X. Case Studies II: Defeating Union Organizing Through Tactics Comporting with and Running Afoul of US LawThe many components of Wal-Marts comprehensive, unrelenting, and ultimately coercive strategy to thwart workers organizing efforts come together in the four cases described below. These cases help illustrate why it is so difficult for Wal-Mart workers to exercise their right to freedom of association. In each case, Wal-Mart responded to news of organizing efforts within a few days by employing its panoply of anti-union tactics comporting with US law and by sending members of its Labor Relations Team to the stores. The Labor Relations Team and, in some cases, store managers held captive audience meetings with workers, showed them videos critical of union formation and of union organizers, warned them of the possible negative consequences of organizing, and reminded workers that they did not need third-party representation because they had the Open Door Policy. Union representatives and supporters had little if any opportunity to present contradictory views. Together, these tactics created a workplace climate so hostile to union formation and so devoid of alternative views about self-organizing that workers were no longer able to choose freely whether to organize. US labor law authorities found that in conjunction with these tactics, Wal-Mart also violated US labor law in three of these cases. In the fourth, Wal-Mart employees presented Human Rights Watch with allegations of banned employer activity not raised with the NLRB. The unlawful tactics that Wal-Mart employed varied from case to case and included: spying on workers union activity and on union organizers outside the stores; suddenly improving working conditions and addressing worker complaints to undermine union support; threatening workers that they would lose benefits if they organized; discriminatorily firing a key union supporter and failing to discipline a union opponent for harassing pro-union workers; applying company policies discriminatorily against union supporters; unit packing and transferring a union supporter out of a proposed bargaining unit to derail organizing efforts; coercively interrogating workers about union activities; and discriminatorily banning discussion about unions. In each case, Wal-Marts strategy overwhelmed workers with fears of all the ills that might befall them if they formed a union, and organizing efforts stumbled and ultimately collapsed. No unions formed at any of these stores. In all four cases, Wal-Mart violated workers right to choose freely whether to form a union and denied them their right to freedom of association. Kingman, Arizona, Store Number 2051
On August 28, 2000, the UFCW filed a petition with the regional NLRB in Phoenix, Arizona, to represent the roughly eleven automotive service technicians at the Tire and Lube Express at the Kingman, Arizona, Wal-Mart. About two days later, a team of labor relations managers from Wal-Marts Bentonville headquarters arrived at the store.635 The Labor Relations Team was led by Vicky Dodson, senior labor manager, and included Kirk Williams, labor manager, Timothy Scott, regional personnel manager, and others.636 A member of the Kingman, Arizona, stores management team, speaking to Human Rights Watch on the condition of anonymity, explained, We called them the union busters.637 Dodson acknowledged at trial that the team's goal, in part, was to ensure that the Kingman facility remained union free.638 By the time the union busters had finished their work at the store, according to US labor law authorities, they and other members of management had together committed seven labor law violations. Group Meetings with WorkersThe Labor Relations Team held meetings at the Kingman store to discuss the union, some exclusively with TLE employees and others with larger groups of workers. Dodson and Williams held at least daily meetings with workers throughout the campaign period, with other management representatives occasionally participating.639 Brad Jones, former TLE worker and lead union supporter, observed, The Arkansas Team was there until the vote was blocked, maybe a little after.640 At the meetings, the Labor Relations Team presented their views of unions and collective bargaining and inundated [workers] with information about why they should reject union representation.641 Terry Daly, a former Wal-Mart loss prevention worker charged with preventing shoplifting at the store, described his recollection of the meetings to Human Rights Watch, saying, They get your trust. . . . They would talk about what happened in court and how the union lied and said certain things, . . . and we thought, Dirty bastards, how could they [the union] do this to the company?642 Daly added:
Julie Rebai, former lawn and garden department manager, explained to Human Rights Watch, They try to get you to believe what they can do for you so you wont go to the union.644 Former TLE worker Brad Jones described to Human Rights Watch the impact of the meetings, noting, After those meetings, minds started changing, and one-time union supporters turned against the union.645 Open Door PolicyThe Labor Relations Team also highlighted Wal-Marts Open Door Policy at almost every meeting and through the videos that they showed to workers during the Kingman union campaign.646 Former Wal-Mart worker and union supporter Gloria Bollinger recalled to Human Rights Watch how she understood warnings about the impact of union formation on the Open Door Policy, saying, They said it [union formation] would cost you your voice. You didnt have the right to speak for yourself if the union represents you.647 Former loss prevention worker Daly added that the Labor Relations Team explained that with a union, there would no longer be an open line of communication with management. [The] Open Door Policy would be shut down. . . . If you had a grievance, instead of turning to management, you would have to fill out a grievance form and give it to a committee and [it would] take forever.648 Former Wal-Mart worker Carol Anderson reported that the Labor Relations Team asked, Why pay to have someone take care of us when we have the Open Door Policy? . . . Why pay somebody to talk for you?649 Videos Highlighting Negative Consequences of Union FormationThe Labor Relations Team showed workers approximately five videos during the union campaign period, all with the theme that the employees should reject third party representation and that a union was not in the workers best interest.650 Former assistant store manager Tony Kuc characterized the videos as explaining why Wal-Mart didnt believe in unions. Wal-Mart doesnt need unions because they take care of their people.651 Brad Jones added, They never once brought up what a union is supposed to be about, to give you some type of voice. It was always negative, that unions are just trying to get dues so they could do what they wanted. . . . [They] gave you the impression that [a union] was just a bad deal. . . . It was basically their view, bias on one side, their side.652 Julie Rebai told Human Rights Watch that many of the videos contained different anti-union scenarios and emphasized that in collective bargaining with a union, theyll promise you the world, but they cant deliver. . . . [You will have] paid them your hard-earned money, but they cant deliver and wont put it in writing. Rebai concluded, I truly believed it because thats what I was told over and over.653 Several other Kingman workers recounted to Human Rights Watch their specific recollections of the videos:
Highlighting Negative Consequences of Union Formation: Warnings about Collective BargainingThe videos and Labor Relations Team members also repeatedly underscored for Kingman workers the possibility that the results of negotiations might be a loss, gain, or maintenance of existing benefits. As the NLRB administrative judge hearing the case noted, Such statements . . . , which point out the potential consequences of collective-bargaining, do not violate the Act. This constitutes legitimate campaign propaganda, which employees are capable of evaluating.658 Nonetheless, according to the NLRB hearing testimony of TLE workers and union supporters Larry Adams, Greg Lewis, and Will Brooks and Human Rights Watchs interview with former loss prevention worker Terry Daly, workers inferred from these warnings that they would lose or at least likely lose benefits with a union, providing yet another deterrent to union formation. Daly described to Human Rights Watch his interpretation of the Labor Relations Teams statements about the impact of union formation on workers benefits. He recounted that he understood Labor Relations Team members as stating that if you get a union, you wont be able to have the same kind of medical coverage. . . . There were two or three meetings where Vicky and Kirk wanted to push the idea that any benefits that were fortified by Wal-Mart and their culture would be diminished,659 including annual and store bonuses. Daly added:
High-Level Management TacticsSeveral local, regional, and corporate managers, including Wal-Marts regional vice president of operations at the time Jim Wilhelm and Wal-Marts former chief executive officer Tom Coughlin, also flew to the Kingman, Arizona, store to meet with groups of workers. Wilhelm pointed out that his picture and phone number were in the break room and that if the employees had any questions or concerns that they should not hesitate to call him.661 Brad Jones explained that Coughlin also told workers, If you have any questions, talk to Jay King [district manager], but Im going to leave my number up there in case there are problems.662 Jones described his impression of Coughlin, saying:
Rebai added, Tom Coughlin came to the store. . . . He explained why we as a family dont need an outsider to come in and take our hard-earned money.664 In early 2006, Coughlin pleaded guilty to wire fraud and tax evasion, though he maintained that the Wal-Mart money that he was accused of embezzling was used for a secret company project to prevent union formation.665 Management TrainingWhile in Kingman, the Labor Relations Team also trained facility managers and managers arriving at the store from other locations on how to combat union organizing efforts.666 Former assistant store manager Tony Kuc told Human Rights Watch, The Arkansas Team came in . . . and took over the whole store. They took us out of the store for a couple of days, took us to a hotel, telling us how to handle the union, how to stop them from coming in, . . . what to say, what not to say.667 The former management team member speaking on condition of anonymity explained to Human Rights Watch:
He added that at the off-site meeting, managers were also told how to prevent [the union from] getting in therebe alert, listen, be sympathetic. He concluded, They drilled it into you that you dont want that to happen in your store.669 The Labor Relations Team also met daily with the Kingman facility manager and assistant managers to discuss strategy and assess the progress of the union campaign. The team also had daily contact with legal staff in Wal-Marts headquarters to update the attorneys and receive legal guidance.670 Former department manager Rebai, also described to Human Rights Watch daily department managers meetings with store management to discuss TLE workers organizing efforts, saying, Every single day, management made us go, telling us what to say if [there were] associates with questions: . . . Were family, and we dont need anyone from outside telling us what to saywe have the Open Door Policy. Rebai recalled the message that she believed that she and other managers were supposed to convey to workers:
According to former loss prevention worker Terry Daly, the loss prevention team also went through management training.672 Daly recounted that the staff training included a video for management and loss prevention to make them scared enough to know that unions are not good. He told Human Rights Watch, I actually had fears after seeing videos of Molotov cocktails and rocks, pelting rocks, hurling bottles.673 Union Activity SurveillanceAccording to the NLRB administrative law judge hearing the Kingman case, All of [Wal-Marts] managers present at the facility, including local, regional, and those from corporate headquarters, were expected to gather information regarding the employees union sympathies and activities.674 The techniques that the managers allegedly used for collecting such information ranged from the companys legal but elaborate system for tracking information regarding the employees union sympathies to illegal surveillance by managers. Tracking SystemDuring the election campaign, the Labor Relations Team used an elaborate system to track TLE workers union sympathies and activities and to ascertain their reasons for supporting the union.675 Although the judge hearing the case fell short of finding the system unlawful, he observed, Wal-Mart obviously took the matter [of union formation] very seriously, . . . and there is no doubt that the various managers exercised a maximum effort in an attempt to remain non-union.676 High-level Kingman managers were instructed to obtain information about what the employees wanted and to learn employees' union sympathies. They were to gather this information and record it on index cards.677 According to former department manager Rebai, department managers were supposed to befriend them [workers] to the point that [we] can tell personal information so we could get a headcount. They wanted names and departments.678 She explained that department managers were told to watch to see if people are whispering or handing out cards and if you hear any talk about unions, walk up and get involved in the conversation.679 The former management team member speaking on condition of anonymity told Human Rights Watch, They used . . . managers as guinea pigs to collect information. We were to go out with recipe cards and take down the name of any associate who was talking unusual or out of the ordinary and report back to the next meeting the next day.680 He added that the Labor Relations Team held daily meetings at 8:00 a.m. for about an hour and even overnight assistant managers couldnt go home till this meeting was over.681 The former management team member explained:
Former assistant manager Tony Kuc added:
Kuc also explained, After the petition was filed, they profiled all employees and questioned me and Mitch. . . . They pulled files . . . and questioned us about who was union sympathetic.684 Management Working Alongside WorkersDuring the Kingman organizing campaign, management worked alongside TLE workers, intimidating them and gathering information about their organizing activity. Dodson assigned regional personnel manager Timothy Scott to be TLE interim manager, though he had no prior TLE experience.685 Scott worked in the TLE alongside the other workers, waiting on customers, changing oil and tires, helping with stocking, walking the floor, scheduling, and observing.686 Commenting on Scotts presence in the TLE, former loss prevention worker Terry Daly told Human Rights Watch, Tim Scott was way higher up in the company and had no business working in the TLE. He came in a three-piece business suit and then worked in the TLE.687 The Kingman management team member who spoke to Human Rights Watch anonymously added, Tim was designated TLE. He was a spy. He took notes and reported to Vicky and Kirk on every single thing that happened out there.688 Larry Adams, former TLE worker, explained the impact of Scotts and other managers presence in the TLE:
Brad Jones added that he also believed that Tim Scott was in the TLE doing oil changes and talking with the guys in order to feel people out.690 Although Wal-Mart asserted at the NLRB hearing that Scott was simply acting as the interim TLE manager and that his behavior was consistent with that job, the ALJ found that while Scott may have been performing duties appropriate for a TLE manager:
The judge added:
The ALJ determined that Scotts primary purpose in being physically present in the TLE was to gather information about the employees union activity and that Scotts constant presence in the TLE for nine consecutive workdays was certainly meant to, not very subtly, dissuade the employees from engaging in union activity. As such, the judge found that, through Scott, Wal-Mart unlawfully engaged in surveillance of its employees union activities, and gave its employees that impression.693 In addition to Scott, shortly after the union petition was filed, several Kingman managers were also assigned to work alongside TLE workers. Former TLE worker Brad Jones commented, They were bringing in managers that were hardly ever in the TLEall of a sudden, they were helping you. . . . They were watching you.694 The store management team member who spoke to Human Rights Watch on the condition of anonymity explained:
Assistant store manager Tony Kuc similarly recounted:
The administrative law judge decision in the case does not address the above-described surveillance that allegedly occurred shortly after the union petition was filed in 2000.697 Instead, the ALJ considered the unions allegations that Wal-Mart engaged in unlawful surveillance by assigning store managers to work alongside TLE workers in early 2002 when the facility was understaffed. The ALJ dismissed those charges, holding that, at that time, [i]t would have been reasonable for [Wal-Mart] to have utilized its managers to temporarily correct this deficiency and noted that the store manager and TLE manager testified that they were also unaware of any union activity being conducted at that time.698 CamerasAccording to former management team members, the Labor Relations Team also instructed store managers and loss prevention workers to monitor workers and union activity using cameras. The management team member who spoke anonymously to Human Rights Watch explained:
Former assistant store manager Tony Kuc agreed, adding, They set up extra cameras and told [us] specifically to watch guys.700 Former worker Brad Jones noticed the additional cameras, explaining to Human Rights Watch, A camera was installed outside the TLE and inside after the [union] petition was filed.701 Allegations that Wal-Mart unlawfully added surveillance cameras and redirected existing ones to monitor union activity were never explicitly raised with the NLRB, however. Therefore, the administrative law judge in the case did not specifically address the issue in his decision. Former Loss Prevention Worker Describes Union Activity Surveillance Terry Daly, a former loss prevention worker at the Kingman, Arizona, Wal-Mart, was ambivalent about the union and did not testify at the NLRB hearing in the case. As discussed, NLRB attorneys often do not reach all workers who could provide critical information about unfair labor practice charges against their employers. Nonetheless, Daly explained to Human Rights Watch in detail his understanding of the role that the Labor Relations Team instructed loss prevention staff to play in monitoring union organizing using cameras around the store: In loss prevention, we were to monitor any activity that we thought might be organized . . . and place cameras in certain areas. I was told with the cameras that we had to make shots more available, reposition them to monitor a better area so we could see any activity going on that might be unusual. When we set up a camera, the shot is usually for the general area of theft. I was fixing a camera problem in the TLE on the register, one of the biggest theft areas, and they say dont do any camera work here while the TLE is open. In the bay where they do work on cars, they had us come in at night and reposition them to monitor any activity. That activity had already started with the union, and if they saw us messing with the cameras, they would think we were trying to catch them doing things, but thats, in fact, what we were doing, just not that day or time.702 Daly added that, in particular, he understood that loss prevention workers were to monitor Brad Jones, the key union supporter in the TLE. He explained:
In one of our meetings, Scott [regional personnel manager] said, Brad is the mole. Hes the one whos been linked to the union organizers, and we need to find a reason to get him out of there. . . . [We were to] monitor cameras and report back what we saw. [Store management said] we needed to find a reason to fire Brad. . . . I had a problem with that. He was one of the best associates Wal-Mart had ever seen. . . . I went in and repositioned cameras.703
Daly told Human Rights Watch that the Labor Relations Team informed the loss prevention team that in addition to monitoring Jones, our job was to seek out infiltrators and figure out how to get them fired.704 Daly recalled a meeting with regional personnel manager Timothy Scott in which Scott said we needed to come up with some dirt on associates in the TLE. Im sure theres a violation somewhere in their work ethics that we can find.705 Daly explained further:
It was brought to our attention that someone in the TLE had signed a union card. We needed to figure out who it was and figure out how to get him firedany company misconduct; clean out the TLE; get out anyone with involvement. . . . Bentonville had meetings with management, and my direct boss basically told us if we hear anyone with involvement with union activity, get their names, find out who they are, and get them out of thereanything you can find.706 Because Daly did not testify at the NLRB hearing in this case, however, the administrative law judge never considered the specific allegations that loss prevention staff engaged in the unlawful surveillance Daly described to Human Rights Watch. Addressing Worker Concerns to Undermine Union ActivityAccording to the Kingman store management team member who spoke to Human Rights Watch on condition of anonymity, Once the union petition was filed, everything was fixed. Everything that was wrong in that shop was taken care of by Wal-Mart. [They were] using it as a tool, . . . saying, Look how [were] caring for associates.707 Former assistant store manager, Tony Kuc, added, Vicky, et al., came in and said, . . . [They] should have better equipment. They painted. . . . Broken equipment [was] fixed. Kuc recalled Vicky Dodson explaining that she preferred spending the small amount needed to remedy problems in the TLE than the much larger amount that would be needed if the union gets in.708 Broken Oil Grates and Cooling System FixedBefore the union recognition petition was filed, the oil grates in the TLE garage that separated the upper and lower bays were old, falling apart, and unsafe and the TLE cooling system was broken.709 Although workers reportedly made numerous complaints to management, the problems were not fully remedied until Kirk Williams and Ragnar Guenther, TLE district manager, arrived at the facility after the union petition was filed.710 Former TLE worker Brad Jones told Human Rights Watch, Fans were sitting on the floor, but they were not put in yet. They had been put up, then broke, but till the union, they were [not] done. Thats when they worried about us having cooling.711 Wal-Mart argued at the NLRB hearing that the repairs were made simply as part of routine operational decisions and were in no way intended to influence workers vote in the union election.712 The ALJ disagreed. The judge found that workers had repeatedly complained to management about the problems prior to the union petition, that management had, therefore, been aware of the issues, and that the company failed to respond until after the union petition was filed. The ALJ held that fixing the damaged grates constituted a benefit to the employees and a departure from [Wal-Marts] past practice. It would have reasonably been expected to influence the vote of the TLE employees in the scheduled election. As such, it had the effect of interfering with, restraining, and coercing the employees in the exercise of their . . . rights and was unlawful.713 The judge found, Not until September, after the petition was filed, did management treat the matter like a priority and have the repairs promptly made. . . . [I]t is obvious that the cooling system was repaired for the purpose of influencing the employees vote in the election, and that the repair was reasonably calculated to have that effect. As such, it was also unlawful.714 More Benefits and BonusesNon-TLE workers also reported to Human Rights Watch that their employment conditions improved after the union petition was filed. Former Wal-Mart worker Gloria Bollinger recounted:
In addition, as discussed below, although workers were explicitly denied merit raises after the union petition was filed, Wal-Mart reportedly awarded widespread cost-of-living adjustments throughout the Kingman store during the union campaign. Former department manager Julie Rebai told Human Rights Watch, They went in and started giving people raises.716 Terry Daly, former loss prevention worker, added, Wal-Mart started dishing out raises all over the place, almost everyone in the store. . . . All of the lower-end people got raises.717 Similarly, the former management team member speaking anonymously to Human Rights Watch recounted:
The union in this case, however, did not file specific charges against Wal-Mart for illegally awarding store-wide improvements to undermine union support during the TLE workers organizing campaign, focusing instead on TLE-based improvements. Because no such charges were filed, the NLRB never addressed these specific allegations. Benefit LossWal-Mart managers unlawfully refused to give workers merit raises during the union organizing drive and informed them that the company would also continue to deny these raises during collective negotiations, which would only occur if the union won the election.719 A former Kingman Wal-Mart worker told Human Rights Watch that management said if [we] give raise[s], it would be like a bribe,720 and another worker similarly testified at trial that management explained that such merit raises could be construed like they were buying us off, in violation of US law.721 One worker recalled that at least one manager further suggested that to ensure their merit raises workers should abandon their organizing efforts altogether. Former assistant store manager Tony Kuc told Human Rights Watch, One time it was mentioned that no raises would be given at the store while it was under union petitionno merit raises. Everything was frozen because of the union. Vicky [Labor Relations Team member] said that herself.722 Former TLE worker Larry Adams further explained that management informed workers, We cant give you a raise because the union is here right now. Mike said no raise because of the union. If you get rid of the union problem, well get a raise.723 Other managers made similar allegations at the NLRB hearing, and the ALJ found, [B]ecause merit or discretionary raises were an existing benefit at the Kingman Wal-Mart, Wal-Mart was required to continue to award them during the union organizing drive.724 The ALJ continued, ruling that Wal-Marts message to workers that they would not receive discretionary raises during negotiations was also unlawful because it constituted a threat to employees to withhold raises if they selected the Local Union as their collective-bargaining representative. The judge noted, The employees were likely to identify the Local Union, or at least the union supporters, as the villain in this scenario. . . . This . . . was likely to have caused any employees affected by the potential withholding of raises to be upset with the Local Union, or its supporters.725 Threatening Benefit Loss: Benefits Book Eligibility Language The 2001 and 2002 Wal-Mart Associate Benefits Books, distributed to all eligible employees nationwide, including workers at the Kingman, Arizona, Wal-Mart, stated, Contractually excluded and certain other union represented associates are not eligible for coverage under Wal-Marts many benefits plans. At the NLRB hearing, the union argued that this provision was intended to chill workers right to organize.726 Similar allegations arose in cases against Wal-Mart in NLRB Region 26, headquartered in Memphis, Tennessee, and Region 32, headquartered in Oakland, California.727 Wal-Mart argued that the language at issue merely explained that union members might not be eligible for the same benefits as non-union workers, putting workers on notice that standard Wal-Mart benefits are subject to the outcome of contract negotiations. Wal-Mart denied that the language suggested that workers would automatically lose benefits by organizing or during negotiations.728 The ALJ concluded, however, that the language is a not very subtle threat to its employees that something unpleasant will happen to them if they organize, namely the loss of the company benefits. . . . To simply offer the existing language as a contingency leaves any reasonable employee with the clear impression that being represented by a union will likely result in a loss of benefits. The ALJ found the language unlawful, stating: What else could this clause have been intended to do, but to threaten employees, who were naturally unsophisticated in the nuances of labor relations, with a loss of benefits for exercising their . . . rights? . . . I am convinced that [Wal-Mart] intentionally selected the specific language it did to ensure, to the extent it could, that its employees were fearful of losing their benefits, and, thus, continued to reject union representation. . . . [T]he . . . language in question . . . could have no legitimate purpose. Its only purpose could have been to coerce employees in the exercise of their . . . rights.729 The judge ordered Wal-Mart to delete the language from its benefits books or amend it to clarify that the union-represented employees benefits are provided for through the collective-bargaining process, and that union-represented employees will remain eligible for benefits during bargaining. The ALJ also ordered Wal-Mart to post notices setting forth the order to amend the books and promising to comply at all facilities across the country where workers had received them.730 Wal-Mart appealed to the five-member Board in Washington, DC, and the issue was subsequently resolved through a settlement between Wal-Mart and the NLRB general counsel.731 The settlement is weaker than the remedy ordered by the ALJ, however. It contains a non-admissions clause and requires Wal-Mart to amend the offending language in all future benefits books nationwide, post the revised language on the company intranet, announce the change in Wal-Marts newsletter, but display only at the Kingman facility a notice announcing that the language in question will be replaced in all new versions of the benefits book. The new language states, Also excluded are employees who are members of a collective-bargaining unit whose retirement benefits [or appropriately described benefit] were the subject of good faith collective bargaining.732 The charging union strenuously objected to the settlement, which they asserted was reached not only against their wishes but those of the workers involved in the related cases in NLRB Regions 26 and 32. Specifically, the union opposed the non-admissions clause; the failure to require nationwide posting of the language change notice, thereby failing to inform [Wal-Marts] one million workers to whom the benefits book was distributed that their . . . rights were violated; and the proposed new language, which they alleged is deficient under the Employee Retirement Income Act and fail[s] to advise employees that they are eligible for the benefits during bargaining.733 Nonetheless, in July 2005, the Board granted the NLRB general counsels motion to sever this portion of the case and remand to Region 28 for settlement approval.734 Such a settlement is highly unusual, as settlements with terms weaker than ALJ decisions are generally reached earlier in the processbefore the NLRB general counsel has briefed the five-member Boardand with the support of the charging party. Neither characteristic was present in this case. Discriminatory Application of Non-Harassment PoliciesWal-Marts non-harassment policy prohibits harassment based on a workers religion or physical appearance. Nonetheless, Wal-Mart failed to discipline union opponent Mitch Bowen for repeatedly harassing on those grounds union proponents Greg Lewis and Will Brooks. An NLRB judge concluded that the company refused to discipline Bowen because it did not want to alienate or anger an anti-union employee.735 Lewis, a Christian minister, complained to managers that Bowman pushed him, called him lazy, told him that he hated Christians, called him a piece of shit, and exclaimed, [O]h, another goddamned religious function, after hearing Lewis mention that he had to prepare for a church service. Managers promised that they would take care of the problem, but it continued.736 Later that same month, Lewis was speaking to a TLE co-worker about his church when Bowman overheard the conversation and said, [W]hat a bunch of bullshit, and Let me get my hip boots. Bowman also later came up to Lewis and screamed, Oh, God, take me home, bless me Lord, and called Lewis fat boy.737 Lewis reported Bowman's conduct to the district manager, the store manager, and Kirk Williams, but the managers just laughed at him and told him that he was making a bigger issue out of it than it was and should go back to work. Lewis spoke again with the three managers, explaining that he felt that Bowmans actions constituted religious persecution and that the fat jokes were inappropriate. Kirk Williams responded that it's only words and told Lewis to go home if he was upset.738 Bowman also harassed union supporter Will Brooks about his weight, calling him big boy and fat. Brooks complained to TLE district manager Ragnar Guenther, but Bowman continued to harass Brooks about his weight and also reportedly called his fiancée a bitch and threatened to hit her. Brooks again told Guenther, who promised to look into the situation. Several days later, however, Bowman reportedly yelled that he couldn't believe that he worked with a bunch of pussies, which Brooks thought was directed at him. Brooks complained once more to Guenther, who allowed him to go home early due to the stress.739 At the NLRB hearing, Wal-Mart did not dispute the description of Bowmans conduct. Instead, the company claimed that the Kingman managers had insufficient evidence . . . to warrant taking disciplinary action. Wal-Mart denied that Lewis and Brooks union sympathies were related to the way the case was handled. The ALJ disagreed and found:
Discussing Wal-Marts failure to punish Bowman for harassing Lewis and Brooks, Brad Jones commented, Youre supposed to have truth, integrity, honesty, and treat fellow associates right. You had a guy that was antagonistic, but he was on the side they needed.741 Discriminatory FiringAs already noted, Brad Jones, who had worked at the Kingman, Arizona, Wal-Marts TLE since March 1996, was one of the most vocal and active union supporters in the TLE and was one of the first TLE employees to contact the union. He signed a union authorization card and met with union representatives several times. Jones continued his union activities even after the election was blocked. By January 2002, he and fellow TLE worker Larry Adams were the only two TLE employees still wearing union buttons. On February 28, 2002, Wal-Mart fired Jones.742 Former Managers Describe Trying to Find Cause to Fire Union Leader Loss prevention workers were reportedly not the only Kingman, Arizona, Wal-Mart employees instructed to monitor Brad Jones and try to find a reason for his dismissal. At the NLRB hearing, former assistant store manager Tony Kuc testified that at a managers meeting in the fall of 2001, store manager Jim Winkler referred to the pro-union workers who were wearing their buttons and everything, naming three TLE employees, including Jones. According to Kuc, Winkler instructed managers to follow the coaching process to a T regarding attendance and stuff with those workers and to hold them to a higher standard so that they would end up weeding themselves out. According to Kuc, at another managers meeting near the end of 2001, Winkler noted that Jones was the only original union supporter still working at the TLE, so there was basically one more person to go, and he would screw up eventually, and he would be gone.743 Kuc commented to Human Rights Watch, They were looking for any kind of loophole to get rid of the poor guy.744 Former Wal-Mart department manager Julie Rebai added, Brad couldnt even blink without being called into the office. . . . No way. Brad just wasnt going to be there.745 She elaborated: Managers were supposed to piss Brad off and get him to say something out of line. They were supposed to have one manager tell him one thing and another manager tell him something completely different. . . . They had a list of who to get rid of. . . . There were only three workers in the TLE not on the list, . . . something like twenty-five on the list to be fired, and most were fired or pushed to quit, for example, [by] not giving them two days off together or [splitting their workday by giving them] four hours at the beginning [of the day] and then four hours later.746 Two days before Jones was fired, he received a yearly performance evaluation in which he was rated exceeds expectations for most criteria and given an overall job performance rating of meets expectations, for which he was awarded a 4 percent raise.747 Jones told Human Rights Watch, I was terminated for removing company property from the premises. I was never told what I took. I assumed it was TLE reports.748 He explained at the NLRB hearing that he often printed and used the TLE reports to track the time it took for services to be completed and what services were performed, but he denied ever removing copies from the facility. He added that no one had ever asked him to stop, though management knew he printed these records.749 According to the ALJ, the decision to fire Jones was based on statements from three Kingman employees who had seen him with TLE documents while still on Wal-Mart property, which violated no Wal-Mart policy. There were no witnesses to the alleged theft, and Wal-Mart could not even say what specific documents were allegedly stolen, or whether any documents were even stolen at all.750 Larry Adams added, They [the store manager and an assistant manager] called me in just before they fired Brad. They were asking me questions about the [TLE] papers. Was Brad giving the stuff to the union? Whats Brads connection to the union? . . . I said I dont know what Brad is doing. He commented, They were very intimidating.751 At the NLRB hearing, Wal-Mart denied targeting Jones for dismissal, but the ALJ found that the evidence overwhelmingly establishes . . . a connection between Jones union activity and his firing. The judge held:
Discriminatorily Denying Brad Jones COBRA BenefitsAfter Jones was fired, Wal-Mart denied him benefits available for terminated workers under the Consolidated Omnibus Budget Reconciliation Act (COBRA) because he was fired for gross misconduct. COBRA allows certain former workers and their families to continue their healthcare coverage temporarily at group, rather than individual, rates after the loss of employment.753 The ALJ held that because Jones firing was illegal, disqualifying him from COBRA benefits for his allegedly gross misconduct was also illegal. The judge noted, In reality, [Wal-Mart] did two things in retaliation for Jones union activity, namely terminate him and deny him COBRA benefits.754 Post-scriptAfter receiving the petition for union recognition in the fall of 2000, the NLRB ruled that the appropriate bargaining unit in the Kingman, Arizona, TLE consisted of the roughly thirty total TLE workers and ordered an election for October 27, 2000. The election was postponed indefinitely after the UFCW filed unfair labor practice charges against Wal-Mart on October 24, 2000.755 Between October 2000 and May 2002, the union amended those original charges and filed new ones, and in February 2003, an NLRB administrative law judge found Wal-Mart guilty of seven unfair labor practices: 1) unlawful surveillance of TLE workers during late August and early September 2000; 2) granting workers benefits and improved working conditions to discourage workers from supporting the union; 3) denying workers merit raises during the union organizing campaign and threatening to continue to do so during collective negotiations; 4) discriminatorily failing to enforce the companys non-harassment policy against a union opponent; 5) firing Jones for engaging in union activity; 6) denying Jones COBRA coverage after he was terminated; and 7) including language in the companys 2001 and 2002 employee benefits books that threatened workers with the loss of company benefits if they supported the union.756 In so finding, the ALJ commented:
The ALJ ordered Wal-Mart to cease and desist from the illegal conduct and to post a notice in its Kingman facility briefly setting forth workers rights under the NLRA, stating that the NLRB had found Wal-Mart in violation of US labor law, and committing not to engage in the specific unfair labor practices of which the company had been found guilty. The judge also ordered Wal-Mart to offer Brad Jones his former job back or, if it no longer existed, an equivalent position with no loss of seniority or benefits; pay him any lost earnings or benefits he may have suffered while illegally fired, including medical expenses incurred because he was denied COBRA; and delete from his files any reference to his dismissal.758 Wal-Mart disagreed with the ALJs findings. According to the ALJ decision, in response to the unfair labor practice charges, Wal-Mart had stated:
Rather than comply with the order, Wal-Mart appealed all seven of the violations found by the ALJ. Six of those are still pending with the five-member Board in Washington, DC.760 The seventh, addressing the illegal benefits book language, was settled. No union election was ever held at the facility. Addendum: Addressing Worker Concerns to Undermine Union Activity, 2005According to hourly TLE manager John Weston, TLE workers at the Kingman, Arizona, Wal-Mart again began discussing the possibility of organizing in late January and early February 2005.761 Weston told Human Rights Watch that after senior store managers learned of the union talk, three issues that had been pending for God knows how long were quickly resolvedmanagement granted Westons requests for an additional computer and a new tire machine and added more staff to the TLE. Weston explained:
Weston also recounted:
In addition, Weston described to Human Rights Watch that, prior to discussions of organizing in early 2005, the TLE was running short staff. Weston explained that employees would leave the Kingman TLE and would not be replaced. He commented:
No charges alleging that Wal-Mart unlawfully improved conditions and remedied worker concerns to ward off union organizing in early 2005 were filed against the company, however. Therefore, the NLRB has not addressed the issue. New Castle, Pennsylvania, Store Number 2287
On June 13, 2000, the UFCW filed a petition with the NLRB to represent workers at the Tire and Lube Express at the New Castle, Pennsylvania, Wal-Mart. Wal-Mart responded within days, sending to the store Carla Flinn and Bill Buford, Wal-Mart labor relations managers at the time, Wal-Marts regional personnel manager for its TLE division, and the TLE regional manager.766 Andrew Baylor (a pseudonym), a manager and hourly employee who opposed the union and spoke to Human Rights Watch on condition of anonymity, explained that the Labor Relations Team and outside managers came in, and they gave people their idea on unions.767 Former TLE worker and union supporter Joshua Streckeisen added that the Labor Relations Team and other outside managers were the people pulling us aside for videos and Wal-Mart meetings. When they came in, things started to get messed up.768 Streckeisen commented:
Streckeisen explained that during the union campaign, You felt like you were being watched by everyone. You felt like managers were watching, and if you did one thing wrong, theyd get rid of you. With them saying how they are against the union, it felt like if you did anything wrong, youd be fired. He concluded that it was a nerve-wracking deal going to work.770 Union opponent Baylor added, however, that it may have been tense for others, but not for me.771 During their hard-hitting campaign to defeat the New Castle, Pennsylvania, TLE workers organizing efforts, the Labor Relations Team members and other Wal-Mart managers used myriad anti-union tactics largely comporting with US law and, according to the NLRB, committed eight separate US labor law violations. Group Meetings with WorkersAccording to Streckeisen and former TLE worker and union supporter James King, the Labor Relations Team held small group meetings with the TLE workers. Streckeisen recalled one day in which the Labor Relations Team showed workers two or three videos, discussing each video and why Wal-Mart does not need a union with the workers before moving on to the next. He recounted that one addressed Wal-Marts benefits and another the role of unions, stating that unions have their place, like in steel mills, manufacturing, construction, etc., but not at Wal-Mart because were pro-associate and have the Open Door Policy.772 Open Door PolicyStreckeisen and Baylor told Human Rights Watch that the Labor Relations Team also emphasized the companys Open Door Policy in the meetings with TLE workers. Streckeisen recounted that management explained that with the union, you have to go to the steward. Why would you want to pay the middleman to sit there and talk for you?773 Baylor added:
Highlighting Negative Consequences of Union Formation: At the meetings with New Castle TLE workers, the Labor Relations Team and other managers also reportedly discussed the collective bargaining process. According to Streckeisen, they explained that we might get a raise, but we might lose benefits and that regardless of the outcome of the negotiations, [You could] lose what you got from union dues.775 Streckeisen added that the Labor Relations Team and outside managers also provided a list of Wal-Mart benefits and then commented that during negotiations, it might be more important for a union organizer to have other benefits, so they might not mention that benefit thats important to you.776
Management TrainingIn addition to meeting with TLE workers, Labor Relations Team member Flinn also began holding daily meetings with store mangers to discuss union-related developments.777 At the first meeting, Flinn explained that the union was attempting to organize TLE workers and that Wal-Mart was opposing that effort. She asked managers to talk to workers in their areas or who they knew personally to find out if they supported the union and instructed managers to write down any union-related questions that workers might have on index cards and forward the cards to upper management.778 Addressing Worker Concerns to Undermine Union ActivityFour days after workers filed the union petition, Wal-Mart posted a notice for a service technician position opening in the TLE, a step to remedy the staff shortages about which TLE workers had frequently complained. Approximately three days later, Michael Bennett, Wal-Marts vice president for TLE at the time; David Hill, TLE district manager in 2000; and Gary Wright, TLE regional manager at the time, met with TLE workers to address other issues about which workers had repeatedly voiced concern. The ALJ found that the managers promised to remedy the tool shortages and equipment problems, including faulty air hoses, tire machines, and wheel balancers, and to increase staffing so that employees would not have to skip their lunches or work late. The ALJ noted that Bennett told the workers that he understood their frustrations with Hill and that Hill was going to be retrained and replaced.779 Commenting on Hills departure, former TLE worker Streckeisen told Human Rights Watch, Workers were happy that Dave Hill was fired.780 The judge also found that Bennett explained to New Castle workers that due to the steps he would soon take to address their concerns, as outlined in the meeting, there was no need for third-party representation and that the employees should use the open door policy and that would take care of everything for them. Bennett handed out his business cards and told workers to contact him if they had any more problems. This was the first time that the workers had received Bennetts number and the first time they had met him.781 Soon after the meeting, the new TLE district manager met with the TLE workers and explained, like Bennett, that he would take care of their concerns and do a better job for them than Hill had.782 The ALJ found that shortly thereafter, new equipment arrived and that by the end of July, nine employees had been transferred into the TLE, while only five had left, thereby addressing staff shortages.783 Commenting on the equipment and staffing improvements, former TLE worker James King noted, As soon as we started the union, things started to get done. . . . Before the union, things werent getting done, and if they did, it was in their own due time.784 Similarly, when Human Rights Watch asked Streckeisen why he thought Wal-Mart addressed workers concerns in the TLE after the union organizing began, he answered, They thought that if we were happy, wed drop . . . the union. They think theyll make the problems go away.785 In the hearing before the NLRB administrative law judge, Wal-Mart asserted that it had a well-established policy of soliciting grievances and that when it replaced the TLE equipment at the New Castle, Pennsylvania, store, it was merely carrying out its long-standing practice of remedying problems. The company claimed that it had unsuccessfully attempted to increase staffing even before the petition was filed and that, regardless, it had valid business reasons for doing so unrelated to union organizing efforts. Similarly, Wal-Mart argued that it also removed Hill for legitimate business reasons.786 The ALJ rejected Wal-Marts arguments and found that although Wal-Mart has a policy of soliciting grievances, the company does not have a policy of invariably remedying those grievances.787 The judge continued:
The ALJ held that Wal-Mart acted illegally by promising to remedy employee concerns and installing new equipment in the TLE to remedy employees complaints.789 The judge further explained that whatever business reasons there were for increasing the staffing in the TLE existed long before Wal-Mart decided to act on them, and that, therefore, it was the union activity of the employees that triggered [Wal-Marts] action, in violation of the NLRA. Similarly, with respect to the removal of Hill, the judge held, [I]t is clear that the reason [Wal-Mart] removed Hill from his position was because the employees had complained that he did not rectify their problems and chose to seek union representation as a result. This is not a legitimate business reason for removing a supervisor; rather it is an unlawful reason.790 As a result, the judge concluded that Wal-Mart had unlawfully embarked on a vigorous campaign to adjust employee concerns that had been ignored in the past in an effort to undermine support for the Union.791 Unit PackingWhen Labor Relations Team member Flinn met with New Castle store managers, in addition to her other instructions, she asked them to identify two workers in their areas who stood behind [Wal-Mart] 100 percent and try and persuade those employees to transfer to the TLE because [Wal-Mart] did not want the Union there.792 As noted, between the time the union petition was filed and the end of July, nine employees transferred into the TLE, and five transferred out. The ALJ hearing the case observed, The timing of the transfers, coming shortly after the petition was filed and before the Regional [NLRB] Director issued a decision in representation case [sic], . . . supports that conclusion [that Wal-Mart managers] did just as Flinn had ordered.793 Commenting on the shift of workers into the TLE in the wake of the union petition, Streckeisen told Human Rights Watch:
Wal-Mart denied engaging in unlawful unit packing, claiming that in addition to having legitimate business reasons for increasing TLE staffing, the evidence failed to show that the company knew the union sympathies of the transfers. The judge disagreed and found that Wal-Mart was unlawfully attempting to transfer employees into the TLE who would not support the Union . . . in an effort to dilute the support for the Union.795 Commenting on Wal-Marts tactic of transferring anti-union workers into the New Castle TLE during the organizing drive, union organizer Martino observed, There are other employers that try to pad the numbers, but not to the extreme and not with the quickness that Wal-Mart did in this case. Within two weeks of the petition, maybe two-and-a-half weeks, there were eight new workers.796 Worker Transfer to Dilute Union Support and Interrogating a Worker About Union ActivityShortly after the union recognition petition was filed, TLE worker Clifford Funk, an open union supporter, applied to be transferred to the stores loss prevention department and was interviewed for the position along with nine other candidates.797 After the interview, TLE district manager Ron Brewer called Funk into his office and asked how he thought the other TLE employees felt about the union and whether he thought it would succeed. Funk answered that as long as the company was doing what it was supposed to be doing he didn't see a problem. Funk was hired for the loss prevention position and began his new job at the end of July 2000. In February 2001, Funk reportedly applied to return to the TLE. The ALJ found that he discussed the issue with his direct supervisor, who told him that Flinn told him not to let Funk back into the TLE.798 Wal-Mart claimed at the NLRB hearing that Funks transfer was legal because there was a legitimate reason for posting the position and Funk voluntarily applied. The ALJ rejected the companys argument, finding that the company illegally transferred Funk out of the New Castle TLE to undermine union support. The judge held:
The judge further found that Wal-Mart unlawfully interrogated Funk about union activities and sympathies during his interview for the loss prevention position, holding:
Union Activity SurveillanceIn late June 2000, UFCW organizers Michael Martino and Andrea Cathcart distributed pro-union literature to employees outside the New Castle, Pennsylvania, Wal-Mart facility for roughly two hours. After about ten minutes, five managers and co-managers came out with large trash cans and placed them near the entrance and remained within view of Martino and Cathcart, watching them distribute the union literature.801 Martino told Human Rights Watch:
Co-manager Dominic DAurora stayed outside within five to six feet of Martino for the full two hours, moving with him between entrances.803 Martino recalled, I began to walk from one set of doors to the other. Dominic followed me.804 Three other managers stayed for roughly thirty to forty-five minutes, while the store and district managers stood in the vestibule between the first and second doors that lead to the grocery area. When Cathcart moved to the hard goods entrance after about thirty minutes, the assistant bakery manager was there sitting on a bench.805 Martino told Human Rights Watch that he could not remember other companies adopting similar tactics when he distributed union literature outside their facilities. He explained, Not to the point where theyll bring out a trash can, . . . I cant remember a place doing that. He noted that managers may send out workers to get flyers and then go back in the store or a manager [will] come out and take the flyer just to see what it is and then call somebody, never trash cans and managers.806 In mid-July 2000, Martino and Cathcart again distributed union literature, and TLE worker Funk joined them.807 DAurora, along with the store and district managers and the district loss prevention supervisor, appeared at the grocery entrance to watch the distribution. Two managers stayed outside and two in the vestibule. When Cathcart walked to the hard goods entrance, the district loss prevention supervisor and another manager were there waiting for her.808 The ALJ found that Wal-Marts conduct went beyond mere observation and that when Wal-Mart management placed themselves outside and in close proximity to the union activity and remained observing at close range for significant periods of time, the company engaged in unlawful surveillance of union activity.809 Post-scriptOn August 3, 2000, the NLRB regional director ordered an election for the bargaining unit of all full- and part-time TLE employees at the New Castle, Pennsylvania, Wal-Mart, and an election was scheduled for August 31. The election was postponed, however, after the UFCW filed unfair labor practice charges against Wal-Mart.810 On November 12, 2003, an NLRB administrative law judge held that Wal-Mart had violated US labor law on eight separate occasions. The judge found that Wal-Mart illegally interfered with organizing activity by attempting to undermine union support by: (1) promising to remedy worker concerns; (2) removing the unpopular TLE district manager; (3) installing new equipment in the TLE; and (4) transferring workers into the TLE to address inadequate staffing. The ALJ also found Wal-Mart guilty of: (5) unit packing; (6) transferring Clifford Funk out of the TLE to dilute support for the union; (7) coercively interrogating Funk about other workers union support; and (8) engaging in surveillance of union activities. The judge ordered Wal-Mart to cease and desist from the illegal conduct and post a notice in the store briefly setting out workers rights under the NLRA, stating that the NLRB had found the company in violation of the act, and pledging to refrain from the specific, illegal conduct in which the company had engaged.811 Both sides appealed the ALJs decision to the five-member Board in Washington, DC, but later withdrew the appeals, leading the five-member Board to adopt the ALJs findings and conclusions on September 30, 2004.812 On February 11, 2005, the union election in the New Castle, Pennsylvania, Wal-Mart TLE was finally heldalmost four-and-a-half years after it was initially scheduled. During that period, support for the union had waned and most of the TLE workers who filed the election petition in 2000 had left the facility. The union lost the election.813 In its letter denying Human Rights Watchs request for a meeting, Wal-Mart addressed the unions defeat, noting, In New Castle, the union received no votes for certification, and the vote count was 17-0 against union representation.814 Aiken, South Carolina, Store Number 514
Kathleen MacDonald had worked in the candy department of the Aiken, South Carolina, Wal-Mart for thirteen years when she contacted the UFCW in February 2001 to ask about trying to organize a union at the store.816 MacDonald explained to Human Rights Watch that she contacted the union because of an accumulation of things since the move into the Supercenter [in 1994], including her failure to hear back from the executives after she raised the issue of pay disparity between men and women. She added:
Two of MacDonalds colleagues at the time, Pat Quinn, speaking to Human Rights Watch under condition of anonymity, and Georgia Graham, also explained to Human Rights Watch why they supported union formation. Quinn recounted:
Graham added, I felt that . . . the union would be good and help the people. . . . There were a lot of issues: people not being treated fairly with advancements and pay rates, . . . favoritism with shifts.819 After first contacting the UFCW in February, MacDonald asked several co-workers in mid-May if they would be interested in supporting a union.820 MacDonald told Human Rights Watch:
MacDonald scheduled a union meeting with the UFCW on June 21, 2001.822 In early June, MacDonalds supervisor told Aiken store manager Tim Mallett that he had overheard workers discussing a possible union meeting. Mallett contacted the district manager Jim Torgerson, who instructed him to call Wal-Marts Union Hotline.823 Later that same day, Garth Gneiting, a labor relations manager from Wal-Marts Labor Relations Team, called Mallett to discuss the suspected union activity.824 Roughly two days before the union meeting was scheduled to be held, Mallett read to the workers talking points provided by Kirk Williams, another labor relations manager from the Labor Relations Team:
Approximately two days later, Gneiting, Williams, and Gwendolyn Cannon, regional personnel manager, arrived at the Aiken store. Gneiting stayed roughly two days in June, returning for about a week in July; Williams approximately until the end of June, also returning for about ten days in July; and Cannon, intermittently, for roughly four weeks in June and July.826 When asked at trial whether the purpose of her presence at the store was to help keep the store Union free, Cannon answered affirmatively.827 Similarly, Williams explained at trial that his goal as a labor relations manager was also to keep Wal-Mart union free.828 The ALJ observed, Wal-Mart's Bentonville team . . . was sent to Aiken to make sure that the Union did not succeed in organizing Wal-Mart's Aiken employees.829
Wal-Mart achieved its goal of keeping the Aiken, South Carolina, store union free, but, according to the ALJ, it did so only after committing four violations of US labor law. Group Meetings with WorkersMacDonald and Liz Boyd, a department manager when we spoke with her but an associate during most of the union organizing drive in 2001, explained to Human Rights Watch that when Williams and Gneiting arrived, store manager Tim Mallett called a meeting in the store lounge. Boyd elaborated, He introduced Garth and Kirk, and he said they were from the home office and had heard that there was a union in the store but that they were not anti-union but pro-associate and they would be walking the floor and talking with the associates one on one . . . and having group meetings.830 Boyd added that, as Mallett had explained, Gneiting and Williams during their stay at the store walked around talking to associatesanything you needed, you came to talk to them, and they would take care of it.831 MacDonald commented, No one from Bentonville had done this before.832 A day or two after the Labor Relations Team arrived, roughly thirty employees from the Aiken personnel office were called to attend another meeting, which Mallett began and then turned over to Williams. At that meeting, Williams reportedly explained that Wal-Mart was not anti-union but that he felt that the employees did not need a third party. He further noted that all the Union was interested in was collecting Union dues, and while the Union promised better wages and benefits, Wal-Mart would have the final say and that if they signed a union authorization card, they would be signing away all of their rights.833 After these initial meetings, Wal-Marts Labor Relations Team continued to hold large- and small-group store meetings to discuss union formation.834 For example, the talking points prepared for the manager charged with running a July 24, 2001, meeting stated, in relevant part:
According to the talking points prepared for a July 26, 2001, meeting, the manager running the meeting explained to workers that union dues for workers at the store would be approximately $28 a pay period or $56 a month or $728 a year for someone to speak for you. The talking points added, Personally, I dont think you should have to pay your hard-earned money to a union when your [sic] not guaranteed anything in return. The talking points continued:
During the store meetings, Williams told the Aiken workers that he knew there was talk about a union at the store but that they should not pay attention to what the Union was saying because the Company was there to help the employees and they would not steer the employees wrong.837 Videos Highlighting Negative Consequences of Union FormationOn the afternoon that Williams arrived at the Aiken store, he began showing workers a video entitled Sign Now, Pay Later, which explained union authorization cards.838 This was reportedly the first of several videos addressing union formation shown to the workers. Liz Boyd estimated that within a week, we saw three to four videos like this.839 Workers told Human Rights Watch that the videos were roughly thirty minutes long and that the workers were called to view them in groups of between ten and twenty. As in the other cases, after each viewing, there was a question and answer period. According to Wal-Mart internal documents, one video addressed collective bargaining and included a segment entitled Management has Rights, Too, during which the narrator stated, If the unions making promises that are too good to be true, they probably are.840 Talking points produced for the management representatives showing the video told them to explain to workers prior to viewing, We want you to have all the facts about unions, and more fully understand the process of how the union tries to get what they have promised to people. And what power they really have to get the things they have promised. The talking points instructed the management representative to tell workers after the video concluded:
Aiken workers explained that although one video was about Sam and how the company started and how Wal-Mart looks out for its people,842 most of the videos contained union-related dramatizations or skits. The videos were similar to those viewed by workers in the Greeley, Colorado, Kingman, Arizona, and New Castle, Pennsylvania, cases. They told workers that unions would not help them in any kind of way and just wanted [their] money and cautioned that workers would no longer be able to speak for themselves if they organized.843 Boyd recalled one video skit in which someones plant got voted union and they got less benefits than before the union. They didnt gain anything, but they still take union dues out of your salary.844 She recalled another skit:
MacDonald described watching the same skit that Greeley, Colorado, Wal-Mart worker Christine Stroup recalled for Human Rights Watch, in which a man holding a baseball notes that it would be worth a lot more with players signatures, just like union cards are worth more when signed. MacDonald added:
Boyd concluded, When they send union busters in, they show you endless videos and tell you that even if . . . the store votes union, Wal-Mart still has the right to do what they want to do. They tell you that even if you vote in the union, you might not get everything the union promises.847 Discriminatory Application of Solicitation RulesNear the end of July 2001, store manager Mallett called Barbara Tippy Hall, a worker in the Aiken stores accounting department, into his office and disciplined her for violating Wal-Marts solicitation policy.848 Mallett testified at the NLRB hearing in the case that he gave Hall a verbal coaching, the first phase of Wal-Marts disciplinary procedures, because several employees had reported to him that she had asked them for their telephone numbers and asked whether they would be interested in supporting the union. Mallett explained that he showed Hall Wal-Marts solicitation policy and told her that she could not solicit or detain others while they were working. Hall testified, however, that Mallett told her that she couldn't talk on or off the clock in the store on the sales floor and if he caught me talking to anyone that he was going to write me up for anything that he seen fit.849
Around the same time, Mallett also called Kathleen MacDonald into his office.850 Mallett explained at the NLRB hearing that he also read MacDonald the companys solicitation policy and gave her a verbal coaching for violating that policy by asking two bakery workers for their telephone numbers during work time to gauge their interest in attending a union meeting. Mallett testified that he told MacDonald that Wal-Mart does not allow solicitation for the work areas and when you're on the clock.851 Like Hall, however, MacDonald stated at the hearing that Mallett told her that she was not allowed to speak on the clock in the store about anything, work related or non-work related.852 MacDonald told Human Rights Watch, I was not allowed to speak at all on the sales floor. I was only allowed to speak at lunch and on break.853 Both Hall and MacDonald asserted at the hearing that Aiken Wal-Mart employees and supervisors regularly spoke about non-work-related subjects with each other during work time and that before the July meeting, they had never been told that there was a limit on what employees could discuss with each other on the sales floor.854 MacDonald further noted that almost every day she had spoken with managers on the sales floor about non-work-related topics. She told Human Rights Watch, I had always talked to people. I was talking to one associate about her doctor, another about her beauty shop, one about football. . . . Tim [Mallett] and I would talk all the time about [US professional] football. Hes a [New Orleans] Saints fan, and Im a [New England] Patriots fan.855 Mallett acknowledged that the solicitation policy in effect at the time did not ban workers from talking with each other about non-work-related matters or exchanging telephone numbers while working, as long as it did not interfere with their work.856 At the NLRB hearing, Wal-Mart denied that Mallett issued a no-talking rule to MacDonald and Hall and that he applied the solicitation policy disparately against them. Wal-Mart argued that MacDonald and Hall simply took the verbal warning to an extreme when they interpreted it as banning them from talking at any time on the sales floor.857 The administrative law judge rejected Wal-Marts arguments:
The ALJ continued:
In addition, other workers and outside vendors regularly violated the solicitation policy when they sold items, according to MacDonald:
The NLRB administrative law judge held:
The ALJ found that Wal-Mart had acted unlawfully and ordered the company to remove any reference to MacDonalds and Halls verbal reprimands from its files and to notify Hall and MacDonald that it had done so and that the company would not use the warnings against them in the future. The judge further ordered Wal-Mart to rescind the no-talking rule and advise the workers of the change.862 Addressing Worker Concerns to Undermine Union ActivityIn early May, shortly after becoming Aiken store manager, Mallett granted two employees requests for raises after reviewing their salaries and determining that they were below the levels appropriate for their areas and seniority.863 After the adjustments, Mallett reportedly told district manager Torgerson and regional personnel manager Cannon that he had reviewed a report listing every worker, their pay, their areas, and their length of service and thought that pay-rate problems were widespread. Mallett asked Cannon for a survey that would indicate each workers tenure with the company, job responsibilities, and salary. Cannon requested approval for the survey from Wal-Marts regional and divisional offices shortly after arriving at the store and only after learning that MacDonald believed that pay equity was a major concern for workers.864 The administrative law judge in the case observed, In other words, only after a member of the Labor Relations Team was told by chief union adherent MacDonald that pay was an issue, were concrete steps takenworking up a wage compression reportto reach a determination with respect to any pay increase.865 At the end of June, Wal-Mart managers held another meeting for between forty and sixty workers in the break room.866 Graham testified at the hearing that at the meeting, Mallett acknowledged that there were problems at the store and said that he was going to straighten them out. In particular, Mallett said that there were things with the raises that needed to be taken care of and that he would ask assistant manager Bill Shriver to talk to the employees to find out where everybody needed to be, get things straightened out, and bring everybody up to standards. At the NLRB hearing, Mallett denied ever promising wage increases.867 The wage compression salary adjustmentsthe first of their kind at Aikenwere approved and went into effect after managers learned of union activity at the store. Ninety of the roughly 425 workers reportedly received raises and were told that the increases were not based on merit but were designed to narrow the pay gap between long-time Wal-Mart workers and new employees.868 Commenting on the wage increases, Graham told Human Rights Watch, I think the raises were because of the union. Otherwise, they wouldnt have gotten them. We hadnt been getting raises like we were supposed to in a timely manner. She added that she thinks that Wal-Mart granted raises so that Aiken workers would think they were giving them more. Why would this happen when the union was there? They [workers] were dumb enough to fall for the few cents when they could have gotten more with the union helping them.869 Boyd agreed:
At the hearing, Wal-Mart denied that the wage increases were an attempt to undermine union organizing efforts. The company claimed that the salary review began before the union activity, that wage increases were never discussed in the context of worker organizing, that the wide scope of the raises demonstrated that they were not used to squelch union organizing, and that there was no evidence that raises were awarded based on workers union sympathies. The company also noted that similar raises were given at two other stores around the same time, neither of which was facing a union campaign.871 The ALJ rejected Wal-Marts defense and found, It has not been shown that [Wal-Mart] began in earnest its effort to determine if employees should be granted a wage increase until after Wal-Mart was aware of the union organizing drive and MacDonald told Gneiting that pay was an issue. The ALJ further noted that only after union activity was known in the store did Mallett assure the workers that their salaries would be brought up to the standards on raises and then implement the promised raises. The ALJ concluded that Wal-Mart, therefore, acted illegally by promising and granting wage increases during the organizing drive to undermine support for the union.872 Impact of Wal-Marts Strategy to Defeat Union Organizing Current and former Aiken, South Carolina, Wal-Mart workers described to Human Rights Watch the effect of the Labor Relations Team meetings, the regular interactions with high-level management, the anti-union videos, and the other components of Wal-Marts strategy to derail organizing efforts at the store. Georgia Graham explained, Everybody just got hush, hush. They saw videos, and the talks, and the morning meetings, and everyone started getting afraid because no one had ever come from home office before to address any kind of concerns.873 Liz Boyd similarly explained: They send in Garth [and] Kirkits intimidating. They show you the films and tell you that even with the union, you might not be better off because of union dues. They make you feel like youre scum of the earth for thinking of doing that to your company.874 When Human Rights Watch asked workers why the union campaign in Aiken failed, most responded that workers were afraid of being fired for supporting the union. Pat Quinn answered, Everybody was scared of losing their jobs. They thought theyd lose their jobs because Wal-Mart would retaliate against you. . . . They thought they would fire people because of the union. She added, Id be in trouble if they knew I was sitting here talking to you.875 Chris Davis also explained, I think the union failed because a lot of them were scared to come forward, scared for their jobs. Thats exactly the reason I didnt sign up.876 She elaborated: I didnt go talk to anyone because Im scared of my job. . . . I never went to any union meetings. I was scared to. . . . Some of the girls, other associates, would say that if Wal-Mart would get wind of [my involvement with] the union, Id be fired.877 Post-scriptBetween June 28, 2001, and August 20, 2002, the UFCW filed and amended charges against Wal-Mart alleging illegal anti-union conduct at the Aiken, South Carolina, store. The NLRB issued a complaint on August 28, 2002, and on September 10, 2003, an NLRB administrative law judge found Wal-Mart guilty of four unfair labor practices: (1) promising to improve employee wages to undermine union support; (2) fulfilling that promise to grant raises; (3) promulgating and enforcing an unlawful no-talking rule to discourage union activity; and (4) disciplining Hall and MacDonald for violating the illegal no-talking rule. The judge ordered Wal-Mart to take the specific steps necessary to remedy the illegal conduct and to post a notice to employees at the store briefly stating their rights under the NLRA and promising to cease and desist from the specific unlawful activity cited in the ALJs decision.878 Wal-Mart reportedly complied, and on February 27, 2004, the case was closed. By then, organizing efforts and union support had long-since faded, however, and workers have made no subsequent attempts to form a union at the store. Loveland, Colorado, Store Number 953
The union organizing campaign at the Loveland, Colorado, Wal-Marts Tire and Lube Express began in November 2004 after Josh Noble, a TLE worker, contacted the UFCW.880 Noble explained to Human Rights Watch:
He added, After work, . . . I searched the Internet to see if anything would help me out. I kept getting the union web sites.881 Six TLE workers reportedly came to the first union meeting and signed union cards. Over the next few weeks, an additional three TLE workers reportedly signed cards, as well.882 On November 16, 2004, the union filed a petition for a union election in the TLE.883 Josh Noble and Alicia Sylvia, Loveland TLE workers and union supporters, believe that Wal-Mart learned about the union meeting roughly on the same day it was held.884 Noble told Human Rights Watch that on the day of the first union meeting, a fellow TLE worker, a younger guy, discussed the upcoming meeting with another TLE worker while on break. Noble recounted that the older TLE worker told his younger colleague that he cant do that and its not allowed at Wal-Mart and that he needed to speak to the store manager. According to Noble:
Approximately three Labor Relations Team members reportedly arrived at the store the day after the union meeting.886 Sylvia recounted, We had our first union meeting in . . . a restaurant on a Sunday night, and Monday morning, they were there. . . . Monday morning, the team came from Arkansas.887 Sylvia explained, The three [Labor Relations Team] guys, they would stay there all day. Sometimes one or two would fly home, but there was always one there. . . . They were there December through February, one person at least, sometimes two or three.888 Sylvia, Noble, and Henry Irwin (a pseudonym), another Loveland TLE worker speaking to Human Rights Watch on condition of anonymity, said that the Labor Relations Team members, as well as store management, would walk around the TLE and ask the workers how they were doing and whether they had any questions. According to Irwin, who told Human Rights Watch that he vehemently opposed the union at the Loveland, Colorado, TLE, Some co-managers and store managers and folks from other parts of the country would be there [in the TLE] a lot. They would walk around. How you doing?, trying to be someone you can go to talk to.889 Irwin further recalled for Human Rights Watch:
According to Loveland, Colorado, Wal-Mart workers, Wal-Mart engaged in a vigorous campaign to defeat worker organizing at the store, which included conduct that, if proven, would violate US law. For reasons unclear to Human Rights Watch, however, the union never filed unfair labor practice charges in this case, and the NLRB has therefore not ruled on the anti-union tactics recounted to Human Rights Watch. Group Meetings with Workers StorewideAccording to Noble and Sylvia, within a few days of the first union meeting, the Labor Relations Team had held store-wide meetings to discuss union formation with workers. Irwin and Sylvia recounted to Human Rights Watch how the Labor Relations Team focused on the collective bargaining process during the meetings and about how its like writing a bookeverything is up for bargaining, from the discount card to benefits to insurance. They explained that the team members emphasized that workers could lose benefits through the bargaining process, listing the various perks that could be taken away. Irwin commented, [It was] pretty much a scare tactic.891 Sylvia added:
Dividing the StoreSylvia explained to Human Rights Watch that she felt that Wal-Mart used the meetings with workers throughout the Loveland store to turn other associates against us to try to shame us into going the other way,893 making it increasingly unpleasant to be a union supporter at the store. She elaborated:
She added, All the other employees in the store turned on us. . . . So, we all stayed in groups. [We got] dirty looks, stares, commentsif looks could kill from other workers.895 Noble concurred and further noted that he believed that Wal-Mart adopted the same approach when Loveland managers assigned workers to small groups to view anti-union videos. Noble explained:
Videos and PowerPoint Presentations Highlighting Negative Consequences of Union Formation According to Noble and Irwin, Labor Relations Team members included videos and PowerPoint presentations about unions in their group meetings for workers during the organizing drive. Noble told Human Rights Watch, We saw the same videos we saw during orientation and two different videos and a slide show [a PowerPoint presentation]. The videos were the same deal as traininghow bad the union is, what happens to the store. He explained that the videos emphasized how tight-knit Wal-Mart employees are now and that, with the union, They couldnt be that way anymore. The videos also reportedly focused on collective bargaining and the possibility that wages could be cut drastically and then union dues on top of that.897 Irwin also described to Human Rights Watch a video that portrayed union organizers as persistent and harassing. He explained that the video asked, Do you want to be bothered at your house?898 He continued:
Irwin also recalled for Human Rights Watch another video that showed unions in the United States in the late 1930s and 1940s during World Wars I and II. According to Irwin, the videos suggested that at that time, there was a purpose for unions and what they did, but the union has outlived its purpose because companies now take better care of . . . employees. He explained that the video showed how the union is dying out. [It] gave a chart on how they were years ago and where theyre at now. The union wants Wal-Mart. It has a dwindling pot. [It] would go back up [with Wal-Mart].900 In addition to the videos, Noble described a PowerPoint presentation that the Labor Relations Team showed Loveland workers, noting that the primary goal appeared to be to provide a comparison between Wal-Mart workers current salaries and benefits and what union members make and pay towards benefits and dues. He explained that in an attempt to show how much better Wal-Mart is, the presentation would show bits and pieces of the union plan and then go into detail about Wal-Mart.901 Noble added, Every corner of the slide said Vote no, with a little box with a check mark that said Vote no.902 Noble and Sylvia told Human Rights Watch that after the initial meetings with workers storewide, the Labor Relations Team focused almost exclusively on the TLE workers until the days immediately preceding the election, at which point meetings with workers throughout the Loveland store resumed. Noble said that at that time, There was at least one small meeting a day. Towards the end, there were ten to fifteen people in each group. They always mixed TLE and store people. At those meetings, [there was] a refresher on why the Labor Relations Team was there and more of a question and answer session.903 Group Meetings with TLE WorkersNoble and Sylvia explained that between the initial meetings with workers throughout the store and the final meetings leading up to the election, the Labor Relations Team met with TLE workers roughly once or twice a week and occasionally even more frequently. Irwin recalled a total of between twelve and thirteen meetings, explaining that there would be two or three per week, but then the Labor Relations Team would leave [us] alone, then [come] back.904 He added, They almost forced you to go to the meetings.905 He said, I didnt want to go, . . . but they came and said, We missed you. Can we get you in?906 Irwin, Noble, and Sylvia told Human Rights Watch that these meetings highlighted the possibility of labor strikes. Noble explained, [They] stressed striking. If negotiations didnt go well, there was a good chance thered be a strike. . . . If the union didnt agree to something in the negotiations, we could be on strike for a few weeks or a couple of months, and we wouldnt get paid.907 Irwin recalled:
Sylvia added:
According to Irwin, the meetings also emphasized union dues and how unions spend workers money. He explained:
Commenting on the impact of the Labor Relations Team meetings, Sylvia explained that they even made her, a union supporter, fear a possibly terrible future if workers organized: They tried every scare tactic, and it was starting to work. . . . They had us really scared. At first, you can fight it in your mind, but then you just get more and more scared.911 Discriminatory Application of Solicitation RulesIrwin told Human Rights Watch that although it was okay for Wal-Mart to have meetings about the union, to have meetings about collective bargaining, . . . it was not okay for the union people to talk about it on the clock. Kind of a double standard. He elaborated:
Noble added that shortly after the Loveland TLE workers first union meeting, the Labor Relations Team met with TLE workers:
Surveillance of Union Activity and Discriminatory Policy ApplicationNoble, Sylvia, and Irwin also told Human Rights Watch that after the organizing drive began, Loveland store managers and Labor Relations Team members regularly were in the TLE to observe operations. According to the three workers, prior to the organizing campaign, store managers rarely visited the TLE. Irwin explained to Human Rights Watch, Store managers not in automotive came out to the TLE. [They] tried to be friendly. They didnt do that before.914 Similarly, Noble explained, Before, the main store managers were never around. We had our own [TLE] managers. Any time we had to go to managers, wed go to our own. But after the word union came about, [there was] always a store manager.915 The Labor Relations team also observed TLE activities, and according to Noble:
Sylvia added that she felt like they were constantly on your back to try to catch you doing something wrong. They make you nervous so you mess up.917 For example, Sylvia recounted to Human Rights Watch that on the same day she chose not to attend one of the management-run meetings about unions, she was disciplined for swearing in the TLE. She explained that although managers had told her that the meetings were voluntary, she knew that they wanted me to go.918 She told Human Rights Watch that the guys swear all the time in the TLE without being disciplined, and she attributed her reprimand to her support for the union and failure to attend the educational meeting. Irwin confirmed Sylvias suspicions that she was being closely watched because of her union activity, adding that because Wal-Mart knew that he was against the union, I was the person theyd go to for help collecting information on TLE workers. He explained that a few people gave information to managers. . . . I was one of the main ones, but there were a couple of others.919 He elaborated:
Irwin explained that he would also try to persuade some of the union supporters to reconsider their stance. He said, I volunteered on a couple of the associates. I was asked to work with a couple of them. I [would] tell them how Ive been taken care of, They will take care of things. Irwin summed up his role in Wal-Marts campaign against the union: The ones that [are] worth it, you try to work with them, and the ones that [are] not, you try to get them out. They [Wal-Mart managers] were scared. They [the union] had over 50 percent.921 Addressing Worker Concerns to Undermine Union ActivityAccording to Noble, Sylvia, and Irwin, after the union organizing began, Wal-Mart also started making improvements to the Loveland TLE facilities. Noble commented to Human Rights Watch, It was like a whole makeover, remodeling of the TLE area.922 Sylvia added, They put in washable panels and hung up pictures with certificates. They tried to spruce it up.923 Irwin explained, In the TLE, they minimized arguments, complaints to make sure the associates cant say they dont have proper tools or equipment. [They] made sure to minimize the situation to make sure it looks like [theyre] taking care of the associates. What are you crying about?924 Irwin elaborated:
Noble expanded further:
Post-scriptThe union election was held for the Loveland, Colorado, TLE on February 25, 2005. There were twenty eligible voters. Only one, Josh Noble, voted for the union, and seventeen voted against.927 On March 4, 2005, the UFCW filed objections to the conduct of the election but lost its case after it failed to satisfy the heavy burden of proof on a party seeking to have a Board-supervised election set aside.928 As discussed, no unfair labor practice charges were filed in this case, and as a result, the NLRB has not addressed the anti-union tactics that Loveland, Colorado, Wal-Mart workers described to Human Rights Watch, including those which, if proven, would be illegal: discriminatory application of the companys solicitation policy, spying on workers organizing activity, targeting union supporters for store policy violations, and improving conditions to undermine union support. The strategy Wal-Mart implemented to defeat union organizing at the Loveland, Colorado, Wal-Mart had a profound impact on Sylvia. She recounted to Human Rights Watch why, at the last minute, she decided to abstain from voting in the union election, though she had supported the organizing efforts throughout the campaign:
634 Human Rights Watch interview with Terry Daly, March 17, 2005. 635 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 636 Ibid. 637 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005. 638 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 639 Ibid. 640 Human Rights Watch interview with Brad Jones, former Wal-Mart TLE worker, Kingman, Arizona, March 15, 2005. 641 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 642 Human Rights Watch interview with Terry Daly, March 17, 2005. 643 Ibid. 644 Human Rights Watch interview with Julie Rebai, March 15, 2005. 645 Human Rights Watch interview with Brad Jones, March 15, 2005. 646 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003); see also, Human Rights Watch interview with Brad Jones, March 15, 2005. According to former department manager Julie Rebai, in one of the video scenarios, a Wal-Mart worker was shown saying, Have you heard that so-and-so talked to a union? Why would she ever feel the need to give her hard-earned money to an outsider? We have the Open Door Policy, no retaliation. Human Rights Watch interview with Julie Rebai, March 15, 2005. 647 Human Rights Watch interview with Gloria Bollinger, March 16, 2005. 648 Human Rights Watch interview with Terry Daly, March 17, 2005. 649 Human Rights Watch interview with Carol Anderson, March 16, 2005. 650 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 651 Human Rights Watch interview with Tony Kuc, March 16, 2005. Tony Kuc was ultimately fired from Wal-Marts Kingman facility, but the ALJ in this case found him a credible witness, stating that [w]hile it is clear to me that Kuc harbors considerable animosity towards [Wal-Mart], I believe he testified truthfully. . . . [H]is testimony appeared to be genuine, without exaggeration or embellishment. Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 652 Human Rights Watch interview with Brad Jones, March 15, 2005. 653 Human Rights Watch interview with Julie Rebai, March 15, 2005. 654 Human Rights Watch interview with Terry Daly, March 17, 2005. 655 Ibid. 656 Human Rights Watch interview with Gloria Bollinger, March 16, 2005. 657 Human Rights Watch interview with Brad Jones, March 15, 2005. 658 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003); see also, Human Rights Watch interview with Julie Rebai, March 15, 2005. 659 Human Rights Watch interview with Terry Daly, March 17, 2005. 660 Ibid. 661 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 662 Human Rights Watch interview with Brad Jones, March 15, 2005; see also, Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 663 Human Rights Watch interview with Brad Jones, March 15, 2005. 664 Human Rights Watch interview with Julie Rebai, March 15, 2005. 665 James Bandler and Ann Zimmerman, Petty Cash: A Wal-Mart Legends Trail of Deceit, The Wall Street Journal, April 8, 2005;Michelle Bradford, Former No. 2 at Wal-Mart avoids prison, The Arkansas Democrat-Gazette, August 12, 2006; Marcus Kabel, Millionaire admits he used Wal-Mart like personal piggy bank,Associated Press Newswires, February 1, 2006. Coughlin pleaded guilty to wire fraud and tax evasion in early 2006 and was sentenced to twenty-seven months of home confinement and five years probation. Bradford, Former No. 2 at Wal-Mart avoids prison, The Arkansas Democrat-Gazette; Kabel, Millionaire admits he used Wal-Mart like personal piggy bank,Associated Press Newswires. 666 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 667 Human Rights Watch interview with Tony Kuc, March 16, 2005. 668 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005. 669 Ibid. 670 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 671 Human Rights Watch interview with Julie Rebai, March 15, 2005. 672 Human Rights Watch interview with Terry Daly, March 17, 2005. 673 Ibid. 674 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 675 Ibid. 676 Ibid. 677 Ibid. 678 Human Rights Watch interview with Julie Rebai, March 15, 2005. 679 Ibid. 680 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005; see also Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 681 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005. 682 Ibid.; see also, Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 683 Human Rights Watch interview with Tony Kuc, March 16, 2005. 684 Ibid. 685 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 686 Ibid. 687 Human Rights Watch interview with Terry Daly, March 17, 2005. 688 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005. 689 Human Rights Watch interview with Larry Adams, March 16, 2005. 690 Human Rights Watch interview with Brad Jones, March 15, 2005. 691 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 692 Ibid. 693 Ibid. 694 Human Rights Watch interview with Brad Jones, March 15, 2005. 695 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005. 696 Human Rights Watch interview with Tony Kuc, March 16, 2005. 697 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 698 Ibid. 699 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005. 700 Human Rights Watch interview with Tony Kuc, March 16, 2005. 701 Human Rights Watch interview with Brad Jones, March 15, 2005. 702 Human Rights Watch interview with Terry Daly, March 17, 2005. 703 Ibid. 704 Ibid. 705 Ibid. 706 Ibid. 707 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005. 708 Human Rights Watch interview with Tony Kuc, March 16, 2005. 709 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 710 Ibid. 711 Human Rights Watch interview with Brad Jones, March 15, 2005. 712 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 713 Ibid. 714 Ibid. 715 Human Rights Watch interview with Gloria Bollinger, March 16, 2005. 716 Human Rights Watch interview with Julie Rebai, March 15, 2005. 717 Human Rights Watch interview with Terry Daly, March 17, 2005. 718 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005. 719 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 720 Human Rights Watch interview with Vicki Wood, March 16, 2005. 721 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 722 Human Rights Watch interview with Tony Kuc, March 16, 2005. 723 Human Rights Watch interview with Larry Adams, March 16, 2005. 724 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 725 Ibid. 726 Ibid. 727 Order Severing and Remanding and Notice to Show Cause, Wal-Mart Stores, Inc., NLRB, Case Nos. 28-CA-16832, et al. (July 6, 2005). 728 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 729 Ibid. 730 Ibid. 731 Order Severing and Remanding and Notice to Show Cause, Wal-Mart Stores, Inc., NLRB, Case Nos. 28-CA-16832, et al. (July 6, 2005). 732 Ibid. 733 Ibid. The NLRB found the new language lawful, however. Advice Memorandum from NLRB, Office of the General Counsel, Wal-Mart Stores, Inc., Case 28-CA-19476, August 11, 2004. 734 Order Severing and Remanding and Notice to Show Cause, Wal-Mart Stores, Inc., NLRB, Case Nos. 28-CA-16832, et al. (July 6, 2005). 735 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 736 Ibid. 737 Ibid. 738 Ibid. 739 Ibid. 740 Ibid. 741 Human Rights Watch interview with Brad Jones, March 15, 2005. 742 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 743 Ibid. The ALJ found Kucs testimony to be truthful, noting that he testified in a generally credible manner, which was sometimes favorable to [Wal-Mart]. . . . He held up well under questioning. He seemed candid and believable. . . . [H]e was attempting to testify accurately, without exaggeration or embellishment. His testimony had the ring of authenticity about it. Ibid. 744 Human Rights Watch interview with Tony Kuc, March 16, 2005. 745 Human Rights Watch interview with Julie Rebai, March 15, 2005. 746 Ibid. 747 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 748 Human Rights Watch interview with Brad Jones, March 15, 2005. 749 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 750 Ibid. 751 Human Rights Watch interview with Larry Adams, March 16, 2005. 752 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 753 US DOL, FAQs About COBRA Continuation Health Coverage, undated, http://www.dol.gov/ebsa/faqs/faq_consumer_cobra.html (accessed December 5, 2006). 754 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003). 755 Ibid. 756 Ibid. 757 Ibid. 758 Ibid. 759 Ibid. 760 Order Transferring Proceedings to the NLRB, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (March 30, 2007). On September 29, 2006, the five-member Board found that Wal-Marts documents and files related to its Remedy System were not protected from disclosure by the attorney-client privilege, as the ALJ had previously ruled and, therefore, should be admitted into evidence and considered in the ALJs decision. The Board, therefore, remanded the case to the ALJ for the purpose of reopening the record to receive relevant evidence, making findings, and taking further appropriate action. On March 30, 2007, the ALJ upheld all his previous findings of fact and conclusions of law, as well as his recommended order and transferred the matter back to the Board. Ibid.; Wal-Mart Stores, Inc., 348 NLRB No. 46 (2006). 761 Human Rights Watch interview with John Weston, March 17, 2005. 762 Ibid. 763 Ibid. 764 Ibid. 765 Human Rights Watch interview with Michael Martino, organizer, UFCW Local 880, Cleveland, Ohio, August 9, 2005. 766 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 767 Human Rights Watch interview with Andrew Baylor, Wal-Mart hourly manager speaking on condition of anonymity, New Castle, Pennsylvania, August 9, 2005. 768 Human Rights Watch interview with Joshua Streckeisen, August 9, 2005. 769 Ibid. 770 Ibid. 771 Human Rights Watch interview with Andrew Baylor, August 9, 2005. 772 Human Rights Watch interview with Joshua Streckeisen, August 9, 2005. 773 Ibid. 774 Human Rights Watch interview with Andrew Baylor, August 9, 2005. 775 Human Rights Watch interview with Joshua Streckeisen, August 9, 2005. 776 Ibid. 777 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 778 Ibid. 779 Ibid. 780 Human Rights Watch interview with Joshua Streckeisen, August 9, 2005. 781 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 782 Ibid. 783 Ibid. 784 Human Rights Watch interview with James King, former Wal-Mart TLE worker, New Castle, Pennsylvania, August 9, 2005. 785 Human Rights Watch interview with Joshua Streckeisen, August 9, 2005. 786 Wal-Mart presented a number of other arguments defending its installation of new TLE equipment, including that the new equipment did not grant workers a benefit and should, therefore, not be considered to affect working conditions and that some of the new equipment cost only a nominal amount. The ALJ rejected these arguments, noting that the poor equipment had directly affected workers terms and conditions of employment by creating safety problems and inefficiency and that while certain equipment items purchased were of nominal value, the entire package of equipment was far from nominal. Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 787 Ibid. 788 Ibid. 789 Ibid. 790 Ibid. 791 Ibid. 792 Ibid. 793 Ibid. 794 Human Rights Watch interview with Joshua Streckeisen, August 9, 2005. 795 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 796 Human Rights Watch interview with Michael Martino, August 9, 2005. 797 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 798 Ibid. 799 Ibid. 800 Ibid. 801 Ibid. 802 Human Rights Watch interview with Michael Martino, August 9, 2005. 803 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 804 Human Rights Watch interview with Michael Martino, August 9, 2005. 805 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 806 Human Rights Watch interview with Michael Martino, August 9, 2005. 807 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 808 Ibid. 809 Ibid. 810 The first charges were filed on August 28, 2000. The charges were subsequently amended five times on: October 31, 2000; October 25, 2001; December 13, 2001; April 15, 2002; and May 31, 2002. 811 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003). 812 In their joint motion to withdraw their exceptions, the parties requested certain minor changes to the judges proposed order and notice to employees. The NLRB granted the joint motion and the request for a slightly amended remedy. Wal-Mart Stores, Inc., NLRB, Case No. 6-CA-31556 (September 30, 2004). 813 See Vera Fedchenko, Wal-Mart tire workers vote down unionization, Tire Business, February 28, 2005; Pamela Gaynor, Wal-Mart workers in auto unit in New Castle vote down union, Pittsburgh Post-Gazette, February 12, 2005; Human Rights Watch interview with Michael Martino, August 9, 2005. 814 Letter from Tovar, October 5, 2006. The letter further noted that No post-election objections or charges were filed by the union or any individual. Ibid. 815 Human Rights Watch interview with Kathleen MacDonald, June 12, 2005. 816 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 817 Human Rights Watch interview with Kathleen MacDonald, June 12, 2005. 818 Human Rights Watch interview with Pat Quinn, June 13, 2005. 819 Human Rights Watch interview with Georgia Graham, June 15, 2005. 820 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 821 Human Rights Watch interview with Kathleen MacDonald, June 12, 2005. 822 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 823 There is contradictory testimony regarding whether Mallett or Torgerson called the Union Hotline, but there is no dispute that one of them made the call. Ibid. 824 Ibid. 825 Wal-Mart Stores, Inc., Store Meeting Talking Points, Store #514, Aiken, South Carolina, June 19, 2001; see also, Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 826 Hearing transcript, Wal-Mart Stores, Inc., NLRB Region 11, Case Nos. 11-CA-19105, 11-CA-19121 (February 4, 2003), vol. II, pp. 294-95; Hearing transcript, Wal-Mart Stores, Inc., NLRB Region 11, Case Nos. 11-CA-19105, 11-CA-19121 (February 5, 2003), vol. III, pp. 491-92; see also, Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 827 Hearing transcript, Wal-Mart Stores, Inc., NLRB Region 11, Case Nos. 11-CA-19105, 11-CA-19121 (February 4, 2003), vol. II, p. 296. 828 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 829 Ibid. 830 Human Rights Watch interview with Liz Boyd, June 15, 2005. 831 Ibid. 832 Human Rights Watch interview with Kathleen MacDonald, June 12, 2005. 833 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 834 Ibid. 835 Wal-Mart Stores, Inc., Store Talking Points, Store 515 [sic], Aiken, South Carolina, July 24, 2001 (on file with Human Rights Watch). 836 Wal-Mart Stores, Inc., Store Talking Points, #514, Aiken, South Carolina, July 26, 2001 (on file with Human Rights Watch). 837 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 838 Ibid. 839 Human Rights Watch interview with Liz Boyd, June 15, 2005. 840 Wal-Mart Stores, Inc., Talking Points: Collective Bargaining, Store #514, Aiken, South Carolina, July 31, 2001 (on file with Human Rights Watch). 841 Ibid. 842 Human Rights Watch interview with Liz Boyd, June 15, 2005. 843 Human Rights Watch interview with Pat Quinn, June 13, 2005; Human Rights Watch interview with Georgia Graham, June 15, 2005; Human Rights Watch interview with Chris Davis, June 15, 2005; Human Rights Watch interview with Liz Boyd, June 15, 2005. 844 Human Rights Watch interview with Liz Boyd, June 15, 2005. 845 Ibid. 846 Human Rights Watch interview with Kathleen MacDonald, June 12, 2005. 847 Human Rights Watch interview with Liz Boyd, June 15, 2005. 848 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 849 Hearing transcript, Wal-Mart Stores, Inc., NLRB Region 11, Case Nos. 11-CA-19105, 11-CA-19121 (February 3, 2003), vol. I, pp. 33-34. 850 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 851 Hearing transcript, Wal-Mart Stores, Inc., NLRB Region 11, Case Nos. 11-CA-19105, 11-CA-19121 (February 3, 2003), vol. II, p. 373. 852 Ibid., vol. I, p. 72. 853 Human Rights Watch interview with Kathleen MacDonald, June 12, 2005. 854 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 855 Human Rights Watch interview with Kathleen MacDonald, June 12, 2005. 856 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 857 Ibid. 858 Ibid. 859 Ibid. In a 2004 decision, however, the five-member NLRB upheld an employers ban on solicitation and the promotion of support for organizations, activities, or causes. The judge found the rule valid on its face and as applied against a union supporter, noting that an employer could lawfully permit talking in the workplace about matters such as Sundays football game, while at the same time banning all talk that attempted to persuade fellow employees to support a cause, such as union formation. Washington Fruit and Produce Company, 343 NLRB No. 125 (2004). 860 Human Rights Watch interview with Kathleen MacDonald, June 12, 2005. 861 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 862 Ibid. 863 Ibid. 864 Ibid. 865 Ibid. 866 Ibid. 867 Ibid. 868 Ibid. 869 Human Rights Watch interview with Georgia Graham, June 15, 2005. 870 Human Rights Watch interview with Liz Boyd, June 15, 2005. 871 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 872 Ibid. 873 Human Rights Watch interview with Georgia Graham, June 15, 2005. 874 Human Rights Watch interview with Liz Boyd, June 15, 2005. 875 Human Rights Watch interview with Pat Quinn, June 13, 2005. 876 Human Rights Watch interview with Chris Davis, June 15, 2005. 877 Ibid. 878 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003). 879 Human Rights Watch interview with Alicia Sylvia, July 15, 2005. 880 Human Rights Watch interview with Josh Noble, July 16, 2005. 881 Ibid. 882 Ibid. 883 Hearing Officers Report and Recommendation on Objections, Wal-Mart Stores, Inc., and UFCW Local 7, NLRB Region 27, Case No. 27-RC-8356 (April 27, 2005). 884 Human Rights Watch interview with Josh Noble, July 16, 2005; Human Rights Watch interview with Alicia Sylvia, July 15, 2005. 885 Human Rights Watch interview with Josh Noble, July 16, 2005. 886 Ibid.; Human Rights Watch interview with Alicia Sylvia, July 15, 2005. 887 Human Rights Watch interview with Alicia Sylvia, July 15, 2005. 888 Ibid. 889 Human Rights Watch interview with Henry Irwin, July 19, 2005. 890 Ibid. 891 Ibid. 892 Human Rights Watch interview with Alicia Sylvia, July 15, 2005. 893 Ibid. 894 Ibid. 895 Ibid. 896 Human Rights Watch interview with Josh Noble, July 16, 2005. 897 Ibid. 898 Human Rights Watch interview with Henry Irwin, July 19, 2005. 899 Ibid. 900 Ibid. 901 Human Rights Watch interview with Josh Noble, July 16, 2005. 902 Ibid. 903 Ibid. 904 Human Rights Watch interview with Henry Irwin, July 19, 2005. 905 Ibid. 906 Ibid. 907 Human Rights Watch interview with Josh Noble, July 16, 2005. 908 Human Rights Watch interview with Henry Irwin, July 19, 2005. 909 Human Rights Watch interview with Alicia Sylvia, July 15, 2005. 910 Human Rights Watch interview with Henry Irwin, July 19, 2005. 911 Human Rights Watch interview with Alicia Sylvia, July 15, 2005. 912 Human Rights Watch interview with Henry Irwin, July 19, 2005; see also, Human Rights Watch interview with Josh Noble, July 16, 2005. 913 Human Rights Watch interview with Josh Noble, July 16, 2005. 914 Human Rights Watch interview with Henry Irwin, July 19, 2005. 915 Human Rights Watch interview with Josh Noble, July 16, 2005. 916 Ibid. 917 Human Rights Watch interview with Alicia Sylvia, July 15, 2005. 918 Ibid. 919 Human Rights Watch interview with Henry Irwin, July 19, 2005. 920 Ibid. 921 Ibid. 922 Human Rights Watch interview with Josh Noble, July 16, 2005. 923 Human Rights Watch interview with Alicia Sylvia, July 15, 2005. 924 Human Rights Watch interview with Henry Irwin, July 19, 2005. 925 Ibid. 926 Human Rights Watch interview with Josh Noble, July 16, 2005. 927 Hearing Officers Report and Recommendation on Objections, Wal-Mart Stores, Inc., NLRB Region 27, Case No. 27-RC-8356 (April 27, 2005); Letter from Tovar, October 5, 2006. 928 Hearing Officers Report and Recommendation on Objections, Wal-Mart Stores, Inc., NLRB Region 27, Case No. 27-RC-8356 (April 27, 2005). The objections alleged that a TLE service technician threatened Noble in the presence of other TLE workers due to his union sympathies and that Wal-Mart failed to take appropriate action and also claimed that Wal-Mart hired and transferred additional employees into the unit to dilute [union] support. On April 27, 2005, the NLRB hearing officer recommended that the objections be overruled, and on May 25, 2005, the NLRB adopted the recommendation and certified the results of the election. Ibid.; Decision and Certification of Results of Election, Wal-Mart Stores, Inc., NLRB, Case No. 27-RC-8356 (May 25, 2005). 929 Human Rights Watch interview with Alicia Sylvia, July 15, 2005. |