Wal-Mart Stores

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 16 274 Wal-Mart Stores, Inc. and United Food and Com- mercial Workers Union, Local 455 Wal-Mart Stores, Inc. and United Food and Com- mercial Workers Union, Local 540 Wal-Mart Stores, Inc. and United Food and Com- mercial Workers Union, Local 455. Cases 16– CA–20391–001–0, 16–CA–20603–001–0, 16–CA– 20827–001–0, and 16–RC–10181 September 28, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On June 10, 2003, Administrative Law Judge Keltner W. Locke issued the attached decision and, on June 20, 2003, he issued an erratum. The General Counsel and Charging Party Local 455, United Food and Commercial Workers (Local 455) filed exceptions and supporting briefs to the judge’s findings regarding the Respondent’s Palestine, Texas supercenter store. The Respondent also filed an answering brief. The Respondent and Charging Party Local 540, United Food and Commercial Workers (Local 540) filed excep- tions and supporting briefs to the judge’s findings as to the Respondent’s Jacksonville, Texas supercenter store, as well as answering briefs. The General Counsel filed an answering brief to the Respondent’s exceptions and the Respondent and Local 540 filed reply briefs. 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 affirm the judge’s rulings, findings,1 and conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below. 1. On February 17, 2000,2 Local 540 won an election to represent a unit of meat-department employees at the Respondent’s supercenter store in Jacksonville, Texas. 1 The General Counsel and Local 455 have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. No exceptions were filed to the judge’s failure to order a Transma- rine backpay remedy. See Transmarine Navigation Corp., 170 NLRB 389 (1968), as clarified in Melody Toyota, 325 NLRB 846 (1998). Although the Board has the discretionary authority to modify the rem- edy and order such backpay here, we decline to do so in this case under all of the circumstances presented, including the absence of exceptions to the judge’s failure to order that backpay remedy in this case. 2 All dates are in 2000. That meat-department unit had been found appropriate in the underlying representation proceeding. Thereafter, on several occasions between March and August, Local 540 requested that the Respondent enter into negotiations for a collective-bargaining contract. The Respondent re- jected the requests. The judge found that the Respondent violated Section 8(a)(5) by refusing Local 540’s bargaining requests be- tween March and July 15, but that it did not unlawfully refuse to bargain with Local 540 after July 15. The judge based this latter conclusion on his finding that, by July 15, the meat-department unit at the Jacksonville store was no longer an appropriate unit for collective bargain- ing due to the Respondent’s completion of a long- planned conversion of its meat department from a “boxed”-meat operation to a “case-ready” operation. Specifically, the judge found that the specialized and distinct meat-cutting skills and duties of the meat- processing employees, which were the essential factors that supported the finding in the representation case that the meat-department unit was appropriate, were elimi- nated when the department converted to a case-ready operation. We agree with the judge’s finding that the meat- department unit became inappropriate by July 15, after the case-ready program was implemented and that the Respondent, therefore, did not violate Section 8(a)(5) after this date by refusing to bargain with Local 540 for an initial contract. However, we do not agree with the judge’s further finding that the Respondent’s refusals to bargain before July 15 violated Section 8(a)(5). As the Respondent correctly notes in its brief, the consolidated complaint did not allege that the Respondent’s refusals to bargain for a contract prior to July 15 were unlawful. Rather, the consolidated complaint specifically alleged that “[s]ince August 21, Respondent has failed and re- fused to bargain collectively with the Union as the exclu- sive collective-bargaining representative of the Unit.” Accordingly, in the absence of a complaint allegation that the Respondent’s refusals to bargain for a contract before July 15 were unlawful, we reverse the judge’s finding of an 8(a)(5) violation covering the March-to- July 15 time period.3 3 In light of our reversal of the judge on this basis, we find it unnec- essary to address the judge’s finding that the Jacksonville meat depart- ment was an appropriate unit before July 15. Nor need we pass on the Respondent’s alternative argument that the meat department unit be- came inappropriate on February 28, when the Respondent publicly announced its intention to convert its meat department at Jacksonville and other stores to a case-ready operation, thereby precluding a finding that it violated Sec. 8(a)(5) after this date by refusing to bargain for an initial contract. WAL-MART STORES 275 2. The judge found, and we agree, that the Respondent violated Section 8(a)(5) by refusing to bargain about the effects of its decision to convert its meat department at the Jacksonville store from a boxed meat to a case-ready operation, and by refusing to furnish Local 540 with re- quested information that was relevant and necessary for engaging in effects bargaining.4 However, we do not agree with the judge’s recommended Order insofar as it requires that the Respondent restore its boxed-meat op- eration while the parties bargain over the effects of the Respondent’s decision to implement its case-ready op- eration. Where, as here, the General Counsel alleged that the Respondent’s refusal to bargain about the effects of its decision to implement a case-ready meat operation vio- lated Section 8(a)(5), but not that the refusal to bargain about the decision itself was unlawful, a remedy requir- ing restoration of the status quo is not appropriate. See Fast Food Merchandisers, 291 NLRB 897, 901–902 (1988). Accordingly, we shall amend the judge’s rec- ommended Order by deleting the requirement that the Respondent restore its boxed-meat operation and, in- stead, shall limit the remedy to a requirement that the Respondent affirmatively bargain with Local 540 regard- ing the effects of its decision to implement its case-ready operation. ORDER The National Labor Relations Board orders that the Respondent, Wal-Mart Stores, Inc., Palestine and Jack- sonville, Texas, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with United Food and Commercial Workers Union, Local 540, concerning the effects on its meat- department employees of its decision to discontinue its boxed-meat operation and to sell only case-ready meat at its Jacksonville, Texas store. (b) Failing and refusing to provide information re- quested by the Union which is necessary for, and rele- vant to, the Union’s representation of employees during the negotiations referred to in subparagraph 1(a), above. 4 The consolidated complaint did not allege that the Respondent unlawfully refused to bargain with Local 540 about its decision to convert its meat department to a case-ready operation. With respect to the information request violation, we find, in accord with the consoli- dated complaint, that the information unlawfully withheld from Local 540 was that requested in Local 540’s letter of August 16, rather than its letter of July 18, as set forth in Conclusion of Law 9 of the judge’s decision and par. 2(b) of his recommended Order. We shall modify the judge’s Order to correct this error. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self organization, to join, form, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain collectively and in good faith with United Food and Commercial Workers Union, Lo- cal 540, with respect to the effects on its meat- department employees of its decision to discontinue its boxed-meat operation and to sell only case-ready meat at its Jacksonville, Texas store. (b) Immediately furnish United Food and Commercial Workers Union, Local 540, with the information it re- quested by letter dated August 16, 2000. (c) Within 14 days after service by the Region, post at its facility in Jacksonville, Texas, copies of the attached notice marked “Appendix A.”5 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 immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices 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 the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 19, 2000. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Regional Director attesting to the steps that the Respondent has taken to comply. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 276 APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated 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 activities. WE WILL NOT do anything that interferes with these rights. WE WILL NOT refuse to bargain collectively in good faith with United Food and Commercial Workers Union, Local 540, concerning the effects on our meat- department employees of our decision to discontinue the boxed-meat operation and to sell only case-ready meat. WE WILL NOT refuse to provide the Union with infor- mation it has requested which is relevant to and neces- sary for bargaining concerning the effects of our decision to discontinue the boxed-meat operation and to sell only case-ready meat. WE WILL NOT, in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request, bargain collectively in good faith with United Food and Commercial Workers Union, Lo- cal 540, concerning the effects on our meat-department employees of our decision to discontinue the boxed-meat operation and to sell only case-ready meat. WE WILL promptly furnish United Food and Commer- cial Workers Union Local 540 with the information it requested in its August 16, 2000 letter. WAL-MART STORES, INC. Edward B. Valverde, Esq., for the General Counsel. J. Richard Hammett, Esq., Laurence E. Stuart, Esq., and Char- lene H. Tsang, Esq. (Baker & McKenzie), of Houston, Texas, for the Respondent. George Wiszynski, Esq., of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE KELTNER W. LOCKE, Administrative Law Judge. In this case, a recently certified unit of meat department employees became inappropriate when the Respondent lawfully eliminat- ing meat cutting and began selling only case-ready meat. Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the certified Union before the unit became inappropriate, by refusing to bargain with the Un- ion concerning the effects of the change, and by refusing to furnish the Union with requested relevant and necessary infor- mation. However, Respondent did not otherwise violate the Act. Procedural History For efficiency, unfair labor practice charges concerning two different Wal-Mart Supercenters have been consolidated, along with a representation case, into this one proceeding. The alle- gations involve two essentially separate sets of facts, one con- cerning events at a store in Palestine, Texas, and the other con- cerning events at a store in Jacksonville, Texas. The procedural histories of these two matters will be discussed separately. A. Palestine, Texas Store (Cases 16–RC–10181 and 16–CA–20391) On February 15, 2000, United Food and Commercial Work- ers Union, Local 455 filed a petition in Case 16–RC–10181. (This petitioner will be referred to as Local 455 or, when con- text precludes the possibility of confusion, simply as the Un- ion.) Local 455 sought to represent the following unit of Wal- Mart employees: All full-time and regular part-time employees employed in the meat and seafood market at its store located at 2223 South Loop 256, Palestine, Texas 75801; excluding the meat and seafood market manager, office clerical employees, profes- sional employees, guards and supervisors within the meaning of the Act. On April 12, 2000, the Board conducted an election at the Palestine, Texas store. Eligible to vote were all full-time and regular part-time employees employed in the meat market area and seafood department. After a stipulation resolved all chal- lenged ballots, a revised tally of ballots indicated that Local 455 lost the election by a vote of 6 to 5. On May 5, 2000, Local 455 filed Petitioner’s objections to the conduct of the election and to conduct affecting the results of the election in Case 16–RC–10181. (As discussed further below, the issues raised by these objections became part of the present proceeding by a consolidation order dated October 15, 2002.) Also on May 5, 2000, the United Food and Commercial Workers International Union, AFL–CIO, CLC (UFCW or In- ternational Union) filed an unfair labor practice charge against Respondent in Case 16–CA–20391. This charge, concerning preelection conduct at the Palestine, Texas Wal-Mart store, alleged violations of Section 8(a)(1) and (3) of the Act. The General Counsel did not issue a separate complaint con- cerning the allegations arising out of the charge in Case 16– WAL-MART STORES 277 CA–20391. Rather, such allegations do appear in an order consolidating cases, consolidated complaint, and notice of hear- ing, dated August 26, 2002, in Cases 16–CA–20391, 16–CA– 20603, and 16–CA–20827, discussed further below. B. Jacksonville, Texas Store (Cases 16–CA–20603 and 16–CA–20827) On February 17, 2000, in Case 16–RC–10168 (not a part of the current proceeding), the Board conducted an election at Respondent’s store in Jacksonville, Texas, to determine whether a majority of meat department employees desired to be represented by United Food and Commercial Workers Union, Local 540 (Local 540 or, where context allows, the Union). A majority voted in favor of such representation. On March 13, 2000, Local 540 demanded bargaining over Respondent’s decision to eliminate meat cutting and use only case-ready meat. On March 14, 2000, Respondent refused to recognize and bargain with the Union. Local 540 made further demands for recognition and bargaining, which are discussed more fully below. Respondent did not, and has not, recognized or bar- gained with the Union. On April 21, 2000, a hearing officer recommended that the Respondent’s objections to the election be overruled. Respon- dent appealed this decision to the Board. On August 9, 2000, the Board issued a Decision and Certifi- cation of Representative, which certified Local 540 to be the exclusive bargaining representative of all full-time and regular part-time employees employed in the meat department at Re- spondent’s Jacksonville, Texas store. On August 21, 2000, United Food and Commercial Workers Union, Local 540 filed an unfair labor practice charge against Respondent in Case 16–CA–20603. This charge alleged that Respondent had refused to bargain in good faith with Local 540 concerning the terms and conditions of employment of the meat department employees at Respondent’s Jacksonville, Texas store. On August 22, 2000, the General Counsel, through the Re- gional Director for Region 16 of the Board, issued a complaint in Case 16–CA–20603. This complaint alleged that pursuant to the Board’s August 9, 2000 Decision and Certification of Rep- resentative, Local 540 was the exclusive bargaining representa- tive of a unit of meat department employees at Respondent’s Jacksonville, Texas store; that on August 16, 2000, Local 540 requested that Respondent engage in collective bargaining, and also that Respondent furnish certain information pertaining to the bargaining unit employees. It further alleged that Respon- dent had failed and refused to recognize and bargain with the Union, and also had failed and refused to furnish the requested information, in violation of Section 8(a)(5) and (1) of the Act. On September 1, 2000, Respondent filed a timely answer to the complaint in Case 16–CA–20603. On September 8, 2000, in Case 16–CA–20603, the General Counsel filed a motion to transfer and continue case before the Board and Motion for Summary Judgment. On December 6, 2000, Local 540 filed an unfair labor prac- tice charge in Case 16–CA–20827, alleging that Respondent had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Local 540 over the decision and effects of its plan to eliminate meat cutting at its Jacksonville, Texas store and instead to sell case-ready meat. C. The Consolidated Proceeding On August 26, 2002, the General Counsel, by the Regional Director for Region 16 of the Board, issued an order consolidat- ing cases, consolidated complaint, and notice of hearing in Cases 16–CA–20391, 16–CA–20603, and 16–CA–20827. For simplicity, this document will be called the complaint or con- solidated complaint. On September 9, 2002, Respondent filed an answer and af- firmative defenses to order consolidating cases, consolidated complaint, and notice of hearing in Cases 16–CA–20391, 16– CA–20603, and 16–CA–20827. On October 15, 2002, the General Counsel, by the Regional Director for Region 16 of the Board, issued an order directing hearing, second order consolidating cases, consolidated com- plaint, and notice of hearing in Cases 16–CA–20391, 16–CA– 20603, 16–CA–20827, and 16–RC–10181. Although the cap- tion of this pleading might suggest that it included an unfair labor practice complaint, it did not repeat or amend the allega- tions raised by the August 26, 2002 order consolidating cases, complaint, and notice of hearing. It did, however, consolidate the representation case, Case 16–RC–10181, with the unfair labor practice cases, Cases 16–CA–20391, 16–CA–20603, and 16–CA–20827. On October 28, 2002, Respondent filed an answer and af- firmative defenses to order directing hearing, second order consolidating cases, consolidated complaint, and notice of hear- ing in Cases 16–CA–20391, 16–CA–20603, 16–CA–20827, and 16–RC–10181. The hearing in this matter opened before me in Tyler, Texas on November 18, 2002. The parties presented evidence on November 18 through 22, 2002, and on this latter date, the hearing closed. Counsel submitted posthearing briefs, which I have considered. Certain typographical errors appear in the transcript. How- ever, no party has moved to correct the transcript, so in appen- dix B to this decision. [Appemdix B omitted from publication.] Admitted Allegations Based on the admissions in Respondent’s answer, I find that the unfair labor practice charges were filed and served as al- leged in complaint paragraphs 1(a), (b), and (c). Additionally, based on Respondent’s admissions, I find that Respondent has been, at all material times, a Delaware corpora- tion with retail stores in Jacksonville and Palestine, Texas, as alleged in complaint paragraph 2, that it meets the commerce standard set forth in complaint paragraph 3, and that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, as alleged in complaint paragraph 4. Therefore, I conclude that Respondent is subject to the Board’s jurisdiction. In accordance with Respondent’s admission, I find that the United Food and Commercial Workers Union, AFL–CIO, CLC, its Local 455 and its Local 540, are labor organizations within the meaning of Section 2(5) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 278 Based on the admission in Respondent’s answer, I find that Ron McCall, store manager at Respondent’s Jacksonville, Texas facility, is Respondent’s supervisor and agent within the meaning of Section 2(11) and 2(13) of the Act, respectively. Based on a stipulation of the parties during the hearing, I find that Ray Brown is Respondent’s supervisor within the meaning of Section 2(11) of the Act. Respondent’s answer admits the allegations set forth in com- plaint paragraph 13. Based on that admission, I find that on about August 16, 2000, the Union, by letter and facsimile, re- quested that Respondent furnish the Union with the following information: (a) A list of all current employees in the meat market bargaining unit, including all meat processors, meat asso- ciates and meat market cleaners, along with their dates of hire, rates of pay, job classification, last known home ad- dress and telephone number; (b) Copies of all personnel policies and work rules that apply to bargaining unit employees; (c) Copies of all payroll and wage policies that apply to the bargaining unit employees; (d) Copies of all documents describing available fringe benefits, such as pension, profit sharing, 401(k) plans, va- cation and health insurance that apply to the bargaining unit employees; (e) Copies of all bargaining unit job descriptions. Respondent’s answer admits some but not all the allegations set forth in complaint paragraphs 15 and 16. Based on these partial admissions, I find that Respondent has not bargained with Local 540 at any time before or after August 21, 2000, and that it has not furnished the information requested by the Union in its August 16, 2000 letter, described above. Respondent’s answer also admits some of the allegations de- scribed in complaint paragraphs 17 and 18. Specifically, Re- spondent admits that by the July 18, 2000 letter, the Union requested to bargain over Respondent’s change to case-ready meat, and that, by letters dated July 19 and August 21, 2000, Respondent notified the Union that it would not bargain over the effects of its implementation of its case-ready meat pro- gram. Withdrawn Allegations After the close of the hearing in this matter, the General Counsel filed a “Motion to Withdraw Section 8(a)(1) Allega- tions From the Consolidated Complaint” dated January 6, 2003. That unopposed motion, which is hereby granted, stated in pertinent part as follows: Counsel for the General Counsel has identified certain allega- tions that it requests to be withdrawn. Those allegations in- clude: paragraphs 7(e), 7(f), 7(g), 7(h), 7(i), 7(j) and 7(k). Also, the following portions of the following paragraphs are requested to be withdrawn: That portion of paragraph 7(b) that alleges Stan Ellis interrogated employees about the Union. That portion of paragraph 7(c) that alleges Tom Un- derwood interrogated an employee about the Union activi- ties of other employees. That portion of paragraph 7(d) that alleges Tom Un- derwood solicited grievances from employees. This request does not affect the remaining portions of para- graphs 7(b), (c) and (d) which remain before the Administra- tive Law Judge for decision. Having granted the General Counsel’s motion, I recommend that the Board dismiss the allegations raised by complaint para- graphs 7(e), (f), (g), (h), (i), (j) and (k). Because the General Counsel’s motion has not withdrawn all allegations in com- plaint paragraphs 7(b), (c), and (d), I will discuss the remaining allegations below. Disputed Allegations This consolidated proceeding concerns two different sets of facts. The first pertains to Local 455’s organizing campaign at Respondent’s Supercenter in Palestine, Texas, and the events leading up to an election at that facility on April 12, 2000. The General Counsel contends that Respondent interfered with the union’s effort by acts described in the various subparagraphs of complaint paragraph 7. The complaint alleges that this conduct violated Section 8(a)(1) of the Act. The General Counsel also contends that during this organiz- ing campaign, Respondent discriminated in regard to terms and conditions of employment to discourage membership in the Union. The subparagraphs of complaint paragraph 8 itemize such alleged acts, which, the Government asserts, violate Sec- tion 8(a)(3) as well as 8(a)(1). In the April 12, 2000 election at the Palestine store, Local 455 did not receive a majority of the votes and filed objections to the conduct of the election. The alleged violations of Section 8(a)(1) and (3) provide the basis for these objections. The second set of facts involves Respondent’s Supercenter in Jacksonville, Texas. Although the allegations pertaining to the Palestine store concern preelection conduct, the Jacksonville issues largely concern postelection matters, notably, Respon- dent’s refusal to recognize and bargain with Local 540 after it won an election which the Board conducted on February 17, 2000. Before discussing the Jacksonville allegations, I will examine first those involving the Palestine store. 1. Respondent’s Palestine, Texas facility (a) Complaint paragraphs 7(a) and 8(a) These complaint paragraphs concern alleged “unit packing.” As described above, the Union filed a representation petition on February 15, 2000, seeking an election in a meat department unit. Allegedly, Respondent transferred three employees into the meat department to dilute the Union’s strength. Complaint paragraphs 7(a) and 8(a) refer to the same alleged event, the transfer of these three employees into the meat de- partment at Respondent’s Palestine, Texas store. When consid- ered together with the complaint’s conclusionary paragraphs, complaint paragraph 7(a) alleges that these transfers violate Section 8(a)(1) of the Act, and complaint paragraph 8(a) alleges that the transfers violate Section 8(a)(3). It appears that the complaint originally identified the wrong employees as having been transferred into the meat department. At hearing, the General Counsel amended the relevant com- WAL-MART STORES 279 plaint paragraphs to delete the original three names and to al- lege instead that, about February 14, 2000, Respondent trans- ferred Justin McCreary, John E. Warner, and Martin Huddle- ston into the meat department. Respondent denies that it trans- ferred any employees into the meat department for an unlawful purpose. In January and February 2000, Ronald Stacy was manager of Respondent’s Palestine, Texas store. He testified that in mid- January 2000, he needed to fill two positions in the store’s meat department. According to Stacy, one of these positions became open because an employee with performance problems had been transferred to another department. The other position opened when the employee occupying it quit. Personnel records, corroborating Stacy’s testimony, establish that on February 5, 2000, Respondent transferred Warner and Huddleston into the meat department. Before becoming a meat sales associate, Warner held the job classification of grocery sales associate. At the time of his transfer, Huddleston had been working as a grocery stocker. The transfers did not affect the pay of either Warner or Huddleston. Respondent’s personnel records also document the transfer of Justin McCreary from a position as “cart pusher” to meat clerk. Although the store manager approved the transfer on February 19, 2000, it appears that the transfer itself took effect 2 weeks earlier, on February 5, 2000. Based on Stacy’s testimony, which I credit, I find that Re- spondent transferred Warner and Huddleston into the meat department on February 5, 2000 to fill two vacancies. More- over, notwithstanding that the store manager signed a document approving McCreary’s transfer 2 weeks after the effective date of the transfer, the record does not afford a basis to conclude that the transfer actually occurred on a date later than February 5, 2000. Rather, the difference between the transfer date and the approval date appears attributable to the type of “paperwork lag” not uncommon in large organizations. I find that McCreary also began work in the meat department on February 5, 2000. No improper motivation or objective may be inferred simply from the transfers themselves. Such transfers occur in all busi- nesses and, considering the typical employee turnover in the discount retailing industry, the reassignment of a sales associ- ate, in and of itself, appears unremarkable. In some circum- stances, other evidence can cast a shadow over the legitimacy of such a transfer, but such evidence does not appear in the present record. Warner, Huddleston, and McCreary did not testify. No evi- dence indicates that Respondent questioned any of them con- cerning their union activities or sympathies. Similarly, the record does not establish that Respondent questioned any other employees concerning the union activities or sympathies of Warner, Huddleston, and McCreary either before or after their transfers into the meat department. Moreover, the record pro- vides no basis to conclude that members of management either knew, or held any opinions about the attitudes of these three employees towards unionization. These three transfers took place 10 days before Local 455 filed the representation petition. The evidence does not support a finding that in deciding to reassign these three employees to the meat department, management considered what effect those transfers would have on the Union’s chances for success. I conclude that Respondent made these transfers solely for busi- ness considerations relating to the staffing needs of the meat department. The Government has alleged that the transfers interfered with, restrained, and coerced employees in the exercise of pro- tected rights in violation of Section 8(a)(1) of the Act and con- stituted discrimination in regard to a term or condition of em- ployment in violation of Section 8(a)(3) as well. The record does not establish that the transfer of these employees into the meat department interfered with any employee’s right to en- gage in protected activity. Therefore, I recommend that the Board dismiss the 8(a)(1) allegations raised by complaint para- graphs 7(a) and 19. Complaint paragraph 20 alleges a separate theory of viola- tion, namely, that by transferring the three employees into the meat department, Respondent “has been discriminating in re- gard to the hire or tenure or terms of conditions of employment of its employees, thereby discouraging membership in a labor organization in violation of Section 8(a)(3) of the Act. . . .” In deciding whether the transfers violated Section 8(a)(3), I will analyze the facts under the framework which the Board established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Such a framework is not appropriate for every case alleging an 8(a)(3) violation. For example, in Phoenix Transit System, 337 NLRB 510 (2002), the respondent admitted discharging an employee for certain activity and the lawfulness of this action depended on the extent to which the labor law protected such activity. In the present case, however, the facts do not eliminate the issue of motivation. Respondent has not admitted any intent to discriminate and the General Counsel bears the burden of estab- lishing such intent by a preponderance of the evidence. It is appropriate to follow the Wright Line framework to determine whether the Government has carried this burden. Under Wright Line, the General Counsel must establish four elements by a preponderance of the evidence. First, the Gov- ernment must show the existence of activity protected by the Act. Second, the Government must prove that Respondent was aware that the employees had engaged in such activity. Third, the General Counsel must show that the alleged discriminatees suffered an adverse employment action. Fourth, the Govern- ment must establish a link, or nexus, between the employees’ protected activity and the adverse employment action. In effect, proving these four elements creates a presumption that the adverse employment action violated the Act. To rebut such a presumption, the respondent bears the burden of show- ing that the same action would have taken place even in the absence of the protected conduct. Wright Line, 251 NLRB at 1089. See also Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996). The General Counsel has not established the first Wright Line element. As stated above, the alleged discriminatees, Warner, Huddleston, and McCreary, did not testify. No other evidence establishes that they engaged in union or other pro- tected concerted activities. Because the General Counsel has DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 280 not proven this essential element, the inquiry may terminate at this point. However, it may be noted that the Government also has failed to satisfy the other Wright Line criteria. At the second step, Wright Line requires the General Counsel to prove that a respondent knew about the protected activities which satisfied the first step. The Government might satisfy this requirement by showing that a respondent erroneously believed that an employee had engaged in protected activities. In this case, however, the evidence establishes neither knowl- edge of protected activities nor an erroneous belief that the alleged discriminatees had engaged in such activities. There- fore, the Government has failed to satisfy the second Wright Line criterion. More fundamentally, the evidence fails to establish the third Wright Line requirement, that one or more employees suffered an adverse employment action. The transfer did not change the wages or benefits of any of the alleged discriminatees. More- over, the record indicates that at least one of them, “cart pusher” McCreary, sought a transfer from a job in the parking lot to a more comfortable assignment inside the store. Finally, the evidence fails to satisfy the fourth Wright Line requirement. Because the record fails to establish either the existence of protected activities or of any adverse employment action, it necessarily falls short of proving a link between them. For these reasons, I recommend that the Board dismiss the allegations raised by complaint paragraphs 8(a) and 20. (b) Complaint paragraph 7(b) Complaint paragraph 7(b) originally alleged that Respon- dent, by Kelly Clifton and Stan Ellis at its Palestine, Texas facility, interrogated employees about the Union during the period February 15 through April 12, 2000. After the hearing, the General Counsel withdrew the allegation that Stan Ellis interrogated employees. The remaining allegation in paragraph 7(b) concerns Kelly Clifton, a food merchandiser. Respondent has denied that Clifton is its supervisor and agent within the meaning of Sec- tion 2(11) and 2(13) of the Act, respectively. At a minimum, the record establishes that Clifton possessed considerable au- thority concerning the purchase and display of food products. In his own testimony, Clifton referred to his participation in the process of “management by walking around.” I find that Re- spondent had authorized Clifton to act as its agent within the meaning of Section 2(13) of the Act. Further, I conclude that statements made by Clifton to Respondent’s employees con- cerning work-related matters are attributable to Respondent. To establish the allegations in complaint paragraph 7(b), the government relies on the testimony of Rocky Gambill, em- ployed by Respondent as a lead associate in the Palestine store’s meat department. Gambill testified that “on several occasions,” a food merchandiser “asked how I felt about the union organization, and how I felt about the Union itself.” Gambill testified that he replied that he was neither for nor against the Union. The food merchandiser, Kelly Clifton, ad- mitted that he and Gambill discussed the Union, but denied “going up to” Gambill and asking how he felt about it. The vagueness of Gambill’s testimony diminishes its impact. Although he asserted that Clifton asked him “on several occa- sions” how he felt about the Union, Gambill did not identify even one of those occasions specifically. He did not point to any particular conversation on any particular date. Likewise, he did not describe where any of the asserted conversations took place or indicate whether anyone else had been close enough to hear what was said. Moreover, Gambill did not re- count how the subject of the Union arose during these conver- sations. Just as the presence of such details gives testimony the ring of truth, their absence raises doubts. Gambill’s testimony lacks such authenticating detail, and I give it little weight. Crediting Clifton, I find that he did not interrogate Gambill as alleged in complaint paragraph 7(b). Therefore, I recommend that the Board dismiss this allegation. (c) Complaint paragraph 7(c) Complaint paragraph 7(c) originally alleged that Respondent, by Kelly Clifton and Tom Underwood, interrogated an em- ployee at the Palestine store about the union activities of other employees during the time period February 15 through April 12, 2000. After the hearing, the General Counsel withdrew the allegation that Underwood engaged in such interrogations. Although the remaining portion of complaint paragraph 7(c) alleges that Kelly Clifton interrogated an employee about other workers’ union activities, credible evidence does not support this allegation. Therefore, I recommend that the Board dismiss complaint paragraph 7(c). (d) Complaint paragraphs 7(d), 7(m), and 8(b) Complaint paragraph 7(d) originally alleged that Respon- dent, by Kelly Clifton and Tom Underwood, solicited griev- ances from employees at the Palestine store. After the hearing, the General Counsel withdrew the allegation that Underwood solicited grievances, but did not withdraw the allegation that Kelly Clifton solicited grievances. Complaint paragraph 7(m) alleges that during the period February 15 through April 15, 2000, Respondent, by various officials, “solicited grievances from market employees.” Com- plaint paragraph 19 alleges that the conduct described in com- plaint paragraphs 7(d) and 7(m) violated Section 8(a)(1) of the Act. Respondent has denied these allegations. Complaint paragraph 8(b) alleges that during the period Feb- ruary 15 through April 12, 2000, Respondent granted the fol- lowing “benefits” to its meat market employees: (1) Added a refrigerator, microwave, and speakers to the breakroom; (2) added a coat cabinet in the market; (3) purchased new knives and sharpener; and (4) repaired the drain in the market. Com- plaint paragraph 19 alleges that this “grant of benefits” violated Section 8(a)(1) and complaint paragraph 20 alleges that it vio- lated Section 8(a)(3). Respondent denies these allegations. In sum, complaint paragraph 7(d) alleges that Respondent’s managers asked employees if they had any complaints about working conditions and complaint paragraph 8(b) alleges that Respondent, acting on this information, made improvements. The Government contends that these actions, taken after the Union filed its representation petition and before the election, constituted unfair labor practices. WAL-MART STORES 281 Before discussing the evidence, it may be helpful to state as precisely as possible what does, and what does not, constitute an unlawful solicitation of grievances. In very general terms, the law recognizes that employers may try to counter a union organizing drive either by using a “stick,” such as threats of retaliation, or by using a “carrot,” the promise of benefits. The law proscribes both tactics. Thus, even though Section 8(c) of the Act recognizes an employer’s right to express its views to employees in noncoercive speech, an employer has no right to make a “threat of reprisal or force or promise of benefit.” Board precedents establish that such a promise of benefits does not have to be explicit to be unlawful. Under some circum- stances, when a manager asks an employee to identify problems related to working conditions, the question itself may imply that the manager will act favorably on the employee’s response. Such an invitation to discuss problems may be tantamount to a promise to remedy them. If made during a union organizing campaign, such an implied promise may violate Section 8(a)(1). Stated another way, if a question about working conditions really consti- tutes a promise of benefit, then such a promise takes the question outside the protection of Section 8(c). Obviously, in all industries, supervisors and managers ask employees questions about working conditions all the time. Doing so is an essential part of supervision. Normally, em- ployees would not understand such questions to be veiled promises that they will gain some benefit if they vote against a union. Reasonably, employees only would infer such a quid pro quo during a union organizing drive. Moreover, even dur- ing an organizing drive, employees reasonably would not re- gard a question to be such a promise if, before the organizing drive began, management routinely asked similar questions for legitimate purposes. In Laboratory Corp. of America Holdings, 333 NLRB 284 (2001), the Board reversed an administrative law judge’s deci- sion that a corporate vice president had not unlawfully solicited grievances when the official met with a known union supporter to find out if she was unhappy and “to see if he couldn’t help change things.” The vice president granted the employee’s request for a longer lunchbreak and said he would look into another matter the employee had raised. The judge found the vice president’s comments too ambigu- ous to violate Section 8(a)(1). Reversing that holding, the Board noted that Respondent had failed to show that it had a practice, in existence before the union organizing campaign, of holding meetings with employees to solicit grievances. Quot- ing Maple Grove Health Care Center, 330 NLRB 775 (2000), the Board set out the relevant principles: Absent a previous practice of doing so . . . the solicitation of grievances during an organizational campaign accompanied by a promise, expressed or implied, to remedy such griev- ances violates the Act. [I]t is the promise, expressed or im- plied, to remedy the grievances that constitutes the essence of the violation. [T]he solicitation of grievances in the midst of a union campaign inherently constitutes an implied promise to remedy the grievances. Furthermore, the fact an employer’s representative does not make a commitment to specifically take corrective action does not abrogate the anticipation of improved conditions expectable for the employees involved. [T]he inference that an employer is going to remedy the same when it solicits grievances in a preelection setting is a rebut- table one. However, not every solicitous remark constitutes an unlaw- ful solicitation of grievances. In EFCO Corp., 327 NLRB 372 (1998), employees came to the respondent’s president to dis- cuss working conditions. The president met with the employ- ees pursuant to the company’s “open door” policy. Reversing its administrative law judge, the Board held that “an employer does not unlawfully solicit grievances where, as here, employ- ees on their own accord approach management to discuss prob- lems, and a fortiori where, as here, the employer maintained a prior open door policy and there is no evidence that any prom- ises were made to employees.” See also Flamingo Hilton- Laughlin, 324 NLRB 72 (1997). In the present case, the Government alleges that Respon- dent’s merchandiser, Kelly Clifton, solicited grievances. The Government also alleges that other officials, identified only as among those alleged to be supervisors in complaint paragraph 6(b), also solicited grievances. However, the record does not establish any specific conversation, like that described in Labo- ratory Corp., supra, in which a supervisor asked any question which would reasonably be understood as an implied promise. As the Board stated in Laboratory Corp., supra, it “is the promise, expressed or implied, to remedy the grievances that constitutes the essence of the violation.” Because the essence of the violation lies in the promise, the General Counsel must prove that Respondent has communicated such a promise, ex- press or implied, either by its words or actions. It is true that in Laboratory Corp., supra, the Board also stated that the solicitation of grievances during a union organiz- ing campaign inherently constitutes an implied promise to rem- edy them. That language seems to create an evidentiary pre- sumption concerning how a particular question will be inter- preted: During an organizing campaign, a “solicitation of griev- ances” will be presumed to carry the unlawful promise. How- ever, this presumption does not change the requirement that an employer must pose the question to employees: “What are your gripes?” If employees initiate the contact with management, as in EFCO Corp., supra, then the employer is not soliciting griev- ances; it is merely answering questions, which is totally lawful, so long as the answers do not convey a promise of benefits linked to union activities. Therefore, to prove an unlawful solicitation of grievances, the General Counsel must establish that a manager or supervisor said or did something to prompt employees to complain. Merely being willing to listen, having an “open door” policy, is not enough. The present record does not establish a particular instance in which a manager encouraged an employee to offer grievances or complaints about working conditions. Due process requires such evidence. Even assuming a presumption that any solicita- tion of grievances during an organizing campaign carries an implied promise to remedy the grievance, a respondent still must have the opportunity to rebut such a presumption by pointing to the specific circumstances and arguing either that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 282 the conduct did not constitute a solicitation, or that manage- ment’s response did not constitute a promise of benefits some- how linked to union activities. In this case, the record establishes only that Respondent’s merchandiser, Kelly Clifton, spent more time at the store during the organizing campaign than he normally did. However, the record also shows that while at the store, Clifton did exactly what he had done before the organizing campaign. In accor- dance with Respondent’s general “MBWA” philosophy, Clifton “managed by walking around.” During such management by walking around, Clifton neces- sarily spoke with employees about many matters, including working conditions. The whole point of “MBWA” is to pluck the manager out of his ivory tower office, where he must rely on hearsay, often double or triple hearsay, and place him in the middle of the action, where he will receive more accurate in- formation first-hand. Respondent’s management philosophy also espouses a some- what similar concept of “servant leadership,” in which supervi- sors work along with employees, learning about problems and frustrations by experiencing them. Respondent had imple- mented its “MBWA” and “servant leadership” principles long before the union organizing campaign. From Clifton’s testi- mony, which I credit, I find that Respondent had been using these techniques for at least a decade. In view of this previous practice, I conclude that Respondent did not unlawfully solicit grievances during the union organiz- ing campaign. Therefore, I recommend that the Board dismiss the allegations raised in complaint paragraphs 7(d) and (m). Complaint paragraph 8(b) alleges that Respondent granted certain benefits to employees. The evidence establishes that Respondent did put a refrigerator in the employee breakroom sometime in February 2000. However, it is uncertain whether this action took place before or after the filing of the representa- tion petition on February 15. Store Manager Stacy credibly testified that a few days before Respondent brought in the refrigerator, employees had re- quested one. However, he added, having a refrigerator in a breakroom was nothing unusual and “In any store I’ve been at we’ve always had it.” The record does not indicate that Respondent made any statement to employees linking the refrigerator in any way to the union organizing campaign. Additionally, no evidence establishes that Respondent decided to install the refrigerator because of the union organizing campaign. For these reasons, I conclude that installation of the refrigerator did not violate Section 8(a)(1) of the Act. The complaint also alleges that this action violated Section 8(a)(3) of the Act. Following the Wright Line analysis dis- cussed above, I find that the General Counsel has not estab- lished any of the requisite four elements. In particular, it is difficult to understand how putting a refrigerator in a break- room could constitute an “adverse employment action.” There- fore, I recommend that this 8(a)(3) allegation be dismissed. For the same reasons, I conclude that placing a microwave oven and speakers in the breakroom did not violate either Sec- tion 8(a)(1) or (3) of the Act. In this regard, it may be noted that Respondent placed the speakers in the breakroom so that employees could hear announcements broadcast over the public address system. Doing so may serve Respondent’s interest in making the workplace more efficient, but is not the sort of benefit which reasonably would make employees want to vote against union representation. Complaint paragraph 8(b) also alleges that Respondent added a coat cabinet, purchased new knives and a knife sharp- ener, and repaired the meat market drain. The record does not establish that Respondent made any statements which linked such changes to the union organizing drive. All of these changes constituted improvements making Respondent’s pro- duction process more efficient, and any benefits employees derived were incidental. The National Labor Relations Act does not require an em- ployer to leave a drain clogged so that employees would have to wade through waste water, become disgruntled, and there- fore vote for the union. Indeed, it would be quite extraordinary to conclude that the Act required a business to violate sanitation codes. Similarly, the Act does not keep an employer from equipping its workers with appropriate tools or giving them a place, away from the working area, where they can hang their coats. Of course, a hypothetical situation can be imagined in which an employer not only made such changes but also made unlaw- ful statements about them. However, in this case, Respondent made no such statements. Moreover, the changes, such as fix- ing a drain or buying sharper knives, communicate no antiunion message. These changes do not interfere with, restrain, or coerce em- ployees in the exercise of Section 7 rights. Therefore, I rec- ommend that the Board dismiss the 8(a)(1) allegations predi- cated on these changes, specifically, the allegations raised in complaint paragraphs 7(d) and (m). Additionally, the changes do not constitute an adverse em- ployment action within the meaning of Wright Line. There is no basis to conclude that they constitute discrimination against any employee to discourage membership in a labor organiza- tion. Concluding that these changes do not violate Section 8(a)(3), I recommend that the Board dismiss all allegations raised by complaint paragraph 8(b). (e) Complaint paragraphs 7(e), (f), (g), (h), (i), (j), and (k) As stated above, after the hearing, the General Counsel with- drew the allegations raised by complaint paragraphs 7(e) through (k). (f) Complaint paragraph 7(l) Complaint paragraph 7(l) alleges that Respondent, at the Pal- estine, Texas facility, about February 15 through April 12, 2000, restrained employees’ union activities by placing high level management officials in the market. Complaint paragraph 19 alleges that this conduct violated Section 8(a)(1) of the Act. Respondent denies this allegation. It may be noted that this allegation is significant for what it does not say. In a typical case, the General Counsel will allege that an employer interfered with the exercise of Section 7 rights by engaging in surveillance of employees’ union activities or WAL-MART STORES 283 by creating the impression of such surveillance. However, complaint paragraph 7(l) does not allege that Respondent’s managers either engaged in surveillance of union activities or created the impression of such surveillance. It simply alleges that management officials were present in the market. In some cases, the Government alleges that supervisors en- gaged in specific harassing behavior, such as following em- ployees to the restroom. See, e.g., Fieldcrest Cannon, Inc., 318 NLRB 470 (1995). In the present case, however, the General Counsel does not allege, and the record does not establish, that managers followed employees around during their nonworking time. Indeed, complaint paragraph 7(l) does not assert that the supervisors were offensive in any way; it doesn’t even allege that they had body odor. By the literal terms of complaint paragraph 7(l), the mere presence of the supervisors sufficed to violate the Act. Under some circumstances, proving the mere presence of an individual at a particular location where he is not supposed to be can help establish a violation of the Act. For example, evi- dence showing the presence of a picket at a gate reserved for neutrals is quite relevant to establishing a violation of Section 8(b)(4). Likewise, in considering surveillance in violation of Section 8(a)(1), no one would doubt the relevance of evidence showing that a supervisor with binoculars lingered near the union hall. Such instances, however, entail a person showing up somewhere he really shouldn’t be or where, at the very least, his presence affords a legitimate cause for suspicion. The present complaint does not allege that Respondent in- structed its managers to go to any improper or suspicious loca- tion. It simply alleges that Respondent placed them in one of its own facilities. Obviously, the Act does not prohibit supervisors from being on their employer’s premises. It also doesn’t purport to define how many supervisors at a particular location are too many. Less obviously, but most significantly, the Act does not pre- sume that a manager is present at a facility for an unlawful purpose. Even if a corporation’s chief executive officer ap- peared every day at a particular facility, his presence does not constitute unlawful or objectionable behavior, and we may not infer simply from his presence that he has committed, or in- tends to commit, any unlawful act. The record establishes only that during the critical period be- tween the filing of the petition and the election, certain man- agement personnel, notably the merchandiser and some labor relations personnel, appeared more frequently at the store. The labor relation’s staff members conducted meetings with super- visors, and other meetings with employees, explaining the Act and Board procedures. They also made themselves available to answer questions. The evidence does not establish, however, that they did anything unlawful, such as soliciting grievances. In sum, complaint language stating that an employer “re- strained employees’ union activities by placing high level man- agement officials in the market” does not allege a violation of the Act. Moreover, the record does not establish that any of the management officials who appeared at the store violated the Act. Therefore, I recommend that the allegations in complaint paragraph 7(l) be dismissed. (g) Complaint paragraph 8(c) As amended at hearing, complaint paragraph 8(c) alleges that in about January 2000, the exact date being unknown, Respon- dent gave employee Mary Rogers a wage increase. Complaint paragraphs 19 and 20 allege that this action violated Section 8(a)(1) and (3), respectively. Respondent has denied the al- leged violations. Store Manager Stacy credibly testified that in about Decem- ber 1999, employee Rogers had complained to him that she wasn’t receiving the correct amount of pay. Stacy checked the records and concluded that Rogers was correct. However, to be sure, he asked Vicky Dodson, of Respondent’s personnel de- partment, to come to the store and examine the records. When Dodson arrived at the store and examined records, she con- firmed that Rogers’ pay was incorrect and recommended an adjustment, which Stacy implemented. Before the General Counsel amended the complaint orally at hearing, it alleged that Rogers received this pay increase in March 2000, which would have placed it within the critical period between the filing of the petition and the election. How- ever, payroll records place the wage increase around January 15, 2000, a month before the Union filed the petition. This early date is consistent with Stacy’s testimony that he did not know about the union organizing campaign when he asked the personnel specialist to check on Rogers’ pay rate. Based on my observations of the witnesses, I believe that Stacy’s testimony is reliable, and credit it. Even though the complaint alleges that Rogers was the sub- ject of unlawful discrimination, the General Counsel did not call her to the witness stand. The Government’s failure to pre- sent this witness certainly does not help its case. Almost invariably in an unfair labor practice proceeding, the General Counsel will call to the witness stand the persons named in the complaint as being the subjects of discrimination. Such persons have singular knowledge of their own protected activities. Often, their testimony also establishes other neces- sary elements of the Government’s case. In the present case, however, the General Counsel did not call Rogers, and I will not simply assume that her testimony would have been favor- able to the Government’s case. In deciding whether the pay increase violated Section 8(a)(3), as alleged, I first consider whether to analyze the facts under the Wright Line framework. The Board applies Wright Line in cases which turn on the employer’s motive. See Phoe- nix Transit Systems, 337 NLRB 510 (2002). Here, a violation does turn on Respondent’s motive. Such motive-related cases may be divided into two catego- ries: The employer’s stated motive may be a pretext, rather than the real one, or an employer may take an employment action for a mixture of lawful and unlawful reasons. Raising Rogers’ wage rate would seem to fall into the “pretext” category. Either Respondent acted simply to correct a mistake, as it claims, or else it increased her pay for some other, perhaps unlawful rea- son. No evidence establishes that a desire to discourage union membership motivated the Respondent’s action in any way. Certainly, the timing of the wage increase, a month before the Union filed its petition, does not raise suspicion. Nothing in the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 284 record suggests that any manager made any statement linking the pay raise to concerns about unionization. In sum, the evi- dence does not establish a violation. Moreover, examining the facts within a Wright Line frame- work, it is clear that the General Counsel has not established that Rogers engaged in protected activities. Similarly, the Gov- ernment has not proven that management had any awareness, or even beliefs about, Rogers’ union sympathies. The evidence also fails to establish the fourth Wright Line element, a connec- tion between protected activities and the employment action in question. In looking at the facts from a Wright Line perspective, I have assumed that a wage increase might be considered an “adverse” employment action because of the literal wording of Section 8(a)(3) of the Act. That provision does not prohibit discrimina- tion against an employee but, more exactly, “discrimination in regard to hire or tenure of employment or any term or condition of employment.” 29 U.S.C. Section 158(a)(3). “Discrimina- tion” simply connotes a difference in treatment, so it could include a wage increase as well as a wage reduction. Nonetheless, it is clear that under a Wright Line framework, the evidence fails to establish three of the four essential ele- ments. The facts fall short of establishing a violation either under Wright Line or otherwise. Therefore, I recommend that the Board dismiss the allegations raised by complaint paragraph 8(c). The Union’s Objections in Case 16–RC–10181 After the April 12, 2000 election at the Palestine facility, Lo- cal 455 filed timely objections, which are in evidence as Gen- eral Counsel’s Exhibit 1(u). Many of the 16 objections appear to be coextensive with the unfair labor practice allegations dis- cussed above. Unfortunately, the Union’s posthearing brief did not focus on individual objections, cite evidence supporting the various objections, or describe how any particular objection depended on facts different from the alleged unfair labor prac- tices. Such briefing would have been exceptionally helpful in this case because after the hearing closed, the General Counsel withdrew a substantial number of the 8(a)(1) allegations, pre- sumably for want of proof. Regardless of the fate of any par- ticular unfair labor practice allegation, I will consider each objection carefully in light of the entire record. 1. Objection 1 states as follows: During the critical period [February 15, 2000 to April 12, 2000], the Employer, objectionably and unlawfully, “packed” the unit by transferring employees from non-unit positions into the unit positions, which employees the Employer be- lieved and expected would vote against the Petitioner. At least in part, this objection depends on the same evidence as the unfair labor practice allegations raised in complaint para- graphs 7(a) and 8(a). As discussed above, the evidence estab- lishes that Respondent transferred three employees into the meat department effective February 5, 2000. That action took place 10 days before the critical period began. Moreover, the record fails to establish that Respondent made these transfers for any reason other than filling vacancies and assuring that the meat department had sufficient staff. Because these transfers took place before the critical period began, and because the evidence establishes that Respondent made the transfers for legitimate business reasons unrelated to the union organizing campaign, they do constitute objection- able conduct. Additionally, the record does not establish that Respondent made other transfers into the meat department for reasons re- lated to the Union’s organizing campaign. Therefore, I recom- mend that objection 1 be overruled. 2. Objection 2 states as follows: During the critical period, the employer granted pay increases and other improvements in terms and conditions of employ- ment and/or other inducements to the employees referred to in Objection 1 to induce and further induce them to oppose and vote against the Union. As discussed above, the record establishes that Respondent increased the pay of certain employees, including Mary Rogers. However, credible evidence does not demonstrate that Respon- dent took these actions in response to the Union’s organizing campaign rather than to correct mistakes. Additionally, docu- mentary evidence establishes that Respondent adjusted Rogers’ pay in January 2000, before the critical period began. In other respects, the record does not establish the facts al- leged in this objection. Therefore, I recommend that objection 2 be overruled. 3. Objection 3 states as follows: During the critical period, the Employer reassigned and/or transferred unit employees to non-unit positions and jobs in an objectionable and unlawful effort to render such employee[s] ineligible to vote in the election because the Employer per- ceived such employees to be Union supporters who would vote in favor of the Petitioner. Credible evidence does not support this objection. There- fore, I recommend that objection 3 be overruled. 4. Objection 4 states as follows: During the critical period, the Employer took the action de- tailed in Objection 3 above against one of the referred to em- ployees to unlawfully discriminate and retaliate against and impose more onerous working conditions on said employee because of the employee’s Union and other protected, con- certed activities. The meaning of this objection is not entirely clear. As I in- terpret it, the Union alleges that Respondent transferred an employee out of the meat department not merely to decrease the number of prounion votes, but also to punish the employee for supporting the Union. If my understanding is correct, then the Union is asserting, in essence, that the transfer violated Section 8(a)(3), causing a chilling effect. In other words, the Union appears to be asserting in Objec- tion 3 that transfers out of the unit interfered with a fair election by diluting its strength and further contending, in Objection 4, that one of the transfers made the remaining employees reluc- tant to vote for the Union because of the fear of retaliation. WAL-MART STORES 285 The complaint does not allege that Respondent unlawfully discriminated by transferring an employee out of the meat de- partment. More fundamentally, the record does not establish such a fact. Therefore, I recommend that the Board overrule objection 4. 5. Objection 5 states as follows: During the critical period, the Employer solicited grievances and/or complaints from employees concerning their wages, hours, working conditions and other terms and conditions of employment and implicitly and/or explicitly promised to rem- edy such grievances and/or complaints and thereby objec- tionably and unlawfully sought to dissuade them from sup- porting the Union. After the hearing closed, the General Counsel withdrew complaint paragraph 7(f), which had alleged that Respondent had engaged in an unlawful solicitation of grievances. Addi- tionally, I have found that the Government has failed to estab- lish the solicitation of grievances alleged in complaint para- graph 7(d). More generally, no credible evidence establishes that Re- spondent solicited grievances or promised to remedy such complaints. Therefore, I recommend that the Board overrule objection 5. 6. Objection 6 states as follows: During the critical period, the Employer promised and/or granted unit employees promotions, raises, manage- ment/supervisory positions, management training opportuni- ties, transfers to higher paying jobs and/or positions and other inducements in an objectionable and unlawful effort to dis- suade such employees from supporting or voting for the Un- ion. No evidence supports this objection. Therefore, I recom- mend that the Board overrule it. 7. Objection 7 states as follows: During the critical period, the Employer made improvements in employees’ working conditions and the tools and equip- ment that they used to dissuade employees from supporting the Union. This objection concerns the same conduct described in com- plaint paragraph 8(b), and the record discloses no other in- stances of similar actions. For the reasons discussed above, I have found that these actions did not violate Section 8(a)(1) or (3) of the Act. However, that conclusion does not end the in- quiry because some conduct may be objectionable, and warrant setting aside the election, even though it does not constitute an unfair labor practice. In Noah’s Bay Area Bagels, LLC, 331 NLRB 188 (2000), the Board noted that the mere grant of benefits during the criti- cal period does not, per se, constitute grounds for setting aside an election. Rather, the critical inquiry is whether the benefits were granted for the purpose of influencing the employees’ vote in the election and were of a type reasonably calculated to have that effect. In the present case, Respondent made no statements to em- ployees which would associate the changes in working condi- tions with either the upcoming representation election or the Union’s organizing effort. No other evidence establishes that Respondent made these changes to influence how employees voted. To the contrary, I conclude that Respondent made the changes to improve production. Additionally, the changes were not of a type which reasona- bly would be calculated to have such an effect. For example, providing better knives and a sharpener to meatcutters bene- fited the Respondent as much, if not more than it did the em- ployees. The better equipment did not increase the employees’ compensation, but it would produce a foreseeable improvement in their production. Similarly, when Respondent installed speakers in the em- ployee breakroom, this action benefited Respondent by allow- ing the workers to hear announcements on the public address system. Providing employees a place to hang their coats also served Respondent’s need to reduce clutter in the workplace. When Respondent repaired a faulty drain, that action obviously constituted an improvement in working conditions, but Re- spondent would have had to take the same action even in the absence of a Union organizing drive simply to maintain ade- quate sanitation. The only changes which appeared to benefit employees more than Respondent involved putting a refrigerator and microwave oven in the breakroom. However, the record does not establish that Respondent installed these appliances to influence em- ployee sentiments about the Union, rather than merely to bring this particular breakroom up to the standards of breakrooms in Respondent’s other facilities. In sum, applying the standards expressed in Noah’s Bay Area Bagels, supra, I conclude that to the extent Respondent’s actions constitute a “grant of benefits,” they were not objec- tionable. Therefore, I recommend that the Board overrule ob- jection 7. 8. Objection 8 states as follows: During the critical period, the Employer objectionably and unlawfully told employees that they would/could lose the monies in their 401(k) and Profit Sharing Plans if the Union was selected as their collective-bargaining representative. The record does not support this objection and I recommend that it be overruled. 9. Objection 9 states as follows: During the critical period, the employer conducted an objec- tionable meeting with unit employees within 24 hours of the scheduled election. The record does not support this objection and I recommend that it be overruled. 10. Objection 10 states as follows: During the critical period, the employer objectionably and unlawfully informed unit employees that employees lawfully eligible to vote in the election would not be permitted to do so. The record does not support this objection and I recommend that it be overruled. 11. Objection 11 states as follows: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286 During the critical period, the Employer created the impres- sion among unit employee that Unionism would be futile and expressly and/or implicitly told employees that the Employer would not bargain in good faith with the Union if it was se- lected as the unit employees’ collective bargaining representa- tive. It appears that this objection parallels the allegations in com- plaint paragraphs 7(i) and (j), which the General Counsel with- drew. No evidence supports this objection and I recommend that the Board overrule it. 12. Objection 12 states as follows: During the critical period, the Employer told employees that Unionization would be futile and expressly and/or implicitly informed employees that the Employer would engage in unlawful bad-faith bargaining. This objection appears to be simply a paraphrase of objection 11. In any event, the record does not support this objection and I recommend that it be overruled. 13. Objection 13 states as follows: During the critical period, the Employer told employees that, even though the employees might be able to win an election, Wal-Mart would never bargain with the Union and Wal-Mart would never sign a contract with the Union. This objection also appears to be a paraphrase of objections 11 and 12. Evidence does not support the objection and I rec- ommend that the Board overrule it. 14. Objection 14 states as follows: During the critical period, the Employer, acting through managers, supervisors, and corporate headquarters personnel, eased the regular work burden on unit employees by, [A]mong other things, performing portions of the employees’ job duties and work tasks in order to objectionably and unlaw- fully dissuade unit employees from supporting the Union. The record establishes that well before the union organizing campaign, Respondent had promulgated policies of “managing by walking around” and “servant leadership” which encouraged managers to work alongside employees. Management person- nel did work in the Palestine facility during the critical period, but no evidence suggests that any manager or supervisor ever told an employee that he was reducing the employee’s work burden because of the union organizing campaign or to influ- ence the employee’s vote. In these circumstances, the managers’ actions did not consti- tute conduct warranting setting the election aside. Therefore, I recommend that the Board overrule objection 14. 15. Objection 15 states as follows: During the critical period, the Employer engaged in the objec- tionable and unlawful conduct detailed in the Charge in Case 16–CA–20321. On March 13, 2000, the Union filed an unfair labor practice charge against Respondent in Case 16–CA–20321. The Union alleged, in part, that Respondent unlawfully devised and an- nounced the implementation of a plan to stock the meat de- partment with case-ready meat, thereby changing the job duties of certain employees. The Union also asked the Board to seek an injunction in Federal court to stop Respondent from making this change. On February 28, 2001, the Regional Director for Region 16 dismissed portions of this charge pertaining to the Respon- dent’s Jacksonville, Texas store. The dismissal letter con- cluded, in part, as follows: The evidence demonstrated that the Employer decided prior to the start of the Union activity [at Jacksonville] to expand the case-ready beef program, thus sustaining the Company’s Wright Line defense. Additionally, the evidence was found to be insufficient to show that the Employer accelerated its trans- formation to case-ready beef in retaliation for the Union activ- ity of its employees. The Union appealed this partial dismissal, but the Office of Appeals denied the appeal. Additionally, the Board did not seek the injunctive relief which the Union had requested. Case 16–CA–20321 is not part of the present consolidated proceeding. The complaint in the present case does not allege that Respondent violated the Act by announcing and imple- menting a change to case-ready meat. It does allege, as dis- cussed more fully below, that Respondent unlawfully refused to bargain about the effects of this change on the meat department employees at Jacksonville. The General Counsel has broad prosecutorial discretion de- ciding whether to prosecute or dismiss allegations raised by a charge. Similarly, the General Counsel possesses the authority to define and limit the theory under which an unfair labor prac- tice case is prosecuted. The General Counsel has chosen not to allege that Respondent committed unfair labor practices by changing to case-ready meat, and that issue is not before me. For the same reason, in the unfair labor practice context, I need not consider the Union’s claim that Respondent unlawfully accelerated the change to case-ready meat. The General Counsel’s prosecutorial discretion pertains to the enforcement of Section 8 of the Act, which defines and prohibits various unfair labor practices. This prosecutorial discretion does not extend to issues arising under Section 9 of the Act, which applies to representation proceedings. The Gen- eral Counsel’s decision that certain conduct does not warrant issuance of a complaint does not resolve the question of whether that same conduct affects the fairness of an election. The Board has long held that actions which do not violate Sec- tion 8 may still upset the laboratory conditions necessary for a fair election under Section 9 of the Act. General Shoe Corp., 77 NLRB 124 (1948). Regardless of the General Counsel’s decision to dismiss por- tions of the charge in Case 16–CA–20231, I must examine whether Respondent’s change to case-ready meat, and its tim- ing of that decision, affected the laboratory conditions sur- rounding the April 12, 2000 election at the Palestine facility. Respondent had announced its intention to switch to case-ready meat on February 28, 2000, so there is no doubt voters knew about this anticipated change on election day. The evidence does not establish that Respondent held this contemplated change as a threat “over the heads” of the em- WAL-MART STORES 287 ployees to influence their voting. To the contrary, Respondent pointedly assured employees that no one would lose his job or suffer a pay cut. Moreover, Respondent consistently described this decision as final and based upon business considerations, and not as something tentative which might be affected by the outcome of the election. In these circumstances, the announced change to case-ready meat did not affect the laboratory conditions necessary to as- sure a fair election. Therefore, I recommend that the Board overrule objection 15. 16. Objection 16 states as follows: During the critical period, the employer engaged in other acts that restrained, coerced and interfered with employees in the exercise of their Section 7 rights and/or other acts of discrimi- nation against employees because of their Union and other protected, concerted activities and/or other acts of discrimina- tion in favor or [sic] employees because of their Employer perceived anti-Union sentiments and/or other acts of objec- tionable conduct and/or conduct that affected the outcome and results of the election. This objection does not point to particular instances of al- leged improper conduct. The present record does not establish such conduct. Therefore, I recommend that the Board overrule objection 16. Summary The record fails to support the Union’s objections in Case 16–RC–10181. Therefore, I recommend that the Board over- rule these objections and certify the results of the April 12, 2000 election. Respondent contends that the change to case-ready meat ren- dered the voting unit an inappropriate one for collective bar- gaining. This argument will be discussed further, below, in connection with the allegations involving Respondent’s Jack- sonville, Texas facility. However, in view of my recommenda- tion that the Board overrule the Union’s objections and certify the results of the election, I do not believe it is necessary to examine whether the Palestine voting unit continues to be an appropriate one for collective bargaining. 2. Respondent’s Jacksonville, Texas facility (a) Background Section 9(b) of the Act directs the Board to “decide in each case whether, in order to assure to employees the fullest free- dom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof . . . .” In making such determinations, the Board looks to whether a “community of interest” unites the employees in a particular proposed bargaining unit. If all employees in a bar- gaining unit share such a community of interest, the unit will function like a canoe in which all occupants are paddling in the same direction. However, if the unit consists of employee groups with conflicting interests, the canoe more likely will go in circles rather than towards a common goal. Historically, the interests of highly skilled members of a craft may differ from those of other employees whose jobs do not require the same training and experience. For one thing, the two employee groups may well disagree concerning how much the employer should reward the craft members for their special skills. Less tangibly, the rigors of acquiring a body of special- ized knowledge establish a bond between craft members which distinguishes their relationships with each other from their rela- tionships with employees outside the craft. The Board has long recognized that the special cohesiveness fostered by membership in a craft can create a community of interest distinct from that of other employees. In the retail in- dustry, for example, the Board considers storewide units pre- sumptively appropriate but historically, it also has presumed that a unit of meatcutters will be appropriate because of the special skills shared by members of their craft. In recent decades, however, profound changes have affected the work of meatcutters. Not so long ago, grocery customers typically could look over the refrigerated meat cases and through the cutting room window to see beef carcasses hanging on hooks near the butcher block. That sight has disappeared from many, if not most, supermarkets. The change came in stages. First, the work of dividing an entire carcass into large seg- ments (“primals”) moved from the supermarket to the packing house. At the store level, meatcutters began receiving the par- tially cut meat and commonly called it “boxed” meat, a term which can be confusing. Although boxed for shipment to the meatcutters, such meat is not yet ready for display and sale to the public. At the store, the meatcutters still must cut the boxed meat into the smaller pieces desired by customers. This work, although not as extensive as cutting up an entire carcass, re- quires specialized knowledge. More recently, some supermarkets have begun receiving meat in small plastic-wrapped packages ready for display and sale to the public. This “case-ready” meat does not require further cutting or even labeling. Employees handling this product draw on skills little different from those of sales asso- ciates who place cans of soup or boxes of cereal on the appro- priate shelves. In Scolari’s Warehouse Markets, 319 NLRB 153 (1995), the Board decided how the amount of meat cutting skill would affect the appropriateness of a meat department bargaining unit. A “traditional” meat department depended on members of a craft using the full panoply of meat cutting skills. Such a meat department could not function without the craftsmen, and a unit organized along craft lines was appropriate. Significantly, not all employees in the unit would possess the skills of a journey- man craftsman, but the work of the department centered on these traditional skills. The skilled meatcutters anchored the unit and made it distinct from other parts of the grocery store. In other stores, where meatcutters only used the limited skills needed to finish the processing of “boxed” meat, these limited skills did not warrant a unit centered on a traditional craft. However, the Board held in Scolari’s that the limited meat cut- ting skills still distinguished these employees from those in other parts of the store. So it was appropriate to consider whether a separate unit of meat department employees would be appropriate under the “community of interest” standards the Board applies in noncraft situations. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288 Thus, the Board might find a separate meat department unit appropriate if the evidence showed that meat department em- ployees differed from other store workers in a number of sig- nificant ways, for example, if they had separate supervisors, earned different wage rates, and seldom transferred to other parts of the store. Applying this analysis to the facts in Sco- lari’s, the Board found a separate unit of meat department em- ployees appropriate: In sum, we find that the following factors: (a) the substantial portion of the Employer’s meat department business involv- ing boxed meat; (b) the continued application of specialized meat cutting skills necessary for the processing of the boxed meat; (c) the higher level of training of meatcutters; (d) the substantial percentage of the unit engaged in skilled meat cut- ting work; (e) separate supervision; (f) limited interchange and transfers; and (g) higher wages, outweigh the factors of common benefits and limited skills necessary for handling the Employer’s case-ready meats, and support a finding that the meat department employees have a distinct community of in- terest apart from that of the Employer’s other employees. 319 NLRB at 158 (emphasis added). As the Scolari’s decision illustrates, the Board weighs the competing factors to determine the appropriateness of the sepa- rate meat department unit. In a meat department which exclu- sively uses case-ready meat, employees do not need any meat cutting skills. Therefore, this factor no longer can weigh in favor of a separate meat department unit. Will removal of this skill factor tip the balance against finding the separate unit appropriate? This question cannot easily be answered in the abstract be- cause it depends on the weights assigned to the other factors, which in turn depend on the particular facts. A hypothetical situation certainly can be imagined in which no meat depart- ment employees cut any meat at all, worked under entirely separate supervision from other employees, earned considera- bly different wages, never transferred to a different department, were required to complete a training course about the standards of the National Livestock and Meat Board, and had to be able to answer customer questions about arcane meat matters such as how to cook a goat. The appropriateness of this hypothetical meat department would not turn on the absence of meat cutting. In the real world, however, cost considerations might make such a meat department highly improbable. The point is simply that generalities do not suffice; each case must be decided on its specific facts. Still, it may be observed that the limited skills exercised by meatcutters when processing boxed meat constitute an impor- tant factor entitled to considerable weight. In Ray’s Sentry, 319 NLRB 724 (1995), the Board reversed a Regional Director’s determination that a separate unit of bakery and delicatessen employees was appropriate. The Regional Director had relied on cases finding separate meat department units appropriate but the Board found its Scolari’s decision distinguishable: [T]he meat department employees [in Scolari’s] had a sufficiently distinct community of interest from other em- ployees at the supermarkets involved that a separate meat department unit was warranted. However, there, in addi- tion to other factors demonstrating their distinct commu- nity of interest, the meatcutters in Scolari’s continued to exercise many of the traditional craft skills and had exten- sive meatcutter training or were apprentice meatcutters. As indicated above, it has not been demonstrated that the bakery/deli employees here possess or exercise such skills or require such training. Accordingly, we find that the bakery/deli unit is inap- propriate. 319 NLRB at 724. In the present case, Respondent asserts that its conversion from “boxed” meat to case-ready meat rendered inappropriate a previously-certified unit of meat department employees at its Jacksonville, Texas store. Further, it contends that when the unit became inappropriate, Respondent no longer had an obli- gation to bargain with the Union concerning employees in that unit. (b) The Jacksonville unit On December 28, 1999, Local 540 filed a petition to repre- sent a unit of meat department employees at Respondent’s Jacksonville store. In keeping with its standard procedures in representation cases, the Board’s Regional Office conducted a hearing concerning the meat department employees. Although Respondent took part in this hearing, it did not announce that it planned to end all its meat cutting and change exclusively to case-ready meat. Similarly, Respondent did not present any evidence to this effect. After the hearing, the Acting Regional Director issued a January 26, 2000 Decision and Direction of Election finding that the meat department employees shared a community of interest separate from that of other store employees. Conclud- ing that the meat department employees constituted an appro- priate unit for collective bargaining, the Acting Regional Direc- tor wrote: Critical to my determination are factors addressing the level and depth of meatcutting skills exercised by the Employer’s meat processors and how these employees handle the boxed red meat that arrives in the meat department for eventual sale to customers. The record reflects that 30% of the Employer’s meat sales are derived from boxed red meat. This figure is comparable to those percentages of boxed meat sales found to be a substantial portion of an employer’s meat business in Scolari’s Warehouse Markets, Inc., 319 NLRB at 157, and Super K-Mart Center, 323 NLRB at 587. More importantly, record evidence shows that meat processors spend approxi- mately 75% of their time at work cutting boxed meat and pre- paring it for sale to customers. This figure does not include the additional 10% of time spent by meat processors to unload the meat from the trucks. Hence, these percentages reflect that meat processors spend a significant part of their time handling and cutting boxed meat, particularly when compared to the time meat processors spend meatcutting at other stores of the Employer. See, e.g., Wal-Mart Stores, Inc., 328 NLRB [904, 905 (1999)]. A number of other factors weighed against finding that meat department employees shared a community of interest distinct WAL-MART STORES 289 from others in the store. For example, meat, deli, dairy, and grocery department employees worked together to unload re- frigerated and frozen food products. Sometimes, meat depart- ment employees served deli department customers and deli employees sometimes stocked meat cases. Moreover, some- times deli and meat department employees shared common supervision. Thus, the evidence in the representation hearing suggested that a unit broader than meat department employees might be appropriate. However, as the Acting Regional Director ob- served, a union is not required to petition for the most appropri- ate unit, only for an appropriate one. The Acting Regional Director noted that in challenging the appropriateness of a peti- tioned-for unit, an employer had to do more than show that some other unit might be more appropriate; the employer had to demonstrate that the petitioned-for unit itself was inappropriate. The Acting Regional Director concluded that Respondent had not carried this burden: Although the evidence reflects there is general interaction among employees at the Employer’s store and that employees share common benefits and bonuses and, to a certain limited extent, common supervision, these considerations do not out- weigh the other factors such as the substantial time meat de- partment employees spend in handling and cutting meat or the unique and special skills they exercise when performing these job duties. The Acting Regional Director therefore found that the fol- lowing, petitioned-for unit, was appropriate: INCLUDED: All full-time and regular part-time employees employed in the meat market at the Em- ployer’s retail store located at 1311 S. Jackson Street, Jacksonville, Texas. EXCLUDED: All other employees, including store managers, assistant managers, overnight managers, de- partment managers, personnel managers, of- fice clerical employees, professional employ- ees, guards and supervisors as defined in the Act. Respondent asked that the Board review and reverse the Acting Regional Director’s decision. However, its February 9, 2000 request for review did not mention any plan to eliminate meat cutting and go entirely to case-ready meat. Instead, Respondent argued that the Acting Regional Director had given unwar- ranted weight to the fact that employees did some meat cutting. Respondent contended that the percentage of meat cutting per- formed at the Jacksonville store was far less than the amount performed by the employees in Scolari’s and similar cases. The Board denied Respondent’s request for review. Under Section 102.67 of the Board’s rules, a request for re- view does not automatically postpone a scheduled election. On February 17, 2000, the Board conducted the election. The Un- ion received a majority of the valid votes cast. On February 23, 2000, Respondent filed objections to con- duct affecting the results of the election. These objections did not mention Respondent’s plan to phase out boxed meat and go exclusively to case-ready meat. However, on February 28, 2000, in connection with the representation hearing involving the Palestine store, Respondent did announce this plan. In early March 2000, Respondent advised its employees about the plan. On March 13, 2000, by hand-delivered letter, Local 540 re- quested that Respondent bargain with it concerning the Jack- sonville meat department employees. This letter alluded to the Respondent’s plan to eliminate meat cutting and use only case- ready meat: Wal-Mart has publicly announced its intent to change the way meatcutters do their jobs. You failed to notify to arrange for negotiations with the elected representative of employees concerning any changes in the Meat Market. UFCW Local 540 demands that you immediately ar- range for good faith negotiations with Meat Market em- ployees through their authorized representatives. The Union placed its demand for negotiations in a separate paragraph from its reference to the changes in the meat depart- ment, and it did not limit this demand to any specific subject. Therefore, it is possible that the March 13 letter constitutes a general demand that Respondent negotiate concerning all man- datory subjects of bargaining. However, from a letter which the Union’s lawyer sent to Respondent’s counsel several days later, it appears that the Union’s bargaining demand focused narrowly on Respondent’s announced case-ready meat program with its consequent elimination of meat cutting. In any event, I conclude that the Union’s March 13, 2000 let- ter constituted a demand to bargain over both Respondent’s decision to implement an exclusively case-ready meat program and the effects of that decision. The Union’s letter did not re- fer, simply and abstractly, to Respondent’s decision to use only case-ready meat; instead, it expressed concern about Respon- dent’s announced intent to change “the way meatcutters do their jobs.” This focus on the effects of the announced change makes clear that the Union sought to bargain over the effects of Respondent’s decision as well as the decision itself. On March 14, 2000, Respondent’s attorney replied to the Union’s May 13, 2000 letter by facsimile. This letter stated that because of “valid legal objections and challenges to the unit,” Respondent continued “to doubt in good faith that your organization represents a majority of any appropriate unit of Wal-Mart associates. Your request for immediate recognition as the collective-bargaining representative of the Meat associ- ates in the Wal-Mart store in Jacksonville is therefore denied . . . .” Respondent’s March 14, 2000 letter did not mention any plan to phase out meat cutting and go exclusively to case-ready meat. It did not address at all the Union’s statement that “Wal- Mart has publicly announced its intent to change the way meat- cutters do their jobs.” On March 28 and 29, 2000, a hearing officer took evidence concerning the Respondent’s objections to conduct affecting the February 17, 2000 election. Although Respondent took part in this hearing, it did not assert that the contemplated change to case-ready meat had made the unit inappropriate. On April 21, 2000, the hearing officer issued a report rec- ommending that the Board overrule the Respondent’s objec- tions and issue a certification of representative. Respondent DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 290 filed exceptions to the hearing officer’s recommendations. These exceptions did not mention Respondent’s plan to elimi- nate meat cutting and go exclusively to case-ready meat. By June 28, 2000 letter to Respondent’s Jacksonville store manager, Local 540 demanded “bargaining over a collective bargaining agreement for the store’s meat market employees.” On July 18, 2000, Local 540 sent Respondent two letters. One constituted a request for information and documents, and is described more fully below. The other renewed the Union’s demand to bargain “over your store’s change to case-ready meat.” The next day, Respondent’s counsel responded to these two letters by facsimile. This letter denied the Union’s requests for bargaining and for information. Significantly, this letter did mention the Respondent’s change to case-ready meat: “Wal- Mart continues to believe strongly that the Board’s Decision to proceed to an election in a meat department unit was not sup- ported by the facts or the law in this case, particularly in light of Wal-Mart’s implementation of its case-ready meat program in the Jacksonville store.” Jt. Exh. 9 (emphasis added). Even though Respondent’s July 19, 2000 letter refers to the case-ready meat program as a reason for invalidating the elec- tion, it did not present this argument to the Board. At least, it did not do so before the Board issued its August 9, 2000 Deci- sion and Certification of Representative in Case 16–RC–10168. In that action, the Board rejected Respondent’s objections, adopted the hearing officer’s report, and certified Local 540 as the exclusive bargaining representative of the meat department employees. The Board’s issuance of this Decision and Certification of Representative closed Case 16–RC–10168. As will be dis- cussed further below, the issues decided by the Board in that proceeding may not be relitigated now in the absence of newly- discovered evidence or unusual circumstances. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941). Notwithstanding the Board’s certification, Respondent has continued to refuse to recognize and bargain with the Union and has continued to refuse to provide the requested informa- tion. On August 21, 2000, Local 540 filed a charge against Respondent in Case 16–CA–20603. It alleged that Respondent had violated Section 8(a)(1) and (5) of the Act by refusing to bargain collectively and by failing and refusing to provide in- formation the Union had requested. Respondent does not deny that it continues to refuse to rec- ognize and bargain with the Union. It also does not deny that it has not provided the information requested by the Union on July 18, 2000. Instead, Respondent claims that it has no duty to take these actions because its conversion to an exclusively case- ready meat program, and the consequent elimination of all meat cutting, make the certified unit inappropriate. Additionally, Respondent raises a number of other defenses, including the statute of limitations provision found in Section 10(b) of the Act. Before considering Respondent’s defenses, I will first exam- ine whether Respondent’s conduct would be violative in the absence of a valid defense. If there is no violation, obviously, no defense at all is necessary. However, if Respondent’s con- duct is violative, I must also determine when the violation be- gan, a finding particularly relevant to Respondent’s 10(b) de- fense. Respondent could not have breached a duty to bargain with the Union unless it had such a duty. In general, an employer’s duty to bargain with a union begins when two things happen: First, a union must obtain the support of a majority of employ- ees in a unit appropriate for collective bargaining. Second, after obtaining such majority status, the union must make a demand to bargain; at that point, the employer has a duty to recognize the union and bargain with it. Therefore, I begin by determining when the Union attained majority status, which is its “birthday” as the unit’s exclusive bargaining representative. A baby’s birthday is the day she first draws breath and announces her arrival with a cry, not some later date when the Government issues a birth certificate. A similar principle applies here. Local 540 became the employ- ees’ representative on election day, February 17, 2000, when it received a majority of votes. The Board’s later certification simply confirmed this fact. On March 14, 2000, the Union demanded that Respondent bargain concerning implementation of the case-ready meat program. At that time, less than a month after the Union won the election, it clearly enjoyed majority status. Respondent therefore had a duty to bargain with the Union concerning mandatory subjects of collective bargaining. The complaint in this case does not allege that Respondent violated the Act by refusing to bargain concerning its decision to phase out meat cutting and use only case-ready meat. The General Counsel might have based this exercise of prosecuto- rial discretion on (1) a conclusion that Respondent made a final decision to implement the case-ready meat program before the Union attained majority status, or (2) a conclusion that imple- mentation of this program was not a mandatory subject of col- lective bargaining because of the Supreme Court’s decision in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), or (3) both. In any event, the complaint does not allege that Respondent violated the Act by refusing to bargain over its case-ready meat decision, and in the absence of such an allega- tion, I do not consider this question. However, the complaint does allege that Respondent violated the Act by refusing to bargain over the effects of that decision. For the reasons discussed above, I have concluded that the Un- ion’s March 13, 2000 letter constituted a demand to bargain about both the case-ready meat decision and its effects. At the time it sent this letter to Respondent, Local 540 already enjoyed the support of a majority of employees in the collective- bargaining unit, and was, therefore, the exclusive bargaining representative. Thus, on March 13, 2000, both conditions necessary to es- tablish a bargaining duty had been satisfied. Local 540 enjoyed majority support and it had made the demand to negotiate. Re- spondent therefore had a duty to negotiate over mandatory sub- jects of collective bargaining, which include the effects of its case-ready meat program on members of the bargaining unit. Absent a valid defense, Respondent’s March 14, 2000 refusal to engage in such negotiations violated the Act. WAL-MART STORES 291 Respondent’s statute of limitations defense is unavailing. Section 10(b) of the Act provides, in part, that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. . . .” 29 U.S.C. § 160(b). The Union filed a general refusal-to-bargain charge, in Case 16–CA–20603, on August 21, 2000, which is less than 6 months after Respon- dent’s March 14, 2000 refusal. It is true that the Union’s August 21, 2000 charge did not specifically refer to Respondent’s March 14, 2000 letter, but it did not have to be that specific. The charge alleged that Re- spondent “refused to collectively bargain with Local 540 over the terms and conditions of employment of its Jacksonville Supercenter meat department employees” and that language certainly is specific enough to toll the statute of limitations. Respondent also asserts that it had no duty to bargain with Local 540 because its conversion to only case-ready meat ren- dered the bargaining unit inappropriate. Based on the credited testimony of Store Manager Ronald McCall, I find that the Jacksonville store received its first shipment of case-ready meat sometime between June 17 and 20, 2000. According to McCall, it took about 30 days to sell all the remaining boxed meat, and after it was gone, the meat saws were cleaned and dismantled. Therefore, I conclude that Respondent’s employ- ees ceased cutting meat at the Jacksonville store in mid-July 2000. That date was 4 months after the Union’s demand to negotiate. Respondent contends, however, that the bargaining unit did not become inappropriate in July 2000, when the meat cutting ended, but much earlier, when management announced its case- ready meat plan. In its posthearing brief, Respondent argued: . . . Wal-Mart formally announced at the February 28, 2000 unit determination hearing in Palestine its plans to convert its meat departments to case-ready meat by the first week of Au- gust 2000. . . . Wal-Mart presented unrefuted evidence that all in-store cutting and handling of boxed meat would cease as a result of that program. The Union, the Region, and the pub- lic-at-large learned of Wal-Mart’s plans at that hearing. Un- der Board law, the Jacksonville unit ceased to exist the day that announcement was made. Respondent’s argument, however, is not consistent with the facts. It is true that during the Palestine representation hearing, Respondent presented evidence concerning its plans to convert to case-ready meat. However, this evidence failed to establish when such a change would take place. Similarly, it failed to establish that Respondent had made a firm decision to imple- ment the plan at its Palestine, Texas store, let alone at its Jack- sonville store. The Acting Regional Director’s decision direct- ing an election at the Palestine store considered Respondent’s evidence on this point and found it insufficient: At the hearing, the Employer provided a copy of a let- ter it sent to Iowa Beef Processors (IBP) on December 29, 1999, a copy of internal memos discussing case-ready beef, pork, lamb and veal discussions with potential sup- pliers, and a copy of documents that details the case-ready meat program implemented in Arkansas. The IBP letter discusses some details related to IBP’s agreement to begin sending prepackaged beef to the Employer’s distribution centers in Clarksville, Arkansas and Temple, Texas. This document does not reflect any specific dates as to when the case-ready beef will roll out of these distribution cen- ters, nor is the document signed by IBP. Employer Vice President Peterson testified that the issues underlying the vendor agreement with IBP still needed to be worked out and that a vendor agreement had not been executed. The record reflects that arrangements to inform the associates at affected stores such as Palestine were not undertaken until just a few days before the hearing. A substantially similar petition was filed by the Union on December 28, 1999, involving a store operated by the Employer in Jack- sonville, Texas. No evidence regarding the Employer’s case-ready meat program was offered at the hearing that was held in that matter on January 12 and 13, 2000. One meat processor testified that he was not made aware of the Employer’s intent to go to case-ready meat products until being so informed through hearing testimony. Peterson testified that no exact dates had been previously set or an- nounced because of the need to work out precise and exact dates with IBP for the perishable products that would be involved with the changeover. The Board has consistently held that the mere specula- tion as to the uncertainty of future operations is not suffi- cient to dismiss a petition or decline to hold an election . . . . Although the Employer maintains that it has a final agreement with IBP regarding case-ready beef, the evi- dence does not support this contention. Specifically, the December 29, 1999 letter to IBP raises questions as to whether the parties have any formal obligation to each other. First, although the Employer asserts that May 15, 2000 and June 19, 2000 are pinnacle dates for the imple- mentation of its case-ready meat program, there are no specific dates detailed in the IBP letter indicating when the case-ready beef was going to be rolled out at Clarksville and Temple distribution centers. As the Employer repre- sented at the hearing that specific and precise dates were essential because of the products being dealt with, it is im- probable that it would rely on this letter to define all the terms of its proposed relationship with IBP. Second, the document proffered by the Employer as representative of a final agreement is not signed by IBP. This lack of signature is even more troubling considering [that] the Employer represents in the letter that it has uni- lateral authority to end its agreement with IBP at any time. Third, the Employer did not provide copies of any vendor agreements confirming either the May 15 or the June 19, 2000 roll out dates with IBP. The Employer acknowl- edged at the hearing that it did not yet have a vendor agreement with IBP and admitted there were details that still need to be worked out between the parties. Moreover, the Employer documented in its letter to IBP that although the parties had not reached agreement on the vendor agree- ment issue, the Employer was still maintaining that [a] vendor agreement needed to be in place between the par- ties. Such comments by the Employer reflect that there DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 292 were still critical details to work out between the parties . . . . The Employer also points to its pilot program as being indicative of its intentions to permanently implement its case-ready beef program. Although this program reflects the Employer’s interest in case-ready meat products, the record evidence reflects that the pilot program is ongoing and subject to continual change. Based on the foregoing, record evidence does not es- tablish that there is sufficient certainty that the Employer will implement its case-ready program in the Palestine, Texas store. There remain significant unresolved matters associated with the Employer’s announced elimination of all meat processing at its stores to enable me to conclude that its decision to use only prepackaged meat products will be implemented at a date certain. Board Exhibit 1, part 4 (emphasis added). The transcripts of the Palestine representation hearing, and the exhibits introduced at that hearing, are in evidence in this proceeding. To the extent that this evidence pertains to Re- spondent’s decision to implement a case-ready meat program at the Jacksonville store, I consider it de novo, and am not bound by the Acting Regional Director’s interpretation. However, for the same reasons that the Acting Regional Director found the evidence unpersuasive, and for additional reasons, so do I. The testimony and other evidence received at the Palestine representation hearing clearly has some probative value, but a number of considerations affect the weight it should be ac- corded. In considering how much weight to give this evidence, I take into account that the parties were not then litigating any- thing about the Jacksonville store and thus had no incentive to develop the record concerning Respondent’s plans to imple- ment the case-ready meat program in Jacksonville. Additionally, it is appropriate to consider that I did not ob- serve the witnesses while they testified at the Palestine repre- sentation hearing and thus cannot assess their credibility based on demeanor. For example, at the representation hearing, Re- spondent called one of its vice presidents, Bruce Peterson, to testify regarding the decision to change to case-ready meat. Respondent did not call Peterson to testify during the present proceeding. Thus, I have neither the benefit of seeing him while he testified nor the benefit of cross-examination focused upon facts relevant to the Jacksonville store. Still another factor causes me to doubt the evidence Respon- dent presented at the Palestine hearing. Although Respondent had ample opportunity to raise the case-ready meat program in the Jacksonville representation proceeding, it did not do so. Considering that Respondent has experienced and resourceful counsel, and considering that Respondent vigorously litigated the Jacksonville representation case at every step, it is difficult to believe that Respondent simply overlooked the argument that elimination of meat cutting made the Jacksonville unit inappro- priate. The Union contends that Respondent’s failure to raise the case-ready meat issue during the Jacksonville representation proceeding constitutes a waiver. In my view, neither waiver nor estoppel principles fit this situation very comfortably. If the unit has become inappropriate because of some lawful ac- tion, Respondent’s earlier silence on this issue changes nothing. However, Respondent’s silence on this issue does have evi- dentiary significance. In advancing its defense that the Jack- sonville meat department unit is inappropriate, Respondent bears the burden of proving when it made a final decision that meat cutting there would cease. Respondent has a unique abil- ity to offer evidence on this issue, because its own managers made the decision. Therefore, its failure to present detailed evidence detracts from its argument. Respondent argues, in effect, that it did not have the ability to present such evidence during the representation proceeding. Thus, its posthearing brief states: Because Wal-Mart’s implementation of the case-ready pro- gram in the Jacksonville store was not complete until June and July of 2000, evidence of the actual implementation in Jacksonville obviously did not exist in January of 2000 when the unit determination hearing was conducted. Final imple- mentation of the case-ready program in the Jacksonville store was not fully complete until the last week of July 2000, a little more than one week before the Board issued its August 9, 2000 certification order. As such, Wal-Mart was not required to present, nor could it have presented, this evidence at an ear- lier juncture in the Jacksonville case. This argument strikes me as somewhat disingenuous, par- ticularly in light of Respondent’s contention that the unit be- came inappropriate when the decision was announced, not when it went into effect. To support that argument, Respondent must present facts concerning when it made a final decision, not facts about the implementation of that decision. Obviously, if Respondent already had made the decision, it could have presented evidence about it. Respondent’s failure to raise this matter explicitly during the Jacksonville representation proceeding strongly suggests that Respondent did not make this decision as early as it claims. For all the reasons discussed above, I conclude that Respon- dent’s evidence does not carry its burden of proof. For clarity, a distinction should be drawn between Respon- dent’s decision to convert eventually to a case-ready meat sys- tem at all its stores, and its decision to implement the case- ready meat program at the Jacksonville store on a particular date. Respondent has a large number of stores and enjoyed considerable flexibility in picking which stores would be con- verted to case-ready meat on particular dates certain. To sup- port its defense, Respondent needed to establish the date on which it made a firm decision that the Jacksonville store would eliminate meat cutting. Credible evidence fails to support Re- spondent’s claim that it made this decision on or before Febru- ary 28, 2000. Indeed, even assuming for the sake of analysis that it made the decision on February 28, 2000—the date it disclosed the case-ready program during the Palestine representation hear- ing—at that point the Union already enjoyed majority support and Respondent already had an obligation to bargain, upon request, concerning the effects of that decision. Accordingly, I reject Respondent’s defense that it had decided to eliminate WAL-MART STORES 293 meat cutting at the Jacksonville store before it had any obliga- tion to negotiate with the Union. Instead, I find that as of March 13, 2000, when the Union made its bargaining demand, Respondent had not yet decided when, if ever, it would eliminate meat cutting at the Jackson- ville facility. Therefore, the meat department unit remained appropriate at that time and Respondent’s refusal to bargain violated Section 8(a)(5) and (1) of the Act. Respondent further contends that it had no duty to bargain over the effects of its decision to eliminate meat cutting be- cause this change had no “demonstrably adverse effect on em- ployees in the unit.” To require effects bargaining, Respondent argues, a change must result in a significant detriment to em- ployees in the unit and not merely in a change in job duties. Respondent’s argument carries not a little irony. On the one hand, Respondent asserts that the elimination of meat cutting had no demonstrable adverse effect on employees and caused them no significant detriment. On the other hand, Respondent also contends that this same change affected its operations so profoundly it renders a Board certification invalid and leaves employees without the union representation they selected. Respondent’s own internal documents recognize that em- ployees affected by this change would be concerned about their careers. Previously, employees with meat-cutting skills could be confident of relatively high wage rates within the store, but Respondent’s elimination of meat cutting devalued those skills. Even though Respondent assured employees that there would be no pay cuts, such assurances fall short of a guarantee that these highly paid employees would receive future wage in- creases when all other store employees did. The absence of future wage increases, coupled with the effects of inflation, constitute a very demonstrable adverse effect. In concluding that the elimination of meat cutting had a ma- terial substantial and significant effect on employees whose job titles changed from “meat processor” to “sales associate,” I note particularly that the elimination of work requiring their special skills greatly affected both job satisfaction and future earning potential. By analogy, if judges could no longer decide cases or write decisions it would constitute a very material, substantial, and significant diminution even if they received the same pay for doing word processing. Although this analogy is extreme, it illustrates that the term “conditions of employment” includes more than the dollar value of a paycheck. Individuals also seek and continue par- ticular employment which rewards them with opportunities to develop and maintain marketable skills. In sum, I find that Respondent’s plan to eliminate meat cut- ting did have a demonstrable adverse effect on employees who performed that work. Therefore, I reject Respondent’s argu- ment that it has no duty to bargain over effects because there have been no such effects. Respondent further contends that the effects of its decision are so intimately intertwined with the decision itself that bar- gaining over the effects necessarily would entail bargaining over the decision. The facts do not support this argument. As noted above, one significant effect of Respondent’s plan involves the devaluing of the meat processors’ cutting skills and the consequent reduction of their earning potential. During effects bargaining, the Union might address this problem in a number of ways. For example, it might seek contract language assuring that employees previously classified as meat proces- sors would continue to receive the same percentage wage in- crease given to other employees. Or, it might try to negotiate a retraining program so that meat processors could learn new skills. Or it might propose an outplacement program to help employees find jobs with other employers which still needed meatcutters. Rejecting Respondent’s defenses, I conclude that it violated Section 8(a)(5) and (1) of the Act on March 14, 2000 when it refused the Union’s bargaining demand. The question then arises, how long did Respondent continue to breach its bargaining duty? Did it have an obligation to bar- gain on June 20, 2000, when the Union made a second request? Did it have a bargaining duty on July 18, 2000, when the Union made a third request? Clearly, the duty to engage in effects bargaining continues. The situation is analogous to that of an employer which closes a plant and has a duty to bargain over the effects of that decision. Such an employer cannot escape the duty to engage in effects bargaining simply by saying, “No one works here anymore; the bargaining unit has disappeared.” The employer still must negotiate with the union representing the employees who had been in the bargaining unit at the time of the plant closure. Similarly, Respondent must bargain with the Union concern- ing the effects of the change to case-ready meat, even if the change made the bargaining unit inappropriate for future repre- sentation. Respondent remains in business and continues to employ the bargaining unit members. It must recognize and bargain with the Union concerning the effects of implementing its case-ready meat program. What about bargaining for other purposes? Did the elimina- tion of meat cutting make the unit inappropriate, as Respondent claims, and thereby terminate Respondent’s duty to bargain? If so, when did Respondent’s duty to bargain end? Before analyzing these questions, I must first consider whether the law permits me to consider them and if so, to what extent. As noted above, the Board’s August 9, 2000 certifica- tion closed Case 16–RC–10168. Under longstanding prece- dent, issues the Board decided in that proceeding may not be relitigated in the absence of newly-discovered evidence or un- usual circumstances. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941); Super K-Mart, 322 NLRB 583 (1996); Nurs- ing Center at Vineland, 318 NLRB 901 (1995); Willow Ridge Living Center, 318 NLRB 200 (1995). Although the newly-discovered evidence exception does not apply, I believe that the “unusual circumstances” exception does. The General Counsel does not allege that Respondent violated the Act by eliminating meat cutting without first nego- tiating with the Union. Therefore, I will assume that Respon- dent acted lawfully. When an employer’s lawful change calls into question the continued appropriateness of a bargaining unit, that certainly is an unusual circumstance. In its posthearing brief, the Union contends that the “unusual circumstances” exception arises only when the circumstances were outside the employer’s control. It cites, as examples, a union’s coercive threats of force, a union’s sexual or racial DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 294 discrimination against employees, and the issuance of subse- quent Board or court decisions which would make continued certification inappropriate. However, in the absence of any Board precedent to the con- trary, I believe the “unusual circumstances” exception may also be applied appropriately when the unusual circumstances arise from an employer’s lawful conduct. In the present case, the General Counsel does not contend that Respondent’s conver- sion to a case-ready meat system violated the Act. The Union disagrees with the General Counsel on this point and asserts that the elimination of meat cutting was itself an unlawful change. This argument will be discussed further be- low, but ultimately, I must reject it. The General Counsel, who initiated this proceeding by issuing a complaint, continues to control the theory of the Government’s case, and a charging party does not have authority to alter that theory. Here, the complaint does not allege that the change to case-ready meat was unlawful. The Board may, in some circumstances, find and remedy a violation not alleged in the complaint, if the parties have fully litigated the issue at hearing. However, I do not conclude that the parties have fully litigated the issue, which is quite subtle, involving interpretation of the Supreme Court’s holding in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). More specifically, the issue concerns whether the case-ready meat program, with its consequent elimination of meat cutting, constituted a change in the scope and direction of Respondent’s enterprise “akin to the decision whether to be in business at all.” Making such a change does not violate the Act because a change of this character is not a mandatory subject of collective bargaining. On the other hand, the Board generally finds changes in work assignments and job duties to be mandatory subjects of collective bargaining. See, e.g., A.M.F. Bowling Co., 303 NLRB 167 (1991). Determining how to characterize the change to case-ready meat—either as a change in the scope and direction of the enterprise or simply as a change in job duties— involves the resolution of a highly debatable issue. Because the complaint did not allege that the case-ready meat program itself violated the Act, the parties have not had the opportunity to litigate this issue with the thoroughness it requires. Therefore, I make no findings regarding whether the decision to convert fully to case-ready meat constitutes a man- datory subject of collective bargaining. However, in view of the position taken by the General Counsel, I will presume that Respondent acted lawfully when it made this decision. If the decision to convert to case-ready meat were unlawful, it would not constitute a special or unusual circumstance creat- ing an exception to the rule barring relitigation of representa- tion case issues. Presuming the change to be lawful, I conclude that this circumstance is sufficiently special and unusual that the relitigation bar should not apply. My conclusion that the “unusual circumstances” exception allows further litigation on the appropriate unit issue does not remove every barrier. The Board also has a longstanding “cer- tification year” doctrine which creates a conclusive presump- tion that a labor organization continues to enjoy majority sup- port within the unit for the first year after certification. See, e.g., Brooks v. NLRB, 348 U.S. 96 (1954). To be precise, this doctrine precludes challenging a union’s majority status, rather than challenging the appropriateness of a bargaining unit. A challenge to the continued appropriateness of the unit is not, strictly speaking, the same as questioning whether a majority of employees in the unit still supported the union. For this reason, and also because of the unusual circum- stances present in this case, I conclude that the “certification year” doctrine does not bar further litigation of the appropriate unit issue. In considering whether the unit continued to be appropriate, I will begin by looking at how much the implementation of case- ready meat changed the way the meat department employees did their work. Based on the testimony of Store Manager McCall, which I credit, I find that before the implementation of case-ready meat (which McCall referred to as the “roll-out”), employees in the meat department included employees who cut the meat (called “meat processors” or “butchers”), employees who wrapped the meat, and employees who cleaned up the premises. McCall testified that after the case-ready meat implementa- tion, the processors, wrappers and clean-up people “became basically stockers where they would take product out of a box, a case that would come in, they would take the package out and put it on the shelf.” This position is called sales associate. When the Acting Regional Director issued the decision and direction of election for the Jacksonville store, about 30 percent of meat sales came from boxed red meats. After the change, that percentage dropped to zero. No one in the store now has the title “meat processor” and no one in the store does any meat cutting. Additionally, employees no longer tenderize meat or grind hamburger. There no longer are knives or cutting blocks in the meat cut- ting area. It is unclear whether the rank-and-file employees cut hams when a customer requests that service. At one point in his testimony, McCall indicated that the sales associates were still supposed to slice hams on request, but at another point, McCall testified that if a customer asked for a ham to be sliced, he would assign a supervisor to perform that task because the saw used for such slicing is not easily accessible to employees and would have to be reassembled. The change to case-ready meat did not require any employee to lose his or her job or suffer a pay decrease, and no employee was transferred out of the meat department. Additionally, no employee suffered a reduction in hours because of the change. Meat department employees now spend most of their work- ing time stocking the meat cases. They have to become famil- iar with the various cuts of meat to answer customer questions. Before the “roll-out,” a meat and deli manager supervised both these employees and those assigned to the delicatessen area. Implementation of the case-ready meat program resulted in abolition of the meat and deli manager’s position. This meat and deli manager’s title changed to “fresh assistant manager” but, according to McCall, this supervisor’s job duties remained the same. This manager has authority over the seafood section as well as the meat market and delicatessen. WAL-MART STORES 295 In sum, the shift to case-ready meat did not greatly alter most of the work performed by meat department employees. A March 17, 2000 letter to employees from Respondent’s chief executive officer, Tom Coughlin, stressed the continuity of operations. After assuring employees that no one would be terminated or receive a pay cut because of the change, the letter continued: I want to be clear, despite union claims, Wal-Mart is not clos- ing Meat Departments. When case-ready meat is imple- mented in your store, some responsibilities will change in the Meat/Deli Department. Your Store Manager will have a one- on-one discussion with every single Associate in the Meat/Deli Department to talk about the new responsibilities. We will still have Associates working in the Meat Department with a number of responsibilities including providing knowl- edgeable customer service. If you want to continue working in the Meat Department, we will let you do that. No Associ- ate will be forced to transfer out of the Meat Department. Any changes in Meat Department staffing will be as a result of voluntary turnover and Associates desiring and accepting other offers outside the Meat Department. The record does not contradict this letter from the Respon- dent’s chief executive. No evidence indicates that the change to case-ready meat forced any employee to transfer out of the meat department or suffer a loss in pay. Because meat depart- ment employees still are doing most of what they did before the change, it is difficult, intuitively, to believe that the bargaining unit suddenly became inappropriate. The Union argues that it did not, stating in its posthearing brief. Contrary to Wal-Mart’s characterization, the case-ready meat program did not eliminate this unit. Rather, the evidence shows that meat department employees continue to spend most of their time working in the meat market selling Wal-Mart’s retail meat and poultry product line that no other store employees sell. In other words, this is not like the case where an employer com- pletely ceases its entire operations or even closes an entire line of its business. Wal-Mart here simply changed how it conducts the same business in the same area with the same employees who worked in the unit the Board certified as appropriate. Charging Party’s Brief at page 3. The Union’s argument has considerable appeal. At heart, it asks a common-sense question: “So what’s the big deal?” Af- ter all, the elimination of meat cutting affected only some of the duties of some of the unit employees, but otherwise life in the meat department has gone on pretty much as before. Before the “roll-out” of case-ready meat, less than a third of red meat sales had involved meat cut at the store, so it is quite reasonable to wonder whether such a limited change should be able to destroy the appropriateness of the bargaining unit, thereby nullifying the choice made by the majority of unit em- ployees. Because so much is at stake, Board precedents must be examined meticulously for guidance. In Super K-Mart, 322 NLRB 583 (1996), the employer had reduced the amount of meat cutting but did not eliminate that function. The Board held that this reduction did not render the meat department unit inappropriate: Although the Board in Frito Lay, Inc., 177 NLRB 820 (1969), dismissed a refusal-to-bargain complaint and vacated a prior certification based on changed circumstances affecting the appropriateness of the unit, it did so because the “essential factor” upon which the Board had based its order and deter- mination was eliminated due to the employer’s reorganization of its operations––a reorganization which had been in the planning stage prior to the commencement of the representa- tion proceeding. Here, the number of unit employees engaged in meat cutting was one of several factors considered by the Regional Director and Board in determining that a separate meat department unit was appropriate, and the Respondent has not contended that the current reduction in such employ- ees is the result of a permanent reorganization of its opera- tions, previously planned or otherwise. Rather, the Respon- dent merely contends that the number has “dwindled” since the certification. 322 NLRB at 583. This language suggests that the Board will find that a change has rendered a previously appropriate unit inappropriate if all of the following conditions are satisfied: (1) The change elimi- nated the “essential factor” on which the Board based its earlier decision; (2) the reorganization had been in the planning stage before commencement of the representation proceeding; (3) the reorganization is permanent. In her Decision and Direction of Election, the Acting Re- gional Director did not characterize meat cutting as an “essen- tial” factor but did describe it as “critical.” Specifically, she stated: “Critical to my determination are factors addressing the level and depth of meat cutting skills exercised by the Em- ployer’s meat processors and how these employees handle the boxed red meat that arrives in the meat department for eventual sale to customers.” For reasons which will be discussed further below, I con- clude that this “critical” factor was also “essential,” as the Board used that term in Super K-Mart. Therefore, I further conclude that the evidence in this case satisfies the first element of the Super K-Mart analysis. The second Super K-Mart criterion does not, on its face, re- quire an employer to have made a final decision about a con- templated change before the start of a representation proceed- ing. Rather, the language simply requires the change to be “in the planning stage” before the representation case began. Clearly, Respondent was planning the conversion to case-ready meat before the Union filed its representation petition. There- fore, I conclude that the evidence satisfies the second element of the Super K-Mart analysis. The present record clearly establishes that the change to case-ready meat was permanent. Indeed, the hearing in this case took place 2 years after the change and no evidence indi- cated that Respondent contemplated returning to the previous use of boxed meat, requiring meat cutting at the store. Thus, it appears that all three Super K-Mart criteria have been satisfied. Before reaching such a conclusion, however, I will return to the first criterion to consider further whether the meat cutting DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 296 skills which were “critical” to the Acting Regional Director’s decision were also an “essential factor” necessary to find a separate unit of meat department employees appropriate. That question presents some difficulty because the concept of an “essential factor,” that is, a prerequisite, involves an analytical framework distinct from the “balancing of factors” approach used by the Acting Regional Director. Deeming a factor to be essential, or a prerequisite, is differ- ent from assigning a particular weight to the factor. It is differ- ent even from saying that this one factor outweighs all the oth- ers combined. If an essential factor is absent, then no weighing need take place, because it could not affect the outcome. The Super K-Mart decision itself suggests that the amount of meat cutting work was not an essential factor, in the sense of a prerequisite. Thus, the Board stated that “Here, the number of unit employees engaged in meat cutting was one of several factors considered by the Regional Director and Board in de- termining that a separate meat department unit was appropriate . . . .” (Emphasis added.) Moreover, as discussed above, it is easy to imagine a hypo- thetical situation in which meat department employees work in such isolation from others, and under such different terms, that they would constitute an appropriate unit even in the absence of meat cutting. Therefore, it would appear logical to conclude that meat cutting skills are not an essential factor, in the sense of a prerequisite. Such a conclusion is particularly tempting because it avoids the tragic outcome of a stillborn bargaining unit, the sense that a group of employees trusted in the Board’s procedures, obtained a majority in a unit that Board officials deemed appropriate, but ultimately achieved nothing. Although technically, meat cutting may not be an “essential” factor, it is difficult to find a precedent in which the Board found a meat department unit appropriate when no meat cutting took place there. Meat cutting skills, even the limited amount necessary to complete the processing of boxed meat, are con- siderably different, perhaps qualitatively different, from the skills exercised by other supermarket employees. In Ray’s Sentry, 319 NLRB 724 (1995), the Board majority rejected the dissenting member’s attempt to equate cake baking and donut frying with meat cutting skills. The majority found inappropriate a unit of bakery/deli employees even though some of the bakery employees mixed, baked, and iced cakes and deli employees prepared various types of food. In a foot- note, the Board majority responded to the arguments raised by the dissenter: Contrary to our dissenting colleague, the fact that the bak- ery/deli employees perform distinct job functions does not support a separate unit. These job functions do not, as our colleague concedes, require a high level of skill. Nor, as the facts here indicate, do the bakery/deli employees require any extensive training to perform their work. Lacking specialized skills and significant training, the bakery/deli employees are not sufficiently distinct from the other grocery employees who, like the bakery/deli employees, may perform a variety of distinct functions but who also lack special skills and training. 319 NLRB at 726 fn. 7. It thus appears that for one department of a grocery store to constitute an appropriate unit, some of the employees must exercise skills at least as extensive as the skills of meat proces- sors who convert boxed meat into the individual small cuts purchased by consumers. The Jacksonville store’s meat de- partment clearly does not meet this test. After the conversion to case-ready meat, the meat department required its employees to have even fewer specialized skills than the bakery/deli em- ployees in Ray’s Sentry. Although the record suggests that the meat department em- ployees handled many different cuts of meat, employees in other store areas handled a large variety of products, as well. In essence, the Jacksonville store’s meat department employees now do stocking. They must learn where in the meat case they should place different prepackaged cuts. That task does not require prolonged training, particularly considering that the packages bear identifying labels. As a policy matter, it might be argued that the Board’s ap- propriate unit standards evolved in an age of grocery stores rather than supercenters, and that today’s 150,000 square foot store, employing hundreds of workers, bears less resemblance to a corner grocery than it does to Deep Space 9. However, the Board is well aware of changes in this industry and already has refined its analysis to take into account recent developments in the processing and merchandising of meat. See Scolari’s Warehouse Markets, above. The updated standards still place great importance on the presence of specialized skills. For example, in Wal-Mart Stores, Inc., 328 NLRB 904 (1999), the Board listed a number of community-of-interest factors it considered in deciding whether a separate meat de- partment unit would be appropriate. However, citing Scolari’s Warehouse Markets, it also pointedly stated as follows: In determining whether meat department associates share a distinct community of interest, the Board examines the actual work performed by the meatcutters to determine if the proc- essing of boxed primal and subprimal meats involves “sub- stantial meatcutting skills which are distinct from the skills of other supermarket employees.” 328 NLRB at 904 (emphasis in original; footnote omitted). Thus, Board precedent appears clear and compelling. In al- most all cases, absent meat cutting skills, a unit solely of meat department employees will not be found appropriate. The Union, however, cites a different line of cases to argue that a meat department unit may remain appropriate even with- out meat cutting. The Union relies on Sears, Roebuck & Co., 261 NLRB 245 (1982), in which the Board found appropriate a unit of employees in the store’s automotive department. If this less-than-storewide unit is appropriate, the Union contends, then under the same analysis, a meat department unit also should be appropriate. The Union also introduced into the record some Regional Di- rectors’ decisions citing and applying the Sears case. These cases include Wal-Mart Stores, Inc., Case 6–RC–11844, in evidence as Charging Party’s Exhibit 21. In that case, a Re- gional Director found appropriate a unit of Tire and Lube Ex- press (“TLE”) employees at a Wal-Mart store in New Castle, Pennsylvania. Significantly, the TLE department provided WAL-MART STORES 297 quite limited automotive services and therefore did not employ mechanics having the skill level of those in the Sears case. Instead, the TLE workers only had enough training to perform relatively simple tasks such as changing tires and oil. The employer disputed the aptness of the Sears precedent, arguing that the Board had found an automotive department unit appropriate in Sears because it included a nucleus of skilled mechanical employees. The analogy to a meat depart- ment unit is clear: If skilled meatcutters are needed to make a meat department unit appropriate, then skilled mechanics would be needed to make a separate automotive unit appropri- ate. Noting that the employer had not cited any supporting precedents, the Regional Director rejected this argument: The Employer argues that the Board found the unit in Sears to be an appropriate unit because it included (in addition to five other job classifications) mechanics who performed the skilled mechanical work of engine tune-ups, front end align- ments and brake overhauls. Contrary to the Employer’s con- tention, the fact that the unit in the Sears case included me- chanics was not the controlling factor; rather, the Board found that the automotive center employees as a whole had a suffi- ciently distinct community of interest to warrant their repre- sentation apart from the rest of the store. Charging Party’s Exhibit 21, at p. 16. It is not possible to determine how much the limited skills of the automotive employees contributed to the conclusion that a separate automotive department unit was appropriate. How- ever, even the limited skills of changing tires, changing oil, and lubricating vehicles are significantly greater than the skills required of meat department employees after the change to case-ready meat. Moreover, this automotive work is fundamentally different from that of sales associates. It involves specialized employees performing specialized tasks in a specialized environment. On the other hand, an employee placing prepackaged meat in a refrigerated display case is doing essentially the same work as another employee keeping the ice cream freezer filled or still another employee stocking shelves with canned goods. For these reasons, I must reject the Union’s argument. The Union also asserts that by failing to raise its contem- plated conversion to case-ready meat during the representation proceeding, Respondent waived its right to argue that this con- version made the unit inappropriate. However, the appropri- ateness of a unit does not depend on what evidence an em- ployer presented or did not present during a representation hearing. It derives instead from the various circumstances of the employees in question. Therefore, I find the Union’s waiver argument unpersuasive. The Union also contends that Respondent cannot render the certified unit inappropriate by making the change to case-ready meat because, the Union argues, that change itself is unlawful. [B]ecause Wal-Mart continues to conduct the line of business of selling meat and poultry, this case is materially different from those holding that employers who terminate their opera- tions or completely discontinue an entire line of business re- lieves them from their obligation to bargain because the em- ployees who worked in the closed unit no longer work for the employer. Charging Party’s Brief at page 15. In essence, this argument seeks to distinguish First National Maintenance and, for rea- sons discussed above, I do not reach this issue because it has not been thoroughly litigated. Instead, in accordance with the General Counsel’s theory of the case, I have presumed that Respondent acted lawfully when it decided to eliminate meat cutting and use only case-ready meat. However, the Union’s brief appears to raise another argu- ment, namely, that Respondent had a duty to bargain over the manner of implementation. As the Union uses the term “man- ner of implementation,” it appears to mean something distinct both from a duty to bargain over the decision to implement and from a duty to bargain over the effects of implementation. In other words, although the First National Maintenance decision made a distinction between bargaining over the decision itself (nonmandatory) and over the effects of that decision (manda- tory), the Union would add a third category, a duty to bargain over the implementation of the decision. At least, the Union’s brief seems to suggest such a distinction: And because it unlawfully refused to bargain over the imple- mentation of the case-ready meat program, Wal-Mart may not interpose it as an affirmative defense to the refusal to bargain allegation. In short, Wal-Mart may not rely on an unlawful act as a defense to the charge of other unlawful conduct. Charging Party’s Brief at page 15. Later in the brief, the Union again alludes to a duty to bargain over the implementation of the case-ready meat program. . . . Wal-Mart was at the very least obligated to bargain over the manner in which it implemented the program at the Jack- sonville store because the implementation occurred after the Jacksonville election, there’s no record evidence that the switch involved either significant investment or withdrawal of capital, and the scope and ultimate direction of the meat mar- ket enterprise continued unchanged. Charging Party’s Brief at page 20. A footnote explains further what the Union meant by “implementation” bargaining: . . . Wal-Mart could have implemented the program in a way that would have removed any doubt about the continued ap- propriateness of the unit. For example, the parties could have agreed—as Kroger apparently did—that the knives, meatcut- ting and meat wrapping machines and equipment would re- main, that employees would continue to receive training on handling knives and operating such machinery and equip- ment, and that they would continue to slice, cut, re-cut, re- work or re-wrap mislabeled case-ready meat, perform spe- cialty cuts of case-ready meat, and grind scraps or case-ready meat in which case the meat market employees would still be performing skilled tasks requiring specialized training. [CP Br., p. 20, fn. 15.] Explained in this manner, “implementation” bargaining ap- pears to be a subcategory of effects bargaining. If Respondent had satisfied its legal duty to bargain over the effects of the case-ready meat program, the Union contends, the parties might DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 298 have reached an agreement preserving some job duties and thereby assuring that the unit remained appropriate. This argument may be reformulated as follows: A claim of the unit’s demise is premature. The unit cannot be presumed dead so long as Respondent’s unlawful conduct prevents the life support efforts which might keep it alive. The argument admits the possibility that someday the unit might become inappropriate if, after bargaining in good faith, the parties cannot agree on ways to keep it viable. Until that time, however, any difficulties with the unit must be attributed to Respondent’s bad faith refusal to bargain about “implemen- tation.” Notwithstanding the emotional attractiveness of this argu- ment, it carries some logical problems. First, it assumes incor- rectly that the appropriateness of the unit may be preserved by token meat cutting or the semblance of meat cutting. However, to be a significant factor in the community-of-interest analysis, meat cutting must also be a significant job duty. Second, the contemplated “implementation” bargaining comes so close to decision bargaining that it is difficult to tell one from the other. If we assume that the Respondent is free to eliminate all meat cutting without first bargaining with the Un- ion, it is inconsistent to add a requirement that Respondent must bargain about employees retaining a little bit of this work. A question sure to arise early in such bargaining is “how much meat cutting is a little bit?” Trying to resolve that issue places the Respondent’s entire decision, or at least a primal cut of it, on the negotiating table. It is true that Respondent unlawfully failed to recognize and bargain with the Union concerning the effects of its decision to sell only case-ready meat. It must do so. However, by defini- tion, the duty to bargain over effects does not include a duty to bargain about the cause of these effects. Therefore, I must reject the Union’s argument. In its brief, the Union also contends that Respondent unlaw- fully accelerated its implementation of the case-ready meat program so that the program would be implemented first at the stores facing union organizing drives. The complaint does not allege such a violation. Additionally, credible evidence fails to support the Union’s claim. In its brief, the Union describes a large number of events and the dates on which they took place. It then argues that the sequence proves Respondent made decisions about the case-ready meat program in reaction to the Union’s efforts. Considering the numerous events, the Union’s effort to find a pattern is a little bit like looking at the stars and grouping them into constellations. Such patterns do not reflect how the stars really relate to each other in space, but only the concepts of the observer. Moreover, I discern no apparent causal pattern in the se- quence of events. Absent some kind of credible corroborating evidence, I would not infer unlawful motivation from possibly coincidental events unless a significant number of them formed a constellation as obvious as Orion. The present record pro- vides neither such a pattern nor any independent evidence to prove that Respondent manipulated the timing of events to obtain an advantage over the Union. Because the record does not establish when Respondent’s decision became final, I conclude that the Jacksonville meat department unit became inappropriate around July 15, 2000, when the transition to case-ready meat ended all meat cutting. Except for its duty to engage in the effects bargaining discussed above, Respondent’s duty to recognize and bargain with the Union ceased as of that date. See Frito Lay, Inc., 177 NLRB 820 (1969). However, the Union asked the Employer to bargain at least twice before July 15, 2000. At that time, it enjoyed majority status and the Employer’s failure to recognize and bargain with the Union constituted a violation of Section 8(a)(5) and (1). On August 16, 2000, when the Union submitted its informa- tion request, Respondent no longer had a general duty to bar- gain. However, Respondent still had, and continues to have, the duty to bargain with the Union regarding the effects of its decision to discontinue meat cutting and sell only case-ready meat. The information which the Union requested on August 16, 2000 remains relevant to and necessary for this purpose. The specific information requested is described in detail above, under the “Admitted Allegations” portion of this deci- sion. All of this information is presumptively relevant because it relates directly to the wages, hours, and working conditions of employees in the bargaining unit. Most of the information requested, such as the names, job classifications, and wage rates of unit employees, has such obvious relevance to the effects bargaining that no discussion is necessary. However, three paragraphs of the Union’s informa- tion request—paragraphs (b), (c), and (d)—may warrant further discussion. In those paragraphs, the Union sought the follow- ing information and documents: (b) Copies of all personnel policies and work rules that apply to bargaining unit employees; (c) Copies of all payroll and wage policies that apply to the bargaining unit employees; (d) Copies of all documents describing available fringe benefits, such as pension, profit sharing, 401(k) plans, vacation and health insurance that apply to the bar- gaining unit employees; This information may be of significant use to the Union in formulating proposals to remedy the effects of Respondent’s change to case–ready meat. The Union may seek, for example, to negotiate a retraining benefit for meatcutters affected by the change. The Union might also wish to bargain concerning the meatcutters’ career opportunities within Respondent’s organi- zation. The Respondent’s rules and policies clearly would be relevant to such negotiations. Moreover, although the record does not suggest that Respon- dent has reduced any employee’s present wage rate because of the change, it is reasonable to believe that the change will affect the future wage increases of the meatcutters, whose special skills no longer have the same value. Information concerning fringe benefits, such as 401(k) plans, obviously would be rele- vant to any discussion regarding the meatcutters’ future earning potential. Because Respondent has a continuing obligation to engage in effects bargaining, and because the requested information is WAL-MART STORES 299 relevant to such bargaining and necessary for that purpose, I conclude that Respondent’s failure to furnish it violated, and continues to violate, Section 8(a)(5) and (1) of the Act. REMEDY Because Respondent refused to recognize and bargain with the Union while the bargaining unit remained appropriate, it must take action to remedy this violation. This remedy should include posting the notice to employees attached to this deci- sion as appendix A. Upon the Union’s request, Respondent must also engage in bargaining concerning the effects of its change to case-ready meat at the Jacksonville store. Further, Respondent must fur- nish the information requested by the Union on August 16, 2000. In a typical effects bargaining case, employees have been laid off because the employer closed a facility. See, e.g., Ode- brecht Contractors of California, Inc., 324 NLRB 396 (1997). In such a case, the Board orders the employer to pay backpay to the affected workers while the parties bargain concerning the effects of the change. Transmarine Navigation Corp., 170 NLRB 389 (1968). Such a backpay requirement provides an incentive for the em- ployer to engage in good faith bargaining because the longer it takes to reach agreement, the greater the backpay liability. As the Board frequently has stated when applying this Transmarine remedy, meaningful bargaining cannot be assured until some measure of bargaining power is restored to the Union. A bar- gaining order alone, therefore, is not an adequate remedy for the unfair labor practices committed. See, e.g., Baird Mfg. Co., 338 NLRB 591 (2002); IHS at West Broward, 338 NLRB 239 (2002). Without a Transmarine backpay remedy, negotiating about the effects of a change already made has no more urgency than settlement negotiations in a case not docketed for trial; too easily, such discussions become a stalled car going nowhere. By imposing a continuing backpay obligation on the employer while negotiations take place, Transmarine transforms the stalled car into a taxicab with the meter running. In the present case, however, a Transmarine backpay remedy would not be appropriate because Respondent’s change to case- ready meat caused no layoffs, job losses, or pay cuts. The Board would not require Respondent to pay some arbitrary amount of backpay because an arbitrary amount, unrelated to actual losses suffered, would be punitive rather than remedial. Therefore, some other way must be found to restore a mean- ingful measure of bargaining power to the Union and thereby assure an adequate remedy. Under the unique facts of the pre- sent case, the most practical way to accomplish this goal would be to require restoration of the status quo ante while the effects negotiations take place. Doing so would not impose on Re- spondent any cost unrelated to the change which necessitated the effects bargaining. Moreover, the actual costs of this remedy appear to be mini- mal. The record establishes, for example, that the meat saw, now dismantled, remains at the Jacksonville store. Requiring Respondent to put the saw back together and return it to the meat cutting area certainly does not impose an unreasonable burden. Similarly, requiring Respondent to assign its meat processors the work of cutting about the same amount of meat as they did before the change costs Respondent little, because Respondent continues to pay these employees at the rates they earned be- fore the change. On the other hand, restoration of the meat processors and saw to the cutting room would convey a power- ful message to all employees that Respondent will not be al- lowed to disregard its duty to engage in effects bargaining. The duty to maintain the status quo ante should begin and end in the same manner as would a duty to pay backpay in a typical Transmarine case involving the effects of a plant clos- ing and layoff. More specifically, Respondent should be re- quired to restore the status quo ante and promptly begin negoti- ating in good faith with the Union concerning the effects of its case-ready meat decision, if the Union requests such bargaining no later than 5 days after its counsel receives the Board’s Deci- sion and Order in this matter. Timeliness of such a request for bargaining should be computed in accordance with Melody Toyota, 325 NLRB 846 (1998). Once triggered by the Union’s timely request to engage in bargaining, Respondent’s duty to maintain the status quo ante should continue until the occurrence of the earliest of the fol- lowing conditions: (1) The date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the closing of its facility on its employees; (2) A bona fide impasse in bargaining; (3) The Union’s failure to commence negotiations within 5 days of the Respondent’s notice of its desire to bargain with the Union; (4) The Union’s subsequent failure to bargain in good faith. Cf., Young World Stores, 321 NLRB No. 117 (1996) [slip opinion not published in Board volume]; Inabon Asphalt, Inc., 325 NLRB No. 50 (1998) [slip opinion not published in Board volume]. CONCLUSIONS OF LAW 1. Respondent Wal-Mart Stores, Inc., is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Food and Commercial Workers Union, Local 455, United Food and Commercial Workers Union, Local 540, and the United Food and Commercial Workers International Union are labor organizations within the meaning of Section 2(5) of the Act. 3. During the period February 17, 2000 until about July 15, 2000, the following unit of employees at Respondent’s store in Jacksonville, Texas, constituted a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: INCLUDED: All full-time and regular part-time employ- ees employed in the meat market at the Employer’s retail store located at 1311 S. Jackson Street, Jacksonville, Texas. EXCLUDED: All other employees, including store man- agers, assistant managers, overnight man- agers, department managers, personnel DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 300 managers, office clerical employees, pro- fessional employees, guards and supervi- sors as defined in the Act. 4. The unit described in paragraph 3 above became inappro- priate for collective bargaining on about July 15, 2000. 5. On February 17, 2000, United Food and Commercial Workers Union, Local 540 became the exclusive bargaining representative, within the meaning of Section 9(a) of the Act, of the employees in the unit described in paragraph 3, above. Notwithstanding that the collective-bargaining unit became inappropriate on about July 15, 2000 because of Respondent’s decision to eliminate meat cutting and sell only case-ready meat, United Food and Commercial Workers Union, Local 540 continues to be the bargaining unit’s exclusive representative in negotiating with Respondent concerning the effects of this de- cision. 6. On about March 13, 2000, United Food and Commercial Workers Union, Local 540 demanded in writing that Respon- dent recognize and bargain with it concerning Respondent’s decision to eliminate meat cutting and sell only prepackaged case-ready meat. 7. By letter dated June 20, 2000, United Food and Commer- cial Workers Union, Local 540 demanded that Respondent recognize and bargain with it concerning the terms and condi- tions of employment of the employees in the bargaining unit described in paragraph 3, above. 8. Beginning on or about March 14, 2000, and continuing to the present, Respondent has failed and refused to recognize and bargain with United Food and Commercial Workers Union, Local 540 as the exclusive representative of the employees of the unit described in paragraph 3 above. 9. On about July 18, 2000, by letter, United Food and Com- mercial Workers Union, Local 540 requested that Respondent furnish certain information, described more specifically in complaint paragraph 13 and in the “Admitted Allegations” section of this decision. 10. The information described in paragraph 9, above, was relevant to collective bargaining concerning the effects of Re- spondent’s decision to eliminate meat cutting and sell only prepackaged case-ready meat. It also was necessary for United Food and Commercial Workers Union, Local 540 to have this information to engage in such collective bargaining. 11. At all times since July 19, 2000, Respondent has failed and refused to furnish United Food and Commercial Workers Union, Local 540 with the information described in paragraph 10, above, thereby violating Section 8(a)(5) and (1) of the Act. 12. During the period March 14, 2000 to about July 15, 2000, Respondent’s failure and refusal to recognize and bargain with United Food and Commercial Workers Union, Local 540 as the exclusive representative of the employees in the unit described in paragraph 3, above, violated Section 8(a)(5) and (1) of the Act. 13. Beginning March 14, 2000, and continuing to the pre- sent, Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with United Food and Commercial Workers Union, Local 540 concerning the effects of its decision to eliminate meat cutting and sell only case-ready meat. 14. The violations of Section 8(a)(5) and (1) described in paragraphs 11, 12, and 13, above, constitute unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and Section 2(6) and (7) of the Act. 15. Except for the violations described above, Respondent did not violate the Act in any manner alleged in the complaint. [Recommended Order omitted from publication.]