NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Wal-Mart Stores, Inc. and United Food and Commercial Workers International
May 18, 2007
DECISION AND ORDER
By Chairman Battista and Members
Liebman and Schaumber
On April 26, 2004, Administrative Law Judge Lana H. Parke issued the attached decision. The General Counsel and the Charging Party each filed exceptions and a supporting brief, the Respondent filed cross-exceptions and supporting briefs, and all parties filed responding and reply briefs.2
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions, cross-exceptions, and briefs and has decided to affirm
the judge’s rulings, findings as modified below,3
and conclusions and to adopt the recommended Order.4
We agree
with the judge that the Respondent did not unlawfully restrict worktime solicitation
or discharge Larry Allen at its store in
i. the enforcement of no-worktime-solicitation rules
and the allen discharge
We adopt the judge’s findings, for the reasons stated in her decision, that the Respondent did not enforce its rules against worktime solicitation in violation of Section 8(a)(1), or discharge Allen in violation of Section 8(a)(3).
However, with respect to the Allen discharge, because we agree with the judge that the Respondent bore its burden of showing that it would have terminated Allen for soliciting on worktime even if he had not engaged in protected union activity,5 we need not reach the question of whether the General Counsel showed that the Respondent acted with unlawful animus.6
ii. the exclusion of nonemployee union solicitors at
the
We agree with the judge that the Respondent did not
violate Section 8(a)(1) by excluding nonemployee solicitors for the Union from
soliciting and distributing literature near the entrance of its store at
The
Respondent leased the tract on which the
However,
we need not decide that question because we find that, even assuming arguendo that
the lease clause on which the
The lease
authorized all three parties to develop the tracts “pursuant to a general plan
of improvement to form a commercial shopping center.” The facilities were to be “used for
commercial purposes of the type normally found in retail shopping
centers.” With respect to common areas,
the parties granted reciprocal easements to each other for access, parking, and
“the use of facilities installed for the comfort and convenience of customers,
invitees, licensees, tenants, and employees of all businesses and occupants of
the buildings” on the property. By these
terms, the lease gave the Respondent the right to use the property for its
business. This right entailed the
authority to exclude disruptive activity that would interfere with its use of
the tract for its stated business purpose, and the correlative authority to require
prospective solicitors to provide advance notice and a reasonable indication that
their activity would not be
disruptive.8 Cf. Glendale
Associates, Ltd., 335 NLRB 27, 28 (2001), enfd. 347 F.3d 1145 (9th Cir.
2003) (upholding advance-notice rule in context of
As the
judge found, the Respondent had a written solicitation-distribution policy that
established a procedure for organizations to apply for permission to solicit in
the store’s common area. The policy required
applications to be made at least 3 days in advance of the requested
solicitation date. The
When the
Union’s solicitors arrived at the
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Wal-Mart
Stores, Inc.,
Dated,
___________________________________
Robert J.
Battista, Chairman
___________________________________
Wilma B.
Liebman, Member
___________________________________
Peter C.
Schaumber, Member
(seal)
National Labor Relations Board
Joel Schochet, Esq., for the General Counsel. .
Steven Wheeless and
Stefanie J. Evans, Esqs., (Steptoe & Johnson, LLP), Counsel for Respondent,
George Wiszynski,Esq., Assistant General Counsel, UFCW, for the Charging Party, Washington, DC.
DECISION
i. statement of the case
Lana H. Parke,
Administrative Law Judge. This matter
was tried in Las Vegas, Nevada, on February 10 through 13, 2004 upon an amended
second consolidated complaint (the complaint) issued December 31, 2003,1 by the Regional Director for Region 28
of the National Labor Relations Board (the Board) based upon charges filed by
the United Food and Commercial Workers International Union, AFL–CIO–CLC (the
Union.) The complaint, as amended,
alleges Wal-Mart Stores, Inc. (Respondent) violated Sections 8(a)(1), (3), and
(4) of the National Labor Relations Act (the Act).2
Respondent essentially denied all allegations of unlawful conduct.3
ii. issues
1. Did
Respondent orally promulgate and enforce an overly broad and discriminatory
no-solicitation and no-distribution rule?
2. Did
Respondent create an impression of surveillance of employees’ union activities?
3. Did
Respondent ask its employees to ascertain and disclose the union activities of
other employees?
4. Is
complaint paragraph 5(b)(4), which alleged statement of futility, outside the
10(b) period, and if not, did Respondent inform employees it would be futile
for them to select the
5. Did
Respondent unlawfully prohibit union organizers from soliciting employees and
distributing union literature on its property, confiscate union literature,
threaten employees to prevent them from accepting union literature, and cause
the Henderson, Nevada police to remove union organizers from its property?
6. Did
Respondent discharge employee Larry Allen because of his protected activities,
his union activities and/or because he gave testimony to the Board?
iii. jurisdiction
Respondent, a
iv. the facts
A. Respondent’s Solicitation/Distribution
Policies
At all times
relevant hereto, Respondent has maintained in its employee handbook, the following
policy:
[E]ngaging in
non-work related activities during worktime is not permitted. Associates4
may not engage in solicitation or distribution of literature during worktime. In addition, solicitation or distribution of
literature is not permitted at any time in selling areas during the hours the
store is open to the public.
Distribution of literature is not permitted at any time in any work
area. Non-Associates are prohibited from
soliciting or distributing literature in any Company facility at any time.
A
similar policy statement posted in the Stores during the relevant period, in
pertinent part, reads:
Associates may
not engage in distribution of literature during working time [of either the
solicitor/distributor and/or the solicitee/distributee.] Distribution of literature is not permitted
at any time in selling or working areas [defined as all areas except break rooms,
restrooms, lobbies, and Associate parking areas]. Associates may not engage in solicitation in
any selling area of the facility during business hours or in working areas when
Associates are on working time. This
applies to activities on behalf of any cause or organization, with the exception
of corporately sponsored charities [Children’s Miracle Network and Corporate
United Way Campaigns].
. . . .
Solicitation
and/or distribution of literature by non-Associates is prohibited at all times
in any area of the facility, including the vestibule.
. . . .
The Facility
Manager may approve…solicitation and/or distribution of literature outside the facility for all other
groups and organizations…
. . . .
An area must
be designated for all organizations to use that is at least 15 feet from the
entrances and exits…
. . . .
Any
organization that requests to solicit or distribute literature should be
provided two copies of the Solicitation
and Distribution of Literature Rules.
One copy of the rules should be signed by…the organization as an
acknowledgement of having read and agreeing to abide by the rules.
B. Respondent’s Discipline Policy
Respondent
utilizes a disciplinary program called Coaching for Improvement, which provides
the procedure for investigating employee misconduct and applying appropriate
progressive discipline. The disciplinary progression provides for a verbal
coaching at level one. If the verbal coaching is not successful in changing or
correcting the unacceptable behavior or performance, an employee will receive a
level two written coaching. Level three
of the disciplinary progression is called “Decision Making Day” or
“D-Day.” At a D-Day, Respondent informs
the employee concerned of deficiencies noted at earlier Coaching for
Improvement levels and the specific improvement required. The employee must write and sign an
acceptable detailed action plan for modifying behavior and is given a day off
with pay to decide whether he or she will make the required improvement. The D-Day remains active in an employee’s
file for 12 months. Another rule or
policy infraction occurring within that 12-month period may subject the
employee to immediate termination.
C. Events at the East
Serene,
The Stores are composed of
both grocery and general merchandise sales areas. In the back and side hallways of the Stores,
Respondent maintains product receiving, storage, and preparation areas where
employees perform tasks relative to those functions.5
Larry Allen (Allen) worked for Respondent at its 2310 East Serene,
During August 2002, Allen’s wife, Jacqueline (J.
Allen), worked at the same store in the service deli. In late August, having observed another deli
employee inappropriately touch his wife,
Allen threatened to “bust a cap in [his] ass.”6
Consequent to the threat, Respondent issued Allen a D-Day dated August
30, 2002, and suspended him for a day with pay.7 On September 2, 2002, Allen asked to meet
with Rios about his D-Day, protesting the discipline was too severe in light of
the provocation involved. Rios said he
would look into it.
During the next 10 days, the LV Store prepared for
its annual 1-day inventory of the entire store, a work-intensive procedure to
be conducted September 12. During the
same period, Rios observed and had reported to him a dramatic increase in the
amount of union-related literature left in work areas, including the sales
floor: business cards (left primarily on the sales floor), flyers, pamphlets,
and small cards that invited employees, respectively, to contact the Union (contact
cards) and to listen to a live “Worker Voice Radio” webcast where callers could
“tune in [and] speak up” in order to “make Wal-Mart/Sams Club a better place to
work” (radio cards). On September 2,
2002, management found more than 300 union business cards in various locations
on the sales floor. LV Store management
reported the situation to the Union Hotline, a telephone communication set up
between Wal-Mart’s labor relations team in the Bentonville,
An associate told Rios that Allen was the driving
force behind the literature distribution at the LV Store.8
According to Allen, he did not become involved in union organizing
efforts at the
Sometime in the early afternoon of September 12,
2002, Rios got back to Allen on his earlier request for a meeting, apologizing
for the delay. Rios said the D-Day would
stand. Allen complained the suspension
had prevented his working scheduled overtime, and his wife had missed work
consequent to her coworker’s harassment.
Rios agreed to pay Allen for missed overtime and compensate his wife for
work missed because of the incident.
After addressing Allen’s D-Day concerns, Rios
cautioned him about union solicitation.
Initially, Allen testified Rios said, “By the way, you’re not allowed to
talk about the union, you’re not allowed to distribute out the literature about
the union.”9 Under cross-examination, Allen admitted Rios
might have told him he was not allowed to solicit on the sales floor. Rios said he told Allen he wanted to make
sure he understood Respondent’s solicitation/distribution policy and asked if he
needed a copy. Rios saidAllen told him
he had a copy of the policy and had read it.
Allen was admittedly aware of Respondent’s no-solicitation/no-distribution
policy and that he could distribute union literature in break rooms, restrooms,
lobbies, and associate parking areas but not in work areas. He understood Respondent’s policy prohibited
his soliciting employees on worktime.
By his own account, Allen told Rios, “Aaron, I know
what I can and cannot do. I will put the
literature in the break rooms, and I will do it outside.” He assured Rios he would not solicit on the
sales floor, which he understood to be sacred ground. Where Rios’ testimony of what was said in
that conversation differs from Allen’s, I credit Rios. I
cannot accept Allen’s testimony that Rios told him he could not talk about the
Allen denied ever distributing union literature on
the sales floor or in any work area or asking any coworker to sign a union
authorization card while he or the coworker was working.10
He left union literature in Respondent’s restrooms and break room and on
outside benches.
Respondent held regular morning meetings with employees
in the break room, which it expected all employees not occupied with customers
to attend. Respondent discussed store
priorities, quarterly reports, store earnings, and work issues at the meetings.
The employee meetings constituted worktime for
attending employees even though they were held in the break room. Although meeting discussion was generally restricted
to work issues, in 2003, Respondent permitted an employee to announce in the
meetings a blood drive for her nephew with leukemia. She was not permitted to distribute literature
in sales or work areas.
On September 13, 2002, at a morning meeting with LV
Store associates lasting nearly an hour, Rios told employees Wal-Mart had a
no-solicitation policy, which applied to nonwork material: Avon sales, the Girl
Scouts, religious groups, or anyone else.
According to Allen, Rios showed the group examples of union literature
found in the sales floor and other work areas and encouraged employees to
report any distribution of the literature to management. Allen testified that Rios said Respondent did
not have to negotiate with the
Regarding the September 13, 2002 meeting, Rios testified
he and other managers thanked employees for the inventory results of the
preceding day and highlighted top performing divisions. At the end of the meeting, Rios reminded
employees of Respondent’s solicitation/distribution policy, which he had covered
in the past and which was posted on Respondent’s policy board in the break
room. He showed the employees
union-related literature that had been found in work areas, and told them they
could distribute literature on their time in restrooms, the break room, or
outside the store but not in sales or work areas. He told employees they were not to get
involved in enforcing the policy but to report violations to management who
would take care of it.12 Rios denied saying anything about negotiating
with the
In late September 2002, Rios received a written
note signed by several overnight stockers complaining that Allen was “constantly
[in the break room] peddling his union wares [which is] not welcome.” Rios did not speak to Allen about the matter,
as Allen had not violated Respondent’s policy by soliciting/distributing in the
break room. In early October, Rios received
a written complaint from another employee that Allen had approached him on the
sales floor about joining the
On October 23, 2002 and January 22, the
On June 6, Allen left union cards on tables in the break
room at the conclusion of the morning employee meeting. After the meeting, Ellen Little (Little),
Respondent’s people manager, told Rios she had observed Allen handing out union
radio cards during the meeting. Later
that morning in his office, Rios spoke to Allen about his conduct, asking him
not to leave union contact cards “during the morning meeting.”13
Allen agreed, telling Rios he would respect Wal-Mart’s policy. Rios told Allen he was free to solicit and
leave contact cards in the break room during his nonwork periods. Allen told Rios he knew Rios had to enforce
Respondent’s policy, but he (Allen) had to do what he had to do as well. Rios asked Allen if he understood the
solicitation/distribution policy and if he understood that if he continued to
violate the policy, he would be held accountable. Allen said he understood the policy, and he
would not hand out cards during a meeting again. An undated memorandum Rios prepared following
this exchange states Allen placed radio cards on break room tables “as he was
leaving the meeting” but while still on the clock. According to the memorandum, Rios told Allen
he had “a right to solicit in nonwork areas on his own time but not while he
was on the clock,” and that he could not “solicit in any work areas of the store
nor was he allowed to solicit any associates while they are on the clock.”14
Rios took no action
against Allen because he wanted to give him the benefit of the doubt and
because he did not want to terminate him, which another infraction during the
12-month D-Day period would have meant.15
At some time prior to June 20, Allen gave Sam Brown
(Brown), a meat department employee, a union packet in the back work area. On June 20, in the same area, Allen asked
Brown why he had turned the union packet over to Rios. Directing obscenities to Allen, Brown
gestured toward him with a box cutter.
As Allen retreated, Brown said, “I’ll kill him; I’ll kill him.” Allen reported the incident to management.16
Respondent conducted an investigation including taking Allen’s written
statement. In the course of the investigation,
Rios was informed that Allen had presented union literature to Brown in the
back produce area. When asked about it,
Allen told Rios that Brown had come to him and asked for the literature. He said he did not think it a violation of
Respondent’s policy to accommodate Brown, and it would not happen again. Rios did not discipline Allen. The
On the morning
of July 25, someone gave employee Miguel Zambrano, Jr. (Zambrano) a union
packet while he loaded product in the back hallway of the store (the Zambrano
incident.) The parties dispute the
identity of the individual who gave Zambrano the union packet.
Anita Garcia
(Garcia), grocery department manager at the LV Store in July, was well
acquainted with Allen, having known him for about 7 years. Sometime in July, she saw Allen and a produce
employee named “Joe,” talking to Zambrano in the back grocery receiving
area. A couple of minutes later,
Zambrano came to Garcia with a brown paper bag, folded at the top and
stapled. Zambrano told Garcia he did not
know what to do, that “the short guy [he] was talking to over there” had given
him the bag, and he did not know what to do with it.17
Garcia advised him to give it to his team
leader, Maggie Schad (Schad), whereupon
Zambrano reported to Schad that “the guy in produce,” a
short guy, had given him a brown paper bag while he worked.18
Schad,
accompanied by Zambrano, took the packet to Sheleen Petty (Petty), assistant
manager, saying Larry in produce had given the packet to Zambrano. Zambrano told Petty Larry had given him the
packet as he was loading his cart in the back room. Petty opened the packet and found various
forms of union literature in it. Petty
telephoned the union hotline and reported the incident.19
Later that day, at the request of
During the
investigation of the charges herein, the Board obtained a sworn affidavit from
Zambrano. In his affidavit, Zambrano
denied Allen had given him the packet.
Concerning the affidavit, Zambrano testified that when he gave the affidavit,
he was “panicking . . . not thinking right . . . had a headache . . . was losing
his patience . . . wanted everything just to be on that paper.” At the hearing, Zambrano testified about
having been given the packet. His memory
was demonstrably poor. Moreover,
although sincere and obviously anxious to testify accurately and fully, he was
an extraordinarily suggestible witness, agreeing with nearly every proposition
any examining counsel put to him, without regard to consistency. I cannot give any weight to his testimonial
identification of the person who gave him the union packet. Since it is reasonable to infer Zambrano was
as unreliable when he gave the affidavit as he was in testifying, I cannot give
weight to his affidavit statements either.
Further, as it is clear Zambrano had no independent knowledge of the
identity of the person who had given him a union packet but named “Larry” in
reliance on the suggestions or information of others, I cannot accept the
written statements he gave on July 25 as evidence of who gave him the
packet.
Since I cannot
accept Zambrano’s July 25 written statements, his Board affidavit, or his
testimony at the hearing as identification of Allen or, conversely, as
exculpation of Allen, I must look to other evidence to determine what
transpired when someone gave Zambrano a union packet on July 25.
Allen denied ever giving Zambrano any union literature
or asking him to sign a union authorization card. In corroboration of Allen’s testimony, Ancel
“Joe” Morse (Morse),
On or about June or July of 2003, I Ancel Morse of the produce Dept. handed Miguel a union packet to look over and read and if he was interested to sign the union card and give it back to me later.
This got Larry fired because they had thought that it was Larry that handed Miguel the packet.
Counsel for the General Counsel appropriately offered Morse’s written statement into evidence as a
prior consistent statement. However, the
circumstances surrounding its preparation and production make it of dubious
evidentiary value. According to Morse, he
gave his statement to Allen after writing it, which means Allen had it in his
possession since about September 21.
Inexplicably, Allen did not submit the statement to the Board during the
investigation of the charges herein, and although it was encompassed by
Respondent’s subpoena served on Allen
prior to the hearing, he also failed to produce it for Respondent. The week prior to the hearing, after giving acceptable
assurances, Counsel for Respondent questioned Morse about the circumstances
surrounding Zambrano’s receipt of the
union packet.20 Morse told Respondent’s counsel he had never
given any union literature to Zambrano,
assertedly dissembling because he “was in fear of losing [his] job.” Morse’s professed fear is at odds with his
willingness to talk to Respondent’s counsel even after being assured he need
not do so, and I cannot accept his explanation for the duplicity; I can only
find it severely diminishes his credibility.
At the hearing, Allen finally furnished Morse’s written statement to
counsel for the General Counsel. The
circumstances surrounding this statement are so questionable that I cannot find
it bolsters Morse’s testimony; rather it detracts from it. In sum, I decline to give any weight to
Morse’s testimony beyond finding that he was, in fact, involved in giving a
union packet to Zambrano as Zambrano
worked. I specifically decline to infer
from Morse’s testimony that Allen was not present when the union packet was
given to Zambrano.
After considering the above evidence, I find Garcia
provided the most reliable information as to what transpired on July 25
regarding Zambrano’s being given union literature.21
She knew Allen well and saw him
and Morse talking with Zambrano as he worked. A couple of minutes later, Zambrano brought her the union packet, which
he said the short guy he had been talking to had given him. From this credible testimony, it is reasonable
to infer that whether he actually handed Zambrano the packet or not, Allen was
one of a duo that presented the packet to Zambrano during both Zambrano’s and
his worktime.
After consultation with Respondent’s corporate
office labor team, Rios decided to discharge Allen and directed Little to
handle the termination meeting with Roth in Rios’ absence from the LV Store. On August 1, Allen met with Little and Roth in the manager’s office. Allen said he wanted to invoke his Weingarten
rights and read aloud a summary of them.
When he finished reading, Roth told him the investigation was complete,
and he was terminated from Wal-Mart.
Roth read aloud the words from the exit interview form that Allen’s termination
was due to “Insubordination, repeated violation of company policy despite
warning.” In answer to Allen’s request
for clarification, Roth told him he had violated the company’s solicitation
policy. Allen protested the policy was
illegal under federal law. After writing
“soliciting” on the form, Allen signed it.22
At the hearing, Respondent presented the following
evidence regarding Allen’s solicitation/distribution activities, presumably
obtained during preparation for the hearing.
There is no explanation as to why manager observations or employee
observations reported to management were not acted upon:
Mr. Allen gave then-employee Paul Walton (a Wal-Mart assistant manager since August) union literature in the Lay-Away area, a work area of the store.
Mr. Allen gave Pamela Eylens, cake decorator, union literature in the bakery area several times during the relevant period, and she saw him place union materials on the bakery counter four to five times.
Michaela Wilson, jewelry department manager, saw Mr. Allen distribute union literature in a work area in February.
Mr. Allen gave union literature to employee Damon Webb in meat department.
Mr. Allen gave overnight stocker Mona Lisa Adams union literature in the produce back area while she was working.
When Gloria Kieffer overnight stocker in garden center wouldn’t accept union literature from Mr. Allen, he laid it on the pallets and the stack bases, which she reported to an assistant manger.
Department Manager Monica Cirrone saw Mr. Allen put union cards in the backroom bins of the boys and girls department.
Mr. Allen gave Melvin Enriquez a union packet as he worked in the grocery side hallway.
Mr. Allen gave overnight stocker Donell Havens a union authorization card in the produce sale areas, which she reported.
Mr. Allen gave Tim Moreno a Weingarten card in the back hallway when they were returning to work from a morning meeting.23
Mr. Allen gave contact and radio cards to maintenance employee Harvey Garcia on the sales floor.
Mr. Allen gave union literature to Christina Ann Diaz Allen 15-20 times in the store’s receiving area.24
D. Events at the
On the morning
of October 17, 2002, union representatives William Meyer ( Meyer), Marice
Miller (Miller), and Jacqueline Stacy (Stacy) handbilled at two Wal-Mart stores
in the Las Vegas Area (one on Cheyenne and one on Craig Road) for about an hour
at each location. At the first store, a
Wal-Mart manager initially protested the handbilling, but another manager told
the trio as long as they stayed 15 feet from the entrance and did not interrupt
flow of traffic, they could remain. At
the second store, essentially the same interchange occurred between the union
representatives and Wal-Mart management with the same consequences. The two stores permitted the handbilling
without the
When the union
representatives began handbilling at the
Meyer told
Scott Miller the representatives had recently been to two other Wal-Mart stores
where they had maintained the 15-foot separation between themselves and the
store entrances and had had no problems with management. Meyer suggested the managers call the other
stores. Scott Miller said what other
stores did was their “deal,” but the
During the
interchange between union and management,
Miller heard Garza say to two employees who had received handbills, “You
know what to do with that.”27 After she spoke to them, the two employees
threw the handbills away. Meyer told her
she couldn’t do that. At some point,
Garza said she smelled something. The
union representatives took the comment as a personal insult, and Stacy called
Garza an offensive name.28
Miller said he
observed Scott Miller grab handbills from employees as the representatives
distributed them. Scott Miller denied
taking any union literature from anyone on October 17. Respondent called several witnesses who
observed at least portions of the handbilling activity: Jim Randolph, community involvement coordinator
for the
After some
further and repetitive discussion between union and store representatives,
Scott Miller directed another manager to call the police. The trio continued to handbill until a police
officer arrived about 15 minutes later.
After discussing the situation with both the union representative and management
and after consulting his supervisor by radio, the police officer told the representatives
they had to leave because they were trespassing. The union representatives left the
iii. discussion
A.
Alleged Independent Violations of Section 8(a)(1)
at the
The General
Counsel alleges Respondent independently violated section 8(a)(1) of the Act at
the LV Store by the following:
1. On September 12, 2002, orally promulgating and enforcing
an overly broad and discriminatory no-solicitation and no-distribution rule by
prohibiting its employees from talking about the
2. On September 13, 2002, orally promulgating and
enforcing an overly broad and discriminatory no-solicitation and
no-distribution rule by prohibiting its employees from soliciting for the
3. On September 13, 2002, informing employees that it
would be futile for them to select the
4. On September 13, 2002, creating an impression among employees that their union activities were under surveillance. (Complaint paragraph 5(b)(2).)
5. On September 13, asking employees to ascertain and disclose to management the union membership, activities, and sympathies of other employees. (Complaint paragraph 5(b)(3).)
6. On June 6, orally promulgating and enforcing an overly broad and discriminatory no-solicitation and no-distribution rule by informing employees they may not solicit in work areas. (Complaint paragraph 5(e).)
As to
allegations 1 and 2, I have not found the General Counsel’s supporting evidence
to be credible, as explicated above. As
to allegations 4 and 5 (impression of surveillance and improper request that
employees report union activities), I find Rios’ statements in
the September 13 meeting lawful in view of Respondent’s longstanding
no-distribution, no-solicitation policy and ongoing reports to management about
violations of that rule. An employer
does not commit an unfair labor practice by lawfully enforcing a lawful plant
rule or by reminding employees of the rule.
Respondent regularly asked its employees to report violations of other
company rules, and neither the content nor timing of Rios’ statements could reasonably
have created an impression of surveillance.
As to
allegation 6 regarding the June 6 conversation between Rios and Allen, Counsel
for the General Counsel and the Charging Party argue Rios admitted, in his
memorandum of the conversation, that he told Allen he could not solicit in any work areas of the store or while he was on
the clock, which restrictions are overbroad.
The memorandum states Rios reminded Allen “he was not allowed to solicit
in any work areas of the store nor was he allowed to solicit any associates
while they are on the clock.” If I were
to accept Rios’ memorialized account of his conversation with Allen as establishing
what he actually said to Allen, I would have to conclude Rios unlawfully promulgated
an overly broad and discriminatory no-solicitation rule by unqualifiedly
prohibiting solicitation in work areas and when employees are “on the clock.”31
However, I cannot view the memorandum as persuasive evidence of what
Rios said in his and Allen’s June 6 conversation and ignore the hearing
testimony of what transpired. Neither Rios
nor Allen testified that Rios told Allen he could not solicit in any work areas
of the store, and neither of them testified he referred to any restriction
against employees soliciting while “on the clock.” I also note Allen did not protest Rios’
directive although he would reasonably be expected to do so had Rios laid down
the broad restrictions reflected by the memorandum. Rather, Allen told Rios, “That’s fine. You know, I’ll respect you . . . no problem.” Allen admitted Rios had asked him not to
leave the union cards on the tables during the store meeting and had told him
he was free to solicit and leave contact cards in the break room during his
nonwork periods. Allen told Rios he knew
Rios had to enforce Respondent’s policy, but he (Allen) had to do what he had
to do as well, which suggests Allen did not think Rios had deviated from
established policy. Allen’s testimony as a whole is consistent with
Rios’ asking him not to distribute literature during worktime but inconsistent
with any finding that Rios had, without qualification, asked Allen not to leave union contact cards in the break room or had
told Allen he could not solicit in work areas or while “on the clock.”
Respondent held its morning meetings on worktime;
when the June 6 meeting concluded, Allen and other attending employees were
still on worktime. An admonition not to
distribute literature or solicit at the morning meeting is consonant with an
admonition not to distribute union material or solicit during worktime whether
either activity occurred during the meeting or at its conclusion. Therefore, I cannot find Rios communicated to Allen
on June 6, any unlawful restriction on soliciting in any work area of the store
during nonworktime. As I have not found
Respondent committed any violations of the Act as alleged in complaint
paragraphs 5(a), 5(b)(1) through (4), and 5(e), I will, dismiss those allegations of
the complaint.32
B. The
Discharge of Allen
Respondent
discharged Allen for giving Zambrano a
union packet while he worked on July 25, a clear violation of Respondent’s
no-solicitation/no-distribution policy.
Both the Charging Party and the General Counsel argue Respondent was
motivated to discharge Allen by its animus toward his protected union
activities. In resolving the question of
Respondent’s motivation, I follow the Board’s analytical guidelines in Wright Line.33
If the General Counsel’s evidence supports a reasonable inference that
protected concerted activity was a catalyzing factor in Respondent’s discharge
of Allen, he has made a prima facie showing of unlawful conduct.34
The burden of proof then shifts to Respondent to establish persuasively
by a preponderance of the evidence that it would have made the same decision,
even in the absence of union activity.35
Avondale Industries, 329 NLRB 1064
(1999); T&J Trucking Co., 316
NLRB 771 (1995). Respondent was well
aware of Allen’s prominent union organizational role, and Respondent opposed
union organization of its employees.
Finally, Respondent discharged Allen for conduct connected with his
union activity. In these circumstances,
I conclude the General Counsel has made “an initial ‘showing sufficient to
support the inference that protected conduct was a motivating factor’” in
Respondent’s decision to terminate Allen.
American Gardens Management Company, at 645. The burden of
proof therefore shifts to Respondent to show Allen’s discharge would have (not
just could have) occurred even in the absence of his vigorous participation in
union organizing efforts. Avondale Industries, ,at 1066.
In assessing
Respondent’s evidence of lawful purpose in discharging Allen, I recognize that
an employer’s desire to curtail union activities does not, of itself, establish
the illegality of a discharge. If an
employee provides an employer with sufficient cause for dismissal by engaging
in conduct that would, in any event, have resulted in termination, the
employer’s welcoming the opportunity does not render the discharge
unlawful. Avondale Industries, supra; Klate
Holt Co., 161 NLRB 1606, 1612 (1966).
Further, it is well established the Board “cannot substitute its
judgment for that of the employer and decide what constitutes appropriate
discipline.” Detroit Paneling Systems, 330 NLRB 1170, 1171 fn. 6 (2000) and
cases cited therein. Nonetheless, the
Board’s role is to ascertain whether an employer’s proffered reasons for
disciplinary action are the actual ones. Ibid
Here, Respondent asserts that by giving union
literature to Zambrano while he worked
and in a work area, Allen breached Respondent’s no-solicitation/no-distribution
rule after repeated warnings and while in his 12-month D-Day period. There is no question Respondent could
lawfully have discharged Allen had he engaged in such conduct. Respondent could also have discharged Allen
if Respondent reasonably believed, albeit erroneously, that Allen had engaged
in such conduct, as Wright
Line is
“premised on the legal principle that an employer's unlawful motivation must be
established as a precondition to finding an 8(a)(3) violation.”36
The question, under the Wright Line analysis, is whether Respondent reasonably believed Allen
engaged in such conduct or whether it seized upon a plausible opportunity to
rid itself of a prominent union supporter whom it would not otherwise have
discharged. In short, the question of whether
Respondent violated the Act in discharging Allen rests on its motivation.
Motive is a
question of fact, and the Board may infer discriminatory motivation from either
direct or circumstantial evidence and the record as a whole. Tubular Corp. of
Here, neither
direct nor circumstantial evidence permits an inference of discriminatory
motivation in Respondent’s discharge of Allen.
First, although Rios warned Allen on several occasions about the
consequences of breaching Respondent’s no-solicitation/no-distribution policy, Rios
did not express animosity toward Allen’s permissible union activities. Indeed, Rios allowed instances of Allen’s
noncompliance to pass without more than oral reminders.
Second,
Respondent took no abrupt action toward Allen that might signal discriminatory
intent. Rios reminded Allen of its
policy restrictions for many months, during which time Allen openly promoted
union organization among fellow employees without repercussion. Moreover, Respondent did not reach the
discharge decision itself without a significant period of information gathering
and reflection.
Third, the
timing of Allen’s discharge was unrelated to any action or event other than his
ostensible violation of company policy.
Although the Charging Party argues Allen’s discharge was prompted by a
significant increase in organizing interest, the evidence shows no nexus between
purported increased interest and the discharge.
Fourth, no
evidence was adduced of pretext in Respondent’s decision. The Charging Party argues Respondent
unreasonably and unlawfully claimed that all hallway areas of the LV Store were
work areas; therefore, Allen was justified in disseminating literature in
certain areas. I do not find it
necessary to address that contention because there is no doubt Zambrano was
given union literature as he worked, a clear violation of Respondent’s policy under
any circumstances. There is also no
evidence Respondent conducted an inadequate or superficial investigation of the
Zambrano incident or accepted biased information, either of which would point
to animus. No reason has been shown why Rios
should not have believed the information he received about the incident. See American
Thread Co., 270 NLRB 526 (1984). I
find Rios, on whom the discharge decision rested, and the managers who reported
the events to him all believed in good faith that Allen had violated Respondent’s
no-solicitation/no-distribution
policy. While, as the Charging Party
points out, the investigation did not included questioning Allen, interviewing
the subject employee is not a requirement for an adequate investigation. Frierson
Building Supply Co., 328 NLRB 1023 (1999).
Given its past cautions to Allen, it was not unreasonable for Rios to
decide termination was an appropriate disciplinary measure without further
discussion with Allen.
Fifth, the evidence does not justify a finding of disparate treatment,
which must be supported by a showing that employees similarly circumstanced
were treated differently than Allen.
Although
Accordingly, I conclude Respondent has met its burden of showing Allen’s
discharge would have occurred even in the absence of his union activities. More specifically, Respondent has shown it
would have discharged Allen if it believed he persisted in disseminating
literature, nonunion or otherwise, in violation of Respondent’s policies. As to the complaint allegation that Respondent
discharged Allen in violation of Section 8(a)(4) of the Act, the same analysis
described above applies. I find
Respondent did not, therefore, violate Section 8(a)(3) or (4) of the Act by
discharging Allen. I will, therefore, dismiss those
allegations of the complaint.
It remains to determine whether Respondent violated Section 8(a)(1) of
the Act by discharging Allen. Under NLRB v. Burnup & Sims, 379
U.S. 21 (1964), it is
not sufficient for Respondent to show a good-faith belief that misconduct occurred
in defending a discharge decision. In Burnup & Sims, the Supreme Court affirmed the Board’s rule that an
employer violates Section 8(a)(1) by discharging or disciplining an employee
based on its good-faith albeit mistaken belief the employee engaged in
misconduct in the course of protected activity.
As explained above, I
have accepted very little of the testimony regarding the Zambrano
incident. I have found that of all the
witnesses, only Garcia gave fully competent and credible evidence. From her evidence, I find it reasonable,
indeed requisite, to infer that Morse and All Morse may have been the one who
actually handed the packet to Zambrano, Allen, acting in concert with him, was
no less guilty of violating Respondent’s solicitation/distribution policy. Accordingly, I find Respondent did not
violate Section 8(a)(1) of the Act when it discharged Allen for misconduct he
had, in fact, engaged in. I will, therefore, dismiss that allegation of the complaint.
C. Alleged Violations of Section 8(a)(1)
at the
The General Counsel
alleges at paragraph 5(d)(1) that Respondent promulgated and enforced an overly
broad and discriminatory no-solicitation and no-distribution rule by prohibiting
union organizers from soliciting its employees and distributing union
literature to its employees on its property at the Henderson Store. Respondent’s solicitation/distribution policies
provide that nonassociates may request and receive permission from Respondent
to solicit/distribute outside its facilities.
The organization granted such permission is to sign a copy of Respondent’s
solicitation/distribution rules to signify agreement to abide by them. Having been
granted permission to solicit/distribute, the organization is to conduct its
activities at least 15 feet from the entrances and exits of Respondent’s
facilities. In its October 17, 2002 solicitation/distribution at the Henderson
Store, the only one of the above requirements with which the
Respondent has a right to restrict nonemployees in soliciting/distributing on its property.