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,
Sam’s Club, a Division of Wal-Mart Stores, Inc. and United Food and Commercial Workers
International Union, CLC, 1 Cases 28–CA–17057, 28–CA–17058, 28–CA–17059, 28–CA–17150,
28–CA–17152, 28–CA–17194, 28–CA–17273, 28–CA–17276, 28–CA–17309, 28–CA–17602, and
28–CA–17970
May 4, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On November 29, 2002, Administrative Law Judge James L. Rose issued the attached decision. The Respondent, Charging Party, and the General Counsel each filed exceptions, supporting briefs, answering briefs, and reply briefs. On March 23, 2004, the National Labor Relations Board remanded this case to the judge for additional credibility determinations, factual findings, and legal analysis. On May 25, 2004, the judge issued the attached Supplemental Decision and Order. The Respondent, Charging Party, and the General Counsel each filed supplemental exceptions, supporting briefs, answering briefs, and reply briefs.
The 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 affirm the judge's rulings, findings,2 and conclusions only to the extent consistent with this Decision and Order.3
For the reasons discussed below, we agree with the judge that the Respondent violated Section 8(a)(1) of the Act by announcing an unlawful rule against talking about the Union and by promulgating an employee dress code that effectively prohibited employees from wearing “badge backers” (described in more detail below) bearing statements of their rights under the Act. However, as explained below, we reverse the judge’s findings that the Respondent’s dress code was otherwise unlawful and that the Respondent violated the Act by: suspending an employee because of her reaction to being denied a witness at a meeting with management, which the employee reasonably believed would result in discipline; suspending merit raises pending a representation election without telling employees that the raises would be reinstated after the election regardless of who won the election; and soliciting employee signatures on letters stating opposition to the Union.
Finally, contrary to the judge, we shall order the Respondent to post remedial notices only at the facility at which employees were affected by the Respondent’s unlawful actions. In all other respects, we affirm the judge’s findings and conclusions, and adopt his recommended disposition of complaint allegations, for the reasons discussed in his decision and supplemental decision.4
i. background
The Respondent is a subsidiary of Wal-Mart Stores,
Inc. It operates bulk grocery and
consumer retail stores, three of which are located at
The alleged unfair labor practices in this case arose from
an organizing effort initiated by the
The complaint alleges numerous unfair labor practices at
the
ii. the alleged unfair labor practices
A. Allegations Concerning Ida Williams
The judge found that the Respondent violated Section 8(a)(1) by refusing to allow employee Ida Williams to have a coworker representative present at a June 19 meeting with Store Manager Greg Roberts. See Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part 268 F.3d 1095 (D.C. Cir. 2001), cert. denied 536 U.S. 904 (2002).6 The judge also found that the Respondent violated Section 8(a)(1) and (3) when it suspended Williams for the remainder of the day because she protested Roberts’ denial of the representative.
After the judge issued his decision, the Board overruled Epilepsy Foundation, and held that an employee not represented by a union has no statutory right to the presence of a coworker at an investigatory interview that the employee reasonably believes could lead to discipline. IBM Corp., 341 NLRB 1288 (2004). As the Respondent’s employees were not represented by any union when Williams asked for a witness, the General Counsel has moved to withdraw the portions of the complaint alleging that Roberts unlawfully denied Williams’ request. There is no opposition to the motion. In light of IBM Corp., supra, and the lack of opposition, we grant the motion. See Neaton Auto Products Mfg., Inc., 343 NLRB 256 (2004) (granting General Counsel’s motion to remand case to Regional Director for withdrawal of complaint, consistent with IBM Corp.).7 Thus, there is no longer any contention that the Respondent violated Section 8(a)(1) by denying Williams’ request for a witness at her meeting with Roberts.
The Respondent has excepted to the judge’s finding that it violated the Act by suspending Williams after her outburst. For the reasons discussed below, we find that Williams’ suspension was lawful.
1. Facts
On June 14, Williams received a “coaching” (Sam’s Club’s term for discipline) for insubordination from her supervisor, Jeff Tuesburg. On the morning of June 19, Williams had another confrontation with Tuesburg, who then arranged for a meeting with Store Manager Roberts prior to the beginning of Williams’ shift. On her way to that meeting, Williams asked fellow employee Keman Clute to accompany her as a coworker witness to the meeting with Roberts.
Clute testified that when they walked into Roberts’ office, Roberts asked him “what I was doing up there with her,8 and he said you don’t need to be up here . . . [because] we’re just sitting here talking.” Roberts, according to his credited testimony, then explained to Williams, “Ida, this is not an investigation. . . . It would be inappropriate to have a witness being that this is not an investigation.” Williams became upset, said “this is a bunch of crap,” and began to walk away. At that point, Roberts testified that he said, “Ida, I can’t have you working with our [customers] in the state you are in. I’m going to ask that you go home for the day.”
2. Whether Roberts Unlawfully Suspended Williams
The judge found that Roberts suspended Williams because she questioned his decision denying her an employee witness at their meeting. Because he found that Williams was entitled to a representative and that the denial of her request was unlawful, the judge found her suspension unlawful. Additionally, he also found that Williams’ “this is crap” statement was not such serious misconduct as to cost her the protection of the Act. The judge further found no evidence to support Roberts’ contention that Williams was too upset to deal with customers. We disagree and find that Roberts acted lawfully in suspending Williams for the rest of the day.
The judge found the violation on the basis that Williams’ suspension “was directly a result of Roberts’ having unlawfully refused to allow Williams to have a witness.” As previously noted, however, it is no longer contended that the denial of Williams’ request for representation was unlawful. Thus, although Williams had the right to request a representative, the Respondent likewise acted lawfully in denying that request. Having done so, Williams’ subsequent heated statement, “this is a bunch of crap,” was not an act of protected activity, i.e., a request for a witness, but rather an intemperate response to a lawful act of the Respondent.9 The Respondent reasonably reacted to her unprotected outburst by determining that Williams should not deal with customers in her agitated state, and it thus sent her home for the day.10
The dissent contends that Williams’ statement and walk-off were part of the res gestae of her request for a witness, and thus, like the request, were also protected. We disagree. As discussed above, we think it clear that Williams’ subsequent conduct was separate from her request for a witness; she was not simply reasserting her request. But, even if the Williams request and the Respondent’s lawful denial were considered together as part of the same res gestae, the Respondent’s (Roberts’) action would still be lawful. Roberts did not send Williams home because of her crude criticism of his decision. Rather it was because he considered her too upset to perform her job duties, which required dealing directly with the Respondent’s customers.
The cases cited by the dissent, United States Postal Serv., 251 NLRB 252 (1980), enfd. 652 F.2d 409 (5th Cir. 1981), and Thor Power Tool, 148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th Cir. 1965), are clearly distinguishable. In those cases, intemperate remarks made during a grievance meeting or immediately proceeding from it were found to be part of the protected activity of processing grievances with an employer. As noted above, Williams’ remarks were in response to the lawful denial of her request; they were not a part of the request itself.
Accordingly, we find that Williams’ suspension was not unlawful, and we dismiss that portion of the complaint.
B. Promulgation of No-Talking Rule
In his supplemental decision, the judge found that Merchandise Manager Jaime Durand promulgated an overly broad and discriminatory no-talking rule on September 19. The judge credited testimony that Durand told employees that they could talk about the Union in the break room during their lunch break, but not on the sales floor, in the parking lot, or outside in the smoking area. We agree with the judge that the prohibition announced by Durand was unlawful.
It is well established that employees are entitled to discuss
unions and solicit for unions on nonworking time, unless the employer can show
that it needs to limit the exercise of that right in order to maintain
production or discipline.11 Republic
Aviation Corporation v. NLRB, 324
Consistent with these well-established principles, we
agree with the judge that Durand’s prohibition of all talk about the Union
violated Section 8(a)(1) because it applied only to conversations about the
C. The Respondent’s Revised Dress Code Policy
During the union organizing campaign, the Respondent announced a number of changes in its employee dress code. The complaint alleges, and the judge found, that several of the changes were unlawful. For the reasons discussed below, we agree with respect to only one of the changes.
1. Facts
The Respondent’s employees are required to wear name badges
attached to lanyards worn around the neck.
Name badges are affixed to the front of “badge backers,” which are
slightly larger than name badges. In the
past, employees put other buttons, pins, and insignia on their name badges,
lanyards, and shirts. During the union organizing
campaign, employees affixed union buttons to their lanyards or badge backers,
wore lanyards bearing the
On June 5, the Respondent’s Vice President for Operations,
Jim Haworth, sent a memo to general managers throughout the entire Sam’s Club
chain related to new employee name badges.
The
No pins or stickers may be placed on the Associate name badge. No Exceptions.
Only Corporate approved badge backers may be worn behind the name badge.
Associate pins may be worn on corporate approved lanyards. (All lanyards must have a break-away snap in the back for safety reasons.)
. . . .
Only Sam’s Club pins may be worn on the Associate’s breakaway lanyard.
Thus, as the judge found, the new policy prohibited employees
from wearing badge backers stating Epilepsy
Foundation rights and putting union pins or buttons on their lanyards and
name badges. Because the union lanyards
previously worn by employees lacked breakaway snaps, the new policy’s prohibition
on wearing lanyards without breakaway snaps also effectively prohibited wearing
the
At an unspecified date in June, Roberts announced the new dress code policy at a meeting with employees. Among other things, Roberts told the employees that they were not allowed to wear badge backers of any kind, not even the company badge backers that some employees had worn before.
The handouts given to employees at the June meeting stated that the new dress code would be strictly enforced beginning July 1. Roughly a week later however, the Respondent amended the June 5 dress code policy to allow the wearing of “personalized buttons/pins of any type.” This meant that employees could once again wear union pins and buttons on lanyards, but not on name badges.
2. Analysis
It is well established that employees generally have the
right to wear union insignia while at work.
Republic Aviation Corp. v. NLRB,
324
(a) Badge Backers
The judge found that the Respondent violated Section 8(a)(1) by prohibiting employees from wearing badge backers with statements of their Epilepsy Foundation rights on the back. While Epilepsy was overruled in IBM, even under IBM, an employee has a Section 7 right to request the assistance of a fellow employee. The badge backer worn by the employee involved herein contained, inter alia, a statement of that right.
In its exceptions, the Respondent argues that it adopted its “name badge” rule in response to customers’ complaints about the visibility of employees’ names and about distracting badge backers. It contends that the rule is justified by special circumstances—the need for employees’ names to be clearly visible to customers and to project a “clean, professional, world-class image.” The Respondent therefore contends that it was lawful to adopt a rule prohibiting employees from placing any kinds of pins, buttons, or stickers on their name tags in order to prevent their names from being obscured, and—at least at the Spring Mountain store—in prohibiting the wearing of any sort of badge backers.13
As it applies to the ban on badge backers bearing statements of Section 7 rights, the argument fails. Those statements were on the backs of the employees’ badge backers, where they would neither obscure the employees’ names nor be seen by customers. Accordingly, we find that the Respondent has not demonstrated “special circumstances” justifying its prohibition of employees wearing badge backers containing statements of protected rights. Therefore we find that this prohibition was unlawful.
We find this violation, however, only as to Roberts’
statement at the
(b) Lanyards
The Respondent defends its prohibition of non-breakaway lanyards (including non-breakaway union lanyards) on safety grounds. It argues that employees can be injured if non-breakaway lanyards accidentally become entangled in bulk-packaged items or in heavy machinery such as forklifts or cardboard compacters. The judge dismissed these concerns as abstract. He observed that the Respondent is a retail store, not a manufacturing plant, and found no evidence that any harm had occurred with non-breakaway lanyards. For those reasons, the judge found the Respondent failed to prove special circumstances and held this portion of the dress code policy unlawful.
We disagree. We
find that the Respondent has demonstrated special circumstances surrounding its
ban on non-breakaway lanyards and that those circumstances outweigh the
employees’ right to wear such lanyards bearing the
The Republic Aviation balancing test clearly respects the Respondent’s right to manage its business safely. Unlike the judge, we find the Respondent’s expressed concern for employee safety to be both genuine and substantial. Although the Respondent’s employees may not face the same level of danger as employees in industrial settings, the Respondent’s workplace is not risk-free. Sam’s Club is a retail warehouse that sells bulk-packaged merchandise. As Store Manager Roberts explained at the hearing, in a warehouse, name badges can get caught in merchandise or machinery. If that happens, breakaway lanyards may prevent injury to employees. See Kendall Co., 267 NLRB 963, 964–965 (1983). That no such injury has yet occurred does not diminish the legitimacy of the Respondent’s desire to prevent such an occurrence or of its insistence on the wearing of breakaway lanyards to achieve that purpose. See Albis Plastics, supra, 335 NLRB at 925 fn. 5.
The union lanyard in evidence did not have a breakaway
snap, and there is no indication that the
We further find that the rule requiring the use of breakaway
lanyards did not interfere to any significant extent with the employees’ right
to wear union insignia. The Respondent’s
June 5 policy allowed the wearing of union insignia on shirts; the update a
week later also allowed the wearing of union insignia on lanyards. Because the Respondent allowed employees to
wear other kinds of union insignia, it did not materially limit the exercise of
their right to identify themselves with the Union by requiring them to wear
breakaway lanyards, simply because the
For the foregoing reasons, we find that the Respondent’s legitimate and substantial safety concerns outweigh the minimal interference with employee rights caused by requiring the wearing of breakaway lanyards. We therefore reverse the judge and find the breakaway lanyard provision to be lawful under the Republic Aviation balancing test.
(c) Union Insignia Attached to Lanyards
The Respondent’s original dress code policy, which was disseminated to general managers on June 5 and announced to employees later, prohibited the attachment of union buttons and pins to both lanyards and name badges. However, a week after announcing the new policy to employees, the Respondent rescinded the former restriction and assured employees that they could wear pins of any type on their lanyards.
Finding no evidence that the wearing of union buttons on lanyards had any kind of detrimental effect on customers, production, or store discipline, the judge found this prohibition unlawful. (It is unclear from his decision whether the judge realized that the prohibition had been rescinded.) In the circumstances presented here, we disagree. When it announced the June 5 policy to employees, the Respondent stated that it would not be strictly enforced until July 1. It rescinded the policy a week later, well before it was scheduled to take effect. We find that the Respondent did not interfere with the employees’ right to wear union pins and buttons on their lanyards during the week before it rescinded this prohibition, because the prohibition had not actually taken effect at that time. Accordingly, we shall dismiss the complaint insofar as it alleges that the temporary ban on wearing union insignia on employees’ lanyards was unlawful.
D. Roberts’ Suspension of Merit Raises
The judge found that Roberts unlawfully suspended merit raises pending the election without expressly telling employees that the raises would be reinstated after the election regardless of how they voted. We reverse and dismiss this allegation.
1. Facts
The day after the
[O]ne of those things I mentioned, what I called laboratory conditions, and spoke to the associates and let them know that merit increases would be frozen, put on hold because of the fact the petition was filed and I did not want, we did not want, I did not want it look as though we were swaying someone's vote based on a discretionary increase. However, that the merit increases would be reinstated after the proposed vote.
2. Analysis
It is well established that an employer faced with a union
organizing drive is required to proceed with an expected wage or benefit adjustment
as if the union were not on the scene.
In Uarco, the Board upheld an employer’s postponement of wage adjustments because the employer made it clear that
whether or not its employees were represented by a union, it planned to continue its established practice of adjusting wage rates in early April of each year, pursuant to its annual wage survey, to bring them into conformity with prevailing rates in the area; and that the sole purpose of its announcement postponing the expected adjustments in wage rates and benefits for the employees involved was to avoid the appearance that it sought to interfere with their free choice in any elections which might be directed. 169 NLRB at 1154.
The Board held the
employer’s postponement lawful, reasoning that in those circumstances, employees
could not reasonably have concluded that the action was intended to influence
their decision concerning their representation for purposes of collective
bargaining.
Here, the judge found that the Respondent’s suspension of
merit wage increases violated Section 8(a)(1) because employees were not expressly told that their merit
increases would resume after the election regardless of how they voted. He reasoned that omission of the italicized
language could reasonably lead employees to conclude that resumption of the
wage increases would depend on their voting against the
We disagree. Roberts made it clear that merit increases were only being “put on hold” in order to avoid appearing to attempt to influence employees’ votes. He stated without qualification that the “merit increases will be reinstated after the vote.” In these circumstances, the only plausible reading of Roberts’ statement is that the employees would receive their merit increases after the election regardless of the outcome. We agree with the Respondent that there are no “magic words” in which that message must be couched. Because Roberts’ promise was unqualified and unconditional, we find that the Respondent’s employees would not reasonably have concluded that Roberts was postponing their merit increases to influence their votes. We therefore dismiss this complaint allegation.
E. Allegations Concerning Candy Proffitt
The judge found that Candy Proffitt was a statutory
supervisor and that she violated Section 8(a)(1) by soliciting signatures and
collecting signed letters from other employees expressing opposition to the
For the reasons discussed below, we find, contrary to the judge, that the evidence fails to establish that Proffitt was a supervisor and, therefore, her actions regarding the antiunion letters were not unlawful. We agree with the judge that, assuming that the Respondent demoted Proffitt, there is no evidence that it did so as part of a unit-packing scheme.
1. Facts
Until May 2001, Proffitt held “team lead” positions on the
hard-lines and the center-lines teams.
(The Decision and Direction of Election states that team leads “may
direct the work of associates within their section.”) However, when the Respondent began remodeling
the
After Proffitt returned from vacation, she and several
other employees circulated letters opposing the
Several employee witnesses testified at the hearing that Proffitt either claimed she was a team lead or performed supervisory tasks in the fall of 2001. Glenda Cook and Mary Lou Wagner testified that Proffitt told them that she was team lead in the fall of 2001. Marsha Wardingley testified that Proffitt talked about being a supervisor to everyone: “She told everyone she was in charge, that she was a supervisor . . .”
In addition, some witnesses testified that Proffitt directed the work of employees or “moved employees around.” Frank Lupiano testified that Proffitt expressed stress or frustration to him about having to move people around in the store. Similarly, Marsha Wardingley testified that in the fall of 2001, Proffitt took over a supervisory position Roberts originally created for Bruce Miller, who later became a manager. Wardingley testified that once Proffitt occupied that position, she would make schedules, tell people where to go, and give directions and orders. When Wardingley was asked at the hearing how she knew that Proffitt was doing schedules and moving people around, she testified, “You could hear her on the radio giving orders all the time.”
Linda Gruen testified that Proffitt sometimes asked her or other employees to “zone” (i.e., clean and straighten up) areas other than their assigned work areas because the people working the other areas had fallen behind or did not come to work. Gruen testified that Proffitt did so without consulting with others.
Gruen further testified that in mid- to late September, she asked Proffitt “if it would be okay if I left because I wasn’t feeling well.” Proffitt replied by asking if Gruen’s area was “all caught up.” After Gruen answered it was, Proffitt said “fine, go ahead, you can leave.”
Proffitt testified that in her post-remodeling position, insofar as she assigned work to other employees or directed their work, she did not exercise independent judgment but simply passed along the directions of management. She also testified that in that position she never screened or interviewed associates, did evaluations, disciplined or recommended discipline, or approved schedule changes, vacation requests, or merit increases.
2. Analysis
(a) Proffitt was not a supervisor
Section 2(11) of the Act defines “supervisor” as
any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
An
individual need only exercise one of the functions enumerated in Section 2(11)
to be found to be a supervisor.
See NLRB v. Kentucky River
Community Care, Inc., 532
Where the possession of any one of the powers listed in Section
2(11) is not conclusively established, the Board looks to secondary indicia to
determine supervisory status. Those indicia
include the individual’s job title or designation and authority to grant time
off, Monarch Federal Savings & Loan,
237
The judge found that Proffitt was a supervisor because she gave directions to other employees, granted an employee time off, received an additional $.50 per hour, and because the employees she directed thought she was a supervisor. Contrary to the judge, we find that the record does not establish that Proffitt possessed or exercised supervisory authority.
The authority to assign or responsibly direct other employees
does not confer supervisory status unless its exercise requires the use of
independent judgment. See, e.g., Property Markets Group, 339 NLRB 199,
204–206 (2003). We find that the General
Counsel has failed to demonstrate that Proffitt exercised independent judgment
in connection with her assertedly supervisory functions. In instances where Proffitt did not first check in with management
before assigning work, the record indicates that her movement of personnel was
either routine or simply based on the need to get work done. There is no indication that such assignments
were based on any factor involving the use of independent judgment. Nor did Proffit’s permitting Gruen to go home
when she felt ill and asked to be excused involve the use of independent
judgment.
The
remaining factors cited by the judge—Proffitt’s higher pay level and the other employees’ perceptions
of Proffitt’s authority—are all secondary indicia that cannot support a finding of
supervisory status in the absence of any of the statutory indicia. J.C. Brock Corp., supra, at 159. Accordingly, we reverse the judge and find
that Proffitt has not been shown to have been a supervisor at the time she was
involved in the antiunion letter-writing effort.15
(b) Proffitt
lawfully participated in the
antiunion letter-writing effort
Because
Proffitt was neither a supervisor nor an agent of the Respondent for
purposes of the circulation of the antiunion letter, it follows that her participation in that effort was not
unlawful. We therefore dismiss the allegation
that the Respondent violated Section 8(a)(1) of the act by
soliciting letters opposing the
(c) The Respondent did not demote proffitt
as part of a unit-packing scheme
The complaint alleges that the Respondent hired numerous
employees into the bargaining unit in the fall of 2001 in order to dilute the
The judge found that the Respondent did not engage in unit-packing. He found, instead, that during the store remodeling project, staffing had been allowed to fall to unusually low levels and that the Respondent simply hired enough employees to return to its normal staffing levels. As for Proffitt, the judge found that she was not demoted in order to pack the unit, but remained a supervisor.
We agree with the judge that the Respondent did not engage in a general scheme to pack the bargaining unit, for the reasons discussed in his original decision. And although we find that Proffitt ceased to be a lead (and, in that capacity, arguably a supervisor) before the election, we also find no evidence to support the allegation that she was demoted as part of the Respondent’s unit-packing scheme.
Remedy
Having
found that the Respondent has engaged in certain unfair labor practices,
we shall order it to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. We shall order the Respondent to cease and
desist from confiscating union pens and other union related material and from
promulgating and maintaining rules that employees may not talk about the
We
agree with the Respondent that the judge erred in requiring it to post notices
at all of its
ORDER
The
National Labor Relations Board orders that the Respondent, Sam's Club, a Division of Wal-Mart Stores,
Inc.,
1. Cease and desist from
(a) Confiscating union pens and
other union-related material.
(b) Promulgating and maintaining
a rule prohibiting employees from talking about the
(c) Prohibiting employees from
wearing badge backers stating their rights under the National Labor Relations
Act on the back.
(d) 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 effectuate the policies of the Act.
(a) Rescind the Respondent’s
prohibitions on talking about the
(b) Within 14 days after service
by the Region, post at its facility at
(c) Within 21 days after service
by the Region, file with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps the Respondent
has taken to comply.
Dated,
Robert J. Battista , Chairman
Peter
C. Schaumber, Member
(seal) National
Labor Relations Board
Member Liebman, dissenting in part.
Contrary to the majority, I would find that the suspension of Ida Williams, who exercised her right to request an employee witness at a disciplinary interview, was unlawful. In my view, the Respondent seized on Williams’ alleged emotional state as a pretext for retaliating against her.
On June 19, 2001, Ida Williams had her second confrontation with her supervisor, Jeff Tuesburg, in less than a week. Tuesburg then arranged for a meeting with Store Manager Greg Roberts. Williams asked that a fellow employee accompany her to Roberts’ office as a witness. Roberts denied the request, stating that the meeting was not an investigation. According to Roberts’ credited testimony, “Ida was not happy with my response, visibly, and she said ‘this is a bunch of crap,’ and she walked away.” Roberts then suspended Williams for the rest of the day, ostensibly because he felt she was too angry to work with customers.
At the time of her request, Williams not only had the statutory right to request the presence of a coworker at the interview with Roberts, she also was entitled to such a witness. Under the circumstances, it was reasonable for Williams to believe that, despite Roberts’ assurances, the interview could lead to discipline. Williams’ upset reaction to the denial of her request, a statutory entitlement, was not so extreme as to cost her the protection of the Act.
The majority effectively concedes these points, but nevertheless finds that the suspension of Williams was lawful. The majority first finds that Williams’ statement “this is a bunch of crap” was “no longer an act of protected activity” —in effect, that the Act’s protections ceased when Williams’ request was denied. This finding is inconsistent with long-settled Board law holding that allegedly insubordinate behavior that is part of the res gestae of protected activity is also protected. See, e.g., United States Postal Service, 251 NLRB 252 (1980), enfd. Postal Service v. NLRB, 652 F.2d 409 (5th Cir. 1981).
The reason for this rule is simple and obvious. As the Board has recognized, because tempers
often flare and emotions run high in the course of protected activity, some
leeway must be given to employee expression in the wake of protected
activity. Dreis & Krump Mfg., 221
This case is squarely controlled by these precedents. Roberts testified that, immediately after he denied her request for a witness, “Ida was not happy with my response, visibly, and she said this is a bunch of crap, and she walked away.” Because Williams’ statement and exit were prompted by and immediately followed Robert’s denial, they were clearly part of the res gestae of her protected request and were also protected.
The majority also explains that it is deferring to the Respondent’s managerial judgment that Williams was too upset to work with customers. But as the judge found, there is no evidence in this record to support this contention. There is no evidence that Williams was so frustrated or angry as to be unable to deal with customers, as Roberts claimed. And even if she was too upset to return immediately to the sales floor, she could have been offered the opportunity to cool off for a few minutes and compose herself. It seems unlikely that Williams’ ire at Roberts would carry over into her work: encouraging customers to try food samples. By sending her home immediately, Roberts clearly went well beyond what was reasonable under the circumstances, strongly suggesting that he was responding not to Williams’ emotional state, but to her protected activity.
I recognize, of course, that it is not for the Board to second-guess employers’ legitimate business judgments. But the Board must be satisfied that the employer’s action reflects an actual business judgment, rather than a pretext for retaliating against an employee for exercising her statutory rights. Here, the record demonstrates that Williams’ alleged emotional state was simply a pretext to retaliate against her for asserting her right to a witness. I therefore agree with the judge that Williams’ suspension violated Section 8(a)(1).
Dated,
Wilma
B. Liebman, Member
National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An
Agency of the
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not confiscate union pens and other union related material.
We will not promulgate and maintain an overly broad rule prohibiting
employees (“associates”) from talking about the Union while allowing other nonwork-related
discussions or prohibiting such discussions in nonwork areas during nonwork
time.
We will not
prohibit employees (“associates”) from wearing badge
backers stating their rights under Federal labor law on the back.
We will not in any like or related manner interfere with, restrain, or
coerce you in the exercise of the rights listed above.
We will rescind our prohibitions on talking about the
Sam's Club, a Division of
Wal-Mart Stores, Inc.
Nathan Albright Esq., for the General Counsel.
Steven D. Wheeless, Cyrus B. Martinez, and Mark G. Kisicki, Esqs., of
George Wiszynski, Esq., of
DECISION
Statement of the Case
James L. Rose, Administrative Law Judge. This matter was tried before me at Las Vegas, Nevada, on various dates from August 5 through August 15, 2002, upon the General Counsel’s consolidated complaint alleging that agents of the Respondent committed numerous violations of Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. §151, et seq. The Respondent is also alleged to have violated Section 8(a)(3) in certain respects, including the discharge of two employees.
The Respondent generally denied that it violated the Act in any manner and affirmatively contends that the two individuals were terminated for cause.
Upon the record as a whole, including my observation of the witnesses, briefs and arguments of counsel, I hereby make the following
i.
jurisdiction
The Respondent is a
subsidiary of Wal-Mart Stores, Inc., a
ii. the labor
organization involved
United Food and Commercial Workers International Union,
AFL–CIO, CLC (the
iii. the alleged unfair labor practices
A Background
The Union is engaged in a nation-wide “corporate” campaign
to organize the employees of Wal-Mart Stores and its subsidiaries which has
resulted in several Board cases, including one involving events at the Spring
Mountain facility in 2000.[1] The events here begin with an organizing
effort initiated in early 2001[2]
at the
Analysis and Concluding Findings
1. The 8(a)(1) allegations
a. By Greg Roberts, February 14, June 19 and July 3
It is alleged in paragraph 5(a) of the consolidated complaint that on February 14, Spring Mountain General Manager Greg Roberts told employees that the Respondent does not recognize their right to have another employee present during investigatory interviews. The General Counsel, however, specifically does not argue that the Roberts denied employees this right.
This allegation arises out of an employee’s right to be
represented when called by management for an interview which might lead to
discipline. In NLRB v. J. Weingarten,
Inc., 420 U.S. 251 (1975), the Supreme Court held that an employee is
entitled to such representation where the employees have selected a bargaining
representative. And currently the Board
holds that such a right exists where employees have no designated bargaining
representative (as in the current fact situation). Epilepsy
Foundation of
On February 14 Sandra Mena received a regular employee evaluation in which it was suggested she had a bad attitude. She wanted to discuss this with Roberts. A meeting was arranged, at the outset of which she asked for an employee witness. Roberts told her that she had asked for the meeting, it was not investigatory and that she was there pursuant to the Respondent’s “open door” policy. Accordingly she had no right to have another employee present.
The General Counsel concedes that Mena had no right to have a witness present at a meeting she requested. Nevertheless, he contends that in telling her so, Roberts interfered with her Section 7 rights and thereby violated Section 8(a)(1). I disagree. There is no authority of which I am aware making it an unfair labor practice for an employer to tell employees they have no right to something to which they have no right. To find an unfair labor practice on these facts would be tantamount to finding that Roberts should have allowed Mena to have a witness, even though, the parties agree, she was not entitled to one.
Since Roberts was not required to allow Mena to have a witness, it was not unlawful for him to say so. I further find that this was the sum of Roberts’ comment. I do not believe, as specifically alleged in the complaint, that he told her that the Respondent does not recognize Weingarten as a general proposition. Indeed, Mena did not so testify. In the fact situation presented, there is no reason for him to have said more than Mena was not entitled to representation. I conclude that the Respondent did not violate Section 8(a)(1) as alleged in paragraph 5(a).
The situation involving Ida Williams, however, was different. In brief, Williams and her supervisor Jeff Tuesburg had a confrontation on June 19 which led Tuesburg to arrange a meeting for them with Roberts. Williams asked employee Keman Clute to go with her. When they met with Roberts, Roberts said that they were not “coaching” - that they were just talking. Therefore Williams did not need representation and for Clute to go back to work. Clute did so.
Roberts’ version of this event is substantially the same as that of Williams and Clute. Roberts testified that Tuesburg approached him and said he needed to have Roberts meet with him and Williams and Roberts