Sam's Club

SAM’S CLUB 349 NLRB No. 94 1007 Sam’s Club, a Division of Wal-Mart Stores, Inc. and United Food and Commercial Workers Interna- tional Union, CLC.1 Cases 28–CA–17057, 28– CA–17058, 28–CA–17059, 28–CA–17150, 28– CA–17152, 28–CA–17194, 28–CA–17273, 28– CA–17276, 28–CA–17309, 28–CA–17602, and 28–CA–17970 May 4, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On November 29, 2002, Administrative Law Judge James L. Rose issued the attached decision. The Re- spondent, the Charging Party, and the General Counsel each filed exceptions, supporting briefs, answering briefs, and reply briefs. On March 23, 2004, the National Labor Relations Board remanded this case to the judge for additional credibility determinations, factual findings, and legal analysis. On May 25, 2004, the judge issued the attached supplemental decision. The Respondent, Charging Party, and the General Counsel each filed sup- plemental exceptions, supporting briefs, answering briefs, and reply briefs. The Board has delegated its authority in this proceed- ing 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 Or- der.3 For the reasons discussed below, we agree with the judge that the Respondent violated Section 8(a)(1) of the Act by announcing an unlawful rule against talking about the Union and by promulgating an employee dress code that effectively prohibited employees from wearing “badge backers” (described in more detail below) bearing statements of their rights under the Act. However, as 1 We have amended the caption to reflect the disaffiliation of the United Food and Commercial Workers International Union from the AFL–CIO effective July 29, 2005. 2 The Respondent has effectively 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. 3 We shall substitute a new Order and notice consistent with this de- cision. The new notice shall include language consistent with our decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). Because the Respondent refers to employees as “associates,” the notice includes the terms “associate(s)” in parentheses after the terms “employee(s).” explained below, we reverse the judge’s findings that the Respondent’s dress code was otherwise unlawful and that the Respondent violated the Act by: suspending an employee because of her reaction to being denied a wit- ness at a meeting with management, which the employee reasonably believed would result in discipline; suspend- ing merit raises pending a representation election without telling employees that the raises would be reinstated after the election regardless of who won the election; and so- liciting employee signatures on letters stating opposition to the Union. Finally, contrary to the judge, we shall order the Re- spondent to post remedial notices only at the facility at which employees were affected by the Respondent’s unlawful actions. In all other respects, we affirm the judge’s findings and conclusions, and adopt his recom- mended disposition of complaint allegations, for the rea- sons discussed in his decision and supplemental deci- sion.4 I. BACKGROUND The Respondent is a subsidiary of Wal-Mart Stores, Inc. It operates bulk grocery and consumer retail stores, three of which are located at Spring Mountain Road, Se- rene Avenue, and Pecos Road, Las Vegas, Nevada. The employees of these stores are not represented by a union. The alleged unfair labor practices in this case arose from an organizing effort initiated by the Union in early 2001 at all three stores. A petition for representation resulted in a Decision and Direction of Election to take place in November 2001.5 However, the Union’s unfair labor practice charges blocked that election. The complaint alleges numerous unfair labor practices at the Spring Mountain Road, Serene Avenue, and Pecos Road stores. However, during the trial the General Counsel withdrew the allegations concerning the Pecos Road and Serene Avenue facilities. The remaining com- plaint allegations all involve the Spring Mountain Road facility. 4 There are no exceptions to the judge’s dismissal of allegations that the Respondent unlawfully: (1) refused coworker representation to employees Sandra Mena and Marsha Wardlingley, (2) asked employees to ascertain and disclose the union activities of other employees, (3) interrogated employees about union activities, (4) threatened that union applicants would not be hired, (5) created the impression of surveil- lance, (6) told employees that without a contract it could force employ- ees to work for 90 days at any pay rate the Company chose, (7) threat- ened to fire union handbillers, (8) encouraged and condoned an em- ployee driving her car near union handbillers, (9) warned and then discharged Mena, and (10) discharged employee Jason Russin for his union activity. 5 Unless otherwise stated, all dates refer to 2001. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008 II. THE ALLEGED UNFAIR LABOR PRACTICES A. Allegations Concerning Ida Williams The judge found that the Respondent violated Section 8(a)(1) by refusing to allow employee Ida Williams to have a coworker representative present at a June 19 meeting with Store Manager Greg Roberts. See Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part 268 F.3d 1095 (D.C. Cir. 2001), cert. denied 536 U.S. 904 (2002).6 The judge also found that the Respondent violated Section 8(a)(1) and (3) when it suspended Williams for the remainder of the day because she protested Roberts’ denial of the representa- tive. After the judge issued his decision, the Board over- ruled Epilepsy Foundation, and held that an employee not represented by a union has no statutory right to the presence of a coworker at an investigatory interview that the employee reasonably believes could lead to disci- pline. IBM Corp., 341 NLRB 1288 (2004). As the Re- spondent’s employees were not represented by any union when Williams asked for a witness, the General Counsel has moved to withdraw the portions of the complaint alleging that Roberts unlawfully denied Williams’ re- quest. There is no opposition to the motion. In light of IBM Corp., supra, and the lack of opposition, we grant the motion. See Neaton Auto Products Mfg., 343 NLRB 256 (2004) (granting General Counsel’s motion to re- mand case to the Regional Director for withdrawal of complaint, consistent with IBM Corp.).7 Thus, there is no longer any contention that the Respondent violated Section 8(a)(1) by denying Williams’ request for a wit- ness at her meeting with Roberts. The Respondent has excepted to the judge’s finding that it violated the Act by suspending Williams after her outburst. For the reasons discussed below, we find that Williams’ suspension was lawful. 1. Facts On June 14, Williams received a “coaching” (Sam’s Club’s term for discipline) for insubordination from her supervisor, Jeff Tuesburg. On the morning of June 19, 6 In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Supreme Court held that an employee is entitled to be accompanied by his bar- gaining representative when called by management for an interview which might lead to discipline. In Epilepsy Foundation, supra, the Board extended the Weingarten right to a workplace where the employ- ees are not represented by a union. Member Schaumber questions whether the facts establish that this meeting constituted a Weingarten meeting but he finds it unnecessary to decide that question in this case. 7 There is no contention that IBM should not be applied in this case. Consistent with her dissenting position in Neaton Auto Products, supra, Member Liebman would deny the motion. Williams had another confrontation with Tuesburg, who then arranged for a meeting with Store Manager Roberts prior to the beginning of Williams’ shift. On her way to that meeting, Williams asked fellow employee Keman Clute to accompany her as a coworker witness to the meeting with Roberts. Clute testified that when they walked into Roberts’ of- fice Roberts asked him “what I was doing up there with her,8 and he said you don’t need to be up here . . . [be- cause] we’re just sitting here talking.” Roberts, accord- ing to his credited testimony, then explained to Williams, “Ida, this is not an investigation. . . . It would be inap- propriate to have a witness being that this is not an inves- tigation.” Williams became upset, said “[T]his is a bunch of crap,” and began to walk away. At that point, Roberts testified that he said, “Ida, I can’t have you working with our [customers] in the state you are in. I’m going to ask that you go home for the day.” 2. Whether Roberts unlawfully suspended Williams The judge found that Roberts suspended Williams be- cause she questioned his decision denying her an em- ployee witness at their meeting. Because he found that Williams was entitled to a representative and that the denial of her request was unlawful, the judge found her suspension unlawful. Additionally, he also found that Williams’ “this is crap” statement was not such serious misconduct as to cost her the protection of the Act. The judge further found no evidence to support Roberts’ con- tention that Williams was too upset to deal with custom- ers. We disagree and find that Roberts acted lawfully in suspending Williams for the rest of the day. The judge found the violation on the basis that Wil- liams’ suspension “was directly a result of Roberts’ hav- ing unlawfully refused to allow Williams to have a wit- ness.” As previously noted, however, it is no longer con- tended that the denial of Williams’ request for represen- tation was unlawful. Thus, although Williams had the right to request a representative, the Respondent likewise acted lawfully in denying that request. Having done so, Williams’ subsequent heated statement, “this is a bunch of crap,” was not an act of protected activity, i.e., a re- quest for a witness, but rather an intemperate response to a lawful act of the Respondent.9 The Respondent rea- 8 The complaint alleges that Roberts’ remarks to Clute constituted an unlawful interrogation. Although the judge failed to address this allega- tion, the evidence does not support a finding that Roberts’ remarks were unlawful. Roberts did not attempt to interrogate Clute about his protected activities; he merely asked why Clute was there. 9 We agree with the judge that saying “this is a bunch of crap” will ordinarily not cost an employee already engaged in protected activity the protection of the Act. Atlantic Steel, 245 NLRB 814, 816 (1979). However, Williams was no longer engaged in protected activity when she made the statement. SAM’S CLUB 1009 sonably reacted to her unprotected outburst by determin- ing that Williams should not deal with customers in her agitated state, and it thus sent her home for the day.10 The dissent contends that Williams’ statement and walkoff were part of the res gestae of her request for a witness, and thus, like the request, were also protected. We disagree. As discussed above, we think it clear that Williams’ subsequent conduct was separate from her request for a witness; she was not simply reasserting her request. But, even if the Williams request and the Re- spondent’s lawful denial were considered together as part of the same res gestae, the Respondent’s (Roberts’) ac- tion would still be lawful. Roberts did not send Williams home because of her crude criticism of his decision. Rather it was because he considered her too upset to per- form her job duties, which required dealing directly with the Respondent’s customers. The cases cited by the dissent Postal Service, 251 NLRB 252 (1980), enfd. 652 F.2d 409 (5th Cir. 1981), and Thor Power Tool, 148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th Cir. 1965), are clearly distinguishable. In those cases, intemperate remarks made during a griev- ance meeting or immediately proceeding from it were found to be part of the protected activity of processing grievances with an employer. As noted above, Williams’ remarks were in response to the lawful denial of her re- quest; they were not a part of the request itself. Accordingly, we find that Williams’ suspension was not unlawful, and we dismiss that portion of the com- plaint. B. Promulgation of No-Talking Rule In his supplemental decision, the judge found that Merchandise Manager Jaime Durand promulgated an overly broad and discriminatory no-talking rule on Sep- tember 19. The judge credited testimony that Durand told employees that they could talk about the Union in the breakroom during their lunchbreak, but not on the sales floor, in the parking lot, or outside in the smoking 10 The judge and our dissenting colleague also find that the suspen- sion was unwarranted because they find “no real evidence that [Wil- liams] would have carried [her anger] to her job.” The dissent also suggests that, even if Williams was upset and could not immediately return to her job, she could have been allowed a short period to “cool off” instead of being sent home for the rest of the day. We reject both assertions. Accepting either argument would require us to substitute our managerial judgment for that of Roberts, who—having personally observed Williams’ behavior and demeanor on June 19—was in a far better position than we are to evaluate her ability to deal with custom- ers. We shall not second-guess Roberts’ judgment and his decision as to how long Williams needed to be removed from customer contact. See, e.g., NLRB v. Columbus Marble Works, 233 F.2d 406, 413 (5th Cir. 1956) (“[A]s we have so often said: management is for manage- ment. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision.”). area. We agree with the judge that the prohibition an- nounced by Durand was unlawful. It is well established that employees are entitled to dis- cuss unions and solicit for unions on nonworking time, unless the employer can show that it needs to limit the exercise of that right in order to maintain production or discipline.11 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945), and Peyton Packing Co., 49 NLRB 828, 843–844 (1943), enfd. 142 F.2d 1009 (5th Cir.), cert. denied 323 U.S. 730 (1944). It is also well settled that “an employer may forbid employees from talking about a union during periods when the employees are supposed to be actively working, if that prohibition also extends to other subjects not associated or connected with the em- ployees’ work tasks. However, an employer violates the Act when employees are forbidden to discuss unioniza- tion, but are free to discuss other subjects unrelated to work.” Jensen Enterprises, 339 NLRB 877, 878 (2003). Consistent with these well-established principles, we agree with the judge that Durand’s prohibition of all talk about the Union violated Section 8(a)(1) because it ap- plied only to conversations about the Union. The record establishes that the Respondent allowed employees to talk about other nonwork matters on the sales floor, even on working time. Accordingly, by telling employees that they could not talk about the Union on the sales floor, while allowing them to talk about other nonwork matters, the Respondent violated Section 8(a)(1). Jensen Enter- prises, supra. Further, as it concerned the parking lot and smoking areas, the prohibition—which would encompass solicitation as well—was not limited either to working time or to selling areas and therefore was overly broad both as to location and to time, even if it had been lim- ited to solicitation alone. Highland Yarn Mills, 313 NLRB 193, 194 (1993); McBride’s of Naylor Road, su- pra.12 Accordingly, we find that Durand’s prohibition of union talk, while permitting other nonwork-related dis- 11 Conversely, it is clear that an employer may lawfully prohibit so- licitation during working time. See Our Way, 268 NLRB 394 (1983). Further, retail employers, such as the Respondent, may lawfully pro- hibit employees from soliciting on the selling floor—even during the nonworktime of employees—because active solicitation in a sales area may disrupt a retail store’s business. See, e.g., J. C. Penney Co., 266 NLRB 1223 (1983); Marshall Field & Co., 98 NLRB 88 (1952), modi- fied on other grounds and enfd. 200 F.2d 375 (7th Cir. 1958). The Board, however, has not allowed these restrictions on solicitation to be extended beyond that portion of the store that is used for selling pur- poses. See, e.g., McBride's of Naylor Road, 229 NLRB 795 (1977). 12 Because we agree that Durand’s prohibition on talking about the Union was unlawful, we find it unnecessary to decide whether Store Manager Roberts unlawfully prohibited union solicitation. Finding a similar violation by Roberts would be cumulative and would not affect the remedy. In reaching these findings, we do not rely on the Wal-Mart television advertisement to which the judge referred in his decision. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010 cussions, and his extension of that prohibition to non- work areas during nonworktime, violated Section 8(a)(1) of the Act. C. The Respondent’s Revised Dress Code Policy During the union organizing campaign, the Respon- dent announced a number of changes in its employee dress code. The complaint alleges, and the judge found, that several of the changes were unlawful. For the rea- sons discussed below, we agree with respect to only one of the changes. 1. Facts The Respondent’s employees are required to wear name badges attached to lanyards worn around the neck. Name badges are affixed to the front of “badge backers,” which are slightly larger than name badges. In the past, employees put other buttons, pins, and insignia on their name badges, lanyards, and shirts. During the union or- ganizing campaign, employees affixed union buttons to their lanyards or badge backers, wore lanyards bearing the Union’s logo, and/or wore badge backers with state- ments of their Epilepsy Foundation rights on the back. Although union pins and lanyards were visible to cus- tomers, the Epilepsy Foundation rights statements on the back side of badge backers were not. On June 5, the Respondent’s vice president for opera- tions, Jim Haworth, sent a memo to general managers throughout the entire Sam’s Club chain related to new employee name badges. The Haworth memo announced that beginning the week of June 11, all clubs would re- ceive a kit containing new name badges for all associ- ates, with the new badges to be worn by employees start- ing June 22. The memo stated that the expected results of the new name badges included the improvement of customer service by easy-to-read name badges, the main- tenance of a clean, professional, world-class image, and the minimization of wear and tear on the badges. In ad- dition to describing a host of changes to name badges, the memo also provided in relevant part: No pins or stickers may be placed on the Associate name badge. No Exceptions. Only Corporate approved badge backers may be worn behind the name badge. Associate pins may be worn on corporate approved lanyards. (All lanyards must have a break-away snap in the back for safety reasons.) . . . . Only Sam’s Club pins may be worn on the Associate’s breakaway lanyard. Thus, as the judge found, the new policy prohibited em- ployees from wearing badge backers stating Epilepsy Foun- dation rights and putting union pins or buttons on their lan- yards and name badges. Because the union lanyards previ- ously worn by employees lacked breakaway snaps, the new policy’s prohibition on wearing lanyards without breakaway snaps also effectively prohibited wearing the Union’s lan- yards. At an unspecified date in June, Roberts announced the new dress code policy at a meeting with employees. Among other things, Roberts told the employees that they were not allowed to wear badge backers of any kind, not even the company badge backers that some employ- ees had worn before. The handouts given to employees at the June meeting stated that the new dress code would be strictly enforced beginning July 1. Roughly a week later however, the Respondent amended the June 5 dress code policy to allow the wearing of “personalized buttons/pins of any type.” This meant that employees could once again wear union pins and buttons on lanyards, but not on name badges. 2. Analysis It is well established that employees generally have the right to wear union insignia while at work. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–803 (1945). But this right is not without limitation. The Board must balance the conflicting rights of employees under Section 7 and the right of employers to manage their businesses safely and efficiently. Id. at 797–798; Standard Oil Co. of California, 168 NLRB 153, 161 (1967). Thus, an em- ployer may limit or ban the display or wearing of union insignia at work if special circumstances exist and if those circumstances outweigh the adverse effect on em- ployees’ Section 7 rights resulting from the limitation or ban. Albis Plastics, 335 NLRB 923, 924 (2001); Mack's Supermarkets, 288 NLRB 1082, 1098 (1988). For ex- ample, the Board has approved limitations on the wear- ing of union insignia based on safety concerns, Albis Plastics, supra at 925; Standard Oil, supra at 153 fn. 1, 160–162; and on the employer’s need to have neatly uni- formed employees as part of its public image, United Parcel Service, 195 NLRB 441, 448–450 (1972). On the other hand, the Board has invalidated restrictions that were based merely on employees’ contact with custom- ers, Burger King Corp., 265 NLRB 1507 (1982), enfd. in relevant part 725 F.2d 1053 (6th Cir. 1984); or that were overly broad, Albertsons, Inc., 272 NLRB 865, 866 (1984). When no special circumstances exist, an em- SAM’S CLUB 1011 ployer’s directive to employees to stop wearing union insignia violates Section 8(a)(1). Albis Plastics, supra at 924. a. Badge backers The judge found that the Respondent violated Section 8(a)(1) by prohibiting employees from wearing badge backers with statements of their Epilepsy Foundation rights on the back. While Epilepsy was overruled in IBM, even under IBM, an employee has a Section 7 right to request the assistance of a fellow employee. The badge backer worn by the employee involved herein con- tained, inter alia, a statement of that right. In its exceptions, the Respondent argues that it adopted its “name badge” rule in response to customers’ com- plaints about the visibility of employees’ names and about distracting badge backers. It contends that the rule is justified by special circumstances—the need for em- ployees’ names to be clearly visible to customers and to project a “clean, professional, world-class image.” The Respondent therefore contends that it was lawful to adopt a rule prohibiting employees from placing any kinds of pins, buttons, or stickers on their name tags in order to prevent their names from being obscured, and—at least at the Spring Mountain store—in prohibiting the wearing of any sort of badge backers.13 As it applies to the ban on badge backers bearing statements of Section 7 rights, the argument fails. Those statements were on the backs of the employees’ badge backers, where they would neither obscure the employ- ees’ names nor be seen by customers. Accordingly, we find that the Respondent has not demonstrated “special circumstances” justifying its prohibition of employees wearing badge backers containing statements of pro- tected rights. Therefore, we find that this prohibition was unlawful. We find this violation, however, only as to Roberts’ statement at the Spring Mountain store, i.e., banning the wearing of all badge backers. We do not pass on the corporatewide rule. As it concerns badge backers, the complaint alleges only a violation based on Roberts’ hav- ing “promulgated and enforced an overly broad and dis- criminatory dress code” at the Spring Mountain store. The Respondent’s corporatewide rule was different, in that it permitted some badge backers. There is no allega- tion—and no evidence—that that rule was either an- nounced to employees or enforced at any other store. And, at Spring Mountain, the corporate rule was effec- tively superseded by Roberts’ ban on all badge backers. 13 The judge did not address the validity of this argument. b. The lanyards The Respondent defends its prohibition of non- breakaway lanyards (including nonbreakaway union lan- yards) on safety grounds. It argues that employees can be injured if nonbreakaway lanyards accidentally become entangled in bulk-packaged items or in heavy machinery such as forklifts or cardboard compacters. The judge dismissed these concerns as abstract. He observed that the Respondent is a retail store, not a manufacturing plant, and found no evidence that any harm had occurred with nonbreakaway lanyards. For those reasons, the judge found the Respondent failed to prove special cir- cumstances and held this portion of the dress code policy unlawful. We disagree. We find that the Respondent has demon- strated special circumstances surrounding its ban on non- breakaway lanyards and that those circumstances out- weigh the employees’ right to wear such lanyards bear- ing the Union’s logo. The Republic Aviation balancing test clearly respects the Respondent’s right to manage its business safely. Unlike the judge, we find the Respondent’s expressed concern for employee safety to be both genuine and sub- stantial. Although the Respondent’s employees may not face the same level of danger as employees in industrial settings, the Respondent’s workplace is not risk-free. Sam’s Club is a retail warehouse that sells bulk-packaged merchandise. As Store Manager Roberts explained at the hearing, in a warehouse, name badges can get caught in merchandise or machinery. If that happens, breakaway lanyards may prevent injury to employees. See Kendall Co., 267 NLRB 963, 964–965 (1983). That no such in- jury has yet occurred does not diminish the legitimacy of the Respondent’s desire to prevent such an occurrence or of its insistence on the wearing of breakaway lanyards to achieve that purpose. See Albis Plastics, supra at 925 fn. 5. The union lanyard in evidence did not have a break- away snap, and there is no indication that the Union of- fered to provide its supporters with breakaway union lanyards. On this record, then, the only breakaway lan- yards that the Respondent’s employees could have worn were those the Respondent supplied. Accordingly, we find that the Respondent has established special circum- stances underpinning its rule requiring the wearing of breakaway lanyards. We further find that the rule requiring the use of break- away lanyards did not interfere to any significant extent with the employees’ right to wear union insignia. The Respondent’s June 5 policy allowed the wearing of union insignia on shirts; the update a week later also allowed the wearing of union insignia on lanyards. Because the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012 Respondent allowed employees to wear other kinds of union insignia, it did not materially limit the exercise of their right to identify themselves with the Union by re- quiring them to wear breakaway lanyards, simply be- cause the Union’s lanyards lacked that safety feature. See Standard Oil, supra at 153 fn. 1. For the foregoing reasons, we find that the Respon- dent’s legitimate and substantial safety concerns out- weigh the minimal interference with employee rights caused by requiring the wearing of breakaway lanyards. We therefore reverse the judge and find the breakaway lanyard provision to be lawful under the Republic Avia- tion balancing test. c. Union insignia attached to lanyards The Respondent’s original dress code policy, which was disseminated to general managers on June 5 and announced to employees later, prohibited the attachment of union buttons and pins to both lanyards and name badges. However, a week after announcing the new pol- icy to employees, the Respondent rescinded the former restriction and assured employees that they could wear pins of any type on their lanyards. Finding no evidence that the wearing of union buttons on lanyards had any kind of detrimental effect on cus- tomers, production, or store discipline, the judge found this prohibition unlawful. (It is unclear from his decision whether the judge realized that the prohibition had been rescinded.) In the circumstances presented here, we dis- agree. When it announced the June 5 policy to employ- ees, the Respondent stated that it would not be strictly enforced until July 1. It rescinded the policy a week later, well before it was scheduled to take effect. We find that the Respondent did not interfere with the em- ployees’ right to wear union pins and buttons on their lanyards during the week before it rescinded this prohibi- tion, because the prohibition had not actually taken effect at that time. Accordingly, we shall dismiss the complaint insofar as it alleges that the temporary ban on wearing union insignia on employees’ lanyards was unlawful. D. Roberts’ Suspension of Merit Raises The judge found that Roberts unlawfully suspended merit raises pending the election without expressly tell- ing employees that the raises would be reinstated after the election regardless of how they voted. We reverse and dismiss this allegation. 1. Facts The day after the Union filed its petition for an elec- tion Roberts met with employees and announced that merit raises would be suspended pending the election. Although witnesses gave varied accounts of his state- ment, the judge credited the following portion of Rob- erts’ testimony: [O]ne of those things I mentioned, what I called labora- tory conditions, and spoke to the associates and let them know that merit increases would be frozen, put on hold because of the fact the petition was filed and I did not want, we did not want, I did not want it look as though we were swaying someone's vote based on a discretionary increase. However, that the merit in- creases would be reinstated after the proposed vote. 2. Analysis It is well established that an employer faced with a un- ion organizing drive is required to proceed with an ex- pected wage or benefit adjustment as if the union were not on the scene. Atlantic Forest Products, 282 NLRB 855, 858 (1987). However, “[a]n employer may post- pone such a wage or benefit adjustment so long as it ‘[makes] clear’ to employees that the adjustment would occur whether or not they select a union and that the ‘sole purpose’ of the adjustment is to avoid the appear- ance of influencing the election’s outcome.” Grass Val- ley Grocery Outlet, 332 NLRB 1449, 1451 (2000), quot- ing Atlantic Forest Products, supra, citing Uarco, Inc., 169 NLRB 1153, 1154 (1968). In Uarco, the Board upheld an employer’s postpone- ment of wage adjustments because the employer made it clear that [W]hether or not its employees were represented by a union, it planned to continue its established practice of adjusting wage rates in early April of each year, pursu- ant to its annual wage survey, to bring them into con- formity with prevailing rates in the area; and that the sole purpose of its announcement postponing the ex- pected adjustments in wage rates and benefits for the employees involved was to avoid the appearance that it sought to interfere with their free choice in any elec- tions which might be directed. [169 NLRB at 1154.] The Board held the employer’s postponement lawful, reasoning that in those circumstances, employees could not reasonably have concluded that the action was in- tended to influence their decision concerning their repre- sentation for purposes of collective bargaining. Id. Here, the judge found that the Respondent’s suspen- sion of merit wage increases violated Section 8(a)(1) because employees were not expressly told that their merit increases would resume after the election regard- less of how they voted. He reasoned that omission of the italicized language could reasonably lead employees to conclude that resumption of the wage increases would depend on their voting against the Union. SAM’S CLUB 1013 We disagree. Roberts made it clear that merit in- creases were only being “put on hold” in order to avoid appearing to attempt to influence employees’ votes. He stated without qualification that the “merit increases will be reinstated after the vote.” In these circumstances, the only plausible reading of Roberts’ statement is that the employees would receive their merit increases after the election regardless of the outcome. We agree with the Respondent that there are no “magic words” in which that message must be couched. Because Roberts’ prom- ise was unqualified and unconditional, we find that the Respondent’s employees would not reasonably have concluded that Roberts was postponing their merit in- creases to influence their votes. We therefore dismiss this complaint allegation. E. Allegations Concerning Candy Proffitt The judge found that Candy Proffitt was a statutory supervisor and that she violated Section 8(a)(1) by solic- iting signatures and collecting signed letters from other employees expressing opposition to the Union.14 The judge dismissed the allegation that the Respondent de- moted Proffitt from her supervisory position as part of a scheme to pack the unit with antiunion personnel. For the reasons discussed below, we find, contrary to the judge, that the evidence fails to establish that Proffitt was a supervisor and, therefore, her actions regarding the antiunion letters were not unlawful. We agree with the judge that, assuming that the Respondent demoted Proffitt, there is no evidence that it did so as part of a unit-packing scheme. 1. Facts Until May 2001, Proffitt held “team lead” positions on the hard-lines and the center-lines teams. (The Decision and Direction of Election states that team leads “may direct the work of associates within their section.”) However, when the Respondent began remodeling the Spring Mountain Road store in May, Proffitt joined the remodeling team, working nights. When the remodeling was finished, Proffitt took a vacation. She returned in early September, working days in the freezer/cooler sec- tion. In mid-October, she received a reminder from Store Manager Roberts that she was no longer in a team lead position. After Proffitt returned from vacation, she and several other employees circulated letters opposing the Union, solicited fellow employees to sign the letters, and col- lected the letters after they had been signed. The Re- 14 The judge found that Proffitt was not an agent of the Respondent for purposes of soliciting other employees to sign the letter and collect- ing the signed letters. We agree with that finding for the reasons set forth in the judge’s supplemental decision. spondent was aware of and publicly approved these ef- forts. Several employee witnesses testified at the hearing that Proffitt either claimed she was a team lead or performed supervisory tasks in the fall of 2001. Glenda Cook and Mary Lou Wagner testified that Proffitt told them that she was team lead in the fall of 2001. Marsha Ward- ingley testified that Proffitt talked about being a supervi- sor to everyone: “She told everyone she was in charge, that she was a supervisor.” In addition, some witnesses testified that Proffitt di- rected the work of employees or “moved employees around.” Frank Lupiano testified that Proffitt expressed stress or frustration to him about having to move people around in the store. Similarly, Marsha Wardingley testi- fied that in the fall of 2001, Proffitt took over a supervi- sory position Roberts originally created for Bruce Miller, who later became a manager. Wardingley testified that once Proffitt occupied that position, she would make schedules, tell people where to go, and give directions and orders. When Wardingley was asked at the hearing how she knew that Proffitt was doing schedules and moving people around, she testified, “You could hear her on the radio giving orders all the time.” Linda Gruen testified that Proffitt sometimes asked her or other employees to “zone” (i.e., clean and straighten up) areas other than their assigned work areas because the people working the other areas had fallen behind or did not come to work. Gruen testified that Proffitt did so without consulting with others. Gruen further testified that in mid- to late September, she asked Proffitt “if it would be okay if I left because I wasn’t feeling well.” Proffitt replied by asking if Gruen’s area was “all caught up.” After Gruen answered that it was, Proffitt said “fine, go ahead, you can leave.” Proffitt testified that in her postremodeling position, insofar as she assigned work to other employees or di- rected their work, she did not exercise independent judgment but simply passed along the directions of man- agement. She also testified that in that position she never screened or interviewed associates, did evaluations, dis- ciplined or recommended discipline, or approved sched- ule changes, vacation requests, or merit increases. 2. Analysis a. Proffitt was not a supervisor Section 2(11) of the Act defines “supervisor” as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other em- ployees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1014 in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. An individual need only exercise one of the functions enu- merated in Section 2(11) to be found to be a supervisor. See NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 713 (2001). The burden of proof lies with the party asserting that an individual is a supervisor. Id at 710–712. Where the possession of any one of the powers listed in Section 2(11) is not conclusively established, the Board looks to secondary indicia to determine supervi- sory status. Those indicia include the individual’s job title or designation and authority to grant time off, Mon- arch Federal Savings & Loan, 237 NLRB 844, 845 (1978), enfd. 615 F.2d 1354 (3d Cir. 1980); higher com- pensation and the perceptions of others as to the individ- ual’s authority, General Security Services Corp., 326 NLRB 312 (1998), enfd. 187 F.3d 629 (8th Cir. 1999). However, when there is no evidence that an individual possesses any one of the statutory indicia, the secondary indicia are insufficient by themselves to establish super- visory status. J. C. Brock Corp., 314 NLRB 157, 159 (1994). The judge found that Proffitt was a supervisor because she gave directions to other employees, granted an em- ployee time off, received an additional 50 cents per hour, and because the employees she directed thought she was a supervisor. Contrary to the judge, we find that the re- cord does not establish that Proffitt possessed or exer- cised supervisory authority. The authority to assign or responsibly direct other em- ployees does not confer supervisory status unless its ex- ercise requires the use of independent judgment. See, e.g., Property Markets Group, 339 NLRB 199, 204–206 (2003). We find that the General Counsel has failed to demonstrate that Proffitt exercised independent judgment in connection with her assertedly supervisory functions. In instances where Proffitt did not first check in with management before assigning work, the record indicates that her movement of personnel was either routine or simply based on the need to get work done. There is no indication that such assignments were based on any fac- tor involving the use of independent judgment. Nor did Proffit’s permitting Gruen to go home when she felt ill and asked to be excused involve the use of independent judgment. The remaining factors cited by the judge—Proffitt’s higher pay level and the other employees’ perceptions of Proffitt’s authority—are all secondary indicia that cannot support a finding of supervisory status in the absence of any of the statutory indicia. J. C. Brock Corp., supra at 159. Accordingly, we reverse the judge and find that Proffitt has not been shown to have been a supervisor at the time she was involved in the antiunion letter-writing effort.15 b. Proffitt lawfully participated in the antiunion letter-writing effort Because Proffitt was neither a supervisor nor an agent of the Respondent for purposes of the circulation of the antiunion letter, it follows that her participation in that effort was not unlawful. We therefore dismiss the allega- tion that the Respondent violated Section 8(a)(1) of the act by soliciting letters opposing the Union. c. The Respondent did not demote proffitt as part of a unit-packing scheme The complaint alleges that the Respondent hired nu- merous employees into the bargaining unit in the fall of 2001 in order to dilute the Union’s strength in the elec- tion. The General Counsel argues that, as part of this unit-packing effort, the Respondent attempted to “de- mote” Proffitt into a unit position so that she could play a lawful part in opposing the Union. The judge found that the Respondent did not engage in unit-packing. He found, instead, that during the store remodeling project, staffing had been allowed to fall to unusually low levels and that the Respondent simply hired enough employees to return to its normal staffing levels. As for Proffitt, the judge found that she was not demoted in order to pack the unit, but remained a super- visor. We agree with the judge that the Respondent did not engage in a general scheme to pack the bargaining unit, for the reasons discussed in his original decision. And although we find that Proffitt ceased to be a lead (and, in that capacity, arguably a supervisor) before the election, we also find no evidence to support the allegation that she was demoted as part of the Respondent’s unit- packing scheme. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and 15 Chairman Battista concurs with his colleagues that Candy Proffitt is not a supervisor under Sec. 2(11) of the Act. Although there is some evidence that Proffitt sometimes assigned individuals to “zone” (or “tidy up”) an area, and Proffitt once told an employee who was sick that she could go home, the evidence fails to establish that Proffitt used independent judgment in doing so. The burden of proof falls on the party asserting supervisory status, NLRB v. Kentucky River Community Care, Inc., supra at 713. Here, that is the General Counsel. However, because the General Counsel failed to present sufficient evidence that Proffitt used independent judgment in assigning work or that she re- sponsibly directed employees, Chairman Battista agrees that she has not been shown to be a supervisor. SAM’S CLUB 1015 desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to cease and desist from confiscating union pens and other union-related material and from promul- gating and maintaining rules that employees may not talk about the Union on the sales floor or in the parking lot and smoking area, or wear badge backers bearing state- ments of employee rights under the Act on the back. We shall also order the Respondent to rescind the unlawful rules. We agree with the Respondent that the judge erred in requiring it to post notices at all of its Las Vegas area stores. The violations we have found affected only the employees at the Respondent’s Spring Mountain Road store, and we shall order notice posting only at that facil- ity. ORDER The National Labor Relations Board orders that the Respondent, Sam’s Club, a Division of Wal-Mart Stores, Inc., Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Confiscating union pens and other union-related material. (b) Promulgating and maintaining a rule prohibiting employees from talking about the Union while allowing other nonwork-related discussions or prohibiting such discussions in nonwork areas during nonworktime. (c) Prohibiting employees from wearing badge backers stating their rights under the National Labor Relations Act on the back. (d) In any like or related manner interfering with, 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) Rescind the Respondent’s prohibitions on talking about the Union and on wearing badge backers stating their rights under the Act on the back. (b) Within 14 days after service by the Region, post at its facility at Spring Mountain Road, Las Vegas, Nevada, copies of the attached notice marked “Appendix.16 Cop- ies of the notice, on forms provided by the Regional Di- rector for Region 28, after being signed by the Respon- dent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to 16 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any closed facility since June 5, 2001. (c) 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 the Respondent has taken to comply. MEMBER LIEBMAN, dissenting in part. Contrary to the majority, I would find that the suspen- sion of Ida Williams, who exercised her right to request an employee witness at a disciplinary interview, was unlawful. In my view, the Respondent seized on Wil- liams’ alleged emotional state as a pretext for retaliating against her. On June 19, 2001, Ida Williams had her second con- frontation with her supervisor, Jeff Tuesburg, in less than a week. Tuesburg then arranged for a meeting with Store Manager Greg Roberts. Williams asked that a fellow employee accompany her to Roberts’ office as a witness. Roberts denied the request, stating that the meeting was not an investigation. According to Roberts’ credited testimony, “Ida was not happy with my response, visibly, and she said ‘this is a bunch of crap,’ and she walked away.” Roberts then suspended Williams for the rest of the day, ostensibly because he felt she was too angry to work with customers. At the time of her request, Williams not only had the statutory right to request the presence of a coworker at the interview with Roberts, she also was entitled to such a witness. Under the circumstances, it was reasonable for Williams to believe that, despite Roberts’ assurances, the interview could lead to discipline. Williams’ upset reaction to the denial of her request, a statutory entitle- ment, was not so extreme as to cost her the protection of the Act. The majority effectively concedes these points, but nevertheless finds that the suspension of Williams was lawful. The majority first finds that Williams’ statement “this is a bunch of crap” was “no longer an act of pro- tected activity”—in effect, that the Act’s protections ceased when Williams’ request was denied. This finding is inconsistent with long-settled Board law holding that allegedly insubordinate behavior that is part of the res gestae of protected activity is also protected. See, e.g., DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016 Postal Service, 251 NLRB 252 (1980), enfd. 652 F.2d 409 (5th Cir. 1981). The reason for this rule is simple and obvious. As the Board has recognized, because tempers often flare and emotions run high in the course of protected activity, some leeway must be given to employee expression in the wake of protected activity. Dreis & Krump Mfg., 221 NLRB 309, 315 (1975), enfd. 544 F.2d 320 (7th Cir. 1976). Consistent with these precepts, the Board has held that an employee’s statement may be part of the res gestae of protected conduct at a meeting even if the statement is made after the meeting. Thor Power Tool, 148 NLRB 1379 (1964), enfd. 351 F.2d 584 (7th Cir. 1965) (finding an employee’s characterization of his su- perintendent as a “horse’s ass,” immediately after a con- tentious grievance meeting, was part of the res gestae of the meeting); Postal Service, supra at 252 (finding the employees’ allegedly insubordinate discussion of their grievance immediately after a grievance meeting was part of the res gestae of that meeting). This case is squarely controlled by these precedents. Roberts testified that, immediately after he denied her request for a witness, “Ida was not happy with my re- sponse, visibly, and she said this is a bunch of crap, and she walked away.” Because Williams’ statement and exit were prompted by and immediately followed Robert’s denial, they were clearly part of the res gestae of her protected request and were also protected. The majority also explains that it is deferring to the Respondent’s managerial judgment that Williams was too upset to work with customers. But as the judge found, there is no evidence in this record to support this contention. There is no evidence that Williams was so frustrated or angry as to be unable to deal with custom- ers, as Roberts claimed. And even if she was too upset to return immediately to the sales floor, she could have been offered the opportunity to cool off for a few min- utes and compose herself. It seems unlikely that Wil- liams’ ire at Roberts would carry over into her work: encouraging customers to try food samples. By sending her home immediately, Roberts clearly went well beyond what was reasonable under the circumstances, strongly suggesting that he was responding not to Williams’ emo- tional state, but to her protected activity. I recognize, of course, that it is not for the Board to second-guess employers’ legitimate business judgments. But the Board must be satisfied that the employer’s ac- tion reflects an actual business judgment, rather than a pretext for retaliating against an employee for exercising her statutory rights. Here, the record demonstrates that Williams’ alleged emotional state was simply a pretext to retaliate against her for asserting her right to a witness. I therefore agree with the judge that Williams’ suspension violated Section 8(a)(1). APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we 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 confiscate union pens and other union related material. WE WILL NOT promulgate and maintain an overly broad rule prohibiting employees (associates) from talk- ing about the Union while allowing other nonwork- related discussions or prohibiting such discussions in nonwork areas during nonworktime. WE WILL NOT prohibit employees (associates) from wearing badge backers stating their rights under Federal labor law on the back. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind our prohibitions on talking about the Union and on wearing any kind of badge backer. SAM’S CLUB, A DIVISION OF WAL-MART STORES, INC. Nathan Albright Esq., for the General Counsel. Steven D. Wheeless, Cyrus B. Martinez, and Mark G. Kisicki, Esqs., of Phoenix, Arizona, for the Respondent. George Wiszynski, Esq., of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was tried before me at Las Vegas, Nevada, on various dates from August 5–15, 2002, on the General Counsel’s consolidated complaint alleging that agents of the Respondent committed numerous violations of Section 8(a)(1) of the National Labor Relations Act. The Respondent is also alleged to have violated Section 8(a)(3) in certain respects, including the discharge of two employees. SAM’S CLUB 1017 The Respondent generally denied that it violated the Act in any manner and affirmatively contends that the two individuals were terminated for cause. On the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent is a subsidiary of Wal-Mart Stores, Inc., a Delaware corporation, with offices and places of business in various cities of the United States including Las Vegas, Ne- vada, at Pecos Road, Spring Mountain Road, and Serene Ave- nue. It is engaged in the retail sale of bulk food and other gro- cery items and various consumer products. In the course of this business, the Respondent annually derives gross revenues in excess of $500,000 and annually purchases and receives di- rectly from points outside the State of Nevada goods, products and materials valued in excess of $50,000. I therefore conclude that it is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers International Union, AFL–CIO, CLC (the Union) is admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union is engaged in a nationwide “corporate” campaign to organize the employees of Wal-Mart Stores and its subsidiar- ies which has resulted in several Board cases, including one involving events at the Spring Mountain facility in 2000.1 The events here begin with an organizing effort initiated in early 20012 at the Spring Mountain Road, Serene Road, and Pecos Road facilities. A petition for representation in Case 28–RC– 6002 resulted in a Decision and Direction of Election dated November 2; however, the Union’s charges here have blocked the election. The facts and analysis of the many allegations in the instant complaint will be treated seriatim as they appear in the consolidated complaint.3 B. Analysis and Concluding Findings 1. The 8(a)(1) allegations a. By Greg Roberts, February 14, June 19, and July 3 It is alleged in paragraph 5(a) of the consolidated complaint that on February 14 Spring Mountain General Manager Greg Roberts told employees that the Respondent does not recognize their right to have another employee present during investiga- 1 JD(SF)–92–01, on appeal to the Board. 2 All dates are in 2001, unless otherwise indicated. 3 During the trial, the General Counsel moved to withdraw the fol- lowing complaint allegations (most of which concern the Pacos and Serene facilities): pars. 5(b), (d), (f), (h), (i), and (x) and 6(b), (c), (d), (e), (f), (g), and (j), which motion, without objection, was granted. tory interviews. The General Counsel, however, specifically does not argue that the Roberts denied employees this right. This allegation arises out of an employee’s right to be repre- sented when called by management for an interview which might lead to discipline. In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Supreme Court held that an employee is entitled to such representation where the employees have se- lected a bargaining representative. And currently the Board holds that such a right exists where employees have no desig- nated bargaining representative (as in the current fact situation). Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enfd. denied on grounds that the Board had changed its rule and then given retroactive application to the change. 268 F.3d 1095 (D.C. Cir. 2001). Thus employees who have no bargaining agent are entitled to representation at meetings with management which they reasonably believe might result in discipline. However, I conclude the Board does not intend that management is required to disrupt the work of other employees every time an employee wants to talk to a manager where there is no reason to believe that the discussion would lead to disci- pline. Indeed, where the employee initiates the meeting, pre- sumptively discipline would not be in issue. Baton Rouge Wa- ter Works Co., 246 NLRB 995 (1979). On February 14. Sandra Mena received a regular employee evaluation in which it was suggested she had a bad attitude. She wanted to discuss this with Roberts. A meeting was arranged at the outset of which she asked for an employee witness. Roberts told her that she had asked for the meeting, it was not investiga- tory and that she was there pursuant to the Respondent’s “open- door” policy. Accordingly, she had no right to have another employee present. The General Counsel concedes that Mena had no right to have a witness present at a meeting she requested. Neverthe- less, he contends that in telling her so Roberts interfered with her Section 7 rights and thereby violated Section 8(a)(1). I disagree. There is no authority of which I am aware making it an unfair labor practice for an employer to tell employees they have no right to something to which they have no right. To find an unfair labor practice on these facts would be tantamount to finding that Roberts should have allowed Mena to have a witness, even though, the parties agree, she was not entitled to one. Since Roberts was not required to allow Mena to have a wit- ness, it was not unlawful for him to say so. I further find that this was the sum of Roberts’ comment. I do not believe, as specifically alleged in the complaint, that he told her that the Respondent does not recognize Weingarten as a general propo- sition. Indeed, Mena did not so testify. In the fact situation presented, there is no reason for him to have said more than Mena was not entitled to representation. I conclude that the Respondent did not violate Section 8(a)(1) as alleged in para- graph 5(a). The situation involving Ida Williams, however, was differ- ent. In brief, Williams and her supervisor, Jeff Tuesburg, had a confrontation on June 19 which led Tuesburg to arrange a meeting for them with Roberts. Williams asked employee Ke- man Clute to go with her. When they met with Roberts, Rob- erts said that they were not “coaching”—that they were just DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018 talking. Therefore, Williams did not need representation and for Clute to go back to work. Clute did so. Roberts’ version of this event is substantially the same as that of Williams and Clute. Roberts testified that Tuesburg approached him and said he needed to have Roberts meet with him and Williams and Roberts agreed. Williams arrived with Clute and Roberts asked why was Clute present. Williams said he was to be a witness for her. Roberts said, “Ida, this is not an investigation. You are approaching me. It would be inappro- priate to have a witness being that this is not an investigation, so Keman does not need to be here at this time.” Roberts testi- fied further that Williams “was not happy with my response, visibly, and she said this is a bunch of crap, and she walked away.” Roberts then said, “I’m going to ask that you go home for the day.” It is clear from the testimony of Williams and Roberts that the meeting between them was not, as testified to by Roberts, at the instigation of Williams. Her immediate supervisor had requested the meeting because he and Williams had had a con- frontation. Therefore, Williams certainly could have concluded that the meeting might result in some form of discipline. This is particularly true since she had received a written discipline 5 days earlier which stated that the next level of corrective action would be “D-Day up to and including termination.” On these facts, she was entitled to be represented by another employee. In denying her this right, Roberts violated Section 8(a)(1), as alleged in paragraph 5(n). The parties are in substantial agreement concerning the facts involving Marsha Wardingley on July 3. According to Roberts, he had determined to give Wardingley a “coaching for im- provement” and had instructed Wardingley’s supervisor to bring Wardingley to the personnel-training coordinator’s office. When he told Wardingley that she would receive a written coaching, she stopped him and “held up a Weingarten-rights card.” He told her “this was a coaching for improvement, that it was not an investigation and that it, again, it would be inap- propriate to have a witness in there, based on the fact that this was not an investigatory interview.” He also told her that if she was uncomfortable, she could leave. She decided to stay. The General Counsel argues that by his statements Roberts violated the Act by telling an employee that the Respondent does not recognize Weingarten. I disagree. As with Mena, the General Counsel does not argue that Wardingley in fact had a right to the presence of a witness, because the purpose of the meeting was to announce a previously determined discipline and not to investigate. Southwestern Bell Telephone Co., 251 NLRB 625 (1980). It cannot be unlawful for an employer to state correctly its obligations under the Act. Accordingly, I shall recommend that paragraph 5(q) be dismissed. b. By Greg Roberts on May 9 and June 19 It is alleged in paragraph 5(k) that on May 9 Roberts “asked employees to ascertain and disclose the union membership, activities, and sympathies of other employees,” and paragraph 5(p) that on June 19 he “interrogated its employees about their union membership activities, and sympathies.” The allegation in paragraph 5(k) is apparently based on the testimony of Wardingley that at a morning meeting of employ- ees around May 7 Roberts told employees that “we were not allowed to talk about the Union on or off the clock, in or out- side of the Club including the parking lot.” And, Roberts said, “[Y]ou can talk about baseball, football, the weather, but you cannot discuss the Union in this club.” Finally, “We were told that if he got wind of anybody talking about it on the clock or off the clock that he encouraged partners to come to them or another manager and let them know. These partners would be dealt with up to and including termination.” Wardingley’s testimony about the extent of Roberts’ prohibi- tion concerning talking about the Union is not supported by others at these meetings. Nor is her testimony corroborated that “he encouraged partners to come to them or another manager and let them know.” Given this lack of corroboration on a statement by Roberts which was allegedly heard by 30 employ- ees, I decline to credit Wardingley and I do credit Roberts’ denial. Sophia Amelia Fox was a witness for the Respondent. She testified that at one of the early meetings where Roberts was telling employees that solicitation was prohibited, she asked what “if someone was to solicit me in an area that was prohib- ited what should we do?” He told her “to try to speak to that person yourself if they were making you feel uncomfortable and you were not happy with what they were saying and if they wouldn’t leave you alone or it became persistent, then you could come and tell management if you felt you wanted to.” Apparently, the General Counsel also relies on this testimony to establish the violation alleged in paragraph 5(k). I do not find in this testimony an attempt by Roberts to have employees disclose the union membership of others. Accordingly, I shall recommend the paragraph 5(k) be dismissed. The allegation in paragraph 5(p) is apparently based on the testimony of Ida Williams and occurred during the meeting on June 19 where Williams was denied a witness and suspended. There is nothing in Williams’ testimony which suggests that in fact Roberts interrogated her about her union membership or activities. Accordingly, I shall recommend that paragraph 5(p) be dismissed. c. By Jeff Winterboer, February 22 It is alleged in paragraph 5(c) that Serene General Manager Jeff Winterboer threatened employees that applicants who sup- ported the Union would not be hired and created the impression among employees that their union activities were under surveil- lance by the Respondent. This allegation is based solely on the testimony of Cory Butcher. She testified that at a general meeting of employees on February 22, Winterboer “said they didn’t hire people at the new Centennial store, because after reviewing the applications, they realized that they were salts.” The General Counsel con- tends that the reference to “salts” means that Winterboer said the Respondent had not hired prospective employees because of their union affiliation. The General Counsel also argues that Butcher’s testimony proves that Winterboer created the impression that the union activity of employees was under surveillance. Even crediting Butcher (who is no longer an employee). I find nothing in her testimony which would support such a finding. SAM’S CLUB 1019 Winterboer denied making such a statement, which denial seems credible, particularly considering that the General Coun- sel offered no corroborating testimony from the 20 or 30 em- ployees attending the meeting. Further, the connotation of “salt” argued for by the General Counsel is labor law jargon, making it doubtful that a lay manager would use the word in addressing employees. In addition, Carmen Adams, an em- ployee witness called by the Respondent, testified that he did not remember Winterboer using the word “salt” but did testify that Winterboer said that union views would not affect the Re- spondent’s hiring decisions. On balance, I conclude that the evidence offered to support the allegations in 5(c) is too weak and questionable to sustain a finding the Winterboer violated the Act. d. By security guard Jeff (last name unknown) beginning February 26 There is no dispute that on or about the date alleged, the Re- spondent did increase its security at the Serene facility and that one of the guards did walk female employees to their cars in the parking lot. Butcher testified that on arriving at her car, the security guard looked in it. Misti Rice, though called by the Respondent, testified similarly—that when she and the guard reached her car, he would shine his flashlight in the interior. Walking employees to their cars and looking into the cars is alleged to have been for the purpose of discovering union re- lated material and was therefore unlawful surveillance. Such is a logical stretch. Further, there is no persuasive evidence that this guard interrogated these employees about their union activ- ity or otherwise engaged in surveillance of that activity, or that he, as an employee of another company, was an agent of the Respondent. Accordingly, I conclude that the allegation in 5(e) should be dismissed. e. By Bill (last name unknown), March 10 Bill Buford is the Respondent’s labor manager. Butcher tes- tified that “an African-American by the name of Bill from out of town,” conducted a meeting of employees at which, among other things, he showed them the antiunion movie “The Party is Over.” She testified that he “said that if the Union and the Company did not come up with an agreement, that they could force us to work for 90 days at any rate of pay that they chose to pay us.” Rice, again on behalf of the Respondent, testified that Buford did not make the statements attributed to him by Butcher. I found Rice to be a credible witness and conclude that her ver- sion of Buford’s talk is more credible than Butcher’s. Further, the statement Butcher attributed to Buford simply makes no sense. I therefore conclude that the General Counsel failed to establish the allegation in paragraph 5(g) and it should be dis- missed. f. The alleged overly broad and discriminatory no-solicitation rule In paragraph 5(j), it is alleged that Roberts promulgated an overly broad and discriminatory no-solicitation rule by prohib- iting solicitation for the Union at the Spring Mountain facility, including the parking lot, and threatened employees with dis- charge were they to violate this ban. And in paragraph 5(t) this same allegation is made from and after September 19, in addi- tion to a ban on “talking about the Union in the breakroom, on the floor, in the parking lot or outside picnic area of the Spring Mountain facility.” The Respondent’s parent company has promulgated a policy concerning solicitation and distribution the facial validity of which the General Counsel does contest.4 However, the Gen- eral Counsel does argue that the Respondent discriminatorily applied the ban by proscribing solicitation for the Union while permitting solicitation in opposition to the Union on the sales floor during employees’ working time and by changing its pol- icy of allowing solicitation for nonunion-related matters such as Avon, Tupperware, and Girl Scout Cookies. Following the close of the hearing I chanced to see a TV ad on behalf of Wal-Mart Stores, Inc., which appears to suggest that the Respondent’s parent company, and author of the no solicitation policy, not only condones but encourages a variety of activity which would generally come within the no solicita- tion ban inside its buildings during store hours—including bingo games, marching bands, and clowns. I asked counsel to comment on this ad and whether it has any bearing on the is- sues here. They responded, the General Counsel contending that the ad proves that the no solicitation policy is construed and applied in a discriminatory manner. The Respondent ar- gues that the policy is not an issue—that the only issue is whether Roberts told employees they could not talk about the Union while on the sales floor. I have concluded that the ad is in fact germane to the issues alleged in the complaint. I receive a copy of the 30-second version of the ad into evidence as Gen- eral Counsel Exhibit 42.5 As a general rule, to insure good order and discipline on the sales floor, a retail employer can restrict solicitation in the sell- ing areas. E.g., McBride’s of Naylor Road, 229 NLRB 795 (1977). Unquestionably, however, applying a valid no- solicitation rule in a discriminatory manner by allowing solici- tation for nonunion matters while proscribing union solicitation is unlawful. Clinton Electronics Corp., 332 NLRB 479 (2000). The TV ad clearly shows that activity which would clearly be as disruptive as union solicitation is condoned and encouraged as a matter of policy. Therefore, I conclude that as construed, the no-solicitation policy discriminates against soliciting for unions. I reject the Respondent’s contention that the ad does not really condone solicitation, but is a marketing tool designed to show that Wal-Mart Stores are a “fun” place to be. Of course the Respondent can market in any way it pleases, pro- vided that it does not set up rules which discriminate against employees for engaging in activity protected by Section 7 of the Act. The Respondent could decide that allowing solicita- tion for charities is a good marketing tool. That would not 4 The Union argues that notwithstanding the facial validity of the policy, it should be found unlawful because it was adopted in response to the Union’s organizational activity. There are no facts to support the Union’s contention in this regard. Further, this argument was appar- ently considered, and rejected, by the General Counsel. 5 Counsel advises that there is also a 60-second version. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1020 permit it to allow solicitation for such charities while denying employees the right to solicit for a union. The Respondent further argues that no one has been disci- plined for soliciting on behalf of the Union and therefore no violation can be found. I reject this argument. Absence of enforcement does not preclude finding a violation of the Act for announcing an unlawful no-solicitation policy. J. C. Penny Co., 266 NLRB 1223 (1983). Additional fact issues here are whether the Respondent al- lowed solicitation against the Union on the sales floor on work- time; whether Roberts amended the solicitation policy to in- clude prohibiting employees from “talking” about the Union on the sales floor during their working time and whether he told employees they could not distribute literature in the parking lot. The only evidence that the Respondent permitted employees to solicit against the Union on the sales floor is from the testi- mony of Sandra Williams. She testified that in the timeframe of September–November she observed employee Mary Chap- man sell a procompany pin to another employee. Williams testified that she reported this to Assistant Store Manager Noel LeBlanc who told her that he would look into the matter. LeBlanc testified for the Respondent, but was not questioned about this incident. Chapman did not testify. I therefore find that this event occurred essentially as testified to by Williams. However, I also conclude that Williams’ testimony does not prove that the Respondent allowed solicitation against the Un- ion on the sales floor. One occurrence in a store this large over a period of several months seems de minimus. If such solicita- tion was common, surely there would have been testimony of additional incidents. There was none. In addition, LeBlanc’s statement to Williams that he would look into the matter does not prove the Respondent condoned what Chapman did. To the contrary, his statement to Williams more indicates that the Re- spondent did not condone sales floor solicitation. The allegations in paragraph 5(t) concern whether, and to what extent, Roberts amended the company policy in his re- marks to employees and expanded the solicitation rules in an unlawful manner to prohibit “talking” about the Union and prohibiting distribution of union literature in the parking lot. Keman Clute was employed from May 1996 until August 2001. He ceased employment with the Respondent on good terms and has no apparent stake in the outcome of this proceed- ing. He testified that beginning in May, during Roberts’ regu- lar morning meetings with employees, Roberts discussed the Respondent’s no solicitation policy and “[h]e basically stated that we were not allowed to talk about the Union on the clock. We were not allowed to talk about it in the store or in the park- ing lot because that pertained to the no-solicitation policy as well . . . that we weren’t allowed to talk about anything that related to the Union, but we were allowed to talk about stuff like the weather or baseball or stuff like that.” Clute’s under- standing was confirmed by others—that “talking” about the Union on the sales floor while employees were working was prohibited. However, there is also testimony from these employees that they routinely did in fact talk about the Union while working on the sales floor and were not disciplined for doing so. Indeed, Sandra Mena testified that she asked Roberts if it was all right for her to tell other employees who were working about union meetings and he said that would be permissible. Roberts testified that in his meetings with employees he did not vary from his talking points concerning solicitation and distribution rules and that those rules do not “prohibit talking about the Union anywhere in the Club.” Roberts was asked by employees on several occasions what he meant by “solicita- tion” and he explained that meant attempting to sell something. “[A]n employer violates Section 8(a)(1) when, as here, em- ployees are forbidden to discuss unionization while working, but are free to discuss other subjects unrelated to work, particu- larly when the prohibition is announced in specific response to the employees’ activities in regard to the union organizational campaign.” Teledyne Advanced Materials, 332 NLRB 539 (2000). No doubt there is a distinction between “talking” and “solicitation.” E.g., W. W. Grainger, Inc., 229 NLRB 161, 166 (1977). But that line can become blurred if the talking is more than perfunctory. In any event, the Respondent’s policy defines solicitation: “To request or seek business, donations, help, or the like. This includes charitable giving or fundraisers.” The policy does not proscribe talking about a wide range of sub- jects, including the Union. Though it is disputed whether Rob- erts said “talking” was prohibited, unquestionably employees did talk about the Union on the sales floor while on the clock and none was “coached” or disciplined in any way for doing so. And on at least one occasion Roberts told an employee that mentioning a forthcoming union meeting was permissible. I therefore conclude that Roberts did not tell employees that talking about the Union, as distinct from soliciting for it, was proscribed.6 Finally, the General Counsel contends that solicitation for such items as Avon, Tupperware, and Girl Scout Cookies was allowed prior to the advent of the organizational campaign. Therefore, the Respondent discriminatorily promulgated and enforced its no-solicitation rule by changing its past practice. There is minimal evidence that prior to the organizational campaign in fact the Respondent allowed solicitation in work- ing areas during worktime. Two employees testified that dur- ing an exchange at one of Roberts’ meetings, employee Terry Roberts asked if she could solicit for an AIDS related organiza- tion as she had done in the past. He told her this could only be done in the breakroom. Terry Roberts did not testify about her prior solicitation activity, if any. On this record I cannot conclude that the Respondent prohib- ited talking about the Union on the sales floor nor can I con- clude that Roberts threatened employees with discharge for violating an unlawful rule. 6 Sandra Mena testified that on one occasion another employee ap- proached her asking her what the Union had to offer; then Merchandise Manager Jamie Durand “came to me and said you know we’re not supposed to be talking about the union.” Durand testified that he ob- served Mena talking to another employee and holding onto that em- ployee’s shirt sleeve as he was trying to walk away. Durand testified that he told Mena she should not do that. I credit Durand’s version of this event and conclude that this is no evidence that the Respondent prohibited talking about the Union. SAM’S CLUB 1021 g. By Terry Roberts and Alex Rona, early June In early June, the Respondent moved the membership desk to a smaller area. In order to accommodate the move, Greg Roberts told Team Leaders Terry Roberts and Alejandra Abril to go through the filing cabinets and throw away nonessential material. Unquestionably they did so, throwing away basically anything that did not belong to the Respondent or was no longer useful, including pens with the Union’s logo which San- dra Williams had stored in a filing cabinet drawer. Abril testified that a week before this housecleaning employ- ees were informed what was to happen. However, there is no evidence that Williams was told that her personal items, includ- ing the pens, would be disposed of and Williams credibly testi- fied that she was not informed. Although the evidence does tend to suggest that the pens where not treated differently from other personal items em- ployees had placed in the filing cabinets, there is no question that agents of the Respondent, in fact, took the pens and dis- posed of them. I conclude that such act amounts to confisca- tion of union material and was violative of Section 8(a)(1). Jennie-O Foods, 301 NLRB 305 (1991) (violation found when employer asked employee for a union pen and it was given voluntarily, thus no confiscation, but employee was subse- quently told not to use it). h. Discriminatory dress code By memorandum dated June 5, the Respondent’s executive VP operations announced a new name badge policy to all Sam’s Club general managers. So far as is material to this case, the new policy prohibited employees from having other than an approved badge backer; required employees to wear the badges on lanyards approved by the Respondent with its logo; and prohibited employees from wearing pins on their lanyards. Thus, the new policy prohibited employees from having a badge backer which states the employee’s Weingarten rights; wearing lanyards with the Union’s logo, and from affixing union buttons to their lanyards. Such is alleged to have been violative of Section 8(a)(1). I agree. It has long been the Board’s policy that employees have the protected right to wear union insignia. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). Only where the employer dem- onstrates “special circumstances” can the wearing of insignia be prohibited. The cases where the Board has considered this question are legion and basically are controlled by the special facts of the situation, including the effect such insignia might have on the employer’s customers, production, safety, or plant discipline. For a recent compilation of cases, see Albis Plastics, 335 NLRB 923 (2001) (requiring certain insignia—and there- fore prohibiting union insignia—permitted for safety reasons). There is no evidence that employees having a Weingarten rights badge backer, wearing a union lanyard, or wearing union buttons on their lanyards had any kind of detrimental effect on customers, or that such affected production or store discipline. The fact that the new lanyards have breakaway snaps “for safety reasons” does not make the new policy lawful. While it may be that breakaway snaps provide some degree of safety, there is no evidence of any harm being caused by lanyards without such snaps, nor does reason suggest that safety would be more than an abstract concern. This is a retail store not a manufacturing plant. The mere fact that the Respondent says there is a safety concern does not make it so. In short, the Re- spondent did not prove special circumstances for its new name badge policy. I therefore conclude that the policy infringed on employee Section 7 rights in violation of Section 8(a)(1). The fact that the new policy was companywide does not make lawful an otherwise unlawful infringement on employee rights. Accordingly, I conclude that the new policy, prohibiting Weingarten cards on the back of name badges, prohibiting un- ion lanyards, and prohibiting union pins on the lanyards vio- lated Section 8(a)(1). i. Alleged unit packing In paragraph 5(r) it is alleged that beginning in October, the Respondent attempted to undermine the Union’s support in the anticipated Board conducted election at the Spring Mountain store by (a) increasing the number of bargaining unit employ- ees, (b) demoting supervisors to bargaining unit jobs, and (c) delaying the promotion of unit employees to supervisory posi- tions. An employer violates Section 8(a)(1) where it hires a sub- stantial number of new employees prior to a representation election in order to “pack the unit” and thereby dilute the un- ion’s strength. Sonoma Mission Inn & Spa, 322 NLRB 898 (1977). However, to prove such a violation, the General Coun- sel must show, among other things, that the employer had some knowledge that the new hires would oppose the Union. Fur- ther, there must be an absence of a good business reason for the timing and number of employees hired. D & E Electric, 331 NLRB 1037 (2000) (no violation where the company was not shown to have knowledge of the new employees union sympa- thies and there was a good business reason for the hiring). The Respondent’s records show that at Spring Mountain it has had a staff of hourly employees (less supervisors) between September 1999 and December 2001 ranging from 188 to 227. In September 1999 there were 214 such employees. In 2000 this figure was between 214 and 227. In 2001 the numbers dropped from 206 in January to 188 in September. Then in October the number increased to 218 and was 214 in November and 217 in December. The increase between September and October, the General Counsel alleges, represents an attempt by the Respondent to pack the bargaining unit, the petition having been filed on Sep- tember 19 and the eligibility cutoff date being the pay period preceding the November 2 Decision and Direction of Election. Although the parties arrive at different conclusions as to how many unit employees were hired in October, there is no doubt the number was substantial and indeed the Respondent admits that more employees were hired in October 2001 than in previ- ous Octobers. The Respondent’s records show that its yearly hiring is fairly constant, but its monthly hiring 2001 was some- what skewed. In response to the General Counsel’s subpoena, the Respondent submitted two sets of records naming the indi- viduals hired between August and November for the years 1999, 2000, and 2001. These records reflect somewhat differ- ent numbers. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1022 Thus, General Counsel Exhibit 26, styled “Associates Hired at Club 6382 August–November 1999–2001” shows: New hires in August– September October November Total 1999 33 16 10 59 2000 22 3 22 45 2001 12 36 11 59 General Counsel Exhibits 29, 30, and 31 are for the individ- ual years and give more detailed information, including posi- tion and separation date, if any, but they show only the week the employee was hired. Nevertheless, these records are con- sistent with General Counsel Exhibit 26. Although the Respondent argues that these exhibits are not definitive as to which employees would be in the bargaining unit, at a minimum they prove a substantial increase in the number of employees hired in October 2001 over 2000. And the question is whether this demonstrates unit packing or, as argued by the Respondent, simply reflects a catching up on hiring because Roberts had been too busy with the store remod- eling and the grand reopening in September and the representa- tion hearing. I conclude that the numbers more suggest catch- ing up than unit packing. From the records, it appears that there is a steady turnover of employees requiring that the Respondent hire around 8 to 10 percent of its total employee complement each month. For instance, of the 36 employees hired in October, 10 had been terminated by December. Tending to support Roberts’ testi- mony, the records show that only 12 employees were hired in August and September, as against 33 in 1999 and 22 in 2000. Thus, by October it appears that the Respondent was behind in its hiring. This does not explain why a relatively large number of new hires were employed in October, with only 11 being hired in November. Nevertheless, the records do not clearly dispute the Respondent’s contention that it was behind in its hiring in October or that the number of employees hired in October was out of line with its past practice and business needs. In short, I conclude that absent the Union having filed a petition for an election, the hiring done by the Respondent in October would probably have been substantially the same. In addition, there is no evidence that the Respondent polled prospective employees concerning their union sympathies or otherwise had any reason to believe that the newly hired em- ployees would or would not be sympathetic to the Union. I cannot assume that the Respondent’s hiring team in fact made such inquiries of the applicants or that those hired were thought to be opposed to the Union. To the contrary, Jason Russin was apparently in favor of the Union and he was hired on October 4. While the numbers raise the suspicion of unit packing, I find insubstantial evidence that such was the case. The General Counsel and Charging Party seem to argue both that Candy Proffitt was at all material times a supervisor (see par.5(w), sec. (m) below) and that she was demoted from her supervisory position in order affect the outcome of the antici- pated election. The Respondent argues that she was a team lead until May when she was assigned to the remodeling team and began working nights. After the remodeling was finished, she returned to days but not as a team lead and therefore not as a supervisor. However, the Respondent’s records show that in July she was evaluated as a “Floor Lead.” Following the representation case hearing in this matter, the Decision and Direction of Election excluded team leads from the bargaining unit as being supervisors. However, the Re- spondent asserts some kind of estoppel in that Proffitt’s status was not litigated nor did the Union object that her name was on the voter eligibility list. I reject this contention. Regardless of whether Proffitt’s specific status was litigated, no doubt gener- ally it was found that team leads are supervisors. The time to object to inclusion on the voter eligibility list is when the indi- vidual votes. Proffitt testified that as a team lead she received an addi- tional 50 cents per hour, which she still gets even though Rob- erts told her that her position as a lead would no longer recog- nized by the Respondent. In her current job she did grant an employee time off, and does give directions to other employees. The Respondent argues that Proffitt “voluntarily” undertook these supervisory duties. I conclude otherwise. She clearly thought she was still a supervisor as did the employees she directed. I conclude there was never a change in her status. If there had been, at a minimum, the Respondent could have done more to announce this to employees. Although a low-level supervisor, she has been a supervisor none the less. She is experienced, and has been transferred to various jobs no doubt because of her competency, for which she has been recognized. But for the prospective election, I doubt there would be an issue as to her supervisory status. However, the fact that the Respondent takes the position that a supervisor should be in the bargaining unit is not an unfair labor practice. I take notice that nothing is more common in representation proceedings than the parties arguing for unit inclusions and exclusions based on their perceptions of the sympathies of the individuals in question. In any event, I con- clude that Proffitt continues to be a supervisor and was not demoted in order to pack the unit. Evangeline Blanchard applied for a posted position of checkout supervisor, probably in October, and was told by Roberts in late October (or possibly November) that she was successful but that she needed additional training. She was promoted in January 2002. It is alleged that the delay in pro- moting Blanchard to a supervisory position was an attempt by the Respondent to insure a “no” vote in the anticipated election, Blanchard having signed an antiunion letter. The Charging Party argues that others have been promoted without the additional training required for Blanchard. There- fore, this reason for the delay is bogus from which I should infer an unlawful motive. While others may have been pro- moted without specifically having the training Blanchard had, there are no facts about their previous experience. Therefore no valid comparison can be made. On balance, the suggestion that Blanchard’s promotion was delayed so that the Respondent could insure an additional “no” vote is too weak on the facts to sustain a violation of the Act for unit packing. From the above, I conclude that allegations in paragraph 5(r) should be dismissed SAM’S CLUB 1023 j. Withholding benefits It is alleged, and not disputed, that the day after the Union filed its petition for election Roberts announced that merit raises would be suspended pending the election so as to avoid the appearance of the Respondent attempting to buy votes. As a general proposition, during a union organizing drive the employer must proceed with wage increases and other benefits as if there was no campaign. “An exception to this rule, how- ever, is that an employer may postpone such a wage or benefit adjustment so long as it ‘[makes] clear’ to employees that the adjustment would occur whether or not they select a union and the ‘sole purpose’ of the adjustment is to avoid the appearance of influencing the election’s outcome.” Grass Valley Grocery Outlet, 332 NLRB 1449 (2000), quoting from Uarco, Inc., 169 NLRB 1153, 1154 (1968). The issue thus is whether Roberts’ statements to employees met the Board’s conditions. I con- clude they did not. All witnesses are in substantial agreement that Roberts told employees that merit increases would be suspended temporarily pending the election. No one, however, including Roberts, testified that they would be resumed regardless of the election’s outcome. For instance Roberts testified: [O]ne of those things I mentioned, what I called laboratory conditions, and spoke to the associates and let them know that merit increases would frozen, put on hold because of the fact the petition was filed and I did not want, we did not want, I did not want it look as though we were swaying someone’s vote based on a discretionary increase. However, that the merit increases would be reinstated after the proposed vote. Although Roberts told employees that the merit raises would be postponed so as to avoid the appearance of influencing the vote, and that they would be resumed after the election (as dis- tinguished from outright cancellation as in Grass Valley), he did not tell them that the increases would be resumed regardless of the election result. Whether this omission was inadvertent or purposeful makes no difference. The employees were not in- formed and that is the crux of the violation. Nor is there any basis to assume or imply that Roberts meant the increases would resume no matter how the vote turned out or that em- ployees would reasonably believe such to be the case. Since announcing postponement of wage increases is an exception to a well-established policy, all conditions must be met for the exception to apply. Employees were told that merit increases would be frozen pending the election, so as to avoid the appearance of influenc- ing the vote, and they would be resumed after the election. The employees were not told that resumption would occur regard- less of how they voted. Such an omission could reasonably lead them to conclude that resumption of the wage increases would depend on voting against the Union. I therefore con- clude that suspending the merit wage increases was violative of Section 8(a)(1) of the Act. k. November 14 threats by Scott Farrington through Charity Brio The allegation in paragraph 5(u) is based on the testimony of Linda Gruen and Mary Lou Wagner.7 They testified that on the evening of November 14, as prounion employees were hand- billing in the parking lot, Charity Brio (named Bobbitt in the complaint) told them that she was dating a manager, Scott Far- rington, and that he said they were all going to be fired because of their union activity. There is no evidence that Brio was a supervisor or agent of the Respondent for any purpose. The contention is, apparently, that the Respondent is bound by her statement to employees because she asserted that she was dating a manager and there- fore under some kind of apparent authority theory, employees could reasonably believe that she was acting for the Respon- dent. There is no evidence that in fact Brio had any kind of relationship with Farrington. She was not called as a witness. Farrington denied that he had dated Brio. The only linkage was Brio’s untrue statement that she was dating a manager, a state- ment not shown to have been known to any of the Respondent’s managers. Thus, the assertion of agency is based on an em- ployee’s false statement to other employees. The General Counsel has cited no case authority to support such a proposi- tion. Therefore, even if Brio told employees that they would be fired for their union activity, such is not a threat for which the Respondent can be found liable. Accordingly, I shall recom- mend that paragraph 5(u) be dismissed. l. Condoning misconduct directed at prounion employee It is alleged in paragraph 5(v) that Managers Roberts, Du- rand and LeBlanc “encouraged and condoned its employees engaged in misconduct directed at its employees who supported the Union.” This allegation is based on the testimony Gruen and Wagner to the effect that they attempted to give a flyer to employee Dee Dee Lopez, who drove her car close to them and away at a high rate of speed. The General Counsel asserts that the named managers, standing inside the store but looking out to the parking lot, observed this, did nothing, and therefore condoned this misconduct. Wagner further testified that she complained of this incident to Durand. He testified that he in fact talked to Lopez about being more careful in her driving. Wagner also talked to Rob- erts about the incident and he said he would look into it. He testified that he directed LeBlanc to tell Lopez to drive in a more professional manner. It may well have been the case, as testified to by Cruen and Wagner, that when they approached Lopez with a hand bill she drove away too close to them and at a speed excessive for a parking lot. Other than the fact that managers may have wit- nessed this, there is no evidence that this behavior by Lopez was condoned, even if it was misconduct. Roberts credibly testified that upon being informed of their assertion by Wagner he looked into the incident and concluded the facts were am- biguous, but he nevertheless instructed his assistant to caution Lopez about her driving in the parking lot. 7 This is the spelling of Wagner as it appears in the transcript. It is spelled Waggoner in the complaint. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1024 I conclude that evidence of the Respondent condoning mis- conduct by employees against union supporters is simply too slim to support the violation alleged. Accordingly, I shall rec- ommend that paragraph 5(v) be dismissed. m. Polling employees by Candy Proffitt As noted above, Proffitt is and has been a supervisor within the meaning of Section 2(11), notwithstanding the Respon- dent’s contention that she ceased being a supervisor in May. Proffitt testified that she made available to, and collected from, employees a letter to the Union which stated that the signatory was opposed to union representation and that “we . . . don’t want you in our Club.” According to Proffitt, the letter was drafted by an employee named Kelly and two other employees participated in distributing the letter. At a regular employee meeting, according to Robert Padilla and not disputed, Roberts thanked employee Sophia Fox for having collected 130 letters supporting the Company. The Board has long held that an employer violates Section 8(a)(1) where it solicits employees to sign a petition aimed at decertifying the union representative of employees. E.g., D&H Mfg. Co., 239 NLRB 393 (1978). The letters here, disclaiming interest in the Union, are similar in concept to a petition for decertification. Therefore, the active participation in soliciting signatures and collecting such letters by a supervisor is viola- tive of Section 8(a)(1). The Respondent does not really disagree, contending only that Proffitt was not a supervisor within the meaning of Section 2(11). Having found that Proffitt was at all times a supervisor, I conclude that her participation in soliciting signatures and collecting the letters was a violation of Section 8(a)(1) as al- leged in paragraph 5(w). That Roberts publicly thanked an employee for her efforts in collecting those letters tends further to show the Respondent’s knowledge, approval, and therefore support of this activity. 2. The 8(a)(3) allegations a. Discipline and discharge of Sandra Mena In paragraph 6(a) it is alleged that the Respondent issued an unwarranted and undeserved disciplinary warning to Sandra Mena on February 18 and in paragraph 6(l) that she was dis- charged on May 27, 2002, both in violation of Section 8(a)(3). On brief, the General Counsel also asserts that a written warn- ing given to Mena on July 19 was violative of Section 8(a)(3). The facts surrounding Mena’s discipline on February 18 and her discharge more than a year later are not in serious dispute. Nor is there a dispute about the warning given her on July 19; how those facts are interpreted is. Mena was a known union advocate and indeed had hand-delivered a letter to Roberts on February 8 in which she stated her position in favor of the Un- ion. The General Counsel argues that she was disciplined and discharged for the same kind and number of cash register dis- crepancies other employees had and were not disciplined for. The Respondent argues that in fact other employees not known to be in favor of the Union were disciplined for the same kind of cash register errors. Further, when Mena was discharged, she was recommended for rehire. The well-established test for determining whether an indi- vidual has been disciplined or discharged in violation of Sec- tion 8(a)(3) is whether the company would have taken the same action in the absence of any union activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). While a company cannot seize upon apparently legitimate reasons to disguise its true (and unlawful) motive, neither is it required to cease doing business in its usual and customary way just because there is a union campaign. Some factors in determining whether the discipline or dis- charge of an employee was discriminatory include: whether and to what extent the employee was known to be a union sup- porter; the nature and extent of any animus against the union or supporters of the union; the relative seriousness of the disci- pline vis-à-vis the offense; and whether other employees (espe- cially those not known to be union supporters) were disciplined in a similar way for similar acts. Mena was known to be a un- ion supporter and on this record, I find there was animus against the Union. However, her work record and the lack of timing of her discharge to her union activity tend to prove her discharge was for cause and not because of this activity. Mena was hired on August 18, 1999, and a few months thereafter became a cashier. During her tenure, she received numerous “pink slips” which note cash register discrepancies such as overages, shortages, and missing debit/credit card slips. Such discrepancies and pink ships for them are not uncommon. In evidence, for instance, are 34 “coaching for improvement” of other employees based on pink slips. The Respondent’s re- cords also indicate that Mena received more than her share of pink slips. Thus in 2000, she had 17; in 2001, 19; and to the date of her discharge on May 23, 2002, she had 11. Her annual cash register discrepancies were increasing, even though she testified that she was not responsible for them. Additionally, she denied that she had been “coached” about pink slips in 2000; notwithstanding an undenied note on her 2000 “cashier over/short report” (an exhibit I credit) which shows that in fact she received a first written coaching on June 28, 2000. In evidence are two policy statements of the Respondent dealing with cash register discrepancies: “Pink Slip Guidelines for Region 41 Updated August 2001” and “Cashier Account- ability.” Both recognize levels of discrepancies, from a long or short of $5 to a long or short exceeding $150. Both note pro- gressive discipline for accumulating multiple pink slips, though the discipline scheme is somewhat different in each. Mena had pink slips on January 22, February 12, 15, and 18, 2001, for which she received a verbal coaching. One of the pink slips was more than 5 days old and under the Respon- dent’s policy should not have been used against her. Therefore, the General Counsel argues the coaching was discriminatory since she had hand-delivered a letter to Roberts on February 8 stating her support for the Union and had been given an unrea- sonably poor performance evaluation also on February 8. The fact that an employee is known to support a union’s or- ganizational effort does not imply that all personal actions against that employee are unlawful. I find here that the verbal coaching for four pink slips within a 30-period was consistent with the Respondent’s policy and its treatment of others not SAM’S CLUB 1025 known to be union supporters, even if, technically, one of the pink slips should not have counted against her. Although not alleged violative of the Act, the General Coun- sel contends that Mena’s performance evaluation of February 8 shows bias against her for her union activity because there are two comments suggesting she has “too negative an attitude.” The fact is that Mena’s evaluation was satisfactory and based on it she received a wage increase of 30 cents per hour. Al- though “negative attitude” might be code for a union sup- porter,8 there is no evidence that here it is. Mena delivered her letter in support of the Union on the day of her evaluation, which presumably had already been written. Further, notwith- standing the negative attitude comments, her grades in these categories were satisfactory. There is no indication in the re- cord that in fact Mena was other than a satisfactory employee. On July 19, Mena received a written coaching because a Discover card receipt was missing from her till. Mena refused to sign this form, and the General Counsel argues that the dis- cipline was unlawful, because, as she testified, “I believe in my and heart and my soul, it was not lost.” Her belief is based on her testimony that she used paper clips to secure the paper of every transaction. Nevertheless, she acknowledged that both before and after her union activity began she received pink slips for missing card receipts. I don’t believe Mena’s belief is suf- ficient evidence on which to base a finding that the discipline of July 19 was bogus. In March 2002, Mena received four pink slips and another written coaching, which under the Respondent’s system was a “Decision-Making Day.” This coaching was not alleged to have been unlawful, and indeed appears based on the Respon- dent’s pink slip policy. On the form it was noted that if her performance continued there would be further disciplinary ac- tion, “up to and including termination.” Then in May Mena received four more pink slips, three of which were for overages of $40 (she had not given the cus- tomer change on a debit card transaction) and one for an over- age of $10.45. She was terminated, but on the exit interview form it is noted that she was recommended for rehire. The General Counsel argues that other employees had pink slips, but were not disciplined or discharged pursuant to the Respondent’s policy for the particular discrepancy, therefore, Mena was treated disparately and given her known union activ- ity, the reason must have been because of that activity. I dis- agree that the evidence proves this argument. There are liter- ally hundreds of cash register errors which the Respondent tracks and notes every day. Some result in pink slips, others not. Not all pink slips result in discipline. Such depends on the number of discrepancies and their seriousness. It may be that other employees could have been disciplined or discharged, but such does not mean that Mena was treated disparately. She had a total employment history of cash register discrepancies, most of which she acknowledged and many of which occurred prior to her union activity. There is no showing that any other em- ployee had as many over as long a time. By the time of her discharge in May 2002, she had already received 11 pink slips for the year. 8 E.g., Cook Family Foods, 311 NLRB 1299, 1319 (1993). Active support for a union does immunize an employee from discipline or discharge for failing to do his or her job in the manner required. Here, Mena’s record is such that I conclude she would have been discharged when she was in the absence of her union activity, or union activity in general. Indeed, had the Respondent really been of a mind to discriminate against her, it likely would have done so much earlier. And she would not have been recommended for rehire. On the total record, I conclude that Mena was not discharged in violation of Section 8(a)(3). b. Suspension of Ida Williams It is alleged in paragraph 6(h) that the Respondent violated Section 8(a)(3) when Roberts sent Ida Williams home on June 19. As noted above, on that day Williams had a confrontation with her supervisor, Jeff Tuesburg, which resulted in Tuesburg arranging a meeting between them and Roberts. When Wil- liams showed up with another employee as a witness, Roberts told her she was not entitled to a witness and sent that em- ployee back to work. Williams became upset, said “this is a bunch of crap,” and walked off. Roberts said he would not have her working with customers in the state she was in and suspended her for the day. The General Counsel argues that this suspension was viola- tive of the Act. The Respondent maintains that Roberts was justified in suspending her because of the anger she displayed and that other employees had been similarly suspended. There is little question, and I find, that the suspension of Williams was directly a result of Roberts’ having unlawfully refused to allow Williams to have a witness. Since Williams’ request for a representative was union as well as protected con- certed activity, I conclude that Roberts violated Section 8(a)(1) and (3) when he suspended her. Although Williams may well have been upset when Roberts denied her a witness, there is no real evidence that she would have carried this to her job or otherwise was unfit for work in a retail store. I conclude that Roberts was not justified in suspending Williams and did so only because she questioned his decision in denying her a wit- ness. Saying “this is a bunch of crap” is not to be condoned, but neither is the phrase sufficiently demeaning to Roberts or the Respondent to conclude that it was serious misconduct on the part of Williams. What Williams said was actually mild and far from being so opprobrious as to justify discipline. See Transport America, Inc., 320 NLRB 882 (1996). c. Refusing to consider May Lou Wagner for transfer Mary Lou Wagner was rehired by the Respondent on May 23 and thereafter was active in the organizational campaign in that she wore a union lanyard, which was known to the Re- spondent’s managers, and attended union meetings, which was not. At least there is no evidence that the Respondent’s manag- ers would have known of her attendance at such meetings. In September or October, Wagner put her name on postings for two positions, but was not interviewed for either. At the time she had about 4 months of service. The Respondent ar- gues that one requirement for accepting an employee’s applica- tion to transfer from one job to another is a minimum of 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026 months’ employment. Since Wagner did not qualify, she was not considered. The General Counsel argues that the 6 months’ requirement is a “sham” from which I should infer that the true motive for not considering her was her union activity. The General Coun- sel points to records showing that other employees have been transferred with less than 6 months of service. On this the Re- spondent notes that there is no evidence that any of these em- ployees in fact applied for transfer. Roberts credibly testified that if no one applies for a posted job he will place in the job the person he thinks is best qualified—that his hands can’t be tied by the fact of no one applying. In effect, the General Counsel maintains that because of her union activity the Respondent should have waived the 6 months’ requirement and placed Wagner in one of the jobs. I reject the contention that it is proof of an unfair labor practice for an employer not to waive a job requisite, especially where there is no evidence that such had been waived in the past. Even accepting testimony that she had been told the postings were lost, such does not make out discrimination by the Re- spondent. I conclude that the evidence fails to support the alle- gation in paragraph 6(i). d. The discharge of Jason Russin Jason Russin was hired as a lot attendant on October 4 and discharged on November 19, after his fourth unexcused ab- sence. He also had clocked in early, without permission, four times. Russin’s union activity consisted of talking to others in smoking break area about the Union. He also testified that Proffitt had given him a copy of the letter stating support for the Respondent and told him to return it to her. He did not. Notwithstanding that Russin was in his first 90 days and the Respondent’s progressive discipline policy did not apply, the General Counsel asserts that it should have and Russin should not have been discharged until his sixth unexcused absence. At best Russin engaged in minimal activity in support of the Union. There is no persuasive evidence that the Respondent knew of this limited activity, nor is there any reason to believe that Russin would be signaled out for discharge. On the other hand, there is ample evidence that Russin’s attendance during his first 6 weeks was poor, from which the Respondent could reasonably conclude that he would not work out as a reliable employee. I conclude that the General Counsel failed to establish by a preponderance of the credible evidence that Russin was dis- charged in violation of the Act and I shall recommend that this paragraph be dismissed. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I conclude that it should be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended 9 9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the ORDER The Respondent, Sam’s Club, a Division of Wal-Mart Stores, Inc., Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Denying employees the right to have another employee witness meetings with management which the employee rea- sonably believes could result in discipline. (b) Confiscating union pens and other union related material. (c) Prohibiting employees from wearing union logo lanyards, union pins and name badge backers stating their Weingarten rights. (d) Suspending merit raises pending a representation election without telling employees they would be reinstated after the election regardless of who won the election. (e) Soliciting signatures of employees on letters stating the employee’s opposition to the Union. (f) Suspending employees because invoke the right to be rep- resented by a fellow employee during an interview which the employee reasonably believes could result in discipline. (g) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action deemed necessary to effectuate the policies of the Act. (a) Make Ida Williams whole for any loss of wages she have may suffered as a result of her suspension, and expunge from her record any reference to the suspension and advise her this has been done and that the suspension will not be used against her in any way. (b) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Or- der. (c) Within 14 days after service by the Region, post at it fa- cilities in the Las Vegas area copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed any facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all former Board and all objections to them shall be deemed waived for all pur- poses. 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” SAM’S CLUB 1027 employees employed by the Respondent at any closed facility since the date of this Order. (d) Within 21 days after service of this Order, inform the Region, in writing, what steps the Respondent has taken to comply. (e) The allegations in the complaint not found herein to be unfair labor practices are dismissed. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal Law and has ordered us to post this notice and comply with its terms. FEDERAL LAW GIVE YOU THE RIGHT TO To form, join, or assist any union To choose representatives to bargain with us on your behalf To act together with other employees for your benefit and protection To choose not to engage in any of these protected ac- tivities. WE WILL NOT deny employees the right to have another em- ployee witness meetings with management which the employee reasonably believes could result in discipline. WE WILL NOT confiscate union pens and other union related material. WE WILL NOT prohibit employees from wearing union logo lanyards and name badge backer stating their right to be repre- sented by another employee at meetings with managers which might lead to discipline. WE WILL NOT suspend merit raises pending a representation election without telling employees that the raises would be reinstated after the election regardless of the outcome. WE WILL NOTsolicit signatures of employees on letters stating the employee’s opposition to the Union. WE WILL NOT suspend employees because they invoke the right to be represented by a fellow employee during an inter- view which the employee reasonably believes could result in discipline. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the rights guaran- teed them by Section 7 of the Act. WE WILL make whole Ida Williams for any losses she may have suffered as a result of our unlawful suspension of her. SAM’S CLUB, A DIVISION OF WAL-MART STORES, INC. Nathan Albright Esq., for the General Counsel. Steven D. Wheeless, Cyrus B. Martinez, and Mark G. Kisicki, Esqs., of Phoenix, Arizona, for the Respondent. George Wiszynski, Esq., of Washington, D.C., for the Charging Party. SUPPLEMENTAL DECISION JAMES L. ROSE, Administrative Law Judge. On November 29, 2002, I issued a decision in this matter concluding that the Respondent had engaged in certain unfair labor practices and recommending remedial action. On March 23, 2004, the Board (Chairman Battista dissenting) remanded the case to me “for additional credibility determinations, factual findings, and legal analysis” as to certain specified allegations in the consolidated complaint. Thereafter, over counsel for the General Counsel’s objection, I granted the Respondent’s motion to submit a brief on the is- sues to be considered on remand. All parties filed supplemental briefs, which I have considered along with the entire record in this matter, on which I make the following supplemental find- ings of fact and conclusions of law, using the Board’s headings: I. ALLEGED DENIAL OF WILLIAMS’ WEINGARTEN RIGHTS There is no dispute that on June 19, 2001,1 employee Ida Williams and her immediate supervisor, Jeff Tuesburg, had a confrontation, which resulted in Tuesburg approaching General Manager Greg Roberts and asking for a meeting with Tuesburg, Roberts, and Williams. When Tuesburg told Williams they would meet with Roberts, she asked employee Kerman Clute to join them as a witness. Roberts asked why Clute was present and was told by Wil- liams that he was to be a witness for her. Roberts testified that he said, “Ida, this is not an investigation. You are approaching me. It would be inappropriate to have a witness being that this is not an investigation, so Kerman does not need to be here at this time.” Though I credit Roberts’ testimony about what he told Wil- liams, I also find that in fact Tuesburg and not Williams insti- gated the meeting. Indeed, there is no dispute about this. Whether the meeting asked for by Tuesburg was meant to be an investigation leading to possible discipline or not, it is clear that Williams could reasonably have concluded it was. This is par- ticularly true since 5 days before this event she received a writ- ten discipline, which stated that the next level of discipline would be “D-Day up to and including termination.” I credit Williams’ testimony that Tuesburg had initiated the meeting with Roberts. Tuesburg did not testify. Thus, Roberts’ stated reason to Williams for denying her a witness she knew to be untrue, which gave some immediacy to her desire for a wit- ness. I conclude that Williams was entitled to an employee witness under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), Epi- lepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000). II. THE RESPONDENT’S NO-SOLICITATION POLICY The no-solicitation aspect of this case was tried and briefed on the limited issue of whether the Respondent prohibited em- ployees from talking about the Union on the sales floor and other areas. The General Counsel concedes that the Respon- dent’s published policy proscribing solicitation by employees on the sales floor is not unlawful. However, it is alleged that this policy was unlawfully amended by General Manager Greg 1 All dates are in 2001, unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028 Roberts who is alleged to have repeatedly told employees that they could not “talk” about the Union on the sales floor and while working. The totality of evidence led me to conclude that Roberts did not tell employees they could not “talk” about the Union, as distinguished from “solicitation” for it. On this, I have been directed by the Board to address three issues: A. The Credibility of Keman Clute and Sandra Williams versus Greg Roberts Kerman Clute testified that at a morning meeting Roberts had with employees on May 7 “[h]e basically stated that we were not allowed to talk about the Union on the clock. We were not allowed to talk about it in the store or in the parking lot because that pertained to the no-solicitation policy as well . . . as far as what he was saying about the no-solicitation pol- icy, that we weren’t allowed to talk about anything that related to the Union, but we were allowed to talk about stuff like the weather or baseball or stuff like that.” Clute further testified that Roberts defined solicitation “when somebody was selling something to another person.” Sandra Williams testified that at a morning meeting around May 7 “Greg (Roberts) had let us know about the solicitation policy that we weren’t allowed to solicit about the Union. We weren’t allowed to discuss the Union. We weren’t allowed to talk about Avon. We weren’t allowed to sell Tupperware. We weren’t allowed to—Tupperware, Avon, he gave us a descrip- tion of solicitation. . . . He had told us we weren’t allowed to sell Tupperware. We weren’t allowed to sell Avon. We weren’t allowed to sell the Union.” She further testified that at subsequent meetings Roberts would remind employees of the solicitation policy and “[w]e weren’t allowed to discuss it any—union anywhere—in the parking lot. The only place we’re allowed to discuss the Union was in the break room while you were on lunch break, and that if we did, you know, we could be coached and lead up to termination.” Williams testified that one time she asked Roberts if it would be all right for her to tell fellow employees about a union meet- ing and he told her it would. Roberts testified, “No, I’ve never told them they could not talk about the Union.” Q. Do associates, in fact, talk about the Union on the sales floor? A. All the time. Q. And you have personally observed and heard con- versation about the Union on the sales floor? A. Yes.” Roberts further testified that he has never disciplined any employee for talking about the Union on the sales floor. I credit Roberts’ denial that he told employees they could not “talk” about the Union over the testimony of Clute and Wil- liams. It may be that Clute and Williams used the words “talk” and “discuss” interchangeably with “solicit,” and, as Williams testified, “[L]ike I say, it’s been so long.” Nevertheless, in addition to Roberts’ credible denial that he told employees they could not “talk” about the Union, employees in fact did so “all the time”—a fact undenied by the General Counsel or the Charging Party. I conclude that Roberts did not, as alleged, prohibit employ- ees from “talking” about the Union, as distinct from soliciting for it, on the sales floor. B. The Credibility of Linda Gruen versus Jaime Durand In paragraph 5(t) of the consolidated complaint it is alleged that on September 19, Roberts and Jaime Durand “promulgated an overly broad and discriminatory no-solicitation rule by pro- hibiting its employees from talking about the Union in the breakroom, on the floor, in the parking lot or at the outside picnic area of the Spring Mountain facility.” As to Durand, this allegation is based on the testimony of Linda Gruen, which I neglected to address in my initial decision. The Board directed that I consider this issue and resolve the apparent credibility conflict between Gruen and Durand. Gruen testified about a meeting held by Durand on Septem- ber 19, “Jamie conducted the meeting and he said that there would be no talking about the Union on the sales floor. We could talk in the break room on our lunch break. No talking in the parking lot. No talking outside the store in the smoking area.” Although Durand generally denied that he “ever told any as- sociates at the Club that they can’t talk about the Union,” this was wrapping up his testimony concerning an incident involv- ing Sandra Mena (in which I credited Durand over Mena). Durand was not specifically asked to testify concerning any meeting he may have had with employees on September 19, or indeed, any other time. It is therefore questionable whether Durand actually meant to dispute Gruen’s testimony. In any event, I do credit Gruen and I conclude that Durand in fact told a meeting of employees on September 19 that they could not talk about the Union on the sales floor, the parking lot or outside the store in the smoking area. By this act the Re- spondent violated Section 8(a)(1), and my recommended order will be amended to reflect this violation. III. ROBERTS’ EXPLANATION OF “SOLICITATION” VERSUS “TALKING” In his many morning meetings with employees, Roberts re- minded them about the policy prohibiting solicitation. When asked what was meant by “solicitation,” as Clute testified, “He said basically the definition of solicitation was when somebody was selling something to another person.” Other employees offered the same general testimony of Roberts’ definition of solicitation as “selling” something or seeking support for a “cause.” The Board ordered that I analyze whether the Re- spondent’s no-solicitation policy, as explained by Roberts, “would have a chilling effect on employees’ attempts to discuss union matters on the Respondent’s premises” and “would coer- cively impair their ability to exercise their Section 7 right to discuss union-related issues at the workplace.” In Wal-Mart Stores, 340 NLRB 637 (2003), the Board said: In the context of a union campaign, ‘“[s]olicitation’ for a un- ion usually means asking someone to join the union by sign- ing his name to an authorization card.” W.W. Grainger, Inc., 229 NLRB 161, 166 (1977), enfd. 582 F.2d 1118 (7th Cir. 1978). However, an integral part of the solicitation process is the actual presentation of an authorization card to an em- SAM’S CLUB 1029 ployee for signature at that time. As defined, solicitation ac- tivity prompts an immediate response from the individual or individuals being solicited and therefore presents a greater po- tential for interference with employer productivity if the indi- viduals involved are supposed to be working. Solicitation is therefore subject to rules limiting it to nonworking time and, in the special circumstances of retail stores, to no selling ar- eas. [Id at 639.] As I understand the complaint and the General Counsel’s theory, the no-solicitation policy published by the Respondent is valid, however, Roberts unlawfully “promulgated and en- forced an overly broad and discriminatory no-solicitation rule by prohibiting its employees from soliciting for the Union” [par. 5(j)(1)] and promulgated an overly broad and discrimina- tory no-solicitation rule by prohibiting its employees from talk- ing about the Union in the break room, on the floor, in the park- ing lot or at the outside picnic area.” (Par. 5(t).) The Charging Party argues that Roberts’ explanation neces- sarily prohibited permissible activity, or at least was ambiguous requiring the Respondent to clarify “that its policy only prohib- ited associates from soliciting of signatures on authorization cards while working on the sales floor.” Unquestionably, Roberts’ explanation of “solicitation” was not the same as the Board’s above, and no doubt was more broad in that by his definition the soliciting employee would not have to have offered an authorization card. However, this case was not tried on a theory that Roberts’ explanation itself had a chilling affect on employees’ rights. The General Coun- sel did not assert that absent the alleged prohibition against talking about the Union Roberts’ definition of solicitation was unlawful. There was no assertion that lawfully proscribed so- licitation had to involve submitting an authorization card, and anything less (such as arguing for a cause) could not be prohib- ited. Though not free from doubt, I conclude that Roberts’ expla- nation of solicitation would not reasonably impair the employ- ees’ ability to discuss union related issues on the sales floor. And in fact they commonly did. IV. POLLING EMPLOYEES In paragraph 5(w), Candy Proffitt was alleged to have unlawfully polled employees acting as a supervisor within the meaning of Section 2(11) and as an agent of the Respondent within the meaning of Section 2(13). I concluded she was a supervisor and that by helping draft and solicit signatures on a letter to the Union disclaiming interest in having union repre- sentation she violated Section 8(a)(1). Having found her to be a supervisor, and therefore acting for the Respondent, I did not consider whether independently she was an agent for the pur- pose of drafting and circulating the letter. The Board remanded for me to do so. Common law rules of agency apply. In order to find agency, the Respondent (Roberts or some other manager in authority) would have to have given the express authority to Proffitt or would have to have done something such that employees would reasonably assume that Proffitt was acting on behalf of the Respondent. E.g., Pan-Oston Co., 336 NLRB 305 (2001). Here, absent indicia of Proffitt’s supervisory authority (which is really minimal), there is no evidence that the Respondent gave her the actual or apparent authority to poll employees. Possible evidence of agency is that after the fact, the Re- spondent condoned Proffitt’s action by publically thanking Sofia Fox, an employee who along with Proffitt and two other employees, drafted and circulated the letter. I conclude such is insufficient to establish agency in this matter. But I do con- clude that the Respondent committed the violation alleged be- cause Proffitt was in fact a supervisor within the meaning of Section 2(11). V. CONFISCATING UNION PENS In June, Team Leaders Terry Roberts and Alejandra Abril were instructed to go through filing cabinets in the membership desk area and throw away nonessential items, which they did, including union logo pens belonging to Sandra Williams. Rob- erts and Abril testified that they found and threw away “pens, candy, old like Christmas stuff,” and so forth. They testified that employees had been told to remove from the cabinets any personal items they did not want to have discarded. Williams testified that she was not told to remove personal items and when she found that her union logo pens were miss- ing she noted that none of her other personal items, nor those of other employees, had been removed. On remand, I am to resolve the apparent credibility conflict between Roberts and Abril, who testified that they threw away all nonessential personal items and Williams, who testified that only her pens were missing and that other employees’ personal items remained. No other employee testified on this issue. What actually happened is vague. No doubt Roberts and Abril threw away stuff, including the union logo pens; how- ever, neither testified that they threw away everything, which could be construed as personal. Nor is there testimony that they discarded some material and then went back later and discarded more. I do credit Williams that when she looked, her union logo pens were gone, but other of her personal things remained as did some personal things of other employees. Accordingly, I reaffirm my finding of a violation. VI. SUSPENDING MERIT RAISES There is no dispute that the day after the Union filed a peti- tion for an election, Roberts met with employees and an- nounced that merit raises would be suspended pending the elec- tion. Relying on language in Grass Valley Grocery Outlet, 332 NLRB 1449 (2000), I concluded that the Respondent violated the Act by announcing that merit raises would be suspended pending the election without also telling employees that such raises would be resumed regardless of the election’s outcome. Although there were some discrepancies in the testimony of all witnesses on this issue, I concluded they were not material and therefore did not pose a credibility conflict to be resolved. Specifically, I have been directed to no testimony (nor have I found any) were a witness said that Roberts told employees the suspension of merit raises “would be frozen permanently.” On the other hand, I do credit Roberts’ testimony: One of those things I mentioned, what I called laboratory conditions, and spoke to the associates and let them know that merit increases would be frozen, put on hold because of the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030 fact the petition was filed and I didn’t want, we did not want, I did not want it to look as though we were swaying someone’s vote based on a discretionary increase. However, that the merit increases would be reinstated after the proposed vote. He did not claim to have said that the increases would be re- sumed after the election regardless of how the employees voted, nor did anyone so testify. By this omission I conclude that in suspending merit raises the Respondent violated Section 8(a)(1) of Act since employees could reasonably believe that resumption of the merit increases would depend on their voting against the Union. The Respondent thus violated the Act. VII. REFUSAL TO CONSIDER WAGGONER FOR TRANSFER In the consolidated complaint, it is alleged that Mary Lou Waggoner,2 who at the time had been reemployed about 4 months, was unlawfully denied transfer to a posted job for which she had applied. Crediting the Respondent’s witnesses, I concluded that a one requirement for accepting an employees’ application to transfer from one job to another is a minimum of 6 months’ employment. Therefore, the Respondent’s failure to consider her was not unlawful. The Board remanded this issue for an analysis under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), to consider “record evidence that the Respondent initially offered several other reasons for its actions, proffering its 6-month rule explanation only at the hearing.” I am also to “consider the Respondents’ failure to provide copies of Waggoner’s job postings pursuant to the General Counsel’s subpoena.” At the hearing, the Respondent’s witnesses testified that a search was made and the job postings could not be located. There is no apparent dispute that in fact there were postings for full-time grocery and full-time bakery jobs and no dispute that Waggoner in fact signed the postings. I therefore credit her testimony that she signed the postings and on one occasion 2 Her name is erroneously spelled “Wagner” in the record and my underlying decision. when asking why she was not interviewed, was told the post- ings could not be found. Such does not mean, however, that she was given this as a reason for not being transferred. The two jobs were filled, one with a transfer of an employee from Florida. Subsequently, according to Waggoner, there have been postings for “either a full-time bakery or full-time grocery job since that time in October of last year.” She did not apply for them. Other than she was told the postings she said she signed could not be found, Waggoner was not given any reason why she was not considered for these jobs. Specifically, she did not ask anyone with the authority to transfer her why she was not considered. Although the General Counsel argues that the Re- spondent gave shifting and inconsistent reasons, I find none. Further, the General Counsel argues that the Respondent stated the 6-month requirement for the first time at the hearing, but there is no testimony concerning when else this requirement might have been stated. In analyzing this under Wright Line, I conclude that the Gen- eral Counsel failed to prove a prima facie case that Waggoner was not given a full-time job because her union activity, or the union activity in general. She had just been employed 4 months, and by her testimony, her union activity did not begin immediately. Nor was it more than perfunctory. This record does not support a conclusion that but for the union activity, Waggoner would have been transferred. Nevertheless, assuming the General Counsel did establish a prima facie case, I conclude that the Respondent proved that she would not have been considered in any event. I credit Rob- erts’ testimony that for an employee who applies for a transfer, that employee must have worked six months. This seems to be a reasonable rule and there is no basis on the record to conclude that it is not. Accordingly, I reaffirm my conclusion that the Respondent did not violate Section 8(a)(3) in not transferring Waggoner. [Recommended Order omitted from publication.]