did not want to miss

additional work time by riding on the bus. Gurule missed five

scheduled shifts while on strike, while Carr missed six scheduled

shifts and Ware missed eight scheduled shifts. (Jt. Exhs. 24(b)–

(c), 26(b)–(c), 27(b)–(c); R. Exhs. 3 (clip 8), 2125 VID2, ID21;

Tr. 88, 113–130, 209–211, 255, 308–309, 338–342, 413–414,

448–455, 1661, 1684, 1686, 1702, 1704–1705.)

On or about June 9, Carr and Ware read a script and presented

store management with a letter that reiterated that they had been

on strike and communicated their unconditional offer to return

to work. Gurule read and presented a similar return to work letter

on June 10. Carr and Ware worked their scheduled shifts on June

9, and Gurule worked her scheduled shift on June 10. (Jt. Exhs.

23(a), 24(b), 25(a), 26(b), 27(c), 94(a) (tab 57); Tr. 132–135,

309–310, 364–365, 415–417.)

On June 23 and 24, Walmart issued a third written coachings

to Carr and Gurule, respectively, citing their strike-related ab-

sences as part of the basis for the coachings. (Jt. Exhs. 24(a),

26(a), 29; Tr. 310–311, 417–421, 459–460, 1685–1687, 1707–

1712, 1719–1723, 1909–1917, 1922–1924.)

On July 3, Walmart discharged Ware because he had an active

third written coaching and had additional unexcused absences

(including strike-related absences during the Ride for Respect)

that called for termination under Walmart’s disciplinary policy.

(Jt. Exhs. 27(a), 27(e), 29; Tr. 136–140, 274, 1685–1686.)

G. Aurora, CO—Store 5334 (Barbara Gertz)

During the relevant time period, Barbara Gertz worked for

Walmart as an overnight stocker in store 5334, located in Aurora,

Colorado. (Jt. Exh. 1328.)

On May 31, 2013, Gertz notified store management that she

was going on strike by calling the IVR system to report her ab-

sence, and by notifying a manager by telephone that she was go-

ing on strike. Gertz missed seven scheduled shifts while she was

on strike. (Jt. Exhs. 884–885, 1328.)

Ware also went on strike on October 9, 2012, and notified Walmart

of that fact by submitting a strike letter dated October 9, 2012, and a

return to work letter dated October 12, 2012. In addition, on November

14, 2012, Gurule and Ware submitted a strike letter and conducted a one-

hour work stoppage in memory of a deceased coworker. Finally, Ware

went on strike on November 23, 2012, and notified Walmart by telling

On June 9, Gertz presented store management with a letter that

reiterated that she had been on strike and communicated her un-

conditional offer to return to work. That same day, Gertz re-

turned to work for her scheduled shift. (Jt. Exhs. 880, 882,

1328.)

On June 18, Gertz met with an assistant manager and a support

manager in her store. The managers advised Gertz that she had

more absences on her record than were allowed under Walmart’s

attendance policy, and cited Gertz’ Ride for Respect strike-re-

lated absences as part of the basis for their remarks. (Jt. Exh.

1328; see also Jt. Exh. 887 (personal discussion log that lists June

18, 2013 as a date that Gertz received a personal discussion).)

In September 2013, managers from Gertz’s store advised

Gertz that while Walmart did not believe that Gertz’s absences

on May 31 and June 1, 2, 3, 4, 7 ,and 8 (i.e., absences during the

Ride for Respect) were protected, Walmart would not hold those

absences against her because Gertz’ store had not been consistent

in enforcing the attendance policy and “wanted to be sure that

[it] didn’t treat [Gertz] differently than how some others have

been treated.” (Jt. Exh. 883; see also Jt. Exh. 1328.)

H. Hialeah, FL—Store 1590 (Marie Roberty)

In 2012–2013, Marie Roberty worked for Walmart as a cash-

ier in store 1590, located in Hialeah, Florida. (Jt. Exh. 1185; Tr.

5502, 5532–5533, 5540, 5624.)

On May 28, 2013, Roberty notified store management that she

was going on strike by turning in a strike letter. Roberty also

called the IVR system on May 29 to report her absence. While

on strike, Roberty participated in Ride for Respect events in: her

home store; Orlando, Florida; Baker, Louisiana; Conway, Ar-

kansas; and Bentonville, Arkansas. Roberty missed eight sched-

uled shifts while she was on strike (and one additional shift on

May 27, for reasons unrelated to the strike). (Jt. Exhs. 1197,

1199–1200, 1320–1321; R. Exhs. 184, 202; Tr. 5490, 5505,

5541, 5544–5546, 5562–5564, 5580, 5607, 5615, 5619–5620.)

On June 10, Roberty presented store management with a letter

that reiterated that she had been on strike and communicated her

unconditional offer to return to work. That same day, Roberty

returned to work for her scheduled shift. (Jt. Exhs. 1195, 1198;

Tr. 5548–5551.)

On June 22, Walmart discharged Roberty because she had an

active third written coaching, and Roberty’s strike-related ab-

sences during the Ride for Respect constituted additional unex-

cused absences that called for termination under Walmart’s dis-

ciplinary policy. (Jt. Exhs. 1186, 1189, 1320–1321; CP Exh. 8;

Tr. 5502–5506, 5510–5512, 5517–5518, 5552.)

I. Chicago, IL—Store 5781 (Anna Pritchett and

Ronnie Vandell)

In 2012–2013, Anna Pritchett and Ronnie Vandell each

worked in store 5781, located in Chicago, Illinois. Pritchett

worked as a maintenance associate, while Vandell worked as a

his manager that he was going on strike, and by submitting a return to

work letter dated November 24, 2012. (Jt. Exhs. 23(c)–(e), 94 (tab 51);

R. Exhs. 3 (clips 1, 3, 4, 5), 5434 VID1, ID11; Tr. 142–149, 192–193,

197–199, 203–204, 241–242, 263.)

Carr left Bentonville early and returned home due to a family emer-

gency. (Tr. 454–455, 458.)

WALMART STORES, INC. 51

sales associate in the dairy department. (Tr. 5984–5985, 5992,

6315–6316, 6324, 6328; R. Exh. 272.)

On May 31, 2013, Pritchett and Vandell called Walmart’s IVR

system to report that they would be absent. (Jt. Exh. 1031, 1042;

R. Exh. 272; see also Tr. 5984, 6320.) Pritchett and Vandell also

signed a “petition to Walmart manager” that went to Walmart

and stated:

We call on you to not intimidate, threaten or retaliate against

Walmart associates and warehouse workers who speak out for

better pay, more hours and respect at work. We are signing this

petition because we are ready to put an end to Walmart’s unfair

labor practices. We support those associates who are refusing

to work to protest Walmart’s illegal retaliation and call upon

Walmart to publicly commit to better working conditions such

as increasing flexibility and availability of hours in scheduling,

respect for the individual, and increasing pay for every associ-

ate to at least $25,000 per year.

(GC Exh. 126, pp. 2–3; see also GC Exh. 124; Tr. 5996–5998,

6051–6053, 6055.)

Pritchett and Vandell traveled to Bentonville, Arkansas for the

Ride for Respect, with each participating in a Ride for Respect

event in Chicago, Illinois, and with Vandell also participating in

a Ride for Respect event in Kirkwood, Missouri. Pritchett and

Vandell respectively missed five and seven scheduled shifts

while they were on strike. (Jt. Exhs. 1032, 1043; R. Exh. 272;

Tr. 6060; see also R. Exh. 112; Tr. 6127–6128.) Based on Pritch-

ett and Vandell’s absences, their store manager “put two and two

together” and deduced that Pritchett and Vandell were participat-

ing in the Ride for Respect. (Tr. 5991–5992.)

On June 9, Vandell presented store management with a letter

that reiterated that she had been on strike and communicated her

unconditional offer to return to work. Pritchett provided a simi-

lar return to work notice to Walmart on June 11. Vandell then

worked her scheduled shift on June 9, and Pritchett worked her

scheduled shift on June 11. (Jt. Exhs. 1028, 1039, 1041; R. Exh.

272; Tr. 5990–5991, 6321.)

On June 22, Walmart issued Pritchett and Vandell personal

discussions for attendance, citing their strike-related absences as

part of the basis for the personal discussions. (Jt. Exhs. 1033,

1044; R. Exh. 272; Tr. 5985–5990, 5992–5994.)

J. Crestwood, IL—Store 3601 (Marie Kanger-Born)

During the relevant time period, Marie Kanger-Born worked

for Walmart as an overnight stocker in the stationery, fabrics and

celebrations department in store 3601, located in Crestwood, Il-

linois. (Tr. 5804–5805, 6062, 6243–6245; R. Exh. 272.)

On May 31, 2013, Kanger-Born notified store management

that she was going on strike by calling the IVR system to report

her absence and by turning in a strike letter. While on strike,

Kanger-Born participated in Ride for Respect events in: Louis-

ville, Kentucky; Kirkwood, Missouri; and Bentonville, Arkan-

sas. Kanger-Born missed seven scheduled shifts while she was

on strike. (Jt. Exhs. 1008–1010; R. Exhs. 272, 5417 CG1(a); Tr.

Givens-Thomas also went on strike on November 22–23, 2012,

calling the IVR system each of those days to report her absence. (Jt. Exh.

976; R. 5781 VID1; Tr. 6039–6040, 6045, 6079, 6182–6183, 6193; see

also Jt. Exh. 975 (par. 4).)

5798, 5805, 6060–6062, 6129, 6239–6242; see also GC Exh.

3601–1 and Tr. 5793 (stating that Walmart was not surprised by

Kanger-Born’s strike notice).)

On June 9, Kanger-Born returned to work for her scheduled

shift. (Jt. Exh. 1006.)

On June 26, Walmart issued Kanger-Born a personal discus-

sion for attendance, citing Kanger-Born’s Ride for Respect

strike-related absences as part of the basis for the personal dis-

cussion. (Jt. Exh. 1011; R. Exh. 272; Tr. 5806–5810.)

K. Evergreen Park, IL – Store 5485

(Charmaine Givens-Thomas)

Charmaine Givens-Thomas began working for Walmart in

2005, and during the relevant time period worked as an electron-

ics sales associate for Walmart in store 5485, located in Ever-

green Park, Illinois. (Tr. 5707, 6029–6031, 6186.)

On May 30, 2013, Givens-Thomas notified store management

that she was going on strike by calling the IVR system to report

her absence.

Walmart was aware that Givens-Thomas was ab-

sent because she was on strike. (Jt. Exh. 976; GC Exh. 5485–2;

Tr. 5713–5714, 6050, 6056–6057.) Givens-Thomas also signed

a “petition to Walmart manager” that went to Walmart and

stated:

We call on you to not intimidate, threaten or retaliate against

Walmart associates and warehouse workers who speak out for

better pay, more hours and respect at work. We are signing this

petition because we are ready to put an end to Walmart’s unfair

labor practices. We support those associates who are refusing

to work to protest Walmart’s illegal retaliation and call upon

Walmart to publicly commit to better working conditions such

as increasing flexibility and availability of hours in scheduling,

respect for the individual, and increasing pay for every associ-

ate to at least $25,000 per year.

(GC Exh. 126, p. 3; see also GC Exh. 124; Tr. 5996–5998, 6051–

6053, 6055.)

While on strike, Givens-Thomas participated in

Ride for Respect events in: Chicago, Illinois; Cincinnati, Ohio;

Louisville, Kentucky; Kirkwood, Missouri; and Bentonville, Ar-

kansas. Givens-Thomas missed eight scheduled shifts while she

was on strike. (Jt. Exh. 977; R. Exhs. 112, 2694 CG1, 2694 CG2,

2694 CG3, 5417 CG1 (p. 2); Tr. 5712, 6057–6059, 6066–6067,

6073–6074, 6118–6119, 6121, 6131–6138, 6140, 6144.)

On June 9, Givens-Thomas read and provided a letter to store

management that reiterated that she had been on strike and com-

municated her unconditional offer to return to work. That same

day, Givens-Thomas returned to work for her scheduled shift.

(Jt. Exhs. 972, 974; GC Exh. 5485–2; Tr. 6064–6066, 6144–

6145.)

On June 24, Walmart issued Givens-Thomas a personal dis-

cussion for attendance based at least in part on Givens-Thomas’

Ride for Respect strike-related absences. (Jt. Exh. 978; GC Exh.

5485–3; Tr. 5677–5678, 5708–5713, 5715, 5721–5722, 6067–

6068.)

Givens-Thomas also signed a strike letter and gave it to a UFCW

organizer. The record does not show what the organizer did with the

strike letter and does not show that Walmart later received the letter. (Tr.

6056.)

52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

L. Glenwood, IL—Store 5404 (Linda Haluska)

Since October 2005, Linda Haluska has worked for Walmart

in store 5404, located in Glenwood, Illinois, most recently as an

overnight stocker in the health and beauty department. (Tr.

5772–5773, 5777, 5823, 6254, 6259–6260, 6279; R. Exh. 272.)

On May 30, 2013, Haluska notified store management that she

was going on strike by calling the IVR system to report her ab-

sence, and by speaking on the phone with an assistant store man-

ager to read a statement explaining that she was going on strike

“to demand that Walmart offer better wages, better hours for as-

sociates, and stop retaliation against associates that are involved

in organized activity.”

(Jt. Exh. 994; GC Exh. 5404–1; R. Exh.

272 (par. I(D)); Tr. 5780–5783, 5790–5791, 5834–5835, 5843,

6254, 6276, 6277–6278.) Haluska also signed a “petition to

Walmart manager” that went to Walmart and stated:

We call on you to not intimidate, threaten or retaliate against

Walmart associates and warehouse workers who speak out for

better pay, more hours and respect at work. We are signing this

petition because we are ready to put an end to Walmart’s unfair

labor practices. We support those associates who are refusing

to work to protest Walmart’s illegal retaliation and call upon

Walmart to publicly commit to better working conditions such

as increasing flexibility and availability of hours in scheduling,

respect for the individual, and increasing pay for every associ-

ate to at least $25,000 per year.

(GC Exh. 126, p. 3; see also GC Exh. 124; Tr. 5996–5998.)

While on strike, Haluska participated in Ride for Respect events

in Chicago, Illinois and Bentonville, Arkansas. Haluska missed

eight scheduled shifts while she was on strike. (Jt. Exh. 995; R.

Exhs. 112, 272; GC Exh. 5404–2; Tr. 5840, 6060–6061, 6121–

6123, 6129.)

On or about June 10, Haluska presented store management

with a letter that reiterated that she had been on strike and com-

municated her unconditional offer to return to work. That same

evening, Haluska returned to work for her scheduled shift. (Jt.

Exhs. 989, 992; GC Exh. 5404–2; R. Exh. 272; Tr. 5791, 5843.)

On June 27, Walmart issued Haluska a personal discussion for

attendance based at least in part on Haluska’s Ride for Respect

strike-related absences. (Jt. Exh. 996; R. Exh. 272; Tr. 5779,

5836–5837, 5840–5841.)

M. Wheeling, IL—Store 1735 (Rose Campbell and

Pooshan Kapil)

In 2012–2013, Rose Campbell and Pooshan Kapil each

worked in store 1735, located in Wheeling, Illinois. Campbell

worked as a maintenance associate, while Kapil worked as an

electronics sales associate. (Tr. 5891, 5922, 6207, 6212, 6215;

R. Exh. 272.)

On May 30, 2013, Campbell and Kapil notified Walmart that

they were going on strike by calling Walmart’s IVR system to

Haluska also went on strike on November 22, 2012, after calling

the IVR system and also speaking to an assistant manager to report her

absence. (Jt. Exh. 994; R. Exh. 272; Tr. 5833, 6255; see also Jt. Exh.

993 (par. 4).)

Campbell also went on strike on or about November 22, 2012.

Campbell called the IVR system and indicated that she would be absent

report that they would be absent. Campbell also read a strike

script by telephone to her store manager. (Jt. Exhs. 955, 1021;

GC Exhs. 1735–1, 1735–3; R. Exh. 272; Tr. 5981–5892, 5895,

5899, 5901, 5921, 5926, 6229–6230.) In addition, Campbell and

Kapil signed a “petition to Walmart manager” that went to

Walmart and stated:

We call on you to not intimidate, threaten or retaliate against

Walmart associates and warehouse workers who speak out for

better pay, more hours and respect at work. We are signing this

petition because we are ready to put an end to Walmart’s unfair

labor practices. We support those associates who are refusing

to work to protest Walmart’s illegal retaliation and call upon

Walmart to publicly commit to better working conditions such

as increasing flexibility and availability of hours in scheduling,

respect for the individual, and increasing pay for every associ-

ate to at least $25,000 per year.

(GC Exh. 126, pp. 3–4 (including a statement from Campbell

explaining why she went on strike); see also GC Exh. 124; Tr.

5996–5998, 6051–6053, 6055.)

Campbell and Kapil traveled to Bentonville, Arkansas for the

Ride for Respect, and on the way participated in Ride for Respect

events in Chicago, Illinois and Kirkwood, Missouri. Campbell

and Kapil missed eight and nine scheduled shifts, respectively,

while on strike. (Jt. Exhs. 956, 1022; R. Exh. 272; Tr. 6060–

6061; see also R. Exhs. 112, 2694 CG(a), 2694 CG2(a), 2694

CG3(a); Tr. 6126.)

On June 9, Campbell and Kapil presented store management

with letters that reiterated that they had been on strike and com-

municated their unconditional offer to return to work. Kapil then

worked his scheduled shift on June 9, and Campbell worked her

scheduled shift on June 11. (Jt. Exhs. 951, 953, 1018, 1020; R.

Exh. 272; Tr. 5902.)

On June 24, Walmart discharged Kapil because he had an ac-

tive third written coaching, and Kapil’s strike-related absences

during the Ride for Respect constituted additional unexcused ab-

sences that called for termination under Walmart’s disciplinary

policy. (Jt. Exhs. 1013–1014; R. Exh. 272; Tr. 5892–5893,

5902, 5922–5925, 5927–5930.)

On June 25, Walmart issued Campbell a third written coach-

ing for attendance and punctuality, citing Campbell’s strike-re-

lated absences as part of the basis for the coaching. (Jt. Exh. 944;

R. Exh. 272; Tr. 5892–5895, 5900, 5931.)

N. Paducah, KY—Store 431 (Trina Vetato)

During the relevant time period, Trina Vetato worked for

Walmart as an IMS (inventory) associate in store 431, located in

Paducah, Kentucky. (Jt. Exh. 1323.)

On May 29, 2013, Vetato notified store management that she

was going on strike by calling the IVR system to report her ab-

sence and by turning in a strike letter. While on strike, Vetato

participated in Ride for Respect events in Louisville, Kentucky

from work due to “illness/injury.” Campbell also called her store before

going on strike, but the manager that she spoke to hung up the phone

before Campbell explained that she was going on strike. Campbell did

not attempt to call the store again. (Jt. Exh. 955; GC Exh. 129

(MVI_7570 at 0:30–1:00); see also R. Exhs. 1735 VID1RC, ID17.)

WALMART STORES, INC. 53

and Kirkwood, Missouri. Vetato missed seven scheduled shifts

while she was on strike. (Jt. Exhs. 1145, 1148–1149, 1323; R.

Exh. 244.)

On June 9, Vetato presented store management with a letter

that reiterated that she had been on strike and communicated her

unconditional offer to return to work. That same day, Vetato

returned to work for her scheduled shift. (Jt. Exhs. 1143, 1146,

1323.)

On June 23, Walmart issued Vetato a personal discussion for

attendance, citing Vetato’s Ride for Respect strike-related ab-

sences as part of the basis for the personal discussion. (Jt. Exhs.

1147, 1150, 1323.)

On July 21, Walmart issued Vetato a second written coaching

for attendance and punctuality. Although the coaching was

based on three “unexcused absence occurrences” that occurred

after June 23, Walmart also issued the coaching because Vetato

received a personal discussion on June 23 for her absences dur-

ing the Ride for Respect. (Jt. Exhs. 1140, 1323.)

O. Stanford, KY—Store 825 (Aaron Lawson)

During the relevant time period, Aaron Lawson worked for

Walmart as an overnight general merchandise stocker in store

825, located in Stanford, Kentucky. (Jt. Exh. 1328.)

On May 31, 2013, Lawson notified store management that he

was going on strike by calling the IVR system to report his ab-

sence, reading his strike letter to a manager by telephone, and

submitting his strike letter by facsimile.

While on strike, Law-

son participated in Ride for Respect events in Louisville, Ken-

tucky and Kirkwood, Missouri. Lawson missed six scheduled

shifts while he was on strike but called the store to report that he

would be absent on each of those days (except for June 8). (Jt.

Exhs. 1083–1087, 1093, 1326–1328; R. Exh. 244.)

On June 10, Lawson presented store management with a letter

that reiterated that he had been on strike and communicated his

unconditional offer to return to work. That same day, Lawson

returned to work for his scheduled shift. (Jt. Exhs. 1076, 1080,

1328.)

On June 21, Walmart issued Lawson a personal discussion for

attendance, citing Lawson’s Ride for Respect strike-related ab-

sences as part of the basis for the personal discussion. In addi-

tion, on August 16, Walmart issued Lawson a first written coach-

ing for attendance and punctuality, relying in part on Lawson’s

Ride for Respect strike-related absences. (Jt. Exhs. 1071, 1081,

1094, 1328.)

P. Baker, LA—Store 1102 (Brandon Garrett,

Shawnadia Mixon, Mariah Williams & Tavarus Yates)

In 2012–2013, Brandon Garrett, Shawnadia Mixon, Mariah

Williams, and Tavarus Yates each worked in Walmart store

1102, located in Baker, Louisiana. Garrett and Yates worked as

Lawson also went on strike on October 12 and November 19, 21

and 23, 2012. Lawson called the IVR system to report his absences on

those dates, and also submitted a return to work letter on November 24,

2012 that noted he had been out on strike. (Jt. Exhs. 1078, 1082, 1088–

1089, 1091, 1326, 1328; see also R. Exhs. 1 VID1, ID15.)

On November 22, 2012, Yates planned to go on strike, and thus

submitted a strike letter and return to work letter. Yates decided not to

overnight stockers in the frozen foods department, while Mixon

worked as a lawn and garden sales associate and Williams

worked as a cashier in the smoke shop. (Tr. 4249, 4264, 4274,

4277, 4295–4296, 4358–4360, 4362, 4387, 4397, 4409–4412,

4493–4496; R. Exh. 272.)

Between May 30 and June 1, 2013, Garrett, Mixon, Williams,

and Yates notified store management that they were going on

strike by calling the IVR system to report that they would be ab-

sent.

Garrett also told a manager in store 1102 by telephone

that he was going on strike. (Tr. 4420–4422, 4305–4307, 4310,

4367–4368; Jt. Exhs. 639, 650, 679, 695; R. Exh. 272; see also

Jt. Exh. 636 (listing confirmation numbers from the IVR sys-

tem).)

In addition, on May 31, Garrett, Mixon, Williams, and Yates

entered store 1102 with approximately 50 OUR Walmart sup-

porters and silently walked through the store until they located a

manager. A representative of the protesters then used a micro-

phone to read a strike letter in the manager’s presence. Garrett,

Mixon, Williams, and Yates also turned in a strike letter on May

31, and also faxed a copy of the letter to Walmart. (Jt. Exh. 636;

R. Exhs. 185, 244, 272; Tr. 4238–4239, 4254–4255, 4267, 4274,

4277, 4303–4304, 4307–4309, 4333–4334, 4339, 4347–4348,

4355, 4364–4370, 4396–4397, 4402–4404, 4419–4420, 4422–

4427, 4458–4459, 4472–4473, 4490.)

While on strike, Garrett, Mixon, Williams, and Yates partici-

pated in Ride for Respect events in: Baker, Louisiana; Conway,

Arkansas; and Bentonville, Arkansas. Garrett, Mixon, Williams,

and Yates each missed between seven and nine scheduled shifts

while on strike. (Jt. Exhs. 640, 651, 680, 696; R. Exhs. 203, 272,

1102 BG1; Tr. 4311–4313, 4335–4336, 4350–4351, 4356, 4371,

4373, 4399, 4405–4406, 4428–4430, 4435–4436, 4460, 4475–

4478.)

On June 10, Garrett, Mixon, Williams, and Yates read and

presented store management with a letter that reiterated that they

had been on strike and communicated their unconditional offer

to return to work. Mixon and Williams then worked their sched-

uled shifts on June 10, and Garrett and Yates worked their sched-

uled shifts on June 11. (Jt. Exhs. 634, 637, 647, 676, 688; R.

Exh. 272; Tr. 4256, 4267, 4274, 4315–4317, 4337–4339, 4372,

4431–4435.)

On June 27 and 28, Walmart issued a first written coaching to

Williams and a third written coaching to Mixon,

citing their

strike-related absences as part of the basis for the coachings. (Jt.

Exhs. 643, 649, 674, 678; R. Exh. 272; Tr. 4249–4254, 4257–

4258, 4278–4281, 4319–4322.)

Similarly, on June 28, Walmart discharged Garrett and Yates

for excessive absences and/or tardies, citing their strike-related

absences as part of the basis for their discharges. (Jt. Exhs. 626,

638, 682, 694; Tr. 4263–4264, 4266–4267, 4274–4277, 4358,

4363, 4377, 4379–4382, 4397, 4437–4438, 4441–4444, 4497–

go through with that strike, however, and worked his scheduled shift.

(Tr. 4382–4384; Jt. Exhs. 690, 692.)

Walmart decided to issue the coaching to Mixon on June 28. There

is some ambiguity, however, about whether Walmart notified Mixon of

the coaching on June 28, or instead on August 27 when Mixon returned

from a leave of absence. (Tr. 4278–4282; R. Exh. 272.) The ambiguity

concerning when Walmart notified Mixon about the June 28 coaching is

not material to my analysis.

54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

4498; see also Jt. Exhs. 627, 684 (showing that Garrett and Yates

had active third written coachings on their disciplinary records).)

Q. Laurel, MD—Store 1985 (Cynthia Murray)

During the relevant time period, Cynthia Murray worked for

Walmart as a fitting room associate in store 1985, located in Lau-

rel, Maryland. (Jt. Exh. 1328.)

On May 28, 2013, Murray notified store management that she

was going on strike by calling the IVR system to report her ab-

sence and by turning in a strike letter.

While on strike, Murray

participated in Ride for Respect events in Baker, Louisiana and

Conway, Arkansas. Murray missed eight scheduled shifts while

she was on strike. (Jt. Exhs. 1253, 1255, 1257, 1328; see also

1985 VID1 CM.)

On June 12, Murray returned to work for her scheduled shift.

(Jt. Exhs. 1250, 1328.)

On June 26, Walmart issued Murray a personal discussion for

attendance, citing Murray’s Ride for Respect strike-related ab-

sences as part of the basis for the personal discussion. (Jt. Exh.

1328; see also Jt. Exh. 1258.)

R. Chelmsford, MA—Store 2903 (David Coulombe)

During the relevant time period, David Coulombe worked for

Walmart as a cart pusher in store 2903, located in Chelmsford,

Massachusetts. (Jt. Exh. 1328.)

On May 28, 2013, Coulombe notified store management that

he was going on strike by turning in a strike letter, and also call-

ing the IVR system to report his absence. While on strike, Cou-

lombe participated in Ride for Respect events in Baker, Louisi-

ana, and in Conway, Arkansas. Coulombe missed seven sched-

uled shifts while he was on strike. (Jt. Exhs. 1275, 1277, 1278,

1328; see also R. Exhs. 278, ID20.)

On June 9, Coulombe presented store management with a let-

ter that reiterated that he had been on strike and communicated

his unconditional offer to return to work. That same day, Cou-

lombe worked his scheduled shift. (Jt. Exhs. 1273, 1276, 1328.)

On June 21, Walmart issued Coulombe a first written coach-

ing for attendance and punctuality, citing Coulombe’s strike-re-

lated absences as part of the basis for the coaching. (Jt. Exhs.

1271, 1328.)

S. Chicopee, MA—Store 5278 (Aubretia Edick)

During the relevant time period, Aubretia Edick worked for

Walmart as a cashier in store 5278, located in Chicopee, Massa-

chusetts. (Jt. Exh. 1328.)

On May 28, 2013, Edick notified store management that she

was going on strike by turning in a strike letter and calling the

IVR system to report her absence. While on strike, Edick partic-

ipated in Ride for Respect events in Chicopee, Massachusetts,

Baker, Louisiana and Conway, Arkansas. Edick missed nine

scheduled shifts while she was on strike. (Jt. Exhs. 1305–1307,

1328; see also R. Exhs. 278, ID20.)

In 2012, Murray joined other OUR Walmart supporters and went

on strike on or about October 10 and November 23. Murray called the

IVR system to report her absences on those dates, and also submitted a

return to work letter on October 11, and a strike letter on November 23.

(Jt. Exhs. 1252, 1254–1256, 1328; see also R. Exhs. 271, 1 VID1 (and

ID15), 1985 VID1, 1985 VID2, 5129 VID2.)

On June 9, Edick returned to work for her scheduled shift. (Jt.

Exhs. 1303, 1328.)

On June 26, Walmart issued Edick a personal discussion for

attendance, citing Edick’s strike-related absences as part of the

basis for the personal discussion. (Jt. Exhs. 1309, 1328.)

T. Sauk Centre, MN—Store 4253 (Michael Ahles)

During the relevant time period, Michael Ahles worked for

Walmart as a deli sales associate in store 4253, located in Sauk

Centre, Minnesota. (Jt. Exh. 1324.)

On May 30, 2013, Ahles notified store management that he

was going on strike by turning in a strike letter, and also calling

the IVR system to report his absence.

While on strike, Ahles

participated in Ride for Respect events in: Chicago, Illinois;

Louisville, Kentucky, and Kirkwood, Missouri. Ahles missed

nine scheduled shifts while he was on strike. (Jt. Exhs. 927, 929–

931, 1324; R. Exhs. 112, 2694 CG1, 5417 CG1 (p. 2); Tr. 6127.)

On June 11, Ahles presented store management with a letter

that reiterated that he had been on strike and communicated his

unconditional offer to return to work. Ahles worked his next

scheduled shift on June 12. (Jt. Exhs. 925–926, 928, 1324.)

On June 22, Walmart issued Ahles a first written coaching for

attendance and punctuality, in part because of Ahles’ strike-re-

lated absences during the Ride for Respect. (Jt. Exhs. 29, 922,

1324.)

U. Elizabeth City, NC—Store 1527 (Cheryl Plowe)

During the relevant time period, Cheryl Plowe worked for

Walmart as a bakery associate in store 1527, located in Elizabeth

City, North Carolina. (Jt. Exh. 1328.)

Plowe notified store management that she was going on strike

by calling the IVR system on May 29, 2013, to report that she

would be absent from work, and by turning in a strike letter on

May 30. While on strike, Plowe participated in Ride for Respect

events in Baker, Louisiana, and Conway, Arkansas. Plowe

missed seven scheduled shifts while she was on strike. (Jt. Exhs.

1127, 1130–1131, 1328.)

On June 10, Plowe presented store management with a letter

that reiterated that she had been on strike and communicated her

unconditional offer to return to work. That same day, Plowe

worked her scheduled shift. (Jt. Exhs. 1125, 1128; see also Jt.

Exh. 1328 (stipulation that Plowe submitted a return to work let-

ter but indicating that she did so on June 8).)

On June 21, Walmart issued Plowe a personal discussion for

attendance, citing Plowe’s strike-related absences as part of the

basis for the personal discussion. (Jt. Exhs. 1129, 1132, 1328.)

V. Ennis, TX—Store 286 (Cody Shimmel)

During the relevant time period, Cody Shimmel worked for

Walmart as a meat sales associate in store 286, located in Ennis,

Texas. (Tr. 3156, 3171.)

On June 1, 2013, Shimmel notified store management that he

On November 23, 2012, Ahles went on strike and joined other OUR

Walmart supporters in an action at another Walmart store (store 5437 in

St. Paul, Minnesota). Ahles called the IVR system to report his absence

on that date and returned to work on November 24. (Jt. Exhs. 929, 1324;

R. Exh. 5437 VID 1.)

WALMART STORES, INC. 55

was going on strike during the Ride for Respect by calling the

IVR system to report his absence. Shimmel also gave the shift

manager at his store a piece of paper that stated he was going on

strike. While on strike, Shimmel participated in Ride for Respect

events in Bentonville, Arkansas. Shimmel missed seven sched-

uled shifts while he was on strike. (Jt. Exhs. 254–255; Tr. 2871,

3161–3165, 3172, 3174–3175, 3178–3179.)

On or about June 10, Shimmel (or someone acting on his be-

half) presented store management with a letter that reiterated that

Shimmel had been on strike and communicated his uncondi-

tional offer to return to work. Shimmel worked his next sched-

uled shift on June 10. (Jt. Exhs. 252, 256; Tr. 3165–3166.)

On June 24, Walmart issued Shimmel a third written coaching

for attendance and punctuality, in part because of Shimmel’s

strike-related absences during the Ride for Respect. (Jt. Exh.

251; Tr. 3167–3169, 3175–3176; see also Jt. Exh. 250 (second

written coaching that was “active” when Shimmel was disci-

plined on June 22).)

W. Lancaster, TX—Store 471 (Javon Adams, Marc Bowers,

Christopher Collins, Colby Harris and Vanzell Johnson)

In 2012–2013, Javon Adams, Marc Bowers, Christopher Col-

lins (C. Collins), Colby Harris, and Vanzell Johnson worked in

store 471, located in Lancaster, Texas. During that timeframe,

they held the following positions: Adams, Bowers and Collins—

cart pushers; Harris and Johnson—produce sales associates. (Tr.

2682, 2875, 2920, 3081–3082, 3133, 3183, 3186; R. Exh. 272.)

While at work on May 6, 2013, Harris heard his store manager

make what Harris believed were derogatory remarks to another

manager about OUR Walmart. Because of that incident, Harris

told his store manager that he was leaving his shift early to go on

strike. Harris asked Bowers to join him, and Bowers agreed.

Accordingly, both Bowers and Harris submitted strike letters and

began their strike, with Harris spending some of his time work-

ing on an online petition titled “Walmart: Stop silencing Associ-

ates who speak out,” and Bowers spending his time “chilling” at

home and taking care of personal matters. Bowers and Harris

each missed two shifts while on strike. (Jt. Exhs. 170–172, 176,

207–208, 212; Tr. 2764–2772, 2848–2849, 3111–3114, 3143–

3144, 3197; see also GC Exh. 471–1 (excerpt of Harris’ online

petition).)

On May 9, Bowers and Harris present return to work letters to

C. Collins initially testified that he delivered his June 1 strike letter

to the store manager, but later testified that he gave his June 1 strike letter

to an OUR Walmart organizer. (Compare Tr. 2885–2887 with Tr. 2905.)

Since I have no reason to credit one aspect of C. Collins’ testimony on

this point over the other, I have given the benefit of the doubt on this

point to Walmart as the Respondent.

I also note that on August 25, 2015, the parties offered Joint Exhibit

94(a) as an exhibit that summarized all strike and return to work letters.

I admitted Jt. Exh. 94(a) into evidence. Although Joint Exhibit 94(a)

includes Adams’ and C. Collins’ strike letters, there is not a sufficient

basis for me to conclude that Walmart conceded that it received those

letters. (See Tr. 6674–6675; Jt. Exh. 94(a) (tab 99).)

100

On October 9, 2012, Harris went on strike after submitting a strike

letter to Walmart and calling the IVR system to report his absence. In

addition, Bowers and Harris went on strike on November 16, 2012, and

notified Walmart of that fact by: submitting a strike letter (signed by

Bowers, as well as Johnson, who was on a leave of absence); submitting

their store manager. Harris then worked his scheduled shift on

May 9, and Bowers worked his scheduled shift on May 10.

Walmart issued a third written coaching to Bowers and a second

written coaching to Harris when they returned to work, citing

their strike-related absences as part of the basis for the coachings.

(Jt. Exhs. 169–170, 177, 205, 207, 214; Tr. 2772–2776, 2866–

2867, 3114–3119, 3142, 3329–3330.)

From May 30 to June 1, Bowers, Harris and Johnson notified

Walmart that they were going on strike during the Ride for Re-

spect by submitting strike letters. In fact, Johnson was at work

on June 1, but left his shift to go on strike after a group of OUR

Walmart members (including Bowers and Harris) and supporters

entered the store, held a brief prayer vigil, and then walked John-

son out on strike while chanting slogans such as “Stand Up! Live

Better!” and “We are the 99 percent!” Adams and C. Collins

signed strike letters dated June 1 and gave them to an OUR

Walmart organizer, but the record does not establish that

Walmart received Adams’ and C. Collins’ letters.

Adams,

Bowers, C. Collins and Harris also called the IVR system to re-

port that they would be absent from work, and Bowers verbally

notified a manager that he was going on strike. (Jt. Exhs. 145,

179, 192, 213, 216, 232; GC Exhs. 471–2, 471–3, 471–4; Tr.

2786–2789, 2833, 2850–2856, 2906, 2940–2943, 2947–2948,

3120–3122, 3144, 3191, 3216; R. Exhs. 272, 471 VID1; see also

GC Exh. 67 (Walmart store manager admitting that he received

strike letters from Bowers, Harris and Johnson).)

100

Bowers, Harris and Johnson joined other OUR Walmart sup-

porters in traveling to Bentonville, Arkansas, for the Ride for Re-

spect, and participated in Ride for Respect events in Lancaster,

Texas and Bentonville, Arkansas. Adams and C. Collins re-

mained in the Dallas/Fort Worth area, where Adams joined an

OUR Walmart organizer in visiting nearby Walmart stores to

talk to associates about OUR Walmart, and C. Collins spoke with

Walmart associates about OUR Walmart and attended to some

personal matters. Adams, Bowers, C. Collins, Harris, and John-

son missed between four and eight scheduled shifts while on

strike during the Ride for Respect. (Jt. Exhs. 146, 172, 190, 209,

230; R. Exhs. 245, 272, 471 VID1; Tr. 2788–2792, 2833, 2886–

2887, 2908–2909, 2943–2944, 2957–2959, 2966, 3119–3120,

3123, 3126.)

On June 10, Adams, Bowers, C. Collins, Harris and Johnson

read and presented store management with letters that reiterated

and a return to work letter (signed by Bowers, Harris and Johnson); and

calling the IVR system to report that they would be absent (Harris). Last

(in 2012), on or about November 21, Adams, Bowers, C. Collins and

Harris went on strike and notified Walmart by: submitting strike letters

(Adams, Bowers, C. Collins, and Harris); calling the IVR system (Bow-

ers, C. Collins and Harris); and verbally telling a manager that they were

going on strike (Bowers). (Jt. Exhs. 142, 173–175, 179, 192, 210–211,

216, 290(a)–(f); GC Exhs. 56, 471–6, 471–11; R. Exhs. 1 VID1, ID15;

Tr. 2716–2719, 2725–2736, 2756–2761, 2759–2761, 2827–2828, 2832–

2836, 2843–2845, 2872, 2880–2883, 2903, 2930–2936, 3094–3108,

3136, 3189, 3191–3196, 3290, 3319–3322; see also GC Exh. 471–9 (re-

questing information about associates who participated in the Black Fri-

day 2012 strike, and thus prompting the responsive information provided

in GC Exh. 471–11); Tr. 3194, 3246–3247, 3268 (explaining that alt-

hough Johnson participated in the November 16 strike, he was on a leave

of absence that extended from November 2012 to January 2013).)

56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

that they had been on strike and communicated their uncondi-

tional offers to return to work. Adams, Bowers, and Johnson

worked their scheduled shifts on June 10, and C. Collins and

Harris worked their scheduled shifts on June 11. (Jt. Exhs. 140,

143, 170, 178, 188, 191, 207, 215, 228, 234; GC Exh. 67; R.

Exhs. 245, 272; Tr. 2792–2794, 2888–2889, 2944–2946, 3120,

3124–3127, 3192.)

On June 21, Walmart issued third written coaching to Harris

and a personal discussion to Johnson, citing their strike-related

absences as part of the basis for taking those actions. (Jt. Exhs.

206, 237; R. Exh. 272; Tr. 2795–2797, 3247–3251.)

On June 22, Walmart discharged Adams and C. Collins for

“job abandonment/three days unreported absence,” citing their

strike-related absences as part of the basis for the discharges.

Specifically, Walmart determined discharge was appropriate un-

der its disciplinary policy because Adams and C. Collins had ac-

tive third written coachings and accumulated three or more “no-

call/no-show” absences on dates during the Ride for Respect.

(Jt. Exhs. 148, 183; Tr. 2890–2892, 2910, 2949–2953, 2969; see

also Jt. Exh. 139 (Adams’ active third written coaching); Jt. Exh.

187 (C. Collins’ active third written coaching).)

Similarly, on June 22, Walmart discharged Bowers because

he had an active third written coaching, and his strike-related ab-

sences during the Ride for Respect constituted additional unex-

cused absences that called for termination under Walmart’s dis-

ciplinary policy. (Jt. Exh. 182; Tr. 3127–3130; see also Jt. Exh.

169 (Bowers’ active third written coaching that was based on his

strike-related absences on May 6–9).)

On September 30, Walmart discharged Harris for “excessive

absences and/or tardies.” In support of that decision, Walmart

asserted that Harris did not work his scheduled shifts on August

12 and September 6, and thus had nine attendance occurrences

on his record in the preceding 6 months.

101

Walmart accordingly

determined that it should discharge Harris because Harris had an

active third written coaching, and discharge was the next level of

discipline available under Walmart’s disciplinary policy. (Jt.

Exh. 201; Tr. 2797–2800, 3331–3332, 3341–3342.)

X. Quinlan, TX—Store 4215 (Jeanna Slate-Creach)

In 2010, Jeanna Slate-Creach began working for Walmart as

a cashier in store 4215, located in Quinlan, Texas. Slate-Creach

later received a promotion to the position of general merchandise

receiver, but after a dispute with store management about her

101

The record is not clear on whether Walmart counted Harris’ ab-

sences during his May 6–9 strike or the Ride for Respect when Walmart

determined that Harris had nine attendance occurrences in the 6 months

before September 30. (See Jt. Exh. 209 (Harris’ attendance record).) It

is clear, however, that Harris’ discharge was predicated on him having

received second and third written coachings for strike-related absences

(which made discharge the next level of discipline under Walmart’s dis-

cipline policy). (Jt. Exh. 201; Tr. 3331–3332.)

102

Shift manager Randy St. Clair filled out Slate-Creach’s exit inter-

view form, which states that Walmart terminated Slate-Creach involun-

tarily because she violated Walmart’s attendance policy. (Jt. Exh. 259.)

However, St. Clair also wrote a memo asserting that Slate-Creach quit

before the termination was complete because she did not want to allow

Walmart to put a “black mark” on her by firing her. Slate-Creach denies

stating that she quit and asserted that it was St. Clair that attempted to

performance, Slate-Creach was demoted in April 2013 to the po-

sition of part-time cashier. (Jt. Exh. 268; GC Exh. 4215–4; R.

Exh. 4215 JC6; Tr. 3012–3018, 3024, 3067–3068.)

On May 30, 2013, Slate-Creach notified store management

that she was going on strike by calling the IVR system to report

that she would be absent on May 31, and telling an assistant man-

ager that she was going on a ULP strike for a week. Slate-Creach

also went to Store 4215 on May 31 with a group of OUR

Walmart supporters, where she turned in a strike letter to a

Walmart human resources manager who met her at one of the

store entrances. While on strike, Slate-Creach participated in

Ride for Respect events in: a parking lot near her home store;

Lancaster, Texas; Walmart store 17 in Arkansas; and Benton-

ville, Arkansas. Slate-Creach missed seven scheduled shifts

while she was on strike. (Jt. Exhs. 272–274; R. Exh. 244; Tr.

2856, 3033–3044, 3074, 3077–3078; GC Exh. 4215–2 (copy of

a flyer that Slate-Creach distributed at one of the Ride for Re-

spect events).)

On June 9, Slate-Creach presented store management with a

letter that reiterated that she had been on strike and communi-

cated her unconditional offer to return to work. That same day,

Slate-Creach returned to work for her scheduled shift. (Jt. Exhs.

270, 275; Tr. 3045–3047.)

On June 26, Walmart issued Slate-Creach a third written

coaching for attendance and punctuality, citing her strike-related

absences during the Ride for Respect as the basis for the coach-

ing. (Jt. Exh. 269; Tr. 3052–3055, 3071.)

On August 21, Walmart notified Slate-Creach that she was be-

ing discharged because of her problems with attendance, includ-

ing her strike-related absences.

102

(Jt. Exhs. 259 (p. 2), 259(a);

Tr. 3012, 3056–3059.)

Y. Bellevue, WA—Store 3098 (Shana Stonehouse)

In 2013, Shana Stonehouse worked for Walmart as an inven-

tory management specialist and price coordinator in store 3098,

a Walmart neighborhood market (i.e., grocery store) located in

Bellevue, Washington. (Tr. 3956–3959, 3961–3962.)

On May 28, 2013, Stonehouse notified store management that

she was going on strike during the Ride for Respect by meeting

with her store manager and presenting a strike letter dated May

29. Stonehouse also called the IVR system on May 30 to report

her absence. While on strike, Stonehouse participated in Ride

for Respect events in: eastern Washington; Boise, Idaho; Salt

prod her to quit instead of being terminated. (Jt. Exh. 259(a); Tr. 3058–

3059.)

I have given little weight to the assertion in St. Clair’s memo that

Slate-Creach voluntarily quit her job. First, Walmart did not call St. Clair

as a witness to testify about his conversation with Slate-Creach. Since

St. Clair did not testify to the accuracy and truthfulness of his memo, an

adverse inference that his testimony would have been unfavorable to

Walmart is warranted, and the credibility of St. Clair’s memo is weak-

ened. Second, even if I were to credit the description of Slate-Creach’s

termination set forth in St. Clair’s memo, the facts still would support a

finding that Slate-Creach was involuntarily terminated. Indeed, St. Clair

admitted in his memo that he informed Slate-Creach that she was being

terminated for attendance, and he further admitted that he did so before

any alleged discussion about Slate-Creach quitting. Thus, there was no

question that Walmart was showing Slate-Creach the door when any sub-

sequent discussion about quitting arose.

WALMART STORES, INC. 57

Lake City, Utah; and Bentonville, Arkansas. Stonehouse missed

eight scheduled shifts while she was on strike. (Jt. Exhs. 537–

539; GC Exhs. 3098–1, 3098–2; Tr. 3973–3982, 4000, 4006.)

On or about June 9, Stonehouse returned to her store and

worked her next scheduled shift. During her shift, an associate

(title unspecified) told Stonehouse that the entire store suffered

while she was gone and that everyone had to cover for her ab-

sence. The associate also told Stonehouse that she should expect

to have a conversation with the store manager once he was back

at work (from his day off). (Jt. Exhs. 535; Tr. 3983–3985.)

A few days later (on or about June 12), store manager Shane

McNeil called Stonehouse to his office via intercom. McNeil

stated that the entire store suffered while Stonehouse was away

and asserted that it was not fair to anyone else who had to cover

for Stonehouse while she was gone. McNeil then stated that

Stonehouse would be charged with one unexcused absence (in-

stead of eight) because she was absent for a strike and made com-

puter entries that recorded Stonehouse’s Ride for Respect strike

as an unexcused absence. (Tr. 3985–3987; see also Jt. Exh. 539

(attendance record that lists all eight of Stonehouse’s absences

during the Ride for Respect as “unauthorized absence[s]”).)

In a memo dated June 24, Walmart indicated that it planned to

give Stonehouse a personal discussion for time and attendance

based on her absences during the Ride for Respect. At the time

that the memo was written, however, Stonehouse had not yet re-

ceived the personal discussion because she was out sick from

June 20–22. (Jt. Exhs. 29; 539, 624; Tr. 3988, 3990–3991; see

also Jt. Exh. 538 (showing that Stonehouse called the IVR sys-

tem to notify Walmart that she was out sick on June 20, 21 and

22).)

On July 1, Walmart issued Stonehouse a third written coach-

ing for attendance and punctuality. Walmart identified

Stonehouse’s illness-related absences on June 20–22 as the basis

for the coaching. (Jt. Exhs. 531, 539; Tr. 3987–3991; see also

Jt. Exh. 532 (second written coaching for attendance that was

still active in July 2013); FOF, Section II(A)(6) (explaining that

unauthorized absences include any time that an associate is away

from scheduled work where the absence was not approved by a

manager or supervisor).)

Z. Bellingham, WA—Store 2450 (Vivian Sherman)

During the relevant time period, Vivian Sherman worked for

Walmart as an order fulfillment sales associate in the site-to-

store pickup area of store 2450, located in Bellingham, Wash-

ington. (Tr. 3681; R. Exh. 272.)

On May 29, 2013, Sherman submitted a strike letter to her

store manager. Sherman also called the IVR system on May 30

to report that she would be absent on May 31. Sherman

103

As noted above, although Gilbert, McKeown, and Smith were de-

partment managers, Walmart failed to show that they were statutory su-

pervisors under Sec. 2(11) of the Act. (See Analysis, Sec. II(B).)

104

On or about November 14–15, 2012, Gilbert, Locks, McKeown,

Scott and Smith went on strike and notified Walmart of that fact by: call-

ing the IVR system to report that they would be absent (Gilbert, Locks,

McKeown, Scott, and Smith); telling an assistant manager by telephone

that they were going on strike (Gilbert, Scott, and Smith); and submitting

and a return to work letter (Gilbert, Locks, Scott, and Smith). (Jt. Exhs.

305, 308–309, 335, 359, 414, 526; R. Exh. 272; Tr. 3466–3470, 3764,

participated in Ride for Respect events in Boise, Idaho and Ben-

tonville, Arkansas, and missed at least seven scheduled shifts

while she was on strike. (Jt. Exhs. 475, 479–482; R. Exhs. 272,

2508 Photo 1; Tr. 3680–3685, 3690.)

On or about June 9, Sherman presented store management

with a letter that reiterated that she had been on strike and com-

municated her unconditional offer to return to work. On June 9,

Sherman worked her scheduled shift. (Jt. Exhs. 473, 477; R.

Exh. 272; Tr. 3685.)

On June 24, Walmart issued Sherman a personal discussion

for attendance, citing her strike-related absences as part of the

basis for the personal discussion. (Jt. Exhs. 479, 483; R. Exh.

272; Tr. 3686–3688, 3690; GC Exh. 2450–1; see also Jt. Exhs.

29, 624 (noting Walmart’s plan to have a personal discussion

with Sherman).)

AA. Federal Way, WA—Store 2571 (Sara Gilbert, Patricia

Locks, Michael McKeown, Liai Pefua, Patricia Scott

and John Smith)

In 2012–2013, Sara Gilbert, Patricia Locks, Michael McKe-

own, Liai Pefua, Patricia Scott and John Smith worked in

Walmart store 2571, located in Federal Way, Washington. Dur-

ing that timeframe, they held the following positions: Gilbert,

McKeown and Smith – department managers;

103

Locks – sport

goods sales associate; Pefua and Scott – cashiers. (Tr. 3451,

3493, 3500, 3504, 3513, 3703–3704, 3789–3790, 3812–3813,

3818–3819, 3894–3895, 4060, 4062–4065, 4076–4078; R. Exh.

272.)

On May 29–30, Gilbert, Locks, McKeown, Pefua, Scott, and

Smith notified Walmart that they were going on strike during the

Ride for Respect by submitting strike letters. In particular, on

May 30, Gilbert, Pefua, and Smith walked off their shifts after

they and a group of approximately 20 OUR Walmart members

and supporters (including Locks, McKeown and Scott) ap-

proached their store manager and told him that they (Gilbert, Pe-

fua and Smith) were going on strike. Gilbert, Locks, McKeown,

Pefua, Scott, and Smith also called the IVR system on or about

May 29–30 to report that they would be absent from work, after

which Gilbert, Locks, McKeown, and Scott told an assistant

manager by telephone that they were going on strike. (Jt. Exhs.

304, 308, 332, 335, 357, 359, 383, 385, 411, 414, 524, 526; GC

Exh. 2571–3; R. Exhs. 272, 2571 VID2, 2571 VID3, 2571–

MM2, 2571–MM3, 2571–PS5, 2571–SG3; Tr. 3460–3462,

3488, 3495–3496, 3502, 3512, 3514–3515, 3720–3724, 3762–

3763, 3771–3784, 3810–3813, 3870–3872, 3901–3906, 3935–

3937, 4073–4075, 4095.)

104

Gilbert, Locks, McKeown, Pefua, Scott, and Smith joined

other OUR Walmart supporters in traveling to Bentonville,

3830–3833, 3919, 3921, 4058, 4066; see also Jt. Exh. 115 (email from

Gilbert about her November 14, 2012 strike); R. Exhs. 2571–PS1, 2571–

PS2, 2571–PS3, 2571–PS4, 2571– SG1, 2571–SG2, 2571 VID1, 2571

VID4, 2571 VID8, 2571 VID9 (photos and video of portions of the No-

vember 15, 2012 strike/demonstration in Federal Way); Tr. 3859–3863,

3925–3930, 3933–3934 (descriptions of November 15, 2012

strike/demonstration in Federal Way).) Gilbert and Smith also went on

strike in October 2012, during Walmart’s annual financial analysts’

meeting. (Tr. 3829, 3832, 3848–3850; R. Exhs. 3 (clip 4 SG), 1 VID1,

ID15, 272.)

58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Arkansas for the Ride for Respect, and participated in Ride for

Respect events in: Federal Way, Washington; eastern Washing-

ton; Boise, Idaho; Salt Lake City, Utah; Denver, Colorado; Kan-

sas; and Bentonville, Arkansas. Gilbert, Locks, McKeown, Pe-

fua, Scott, and Smith missed between four and eight scheduled

shifts while on strike during the Ride for Respect. (Jt. Exhs. 303,

336, 360, 386, 415, 527; R. Exhs. 272, 2508 Photo 1 (photo of

Pefua and other OUR Walmart supporters at a Walmart store in

Boise, Idaho), 2571–MM1 (same, showing Gilbert and McKe-

own), 2571–MM1(a) (same, showing Locks and Smith), 2571–

SG4 (same, showing Gilbert); Tr. 3724–3728, 3730, 3748–3754,

3814–3820, 3824, 3844, 3872–3874, 3890–3892, 3906–3910,

3912.)

On June 9–10, Gilbert, Locks, McKeown, Pefua, Scott, and

Smith presented store management with letters that reiterated

that they had been on strike and communicated their uncondi-

tional offer to return to work. Locks and Pefua worked their

scheduled shifts on June 9, and Gilbert, McKeown, Scott, and

Smith worked their scheduled shifts on June 10. (Jt. Exhs. 301,

306, 330, 334, 355, 358, 381, 384, 409, 412, 522, 525; R. Exh.

272; Tr. 3462–3464, 3488, 3495–3496, 3502, 3511–3512, 3514,

3728–3730, 3822–3824, 3910–3912.)

On or about June 21, Walmart issued: a personal discussion to

Locks; first written coachings to Gilbert, McKeown, Pefua, and

Scott; and a second written coaching to Smith. Walmart cited

those associates’ strike-related absences as part of the basis for

issuing the discussion and coachings. (Jt. Exhs. 29, 298, 348,

375, 407, 519, 624; R. Exh. 272; Tr. 3452–3458, 3464–3465,

3485–3488, 3489, 3492–3496, 3500–3502, 3506–3508, 3510–

3511, 3515–3517, 3731–3734, 3825–3828, 3912–3915, 3947,

4079–4080; see also Jt. Exh. 520 (first written coaching for

Smith that was active in June 2013).)

BB. Mount Vernon, WA—Store 2596 (Betty Shove,

Esmeralda Uvalle & Debra Williams)

In 2012–2013, Betty Shove, Esmeralda (Mandy) Uvalle and

Debra Williams each worked in store 2596, located in Mount

Vernon, Washington. Williams worked as a sales associate in

the toy department, while Shove and Uvalle worked as cashiers.

(Tr. 3572–3573, 3581–3582, 4014–4015; R. Exh. 272.)

On May 29, 2013, Shove, Uvalle and Williams each submitted

a strike letter to their store manager. Shove, Uvalle and Williams

also called the IVR system on May 29 (Shove) and May 30

(Uvalle and Williams) to report that they would be absent, and

Williams informed shift manager Vicki Graham by telephone

that she was on strike and would miss her shift. (Jt. Exhs. 502,

506, 566, 568, 590, 592; R. Exh. 272; Tr. 4023, 4025–4030,

4036, 4051–4052.)

105

Uvalle and Williams traveled by bus to Bentonville, Arkansas

during the Ride for Respect, and participated in Ride for Respect

events in Boise, Idaho while en route to Bentonville. Shove,

meanwhile, stayed home due to a prior commitment and then

flew to Bentonville a few days later. Shove, Uvalle, and

105

From October 9–11, 2012, Shove joined other OUR Walmart sup-

porters and went on strike. Shove called the IVR system to report her

absence. (Jt. Exh. 506; R. Exhs. 1 VID1, ID15, 272.)

106

In 2012, Slowey joined other OUR Walmart supporters and went

on strike on November 23. Slowey called the IVR system to report his

Williams each participated in Ride for Respect events while in

Bentonville and missed between five and seven scheduled shifts

while on strike. (Jt. Exhs. 507, 569, 593; R. Exhs. 272, 2508

Photo 1; Tr. 4023, 4026–4027, 4030–4032, 4041–4042, 4052,

4054; see also GC Exh. 2571–4 (p. 3) (photograph showing

Shove, Uvalle and Williams during the Ride for Respect).)

From June 9–11, Shove, Uvalle, and Williams presented store

management with letters that reiterated that they had been on

strike and communicated their unconditional offer to return to

work. Shove, Uvalle, and Williams then worked their scheduled

shifts on June 9 (Williams) and June 11 (Shove and Uvalle). (Jt.

Exhs. 500, 504, 564, 567, 588, 591; R. Exh. 272; Tr. 4034–4037,

4053.)

On June 21, Walmart issued Uvalle and Williams personal

discussions for attendance, citing their strike-related absences as

part of the basis for the personal discussions. Similarly, on June

26, Walmart issued Shove a personal discussion for attendance,

citing her strike-related absences as part of the basis for the per-

sonal discussion. (Jt. Exhs. 508–509, 570–571, 594–595, 624;

R. Exh. 272; Tr. 3567–3569, 3571, 3574–3578, 3584–3585,

4038–4039; see also Jt. Exh. 29 (noting Walmart’s plan to issue

personal discussions to Shove, Uvalle ,and Williams.)

CC. Port Angeles, WA—Store 2196 (Lawrence Slowey)

Lawrence (Larry) Slowey began working for Walmart in

1995. In 2012–2013, Slowey worked for Walmart as a hardware

sales associate in store 2196, located in Port Angeles, Washing-

ton. (Jt. Exh. 442; R. Exh. 272; Tr. 3635–3636, 4113.)

On May 29, 2013, Slowey notified store management that he

was going on strike by calling the IVR system to report that he

would be absent on May 30, and telling an assistant manager by

telephone that he was going on strike. On June 6, Slowey also

faxed in a strike letter dated May 30.

106

Slowey participated in

Ride for Respect events in Boise, Idaho and Bentonville, Arkan-

sas, and missed eight scheduled shifts while he was on strike.

(Jt. Exhs. 445, 449–451; R. Exhs. 272, 2508 Photo 1; Tr. 3638–

3641, 3646–3647, 4113–4114; see also 4144–4146; GC Exh.

2571–4 (p. 3) (photograph of Slowey during the Ride for Re-

spect).)

On June 10, Slowey presented store management with a letter

that reiterated that he had been on strike and communicated his

unconditional offer to return to work. That same day, Slowey

worked his scheduled shift. (Jt. Exhs. 443, 446; R. Exh. 272; Tr.

3641.)

On June 24, store manager Kimberly Carson issued Slowey a

personal discussion for attendance, citing Slowey’s strike-re-

lated absences and an absence on March 29, 2013, as the basis

for the personal discussion. During the personal discussion,

Slowey asserted that the March 29 absence should have been an

approved absence because he took time off. After verifying that

Slowey used time off on March 29, Carson told Slowey that she

had taken the personal discussion away. Carson also noted on

the personal discussion form that Slowey’s discussion was

absence on that date. (Jt. Exhs. 447 (par. 4), 449; R. Exhs. 228, 229,

229(a), 272; GC Exh. 2196–1 (pp. 2–3); Tr. 3638, 3647, 4121–4122,

4127–4128.)

WALMART STORES, INC. 59

“canceled” and “taken away.” Slowey therefore received two

occurrences for unexcused absences while on strike. (Jt. Exhs.

448, 452; R. Exh. 272; Tr. 3642–3645, 4115, 4131–4132; see

also Jt. Exh. 29 (noting Walmart’s plans to have a personal dis-

cussion with Slowey).)

IV. DISCIPLINE AND DISCHARGE ALLEGATIONS —ANALYSIS OF

INDIVIDUAL CLAIMS

A. Complaint Allegations and Applicable Legal Standard

The General Counsel alleges that Walmart violated Section

8(a)(1) of the Act when it disciplined and/or discharged the 55

associates discussed above for missing work time while on

strike.

To prove those alleged violations, the General Counsel must

demonstrate that: the associate engaged in activity that is “con-

certed” within the meaning of Section 7 of the Act; Walmart

knew of the concerted nature of the associate’s activity; the con-

certed activity was protected by the Act; and Walmart’s adverse

action against the associate was motivated by the associate’s pro-

tected, concerted activity. Lou’s Transport, Inc., 361 NLRB

1446, 1447 (2014); Correctional Medical Services, 356 NLRB

277, 278 (2010); see also Medic One, Inc., 331 NLRB 464, 475

(2000) (noting that “[e]vidence of suspicious timing, false rea-

sons given in defense, failure to adequately investigate alleged

misconduct, departures from past practices, tolerance of behav-

ior 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

makes such an initial showing of discrimination, then Walmart

may present evidence, as an affirmative defense, demonstrating

that it would have taken the same action even in the absence of

the associate’s protected activity. See Timekeeping Systems,

Inc., 323 NLRB 244, 244 (1997).

B. Analysis

1. Analysis of associate claims with no additional issues

For most of the 55 associates covered by this case, the findings

of fact and analysis in the earlier portions of this decision demon-

strate that the General Counsel made an initial showing of dis-

crimination. Each of the associates engaged in concerted activity

by going on strike during the Ride for Respect and/or during an-

other time specified in the complaint. Walmart knew of the con-

certed nature of the strike activity, as it received at least one form

of notice that each associate was on strike (e.g., a strike letter, a

call to the IVR system, verbal notice, notice from other sources

such as social media postings, and/or a return to work letter).

The strikes were protected by the Act. And, Walmart was moti-

vated to discipline or discharge the associates because they were

absent while engaging in protected, concerted strike activity. In-

deed, in February 2013, Walmart warned several associates that

it might treat future strike-related absences as unexcused ab-

sences under its attendance policy. Walmart then made good on

its warning in June 2013, when it decided to either discipline or

discharge associates under its attendance policy based (at least

in part) on strike-related absences.

107

Since Walmart did not pre-

sent evidence that it would have taken the same action even in

the absence of the associates’ protected activities (with the ex-

ception of Louis Callahan, who I discuss separately below), I

find that Walmart violated Section 8(a)(1) of the Act when it

took the following actions against the following associates:

Name Store Unlawful Adverse Employment Action(s)

Juan

(John) Juanitas

Fremont, CA

Personal discussion on or about June 9, 2013

108

Jovani Gomez Lakewood, CA Discharge on or about June 21, 2013

Evelin Cruz

Pico Rivera, CA

First written coaching on or about June 21, 2013

Victoria Martinez

Pico Rivera,

First written coaching on or about June 21, 2013

Yvette Brown Placerville, CA Discharge on or about June 23, 2013

Barbara Collins

Placerville, CA

Discharge on or about June 29, 2013

Norma Dobyns

Placerville, CA

Discharge on or about June 22, 2013

Matthew Gauer

Placerville, CA

First written coaching on or about June 22, 2013

Margaret Hooten

Placerville, CA

First written coaching on or about June 22, 2013

107

In addition to the animus shown by these actions (which applies

to each of Walmart’s stores discussed herein), Walmart also demon-

strated animus in the Placerville and Richmond, California stores when

it committed various 8(a)(1) violations that I found in Walmart Stores,

Inc., Case 32–CA–090116, slip op. at 40–41 (2014) (finding, among

other 8(a)(1) violations, that Walmart: made an unlawful statement in

July 2012 to Barbara Collins in Placerville store 2418; selectively ap-

plied its dress code to Raymond Bravo in August and September 2012,

when he wore clothing with UFCW or OUR Walmart logos while work-

ing at Richmond store 3455; made unlawful statements to Richmond

store 3455 associates in response to their protected activities in October

2012; and unlawfully disciplined Richmond store 3455 associates in

November 2012, including Raymond Bravo, because they participated in

a protected work stoppage).

108

Walmart argues that it did not give Juanitas a personal discussion,

but instead gave him a verbal reminder about the attendance policy. (See

Walmart Posttrial Br. at 170.) The evidentiary record, however, estab-

lishes that Walmart gave Juanitas a personal discussion. (See Analysis,

Section III(A).) Walmart also argues that it would have given Juanitas a

verbal reminder even absent Juanitas’ strike-related absences, but that

argument has no merit because it is predicated on absences that Juanitas

incurred after Walmart unlawfully gave Juanitas a personal discussion

on June 9 based on Juanitas’ strike-related absences. (See Walmart

Posttrial Br. at 170.)

60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Name Store Unlawful Adverse Employment Action(s)

Amy Stinnett

Placerville, CA

Second written coaching on or about June 22, 2013

Raymond

Bravo

Richmond, CA

Discharge on or about June 27, 2013

Pamela Davis

Richmond, CA

Discharge on or about July 30, 2013

109

Andrea Carr

San Leandro, CA

Third written coaching on or about June 23, 2013

Cecelia Gurule

San Leandro, CA

Third written

coaching on or about June 24, 2013

Dominic Ware

San Leandro, CA

Discharge on or about July 3, 2013

Marie Roberty

Hialeah, FL

Discharge on or about June 22, 2013

Anna Pritchett

Chicago, IL

Personal discussion on or about June 22, 2013

Ronnie

Vandell

Chicago, IL

Personal discussion on or about June 22, 2013

Marie Kanger

Born

Crestwood, IL

Personal discussion on or about June 26, 2013

Charmaine Givens

Thomas

Evergreen Park, IL

Personal discussion on or about June 24, 2013

Linda

Haluska

Glenwood, IL

Personal discussion on or about June 27, 2013

Rose Campbell

Wheeling, IL

Third written coaching on or about June 25, 2013

Pooshan Kapil

Wheeling, IL

Discharge on or about June 24, 2013

Trina Vetato Paducah, KY Personal discussion on or about June 23, 2013

and

Second written coaching on or about July 21, 2013 (relying in part

on the June 23 personal discussion)

Aaron Lawson Stanford, KY Personal discussion on or about June 21, 2013

and

First written coaching on or about August 16, 2013 (both relying

on strike

related absences)

Brandon Garrett

Baker, LA

Discharge on or about June 28, 2013

Shawnadia Mixon Baker, LA Third written coaching on or about June 28, 2013

Mariah Williams

Baker, LA

First written

coaching on or about June 27, 2013

Tavarus Yates

Baker, LA

Discharge on or about June 28, 2013

Cynthia Murray

Laurel, MD

Personal discussion on or about June 26, 2013

David Coulombe

Chelmsford, MA

First written coaching on or about June 21, 2013

109

Walmart argues that it would have terminated Davis even absent her strike-related absences because Davis incurred additional unexcused ab-

sences after ending her strike. (See Walmart Posttrial Br. at 171–172.) The evidentiary record does show that Davis accrued nine unexcused absences

(between June 30 and July 28) after she returned to work on June 9. Walmart, however, had a track record of tolerating Davis’ absences, as (for

example) Davis had 29 unexcused active absences on her attendance record on May 15, 2013, but was not discharged. In addition, the evidentiary

record shows that Walmart decided on June 24 that it would hold Davis accountable absences (i.e., impose discipline) for strike-related, before Davis

accrued the nine additional unexcused absences. Walmart followed through with its June 24 plan when it discharged Davis, because Walmart explicitly

identified Davis’ strike-related absences as part of the reason for her July 30 termination. (See Analysis, Section III(E)(1).) Accordingly, I find that

Walmart failed to prove that it would have discharged Davis even if she had refrained from engaging in protected strike activities.

WALMART STORES, INC. 61

Name Store Unlawful Adverse Employment Action(s)

Aubretia Edick

Chicopee, MA

Personal discussion on or about June 26, 2013

Michael Ahles

Sauk Centre, MN

First written coaching on or about June 22, 2013

Cheryl Plowe

Elizabeth City, NC

Personal discussion on or about June 21, 2013

Cody

Shimmel

Ennis, TX

Third written coaching on or about June 24, 2013

Javon Adams

Lancaster, TX

Discharge on or about June 22, 2013

Marc Bowers Lancaster, TX Third written coaching on or about May 10, 2013 (based on ab-

sences while on May 6–9 strike with Harris)

and

Discharge on or about June 22, 2013 (tainted because it relied on

the unlawful May 10 third written coaching, and because it relied

on strike

related absences during the Ride for Respect)

Christopher Collins

Lancaster, TX

Discharge on

or about June 22, 2013

Vanzell Johnson Lancaster, TX Personal discussion on or about June 21, 2013

Colby Harris Lancaster, TX Second written coaching on or about May 9, 2013 (based on ab-

sences while on May 6–9 strike with Bowers)

and

Third written coaching on or about June 21, 2013 (based on ab-

sences during the Ride for Respect)

and

Discharge on or about September 30, 2013 (tainted because it re-

lied on the unlawful May 9 and June 21 coachings)

Jeanna Slate-Creach Quinlan, TX Third written coaching on or about June 26, 2013

and

Discharge on or about August 21, 2013 (tainted because it relied

on the unlawful June 26 third written coaching, and because it re-

lied on strike

related absences during the Ride for Respect)

Vivian Sherman Bellingham, WA Personal discussion on or about June 24, 2013

Sara Gilbert

Federal Way, WA

First written coaching on or about June 21, 2013

Patricia Locks

Federal Way, WA

Personal discussion on or about June 21, 2013

Michael McKeown

Federal Way, WA

First

written coaching on or about June 21, 2013

Liai Pefua Federal Way, WA First written coaching on or about June 21, 2013

Patricia Scott

Federal Way, WA

First written coaching on or about June 21, 2013

John Smith

Federal Way, WA

Second written coaching on

or about June 21, 2013

Betty Shove

Mt. Vernon, WA

Personal discussion on or about June 26, 2013

Esmeralda (Mandy) Uvalle

Mt. Vernon, WA

Personal discussion on or about June 21, 2013

Debra Williams

Mt. Vernon, WA

Personal discussion on or about June

21, 2013

62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

See Analysis Section III(A)–(F), (H)–(X), (Z)–(BB) (additional

findings of fact for each associate listed above); see also Care

Manor of Farmington, Inc., 318 NLRB 725, 726 (1995) (ex-

plaining that a decision to discipline or discharge an employee is

tainted if the decision relies on prior discipline that was unlaw-

ful); Dynamics Corp., 296 NLRB 1252, 1253–1254 (1989)

(same), enfd. 928 F.2d 609 (2d Cir. 1991).

With that initial set of allegations resolved, the allegations that

relate to Louis Callahan, Barbara Gertz, Victoria Martinez (De-

cember 2012 discipline only), Shana Stonehouse, and Lawrence

Slowey are all that remain. I now turn to the issues with those

allegations that require further discussion.

2. Did Walmart mount a viable defense to the allegation that it

unlawfully discriminated against Barbara Gertz and

Lawrence Slowey?

For the same reasons that it did with the 51 associates dis-

cussed above, the General Counsel made an initial showing that

Walmart discriminated against Barbara Gertz and Lawrence

Slowey when it issued personal discussions to them on June 18

(Gertz) and June 24 (Slowey). (See Analysis Section III(G),

(CC); Section IV(B)(2).) Instead of mounting a defense around

the theory that it would have taken the same action against Gertz

and Slowey even in the absence of their protected activity (a

common defense when an employer is charged with discriminat-

ing against an employee), Walmart asserted that I should apply

a “totality of circumstances” analysis to Walmart’s conduct to-

wards Gertz and Slowey, and conclude that Walmart did not in-

terfere with, restrain, or coerce Gertz or Slowey in the exercise

of protected activities. (See Walmart Posttrial Br. at 167–169.)

Walmart misses the mark with its proffered defense, because

the totality of the circumstances analysis applies when the ques-

tion is whether an employer violated Section 8(a)(1) of the Act

by making a statement or engaging in conduct that would have a

reasonable tendency to interfere with, restrain or coerce employ-

ees in the exercise of union or protected activities. See, e.g.,

Farm Fresh Company, Target One, LLC, 361 NLRB 848, slip

op. at 14. The Section 8(a)(1) allegations here regarding Gertz

and Slowey raise a different question—whether Walmart unlaw-

fully discriminated against them when it issued disciplinary

110

I note that Walmart did not assert a repudiation defense to the

allegations regarding Gertz and Slowey. As the Board has explained, an

employer may avoid liability for unlawful conduct in some circum-

stances by repudiating the conduct, provided that the repudiation is:

timely; unambiguous; specific in nature to the coercive conduct; ade-

quately publicized to the employees involved; free from other proscribed

illegal conduct; and accompanied by assurances that the employer will

not interfere with employees’ Sec. 7 rights in the future. The employer

also must not engage in proscribed conduct after the repudiation. Passa-

vant Memorial Area Hospital, 237 NLRB 138, 138 (1978); see also

Danite Sign Co., 356 NLRB 975, 981 (2011) (explaining that that “by its

terms the Passavant decision indicates that what an employer must do to

cure a violation may depend on the nature of the violation”).

Since Walmart did not assert a repudiation defense, the defense is

waived. Even if I were to consider the merits of such a defense, however,

I would find that the repudiation defense is not viable here because

Walmart did not take appropriate steps to cure the violations that it com-

mitted when it disciplined Gertz and Slowey. See Analysis Sec. III(G),

(CC) (indicating that Walmart, among other things, did not make any

personal discussions based on their strike-related absences. See,

e.g., Correctional Medical Services, 356 NLRB 2767, slip op. at

2. Since Walmart did not offer a valid defense to the allegations

that it unlawfully disciplined Gertz and Slowey, Walmart failed

to rebut the General Counsel’s initial showing of discrimination,

and I accordingly find that Walmart violated Section 8(a)(1) of

the Act when it issued personal discussions to Gertz and Slowey

(on June 18 and 24, respectively) for strike-related absences.

110

3. Did the General Counsel show that Walmart discharged

Callahan unlawfully?

In contrast to the other associates involved in this case, the

General Counsel did not make an initial showing that Walmart

discriminated against Callahan. First, the General Counsel did

not show that the managers at store 3455 had any knowledge of

Callahan’s protected concerted activities when they decided to

discharge Callahan on May 28. At that point, Callahan had not

yet announced that he was going on strike (he did so on May

30),

111

and there is no evidence that the managers at store 3455

were aware of or believed that Callahan engaged in any other

protected concerted activities.

112

(See Analysis Section

III(E)(2).)

Second, the General Counsel did not show that Walmart’s de-

cision to discharge Callahan was motivated by Callahan’s pro-

tected, concerted activities. Walmart presented unrebutted evi-

dence that it discharged Callahan on May 28 because of poor

performance, specifically because Callahan was not properly

stocking and zoning his department. Furthermore, the General

Counsel did not show that Walmart’s performance rationale for

Callahan’s discharge was a pretext for discrimination. Instead,

the evidentiary record shows that Walmart noted its concerns

about Callahan’s performance (particularly as to stocking and

zoning) when it issued Callahan a third written coaching in Feb-

ruary 2013, months before Callahan engaged in any protected

concerted activities. Thus, Walmart’s decision to discharge Cal-

lahan on May 28 for poor performance was consistent with the

concerns that Walmart expressed about Callahan’s performance

months earlier.

113

(See Analysis Section III(E)(2).)

Third, even if I assumed that the General Counsel made an

initial showing of discrimination, I would find that Walmart

attempt to advise Gertz and Slowey in unambiguous terms that their

strike-related absences were protected activity, or assure Gertz and

Slowey that Walmart would not interfere with their Section 7 rights in

the future).

111

In the complaint, the General Counsel alleged that Callahan en-

gaged in protected, concerted activity by agreeing on May 15 to partici-

pate in the Ride for Respect (which, of course, was scheduled for later in

the month). (GC Exh. 1(bb) (par. 53(A).) The General Counsel did not

present any evidence to support that assertion, nor did it present any ev-

idence that Walmart was aware that Callahan made such an agreement.

112

To be sure, an unknown Walmart official identified Callahan as a

participant in the May 1–6 leadership meeting that OUR Walmart held

in Birmingham. There is no evidence, however, that anyone communi-

cated that belief to the managers at store 3455 before they decided to

discharge Callahan.

113

I am not persuaded by the General Counsel’s argument that I

should find animus, and therefore unlawful motivation for Callahan’s

discharge, based on the violations of the Act that I found in Walmart

Stores, Inc., Case 32–CA–090116 (2014). Although many of the

WALMART STORES, INC. 63

succeeded in proving (as an affirmative defense) that it would

have discharged Callahan on May 28 for poor performance even

if Callahan had not engaged in protected concerted activity. As

noted above, Walmart’s performance explanation for discharg-

ing Callahan was well documented, and was unrebutted. Ac-

cordingly, I find that the General Counsel failed to meet its bur-

den of proving that Walmart violated the Act when it discharged

Callahan, and I recommend that the allegations in paragraph 53

of the complaint be dismissed.

Did Walmart take unlawful disciplinary action against Victo-

ria Martinez in December 2012 or against Shana Stonehouse in

June 2013?

As previously noted, it is clear from the evidentiary record that

written coachings are an integral part of Walmart’s progressive

discipline system. I have also found that the personal discussions

that Walmart issues are a form of discipline. (See Analysis Sec-

tion II(D).) The alleged disciplinary actions that Walmart took

against Victoria Martinez in December 2012, and Shana

Stonehouse in June 2013, require further discussion, however,

because there are questions about whether those actions fall into

one of the established categories of discipline under Walmart’s

framework.

a. Victoria Martinez—December 17, 2012 meeting and

written statement

The General Counsel alleges that Walmart unlawfully disci-

plined Victoria Martinez on December 17, 2012, when Walmart

had Martinez sign a statement to acknowledge that she had four

active occurrences on her attendance record (at least one of

which was for a strike-related absence), and to acknowledge that

her next occurrence could result in discipline. (See Analysis Sec.

III(C).)

As a preliminary matter, I find that Walmart’s December 17,

2012 meeting with Martinez was a personal discussion, and

therefore a form of discipline. Although Walmart did not use a

personal discussion log when it met with Martinez, the statement

that Walmart had Martinez sign had all of the elements of a per-

sonal discussion insofar as the statement: warned Martinez about

the number of active attendance occurrences on her record;

warned Martinez that her next attendance occurrence could re-

sult in discipline; and became part of Martinez’s attendance rec-

ord and would be available for Walmart to refer to and rely on if

it needed to decide whether to issue a coaching to Martinez based

on future attendance problems.

114

I also find that Walmart ran afoul of Section 8(a)(1) of the Act

when it gave Martinez the personal discussion on December 17,

2012, and indicated that the personal discussion was based, in

part, on her protected activities on November 20, 2012.

violations that I found in that case occurred in store 3455, the violations

did not involve Callahan, and do not undermine the credibility of

Walmart’s explanation for Callahan’s discharge.

114

Walmart itself referred to the December 17, 2012 statement as a

personal discussion in its posttrial brief. (Walmart Posttrial Br. at 169–

170.)

115

Walmart suggests that Martinez had other occurrences on her at-

tendance record that could have supported the personal discussion, irre-

spective of her strike and strike-support activities on November 20 and

23, 2012. (Walmart Posttrial Br. at 169–170.) That argument misses the

Although Martinez was not scheduled to work on November 20,

she notified Walmart that she was going “on strike” that day by

submitting a strike letter and a return to work letter, and also by

calling the IVR system to report that she would be absent.

Walmart was therefore aware that Martinez engaged in protected

activity on November 20, 2012, when Martinez supported the

OUR Walmart strike on her own time. When Pasillas subse-

quently gave Martinez a personal discussion on December 17,

2012, and erroneously indicated that the personal discussion was

based on Martinez’ “absence” on November 20, Walmart im-

properly linked the personal discussion to Martinez’s protected

strike-support activity.

Accordingly, I find that the General Counsel made an initial

showing that the December 17, 2012 personal discussion that

Walmart gave to Martinez was discriminatory. Since Walmart

did not rebut that showing with sufficient evidence that it would

have given Martinez the personal discussion even in the absence

of Martinez’s protected concerted activity,

115

I find that

Walmart violated Section 8(a)(1) of the Act by issuing the De-

cember 17, 2012 personal discussion to Martinez based in part

on her November 20, 2012 protected activities.

116

b. Shana Stonehouse—discipline in June 12, 2013 meeting

In the consolidated complaint, the General Counsel alleged

that Walmart unlawfully disciplined Stonehouse on or about

June 18, 2013, by issuing her a warning for absences. (GC Exh.

1(bb) (par. 51).) In its posttrial brief, the General Counsel at-

tempted to prove that allegation by asserting that: (a) on July 1,

2013, Walmart issued Stonehouse a third written coaching for

attendance that was “based on unexcused absences that included

her unexcused strike absences”; and (b) Walmart listed

Stonehouse as receiving a personal discussion on an internal

memo about holding associates accountable for intermittent

work stoppage activity. (See GC Posttrial Br. at 71 (citing Jt.

Exhs. 29 (Walmart memo), 531 (Third Written Coaching)).)

The facts do no bear out either of the General Counsel’s theo-

ries. The record is clear that Walmart issued Stonehouse a third

written coaching on July 1 because Stonehouse incurred unex-

cused absences on June 20, 21 and 22, after she had already re-

turned to work after the Ride for Respect. The General Counsel

did not show that the third written coaching relied on any of

Stonehouse’s strike-related absences. As for the General Coun-

sel’s suggestion that Stonehouse received a personal discussion,

the evidentiary record shows that Walmart did not go through

with its plan to issue Stonehouse a personal discussion because

Stonehouse was sick and absent from work on June 20–22, and

thus was not available for the discussion (though she did incur

mark because the fact remains that Walmart explicitly identified Novem-

ber 20, 2012, (the day that Martinez supported an OUR Walmart

strike/action on her own time) as part of the basis for the personal dis-

cussion.

116

Since I have found that Walmart violated the Act when it relied on

Martinez’s November 20 protected activities as the basis for the personal

discussion, I need not address whether Walmart’s reference to Mar-

tinez’s November 23 strike-related absence also tainted the personal dis-

cussion.

64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the third written coaching noted above). (See Discussion and

Analysis, Section III(Y).)

With that being stated, the evidentiary record does show that

on or about June 12, a Walmart manager: verbally informed

Stonehouse that Walmart would treat her strike-related absences

during the Ride for Respect as a single unexcused absence; and

made computer entries that designated Stonehouse’s strike-re-

lated absences as unexcused on Stonehouse’s attendance record.

Although this conversation was not a formal personal discussion,

I find that Walmart’s June 12 decision to treat Stonehouse’s

strike-related absence as an unexcused absence was a form of

discipline because it laid a foundation for future discipline. In-

deed, as the Board has indicated, it does not matter that an asso-

ciate must accumulate a certain number of unexcused absences

before Walmart will issue a written coaching—the fact remains

that the unexcused absence itself can lead to future discipline.

See Ohmite Manufacturing Co., 290 NLRB 1036, 1037 (1988)

(explaining that an unexcused absence was a form of meaningful

discipline because it could lead to a written disciplinary warning,

even though three unexcused absences in a month were required

before the employer would issue such a written warning); see

also Mid-Mountain Foods, 332 NLRB 251, 271 (2000) (finding

that an employer violated Section 8(a)(4) and (1) of the Act when

it told an employee that he would receive an unexcused absence

because he did not give sufficient notice that he would miss work

to attend an NLRB hearing pursuant to subpoena, where an un-

excused absence may result in disciplinary action), enfd. 11 Fed.

App. 372 (4th Cir. 2001).

Having resolved the nature of the discipline that Stonehouse

received, the allegation concerning Stonehouse falls in line with

the other allegations in this case that Walmart unlawfully disci-

plined or discharged associates for incurring strike-related ab-

sences during the Ride for Respect. As stated above, the General

Counsel made an initial showing that Walmart discriminated

against Stonehouse, and Walmart did not show that it would have

taken action against Stonehouse’s in the absence of her protected

strike activity. See Analysis Section IV(B)(1); see also Analysis,

Section III(Y). I therefore find that Walmart violated Section

8(a)(1) of the Act when it announced on June 12, 2013, that it

would treat Stonehouse’s strike-related absences during the Ride

for Respect as unexcused absences under Walmart’s attendance

policy.

117

CONCLUSIONS OF LAW

1. By, on or about November 19, 2012, threatening an asso-

ciate in Wheatland, Texas store 949 that associates who went on

strike would be fired, Walmart violated Section 8(a)(1) of the

Act.

2. By issuing a personal discussion to Victoria Martinez on

or about December 17, 2012, because Martinez participated in

an OUR Walmart action while on her own time on November

117

To the extent that the violation that I have found concerning

Stonehouse differs somewhat from what the General Counsel alleged in

the complaint, I note that it is well settled that the Board may find and

remedy a violation even in the absence of a specified allegation in the

complaint if the issue is closely connected to the subject matter of the

complaint and has been fully litigated. See Pergament United Sales, 296

NLRB 333, 335 (1989), enfd. 920 F.2d 130 (2d Cir. 1990)). That

20, 2012, Walmart imposed discipline that violated Section

8(a)(1) of the Act.

3. By, in or about February 2013, in eleven stores, reading

talking points to associates that could be reasonably construed as

prohibiting protected strike activity, Walmart announced an un-

lawful work rule that violated Section 8(a)(1) of the Act.

4. By issuing coachings to Marc Bowers and Colby Harris on

or about May 9–10, 2013, because they were absent from work

while on strike from May 6–9, 2013, Walmart imposed disci-

pline that violated Section 8(a)(1) of the Act.

5. By deciding, on or about June 12, 2013, to treat Shana

Stonehouse’s absences from work while on strike during the

Ride for Respect as one unexcused absence (and notifying

Stonehouse of that decision), Walmart imposed discipline that

violated Section 8(a)(1) of the Act.

6. By issuing personal discussions to the following employees

in June 2013, because they were absent from work while on

strike during the Ride for Respect, Walmart imposed discipline

that violated Section 8(a)(1) of the Act:

Aubrietia Edick;

Barbara Gertz;

Charmaine Givens-Thomas;

Linda Haluska;

Vanzell Johnson;

Juan (John) Juanitas;

Aaron Lawson;

Patricia Locks;

Cynthia Murray;

Cheryl Plowe;

Anna Pritchett;

Vivian Sherman;

Betty Shove;

Lawrence Slowey;

Esmeralda (Mandy) Uvalle;

Ronnie Vandell;

Trina Vetato; and

Debra Williams.

7. By issuing coachings to the following employees between

June and August 2013, because they were absent from work

while on strike during the Ride for Respect, Walmart imposed

discipline that violated Section 8(a)(1) of the Act:

Michael Ahles;

Rose Campbell;

Andrea Carr;

David Coulombe;

Evelin Cruz;

Matthew Gauer;

Sara Gilbert;

Cecilia Gurule;

standard has been satisfied here, since the parties fully litigated how

Walmart handled Stonehouse’s strike-related absences after she returned

to work in June 2013, and the disciplinary action that Walmart took

against Stonehouse on June 12 is closely related to (if not squarely

within) the complaint allegation that Walmart unlawfully disciplined

Stonehouse for being absent from work while on strike during the Ride

for Respect.

WALMART STORES, INC. 65

Colby Harris;

Margaret Hooten;

Marie Kanger-Born;

Aaron Lawson;

Victoria Martinez;

Shawnadia Mixon;

Michael McKeown;

Liai Pefua;

Patricia Scott;

Cody Shimmel;

Jeanna Slate-Creach;

John Smith;

Amy Stinnett;

Trina Vetato; and

Mariah Williams.

8. By discharging the following employees between June and

September 2013, because they were absent from work while on

strike during the Ride for Respect and/or because they had

coachings on their records that arose from protected concerted

activity (i.e., unlawful coachings based on prior strike-related ab-

sences), Walmart violated Section 8(a)(1) of the Act:

Javon Adams;

Marc Bowers;

Raymond Bravo;

Yvette Brown;

Barbara Collins;

Christopher Collins;

Pamela Davis;

Norma Dobyns;

Brandon Garrett;

Jovani Gomez;

Colby Harris;

Pooshan Kapil;

Marie Roberty;

Jeanna Slate-Creach;

Dominic Ware; and

Tavarus Yates.

9. By committing the unfair labor practices stated in conclu-

sions of law 1–8 above, Walmart has engaged in unfair labor

practices affecting commerce within the meaning of Section

8(a)(1) and Section 2(6) and (7) of the Act.

118

As part of its request for make whole relief, the General Counsel

asked that I order Respondent to reimburse the discriminatees who were

unlawfully discharged for all search-for-work and work-related ex-

penses, regardless of whether the discriminatee received interim earnings

that exceed those expenses during any particular calendar quarter or dur-

ing the overall backpay period. Thus, under the General Counsel’s pro-

posal, a discriminatee who had no interim earnings for the first quarter

of 2014 (for example) but spent $100 searching for work would be enti-

tled to reimbursement for their $100 search-for- work expenses. (Tr.

6814–6816.)

I cannot accept the General Counsel’s requested remedy on this issue

because it is contrary to established Board law. As things currently

stand, a discriminatee is entitled to expenses incurred while seeking or

maintaining interim employment, but those expenses are deducted from

the discriminatee’s interim earnings in the appropriate calendar quarters.

REMEDY

A. Traditional Remedies

Having found that Respondent has engaged in certain unfair

labor practices, I shall order it to cease and desist therefrom and

to take certain affirmative action designed to effectuate the poli-

cies of the Act.

Respondent, having discriminatorily discharged Javon Ad-

ams, Marc Bowers, Raymond Bravo, Yvette Brown, Barbara

Collins, Christopher Collins, Pamela Davis, Norma Dobyns,

Brandon Garrett, Jovani Gomez, Colby Harris, Pooshan Kapil,

Marie Roberty, Jeanna Slate-Creach, Dominic Ware, and

Tavarus Yates, must offer them reinstatement and make them

whole for any loss of earnings and other benefits.

118

Backpay

shall be computed in accordance with F. W. Woolworth Co., 90

NLRB 289 (1950), with interest at the rate prescribed in New

Horizons, 283 NLRB 1173 (1987), compounded daily as pre-

scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).

Respondent shall file a report with the Social Security Admin-

istration allocating backpay to the appropriate calendar quarters.

Respondent shall also compensate the discriminatees for the ad-

verse tax consequences, if any, of receiving one or more lump-

sum backpay awards covering periods longer than 1 year. Don

Chavas LLC, d/b/a Tortillas Don Chavas, 361 NLRB 101

(2014).

In addition, Respondent shall rescind, and expunge from its

files any and all references to, the unlawful disciplines and dis-

charges issued to the following associates: Javon Adams, Mi-

chael Ahles, Marc Bowers, Raymond Bravo, Yvette Brown,

Rose Campbell, Andrea Carr, Barbara Collins, Christopher Col-

lins, David Coulombe, Evelin Cruz, Pamela Davis, Norma

Dobyns, Aubretia Edick, Brandon Garrett, Matthew Gauer, Bar-

bara Gertz, Sara Gilbert, Charmaine Givens-Thomas, Jovani

Gomez, Cecelia Gurule, Linda Haluska, Colby Harris, Margaret

Hooten, Vanzell Johnson, John (Juan) Juanitas, Marie Kanger-

Born, Pooshan Kapil, Aaron Lawson, Patricia Locks, Victoria

Martinez, Shawnadia Mixon, Michael McKeown, Cynthia Mur-

ray, Liai Pefua, Cheryl Plowe, Anna Pritchett, Marie Roberty,

Patricia Scott, Vivian Sherman, Cody Shimmel, Betty Shove,

Jeanna Slate-Creach, Lawrence Slowey, John Smith, Amy Stin-

nett, Shana Stonehouse, Esmeralda (Mandy) Uvalle, Ronnie

Vandell, Trina Vetato, Dominic Ware, Debra Williams, Mariah

Williams, and Tavarus Yates. Respondent shall notify these as-

sociates in writing that it has complied with this remedy and that

See, e.g., Webco Industries, 340 NLRB 10, 10 fn. 4, 16 (2003); Flannery

Motors, Inc., 330 NLRB 994, 995 (2000). Thus, if a discriminatee has

no interim earnings in a particular quarter, the discriminatee is precluded

from recovering any search-for-work or work-related expenses for that

quarter. I am bound to follow established Board precedent.

I note that I do not find that it was improper for the General Counsel

to amend the complaint (admittedly, at the end of trial) to request a re-

vised formula for calculating search-for-work and work-related ex-

penses. The General Counsel’s request did not violate Walmart’s due

process rights because Walmart (like the other parties) had the oppor-

tunity to present its arguments in its posttrial brief about the appropriate

legal standard for search-for-work and work-related expenses (see

Walmart Posttrial Br. at 187–190; GC Posttrial Br. at 123–126), and the

parties remain free to contest this issue further should this case be ap-

pealed to the Board.

66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the unlawful disciplines and/or discharges will not be used

against them in any way.

B. Extraordinary Remedies

In addition to the standard remedies described above, the Gen-

eral Counsel requested that I also order Respondent to: (1) post

a notice at each of its facilities in the United States (instead of

simply at the stores where violations occurred); and (2) have a

representative read a copy of the notice to associates in each of

its stores during work time, with the notice read in English and

Spanish or any other language deemed appropriate.

1. Should Walmart be required to post a notice in each of its

stores in the United States?

Customarily, the Board confines the notice-posting require-

ments of its orders “to the facilities at which the violations were

committed.” Consolidated Edison Co. of New York, 323 NLRB

910, 911–912 (1997). Thus, if a respondent commits unfair labor

practices at ten of its facilities, the remedy should include a no-

tice posting only at those ten facilities.

With that basic framework in mind, the General Counsel has

two options if it seeks to establish a predicate for a nationwide

notice posting. First, the General Counsel may argue that a na-

tionwide notice posting is necessary because the respondent im-

plemented an unlawful work rule or policy at each of its facilities

nationwide. See Guardsmark, LLC, 344 NLRB 809, 812 (2005)

(noting that “we have consistently held that, where an em-

ployer’s overbroad rule is maintained as a companywide policy,

we will generally order the employer to post an appropriate no-

tice at all of its facilities where the unlawful policy has been or

is in effect,” and ordering a nationwide notice posting because

the respondent’s work rules applied to all of its employees na-

tionwide), enfd. in pertinent part, 475 F.3d 369 (D.C. Cir. 2007);

see also Fresh & Easy Neighborhood Market, 361 NLRB 151,

160–161 (2014) (ordering a nationwide notice posting to address

an unlawful confidentiality work rule that had been or was in

effect at each of the respondent’s facilities); Labor Ready, Inc.,

327 NLRB 1055, 1055 fn. 2, 1060 (1999) (same, regarding a re-

spondent’s unlawful decision to ban a job applicant from all of

respondent’s offices because he solicited other job applicants to

sign a work-related petition), enfd. 253 F.3d 195 (4th Cir. 2001).

And second, the General Counsel may argue that the respondent

has a record of committing unfair labor practices in multiple fa-

cilities (but not necessarily all of its facilities), such that the

Board should invoke its authority to issue a broad, corporate-

wide order that would include a notice posting requirement be-

yond the facilities directly involved in the unfair labor practices.

See, e.g., Albertson’s, Inc., 351 NLRB 254, 384 (2007) (collect-

ing cases).

In this case, the General Counsel only invoked the first theory,

asserting that Walmart (through its labor relations department)

implemented a national policy to treat all strike-related absences

as unexcused absences, and that policy led to the unlawful

119

Walmart unlawfully disciplined or discharged associates at

twenty-nine stores in this case. In addition, at one additional store (store

2110 in Paramount, California), Walmart read its unlawful February

2013 talking points to associates, but did not subsequently discipline or

discharge any associates based on strike-related absences during the Ride

disciplines and discharges that occurred in this case. (See GC

Posttrial Br. at 122.) The General Counsel’s argument falls short

because this is not a case where Walmart announced that policy

to all of its associates nationwide (e.g., in an associate hand-

book). Instead, the evidentiary record shows that in February

2013, Walmart advised select associates at 11 stores about

Walmart’s position that the strikes OUR Walmart was organiz-

ing were unprotected. Then, in June 2013, Walmart disciplined

or discharged associates at 29 stores (10 of which were stores

where Walmart read the unlawful February 2013 talking points

to associates) based on its view that the OUR Walmart strikes

were unprotected. Notably, although the parties presented ex-

tensive evidence about how Walmart communicates to associ-

ates, there is no evidence that Walmart communicated the Feb-

ruary 2013 talking points to associates nationwide. We are there-

fore left with a record that establishes that Walmart’s “policy”

concerning OUR Walmart’s strikes only affected 30 stores. Ac-

cordingly, I do not find a sufficient basis for me to recommend

that Walmart post a notice at each of its 4,300+ stores, instead of

at the 31 stores

119

where the unfair labor practices occurred. See

Albertson’s, Inc., 351 NLRB at 384–386 (requiring a notice post-

ing for facilities in the respondent’s Rocky Mountain division,

and not for facilities in a larger geographic region, because the

bulk of the unfair labor practices occurred in the Rocky Moun-

tain division).

2. Is a Notice Reading Warranted?

The Board has required that a notice be read aloud to employ-

ees where an employer’s misconduct has been sufficiently seri-

ous and widespread that reading of the notice will be necessary

to enable employees to exercise their Section 7 rights free of co-

ercion. This remedial action is intended to ensure that employees

will fully perceive that the respondent and its managers are

bound by the requirements of the Act. Farm Fresh Co., Target

One, LLC, 361 NLRB 848, slip op. at 21.

Applying that standard, I do not find that Respondent’s mis-

conduct in this case was sufficiently serious and widespread to

warrant an order requiring the notice to be read aloud to associ-

ates in each of its stores. As a preliminary matter, since I found

(above) that a nationwide notice posting is unwarranted in this

case, it follows that a nationwide notice reading remedy is also

unwarranted. The question remains, however, as to whether a

notice reading is warranted in the stores where I found Respond-

ent violated the Act.

In stores 949 (Wheatland, Texas) and 2110 (Paramount, Cali-

fornia), I find that a standard notice posting remedy will be suf-

ficient to address the violations in this case. Walmart did not

discipline or discharge any associates at those two stores based

on strike-related absences, and the unlawfully coercive state-

ments that Walmart made at those stores were not sufficiently

serious or widespread to warrant a notice reading.

However, I do find that a notice reading remedy is warranted

at each store where Respondent disciplined or discharged

for Respect. (See Discussion and Analysis, Section I(D).) Finally, at

store 949 in Wheatland, Texas, a Walmart manager made a statement to

an associate that violated the Act. (See Discussion and Analysis, Section

I(C) (regarding store 949 in Wheatland, Texas).)

WALMART STORES, INC. 67

associates for incurring strike-related absences, because Re-

spondent’s misconduct at those stores was sufficiently serious

and widespread to warrant an order requiring the applicable no-

tice to be read aloud to associates in the presence of the store’s

manager. The evidentiary record shows that Respondent took

swift action against associates after they returned from strike,

and thereby sent message to all associates at the store that similar

protected activity would lead to disciplinary action. In light of

those serious and widespread actions, I agree that a notice read-

ing is necessary to assure associates at the following stores that

they may exercise their Section 7 rights free of coercion:

Fremont, CA (store 2989)

Lakewood, CA (store 2609)

Pico Rivera, CA (store 2886)

Placerville, CA (store 2418)

Richmond, CA (store 3455)

San Leandro, CA (store 5434)

Aurora, CO (store 5334)

Hialeah, FL (store 1590)

Chicago, IL (store 5781)

Crestwood, IL (store 3601)

Evergreen Park, IL (store 5485)

Glenwood, IL (store 5404)

Wheeling, IL (store 1735)

Paducah, KY (store 431)

Stanford, KY (store 825)

Baker, LA (store 1102)

Laurel, MD (store 1985)

Chelmsford, MA (store 2903)

Chicopee, MA (store 5278)

Sauk Centre, MN (store 4253)

Elizabeth City, NC (store 1527)

Ennis, TX (store 286)

Lancaster, TX (store 471)

Quinlan, TX (store 4215)

Bellevue, WA (store 3098)

Bellingham, WA (store 2450)

Federal Way, WA (store 2571)

Mt. Vernon, WA (store 2596)

Port Angeles, WA (store 2196)

Accordingly, in the stores listed above, I will require that the

applicable remedial notice in this case be read aloud to associates

in English and Spanish by each store’s manager or, at Respond-

ent’s option, by a Board agent in Respondent’s store manager’s

presence.

120

Farm Fresh Co., Target One, LLC, 361 NLRB 848,

slip op. at 21.

On these findings of fact and conclusions of law and on the

entire record, I issue the following recommended

121

ORDER

Respondent, Walmart Stores, Inc., Bentonville, Arkansas, its

120

Consistent with the fact that the unlawful disciplines and dis-

charges in this case generally arose out of similar circumstances and oc-

curred in multiple stores, the remedial notices that address disciplines

and/or discharges in this case list all associates that Respondent unlaw-

fully disciplined and/or discharged, instead of just the associates in the

particular store where the notice will be posted.

officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening associates that they will be fired if they go on

strike.

(b) Issuing disciplinary personal discussions to associates be-

cause they participate in labor activity on their own time.

sonably could construe as announcing a work rule that prohibits

them from engaging in protected strike activity.

(d) Disciplining associates (e.g., by giving associates unex-

cused absences, personal discussions, and/or written coachings)

because they miss work while participating in a strike that is pro-

tected by Section 7 of the Act.

(e) Discharging associates because they miss work while par-

ticipating in a strike that is protected by Section 7 of the Act,

and/or because they had coachings on their records that arose

from protected concerted activity (i.e., unlawful coachings based

on prior strike-related absences).

(f) In any like or related manner interfering with, restraining,

or coercing employees in the exercise of the rights guaranteed

them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectu-

ate the policies of the Act.

(a) Within 14 days from the date of the Board’s Order, offer

Javon Adams, Marc Bowers, Raymond Bravo, Yvette Brown,

Barbara Collins, Christopher Collins, Pamela Davis, Norma

Dobyns, Brandon Garrett, Jovani Gomez, Colby Harris, Pooshan

Kapil, Marie Roberty, Jeanna Slate-Creach, Dominic Ware, and

Tavarus Yates full reinstatement to their former jobs or, if those

jobs no longer exist, to substantially equivalent positions, with-

out prejudice to their seniority or any other rights or privileges

previously enjoyed.

(b) Make Javon Adams, Marc Bowers, Raymond Bravo,

Yvette Brown, Barbara Collins, Christopher Collins, Pamela Da-

vis, Norma Dobyns, Brandon Garrett, Jovani Gomez, Colby Har-

ris, Pooshan Kapil, Marie Roberty, Jeanna Slate-Creach, Domi-

nic Ware, and Tavarus Yates whole for any loss of earnings and

other benefits suffered as a result of the discrimination against

them, in the manner set forth in the remedy section of the deci-

sion.

move from its files any reference to the unlawful discharges, and

within 3 days thereafter notify Javon Adams, Marc Bowers, Ray-

mond Bravo, Yvette Brown, Barbara Collins, Christopher Col-

lins, Pamela Davis, Norma Dobyns, Brandon Garrett, Jovani

Gomez, Colby Harris, Pooshan Kapil, Marie Roberty, Jeanna

Slate-Creach, Dominic Ware, and Tavarus Yates in writing that

this has been done and that the disciplines and/or discharges will

not be used against them in any way.

(d) Within 14 days from the date of the Board’s Order, re-

move from its files any reference to the unlawful disciplines

121

If no exceptions are filed as provided by Sec. 102.46 of the Board’s

Rules and Regulations, the findings, conclusions, and recommended Or-

der 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.

68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

(including unexcused absences, personal discussions and written

coachings), and within 3 days thereafter notify Michael Ahles,

Marc Bowers, Rose Campbell, Andrea Carr, David Coulombe,

Evelin Cruz, Aubretia Edick, Matthew Gauer, Barbara Gertz,

Sara Gilbert, Charmaine Givens-Thomas, Cecelia Gurule, Linda

Haluska, Colby Harris, Margaret Hooten, Vanzell Johnson, John

(Juan) Juanitas, Marie Kanger-Born, Aaron Lawson, Patricia

Locks, Victoria Martinez, Shawnadia Mixon, Michael McKe-

own, Cynthia Murray, Liai Pefua, Cheryl Plowe, Anna Pritchett,

Patricia Scott, Vivian Sherman, Cody Shimmel, Betty Shove,

Jeanna Slate-Creach, Lawrence Slowey, John Smith, Amy Stin-

nett, Shana Stonehouse, Esmeralda (Mandy) Uvalle, Ronnie

Vandell, Trina Vetato, Debra Williams, and Mariah Williams in

writing that this has been done and that the disciplines will not

be used against them in any way.

(e) Preserve and, within 14 days of a request, or such addi-

tional time as the Regional Director may allow for good cause

shown, provide at a reasonable place designated by the Board or

its agents, all payroll records, social security payment records,

timecards, personnel records and reports, and all other records,

including an electronic copy of such records if stored in elec-

tronic form, necessary to analyze the amount of backpay due un-

der the terms of this Order.

(f) Within 14 days after service by the Region, post copies of

the appropriate attached notices,

122

in both English and Spanish,

at the following facilities:

Appendix A: Wheatland, TX (store 949);

Appendix B: Pico Rivera, CA (store 2886);

Appendix C:Aurora, CO (store 5334), Crestwood, IL (store

3601), Paducah, KY (store 431), Stanford, KY (store 825),

Chelmsford, MA (store 2903), Chicopee, MA (store 5278),

Sauk Centre, MN (store 4253), Elizabeth City, NC (store

1527), Ennis, TX (store 286), Bellevue, WA (store 3098), Bel-

lingham, WA (store 2450) and Mt. Vernon, WA (store 2596);

Appendix D: Paramount, CA (store 2110);

Appendix E: Fremont, CA (store 2989), Chicago, IL (store

5781), Evergreen Park, IL (store 5485), Glenwood, IL (store

5404), Laurel, MD (store 1985), Federal Way, WA (store

2571) and Port Angeles, WA (store 2196);

Appendix F: Lakewood, CA (store 2609) and Hialeah, FL

(store 1590);

Appendix G: Richmond, CA (store 3455);

Appendix H: San Leandro, CA (store 5434), Wheeling, IL

(store 1735), Baker, LA (store 1102), and Quinlan, TX (store

4215); and

122

If this Order is enforced by a judgment of a United States court of

appeals, the words in the notice reading “Posted by Order of the National

Labor Relations Board” shall read “Posted Pursuant to a Judgment of the

Appendix I: Placerville, CA (store 2418) and Lancaster, TX

(store 471).

Copies of the notices, on forms provided by the Regional Di-

rector for Region 16, after being signed by the Respondent’s au-

thorized representative, shall be posted by the Respondent and

maintained for 60 consecutive days in conspicuous places in-

cluding all places where notices to employees are customarily

posted. In addition to physical posting of paper notices, the no-

tices shall be distributed electronically, such as by email, posting

on an intranet or an internet site, and/or other electronic means,

if the Respondent customarily communicates with its employees

by such means. Reasonable steps shall be taken by the Respond-

ent 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, the Respondent has gone out of business or

closed one or more of the facilities involved in these proceed-

ings, the Respondent shall duplicate and mail, at its own expense,

a copy of the notice to all current employees and former employ-

ees employed by the Respondent at the affected facilities any

time since November 19, 2012.

(g) Within 14 days after service by the Region, hold a meeting

or meetings, scheduled to have the widest possible attendance, at

which the appropriate notice (as listed above in section (f)) shall

be read to associates in both English and Spanish, by Respond-

ent’s store manager or, at Respondent’s option, by a Board agent

in Respondent’s store manager’s presence in the following facil-

ities:

Fremont, CA (store 2989)

Lakewood, CA (store 2609)

Pico Rivera, CA (store 2886)

Placerville, CA (store 2418)

Richmond, CA (store 3455)

San Leandro, CA (store 5434)

Aurora, CO (store 5334)

Hialeah, FL (store 1590)

Chicago, IL (store 5781)

Crestwood, IL (store 3601)

Evergreen Park, IL (store 5485)

Glenwood, IL (store 5404)

Wheeling, IL (store 1735)

Paducah, KY (store 431)

Stanford, KY (store 825)

Baker, LA (store 1102)

Laurel, MD (store 1985)

Chelmsford, MA (store 2903)

Chicopee, MA (store 5278)

Sauk Centre, MN (store 4253)

Elizabeth City, NC (store 1527)

Ennis, TX (store 286)

Lancaster, TX (store 471)

Quinlan, TX (store 4215)

Bellevue, WA (store 3098)

Bellingham, WA (store 2450)

United States Court of Appeals Enforcing an Order of the National Labor

Relations Board.”

WALMART STORES, INC. 69

Federal Way, WA (store 2571)

Mt. Vernon, WA (store 2596)

Port Angeles, WA (store 2196).

(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 the

Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar

as it alleges violations of the Act not specifically found.

IT IS FURTHER ORDERED that the protective orders entered into

during the hearing prohibiting the parties from disclosing certain

confidential information and confidential exhibits (except as per-

mitted by the terms of the protective orders) shall be continued

in full force and effect.

Dated, Washington, D.C. January 21, 2016

APPENDIX A

Wheatland, TX (Store 949)

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT threaten associates that they will be fired if they

go on strike.

WE WILL NOT in any like or related manner interfere with, re-

strain, or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WALMART STORES, INC.

The Administrative Law Judge’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR code be-

low. Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board, 1015

Half Street, S.E., Washington, D.C. 20570, or by calling (202)

273-1940.

APPENDIX B

Pico Rivera, CA (Store 2886)

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT issue disciplinary personal discussions to asso-

ciates because they participate in labor activity on their own

time.

WE WILL NOT discipline associates (e.g., by giving associates

unexcused absences, personal discussions, and/or written coach-

ings) because they miss work while participating in a strike that

is protected by Section 7 of the Act.

WE WILL NOT in any like or related manner interfere with, re-

strain, or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful disciplines

(including unexcused absences, disciplinary attendance state-

ments, personal discussions and written coachings) issued to the

following associates:

John (Juan) Juanitas (Fremont, CA—store 2989)

Evelin Cruz and Victoria Martinez (Pico Rivera, CA—store

2886)

Matthew Gauer, Margaret Hooten and Amy Stinnett (Placer-

ville, CA—store 2418)

Andrea Carr and Cecelia Gurule (San Leandro, CA—store

5434)

Barbara Gertz (Aurora, CO—store 5334)

Anna Pritchett and Ronnie Vandell (Chicago, IL—store 5781)

Marie Kanger-Born (Crestwood, IL—store 3601)

Charmaine Givens-Thomas (Evergreen Park, IL—store 5485)

Linda Haluska (Glenwood, IL—store 5404)

Rose Campbell (Wheeling, IL—store 1735)

70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Trina Vetato (Paducah, KY—store 431)

Aaron Lawson (Stanford, KY—store 825)

Shawnadia Mixon and Mariah Williams (Baker, LA—store

1102)

Cynthia Murray (Laurel, MD—store 1985)

David Coulombe (Chelmsford, MA—store 2903)

Aubretia Edick (Chicopee, MA—store 5278)

Michael Ahles (Sauk Centre, MN—store 4253)

Cheryl Plowe (Elizabeth City, NC—store 1527)

Cody Shimmel (Ennis, TX—store 286)

Marc Bowers, Colby Harris and Vanzell Johnson (Lancaster,

TX—store 471)

Jeanna Slate-Creach (Quinlan, TX—store 4215)

Shana Stonehouse (Bellevue, WA—store 3098)

Vivian Sherman (Bellingham, WA—store 2450)

Sara Gilbert, Patricia Locks, Michael McKeown, Liai Pefua,

Patricia Scott and John Smith (Federal Way, WA—store 2571)

Betty Shove, Esmeralda (Mandy) Uvalle and Debra Williams

(Mt. Vernon, WA—store 2596)

Lawrence Slowey (Port Angeles, WA—store 2196)

Within 3 days thereafter, WE WILL notify the associates listed

above in writing that this has been done and that the disciplines

will not be used against them in any way.

WALMART STORES, INC.

The Administrative Law Judge’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR code be-

low. Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board, 1015

Half Street, S.E., Washington, D.C. 20570, or by calling (202)

273-1940.

APPENDIX C

(Aurora, CO (Store 5334), Crestwood, IL (Store 3601),

Paducah, KY (Store 431), Stanford, KY (Store 825), Chelms-

ford, MA (Store 2903), Chicopee, MA (Store 5278), Sauk Cen-

tre, MN (Store 4253), Elizabeth City, NC (Store 1527), Ennis,

TX (Store 286), Bellevue, WA (Store 3098), Bellingham, WA

(Store 2450), MT. Vernon, WA (Store 2596))

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT discipline associates (e.g., by giving associates

unexcused absences, personal discussions, and/or written coach-

ings) because they miss work while participating in a strike that

is protected by Section 7 of the Act.

WE WILL NOT in any like or related manner interfere with, re-

strain, or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful disciplines

(including unexcused absences, disciplinary attendance state-

ments, personal discussions and written coachings) issued to the

following associates:

John (Juan) Juanitas (Fremont, CA – store 2989)

Evelin Cruz and Victoria Martinez (Pico Rivera, CA – store

2886)

Matthew Gauer, Margaret Hooten and Amy Stinnett (Placer-

ville, CA – store 2418)

Andrea Carr and Cecelia Gurule (San Leandro, CA – store

5434)

Barbara Gertz (Aurora, CO – store 5334)

Anna Pritchett and Ronnie Vandell (Chicago, IL – store 5781)

Marie Kanger-Born (Crestwood, IL – store 3601)

Charmaine Givens-Thomas (Evergreen Park, IL – store 5485)

Linda Haluska (Glenwood, IL – store 5404)

Rose Campbell (Wheeling, IL – store 1735)

Trina Vetato (Paducah, KY – store 431)

Aaron Lawson (Stanford, KY – store 825)

Shawnadia Mixon and Mariah Williams (Baker, LA – store

1102)

Cynthia Murray (Laurel, MD – store 1985)

David Coulombe (Chelmsford, MA – store 2903)

Aubretia Edick (Chicopee, MA – store 5278)

Michael Ahles (Sauk Centre, MN – store 4253)

Cheryl Plowe (Elizabeth City, NC – store 1527)

Cody Shimmel (Ennis, TX – store 286)

Marc Bowers, Colby Harris and Vanzell Johnson (Lancaster,

TX – store 471)

Jeanna Slate-Creach (Quinlan, TX – store 4215)

Shana Stonehouse (Bellevue, WA – store 3098)

Vivian Sherman (Bellingham, WA – store 2450)

Sara Gilbert, Patricia Locks, Michael McKeown, Liai Pefua,

Patricia Scott and John Smith (Federal Way, WA – store 2571)

Betty Shove, Esmeralda (Mandy) Uvalle and Debra Williams

(Mt. Vernon, WA – store 2596)

Lawrence Slowey (Port Angeles, WA – store 2196)

WALMART STORES, INC. 71

Within 3 days thereafter, WE WILL notify the associates listed

above in writing that this has been done and that the disciplines

will not be used against them in any way.

WALMART STORES, INC.

The Administrative Law Judge’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR code be-

low. Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board, 1015

Half Street, S.E., Washington, D.C. 20570, or by calling (202)

273-1940.

APPENDIX D

Paramount, CA (Store 2110)

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT read talking points to associates that associates

reasonably could construe as announcing a work rule that pro-

hibits them from engaging in protected strike activity.

WE WILL NOT in any like or related manner interfere with, re-

strain, or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WALMART STORES, INC.

The Administrative Law Judge’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR code be-

low. Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board, 1015

Half Street, S.E., Washington, D.C. 20570, or by calling (202)

273-1940.

APPENDIX E

(Fremont, CA (Store 2989), Chicago, IL (Store 5781), Ever-

green Park, IL (Store 5485), Glenwood, IL (Store 5404), Lau-

rel, MD (Store 1985), Federal Way, WA (Store 2571) and Port

Angeles, WA (Store 2196))

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT read talking points to associates that associates

reasonably could construe as announcing a work rule that pro-

hibits them from engaging in protected strike activity.

WE WILL NOT discipline associates (e.g., by giving associates

unexcused absences, personal discussions, and/or written coach-

ings) because they miss work while participating in a strike that

is protected by Section 7 of the Act.

WE WILL NOT in any like or related manner interfere with, re-

strain, or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful disciplines

(including unexcused absences, disciplinary attendance state-

ments, personal discussions and written coachings) issued to the

following associates:

John (Juan) Juanitas (Fremont, CA – store 2989)

Evelin Cruz and Victoria Martinez (Pico Rivera, CA – store

2886)

Matthew Gauer, Margaret Hooten and Amy Stinnett (Placer-

ville, CA – store 2418)

Andrea Carr and Cecelia Gurule (San Leandro, CA – store

5434)

Barbara Gertz (Aurora, CO – store 5334)

Anna Pritchett and Ronnie Vandell (Chicago, IL – store 5781)

Marie Kanger-Born (Crestwood, IL – store 3601)

72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Charmaine Givens-Thomas (Evergreen Park, IL – store 5485)

Linda Haluska (Glenwood, IL – store 5404)

Rose Campbell (Wheeling, IL – store 1735)

Trina Vetato (Paducah, KY – store 431)

Aaron Lawson (Stanford, KY – store 825)

Shawnadia Mixon and Mariah Williams (Baker, LA – store

1102)

Cynthia Murray (Laurel, MD – store 1985)

David Coulombe (Chelmsford, MA – store 2903)

Aubretia Edick (Chicopee, MA – store 5278)

Michael Ahles (Sauk Centre, MN – store 4253)

Cheryl Plowe (Elizabeth City, NC – store 1527)

Cody Shimmel (Ennis, TX – store 286)

Marc Bowers, Colby Harris and Vanzell Johnson (Lancaster,

TX – store 471)

Jeanna Slate-Creach (Quinlan, TX – store 4215)

Shana Stonehouse (Bellevue, WA – store 3098)

Vivian Sherman (Bellingham, WA – store 2450)

Sara Gilbert, Patricia Locks, Michael McKeown, Liai Pefua,

Patricia Scott and John Smith (Federal Way, WA – store 2571)

Betty Shove, Esmeralda (Mandy) Uvalle and Debra Williams

(Mt. Vernon, WA – store 2596)

Lawrence Slowey (Port Angeles, WA – store 2196)

Within 3 days thereafter, WE WILL notify the associates listed

above in writing that this has been done and that the disciplines

will not be used against them in any way.

WALMART STORES, INC.

The Administrative Law Judge’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR code be-

low. Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board, 1015

Half Street, S.E., Washington, D.C. 20570, or by calling (202)

273-1940.

APPENDIX F

(Lakewood, CA (Store 2609) and Hialeah, FL (Store 1590))

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT discharge associates because they miss work

while participating in a strike that is protected by Section 7 of

the Act, and/or because they had coachings on their records that

arose from protected concerted activity (i.e., unlawful coachings

based on prior strike-related absences).

WE WILL NOT in any like or related manner interfere with, re-

strain, or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order,

offer the following associates full reinstatement to their former

jobs or, if those jobs no longer exist, to substantially equivalent

positions, without prejudice to their seniority or any other rights

or privileges previously enjoyed:

Jovani Gomez (Lakewood, CA – store 2609)

Yvette Brown, Barbara Collins and Norma Dobyns (Placer-

ville, CA – store 2418)

Raymond Bravo and Pamela Davis (Richmond, CA – store

3455)

Dominic Ware (San Leandro, CA – store 5434)

Marie Roberty (Hialeah, FL – store 1590)

Pooshan Kapil (Wheeling, IL – store 1735)

Brandon Garrett and Tavarus Yates (Baker, LA – store 1102)

Javon Adams, Marc Bowers, Christopher Collins and Colby

Harris (Lancaster, TX – store 471)

Jeanna Slate-Creach (Quinlan, TX – store 4215).

WE WILL make the associates listed above whole for any loss

of earnings and other benefits suffered as a result of the discrim-

ination against them.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful discharges

of the associates listed above, and within 3 days thereafter notify

those associates in writing that this has been done and that the

discharges will not be used against them in any way.

WE WILL file a report with the Social Security Administration

allocating backpay to the appropriate quarters.

WE WILL compensate the associates listed above for the ad-

verse tax consequences, if any, of receiving one or more lump-

sum backpay awards covering periods longer than 1 year.

WALMART STORES, INC.

The Administrative Law Judge’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR code be-

low. Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board, 1015

Half Street, S.E., Washington, D.C. 20570, or by calling (202)

273-1940.

WALMART STORES, INC. 73

APPENDIX G

(Richmond, CA (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 be-

half

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT read talking points to associates that associates

reasonably could construe as announcing a work rule that pro-

hibits them from engaging in protected strike activity.

WE WILL NOT discharge associates because they miss work

while participating in a strike that is protected by Section 7 of

the Act, and/or because they had coachings on their records that

arose from protected concerted activity (i.e., unlawful coachings

based on prior strike-related absences).

WE WILL NOT in any like or related manner interfere with, re-

strain, or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order,

offer the following associates full reinstatement to their former

jobs or, if those jobs no longer exist, to substantially equivalent

positions, without prejudice to their seniority or any other rights

or privileges previously enjoyed:

Jovani Gomez (Lakewood, CA – store 2609)

Yvette Brown, Barbara Collins and Norma Dobyns (Placer-

ville, CA – store 2418)

Raymond Bravo and Pamela Davis (Richmond, CA – store

3455)

Dominic Ware (San Leandro, CA – store 5434)

Marie Roberty (Hialeah, FL – store 1590)

Pooshan Kapil (Wheeling, IL – store 1735)

Brandon Garrett and Tavarus Yates (Baker, LA – store 1102)

Javon Adams, Marc Bowers, Christopher Collins and Colby

Harris (Lancaster, TX – store 471)

Jeanna Slate-Creach (Quinlan, TX – store 4215).

WE WILL make the associates listed above whole for any loss

of earnings and other benefits suffered as a result of the discrim-

ination against them.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful discharges

of the associates listed above, and within 3 days thereafter notify

those associates in writing that this has been done and that the

discharges will not be used against them in any way.

WE WILL file a report with the Social Security Administration

allocating backpay to the appropriate quarters.

WE WILL compensate the associates listed above for the ad-

verse tax consequences, if any, of receiving one or more lump-

sum backpay awards covering periods longer than 1 year.

WALMART STORES, INC.

The Administrative Law Judge’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR code be-

low. Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board, 1015

Half Street, S.E., Washington, D.C. 20570, or by calling (202)

273-1940.

APPENDIX H

(San Leandro, CA (Store 5434), Wheeling, IL (Store 1735),

Baker, LA (Store 1102) and Quinlan, TX (Store 4215))

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT discipline associates (e.g., by giving associates

unexcused absences, personal discussions, and/or written coach-

ings) because they miss work while participating in a strike that

is protected by Section 7 of the Act.

74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

WE WILL NOT discharge associates because they miss work

while participating in a strike that is protected by Section 7 of

the Act, and/or because they had coachings on their records that

arose from protected concerted activity (i.e., unlawful coachings

based on prior strike-related absences).

WE WILL NOT in any like or related manner interfere with, re-

strain, or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful disciplines

(including unexcused absences, disciplinary attendance state-

ments, personal discussions and written coachings) issued to the

following associates:

John (Juan) Juanitas (Fremont, CA – store 2989)

Evelin Cruz and Victoria Martinez (Pico Rivera, CA – store

2886)

Matthew Gauer, Margaret Hooten and Amy Stinnett (Placer-

ville, CA – store 2418)

Andrea Carr and Cecelia Gurule (San Leandro, CA – store

5434)

Barbara Gertz (Aurora, CO – store 5334)

Anna Pritchett and Ronnie Vandell (Chicago, IL – store 5781)

Marie Kanger-Born (Crestwood, IL – store 3601)

Charmaine Givens-Thomas (Evergreen Park, IL – store 5485)

Linda Haluska (Glenwood, IL – store 5404)

Rose Campbell (Wheeling, IL – store 1735)

Trina Vetato (Paducah, KY – store 431)

Aaron Lawson (Stanford, KY – store 825)

Shawnadia Mixon and Mariah Williams (Baker, LA – store

1102)

Cynthia Murray (Laurel, MD – store 1985)

David Coulombe (Chelmsford, MA – store 2903)

Aubretia Edick (Chicopee, MA – store 5278)

Michael Ahles (Sauk Centre, MN – store 4253)

Cheryl Plowe (Elizabeth City, NC – store 1527)

Cody Shimmel (Ennis, TX – store 286)

Marc Bowers, Colby Harris and Vanzell Johnson (Lancaster,

TX – store 471)

Jeanna Slate-Creach (Quinlan, TX – store 4215)

Shana Stonehouse (Bellevue, WA – store 3098)

Vivian Sherman (Bellingham, WA – store 2450)

Sara Gilbert, Patricia Locks, Michael McKeown, Liai Pefua,

Patricia Scott and John Smith (Federal Way, WA – store 2571)

Betty Shove, Esmeralda (Mandy) Uvalle and Debra Williams

(Mt. Vernon, WA – store 2596)

Lawrence Slowey (Port Angeles, WA – store 2196)

Within 3 days thereafter, WE WILL notify the unlawfully disci-

plined associates in writing that this has been done and that the

disciplines will not be used against them in any way.

WE WILL, within 14 days from the date of the Board’s Order,

offer the following associates full reinstatement to their former

jobs or, if those jobs no longer exist, to substantially equivalent

positions, without prejudice to their seniority or any other rights

or privileges previously enjoyed:

Jovani Gomez (Lakewood, CA – store 2609)

Yvette Brown, Barbara Collins and Norma Dobyns (Placer-

ville, CA – store 2418)

Raymond Bravo and Pamela Davis (Richmond, CA – store

3455)

Dominic Ware (San Leandro, CA – store 5434)

Marie Roberty (Hialeah, FL – store 1590)

Pooshan Kapil (Wheeling, IL – store 1735)

Brandon Garrett and Tavarus Yates (Baker, LA – store 1102)

Javon Adams, Marc Bowers, Christopher Collins and Colby

Harris (Lancaster, TX – store 471)

Jeanna Slate-Creach (Quinlan, TX – store 4215).

WE WILL make the unlawfully discharged associates whole for

any loss of earnings and other benefits suffered as a result of the

discrimination against them.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful discharges

of the associates listed above, and within 3 days thereafter notify

those associates in writing that this has been done and that the

discharges will not be used against them in any way.

WE WILL file a report with the Social Security Administration

allocating backpay to the appropriate quarters.

WE WILL compensate the unlawfully discharged associates for

the adverse tax consequences, if any, of receiving one or more

lump-sum backpay awards covering periods longer than 1 year.

WALMART STORES, INC.

The Administrative Law Judge’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR code be-

low. Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board, 1015

Half Street, S.E., Washington, D.C. 20570, or by calling (202)

273-1940.

APPENDIX I

(Placerville, CA (Store 2418) and Lancaster, TX (Store 471))

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half

WALMART STORES, INC. 75

Act together with other employees for your benefit and

protection

Choose not to engage in any of these protected activi-

ties.

WE WILL NOT read talking points to associates that associates

reasonably could construe as announcing a work rule that pro-

hibits them from engaging in protected strike activity.

WE WILL NOT discipline associates (e.g., by giving associates

unexcused absences, personal discussions, and/or written coach-

ings) because they miss work while participating in a strike that

is protected by Section 7 of the Act.

WE WILL NOT discharge associates because they miss work

while participating in a strike that is protected by Section 7 of

the Act, and/or because they had coachings on their records that

arose from protected concerted activity (i.e., unlawful coachings

based on prior strike-related absences).

WE WILL NOT in any like or related manner interfere with, re-

strain, or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful disciplines

(including unexcused absences, disciplinary attendance state-

ments, personal discussions and written coachings) issued to the

following associates:

John (Juan) Juanitas (Fremont, CA – store 2989)

Evelin Cruz and Victoria Martinez (Pico Rivera, CA – store

2886)

Matthew Gauer, Margaret Hooten and Amy Stinnett (Placer-

ville, CA – store 2418)

Andrea Carr and Cecelia Gurule (San Leandro, CA – store

5434)

Barbara Gertz (Aurora, CO – store 5334)

Anna Pritchett and Ronnie Vandell (Chicago, IL – store 5781)

Marie Kanger-Born (Crestwood, IL – store 3601)

Charmaine Givens-Thomas (Evergreen Park, IL – store 5485)

Linda Haluska (Glenwood, IL – store 5404)

Rose Campbell (Wheeling, IL – store 1735)

Trina Vetato (Paducah, KY – store 431)

Aaron Lawson (Stanford, KY – store 825)

Shawnadia Mixon and Mariah Williams (Baker, LA – store

1102)

Cynthia Murray (Laurel, MD – store 1985)

David Coulombe (Chelmsford, MA – store 2903)

Aubretia Edick (Chicopee, MA – store 5278)

Michael Ahles (Sauk Centre, MN – store 4253)

Cheryl Plowe (Elizabeth City, NC – store 1527)

Cody Shimmel (Ennis, TX – store 286)

Marc Bowers, Colby Harris and Vanzell Johnson (Lancaster,

TX – store 471)

Jeanna Slate-Creach (Quinlan, TX – store 4215)

Shana Stonehouse (Bellevue, WA – store 3098)

Vivian Sherman (Bellingham, WA – store 2450)

Sara Gilbert, Patricia Locks, Michael McKeown, Liai Pefua,

Patricia Scott and John Smith (Federal Way, WA – store 2571)

Betty Shove, Esmeralda (Mandy) Uvalle and Debra Williams

(Mt. Vernon, WA – store 2596)

Lawrence Slowey (Port Angeles, WA – store 2196)

Within 3 days thereafter, WE WILL notify the unlawfully disci-

plined associates in writing that this has been done and that the

disciplines will not be used against them in any way.

WE WILL, within 14 days from the date of the Board’s Order,

offer the following associates full reinstatement to their former

jobs or, if those jobs no longer exist, to substantially equivalent

positions, without prejudice to their seniority or any other rights

or privileges previously enjoyed:

Jovani Gomez (Lakewood, CA – store 2609)

Yvette Brown, Barbara Collins and Norma Dobyns (Placer-

ville, CA – store 2418)

Raymond Bravo and Pamela Davis (Richmond, CA – store

3455)

Dominic Ware (San Leandro, CA – store 5434)

Marie Roberty (Hialeah, FL – store 1590)

Pooshan Kapil (Wheeling, IL – store 1735)

Brandon Garrett and Tavarus Yates (Baker, LA – store 1102)

Javon Adams, Marc Bowers, Christopher Collins and Colby

Harris (Lancaster, TX – store 471)

Jeanna Slate-Creach (Quinlan, TX – store 4215).

WE WILL make the unlawfully discharged associates whole for

any loss of earnings and other benefits suffered as a result of the

discrimination against them.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful discharges

of the associates listed above, and within 3 days thereafter notify

those associates in writing that this has been done and that the

discharges will not be used against them in any way.

WE WILL file a report with the Social Security Administration

allocating backpay to the appropriate quarters.

WE WILL compensate the unlawfully discharged associates for

the adverse tax consequences, if any, of receiving one or more

lump-sum backpay awards covering periods longer than 1 year.

WALMART STORES, INC.

The Administrative Law Judge’s decision can be found at

www.nlrb.gov/case/16-CA-096240 or by using the QR code be-

low. Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board, 1015

Half Street, S.E., Washington, D.C. 20570, or by calling (202)

273-1940.

76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

APPENDIX J

List of Confidential Exhibits Covered by the Protective Orders

Confidential

Exhibit #

Description Date Offered Date Admitted

JT EX 6(a) Facility Manager Instructions Resolving Attendance Occurrences

Related to Intermittent Work Stoppage (“IWS”) Activity: Talking

oints

(

lank)

(pages

bered,

six

ota

06/02/14 06/02/14

JT EX 6(b) Facility Manager Instructions Resolving Attendance Occurrences

Related to Intermittent Work Stoppage (“IWS”) Activity: Talking

oints

(

aron

Bornhoft

oten)

06/02/14 06/02/14

7(a)

Store

Manager

Talking

nts

(11/

7/1

)

06/02

7(b)

Frequent

ked

Que

tions

(11/

7/12)

06/02

JT EX 7(c) Supplemental Store Manager Talking Points for Priority Stores

(11

17/12)

06/02/14 06/02/14

618

Exception

Report

for

ore

286

11/17

619

Exception

Report

for

ore

471

11/17

620

Exception

Report

for

ore

013

11/17

R. 266(a) Department Manager Job Offer 07/20/15 07/20/15

R. 267

Customer

Service

Manag

Job

Offer

07/20

R. 268

Jewelry

Sales

Associate

Job

Offer

07/20

R. 269

Cus

omer

Service

Man

ger

Job

Offer

20/15

07/20/15

4215

JC6

Slate

Creach

Cha

Position

(DSD

–

Cashier)

01/14

10/01/14

GC 21(a) WM Confidential Memo: “Response to Walkout/ Work Stoppage –

Salaried

Tal

ing

nts

”

(

0/8/12)

06/18/14 06/18/14

21(b)

Week

#42

bor

Activi

nds

(

1/10/

–

16/12)

01/28

27(a)

Week

#14

bor

Activi

Trends

(

4/27/

–

03/13)

01/28

27(c)

Week

#16

bor

Activi

Trends

(

5/11/

–

17/13)

01/28

GC 28(a) CD of Excel spreadsheet documenting R4R associate information 01/28/15 01/28/15

28(b)

Hardcopy

eenshot

cel

spreadsheet

28(a)

01/28

GC 28(c) Hardcopy screenshot of Excel spreadsheet in 28(a) showing R4R

discipline

ormation

01/28/15 01/28/15

29(a)

Excel

Spreadsheet

2012

associate

partic

pation

01/28

29(c)

Hardcopy

eenshot

29(a)

–

ond

Bravo

01/28

31(a)

APIS

Excel

spreadsheet

–

uni

activity

–

June

13)

06/17

GC 31(b) Hardcopy printout out of APIS Excel spreadsheet of union activity

from

31(a)

(Ma

une

06/17/14 06/17/14

31(c)

Screenshot

(31)(a)

activity

01/28

31(d)

Screenshot

Excel

spreadsheet

31(a)

01/28

GC 31(e) Screenshot of Excel spreadsheet from CD 31(a) of San Leandro, CA

Store

5434

01/28/15 01/28/15

GC 36 Memo – June Shareholder’s Potential Disruptions or Demonstra-

(5/21/

06/17/14 06/17/14

GC 46 11/2/12 Email re Texas Priority Store

Visit

cap

11/17/14 11/17/14

GC 58 5/23/13 Email re UFCW/OURWalmart Shareholders Activity 11/17/14 11/17/14

Situation

ort

#2:

Nati

nal

Day

tion

11/17

GC 71 (On Disc) Labor Relations Spreadsheet (WMESI-

291_c

nfide

tial)

11/17/14 11/17/14

GC 72 (On Disc) First Responder Stuff w/ Priority Stores (WMESI-

005

59_c

dential)

11/17/14 11/17/14

GC 73 (On Disc) Labor Relations Spreadsheet (WMESI-

327_c

nfide

tial)

11/17/14 11/17/14

(On

Disc)

Spreadsheet

for

dates:

9/13,

/14,

9/19/

11/17

UPMC PRESBYTERIAN SHADYSIDE 77

Confidential

Exhibit #

Description Date Offered Date Admitted

(WMESI- 000743_confidential)

(On

Disc)

WMESI

006

6_confidenti

11/17

(On

Disc)

WMESI

001

8_confidenti

11/17

GC 78 West Business Unit September 2013 Labor Relations’ Goals

(WMESI

004

01/28/15 01/28/15

GC 90(c) Salaried Management Message Points – Flash Mob Activity.pdf At-

tachment to 90(a) (WMESI-000340-1)

01/28/15 01/28/15

GC 91 11/10/12 Email re Black Friday Prep Webinar Deck (WMESI-

094

71)

01/28/15 01/28/15

97(a)

11/22

ail

hain

Breakout

11222012

932a

.xlsx

01/28

GC 97(b) Excel Spreadsheet Attached to 97(a) Email Titled “Breakout

11222012

932a

.xlsx

”

01/28/15 01/28/15

GC 100 Walmart Analytical Research Center – ARC Information Report -

December

12,

(WM

000

01/28/15 01/28/15

GC 102 April 16 2013 – Walmart U.S. Field HR Leadership Meeting Pow-

erPoint

01/28/15 01/28/15

GC 113(b) West Business Unit December 2012 Labor Relations’ Goals Attach-

ment

113(a)

(WMESI

457

01/29/15 01/29/15

GC 113(c) West Business Unit November 2012 Labor Relations’ Goals Attach-

3(a)

(WMESI

009

01/29/15 01/29/15

286

1(b)

0286

List

3/12

(

WMESI

350)

11/17

2418(8)

ail

(5/30/

Re:

Call

Ins

06/17

2418(9)(

)

Email (6/2/13) – Re: 2418 Call Ins 06/17/14 06/17/14

2571

Sara

Gilbert

Redbook

esti

ation

(Redacted)

11/17

3601

5/30/

ail

OUR

Wal

art

04/14

CP 1 West BU Labor Relations’ Conference Call (January 30,

2013)(WM

FCWESI

469

01/28/15 01/28/15

CP 2 WEST BU Labor Relations’ Conference Call (September 11, 2013)

(WMUFCWESI-004476)

01/28/15 01/28/15

CP 3 11/12/12 APIS Report Printout (WMUFCWESI-

017

60_Conf

den

ial)

01/28/15 01/28/15

CP 4 South Florida Store Visits – August 20 – 23, 2012 (WMUFCWESI-

002

01/28/15 01/28/15

CP 7 Walmart Labor Relations Newsletter –Qtr 4 Jan. 2013

(WMUFCWESI- 003142-4)

01/28/15 01/28/15

Prep

Call

with

Aida

Alvarez

(WMUFCWESI

004

01/28

CP 9 Targeting Discussion -Monday, August 5, 2013, 10am PST-

(WMUFCWESI

003

01/28/15 01/28/15

CP 10 Labor Relations Blitz/Black Friday 2012 Plan (WMUFCWESI-

000697

01/28/15 01/28/15