Wal-Mart Stores, 28-CA-16831

WAL-MART STORES 350 NLRB No. 71 879 Wal-Mart Stores, Inc. and United Food and Com- mercial Workers International Union, CLC.1 Cases 28–CA–16831, 28–CA–16886, 28–CA– 16887, 28–CA–16932, 28–CA–17001, 28–CA– 17012, 28–CA–17056, 28–CA–17157, and 28– CA–17208 August 20, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On September 24, 2002, Administrative Law Judge Albert A. Metz issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed an answering brief to the Respondent’s exceptions, and the Respondent filed a brief in reply to the General Counsel. The General Counsel and the Charging Party each filed cross-exceptions and a supporting brief. The Respondent filed answering briefs to the cross-exceptions of the Gen- eral Counsel and the Charging Party. 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,2 and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified and set forth in full below. I. SUMMARY FINDINGS AND RULINGS This case involves allegations that between June 2000 and May 2001 the Respondent, Wal-Mart Stores, Inc., violated Section 8(a)(1) and (3) of the Act during a cam- paign by the United Food and Commercial Workers In- ternational Union (the Union) to organize the Respon- dent’s employees at three of its retail stores in Las Ve- gas, Nevada. The stores were located at South Rainbow 1 We have amended the caption to reflect the disaffiliation of the United Food and Commercial Workers from the AFL–CIO effective July 29, 2005. 2 The Respondent, the General Counsel, and the Charging Party have each 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. The Respondent also requested oral argument, seeking Board recon- sideration of its decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000). Several organizations also filed amicus briefs on this issue. Based on the Board’s issuance of IBM Corp., 341 NLRB 1288 (2004), the Respondent’s request, and the arguments raised by the amici, are moot. Boulevard (South Rainbow), East Tropicana Avenue (East Tropicana), and West Craig Road (West Craig). Regarding the allegations of unfair labor practices at South Rainbow, we (1) affirm the judge’s finding that the Respondent violated Section 8(a)(1) on June 17, 2000, by disparaging employee Avis Hammond’s union activity and inviting him to quit, but (2) reverse the judge’s find- ing that the Respondent violated Section 8(a)(1) on July 12 and August 30, 2000, by warning Hammond for dis- tributing union literature.3 We adopt the judge’s dis- missals of the allegations that the Respondent (1) prom- ulgated and enforced an unlawful solicitation and distri- bution rule on July 12, 2000 (in addition to disparately enforcing that rule), and (2) engaged in surveillance of union activity in the store breakroom.4 Regarding the allegations at East Tropicana, we unanimously (1) affirm the judge’s finding that the Re- spondent violated Section 8(a)(3) and (1) on October 20, 2000, by warning employee Diana (Angie) Griego for solicitation and distribution, and (2) reverse the judge’s finding that the Respondent did not violate Section 8(a)(3) and (1) on December 15, 2000, by issuing a writ- ten warning to Griego for union solicitation and distribu- tion. We reverse the following violations found by the judge: (1) that the Respondent violated Section 8(a)(1) on April 26, 2001, by creating the impression of surveil- lance of its employees’ union activity,5 and (2) that the Respondent violated Section 8(a)(1) on April 10 by de- nying Griego’s request for a coworker representative to be present at an interview with managers.6 We unanimously adopt the judge’s finding that the Re- spondent violated Section 8(a)(1) in December 2000 by threatening employee Valerie Gonzalez with withdrawal of benefits. We also unanimously adopt the judge’s dis- missal of allegations that the Respondent (1) promul- gated and enforced an unlawful solicitation and distribu- tion rule on October 28, 2000, in mid-November 2000, 3 Chairman Battista and Member Walsh form the panel majority on the disparagement and invitation to quit findings; Chairman Battista and Member Schaumber form the majority on the warnings concerning distribution. All of the other findings concerning South Rainbow are unanimous. 4 In the absence of exceptions, we adopt the judge’s dismissal of the allegations that, at South Rainbow, the Respondent (1) created the impression of surveillance by warning Avis Hammond for union distri- bution on July 12, 2000, and by observing employee Norine Sorenson distributing handbills on December 12, 2000, and (2) discriminated against Sorenson by placing her on a mandatory leave of absence and refusing to allow her to return to work without a full medical release. 5 Chairman Battista and Member Schaumber form the panel majority reversing the surveillance finding. 6 See IBM Corp., supra, which issued after the judge’s decision in this case. Member Walsh joins his colleagues in reversing the judge under IBM Corp., but notes that he dissented in that case and disagrees with its holding. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880 and on December 15, 2000, March 10 and May 17, 2001;7 (2) created the impression of surveillance in early November 2000; (3) prohibited union-related conversa- tion outside the breakroom on May 17, 2001; and (4) engaged in surveillance of union activity in the break- room.8 Regarding the allegations at West Craig, we unani- mously affirm the judge’s finding that the Respondent violated Section 8(a)(1) on December 12, 2000, by inter- fering with union handbilling, as well as his dismissal of the allegation that the Respondent unlawfully created the impression of surveillance by observing the handbilling. Finally, we amend the judge’s remedy in two respects. First, we remove the provision ordering the Respondent to offer Griego instatement to the position of pharmacy clerk, and we limit her entitlement to backpay and bene- fits to the period from the date she was denied this posi- tion to the date she voluntarily resigned from the Re- spondent’s employ. Second, we shall order the Respon- dent to post separate notices conforming to the specific violations found at each store.9 II. UNFAIR LABOR PRACTICES A. South Rainbow 1. Disparagement and invitation to quit On June 17, 2000, Avis Hammond, who was employed as a greeter at the Respondent’s South Rainbow store, brought 20 copies of a union press release to the store. The press release, entitled “Wal-Mart Layoffs Approach- 7 Instead of dismissing the May 17 allegation, Member Walsh would find it unnecessary to pass on it, because finding that violation would be cumulative and would not affect the remedy. 8 In the absence of exceptions, we adopt the judge’s findings that, at East Tropicana, the Respondent (1) unlawfully interrogated employee Valerie Gonzalez regarding her union sympathies in December 2000; (2) discriminated against Griego by failing to hire her as a pharmacy clerk; (3) promulgated and enforced an overly broad no-solicitation rule by telling Griego not to solicit customers outside the store on March 3, 2001; (4) restricted Griego from distributing union pens on April 26, 2001; and (5) discriminated against employees on April 26, 2001 by warning them that they had to restrict their union activities to the break- room. We also adopt the judge’s dismissal of the allegations that the Respondent (1) unlawfully interrogated Griego on October 28, 2000; and (2) discriminated against Griego by verbally reprimanding her on April 10, 2001. 9 Chairman Battista and Member Schaumber form the panel majority on the amended remedy. The Charging Party excepts to the wording of the judge’s recom- mended notice, contending that, in accordance with the Board’s policy that remedial notices “should be drafted in plain, straightforward, lay- person’s language,” Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001), affd. 354 F.3d 534 (6th Cir. 2004), the notice should be addressed to “associates” as well as to “employees” in order to reflect the Respondent’s usage. We deny this exception on the ground that the term “employee” is easily understood, even by those employed by employers using alternative terms. ing ‘Critical Mass’ for Over-worked Workers Says UFCW,” alleged that the Union had received numerous reports of layoffs from aggrieved Wal-Mart employees and that, because employees felt unable to talk to man- agement about the issue, they were “coming to the union in droves.” The press release included the addresses of two websites that employees could use to contact the Union. Hammond handed out copies of the press release to other employees. He also gave a copy to Chuck Salby, the Respondent’s district manager, who responded an- grily, “If you believe that, you’re [not] worthy of work- ing at Wal-Mart.” Salby then tore up the press release and threw it in a trash can. The judge found that, by these actions, Salby disparaged Hammond’s union activ- ity and invited him to quit his employment, thereby vio- lating Section 8(a)(1). The Respondent excepts to the judge’s finding on the ground that Hammond was not engaged in union-related or concerted activity. The Respondent asserts that the evidence establishes that Hammond distributed the press release merely to protest a reduction in his own hours of work. We find no merit in the Respondent’s argument. Hammond’s distribution of the union press release was plainly union-related activity, and therefore protected by Section 7 of the Act. The Respondent and our dissenting colleague further contend that Salby’s conduct constituted “free speech,” protected under Section 8(c). We disagree. Although Section 8(c) provides that “[t]he expressing of views, argument, or opinion” are not unlawful if “such expres- sion contains no threat of reprisal or force or promise of benefit,” Salby’s conduct was not merely the expression of personal opinion, but both disparaged Hammond for engaging in protected activities and suggested that his protected activity was incompatible with continued em- ployment. We therefore adopt the judge’s finding that, through Salby’s conduct, the Respondent violated Sec- tion 8(a)(1) of the Act by disparaging Hammond’s union activity and inviting him to quit.10 10 Chairman Battista finds Rogers Electric, Inc., 346 NLRB 508 (2006), on which the dissent relies, distinguishable. There, the Board found that disparaging remarks, alone, were insufficient to violate Sec. 8(a)(1). Here, Salby did much more than merely disparage Hammond’s support of the Union; it invited him to quit because of that support. Member Walsh did not participate in Rogers Electric and expresses no view as to whether it was correctly decided. He agrees, however, that it is distinguishable. Contrary to his colleagues, Member Schaumber would find that the Respondent did not violate Sec. 8(a)(1) when District Manager Chuck Salby told employee Avis Hammond that Hammond was not “worthy” to work for the Respondent if he believed that the contents of a union’s press release were true. Member Schaumber would instead find that such a comment was a lawful expression of personal opinion under Sec. WAL-MART STORES 881 2. Warnings for solicitation and distribution In July 2000, employee Maxine Matervich reported to the Respondent that, while she was working in her regu- lar work area, Hammond solicited her concerning the Union, provided her with union literature, and asked her to distribute that literature. On July 12, 2000, South Rainbow store Comanager Jim Eble summoned em- ployee Hammond to a meeting and informed Hammond that there was evidence that he had violated the Respon- dent’s solicitation and distribution policy by handing out nonwork-related literature on the sales floor. Eble told Hammond that he (Hammond) was receiving a “verbal coaching”11 for this activity, and Eble provided Hammond a copy of the Respondent’s policy to read. Eble took this action on instructions from Rainbow Store Manager Robert Knickerbocker. On August 30, 2000, Knickerbocker gave Hammond a written coaching after Hammond again violated the Respondent’s solicitation and distribution policy. Although the judge credited evidence that Hammond had violated the Respondent’s solicitation and distribu- tion policy before July 12, and again in August, the judge nevertheless concluded that both coachings violated the Act because the Respondent had disparately enforced its solicitation and distribution policy against union activity. This disparate treatment finding was premised solely on the testimony of one employee—Norine Sorenson. Sorenson stated that, “sometime during 2000,” Rainbow employee Pam Robinson solicited Sorenson to buy Avon products and candy, that Robinson kept her Avon book on the desk of then-department manager, Glenda Curry,12 located in the backroom of the photo department, and 8(c), which provides that “[t]he expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor prac- tice . . ., if such expression contains no threat of reprisal or force or promise of benefit.” Furthermore, mere disparaging remarks are insuf- ficient to violate Sec. 8(a)(1). Rogers Electric, Inc., supra, 346 NLRB 508, 509–510. In determining whether conduct violates Sec. 8(a)(1), the Board considers whether, under all of the circumstances, the con- duct reasonably tends to restrain, coerce, or interfere with employees’ Sec. 7 rights. Here, Hammond handed Salby a copy of the press release during a conversation they were having concerning Hammond’s sched- uling. Although the comment was made by a high-ranking official and similar to statements that the Board has found violative of Sec. 8(a)(1), the circumstances establish that Salby’s comment was an off-the-cuff expression of personal opinion. The comment did not imply that em- ployees’ Sec. 7 activities were futile. Considering all the circum- stances, Member Schaumber would dismiss this complaint allegation. 11 A verbal coaching is the first stage in the Respondent’s three-stage progressive discipline policy. A “written coaching” is the second stage, and “decisionmaking day,” at which the employee faces the possibility of termination, is the third. 12 Curry did not testify at the hearing, and the judge drew an adverse inference against the Respondent, inferring that Curry knew of the nonunion solicitation. that the Respondent imposed no discipline for this viola- tion of its solicitation and distribution policy. The Respondent excepts to the judge’s finding, argu- ing, inter alia, that the extent of unpunished nonunion solicitation was too limited to show that the Respon- dent’s discipline of Hammond was disparate. We agree.13 It is well settled that “isolated incidents of digression from a no-solicitation rule . . . do not reflect the type of widespread worktime solicitation indicative of disparate application of the rule.” Albertson’s Inc., 289 NLRB 177, 191 (1988).14 Here, the only evidence of tolerated nonunion solicitation is Sorensen’s testimony that a sin- gle employee—Robinson—sold Avon products and candy in early 2000. Sorenson did not testify regarding how many times Robinson solicited her or whether Rob- inson solicited anyone else. Thus, the General Counsel showed no more than that one employee engaged in one act of tolerated solicitation. As more than 400 people worked at the South Rainbow store, we find that this quantum of proven nonunion solicitation is insufficient to show that the Respondent enforced its no-solicitation rule disparately against union activity.15 Accordingly, we dismiss the allegations arising from the warnings to Hammond.16 B. East Tropicana 1. October 20, 2000 warning for solicitation Diana (Angie) Griego was employed as a cashier at the Respondent’s Tropicana store during the union organiz- 13 In dismissing this allegation, we additionally rely on the lack of evidence that Knickerbocker—who made the decision to discipline Hammond for his July and August violations of the Respondent’s so- licitation and distribution policy—knew that Robinson had solicited Sorenson to buy Avon or candy products sometime in 2000. Knicker- bocker testified, without contradiction, that he was not aware of any such conduct. 14 See also Uniflite, Inc., 233 NLRB 1108, 1111 (1977). 15 See Summitville Tiles, 300 NLRB 64, 66–67 (1990) (two incidents of tolerated nonunion solicitation at facilities employing several hun- dred employees insufficient to show disparate enforcement). 16 The General Counsel excepts to the judge’s failure to find that the July 12 warning violated Sec. 8(a)(3) of the Act in addition to violating Sec. 8(a)(1) of the Act. In accordance with our conclusion that the warning did not disparately enforce the Respondent’s solicitation and distribution rule, we deny the exception. We reject our dissenting colleague’s argument that Sorenson’s tes- timony regarding Robinson’s activities shows that the Respondent tolerated a sufficient quantum of solicitation to demonstrate that it had abandoned enforcement of its solicitation and distribution policy except against union activity. As the General Counsel bears the burden of proof on this issue, Sorenson’s vague testimony as to Robinson’s sale of Avon products and candy is not sufficient to show that Robinson engaged in what the dissent refers to as a “continuing practice” of so- licitation. Nor is the mere presence of an Avon catalog in a backroom of the store comparable to Hammond’s active distribution of union literature to coworkers in the store’s public area. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882 ing drive. She campaigned openly for the Union and, according to the judge’s uncontested findings, the Re- spondent—subsequent to the October 2000 warning— violated Section 8(a)(3) by denying her the position of pharmacy clerk in January 2001 and violated Section 8(a)(1) by prohibiting her from soliciting customers out- side the store in March 2001. On October 20, 2000, East Tropicana Store Manager Mark Dutton gave Griego a “verbal coaching” for alleg- edly engaging in union solicitation and distribution on the sales floor. Dutton testified that he had received complaints from five employees that Griego engaged in such activity and that Assistant Manager Sheryl Seals told him that another three employees had also com- plained about Griego’s solicitation and distribution. Nei- ther Seals nor any of the employees who allegedly com- plained about Griego’s conduct testified at the hearing. Griego denied that she violated the Respondent’s solici- tation and distribution policy. Crediting Griego’s denial, the judge found that the Re- spondent failed to present sufficient evidence to show that Griego in fact violated its policy, and that the Gen- eral Counsel proved by a preponderance of the evidence that the warning was issued in retaliation for Griego’s union activity. The judge therefore concluded that the warning violated Section 8(a)(3) and (1) of the Act. The Respondent excepts to this finding on the ground that the judge misallocated the burden of proof. In par- ticular, the Respondent cites Burnup & Sims, 379 U.S. 21, 23 fn. 3 (1964), for the proposition that where an employer disciplines an employee on the basis of a rea- sonably held good-faith belief that the employee has en- gaged in misconduct, the General Counsel has the burden of proving that the employee did not, in fact, engage in that misconduct. The Respondent also contends that, at the time that the warning was issued, Griego did not deny having violated the solicitation and distribution policy. We affirm the judge’s finding. The Burnup & Sims analysis is normally reserved for violations of Section 8(a)(1), and the judge found that this discipline violated Section 8(a)(3). Nevertheless, even under a Burnup & Sims analysis, we find that the Respondent’s defense would fail. That is, assuming that the Respondent dem- onstrated its initial good-faith belief that Griego had vio- lated its solicitation and distribution policy, the General Counsel established that this belief was mistaken because Griego credibly denied violating the Respondent’s solici- tation and distribution policy during the relevant time- frame. Accordingly, even assuming that the Burnup & Sims framework is the correct analysis, the judge prop- erly found that the Respondent violated the Act by disci- plining Griego on October 20. 2. December 15, 2000 warning for distribution On December 15, 2000, employee Griego was sum- moned to a meeting with Managers Dutton and Seals in Dutton’s office, at which she was issued a “written coaching” for distributing union material on the sales floor in violation of the Company’s solicitation and dis- tribution policy. The written coaching referenced Griego’s prior coaching on October 20 and stated, “[t]he next level of corrective action [will] be: Decision making day” if Griego persisted in this conduct. The judge dismissed the allegation that Griego’s De- cember 15 warning violated Section 8(a)(3) and (1) of the Act. He did so on the ground that Griego had, on this occasion, violated the Respondent’s solicitation and dis- tribution policy, and that the evidence did not demon- strate disparate treatment. The General Counsel and the Charging Party except to this dismissal, contending that Griego’s discipline was more severe than would have been warranted under a nondiscriminatory application of the Respondent’s poli- cies, because it built upon the unlawful discipline issued to her on October 20. We find merit in this argument. As discussed above, on October 20, 2000, the Respon- dent gave Griego a “verbal coaching” for violations of its solicitation and distribution policy that she had not, in fact, committed. Therefore, but for that unlawful disci- pline, Griego would have received, at most, a “verbal coaching” on December 15, instead of the next step in the progressive discipline procedure, a “written coach- ing.”17 Accordingly, because the Respondent disciplined Griego on December 15 more severely than it would have done had it not earlier discriminated against her, the December 15 discipline was discriminatory. Accord- ingly, we reverse the judge and find that the December 15 discipline violated Section 8(a)(3) and (1) of the Act. 3. April 26, 2001 creation of the impression of surveillance On April 26, after Griego returned from lunch with fel- low East Tropicana employee Valerie Gonzalez, they stopped inside their work area to talk to employee Jose- phine Ross. Griego asked Ross if she would be available to testify before the Board. During the conversation, Griego handed Ross what the judge described as “a brightly colored, easily identifiable union pen.” At that 17 The record indicates that, in cases of egregious employee miscon- duct, the Respondent may skip the first or first two steps of its progres- sive disciplinary system. The Respondent does not assert, nor does the record suggest, that Griego’s violation of its solicitation and distribu- tion policy constituted egregious misconduct of this kind. WAL-MART STORES 883 point, Assistant Manager Connie Comitor approached the three employees and said to them: “[Y]ou need to take this to the breakroom.18 You know it’s not allowed on the sales floor.” Comitor had observed Griego hand- ing out a union pen earlier that day in a hallway of the store. On those facts, the judge found that Comitor’s conduct violated Section 8(a)(1) by creating the impression of surveillance in light of her “concentrated vigilance of the employees’ union activities.” The Respondent excepts to this finding on the ground that the union activity at issue was conducted openly and that Comitor did nothing out of the ordinary by observing it. Contrary to the judge and our dissenting colleague, we find that Comitor’s conduct did not create an unlawful impression of surveillance. It is well settled that man- agement officials do not create an unlawful impression of surveillance by appearing to monitor union activity that is conducted openly, particularly when it occurs on com- pany premises, unless the officials act in a manner that is out of the ordinary. See, e.g., Rogers Electric, Inc., 346 NLRB 508, 509 (2006); Loudon Steel, Inc., 340 NLRB 307, 313 (2003). Here, Griego handed out a brightly colored union pen openly on the sales floor, a part of the store where employees could reasonably expect man- agement officials to be present in the ordinary course of business. Moreover, the credited evidence does not sup- port a conclusion that Comitor’s behavior was out of the ordinary. We recognize that there were two instances in which Comitor observed union activity that day. However, those instances were neither alleged nor found to be sur- veillance or creating the impression of surveillance. For all that appears they were a consequence of normal ob- servation. Given the openness of Griego’s union activi- ties, and the likelihood that Comitor’s duties as an assis- tant manager would involve the observation of employee activity throughout the store, those two instances are insufficient to establish that her observation of Griego’s activity,19 reasonably created on impression that Comi- tor was spying on employees. 18 We have corrected the judge’s inadvertent misspelling of Comi- tor’s name. 19 Rogers Electric, Inc., supra, 346 NLRB 508, 509; Hoschton Gar- ment Co., 279 NLRB 565, 566 (1986); and Eddyleon Chocolate Co., 301 NLRB 887, 888 (1991), cited by the dissent, are not to the con- trary, and each case is distinguishable on its facts. In Hoschton Gar- ment and Eddyleon Chocolate the employers observed the union activ- ity for sustained periods of time and attempted to totally prohibit the open union activity. That is not the case here. Neither is this case like Rogers Electric where the employer presented employees with a high- lighted phone list, saying it knew which employees had called the un- ion. Here, Comitor merely responded to the employees’ open conduct. Accordingly, we reverse the judge and find that the Respondent did not create an unlawful impression of surveillance by speaking to Griego after observing her hand out a union pen. C. Seizure of Handbills at West Craig On December 12, 2000, Norine Sorensen, whom the Respondent employed at its South Rainbow store, was distributing union handbills outside the Respondent’s West Craig store when she was approached by Tiffani McClendon, a management trainee at that store. Soren- sen had met McClendon once before but did not recog- nize her. As McClendon approached, Sorensen asked her if she was a Wal-Mart employee. McClendon told her that she was and asked Sorensen if she was from store 1584 (South Rainbow). Sorensen told McClendon that she was from that store and began handing McClendon a handbill. McClendon angrily asked Soren- sen, “What are you out here doing this for?” grabbed all of Sorensen’s handbills, and drove off in her car. The judge found that McClendon was the Respon- dent’s agent during this encounter and that, by her con- duct, the Respondent coerced and interfered with union activity in violation of Section 8(a)(1) of the Act. In finding that McClendon was the Respondent’s agent, the judge relied on evidence showing that the Respondent’s management trainees, including McClendon, were aligned with management rather than with the Respon- dent’s statutory employees. In particular, the judge re- lied on evidence showing the management trainees’ re- sponsibility for directing employees’ work, their pres- ence at disciplinary meetings as representatives of man- agement, their longer work hours, higher pay, and differ- ent dress from employees, and their attendance at man- agement meetings. The judge also relied on evidence that the Respondent instructed management trainees to report on union activity with the goal of “stopping” it. In its exceptions, the Respondent argues, inter alia, that it was not liable for McClendon’s seizure of the flyers because the judge erred in finding that she had apparent authority to take this action on the Respondent’s behalf. The Respondent contends that the judge’s finding was incorrect as a matter of law because the General Counsel presented no evidence that the Company manifested to Sorensen, in particular, that it had authorized manage- ment trainees in general to seize union flyers, or that Nor do we agree with the dissent that Comitor’s subsequent unlaw- ful actions establishes the impression of surveillance violation. They are separate violations. The relevant inquiry here is whether, based on Comitor’s conduct, the employees reasonably would have the impres- sion that their union activity is being surveilled. We find that they would not. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 884 Sorensen believed—either actually or reasonably—that McClendon had authority to do so. For the reasons stated below, we find that McClendon was the Respondent’s agent when she seized the flyers from Sorensen because she had actual authority to take this action on the Respondent’s behalf. Because we find that McClendon possessed actual authority, we need not consider the Respondent’s argument that she acted with- out apparent authority. The Board applies common law agency principles to determine the existence of an agency relationship. See, e.g., Tyson Fresh Meats, Inc., 343 NLRB 1335, 1336 (2004). It may, therefore, find an agency relationship between the purported agent and the principal where the agent possesses either actual or apparent authority to act on the principal’s behalf: [A]ctual authority refers to the power of an agent to act on his principal’s behalf when that power is created by the principal’s manifestation to him. That manifestation may be either express or implied. Apparent authority, on the other hand, results from a manifestation by a principal to a third party that another is his agent. Id., quoting Communications Workers Local 9431 (Pacific Bell), 304 NLRB 446 fn. 4 (1991). For responsibility to attach under either theory of agency, it is not necessary that the principal expressly authorize, actually desire, or even know of the action in question. A “principal is responsible for its agent’s ac- tions that are taken in furtherance of the principal’s inter- est and fall within the general scope of authority attrib- uted to the agent.” Tyson Fresh Meats, supra, 343 NLRB at 1337, quoting Bio-Medical of Puerto Rico, 269 NLRB 827, 828 (1984). Moreover, under the common law of agency, a principal may be responsible for its agent’s actions if the agent reasonably believed from the principal’s manifestations to the agent that the principal wished the agent to undertake those actions. See Re- statement 2d, Agency, § 33. Applying these principles, we find that the Respondent was liable for McClendon’s seizure of the flyers, because the General Counsel has shown that McClendon’s action was within the scope of her actual authority. In making this finding, we rely on credited evidence that the Re- spondent communicated to McClendon, along with other management trainees, that the Company was opposed to unionization and that trainees were to report on union activity with the goal of “stopping” it. Given that evi- dence, we find that, even though there is no record evi- dence that the Respondent expressly authorized McClendon to seize the flyers, McClendon would rea- sonably have believed that the Respondent desired her to do so. We therefore affirm the judge’s conclusion that the Respondent violated Section 8(a)(1) through McClendon’s action. III. REMEDIAL ISSUES A. Griego’s Entitlement to Reinstatement According to the judge’s uncontested finding, the Re- spondent violated Section 8(a)(3) when it failed to pro- mote Griego to pharmacy cashier at the East Tropicana store in January 2001. Thereafter, Griego left her em- ployment with the Respondent in May 2001. She testi- fied at the hearing that, due to some medical problems, she decided to quit her employment on the advice of her doctor. Notwithstanding the judge’s finding that Griego “voluntarily left her employment in May 2001,” he rec- ommended that, to remedy its discrimination against Griego, the Respondent be ordered to offer Griego in- statement to the pharmacy position or its equivalent, and to make Griego whole for any loss of earnings and bene- fits she suffered between the unlawful failure to hire and the offer of instatement. The Respondent excepts to the judge’s recommenda- tion on the ground that, because Griego left her employ- ment with the Respondent voluntarily, she is not entitled to an instatement order nor to backpay beyond the date of her resignation. The General Counsel responds that Griego’s entitlement to instatement and the duration of her entitlement to backpay should be decided at compli- ance because that is the Board’s usual practice and the record is incomplete regarding the circumstances of Griego’s resignation. We agree with the Respondent. Contrary to the Gen- eral Counsel and our dissenting colleague, it is not the Board’s usual practice to leave to compliance the issue of whether an employee who voluntarily quits after being subjected to unlawful discrimination is entitled to an of- fer of reinstatement and backpay. Rather, the Board de- cides from the record of the merits hearing whether the respondent’s unlawful conduct caused the employee’s resignation. See, e.g., Sunrise Senior Living, Inc., 344 NLRB 1246 fn. 5 (2005), enfd. mem. 183 Fed. Appx. 326 (4th Cir. 2006); Dauman Pallet, Inc., 314 NLRB 185, 187 (1994). If the Board finds otherwise, it does not order reinstatement, and it cuts off the Respondent’s backpay liability to the discriminatee as of the date of the discriminatee’s resignation. Sunrise Senior Living, su- pra. Here, Griego testified that she terminated her employ- ment with the Respondent on the advice of her doctor, and there is no affirmative evidence to show that her res- ignation was in any way related to the Respondent’s fail- WAL-MART STORES 885 ure to offer her the job of pharmacy cashier.20 We find, therefore, that her resignation in May was not caused by the Respondent’s unlawful conduct. Accordingly, we amend the Order by removing the requirement that the Respondent offer Griego instatement to the position of pharmacy clerk, and by limiting the Respondent’s back- pay liability to the period between its failure to promote Griego to that position and Griego’s resignation. B. The Notice to Employees In his recommended Order, the judge required the Re- spondent to post the same remedial notice at each of the three locations at which he found that the Respondent had committed unfair labor practices. The judge did not explain why a consolidated notice was appropriate. The Respondent argues that the judge erred in ordering the posting of a consolidated notice, contending that this requirement departs from the Board’s usual practice of directing that remedial notices refer only to the specific violations that occurred at the location where the notice is posted. Contrary to our dissenting colleague, we find merit in the Respondent’s exception. In cases such as this one, where different violations of the Act are found at various locations in the same geographic area, the Board orders a common notice when it finds “considerable similarity in the nature of the unfair labor practices” committed at the different locations. Albertsons, Inc., 307 NLRB 787 (1992), enft. denied mem. 8 F.3d 20 (5th Cir. 1993); G. C. Murphy Co., 216 NLRB 785 (1975). Where, how- ever, there is only one unfair labor practice common across the different locations, the Board orders the post- ing of notices conforming to the specific violations found at each store. F. W. Woolworth Co., 173 NLRB 1146, 1146–1147 (1968). Here, the only unfair labor practice found to have taken place at more than one location was interference with union handbilling, at East Tropicana and West Craig. With the exception of the June 17, 2000 dispar- agement of Hammond’s union activity at South Rain- bow, the Respondent’s other unfair labor practices were confined to East Tropicana. Given the more limited na- ture of the violations at the other stores, the Respondent’s unfair labor practices at each store cannot be fairly char- acterized as displaying “considerable similarity” to one another. In these circumstances, we find that a common 20 We are unpersuaded by our dissenting colleague’s speculation re- garding Griego’s decisionmaking process. Her own testimony was that she resigned on the advice of her doctor because of medical problems. notice is inappropriate, and we shall modify the Order accordingly.21 ORDER The Respondent, Wal-Mart Stores, Inc., Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Disparaging employees’ union activities or inviting them to quit because they support the Union. (b) Discriminatorily disciplining employees because they have engaged in activities on behalf of the United Food and Commercial Workers International Union, or any other labor organization. (c) Discriminatorily preventing employees from en- gaging in solicitations and distributions of union materi- als or promulgating and enforcing no-solicitation, no- distribution rules that are overly broad and discrimina- tory. (d) Preventing or hindering employees from engaging in union activities on the sidewalks and parking lots in front of Respondent’s stores. (e) Confiscating union literature from employees who are lawfully distributing such materials. (f) Refusing and failing to select employees for posi- tions in Respondent’s stores because those employees have engaged in union activities. (g) Interrogating employees concerning their union ac- tivities. (h) Threatening employees with the loss of benefits because they engage in union activities. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Diana (Angie) Griego whole for any loss of earnings and other benefits suffered as a result of the discrimination against her, from the date that the Re- spondent failed to hire her as pharmacy clerk until the date of her voluntary resignation, with interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). (b) Within 14 days from the date of this Order, remove from its files any reference to the unlawful denial of the pharmacy clerk position to Diana Griego and the dis- criminatory discipline given to Griego and, and within 3 days thereafter notify her in writing that this has been done and that the discriminatory memos and warnings will not be used against her in any way. 21 In view of the fact that the December 12 seizure of union handbills at West Craig affected an employee from the South Rainbow store, the notices at both of those locations will refer to that conduct. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886 (c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its stores in Las Vegas copies of the attached notices: the notice marked “Appendix A” at the South Rainbow Boulevard store, the notice marked “Appendix B” at the East Tropicana Avenue store, and the notice marked “Appendix C” at the West Craig Road store.22 Copies of the notices, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representative, shall be posted by the Respon- dent and maintained for 60 consecutive days in con- spicuous 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 any of the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notices to all current employees and former employees employed by the Respondent at the closed facility or facilities at any time since June 17, 2000. Excel Container, Inc., 325 NLRB 17 (1997). (e) 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 Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. MEMBER WALSH, dissenting in part. I agree in most respects with my colleagues. I dis- agree, however, with their refusal to adopt the judge’s findings that the Respondent violated the Act at South Rainbow Boulevard (South Rainbow), by disparately enforcing its solicitation and distribution policy against employee Avis Hammond on July 12 and August 30, 2000, and at East Tropicana Avenue (East Tropicana), by 22 If this Order is enforced by a judgment of a United States court of appeals, the words in the notices reading “Posted by Order of the 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.” creating an unlawful impression of surveillance through its treatment of employee Diana (Angie) Griego on April 26, 2001. I also disagree with the majority’s refusal to adopt in full the judge’s recommended remedial order: I would grant the standard instatement and make-whole remedy to Griego for the Respondent’s unlawful denial of a pharmacy clerk position to her, and I would require the Respondent to post the same notice to employees at all three stores. I. UNFAIR LABOR PRACTICES A. Disparate Enforcement of Solicitation and Distribution Policy at South Rainbow The judge correctly found that on July 12 and August 30, 2000, the Respondent violated Section 8(a)(1) by disparately enforcing its solicitation and distribution pol- icy against employee Hammond’s union activity. The judge credited the unrebutted testimony of photo lab em- ployee Norine Sorenson, that Pam Robinson, an em- ployee and later a management trainee, sold Avon prod- ucts and candy in work areas and during work hours over the same period of time that Robinson worked in the camera department. Sorenson’s testimony establishes that Robinson’s so- licitation was not a one-time incident but a continuing practice. Specifically, Sorenson testified that Robinson “was selling Avon and sometimes candy” (emphasis added) after Robinson started working in the department in early 2000. Sorenson also testified that Robinson openly left the Avon catalog on the desk of Department Manager Glenda Curry, further showing that Robinson conducted her solicitation over time and with the condo- nation, or at very least the knowledge, of management.1 On this record, I would find, in agreement with the judge, that the Respondent tolerated open and ongoing commercial solicitation, and therefore, that the Respon- dent discriminated when it enforced its solicitation and distribution policy against Hammond for engaging in that activity on behalf of the Union.2 1 Curry did not testify. The judge properly drew an adverse infer- ence that, had Curry testified, she would have conceded knowledge of Robinson’s activity. 2 The cases cited by my colleagues, in which the Board rejected find- ings of disparate enforcement because the evidence showed only iso- lated instances of tolerated nonunion solicitation, are not to the con- trary. In Summitville Tiles, 300 NLRB 64, 66–67 (1990), Albertson’s Inc., 289 NLRB 177, 191 (1988), and Uniflite, Inc., 233 NLRB 1108, 1111 (1977), the Board’s conclusion was based on evidence showing that an insufficient number of discrete incidents of tolerated nonunion solicitation took place to establish disparate enforcement. Here, al- though only one individual has been shown to have engaged in nonun- ion solicitation, her solicitation was not an isolated incident but a con- tinuing practice, and a practice that she engaged in openly and with impunity. The evidence is therefore sufficient to show that the Re- spondent did not generally enforce its solicitation and distribution pol- WAL-MART STORES 887 B. Creation of the Impression of Surveillance at East Tropicana The judge correctly found that the Respondent created an impression of surveillance on April 26, 2001, when Assistant Manager Connie Comitor approached employ- ees Griego, Valerie Gonzalez, and Josepine Ross after Griego gave Ross a pen bearing a union message, “Be Wise—Organize,” at the entrance to the selling area, and told them to “take it to the breakroom.” The judge also found that Comitor’s instruction unlawfully discrimi- nated against union activity because the Respondent did not restrict the use or exchange of any other kind of pen—a finding to which the Respondent does not except. An employer creates an impression of surveillance if employees would reasonably conclude from the em- ployer’s words or conduct that their union activities are being monitored. Mountaineer Steel, Inc., 326 NLRB 787 (1998), enfd. mem. 8 Fed Appx. 180 (4th Cir. 2001). If an employer behaves in a manner that is out of the ordinary as it observes union activities, or by its state- ments or actions implies that it has done so, it engages in unlawful surveillance or creates an unlawful impression of surveillance, even if the employees’ union activities are conducted openly. Loudon Steel, Inc., 340 NLRB 307, 313 (2003). In determining whether an employer’s observation of open union activity is out of the ordinary, the Board takes into account whether the employer’s observations occurred in connection with other coercive behavior. See Rogers Electric, Inc., 346 NLRB 508, 509 (2006) (unlawful threats accompanied employer’s dis- play of phone records showing calls made by employees from a company phone in furtherance of their protected activity); Hoschton Garment Co., 279 NLRB 565, 566 (1986) (unlawful attempt to prohibit open union hand- billing accompanying observation of that activity); Ed- dyleon Chocolate Co., 301 NLRB 887, 888, (1991) (un- warranted summoning of police and threat to close plant accompanying observation of open union handbilling). Here, Griego’s distribution of the union pen was con- ducted openly on company premises. However, as ex- plained below, Comitor’s observation of Griego’s activ- ity, particularly when combined with Comitor’s prohibi- tion of this activity, would not have reasonably been per- ceived as ordinary behavior by management. The Re- spondent, through Comitor, therefore created an unlawful impression of surveillance. First, as Comitor testified, her encounter with Griego over the pen was the second occasion on which she ob- served Griego distributing pens that day. Earlier that icy, and that it was not, therefore, entitled to do so against union activ- ity. day, Comitor observed Griego giving a union pen to an- other coworker at another location. The fact that on the same day, on two occasions in two different places, a company official with overall managerial responsibilities for a store with some 400 employees was present to ob- serve the union activities of 1 of the 2 active union sup- porters at the store would strongly suggest to employees that Comitor was paying unusual attention to those ac- tivities. The reasonableness of that inference is sup- ported by the fact that Comitor recorded and reported the encounters, because she “felt it was necessary to have notes taken when we would have any type of reaction regarding this.” There is no evidence that Comitor made such notes or reports when she gave similar instructions to employees on matters unrelated to the Union. More- over, the judge’s inference that Comitor exercised “con- centrated vigilance” over Griego’s union activity is sup- ported by the Respondent’s overall system for monitor- ing and combating union organizing efforts. This sys- tem, set out in a document entitled “Manager’s Tool- box,” required managers to be “constantly alert for ef- forts by a union to organize your associates” and to re- port such efforts via a telephone hotline to the labor- management team at Wal-Mart’s Bentonville headquar- ters.3 Second, even assuming that Comitor’s repeated overt observations of Griego’s pen distribution were not, in themselves, unusual conduct by a management official, her scrutiny of Griego was combined with a discrimina- tory attempt to prohibit activity that the Respondent or- dinarily–that is, when it was not union related— tolerated. See Hoschton Garment Co., supra at 566; Ed- dyleon Chocolate Co., supra at 888. For those reasons, I would find, in agreement with the judge, that Comitor’s overt monitoring of, and interven- tion against, Griego’s distribution of union pens unlaw- fully created an impression of surveillance. II. REMEDIAL ISSUES A. Griego’s Entitlement to Instatement and Backpay The Respondent unlawfully denied Griego the position of pharmacy clerk in January 2001. In May 2001, Griego, who was the object of numerous unfair labor practices, resigned her employment with the Respondent. In agreement with the judge, I would leave to compliance the issue of whether the Respondent should be ordered to offer Griego instatement to the position of pharmacy 3 There are no allegations, and the judge made no finding, that the maintenance of this reporting system was itself unlawful. But even in the absence of such a finding, the toolbox is relevant evidence when considering the merits of allegations that managers engaged in unlawful conduct toward employees in furtherance of the goals, and consistent with the directives, that the toolbox sets out. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 888 clerk and to make her whole for loss of earnings and benefits pending that offer. Contrary to my colleagues, the record does not show that Griego’s decision to resign from the Respondent’s employment in May 2001 was the result of medical is- sues rather than its discrimination against her. Accord- ing to Griego’s uncontradicted testimony, she applied for the pharmacy clerk position because she saw that job as a step toward her long-term goal of qualifying as a phar- macy technician.4 In light of that testimony, it is not reasonable to assume that the medical issues Griego re- ferred to in her testimony would have motivated her to quit regardless of where she was working for the Re- spondent in May 2001. In any event, Griego’s testimony that she left the Respondent’s employment after being advised to do so by her doctor was not offered to explain why she quit, but merely to clarify when she did so.5 Indeed, immediately after leaving the Respondent’s em- ploy, she took another job, at Albertson’s Fuel Express. Thus, on the record as it now stands, the majority’s con- clusion that Griego would have resigned in any event has little evidentiary support. And that evidence is a slim basis on which to absolve the Respondent from the usual consequences of its admittedly unlawful conduct. In these circumstances, I would find, in agreement with the General Counsel, that the record is too unsettled to deprive Griego of instatement and backpay. Certainly the judge thought that. Accordingly, I would adopt the judge’s standard instatement and make-whole remedy. That remedy would allow the Respondent to litigate at compliance whether Griego would have quit even in the absence of its unlawful conduct. See U.S. Service Indus- tries, 324 NLRB 834, 837 fn. 18 (1997). B. The Notice Posting Requirement The judge correctly recommended that the Respondent be ordered to post at each of the three stores at issue in this case a single notice referring to the unfair labor prac- tices committed at all three stores. Under established precedent, it is appropriate to order an employer that has 4 The relevant testimony is set out at Tr. 741: [COUNSEL FOR THE GENERAL COUNSEL]: [W]hy was it that you applied for the job as pharmacy clerk? [GRIEGO]: Because I had always [wanted] to go back to the pharmacy. That’s where I started. I had goals for myself. I had wanted to become a pharmacy tech. That was the goal I had at Wal-Mart. 5 The relevant testimony is set out at Tr. 774: [COUNSEL FOR THE GENERAL COUNSEL]: I believe you said you left your employment with Wal-Mart in May. About when was that in May? [GRIEGO]: Actually it was late in May. I had actually gone to see my doctor and I had some medical problems, and the doctor herself advised me to, in her words, take a leap of faith and just move on to another job. contemporaneously committed unfair labor practices at separate locations to post the same notice at each of those locations if the unfair labor practices are of a “similarly unlawful character” and if, because the locations are within the same geographic and corporate district, there is “at least reasonable cause for concern that the employ- ees of one store would become aware of the [r]espondent’s similar conduct at the other[s].”6 In the instant case, both of those factors are satisfied. First, the Respondent’s unfair labor practices were of a “similarly unlawful character” because they all tended to prevent the union from communicating its message to the Respondent’s employees. Albertson’s, supra at 789. More particularly, at each of the three stores, the Re- spondent has been found to have either directly interfered with union solicitation and distribution or to have pun- ished or threatened the few employees who engaged in that activity. Second, given that violations occurred dur- ing the same period, were directed at a single organizing campaign by a single union, and took place within the same metropolitan area, there is “at least reasonable cause for concern” that the employees at each store might become aware of the Respondent’s misconduct at the other stores. Id. For those reasons, I would require the Respondent to post a common notice at each of the three stores where it violated the Act. (SOUTH RAINBOW BOULEVARD STORE) 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. 6 Albertson’s Inc., 307 NLRB 787, 789 (1992), enft. denied mem. on other grounds 8 F.3d 20 (5th Cir. 1993); see also ABC Liquors, Inc., 263 NLRB 1271, 1272 (1982); G. C. Murphy Co., 216 NLRB 785 (1975). WAL-MART STORES 889 WE WILL NOT disparage your union activities or invite you to quit because you support the Union. WE WILL NOT prevent or hinder you from engaging in union activities on the sidewalks and parking lots in front of our stores. WE WILL NOT confiscate union literature from you when you are lawfully distributing such materials. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WAL-MART STORES, INC. (EAST TROPICANA AVENUE STORE) APPENDIX B 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 discipline or otherwise discriminate against you because you have engaged in activities on behalf of the United Food and Commercial Workers In- ternational Union, or any other labor organization. WE WILL NOT discriminatorily prevent you from en- gaging in solicitations and distributions of union materi- als or promulgate and enforce no-solicitation, no- distribution rules that are overly broad and discrimina- tory. WE WILL NOT prevent or hinder you from engaging in union activities on the sidewalks and parking lots in front of our stores. WE WILL NOT refuse and fail to select you for positions in our stores because you have engaged in union activi- ties. WE WILL NOT coercively question you about your un- ion support or activities. WE WILL NOT threaten you with the loss of benefits be- cause you engage in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL make Diana (Angie) Griego whole for any loss of earnings and other benefits resulting because of our failure to select her as pharmacy cashier at our East Tropicana store, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from all of our records, the discriminatory discipline, and any reference to that discipline, of Diana Griego (including our denial of the job of pharmacy cashier to Griego), and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that this discipline and refusal to select will not be used against her in any way. WAL-MART STORES, INC. (WEST CRAIG ROAD STORE) APPENDIX C 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 prevent or hinder you from engaging in union activities on the sidewalks and parking lots in front of our stores. WE WILL NOT confiscate union literature from you when you are lawfully distributing such materials. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WAL-MART STORES, INC. Nathan W. Albright, Esq., for the General Counsel. Steven D. Wheeless, Esq. and Myndi M. Kort, Esq., for the Re- spondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 890 Christyne L. Neff, Esq., for the Charging Party Union. DECISION1 ALBERT A. METZ, Administrative Law Judge. This case in- volves issues of whether the Respondent has violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act).2 I. JURISDICTION AND LABOR ORGANIZATION The Respondent is a Delaware corporation that is engaged in the nationwide retail sale of consumer products. It maintains retail store locations in the Las Vegas, Nevada area including facilities referred to as South Rainbow, East Tropicana, and West Craig. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Charging Party Union (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND In 2000, the Union was engaged in a campaign to organize em- ployees at the Respondent’s Las Vegas retail stores. Beginning in 2000 the Union filed numerous unfair labor practice charges against the Respondent alleging violations of the Act that occurred between June 2000 and May 2001. The Government issued a consolidated complaint alleging that the Respondent had commit- ted numerous unfair labor practices.3 The facts center upon allega- tions involving unlawful surveillance of employees union activi- ties, interrogations, threats, no-solicitation/no-distribution rules, removal of employees and nonemployees who were handbilling for the Union from store premises and discrimination against em- ployees Avis Hammond, Angie Griego, and Norine Sorensen. Avis Hammond and Norine Sorensen were employees at the South Rainbow Boulevard store and Diana (Angie) Griego was an employee at the East Tropicana Avenue store. III. AGENCY AND SUPERVISORY STATUS OF MANAGEMENT TRAINEES During the relevant time involved in these cases, Robert Knick- erbocker was the store manager of the Rainbow Store and Mark Dutton was the store manager of the Tropicana Store. The Re- spondent admits that numerous other specified personnel working at the Las Vegas stores are its supervisors and agents as defined in the Act. The Government alleges that management trainees Matt Ward, Betty Leasau, William Hale, who worked at the Rainbow Store, and Tiffani McClendon, who worked at the West Craig Road store, are Respondent’s supervisors and/or agents. It is as- serted these individuals committed several unfair labor practices, including surveillance and, in McClendon’s case, taking union materials from an employee. The Respondent denies that these management trainees are its supervisors or agents. Ward was hired as a manager trainee at the Rainbow Store on July 1 and continued in that position until he was promoted to assistant manager on October 21. Leasau commenced work as a manager trainee at the Rainbow store on July 1 and continued in 1 This case was heard at Las Vegas, Nevada, on various trial dates between January 15 and February 28, 2002. 2 29 U.S.C. § 158 (a)(1) and (3). 3 The Government withdrew par. 5(o) of the complaint at the hear- ing. that position until she was promoted to an assistant manager on March 10, 2001. Hale was hired as a manager trainee at the Rain- bow store on July 15 and continued in that position until he quit his employment on June 5, 2001. McClendon was hired as a manager trainee at the Rainbow store on September 23. On November 18 she was transferred to the Craig store as a “comanager in training.” McClendon was employed as comanager in training until May 19, 2001, when she was designated a night receiving manager at one of Respondent’s other Las Vegas stores. South Rainbow store manager, Robert Knickerbocker, testified that a comanager in training is a “store manager” in training. The Respondent stipulated that McClendon was a “comanager trainee at the West Craig Store” and a manager trainee. Rainbow store Comanager Jim Eble described a comanager as a training position for store manager. Terry Owens, the store manager at the Craig Road store, testified that he trained McClendon. Owens testified that McClendon’s workday consisted of approximately 2 hours of study with the remainder of her time spent observing him perform his store manager duties. The Respondent maintains a manager trainee job description that sets forth the following items concerning their duties: 1. Follows direction of Store Manager to gain opera- tional, Merchandising and Personnel knowledge following the company-directed training Plan. 2. Answers customer complaints or inquiries. 3. Directs compliance of Associates [employees] with established company policies, procedures and standards such as safekeeping of Company funds and property, per- sonnel and complaint Open Door practices. 4. Assists another member of management or Support Manager with opening and closing the store. 5. Ensures compliance of Associates with established security, sales, and record-keeping procedures and prac- tices. [GC Exh. 8.] Management trainees participate in a 16 to 20 week manage- ment trainee program that includes working closely with manag- ers and completing a computerized training and testing program. Management trainees commence their duties by printing a copy of their training manual from the Respondent’s computer system. The first page of that manual states, “Congratulations for being selected to join the ranks of management with our Company!” The trainees work closely with store supervision and the store manager signs his approval that the trainees complete each stage of their training. After the successful completion of their instruc- tion the trainees are assigned to salaried managerial positions. One computer module that management trainees are required to take is the “Hourly Supervisor Labor Relations Test.” One ques- tion on this test asks what is “Wal-Mart’s first line of defense for identifying and stopping union activity.” The correct answer to that question is the management trainees themselves, “as supervi- sors.” The test asks trainees if it is correct that they “should report any and all early warning signs of union activity to your Store Manager.” The correct answer to this question is “yes,” and the test amplifies the answer by directing the management trainee that, “[a]ny sign or suspicion of union activity should be reported to the Store Manager immediately.” Ward, Leasau, Hale, and WAL-MART STORES 891 McClendon all took the hourly supervisor labor relations test as part of their management training. Management trainees attend regular weekly management meet- ings. They also attended management meetings held to discuss the Respondent’s reply to union activity occurring at the Las Vegas stores. South Rainbow store manager, Robert Knickerbocker, testified that he expected all management trainees and other sala- ried members of management to report all union activity occurring inside the store and that he had directed the management trainees to report all union activity occurring in the store to an assistant manager. Such instructions are consistent with a “Manager’s Toolbox” document that the Respondent maintains specifying the Respondent’s position that “Wal-Mart is strongly opposed to third party representation.” Managers are instructed to stay alert to union organizational activities and follow the instructions in the toolbox as, “It will provide you with valuable information on how to remain union free in the event union organizers choose your facility as their next product.” The toolbox also instructs managers to report union activity to a “union hotline” telephone number at the its Bentonville, Arkansas headquarters. (GC Exh. 11.) Trainees attend meetings where senior managers discuss disci- pline or corrective actions with employees. The role of the trainees is to serve as a company witness and observe what occurs. They may sign disciplinary coaching forms that are given to employees. Ward and Hale signed I-9 reports as an “authorized representa- tive” of Respondent verifying that the Respondent could lawfully hire applicants. Ward, Hale, and McClendon interviewed prospec- tive employees, filled out Respondent’s employee interview forms and made recommendations that the individuals be hired. The management trainees dress in shirts and do not wear the smocks or vests that Respondent’s employees wear. The trainees may instruct employees on how to perform their work. The train- ees’ job description states they have the authority to direct and ensure compliance by associates with company policies, proce- dures and practices. Management trainees are expected to report any noncompliance with their directions to the store manager. Such reports can result in discipline of the associate. Management trainees work a 48-hour week while associate hourly employees rarely work overtime. Management trainees receive significantly higher pay than the $7.25 an hour that an hourly associate receives as a starting wage (Ward $10.91, Leasau $10.18, Hale $10.18, and McClendon 15.54). Store Manager Knickerbocker testified that management train- ees Ward, Leasau, Dunn, and Hale: (1) did not have or exercise any independent authority over, or effectively recommend action regarding, the terms and conditions of any associate’s employ- ment; (2) were not held out to associates as individuals who spoke with management’s voice or authority; and (3) trainees Ward, Leasau, Dunn, and Hale did not direct the work activities of any store associate. IV. ANALYSIS OF MANAGEMENT TRAINEES STATUS Section 2(13) of the Act provides: In determining whether any person is acting as an “agent” of another person so as to make such person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be con- trolling. The Board’s decision in Southern Bag Corp., Ltd., 315 NLRB 725 (1994), discusses the principles to be applied in determining when a leadman or other nonsupervisory employee is acting as the agent of an employer: The Board applies common law principles when exam- ining whether an employee is an agent of the employer. Apparent authority results from a manifestation by the principle to a third party that creates a reasonable basis for the latter to believe that the principle has authorized the al- leged agent to perform the acts in question. The test is whether, under all the circumstances, the employees would reasonably believe that the employee in question (the al- leged agent) was reflecting company policy and speaking and acting for management. As stated in Section 2(13) of the Act, when making the agency determination, “the question of whether the specific acts performed were ac- tual authorized or subsequently ratified shall not be con- trolling.” 315 NLRB at 725 [citations omitted]. See also Allegany Aggregates, Inc., 311 NLRB. 1165, 1165–1166 (1993). The Respondent’s training program instructs management trainees that they are responsible for reporting their knowledge of employees’ union activities to management. This directive is a significant admission that the Respondent considers management trainees a part of the management team. Indeed such an instruc- tion to a statutory employee would be unlawful interference under the Act. The management trainees are assigned the role of direct- ing employees’ work and making sure they comply with company policies. They are held out to employees in disciplinary meetings as witness representatives of management. They work longer hours than employees, are more highly paid, dress for work in a different fashion than rank-and-file employees and attend man- agement meetings. I find that the management trainees’ daily work is focused on learning and performing management duties. Their assigned du- ties include the obligation to report union activity to upper man- agement and to serve as the “first line of defense” against union organization. Curtis Industries, 218 NLRB 1447 (1975) (interests of management trainees are aligned with management rather than with regular employees). In light of the management trainees’ duties it is reasonable for employees to believe that they reflect Respondent’s policy and speak and act on behalf of management. I, therefore, find that management trainees are, at a minimum, agents of the Respondent within the meaning of Section 2(13) of the Act. In light of the allegations in the complaint concerning management trainees, I find it unnecessary to additionally decide whether they are supervisors as defined in the Act. U.S. Service Industries, 319 NLRB 231 (1995). V. AVIS HAMMOND A. Hammond’s June 17 Encounter with Salby Avis Hammond worked as a greeter at the Respondent’s Rain- bow store. He was an openly enthusiastic union supporter and the Respondent admits it had knowledge of his union sympathies. The Government alleges that on or about June 17, 2000, Respondent’s district manager, Charles Salby, disparaged its employees who DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 892 supported the Union by telling Hammond that he was not worthy of working for the Respondent, and invited him to quit because he supported the Union. On approximately June 17, Hammond went to work in posses- sion of several copies of a union press release entitled “Wal-Mart Layoffs Approaching ‘Critical Mass’ for Over-worked Workers Says UFCW.” Hammond placed a copy of the press release in the store mailbox belonging to Assistant Manager Linda Burke. A short time later Burke sought out Hammond and asked him if he really believed the thesis of the press release, i.e., that the Respon- dent was laying off some workers and cutting the hours of others. Hammond said that he did believe the content of the release and thought this treatment was happening to him. Later in the day, Hammond was working in the garden center of the store when he had a conversation with Respondent’s district manager, Chuck Salby. Hammond testified he handed Salby a copy of the press release. According to Hammond, Salby told him that if he believed the release he was not worthy of working at Wal-Mart. Hammond testified that Salby then tore up the press release and threw it in a trash receptacle. Hammond testified that they then discussed some work issues that concerned Hammond and concluded their discussion with a friendly handshake. Salby testified that Hammond did speak to him in the garden department about some concerns he had regarding his scheduling including wanting to work in the garden area and being assigned the same number of hours and days of the week for his work. Salby denied that Hammond ever handed him any papers or that they discussed anything other than Hammond’s scheduling con- cerns. Salby denied he ever told Hammond that he was unworthy of working for the Respondent if he believed the Union’s press release. Salby denied that on June 17 he had any knowledge of any union activity concerning the Respondent in Las Vegas. Sub- sequent to June 17, Hammond and Salby participated in a cordial oral and written exchange regarding Hammond’s scheduling con- cerns. I have assessed the credibility of Hammond and Salby regard- ing what occurred during their conversation. It is undisputed that Hammond did have the Union’s press release with him on the day in question. He had already made a point of giving a copy to an- other member of management before he encountered Salby. Hammond was a fervent union supporter who openly conducted his activity. Based particularly on demeanor I found Hammond to be the more persuasive and accurate witness as to what occurred on this occasion.4 NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). I find that Salby did tell Hammond that if he believed the Union’s press release he was not worthy of working for the Re- 4 I note that throughout this decision certain witnesses’ testimony has been credited in some instances and discredited in others. Such assessments are common for a finder of fact in attempting to accurately determine what has occurred in a given case. NLRB v. Universal Cam- era Corp., 179 F.2d 749 754 (2d Cir. 1950) (“Nothing is more common in all kinds of judicial decisions than to believe some and not all [of what a witness says].”); Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394 (6th Cir. 1968) (“A fact finder—jury, judge or administrative agency—is not barred from finding elements both of truth and untruth in a witness’ testimony.”); NLRB v. Pat Izzi Trucking Co., 395 F.2d 241, 244 (1st Cir. 1968) (“That part of a witness’ testimony is not be- lievable does not of itself destroy the rest.”). spondent. I find that such a comment, particularly coming from a high management official, did have a tendency to interfere with, restrain, and coerce an employee in the exercise of his protected rights under the Act. Fieldcrest Cannon, Inc., 318 NLRB 470, 490 (1995) (The test of whether an employer’s remarks or actions violated Section 8(a)(1)’s prohibition against interference, restraint or coercion is not whether it succeeds or fails, but, rather, the ob- jective standard of whether it tends to interfere with the free exer- cise of employee rights under the Act.). I find that the Respondent did violate Section 8(a)(1) by Salby’s comment to Hammond that disparaged his union activity and invited him to quit employment. Star Trek: The Experience, 334 NLRB 246, 256 (2001) (Suggest- ing that employees don’t have to work for the Respondent con- veys the message that engaging in protected activity is incompati- ble with continued employment.); Highland Yarn Mills, Inc., 313 NLRB 193, 201 (1993) (Supervisor telling an employee he was a loser for supporting the union); Sunland Construction, Co., 309 NLRB 1224, 1235 (1992) (telling union supporter that union ac- tivity was incompatible with employment). B. Hammond’s July 12 Warning Employee Maxine Matevich testified that Avis Hammond had given her some union literature while she was working in the garden department and had asked her to pass it out. I credit Mate- vich that Hammond did solicit her concerning the Union and gave her union literature while she was on worktime in a work area. Hammond testified that on July 12 he was summoned to a meeting with Store Manager Knickerbocker, Comanager Jim Eble, and management trainees Jeff (Dunn) and Mark (Ball). Hammond recalled that Knickerbocker told him he was being given a verbal warning for solicitation on “Wal-Mart property.” Hammond said he did not understand, and according to Hammond, Knickerbocker told Hammond he “had been passing out Union literature, which was prohibited.” Hammond stated that he believed he had only handed out union literature in the break- room on his breaktime, but if he had done otherwise he apolo- gized. Respondent’s witnesses Knickerbocker, Eble, Dunn, and Ball had a different recollection of events. In sum, their testimony was that neither Knickerbocker nor Dunn were present during this meeting. Eble testified that Knickerbocker informed him that Hammond had solicited and distributed union literature to Matevich on the sales floor. Knickerbocker had to be absent from the store and asked Eble to “coach” Hammond about the Respondent’s solicita- tion and distribution policy. Eble prepared for his meeting with Hammond by printing a copy of the Respondent’s solicitation and distribution policy from the computer. Hammond was then sum- moned to the meeting that was attended only by Eble and man- agement trainee Mark Ball. Eble testified that he told Hammond there was evidence that he had violated the solicitation and distribution policy by handing out non-work related literature on the sales floor and that he was thus being given a verbal coaching. Eble read the solicitation policy to Hammond and gave him the policy to examine. Hammond looked at the policy and told Eble he understood it and knew where he could and could not distribute literature. WAL-MART STORES 893 Ball testified that he was present at the meeting and Eble ex- plained to Hammond that he had violated the Company’s solicita- tion and distribution policy. Eble then read the policy to Hammond and asked him if he wanted to look at the policy. Ball recalled that Hammond glanced at the policy and said he was aware of what it contained. In sum, the Respondent’s policy al- lows solicitation and distribution in break areas on nonworktime and prohibits such activity in sales and work areas of stores. The Government does not challenge the facial validity of the Respon- dent’s solicitation and distribution policy. Knickerbocker, Eble, Ball, and Dunn impressed me as careful witnesses who were certain of their testimony. Eble demonstrated particularly good recall of his preparation for the coaching meet- ing and what occurred during the meeting and appeared to testify to the best of his ability. I credit the testimony of the Respondent’s witnesses as to who was present and what took place in the July 12 meeting. Considering the respective demeanor of the witnesses, the relative detail of their testimony and the record as a whole (including GC Exh. 25, a company record of the meeting, and the testimony concerning that exhibit, all of which I have considered in making this assessment), I find that Hammond was mistaken about Knickerbocker and Dunn being present. I find that Knicker- bocker did not give Hammond a coaching on July 12 and I thus do not credit Hammond’s version of what was said in the meeting. I further find that Eble simply read the rule to Hammond, gave it to him to examine, and there is no credible evidence that he told Hammond there were other restrictions on soliciting or distribut- ing beyond what is stated in the rule. The Government argues that the Respondent violated Section 8(a)(1) of the Act in this meeting with Hammond because “Knick- erbocker”: (1) promulgated and enforced an overly broad and discriminatory no-solicitation rule by prohibiting Hammond from soliciting for the Union; and (2) created an impression among its employees that their union activities were under surveillance. The Government further alleges that the same meeting violated Section 8(a)(1) and (3) of the Act because Hammond was issued “an un- warranted and undeserved disciplinary warning.” I find that the Government’s allegations naming Knickerbocker as having committed unfair labor practices in the July 12 meeting are without merit as the credited evidence shows that he was not present. The subject of the July 12 meeting was fully litigated and I have thus considered what Eble told Hammond. A. O. Smith Automotive Products Co., 315 NLRB 994 (1994); Denholme & Mohr, Inc., 292 NLRB 61 fn. 1 (1988). The Government asserts that the warning given to Hammond was unwarranted based on evidence that store management al- lowed other types of solicitations that would be in contravention of the solicitation and distribution policy. This argument is based upon the testimony of Norine Sorensen that employee Pam Rob- inson solicited her while at work to buy Avon products and candy. Robinson kept her Avon book in the backroom on department manager’s Glenda Curry’s desk or on an ordering shelf. This ac- tivity took place sometime during 2000. There was no evidence that Robinson was ever coached or otherwise reprimanded by the Respondent for this activity. Robinson worked first as an associate in the department and later as a photo center manager trainee. Neither Robinson nor Curry testified at the hearing. Respondent admits that Curry is its supervisor and agent. Under the adverse inference rule when a party has relevant evidence within its con- trol which is not produced, that failure gives rise to an inference that the evidence would be unfavorable to the party. Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972). Such an adverse infer- ence is appropriate in this case. I find that had Curry testified her testimony would have been contrary to the Respondent’s defense that it did not have knowledge that Robinson solicited for nonun- ion products on work time in work areas. International Automated Machines, 285 NLRB 1122, 1122–1123 (1987). I infer that Curry did know of such activity and find this knowledge is attributable to the Respondent. The record is bereft of evidence that the Re- spondent ever gave any reprimands for such nonunion solicita- tions. Although there was testimony that Robinson was at some point a manager trainee in the photo department, the Govern- ment’s complaint did not allege her to be a supervisor. There was insufficient evidence as to her particular duties that would clarify the point. I thus find that the record does not sustain a conclusion that Robinson was a supervisor at any time relevant to the allega- tions in the complaint. I find that Eble’s July 12 coaching of Hammond was disparate in that he was disciplined for engaging in union solicitation and distribution on worktime while the Respondent allowed other nonunion solicitations to occur without consequences. I conclude that the Respondent did violate Section 8(a)(1) of the Act by such selective application of its solicitation and distribution policy. I additionally conclude that, contrary to the complaint’s allegations, the Respondent did not violate the Act when it gave Hammond his July 12 coaching because it “promulgated and enforced an overly broad . . . no-solicitation rule.” I find only that the Respondent’s facially valid rule was disparately applied to Hammond in this instance. Clinton Electronics Corp., 332 NLRB 479 (2000). Hammond openly conducted his union activity in the store and solicited employee Matevich while she was on worktime on the sales floor. When Matevich reported Hammond’s conduct to management the Respondent considered it to be a violation of its policy on solicitation and distribution. As a result Hammond was given a coaching for the incident. In Tres Estrellas de Oro, 329 NLRB 50 (1999), the Board set forth the following considerations for ascertaining whether a Respondent had unlawfully created the impression that employees’ protected activities were under sur- veillance: The Board’s test for determining whether an employer has created an impression of surveillance is whether the employee would reasonably assume from the statement in question that his union activities had been placed under surveillance. United Charter Service, 306 NLRB 150 (1992). “The Board does not require employees to attempt to keep their activities secret before an employer can be found to have created an unlawful impression of surveillance. . . . Further, the Board does not require that an employer’s words on their face reveal that the employer acquired its knowledge of the employee’s activities by unlawful means.” Id. at 151. “The idea behind finding ‘an impression of surveillance’ as a violation of Sec- tion 8(a)(1) of the Act is that employees should be free to par- ticipate in union organizing campaigns without the fear that members of management are peering over their shoulders, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894 taking note of who is involved in union activities, and in what particular ways.” Flexsteel Industries, 311 NLRB 257 (1993). A correlative principle recognized by the Board is a balancing of an employee’s right to conduct union activity against an em- ployer’s right to observe conspicuous examples of such behavior without violating the mandate of the Act. As noted, Hammond was being reprimanded for conducting union activity in a sales area during work hours when he solicited Matevich while she was working. The employee reported Hammond’s union activity to management. I conclude that the coaching Hammond received was based upon that employee’s report and did not unlawfully create the impression that his union activities were under surveil- lance by the Respondent. Hoschton Garment Co., 279 NLRB 565 (1986). C. Hammond’s August 30 Warning Employee Robyn Vaughn testified that Hammond gave her un- ion literature at the South Rainbow store on two occasions in Au- gust 2000. One time she was in the return center in the back of the store. The second incident happened while she was working in the pet department on the store sales floor. Hammond was questioned at the hearing about distributing union literature on the sales floor or in work areas. He testified that, “I might have done so.” I found Vaughn to be a believable witness and credit her testimony that Hammond did distribute union literature to her in work areas of the store. Knickerbocker testified that Vaughn reported to him that Hammond had given her union materials in the return center area while she was working separating her returned merchandise. Knickerbocker then had Hammond brought to his office for a coaching. Also present were Assistant Manager Rafael Torres, and manager trainee Dunn. Knickerbocker told Hammond that it had been brought to his attention that Hammond had distributed union literature in a work area, which was in violation of the distribution policy. Knicker- bocker then read a coaching form to him. Knickerbocker re- minded Hammond that he had previously received a verbal coach- ing for violating Respondent’s distribution and solicitation policy. A discussion followed between Hammond and Knickerbocker over the date that the prior coaching occurred. Based on the record as a whole, I find that Hammond’s previous coaching did happen on July 12. Knickerbocker told Hammond that the Respondent recognized that he had rights under the Act and also that the Respondent had rights and that Hammond had violated those rights by distributing union literature in a work area. Knickerbocker told Hammond that he would have to adhere to the Respondent’s solicitation and dis- tribution policy or face further discipline. Hammond said that he did not believe he had violated the Re- spondent’s policy and asked where in the store, and to whom, he had allegedly distributed the material. Knickerbocker replied that he would not disclose who had reported the violation to him for confidentiality reasons, but said that the distribution had happened in the return center work area. Hammond stated that he did not recall doing that, but he possibly could have. Hammond then wrote a lengthy response to the matter on the coaching form and that, in sum, denied violating the distribution and solicitation pol- icy. The meeting then concluded. Knickerbocker testified at length about the work environment in the return merchandise area. This area is located in a nonpublic hallway in the back of the store. The breakroom entrance and the time clock are also located in this hall. The employees work in the hall sorting merchandise to be restocked in the appropriate de- partment. I find that the return area is a work area of the store. As discussed above, I have found that the Respondent did per- mit solicitations involving nonunion matters in work areas of the South Rainbow store. I find that the August 30 discipline given Hammond was disparate treatment by discriminatorily applying Respondent’s valid no solicitation rule to him based on his union activities. I conclude that the Respondent did thereby violate Sec- tion 8(a)(1) of the Act. I further conclude that the August 30 warn- ing given to Hammond was discriminatory and thus violated Sec- tion 8(a)(1) and (3) of the Act. VI. NORINE SORENSEN The Government alleges that the Respondent violated the Act by discriminatorily placing Norine Sorensen on a mandatory leave of absence and not allowing her to return to work without a full medical release. The Respondent contends that Sorensen’s union activities were not involved in the decisions regarding her medical leave. Norine Sorensen worked at the Respondent’s South Rainbow store. She commenced her union activities in August 2000 and openly supported the Union in its organizational efforts. Sorensen worked as a photo lab technician and her duties consisted of proc- essing film, waiting on customers and occasionally assisting in the camera department. Photo Lab Manager Glenda Curry supervised Sorensen. In 1999 and 2000 Sorensen had medical problems involving her knees. Sorensen believed that this medical condition was work-related. On November 2, 2000, she complained of knee problems while working and the Respondent sent her to the Spe- cialty Health Clinic where Dr. John Payne examined her. The doctor placed her on temporary work restrictions of no stooping, kneeling, crawling, climbing ladders, prolonged standing or walk- ing, and 15-minute breaks every 2 hours. Sorensen and the doctor filled out a Nevada State form—“Employee’s Claim for Compen- sation/Report of Initial Treatment.” Sorensen returned to work the day of her injury and told Curry, that she intended to continue her job but the doctor wanted her to try to sit down every couple of hours. Sorensen applied for bene- fits from the Respondent’s workers compensation carrier and she was assigned light-duty work while her claim was pending. Soren- sen testified that she worked the following day and was able to perform her normal duties. Sorensen then requested and received some leave time in order to promote healing of her knees. Sorensen returned to see Dr. Payne at the Specialty Health Clinic on November 8. He gave Sorensen paperwork with the same restrictions he had provided to the Respondent on November 2. Sorensen returned to work on November 13 and 14. On the morning of November 14, Sorensen gave Dr. Payne’s medical restriction note to Curry. This document was passed on to store manager Knickerbocker that day. On the same day Knickerbocker received a letter from Respondent’s workers’ compensation car- rier denying Sorensen’s claim. Knickerbocker then called Soren- sen into his office. Knickerbocker told Sorensen that the Respon- WAL-MART STORES 895 dent had been informed that her claim for workers’ compensation had been denied and, in light of that determination, there was no longer a light-duty position available for her because such jobs were reserved for employees that had valid workers’ compensa- tion claims. Knickerbocker told Sorensen that he was placing her on a leave of absence until she received a medical release to return to full-duty work or a medical statement that her condition was a permanent disability that listed her work restrictions. Sorensen protested she had been working and could continue to perform her duties. Knickerbocker told her that he understood but she would have to get the medical releases demanded by company policy before she could return to work. Sorensen was given leave of absence paperwork and sent home. Knickerbocker testified that if he allowed an employee to work without proper medical releases he would expose himself to discipline for ignoring company pol- icy and his actions could create a legal liability for the Respon- dent. On November 21, Sorensen wrote to Knickerbocker regarding some leave of absence forms he had requested she sign. She pro- tested that she was being treated unfairly by the Respondent. She also summarized her situation as follows: My injury occurred at work while I was on the clock for Wal- Mart. I followed company policy by reporting this to man- agement when it occurred. Management sent me to the com- pany doctor for medical attention. The doctor placed me on lite duty and I reported this back to management. After work- ing under my restrictions for approximately two weeks I was told that my claim had been denied and that Wal-Mart no longer had any lite duty work for me and that I could return to work as soon as I had recovered 100% from my injury. Knickerbocker testified that the Respondent’s return to work policy required that light-duty work be reserved for employees who had suffered a work-related injury or illness and was not permitted for employees whose injuries were not work related. His testimony was corroborated by the Respondent’s written policy to that effect. Knickerbocker testified that Sorensen’s inability to stoop, kneel, crawl, climb ladders, or stand or walk for prolonged periods prevented her from performing many of the job functions listed on the “Photo Center—Wal-Mart Essential Job Functions” matrix. Knickerbocker wrote to Sorensen on November 29. He stated that Sorensen had advised the Respondent that she was unable to perform various functions of her job as a photo technician due to her medical condition. As a result she was placed on a personal leave of absence. The letter reiterated: To return to work if your condition is temporary, you need to provide the store with a full release from your health care provider. To return to work if your condition is permanent, you need to provide a copy of a release from your health care provider stating you have reached maximum medical im- provement and detailing any restrictions to which you must adhere. At that time we will advise you if we have a position available meeting those restrictions. [GC Exh. 24.] Sorensen applied for workers compensation but the State of Nevada denied her claim. Sorensen appealed the State’s denial of her workers compensation claim. She stated in her appeal that: Not only was Wal-Mart negligent in that this work injury was exacerbated by the repeated denial to me of floor mats at the register but also, Dr. Payne was negligent in that he examined me for something other than my active injuries. [R. Exh. 9.] The record shows that the Respondent had followed the return to work policy over a period of years. Knickerbocker had on nu- merous occasions refused to allow employees to return to work with doctor imposed work restrictions where the injury or illness was not work related. Sorensen never gave the Respondent any medical releases as requested in Knickerbocker’s November 29 letter. Sorensen re- mained on a leave of absence for 1 year. She then stopped submit- ting the leave of absence forms and was terminated for job aban- donment. Sorensen testified that she knew of two instances where em- ployees were allowed light-duty work because of medical condi- tions. In November 1999, Sorensen was hospitalized for a kidney infection. She testified that upon her return to work she was weak and discussed her condition with Curry who allowed her to rest by sitting and printing photos. Sorensen was not placed on a leave of absence at that time and she was not required to provide medical proof that she was fully recovered before she resumed her duties. Sorensen testified that Charlene Elsner was another photo lab employee at the same store. Sorensen recalled that in October 2000 Elsner had foot surgery. Upon her return to work Elsner was allowed to sit on a stool and telephone customers for most of her workday until she recovered. There was no showing that Knicker- bocker, the person who made the decision in Sorensen’s case had any knowledge of Sorensen’s 1999 medical situation or Elsner’s October 2000 foot surgery. Additionally, the record does not re- flect that either these situations involved a doctor’s work restric- tion notification to the Respondent. The Government also argues that another employee, Blanca Vasquez, was treated more leniently than Sorensen regarding her alleged workers’ compensation claim. I find that the treatment of Vasquez was of minor difference and not sufficient to show a disparity of treatment concerning Sorensen. I find that the record as a whole demonstrates that the Respondent applied its require- ments for doctor imposed work restrictions in a reasonable and consistent manner. The Government argues that the Respondent seized upon Sorensen’s medical complaint to rid itself of a union supporter by discriminatorily forcing her in to a leave of absence and placing disparate conditions upon her return to work. The Respondent argues that it treated Sorensen evenhandedly in accordance with company policy and without consideration for her union sympa- thies. The record establishes that the Respondent had knowledge of Sorensen’s union activities before her November 14 placement on a leave of absence. As discussed above, the Respondent did com- mit the noted violations of the Act, which establishes the element of animus. The timing of Sorensen’s union activities is contempo- rary with her being place on medical leave. I find that the Gov- ernment has established a sufficient preliminary showing that DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896 Sorensen’s union activities were a consideration in placing her on medical leave. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap- proved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The evidence shows that Sorensen suffered from knee prob- lems that affected her work. The doctor that examined her placed her on certain physical restrictions. The Respondent’s workers’ compensation carrier and the State of Nevada determined that Sorensen’s medical complaints were not work related. Knicker- bocker, the decisionmaker in placing Sorensen on a leave of ab- sence, followed company policy and Sorensen was not given light duty because her injury was not work related. Sorensen was told to get medical clearance to return to work (1) either because her condition was temporary and had been cured, or (2) because her condition was permanent but she could work with restrictions. In the latter instance the Respondent would seek work for her that would comport to her restrictions. Sorensen continued on leave of absence for many months and was eventually terminated when she voluntarily chose to discontinue her leave status. Sorensen never provided the Respondent with evidence that her medical condition had improved to the point that she could return to work. I find that the Respondent has proven that it treated Sorensen’s nonwork injury consistent with its policies and that it would have placed her on medical leave of absence with the noted conditions for her return to work regardless of her protected activities. I con- clude that the Respondent did not violate Section 8(a)(1) and (3) of the Act in its medical leave treatment of Sorensen. VII. GRIEGO Employee Diana (Angie) Griego began working for the Re- spondent in Las Vegas in 1999. Griego was openly supportive of the Union’s organizational efforts and numerous complaint allega- tions surround her union activities in Las Vegas. Griego was first employed at the East Tropicana store as a pharmacy cashier/clerk. She subsequently transferred to another job in the store and later left the East Tropicana store for approximately a year to work at a different store. In September 2000, Griego once again returned to the East Tropicana store. After Griego’s return she sought to once again work as a pharmacy clerk. The Respondent’s denial of that position to Griego is part of the Government’s allegations con- cerning her. Griego continued working for the Respondent until she voluntarily left employment in May 2001. A. October 20—Warning of Griego Mark Dutton, East Tropicana store manager, testified that in early October 2000 he received complaints from employees Delores Bowman, Carmen Sanchez, Nick Paradise, Yolanda Swanson, and Abigail Sernani, that Griego was harassing them at the store. Dutton characterized the complaints to be about Griego’s constant barrage of handing out literature, and “they couldn’t get their job done because of the constant harassment.” In the same time period, Assistant Manager Sheryl Seals informed Dutton that three other employees, Don Ford, Zamara Miles, and Michelle Parrot had complained to her that Griego was harassing them by regularly handing out literature. On October 20, Dutton and Seals talked to Griego in the ladies wear department about the matter. Dutton reviewed the Respon- dent’s solicitation and distribution policy with her and told her that she could not conduct such activity on the sales floor. Griego denied she had solicited or distributed on the sales floor and said she would not engage in such activity on the sales floor. Dutton considered the conversation to be a verbal coaching and Seals made a written notation of the event. (R. Exh. 48.) Seals did not testify. None of the employees who assertedly complained to Dutton and Seals testified. Seals’ written notation of the warning contains no details of Griego’s conduct that alleg- edly violated the Respondent’s distribution and solicitation policy. There was no direct evidence presented as to where or when Griego’s alleged union solicitations and distributions took place. Dutton’s testimony provided no specifics to justify a conclusion that Griego’s alleged “harassment” occurred during working time in work areas of the store. Griego credibly denied violating the Respondent’s policy. Dutton and Seals did not tell Griego where her alleged breaches of policy had taken place. There was no evi- dence presented that Dutton or Seals conducted any investigation of the complaints to learn details that would show Griego had violated a company policy. I find that the Government showed by a preponderance of the evidence that the verbal warning given to Griego on October 20 was not for violation of a valid solicitation and distribution policy. The Respondent did not present sufficient evidence to demonstrate that Griego had violated its policies by conducting union activity in work areas during worktime. I con- clude, therefore, that the October 20 warning to Griego was un- warranted and a violation of Section 8(a)(1) and (3) of the Act. B. October 28—Warning to Griego Dutton testified that between Griego’s October 20 verbal warn- ing and October 28 he received complaints from employees Nick Paradise and Kenneth Bilson about “the literature being passed out continually, and just the harassment of that.” The record indi- cates that at least part of these complaints went to objections about being contacted at the employees’ homes. Dutton did not testify about specifics of when and where the alleged harassment had taken place. Dutton telephoned his district manager, Jay King, in Arizona and asked for direction on how to handle the employees’ com- plaints. Dutton testified that King conferred with Vicky Dodson, one of Respondent’s labor relations team, and said she advised that Griego did not need to be coached but she should be informed that employees were complaining about her conduct. Dutton received a telephone call from Operations Coordinator Glen Gabardi who had spoken to King. He asked if Dutton would like him to be present when he spoke to Griego. Dutton affirmed that he would and arrangements were made to hear from store management about reports of Griego harassing employees. On October 28, Gabardi and some store managers including Dutton, Seals, and Personnel Manager Dominique O’Brien gathered to discuss the matter. Seals stated that some employees had come to her about the matter and one, Carmen Sanchez, had information she wanted them to hear about. Sanchez was then summoned to the meeting and asked to tell the managers about her concerns. Dutton testified that Sanchez said that employees in her depart- ment had complained “of harassment by Angie (Griego), and she also complained of her harassment at her house by Angie.” Gab- ardi testified that Sanchez reported that Griego had called her at WAL-MART STORES 897 home and “she was a little bit disturbed at the nature of the calls, and she felt like they were harassing, and that she would like them to stop.” O’Brien testified that Sanchez reported “that she felt that she had been harassed several times by Angie on the sales floor.” Sanchez was not called to testify about what she had told the man- agers or her “harassment” experiences with Griego. Griego was then called from her work to meet with manage- ment. In attendance were Griego, Gabardi, Dutton, Seals, and Assistant Manager Carol Buchanan. O’Brien was not present during this meeting. Griego asked for her Weingarten rights and employee Valerie Gonzalez was summoned to be her representa- tive at the meeting. Gabardi testified that he told Griego “that several associates in the building had come to Mr. Dutton and explained that . . . they felt like the—the phone calls to the home should stop because they were harassing them.” Griego asked who had complained about her conduct and Gabardi said he would not disclose that because of confidentiality considerations. Griego told Gabardi that she would continue doing as she had done in the past and that she had the right to do what she wished on her own time. According to Griego, Gabardi told her that she had to stop call- ing employees at home or Respondent may get her for harassment or solicitation. Gabardi denied making such a statement. It is un- disputed that Griego was not disciplined for anything discussed in this meeting. Gonzales testified that she recalled Gabardi telling Griego to stop calling employees at home. She remembered Gabardi saying that Griego would be disciplined for violating the solicitation policy and for harassment if another employee complained about calls at home. Dutton’s testimony corroborated Gabardi’s version as to what was said in the meeting. Dutton testified that Gabardi did not tell Griego she could not call associates at home or any words to that effect. Assistant Manager Buchanan testified that Gabardi told Griego some employees had complained about being harassed. She re- called that Gabardi stated that the harassment had occurred by telephone calls to the employees’ homes and at work. Buchanan testified that Gabardi did not tell Griego she could not call em- ployees at home or any words to that effect. Assistant Manager Sheryl Seals was also present at the meet- ing. Seals subsequently left the employment of the Respondent. She did not testify at the hearing. Griego testified that she had telephoned employees at home to urge their support for the Union. She noted that none of them had ever complained to her that she was harassing them or to stop calling. None of the employees who allegedly complained about being harassed testified at the hearing. Griego testified that she asked Gabardi who had complained about her, but he would not tell her any names because of confidentiality concerns. Griego testified that she then said, “I have a right to do as I please with my own time, and I’ll continue to do just that.” On direct exami- nation, Griego was asked what Gabardi said to her comment. She testified she could not remember, other than Gonzalez said some- thing to the managers and, “[a]t that point, I just got up, thanked them for their time, and told them I would do as I had been do- ing.” Griego was then asked about anything being said to her about any restrictions on her calling employees at home. She testi- fied that “[w]ell he actually told me I could not call anybody at home any more. . . . I said no. I said that’s my own time. I’m free to do whatever I want to do on my own time.” Part of the Government’s complaint allegations concerning this meeting state that the Respondent unlawfully interrogated em- ployees concerning their union membership, activities, and sym- pathies. The General Counsel’s brief describes the interrogation aspects of the meeting as “a disguised attempt to have Griego reveal her legitimate union activities.” Griego was an open and zealous union advocate who made no attempt to conceal her union sympathies and the Respondent was aware of her prounion sympathies before this meeting. Griego was called to the meeting because of employee complaints about her union activity. The witnesses concur that no questions were asked of Griego during the meeting, but rather Gabardi noted to her the complaints received from employees. I find that the record does not support the conclusion that Griego, a known union advocate, was unlawfully interrogated about her union activities or sympa- thies during this meeting. Rossmore House, 269 NLRB 1176, 1177–1178 (1984). The Government’s other complaint allegation concerning this meeting states that the Respondent unlawfully promulgated and enforced an overly broad and discriminatory no-solicitation rule by prohibiting its employees from soliciting for the Union at the residences of its employees. This allegation rests on what, if any- thing, Gabardi said regarding Griego being restricted from talking to employees at their homes about the Union. Gonzales and Griego testified that Gabardi made a statement to Griego to the effect that she should cease telephoning employees at home. Gonzales’ testified she recalled the subject being dis- cussed as, “[I]as basically telling her that she [Griego] needed to stop calling employees at home.” Griego had to be specifically questioned on direct examination about the prohibition of calling employees at home before she recalled the subject being dis- cussed. Respondent’s witnesses recalled the meeting was simply to ex- press to Griego some employees concerns about her calling them at home. Gabardi, Dutton and Buchanan all denied that Griego was told to cease the telephoning. No discipline or warning was issued to Griego. Griego denied doing anything of a harassing nature and stated her intention to continue her union activity on her own time. Considering the demeanor of the witnesses, their respective recollections and the record as a whole, I credit the Respondent’s witnesses that Gabardi did not tell Griego she had to stop telephoning employees at home. In sum, I find that the Respondent did not on October 28 unlawfully promulgate and enforce an overly broad and discrimi- natory no-solicitation rule by prohibiting its employees from solic- iting for the Union at the residences of its employees. The Re- spondent did not violate Section 8(a)(1) of the Act in this instance. C. Early November 2000—Creating the Impression that Griego’s Union Activities were Under Surveillance Griego testified that in early November 2001 she had brought some union literature to work and put it on the tables in the break- room. Thereafter she discussed the material with a department manager whose name she believed to be Olga. Griego’s depart- ment manager, Rhonda Crawford, was sitting next to Olga at the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898 time. Griego then went to work. Griego testified that shortly there- after Crawford approached and said that she knew what Griego was talking about in the breakroom because her husband was a union supporter and has had a good union job. Griego recalled that Crawford then said that Griego had to realize that “we’ve [sic] mandated by management to report any of your union activity.” Crawford denied the incident as described by Griego ever hap- pened. Crawford testified that she did not overhear Griego speak- ing to a manager by the name of Olga in the breakroom. Crawford denied telling Griego that she knew what she was talking about in the breakroom or that Griego had to realize that supervisors had been mandated by management to report Griego’s union activity. Crawford testified that she had heard conversations in the break- room between Griego and other employees about the Union be- cause Griego openly discussed the subject. Crawford testified that one day Griego asked her on the sales floor if she was familiar with unions. Crawford said she was be- cause her husband is a union employee. Griego said that Craw- ford’s husband probably made good money and has good benefits. Crawford responded that he has made a good living. Griego then said that unions would be good for the Respondent and Crawford responded no, not in retail. I found Crawford to be a persuasive witness. I credit her ver- sion of her conversations with Griego concerning unions and her denial that she ever told Griego she was obligated to report her union activities. I find that Crawford’s discussions with Griego did not unlawfully create the impression that Griego’s union ac- tivities were under surveillance. D. Mid-November—Griego’s Handbilling in Front of Store In mid-November, Griego was distributing union material on the sidewalk at the front entrance to her store. She was approached by a security guard who told her that handbilling was not allowed in front of the store. The security guard is employed by KSK, the property management firm for the shopping center. The Govern- ment alleges that he is an agent of the Respondent. Griego testified that she claimed a legal right to be handbilling in front of the store. The security guard then used his hand held radio to talk to what Griego believed was his supervisor. She overheard that person tell the guard that he should call inside to management. The guard then radioed a person whom Griego be- lieved to be Assistant Manager Shelby Davis. Griego made this identification based on the sound of the voice. She testified later that she was “pretty sure it was Davis” she heard. She recalled hearing Davis tell the guard that he should tell her she had to leave or the guard should call the police. The guard then repeated this message to Griego. Griego told the guard that it was time for her to start work and she would just go to work. Shelby Davis testified and denied that he ever directed a secu- rity guard to tell Griego to stop handbilling in front of the store or the police would be called. Davis acknowledged that Respon- dent’s managers carry radios. The record credibly demonstrates that these radios do not communicate with the radios used by KSK security guards. I found Davis’ to be a credible witness and con- clude that the Government has failed to prove that he ever spoke to a security guard over a radio or directed any person to have Griego cease her union activity in front of the store. I find that Griego was mistaken in identifying Davis’ voice as the one she heard on the radio. The Government argues that the security guard who spoke to Griego is an agent of the Respondent. The record shows that the guards are employed by KSK, the property management com- pany, and do not take directions from the Respondent. I find there is insufficient evidence to conclude that the guard who spoke to Griego was an agent of the Respondent and thus find that his comments to her are not attributable to the Respondent. I conclude that in mid-November 2000 the Respondent did not prohibit Griego from soliciting and distributing for the Union in the store’s parking lot. E. December 15, 2000,—Warning to Griego East Tropicana Assistant Manager Shelby Davis testified that employee Brian Bunch reported to him that Griego had solicited Bunch in the softlines area of the store to sign a union card. Davis testified that Bunch complained that “he was tired of Angie har- assing him and he wanted it to stop . . . . He wished management could do something about it.” Davis asked him to write a state- ment concerning his complaint and Bunch complied with that request. Bunch’s statement was then given to Store Manager Dut- ton. Bunch did not testify at the hearing. On December 15 Griego was summoned from her work to at- tend a meeting with Dutton and Seals in Dutton’s office. Dutton told Griego that he was issuing her a written warning for violating the Respondent’s solicitation policy. He stated that the warning was based upon an employee’s report that she was passing out union material on the sales floor. The warning shows that a prior verbal warning given to Griego on October 20 was taken into consideration in issuing the written warning. The document also notes that the next level of corrective action Griego would face for a further violation would be “decision making day” which is equivalent to a determination of whether she would be discharged. The Government does not contest the Respondent’s solicitation and distribution policy but contends that Griego was discriminated against with this warning. The Solicitation policy prohibits solicit- ing on the sales floor at any time “on behalf of any cause or or- ganization.” The distribution policy prohibits “distribution of literature” (i.e., leaflets, pamphlets, or other written material) on the sales floor at any time. (Id.) Griego testified that there had been instances where fellow em- ployees solicited her at work to attend baby showers that were held in the breakroom. She also recalled seeing Avon, Tupper- ware, and home interior books in the fitting room with a name and number on them. She testified that Tupperware parties were held at employees’ homes and that the Tupperware would be brought to her at work. Employees Valerie Gonzalez and Mary Green testified another employee solicited them to buy a church dinner from her. Wendy Upton, Jo Ann Bunch, and Andrea Wangeman worked in the East Tropicana store during the same time as Griego. They all testified that they had a regular opportunity to observe the areas that Griego stated were where she observed Avon, Tupperware, or Home Furnishing ordering books. They all denied ever seeing such items at the store. No testimony was pre- sented that Respondent’s store supervision was aware of any such activities. Dutton specially denied any knowledge of such activi- ties. WAL-MART STORES 899 The evidence shows that Dutton told Griego she was receiving the warning for distributing union material on the sales floor. I find that evidence does not support the Government’s allegation that the Respondent prohibited Griego from soliciting for the Un- ion during nonworktimes and in nonwork areas of the East Tropi- cana facility. The remaining complaint allegation states that Griego’s De- cember 15 coaching was undeserved and unwarranted. I find that Dutton did have a good-faith basis to believe that Griego had violated the Respondent’s policy. The complaint from Bunch was called to his attention and he acted on the basis of that report. While Griego denied violating the policy her credibility in this regard must be judged with other record evidence. That additional evidence comes in the form to the testimony of employees Lisa Lindholm and Elaine Perry. Both testified to instances prior to December 15 in which Griego distributed union literature to them in work areas. Griego denied that she had done so. I found Lind- holm and Perry to be credible and conclude that Griego was incor- rect in denying that she had handed them union material in prohib- ited areas. Bunch did not testify as to Griego’s conduct towards him. As an employee he was equally available to either party to call as a witness. I, thus, draw no inference from his not testifying. I find that the Respondent had a good-faith belief that Griego had violated its distribution policy at the East Tropicana store. I further find that the evidence does not demonstrate that Griego was treated disparately based on her union activity. I conclude that the Respondent did not violate Section 8(a)(1) and (3) the Act when it gave her the written warning of December 15, 2000. F. Griego Denied the Pharmacy Cashier Job The Government alleges that in January 2001 Pharmacist Dick Andersen failed to award the job of pharmacy cashier to Griego because of her union sympathies. Griego worked as a pharmacy cashier for the Respondent in New Mexico prior to coming to the East Tropicana store in March 1999. She started work at East Tropicana as a pharmacy cashier. In that position her duties included being a cashier for pharmacy products, stocking pharmaceuticals, matching prescriptions with patients, and phoning doctors to get approval. Griego successfully completed computer based learning courses dealing with certain pharmacy work. Griego worked in the pharmacy for approximately a year at which time she requested a transfer to the pharmacy cashier job at the Respondent’s Las Vegas store at Serene and Eastern. In April 2000, Griego transferred back to the East Tropicana store and started work as a front-end cashier. Griego testified that she wanted to earn a promotion to pharmacy technician and wanted to return to work in the pharmacy in order to achieve the promotion. In January 2001, the Respondent posted an opening for a phar- macy clerk at the store and she applied for the job. Richard Andersen worked part time at the East Tropicana store from October 2000 until January 5, 2001, at which time he be- came the store’s full-time pharmacy manager. When Andersen started as manager in January, there was a vacancy for a pharmacy cashier job. The job was posted and Griego, Dana Herndon, and Val Gonzalez applied. Andersen interviewed the three applicants. He testified that he also spoke to the applicants’ supervisors and checked their time and attendance records. The three applicants had acceptable time and attendance histories and their supervisors commented positively on their work records. Andersen testified that he selected Herndon to fill the position based on the fact that she possessed the most recent cashier experience. Griego and Gonzalez worked in the softlines department at the time. Herndon was hired on December 5, 2000, as a stocker. On December 26, Herndon was made a cashier. She worked in that job for 4 days and was then assigned to work in the sporting goods department. Andersen selected her to fill the pharmacy clerk job starting on January 13, 2001. As noted, Griego had worked as a pharmacy cashier at three of Respondent’s stores. She had worked several months additionally as a front-end cashier at the East Tropicana store. Griego had also successfully completed the computer learning courses for the Pharmacy cashier position. When Anderson interviewed Griego she was wearing her nametag which bore the name she is commonly called, “Angie.” Anderson testified that Griego told him of her pharmacy clerk experience at the Serene store but that experience played no part in his hiring decision. Anderson noted that Herndon had recently been a cashier, in the past two weeks had been promoted and ex- pressed an interest in leaving the department where she was cur- rently working. Anderson admitted that he knew Herndon had not taken any of the pharmacy computer based learning modules. Anderson testified that he had no knowledge of Griego’s union activities. He also testified that he did not know that Griego was known by the name Angie. He admitted that he knew a person by the name of Angie was a union supporter at the store and that there was an ongoing union organizing campaign at the store. Griego learned secondhand that she had not been hired for the pharmacy clerk position. She arranged through Assistant Manager Upton to meet with Anderson and discuss the selection. Griego asked Anderson the reasons she had not been picked for the job. According to Griego, Anderson told her that he had a “gut feel- ing” about Herndon. Herndon was terminated on February 7, 2001, for failing a drug test. The pharmacy cashier position was not posted following Herndon’s termination. Andersen talked to the personnel depart- ment about a replacement. Bonnie, a personnel department em- ployee, sent Janet Cox to interview with him the next day. Ander- sen found Cox acceptable and hired her to fill the position. Griego was never contacted about filling the position. Anderson testified that he would not have hired Griego after Herndon’s termination because of Griego’s confrontational atti- tude towards him when they discussed her not being hired. He noted that she had accused him of not hiring her because she was a union supporter. Griego voluntarily quit employment with the Respondent in May 2001. The General Counsel has the initial burden of establishing that union or other protected activity was a motivating factor in Re- spondent’s action alleged to constitute discrimination in violation of Section 8(a)(3). The elements commonly required to support such a showing of discriminatory motivation are union activity, employer knowledge, timing, and employer animus. Once such unlawful motivation is shown, the burden of persuasion shifts to the Respondent to prove its affirmative defense that the alleged discriminatory conduct would have taken place even in the ab- sence of the protected activity. Wright Line, 251 NLRB 1083 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); Electromedics, Inc., 299 NLRB 928, 937 (1990), enfd. mem. 947 F.2d 953 (10th Cir. 1991); Presbyte- rian/St. Luke’s Medical Center v. NLRB, 723 F.2d 1468, 1478– 1479 (10th Cir. 1983). The test applies regardless of whether the case involves pretextual reasons or dual motivation. Frank Black Mechanical Services, 271 NLRB 1302 fn. 2 (1984). “A finding of pretext necessarily means that the reasons advanced by the em- ployer either did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive established by the General Counsel.” Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). The record shows that Griego was very experienced at the pharmacy cashier position. She also was widely known in the store for her zealous union activity. The Respondent’s various unfair labor practices set forth in this decision establish its animus concerning union activity. Andersen had worked in the store for some time and admitted that he knew a person by the name of Angie was a union leader in the store. It is uncontroverted that Griego’s work smock had her name as Angie prominently dis- played and she wore the smock when she interviewed with Ander- sen. Andersen’s demeanor, especially when he denied knowing of Griego’s prounion activities and sympathies, was not persuasive. I find that he did possess such knowledge when he made the selec- tion for the pharmacy job. Griego was clearly the best-qualified applicant based upon her lengthy experience in the job and having completed the computer training applicable to the position. I find that Andersen’s alleged selection criterion of recent cashier ex- perience was a ruse put forth to avoid hiring Griego. The timing of the denial of the job to Griego was during the same time period she was zealously engaged in union activities. I conclude that the Government has proven the necessary elements to establish that the denial of the pharmacy cashier position to Griego was based upon her union activities. The Respondent’s case rests in large part on Andersen’s denial of knowing about Griego’s union activi- ties. I have discredited that testimony and I find that Andersen was concerned about Griego’s union activities and his denial of the pharmacy clerk job to her was based on that concern. I find that the Respondent has not proven that Griego would have been de- nied the pharmacy job regardless of her union activity. I conclude that the Respondent did violate Section 8(a)(1) and (3) of the Act by refusing to hire Griego for the pharmacy cashier position. G. March 3, 2001,—Griego Warned On March 3, 2001, Griego was distributing union literature in front of the East Tropicana store before she started work at 2 p.m. Griego testified that she attempted to give a handout to a mainte- nance employee named Rich whom she described as coming to work. Rich did not accept her union material. Griego recalled that shortly after this incident, Supervisors Dean Burroughs and Wendy Upton approached her. According to Griego they said they had a complaint from a customer about her handbilling in front of the store, they said she could not be doing that and she would either have to leave or they would call the police. Griego told them it was time for her to start work and she would go inside and distribute the union material inside the breakroom. Burroughs testified that Rich came to him in the store and re- ported that he had been working in the front of the store emptying trash and cleaning up when Griego attempted to give him some union literature. Burroughs stated that he thanked Rich for the information and then called for Assistant Manager Wendy Upton to meet him. He then went outside and spoke to Griego because he was concerned about someone attempting to distribute literature to an employee who was working. He observed Griego just walking away from an employee named Robert who was working filling soda machines. Burroughs testified that he told Griego he had a report from an employee that she was attempting to give out union literature and the associate was on the clock at the time. Griego stated that she was just soliciting associates who were coming to work. Burroughs said that this particular employee was working. Burroughs recalled that Griego said that she would just go to the break room and he said that was fine, that everyone knew she could distribute there. Burroughs testified that he was aware that the Respondent’s policies allow employees to solicit and distribute outside the store. Burroughs denied that at any time during his conversation with Griego did he tell her that she would have to stop handbilling outside or that he would call the police. Burroughs testified that Griego and Upton then walked together inside the store. Burroughs overheard Griego tell Upton that her lawyers said she could be outside the store doing what she was doing. Upton said that was fine, “but it is the property manage- ment, KSK Properties, that has got their rule . . . that prohibits that, not Wal-Mart.” Burroughs returned to the store and called the Respondent’s un- ion hotline at corporate headquarters in Bentonville, Arkansas. He talked to a representative at headquarters about Griego’s activity that day and he also made notes of the incident on his palm pilot. Those notes state in part: I . . . explained to her [Griego] that she could not solicit to people on the property. She said that she understood that she could. Wendy reiterated the policy to her. She stated well I will just go to the break room and Wendy and I told her that would be fine. I contacted Don with the labor team and the hotline where I talked to Randy. Randy advised to contact Vicki…. Upon her return call . . . she told me that I would have to call Wendy in and tell her that I was enforcing the lease agreement. [GC Exh. 40.] Upton testified she did not go outside the store to talk to Griego and did not hear what Burroughs and Griego discussed. Upton and Griego did meet as Griego entered the store after talking to Burroughs. Upton testified that Griego was upset and said that she had made an agreement with her lawyers and Respondent’s law- yers that it was okay for her to be out in front of the store. Upton recalled telling Griego that was not a problem, “It was our prop- erty management. . . . They’re the ones who said there no solicit- ing out in the front.” The record does not show that the lease agreement between the Respondent and its landlord contained any restriction on handbill- ing outside the East Tropicana store. There is testimony from a security guard, Kenneth Brill, discussed below, that his orders from KSK prohibit such conduct. I have assessed this incident based particularly on the demeanor of the respective witnesses, Burroughs’ notes, and Upton’s admis- WAL-MART STORES 901 sion that she told Griego that there was to be no soliciting in front of the store based on her understanding that this was KSK’s pol- icy. I credit Griego’s testimony that Burroughs told her he was concerned about her handing union materials to a customer, not an employee. I find that Burroughs and Upton told Griego that she could not solicit in front of the store and they based that prohibi- tion upon their belief that KSK policy banned such activity. I find that this prohibition was an unlawful promulgation and enforce- ment of a no solicitation rule and a violation of Section 8(a)(1) of the Act. H. March 10, 2001,—Union Handbilling at the Tropicana Store On March 10, 2001, Griego, Gonzalez, and two union organiz- ers, William Meyer and Mike Martino, were at the Tropicana Store at about 5 a.m. distributing union materials. Griego and Gonzalez were standing on the sidewalk at the main entrance to the store and the two union organizers were located at another entrance. Griego and Gonzalez were approached by a KSK secu- rity guard, Kenneth Brill, who told them they could not solicit on the property. Brill testified that in March 2001 he observed four people dis- tributing flyers outside of the Respondent’s store. Brill spoke to the individuals and told them that they could not be handing out the flyers on private property. The handbillers refused to stop their activity and Brill then read them a trespass warning. Brill testified his warning had no effect on the handbillers and he then radioed his command center to have them dispatch the police to the shop- ping center. The police arrived, talked to the union people and the handbillers then left. Brill is issued “post orders” by his employer. One of these or- ders is KSK’s no-solicitation/no-distribution policy that prohibits any solicitation or distribution of any kind on the sidewalks or in the parking lots of the East Tropicana mall. Brill testified that he had been in the store to buy something to drink before talking to the handbillers and that he also went into the store after the incident to use the bathroom. He denied that at any time he discussed the handbillers with Respondent’s man- agement. He denied the Respondent ever directed him to have the handbillers cease their activities. Griego testified that she told Brill that she had a right to hand- bill at the store. Brill said he was going to have to call “manage- ment, and so he got on the walkie-talkie and called his supervisor, and again the supervisor instructed him to call management, so he called management, and management came out.” Griego could not remember the identity of any of Respondent’s assistant man- agers that came from the store. Griego testified that: Anyway, they instructed us that we would have to leave or they would have to call the police. . . . well, you know, we’re not leaving, you’ll have to call the police. So they did call the police on us, and at that point, Bill Meyer from the Interna- tional took over. [Tr. 755.] Employee Valerie Gonzalez had a different recollection of events. Gonzalez testified that Brill told them they could not handbill. She recalled Griego saying that they could be in front of the store and if Brill wanted to check with management it was okay. She saw Brill walk inside the store and could see him con- versing with Managers Shelby Davis and Michael McDonald. Brill returned shortly and reiterated that they had to leave. Gon- zalez recalled him reading to them from a card and finally inform- ing them he would have to call the police if they did not leave. Gonzalez admitted that although she observed Brill talking to managers inside the store she could not overhear what they were saying. Meyer testified that he noticed Brill talking to Griego and then interjected himself into the conversation. Brill was objecting to the union people handbilling in front of the store. Meyer told him that they had a right to be there and Brill then went inside the store. Brill returned shortly and Meyer recalled Brill said, “They don’t want you here. They want you to leave.” Meyer reasserted his position that the union supporters had a right to be in front of the store. According to Meyer, Brill again went into the store, re- turned a second time and stated, “They want you out, and if you don’t leave we are going to call the police.” Griego was uncertain which managers addressed her that day. Gonzalez recalled seeing Brill talk to Assistant Managers Shelby Davis and Mike McDonald. Davis testified that he was not in- volved in any such incident. Davis testified that at no time did he instruct a KSK security guard to have outside handbillers leave nor did he instruct a guard to call the police. He testified that he had no knowledge of any such instructions from any other repre- sentative of Respondent’s management. McDonald did not testify at the hearing. Connie Commitor testified but was not questioned about this incident. Ultimately the burden of proof rests with the Government and Griego could not identify the managers that allegedly ordered her cessation of handbilling. Gonzalez was present with Griego during the handbilling but did not testify regarding any managers telling Griego to stop handbilling. Two union representatives were at the store at the same time, all be it, at different locations. Meyer testi- fied to his conversation involving Brill but not about anything concerning managers coercing Griego. Meyer remembered seeing Brill go in and out of the store twice but was not privy to whatever Brill did inside the store. Additionally, he was not present when Brill initially talked to Griego, and presumably, Gonzalez, as they were handbilling. Based on Griego’s demeanor, her inability to identify the managers who talked to her, the fact that Griego ap- parently did not mention the managers’ alleged statements to any of the other union supporters present, the fact that I have found the KSK security guard’s radios do not communicate with Respon- dent’s managers and the lack of corroboration from any other union supporter present that managers coerced Griego, I find that Griego was mistaken about the incident. I find that none of Re- spondent’s supervisors told any of the union handbillers on this occasion anything to the effect that they should stop their activity or face arrest. Brill impressed me as a credible witness. I credit Brill’s denial that he received any instructions from the Respon- dent on how to deal with the handbillers. I find that the evidence does not show that Brill acted as an agent of the Respondent when he ordered Griego and the others to cease their union activities in front of the East Tropicana store. I conclude that the Respondent did not violate Section 8(a)(1) of the Act on March 10 when Brill ordered the cessation of the handbilling. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902 I. April 10, 2001,—Griego’s Weingarten Rights On approximately April 10, 2001, Griego was called to a meet- ing in Dutton’s office with assistant manager Upton and Depart- ment Manager Jo Ann Bunch. When Griego got to the office she asked the supervisors if the meeting was to involve a coaching or discipline, and, if so, she wanted her Weingarten rights. Upton told her that the only purpose for the meeting was to discuss “zon- ing” (how merchandise is arranged). Bunch started the discussion by saying an employee had re- ported that Griego had instructed her not to zone jeans. Griego denied the report and explained that she had only told the other person (a new employee) that, as the rack containing the jeans was so full, she should do the best she could to arrange them. Accord- ing to Upton the discussion included the message that it was im- portant for new employees to get clear signals, and if a new em- ployee had questions they should consult their sponsor. Upton noted that if there were concerns within the department they should be brought to Bunch’s attention so that they could be cor- rected. Upton then said she wanted to discuss a scheduling issue. Griego testified that she stated that it was strange she had been summoned to discuss zoning and now they wanted to talk about other issues. Upton then asked Griego why she was reporting to work earlier than her scheduled time. Griego said that she needed 40 hours a week and thought it was unfair that a new employee in her department was receiving 40 hours a week and she was only scheduled for 35 hours. Griego explained that it may not seem like a lot to Upton but it was a lot to her. Upton said that she would work on it and try to get the issue resolved. Upton made a note of the meeting and this was placed in Griego’s personnel file. The memo states that the discussion was held with Griego, “on working her posted schedule not what she wants to work.” The Supreme Court held in NLRB v. J. Weingarten, 420 U.S. 251 (1975), that an employer’s denial of employee’s request that union representative be present at an investigatory interview which employee reasonably believed might result in disciplinary action constituted an unfair labor practice. What is a “reasonable ground” will be measured by objective standards under all the circumstances of the case. Quality Mfg. Co., 195 NLRB 197, 198 fn. 3 (1972). The Supreme Court specifically rejected any rule that required probing an employee’s subjective motivations. Weingar- ten, supra at 257 fn. 5. Weingarten rights apply equally to unrepre- sented nonunionized employees. Epilepsy Foundation of North- east Ohio, 331 NLRB 676 (2000). In Consolidated Edison Co., 323 NLRB 910 (1997), the Board stated: Weingarten therefore requires an employer to evaluate an in- vestigatory interview situation from an objective standpoint- i.e., whether an employee would reasonably believe that dis- cipline might result from the interview. Consequently, it is no answer to this allegation of a Weingarten violation that the Respondent’s supervisors were only engaged in fact finding, or that they had no intention of imposing discipline on Hunter at the time of the interview. Neither of those conditions is in- consistent with Hunter’s reasonable belief that discipline could result from the interview. Griego was called to a personal meeting with two managers in an executive office. Griego was told at the start of the meeting that the managers wanted to discuss zoning. The tenor of the meeting was investigatory. Upton confronted Griego with a report that she had told another employee not to sort jeans. This was followed by an inquiry into Griego’s clocking into work at unauthorized times. The discussion of scheduling was memorialized and placed in her file. Upton’s memo shows the meeting was a scrutiny of Griego working her posted hours and “not what she wants to work.” I find that the meeting was investigatory. As set forth above, on previous occasions the Respondent had cautioned Griego about her con- duct. Under all the circumstances I find that Griego had a reason- able objective belief that the meeting was investigatory and could lead to discipline and that she was entitled to request representa- tion. Upton’s glossing over of that request and not granting Griego’s request for a representative was a violation of Section 8(a)(1) of the Act. Epilepsy Foundation of Northeast Ohio, supra. The complaint also alleges that Griego was given an unjustified discipline because of her protected activities. Griego was not told she was being disciplined. A memo of the incident went into her file but it is not clear that this was intended to be discipline. Most importantly, however, the record does not sustain a conclusion that the meeting was discrimination against Griego because of her union activities. The Respondent’s concerns that Griego may have told an employee not to do certain work and was clocking into work ahead of her scheduled time were legitimate business inquir- ies. I find that the Respondent did not give Griego an unlawful verbal reprimand in violation of Section 8(a)(1) and (3) of the Act. J. April 26, 2001,—Commitor’s Encounter with Griego, Gonzales, and Ross On April 26, 2001, Gonzalez and Griego were returning to their workstations following their lunch. As they entered the sales floor area of the store they encountered employee Josephine Ross. Griego asked Ross if she would testify for the Union if Griego’s pending unfair labor practice charges went to trial. While engaged in the conversation Griego handed Ross a brightly colored union pen bearing the slogan “Be Wise—Organize.” At this point, As- sistant Manager Connie Commitor came up to the women and told them “this is not allowed on the sales floor. You need to take it to the break room.” Griego testified that she protested and said that Commitor had just assumed they were talking about the Union. According to Griego, Commitor stated that they could not talk in the sales area. Griego testified that it was not unusual for employees to stop and speak to each other on their way to and from the breakroom. Ac- cording to Griego, Commitor did not mention anything about Griego’s handing a pen to Ross. Commitor testified she had observed Griego handing a pen to an employee earlier in the day in the hallway. When Commitor later observed Griego handing a pen to Ross, she told her such activity was not allowed on the sales floor and they needed to take it to the breakroom. Commitor testified that a distribution of any kind of literature or “stuff” on the sales floor was prohibited. Commitor originally testified that she believed it was a violation of Respondent’s policy to hand a pen to a coworker. Commitor later admitted that employees were allowed to use their own pens at work. She also conceded that employees could ask a coworker for a pen, could give pens to each other, and could use pens of any kind. WAL-MART STORES 903 Commitor admitted that there was nothing impermissible about employees exchanging pens. In this instance the pen was a brightly colored, easily identifiable, union pen. I find that Commi- tor’s restriction against Griego giving the pen to Ross was dis- criminatory based upon the fact that the women were talking about the Union and Griego was handing out a union implement. I find that this prohibition violated Section 8(a)(1) of the Act. Likewise, in light of Commitor’s concentrated vigilance of the employees’ union activities, I find that this unlawfully created the impression that such activities were under surveillance. Addition- ally, Commitor’s warning to the employees that they had “to take it to the break room” was discriminatory because it was based upon their union activities and this I find is a violation of Section 8(a)(3) of the Act. K. May 17, 2001,—Dutton’s Meeting with Employees On or about May 17, 2001, Dutton held a meeting of about 30 to 40 employees. Griego was among those in attendance. Griego testified: “At the end of the meeting, [Dutton] told us that we could talk about the Union . . . he specifically specified that only in the break room. He went on to say not on the sales floor, not on the time [clock] area, not in the snack bar, not out in the parking lot, specifically just the break room.” Griego testified that after the meeting she spoke to Dutton and told him she thought that what he said was wrong and that union activity could be done in various neutral areas, not just the break- room. According to Griego, Dutton repeated his message and told her that such activity could only be done in the breakroom. Dutton testified that he held a meeting with his managers before the employee meeting and then read the talking points provided by the Respondent’s headquarters to these managers. Dutton testified that he then met with the employees and read verbatim the talking points to the employees. The points read included the following language: Our policy clearly states that Associates may not engage in solicitation and/or distribution of literature during working time. Additionally, solicitation and/or distribution of literature is not permitted at any time in selling areas or in non-selling work areas, such as in receiving or offices. [R. Exh. 45.] Dutton stated that after he read the talking points he reminded the employees that the Respondent’s policy allowed them to so- licit and distribute outside the store on their own time. Dutton also told the employees that property manager KSK had its own solici- tation and distribution policy for property outside the store. Dut- ton told the assemblage that if employees solicited and distributed on KSK’s property they might be approached by a KSK security guard. Dutton denied that he told the employees that the Respon- dent had a blanket no-talking policy that Griego alleged he spoke about. Dutton denied telling employees they could not talk about the Union and that he had any conversation with Griego after the meeting. Assistant Manager Shelby Davis testified that he attended the managers’ meeting where Dutton read the talking points and that Dutton read those same items verbatim in the subsequent em- ployee meeting. Davis recalled that Dutton also reminded the employees that the property owner, KSK, has its own policy pro- hibiting solicitation and distribution of any type on the sidewalk and in the parking lot. Davis testified that Dutton read from a script and did not tell employees they could not talk about the Union. Employee Lois Cox testified that Dutton read to the employees from a script. Cox remembered that Dutton told employees they could not solicit or distribute in the selling or nonselling areas of the store as far as the receiving offices. Cox testified that she real- ized for the first time that employees are allowed to talk about nonwork subjects on the sales floor. Cox testified that Dutton did not announce the blanket no-talking policy. She did recall Dutton discussing the KSK policy being different from the Respondent’s policy. Employee Elaine Perry testified that Dutton read to the em- ployees about the Respondent’s solicitation and distribution policy from a paper. Perry recalled that the employees were told they were only allowed to distribute materials in the breakroom. Perry then added that Dutton, “[N]ever actually said word for word that it had to be there, you know, or nowhere else. We all knew, you know, the policy.” Perry also recalled that Dutton reminded em- ployees that KSK had its own outside solicitation and distribution policy. She testified that Dutton did not announce the blanket no- talking policy (or anything like it) that Griego alleges. Assistant Manager Commitor testified that Dutton never told employees they could not talk about the Union. Commitor also testified that Dutton mentioned that the parking lot was governed by KSK policies and the employees may be approached if they were soliciting outside the store. The Government’s allegations concerning Dutton’s dialogue on March 17 assert that the Respondent prohibited employees from (1) soliciting and distributing for the Union in the parking lot and on the sidewalks, and (2) talking about the Union outside the breakroom. I find that the credited evidence shows that Dutton’s statements concerning solicitation outside of the store were to the effect that the Respondent had no objection to employees engag- ing in such activity. He also informed the employees, however, that KSK did have a different policy that prohibited solicitations outside the store. I find that Dutton’s statements regarding this subject did not voice Respondent’s prohibition of solicitation and distribution outside the store and thus the Respondent has not violated Section 8(a)(1) of the Act regarding the first allegation. Concerning a prohibition of employees talking about the Union outside the breakroom there is a major conflict of what Dutton said in this regard. Griego testified that Dutton unequivocally restricted union activity to the break room. Perry’s testimony was much less certain. She got the impression that union activity was limited to the breakroom but testified that Dutton, “never actually said word for word that it had to be there, you know, or nowhere else.” I found Perry to be an unreliable observer of what was actu- ally said during the meeting, but note that she concedes Dutton never limited union activity to the breakroom. In contrast Dutton, Commitor, Cox, and Davis impressed me as being careful and certain witnesses of what Dutton said. In particular I found Cox’s testimony was persuasive of what was said during the meeting. Dutton had written instructions from his headquarters of what to tell the employees. Dutton credibly testified that he read the statement to the employees and did not improvise on its message. Dutton convincingly testified that in order to accurately inform the employees about the Respondent’s policies and positions regard- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904 ing the extant union activity he followed his script. I find that Dutton did not announce any “no-talking rule” in his meeting with employees. Dutton denied that he later met with Griego to discuss the subject and I credit this denial based on his and Griego’s re- spective demeanor. I conclude that the Respondent did not pro- hibit employees from discussing the Union outside of the break- room and thus did not violate Section 8(a)(1) of the Act. VIII. DECEMBER 2000—GONZALEZ’ DISCUSSION WITH SEALS In December 2000, employee Valerie Gonzalez was called to a meeting with Assistant Manager Sheryl Seals in a back office. Seals discussed with Gonzalez her tardiness record and gave her a verbal warning for clocking in late and clocking out early. Gon- zalez testified that Seals then asked her if she had anything to do with the Union. Seals told her she did not have to answer. Gon- zalez said that she was part of the Union. Seals questioned Gon- zalez as to why she wanted the Union. Gonzalez said that she could get better pay and benefits. Seals told Gonzalez that she and Griego were the only two union supporters in the softlines de- partment and it was making her look bad as a manager because the two organizers in the store were in her department. Seals said that if the store went union, she would not be able to do things like let Gonzalez leave work early or let her pick up her paycheck early. Gonzalez testified that Seals was close to tears while dis- cussing the subject with her. Seals, who is no longer employed by the Respondent, did not testify. The Respondent defends this allegation on the basis that the in- cident was not specifically included in any charge filed in this case. Additionally, the Respondent argues that this fact prejudiced its presentation of its case. A charge is not a pleading and does not require the specificity of a pleading. It merely serves to initiate a Board investigation to determine whether a complaint should be issued. As long as there is a timely charge, the complaint may allege any matter sufficiently related to or growing out of the charged conduct. NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959). A charge “is sufficient if it informs the alleged violator of the general nature of the violation charged against him and en- ables him to preserve the evidence relating to the matter.’’ NLRB v. Louisiana Mfg. Co., 374 F.2d 696, 704–705 (8th Cir. 1967), quoting from NLRB v. Raymond Pearson, Inc., 243 F.2d 456, 458 (5th Cir. 1957). The complaint alleges several other incidents of interrogations and acts of coercion that were alleged to have oc- curred throughout the lengthy time period covered by that plead- ing. Sufficient nexus exists when the disputed charge and existing complaint allegations “all occurred within the same general time period and concern conduct which constitutes an overall plan to resist the Union.” Well-Bred Loaf, 303 NLRB 1016, 1016 fn. 1 (1991). I find that the December 2000 incident involving Gon- zalez is closely related to the existing charges and is sufficient to give the Respondent notice of the allegations it should answer. Redd-I, Inc., 290 NLRB 1115, 1115–1116 (1988), citing NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952); Nickles Bakery of Indiana, 296 NLRB 927, 927–928 (1989). The complaint nam- ing Seals as Respondent’s supervisor and agent involved in this allegation was issued many months before the hearing. I note that the Respondent did not allege that Seals was unavailable to attend the hearing nor did it specify what, if any, efforts it had made to locate Seals and compel her presence to testify. Florida Coca- Cola Bottling Co., 321 NLRB 21, 21 fn. 2 (1996); Riverdale Nurs- ing Home, 317 NLRB 881, 881 (1995); Batchelor Electric Co., 254 NLRB 1145, 1145 fn. 1 (1981), enfd. mem. 716 F.2d 903 (6th Cir. 1983); Don’t Stop, 298 NLRB 961, 962 (1990); and Quebe- cor Group, Inc., 258 NLRB 961, 961 fn. 1 (1981). I find that the Respondent has not been prejudiced by any variance between the charges and the complaint. I credit Gonzalez’ uncontroverted testimony and find that Seals’ interrogation of Gonzalez about her union activity was accompanied by a threat that if the Union represented the employ- ees their existing benefits would be lost to them. I conclude that the interrogation and threat are violations of Section 8(a)(1) of the Act. IX. OCTOBER 2000—MARCH 2001:BREAKROOM SURVEILLANCE AT THE EAST TROPICANA STORE The Government alleges that on several specified occasions be- tween October 2000 and March 2001 the Respondent engaged in unlawful surveillance of Griego at the East Tropicana store in order to discover her involvement in union activities. The supervi- sors alleged to have spied on Griego are Dutton, Seals, Shelby Davis, Wendy Upton, Ken Yepsen, Dean Burroughs, Dennis Talley, and Tim Riney. The Respondent employs approximately 375 persons at the East Tropicana store. There are two connected breakrooms in the store (smoking and nonsmoking). The nonsmoking breakroom is large enough to accommodate two tables that seat six persons, a vending machine, sink, and microwave. The events in question occurred in the nonsmoking breakroom. Griego testified that before October 2000 she “never” saw a manager in the breakroom. Griego testified that in October, how- ever, she observed Dutton in the breakroom on his way to the bathroom or making a pot of coffee. She also observed, “all the assistants at one time or another come in and sit the whole break or the whole lunch. . . . They would usually come in and buy themselves a soda and sit there while . . . ” she was trying to talk to employees. Griego testified that on or about March 1, 2001, Assistant Man- ager Tim Riney sat on the table in front of her while he talked to other employees. Griego believed that he had also purchased a soda pop from the machine in the room. Griego testified that on approximately March 2, 2001, Assistant Manager Dean Burroughs “went to the machine [sic] bought him- self a pop. . . . He stood there and talked to Chuck about things on the website.” Griego testified that on or about March 20, 2001, Assistant Manager Dennis Talley and Dutton were in the breakroom while Griego was listening to a radio show. She recalled that Talley asked her what she was listening to and she told him a union talk show. Valerie Gonzalez testified that it seemed to her that in October 2000 she would see management go in the breakroom more often and take their breaks. Employee Mary Green testified that before October 2000 she would only see managers infrequently in the breakroom. Starting in October she noticed that “sometimes when Angie [Griego] was back there, there would be management peo- ple.” WAL-MART STORES 905 Witnesses Shelby Davis, Ken Yepsen, Lisa Lindholm, Lois Cox, Elaine Perry, Patricia Denekamp, Dennis Talley, Mark Dut- ton, Wendy Upton, and Dean Burroughs testified, contrary to Griego, that managers regularly used the breakroom on a daily basis both before and during the period when the alleged unlawful surveillance occurred. The managers would routinely make use of the room for such purposes as eating, doing paperwork, talking, looking for other employees, and using the bathroom. The manag- ers credibly denied that they were ever instructed to observe Griego in the breakroom. The record as a whole does not support the conclusion that managers commenced using the breakroom more frequently in October 2000 in order to observe Griego engaged in union activ- ity. The overwhelming weight of the testimony shows that super- vision regularly used the store’s only breakroom. I find that it was not unusual for supervisors to be in the breakroom before and during the time period in question and that the Government has failed to prove the surveillance allegations relating to Griego at the East Tropicana breakroom by the required preponderance of the evidence. I conclude the Respondent did not engage in unlawful surveillance of Griego in the breakroom in violation of Section 8(a)(1) of the Act. X. WEST CRAIG STORE Around noon on December 12, 2000, employee Norine Soren- sen was distributing union handbills in front of Respondent’s West Craig store. Sorensen testified that Tiffani McClendon, a comanager in training, approached her. Sorensen did not immedi- ately recognize McClendon as she only knew her casually. (McClendon had taken Sorensen from work to the doctor on one occasion.) Sorensen asked McClendon if she was a Wal-Mart employee. McClendon stated she was and asked Sorensen if she was from store 1584. Sorensen replied that she was and started to give a union handbill to her. McClendon became angry and asked, “[W]hat are you out here doing this for?” At that point, McClendon grabbed all of the handbills from Sorensen and got in a car that was waiting by the curb and drove off. McClendon, because of health problems, did not testify at the hearing. The West Craig Store Manager Terry Owens did testify as to his knowledge of the incident. He had a conversation with McClendon when they were both attending an area managers labor relations course. Owens testified there was discussion of the fliers being taken from Sorensen. McClendon confided to him, “I was the one that did that.” The Government alleges that this incident violated the Act be- cause McClendon, as a supervisor, took the union material away from Sorensen and because she created an impression that em- ployees’ union activities were under surveillance. The Respondent defends on the basis that McClendon was not a supervisor or agent under the Act’s definitions because she was only employed as a management trainee. I have found that man- agement trainees are agents of the Respondent as discussed above. I, therefore, find that McClendon was the Respondent’s agent during her encounter with Sorensen on December 12, 2000. McClendon took all of the union handbills from Sorensen without authorization while angrily castigating her for engaging in union activity. I find that McClendon’s actions were coercive and an unlawful interference with employees’ union activities and violated Section 8(a)(1) of the Act. I further find that the Govern- ment has not established that McClendon’s actions were unlawful creation of the impression of surveillance of Sorensen’s union activities. Sorensen was conspicuously standing in front of the Respondent’s public store distributing union handbills. I conclude that the fact that McClendon observed her there did not unlawfully create the impression of surveillance and did not violate Section 8(a)(1) of the Act. Roadway Package System, Inc., 302 NLRB 961 (1991); Carrick Foodland, 238 NLRB 568, 569 (1978). XI. SOUTH RAINBOW SURVEILLANCE ALLEGATIONS The Government alleges that the Respondent engaged in unlawful surveillance of employees in the breakroom at the South Rainbow store between August 3, 2000, and October 30 2001. The Respondent denies the allegations and defends on the basis that managers regularly used the breakroom and never for the purpose of checking on employees’ union activities. A. August 3 Avis Hammond testified that he worked at the Rainbow store from 2 to 10 p.m. or 3 to 11 p.m. and normally took two 15- minute breaks and one 30-minute lunch break in the breakroom. Hammond would also use the breakroom when he arrived early for work. The breakroom at the Rainbow store is similar to that at East Tropicana. The room was estimated to be about 20’ x 18’ in size and contains a few tables, chairs, and vending machines. Hammond testified that he did not ever see managers in the break- room until he began his union activities. Hammond commenced supporting the Union in July 2000. In August he began passing out union newsletters in the breakroom. Hammond was in the breakroom on August 3 where he passed out union newsletters. He noticed a manager trainee, Matt Ward, was sitting in the room with an employee. Hammond testified he had never seen Matt in the breakroom before. Ward eventually left the room and shortly thereafter management trainee, Betty Leasau, entered the room. Hammond observed that she did not have any- thing to eat or drink. A few minutes later, Store Manager Knick- erbocker came into the room and joined Leasau in conversation. An employee walked in and commented on the fact that Knicker- bocker was in the breakroom and that he was hardly ever in there. Hammond took a break later in the day and observed Assistant Manager Rafael Torres doing paperwork in the breakroom. Hammond wrote a letter to Knickerbocker on August 19 com- plaining about management’s presence in the breakroom when he was on his breaks. A few days later, Eble told Hammond that he did not have the right to tell management they could not go in the breakroom. B. August 30 and 31 Employee Ava Carter testified that she saw Knickerbocker eat- ing his lunch in the breakroom on August 30 and 31, 2000. She stated that this was the only occasion she had seen Knickerbocker or any other mangers in the breakroom eating lunch before or since. There is no testimony that either Hammond or Sorensen was in the breakroom when Carter observed Knickerbocker there. Carter did not testify that she was a union supporter or ever en- gaged in any union activity. Carter did not testify that any other employee was engaged in any union activity on the two noted occasions when she observed Knickerbocker in the breakroom. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906 C. October 2 and 3 Norine Sorensen testified that she began engaging in union ac- tivity in the breakroom around October by handing out union materials to employees. She recalled that on approximately Octo- ber 2 and 3 as she went for the breakroom, manager trainee, Bill Hale, was in the breakroom talking to Jeff Dunn another manage- ment trainee. D. October 20 Sorensen again saw Hale in the breakroom on about October 20 when she took a break. Hale was not eating or drinking any bever- age and walked by Sorensen four or five times, and went to the bathroom, before Sorensen left the breakroom. E. October 24 or 26 On or about October 24 or 26, Sorensen observed Support Manager Mike Cerciola walking ahead of her and another em- ployee, Claudia, as they headed for the breakroom. Sorensen testified that she and Claudia were talking, and Cerciola stopped and watched them for about 30 seconds until they broke up and went their separate ways. Sorensen described this event as “un- usual” because Cerciola had barely spoken to Sorensen before. F. October 30 On or about October 30, Sorensen took a break in the break- room and observed Knickerbocker in the room. He walked around by the refrigerator and “he was either putting in or taking [some- thing] out of the fridge.” Sorensen, disturbed by his presence, got up and left. The Respondent presented 13 witnesses (Jim Eble, Mark Ball, Debra Vaughn, Robyn Vaughn, Linda Burke, Lu Jayne Hovey, Mike Cericola, Kris Heter, Stacey Nunn, Nancy Hall, Raphael Torres, Jeff Dunn, and Bob Knickerbocker) that testified to their observations or habits concerning the presence of managers, in- cluding Knickerbocker, Torres, Cericola, Ward, Leasau, Dunn, and Hale using the breakroom. In sum, their testimony credibly showed that these managers regularly made use of the breakroom for a variety of reasons. To summarize the evidence, in the 3-month period between August 3 and October 30 there were a total 10 occasions when either Hammond, Sorensen, or Carter observed a manager or as- sistant manager in the breakroom. Each testified that the sighting of managers was unusual in their experience. Thirteen other wit- nesses, including managers and employees, testified that managers commonly used the breakroom before, during and after this time period. I note that the store employs approximately 400–500 per- sons and there is a single small breakroom for all of persons em- ployed at the store. I find that the limited number of times that the Government’s witnesses sighted a manager in the breakroom does not establish an unusual pattern or prove that they were there to observe Hammond, Sorensen, and Carter should they choose to engage in union activity in the manager’s presence. There is only limited evidence that the union supporters were engaged in union activity while managers were present. I find that the preponder- ance of the evidence shows that managers commonly used the breakroom and that it has not been established that their presence in the room at the same time as the noted union supporters was for the purpose of surveilling their union activities. I conclude that the Respondent did not engage in unlawful surveillance of employ- ees’ union activities in the South Rainbow store breakroom. Nicholas County Health Care Center, Inc., 331 NLRB 970, 985 (2000). XII. GENERAL COUNSEL’S MOTION CONCERNING JENCKS STATEMENTS During the course of the hearing counsel for the General Coun- sel complied with the Board’s Rules and gave Respondent’s coun- sel copies of prehearing statements taken from various govern- ment witnesses. Counsel for the General Counsel requested the return of these statements at the conclusion of the hearing. Re- spondent’s counsel demurred and raised the need to retain such statements for use in any appeals in the case. I directed that coun- sel seek to work out any differences they had on the matter, and noted that I would entertain post-hearing motions to resolve any disputes. The parties were unable to resolve their differences and counsel for the General Counsel filed posthearing motions seeking the return of the statements. The Respondent filed oppositions to the motions and I have fully considered the parties’ respective arguments. The Government points out that the Board’s Rules and Regula- tions require the production of statements to the Respondent for its use in cross-examination: Sec. 102.118 (b)(1) Notwithstanding the prohibitions of subsection (a) of this section, after a witness called by the General Counsel or by the charging party has testified in a hearing upon a complaint under section 10(c) of the Act, the administrative law judge shall, upon motion of the respondent, order the production of any statement (as here- inafter defined) of such witness in the possession of the General Counsel which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the tes- timony of the witness, the administrative law judge shall order it to be delivered directly to the respondent for his examination and use for the purpose of cross-examination. The stated purpose for producing statements is their use in cross-examination and the fact that a witness has testified at the behest of the Government or charging party is a threshold deter- minate in giving the respondent the information contained in the statements. The obvious intent for disclosing the statement is to provide the respondent with due process, including the opportu- nity to fully cross-examine a government witness. I do not, how- ever, read the rule to limit respondent’s use of statements to cross- examination. Once a statement has been produced it loses its con- fidential nature and is available to the respondent for all legitimate purposes during the entire course of litigating the case. I find noth- ing in this rule that compels the Respondent to return statements at the conclusion of the hearing, especially upon the representation that they are potentially needed for later use in the litigation, in- cluding appeals. The Government notes that the General Counsel’s Unfair Labor Practice Manual (Sec. 10394.11) sets forth the practice that coun- sel for the General Counsel should ask for the return of statements at the conclusion of the hearing: WAL-MART STORES 907 If counsel for the respondent desires, said counsel may be permitted to retain the copies until the hearing is closed— including any periods of recess—provided they are utilized only for legitimate trial purposes . . . . After close of the hearing, the respondent’s counsel must return to the General Counsel the copies of the statement, as well as any additional copies made, unless, of course, the statement has been offered in evidence. Statements of practice set forth in the Manual are not binding authority but rather guidance provided from the General Counsel’s perspective to his trial counsel. As stated in the introduction of the manual: Purpose of Manual—This manual has been prepared by the General Counsel of the National Labor Relations Board pur- suant to authority under Section 3(d) of the Act. It is designed only to provide procedural and operational guidance for the Agency’s staff in administering the National Labor Relations Act, and is not intended to be a compendium of substantive or procedural law, nor a substitute for a knowledge of the law. The guides are not General Counsel or Board rulings or direc- tives and are not a form of authority binding on the General Counsel or on the Board. The General Counsel’s Manual, thus, presents a “housekeep- ing” practice that he suggests government counsel follow regard- ing the return of statements. The Manual states no substantive reason for this suggestion. It is hinted that there is a concern a statement might be subject to misuse if left with respondent’s counsel. I have weighed that speculative concern against the Re- spondent’s legitimate need for statements throughout the course of litigation. On balance, I find that the Respondent’s continuing access to statements in order to preserve and prosecute its case outweighs the conjecture that a statement could be used for unto- ward purposes. The Act provides adequate protections in the event of any abuses. The Government’s motions cite no prejudice that will result to its case from allowing the Respondent to retain cop- ies of the statements. I therefore deny counsel for the General Counsel’s motions that the Respondent return copies of the state- ments it obtained during the course of the hearing. I order that should the Respondent possess any originals of statements that these be returned forthwith to counsel for the General Counsel. Respondent may keep copies of any such statements. CONCLUSIONS OF LAW 1. The Respondent, Wal-Mart Stores, Inc., is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The United Food and Commercial Workers International Un- ion, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) and (3) of the Act. 4. The foregoing unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not violated the Act except as specified. [Recommended Order omitted from publication.]