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X. Case Studies II: Defeating Union Organizing Through Tactics Comporting with and Running Afoul of US Law

The many components of Wal-Mart’s 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-Mart’s 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

In private meetings, they said we need to keep anyone out who is involved. . . .  Anyone caught accepting the [union] cards needed to be fired for taking them—safety violation, work ethic, too long breaks.  We were supposed to find a reason to get them fired.

—Terry Daly, former Kingman, Arizona, Wal-Mart worker.⁶³⁴

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-Mart’s 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, store’s 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 Workers

The 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:

At whole store meetings, they were really aggressive.  Vicky and Kirk would take over, . . . but they always left the door open, saying never hold back from exploring going [with] the union, but it’s not in our best interests as a company. . . .  They would talk about the great things that Wal-Mart does for people and . . . what the union couldn’t do and what Wal-Mart could.⁶⁴³

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 won’t 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 Policy

The Labor Relations Team also highlighted Wal-Mart’s 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 didn’t 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 Formation

The 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 didn’t believe in unions.  Wal-Mart doesn’t 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, “they’ll promise you the world, but they can’t deliver. . . .  [You will have] paid them your hard-earned money, but they can’t deliver and won’t put it in writing.”  Rebai concluded, “I truly believed it because that’s what I was told over and over.”⁶⁵³  

Several other Kingman workers recounted to Human Rights Watch their specific recollections of the videos:

They showed union protesters picketing in front of stores, blocking entrances.  Vehicles couldn’t go in and out. . . .  It made us angry as associates that they [the union] would stand in the way of our future and take food off our tables.⁶⁵⁴

The videos that we saw were of a violent nature.  They showed us a film about how truckers got shot, said the union did it.  They said the union shot the truckers and slashed their tires.⁶⁵⁵

They were saying, like, the union [would] be the third party, but you should be able to [stand] up for yourself.  The union owned you.  They control how much money you make.  They’re your voice, but you should be sticking up for yourself one on one.⁶⁵⁶

[They showed] a negative view of union organizers. . . .  I remember most that they tried to make organizers out to be . . . relentless—that they pound you, that they make threats like, “You better come on board or else,” Hoffa-style stuff, . . . strong arming.⁶⁵⁷

Highlighting Negative Consequences of Union Formation: Warnings about Collective Bargaining

The 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 Watch’s 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 Team’s 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 won’t 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:

So, when you hear you’ll lose all that, of course you don’t want a union and of course you want union supporters out. . . .  We were being educated by a legal team whose verbiage was articulate. . . .  I was like, “Well, heck, I don’t want anyone to bring in [that] bad element.”⁶⁶⁰

High-Level Management Tactics

Several local, regional, and corporate managers, including Wal-Mart’s regional vice president of operations at the time Jim Wilhelm and Wal-Mart’s 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 I’m going to leave my number up there in case there are problems.’”⁶⁶²  Jones described his impression of Coughlin, saying:

Tom comes in, a big and intimidating old guy.  I felt like I was five years old again and being scolded by my father.  [This] big guy walks in.  He looks at us all and says these are all lies. . . .  He flies in. . . .  He made statements, “Wal-Mart doesn’t believe in third-party representation.”  You hear that script over and over again from all of them.⁶⁶³

Rebai added, “Tom Coughlin came to the store. . . .  He explained why we as a family don’t 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 Training

While 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:

As soon as this [the union petition] happened, they pulled all the managers and assistant managers from our store—two or three days at a conference room in a hotel.  We had to go in and have one-on-one meetings with Kirk, Vicky.  At the meetings in the hotel, [we were told] all the possible things that could happen if the union got in, [for example], how the store would run with a steward. . . .  The union will run the store.  They will dictate the store.  The store manager [will] respond to the steward, not the district manager. . . .  [Managers will] not give merit raises freely, everything negotiated. . . .  [We]could lose our store discount.  [We] could lose other benefits.  Everything [will be] negotiated from then on. . . .  A scare tactic.⁶⁶⁸

He added that at the off-site meeting, managers were also told “how to prevent [the union from] getting in there—be alert, listen, be sympathetic.”  He concluded, “They drilled it into you that you don’t 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-Mart’s 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: . . . ‘We’re family, and we don’t need anyone from outside telling us what to say—we have the Open Door Policy.’”  Rebai recalled the message that she believed that she and other managers were supposed to convey to workers:

“Why do you want someone to talk for you when you can go to a manager through the Open Door? . . .  Why do you need someone to take your hard-earned money? . . .  Why do you think you need someone to speak for the union?  Can’t you talk to me?  Do I make you uncomfortable?  If you have concerns, questions, thoughts, or ideas, just come to me, and I’ll help.”⁶⁷¹ 

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 Surveillance

According to the NLRB administrative law judge hearing the Kingman case, “All of [Wal-Mart’s] 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 company’s legal but “elaborate system” for tracking information regarding the employees’ union sympathies to illegal surveillance by managers. 

Tracking System

During 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 couldn’t go home ‘till this meeting was over.”⁶⁸¹  The former management team member explained:

They’d go around [at the meetings].  We’d all give our information, any information on associates talking about the union.  We were basically spies, spies for the store, spies for the company. . . .  We had to run our departments, do everything normally, and then be spies for them.  The stress level was so high.⁶⁸² 

Former assistant manager Tony Kuc added:

We were supposed to carry a card around and if we heard anything, write it down.  If an employee came to us, write it down, not to spy, but in a roundabout way, it is spying.  [We were supposed to] see what the problems are, what issues, . . . write it down and then help them resolve the issues.⁶⁸³

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 Workers

During 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 Scott’s 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 Scott’s and other managers’ presence in the TLE:

Scott worked out there with us, . . . trying to find out what was going on, just eyeballing everything. . . .  I had so many bosses around me, I couldn’t believe it.  They weren’t there to help me.  They were there to bug me.  It was very intimidating.⁶⁸⁹

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 employees were obviously aware that his lack of experience made him unqualified for that position.  They would have reasonably assumed that as a regional personnel manager, his presence in the TLE was primarily intended to observe whether they were engaged in union activity.  This could only have had the intended result of “chilling” their union activity.⁶⁹¹

The judge added:

Scott's presence in the TLE must have had a significant impression on the automotive service technicians.  Here was a regional personnel manager, who had arrived immediately after the filing of the petition in the company of other labor relations managers.  Despite his lack of experience working in a TLE, he was assigned to function as their interim manager.  Not only was he physically present all day long in the TLE, but . . . he frequently engaged them in conversation about the operation of the TLE.  The natural impact of Scott's presence on the technicians would have been to hinder their union activity.⁶⁹²

The ALJ determined that Scott’s “primary purpose in being physically present in the TLE was to gather information about the employees’ union activity” and that “Scott’s 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 TLE—all 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:

I was over in the TLE. . . .  I was supposed to go off in my clothes and learn to change oil, change tires, and go work alongside them in the TLE, run the cash register, take people’s money—an hour or two a day in the TLE.  There were six or seven assistant managers, and all had to go in the TLE.⁶⁹⁵

Assistant store manager Tony Kuc similarly recounted:

They had us go work with employees after the petition was filed.  They never said for spying, but I think that was part of it—[also] to show employees that we would help out.  Before, they didn’t send people out from inside. . . .  We were a deterrent to union people.  They never said that, but we read between the lines.  It was so obvious.  They sent me out there a lot. . . .  In my mind, why else would they put us all out there but to spy?  If they really put us out there to help, . . . why [is it] not done anymore? . . .  They even had the store co-managers go out there and work.⁶⁹⁶

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 union’s 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 

Cameras

According 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:

As managers, we knew where the cameras were at.  Added cameras [were] put into the TLE and redirected to certain areas in the shop area.  No one knew of it but management. . . .  We added cameras in the training room where we showed videos to get associates’ response.  [We] could tell a lot by their reaction to the videos. . . .  More cameras were put in in key areas all over the store.  The cameras outside before would just pivot; now [they were] activated.⁶⁹⁹

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.

Addressing Worker Concerns to Undermine Union Activity

According 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 [we’re] 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 Fixed

Before 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.  That’s 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-Mart’s] 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 Bonuses

Non-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:

When the union mess was going on, they handed out a lot of “great job” buttons to people who didn’t deserve it.  If [you] trade them in, you get one share of stock. . . .  They started handing them out a lot more.  Before, they didn’t hand them out very much.  Before the union, you were lucky to get one every six months. . . .  You got Zaps a lot more, [too], two to three times a week—“Zap” means free soda or free drink.  [They] went up big time after the union.⁷¹⁵

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:

After the union hit the store, everyone in the store got a raise, except managers. . . .  Everyone in the store got adjusted after the union petition was filed, unless [they were] making too much. . . .  The TLE got raises, too. . . .  After the union petition was filed, management was told no merit raises.  We can’t raise wages because the union will use that against us.  But then they said [they would] use . . . as [an] excuse “cost-of-living raises.”⁷¹⁸

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 Loss

Wal-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 petition—no 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 can’t 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, we’ll 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-Mart’s 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 

Discriminatory Application of Non-Harassment Policies

Wal-Mart’s non-harassment policy prohibits harassment based on a worker’s 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 Bowman’s 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 Bowman’s 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:

The two union supporters were not afforded the protection of [Wal-Mart’s] non-harassment policy, because [Wal-Mart] was not willing to eliminate or antagonize its anti-union employee. . . .  [Wal-Mart’s] failure to act decisively . . . could only have been because it was very reluctant during the election campaign to do any thing that might cost [it] the vote of Mitch Bowman.  Accordingly, I conclude that [Wal-Mart] has discriminated against Brooks and Lewis by disparately applying and enforcing its non-harassment policies.⁷⁴⁰

Discussing Wal-Mart’s failure to punish Bowman for harassing Lewis and Brooks, Brad Jones commented, “You’re 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 Firing

As already noted, Brad Jones, who had worked at the Kingman, Arizona, Wal-Mart’s 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  

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?’  ‘What’s Brad’s connection to the union?’ . . .  I said I don’t 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:

As for Jones, I have concluded that he had become a “marked man,” in the sense that Wal-Mart’s managers intended to remove him from the facility because of his union activity. . . .  Jim Winkler's remarks of several months earlier had set forth [Wal-Mart’s] intention to fire Jones, one of the last union supporters, when the opportunity presented itself.  [Wal-Mart] was apparently ready on February 28, 2002, and really was not very concerned with whether the “evidence” it gathered against Jones made much sense or not.  In my opinion, based on the “flimsiness” of the evidence, there was no way [managers] had a “good faith” belief that Jones had removed confidential documents from the facility.  I find [Wal-Mart’s] stated explanation for discharging Jones to constitute a transparent pretext.  It is, therefore, appropriate to infer that [Wal-Mart’s] true motive was unlawful, that being because of Jones' union activity.⁷⁵²

Discriminatorily Denying Brad Jones COBRA Benefits

After 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-script

After 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 company’s 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 company’s 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:

[T]here is no doubt that the various managers exercised a maximum effort in an attempt to remain non-union.  In my view, the degree to which [Wal-Mart] conducted its election campaign demonstrated obvious animus towards the Local Union and its supporters. . . .  [Wal-Mart] engaged in a very aggressive campaign to defeat the Local Union’s organizing efforts.  While an employer certainly has the legal right to oppose a union's organizing efforts, by the extent and method of their efforts, . . . Wal-Mart’s managers made sure the employees understood that this was not simply business as usual.⁷⁵⁷

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 ALJ’s findings.  According to the ALJ decision, in response to the unfair labor practice charges, Wal-Mart had stated:

[T]he actions of its local, regional, and corporate officials, following the filing of the [union] petition, were intended merely to explain to its employees why union representation was not in their best interest, and constituted a totally lawful expression of free speech. . . .  [Wal-Mart] alleges that any changes in the operation of its Kingman facility, following the filing of the petition, were merely the result of the normal operation and maintenance of the store.  It denies any attempt to unlawfully influence its employees’ interest in supporting the Local Union.  Any personnel actions taken were allegedly for legitimate business reasons, and unrelated to the union activity of the employees involved.⁷⁵⁹

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, 2005

According 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 resolved—management granted Weston’s requests for an additional computer and a new tire machine and added more staff to the TLE.

Weston explained:

All of a sudden, miraculously we get a computer. . . .  I asked the store manager for a second terminal when the Supercenter was being built.  He said he’d look into it, but that was the lip action.  I asked him again about it. . . .  He said, “If you guys would work harder, you wouldn’t need one.”  He left it at that and walked away. . . .  I asked . . . about three times for a terminal. . . .  Then I asked my district manager, and he said he’d check into it, but that was the end of the discussion.  Then the division one district manager was in the store, and I asked about it, and he said he’d check into it.  That was it.  He never got back to me.  I don’t think he checked into it. . . .  After the union talk, they said we could have the computer.⁷⁶²

Weston also recounted:

I asked for an additional tire machine from another store.  I asked [store management] for the machine at least a couple [of times] and asked Ken, division 6 district manager, three times.  I stopped asking because they said [there was] no way we could have it because it would make other stores feel slighted. . . .  Then after the union talk, poof, we got it.⁷⁶³     

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:

One of the guys got fed up and said maybe we ought to start talking union, at least we’d have help. . . .  I went and told [store management]. . . .  As soon as I told [store management], maybe three hours, all hell was bustin’ loose in there. . . .  [Store management] called the division 1 district manager to let him know there was union talk.  The TLE district manager was called.  Division 1 and 6 district managers showed up the next day, and they brought a whole mess of help from other stores.  Help was the big problem.  So, they brought . . . extra people. . . .  We got about ten people to help in the TLE with freight. . . .  Then they started hiring.  We got three more hires after the union talk. . . .  They brought us up to where we could actually function a lot better.⁷⁶⁴

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

Just the overwhelming intimidation is the thing that stands out in my mind most.  They’re there morning, noon, and night.  They were there the day after the petition was filed.

—Michael Martino, union organizer, UFCW Local 880.⁷⁶⁵

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-Mart’s 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:

It felt like something bad was going to happen.  All these people flew in.  Why are they here? . . .  They’d say, “What’s going on with the union stuff?  Do you think it’s a good thing?”  They tried to act like your buddy.⁷⁶⁹ 

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, they’d get rid of you.  With them saying how they are against the union, it felt like if you did anything wrong, you’d 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 Workers

According 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-Mart’s 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 we’re pro-associate and have the Open Door Policy.”⁷⁷²

Open Door Policy

Streckeisen and “Baylor” told Human Rights Watch that the Labor Relations Team also emphasized the company’s 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:

If you come to them with an issue, they can settle it as well as a union could with their Open Door Policy. . . .  Wal-Mart doesn’t feel we need a union because they settle everything themselves.  I feel they do a pretty good job at it.⁷⁷⁴

Highlighting Negative Consequences of Union Formation:
Warnings about Collective Bargaining

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 that’s important to you.”⁷⁷⁶  

Management Training

In 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 Activity

Four 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-Mart’s 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 Hill’s 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 Bennett’s 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 weren’t 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, we’d drop . . . the union.  They think they’ll 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-Mart’s 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:

Here, the employees had repeatedly complained about the lack of adequate staff and equipment in the TLE and despite the various policies used by [Wal-Mart] to encourage employee participation, [Wal-Mart] had consistently failed to address those concerns.  It was only with the arrival of the Union that [Wal-Mart] changed its course and promised to address those concerns.⁷⁸⁸

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-Mart’s] 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 Packing 

When 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:

They brought in people who were already with the company for a couple of years.  I think they were afraid that if they hired new people, they might get some pro-union people. . . .  None of the new people supported the union. . . .  By the time Wal-Mart got done moving people into the bargaining unit, it was about fifty-fifty.⁷⁹⁴ 

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-Mart’s 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 Activity

Shortly after the union recognition petition was filed, TLE worker Clifford Funk, an open union supporter, applied to be transferred to the store’s 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 Funk’s transfer was legal because there was a legitimate reason for posting the position and Funk voluntarily applied.  The ALJ rejected the company’s argument, finding that the company illegally transferred Funk out of the New Castle TLE to undermine union support.  The judge held:

It is clear that Funk was in favor of the Union and that [Wal-Mart] was well-aware of this fact.  The evidence also shows that [Wal-Mart] violated the Act . . . to prevent the employees in the TLE from selecting the Union.  Part of this unlawful scheme was to dilute the support of the Union by transferring additional employees into the TLE.  Transferring a pro-union employee out of the TLE fit neatly within this pattern.⁷⁹⁹

The judge further found that Wal-Mart unlawfully interrogated Funk about union activities and sympathies during his interview for the loss prevention position, holding:

[T]he questioning occurred in Brewer's office and in the context of Funk's attempt to transfer to loss prevention.  Moreover, Brewer did not limit his questioning to Funk's union sympathies; he sought to obtain the degree of union support of other employees who had not been open union adherents.  This interrogation occurred in the context of other unfair labor practices.  Under these circumstances I conclude that [Wal-Mart] violated [the NLRA] by coercively interrogating an employee concerning the union sympathies and support of other employees.⁸⁰⁰

Union Activity Surveillance

In 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:

They came out of both entrances—grocery and merchandise.  They came out with trash cans and stood behind [them] and watched as we passed out literature.  As soon as workers saw the managers, they either didn’t take the flyer or they took it and threw it away.  They were intimidated. . . .  Prior to them [the managers] coming out, workers were taking the flyers.  Some workers would talk to us. . . .  Once the managers showed up, they stopped taking the flyers almost completely and stopped talking to us.⁸⁰²

Co-manager Dominic D’Aurora 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 they’ll bring out a trash can, . . . I can’t 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  D’Aurora, 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-Mart’s 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-script

On 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 ALJ’s decision to the five-member Board in Washington, DC, but later withdrew the appeals, leading the five-member Board to adopt the ALJ’s 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 held—almost 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 Watch’s request for a meeting, Wal-Mart addressed the union’s 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

When the team from Bentonville came, they [workers] got scared, scared for their jobs, and deserted. . . .  They became scared when they saw the executives and were made to watch the films. . . .  They [Wal-Mart managers] don’t actually come out and say they would fire you, but the intimidation is there.

—Kathleen MacDonald, Aiken, South Carolina, Wal-Mart worker and key union supporter.⁸¹⁵

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: 

They told us [it would be a] nice, big store, plenty of staff.  They didn’t tell us . . . that the extra staff would be us and that we’d be stretched thin. . . .  Morale was very low.  We had a new district manager.  He got rid of our store manager, who was a good guy.  He was a good guy in the city, good to the community.  The new district manager fires this man. . . .  He had colon cancer.  So, he was out a lot.  He was let go, and in walks Tim Mallett.  This is when it started. . . .  He ran the store like a prison.⁸¹⁷

Two of MacDonald’s 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:

At the time, they were giving me such a hard time, and I couldn’t get any help from anyone.  No one should have to go through what they put me through.  I thought that if there were a union, they wouldn’t be able to do the people the way they done me.⁸¹⁸  

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:

I come from a state where everyone has a union job [Massachusetts].  I didn’t think it was a big deal.  Everyone was saying that we have to do something.  So, I suggested the union.  They said, “Sign me up.” . . .  So, I contacted the UFCW. . . .  I was talking to about fifteen to twenty people.  I asked if I should set up a meeting.  They said, “Yes.”  So, I set up the date and time for the first meeting.⁸²¹  

MacDonald scheduled a union meeting with the UFCW on June 21, 2001.⁸²² 

In early June, MacDonald’s 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-Mart’s Union Hotline.⁸²³  Later that same day, Garth Gneiting, a labor relations manager from Wal-Mart’s 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:

Like always we try to keep you informed on what is going on in our store.  Most recently, some associates in this store have been talking about having a union meeting.  We would like to give you some information about unions.

At Wal-Mart we respect the individual rights of our associates and believe you don't need a union to speak for you.  Wal-Mart is not anti-union rather pro-associate.  You may have family members, neighbors and we certainly have customers that are union and that is OK.  But we don't feel unions are right for Wal-Mart.

Union organizers will promise anything to get associates to sign a union authorization card.  They may promise you better benefits, better hours or higher wages, but can they guarantee you any of these things—the answer is NO.

All a union can do is ask the company for things, they can not demand anything.

Let me encourage you NOT to sign a union authorization card, but to say NO to any pressure you may receive.

If you have any questions please get with me or any member of management.⁸²⁵

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 Workers

MacDonald 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 associates—anything 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-Mart’s 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:

A union organizer can make all kinds of promises, but you have to wonder if the union really has the power to deliver on the promises they’ve been making to people.

It’s impossible for a union organizer to say what your wages and benefits will be if the union wins an election.  Even when an election is held and the union wins, all the union can do is sit down at the negotiations table and ask the company for what they’ve been promising employees.  That’s all, just ask.

Certainly, all of us understand that the UFCW has its own agenda.  To fight Wal-Marts [sic] growth and at the same time to try and convince Wal-Mart associates to join the very union that is attempting to destroy our company.⁸³⁵  

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 don’t 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:

Another thing is that you don’t have control over how much union dues are and if they will be increased. . . .  Without warning and without voting the President of local 99 [in Arizona] sent out a video tape to each member making them aware that their membership dues would double for at least 5 months.  The reason for the doubling of membership dues was to attack Wal-Mart and discourage customers from shopping at the company you and I work for.

I would encourage you to get all the facts about the union and think long and hard about what their motivation really is.  And ask yourself this question.  Is the union organizing associates because they really care about you and your family or are their [sic] alternative motives involved?⁸³⁶

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 Formation

On 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 union’s 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:

So we’ve learned that during collective bargaining, everything you currently have in terms of wages, benefits, and working conditions would go on the bargaining table.  Both sides could make proposals, and they could be for something better or worse than you already have.  Why wouldn’t the UFCW explain to you how all of that works?

Why wouldn’t the union explain to you the Management Rights clause that is in almost every contract?  They don’t want you to know that store management will continue to operate the day to day business of the store as seen most appropriate for the business.⁸⁴¹

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 “someone’s plant got voted union and they got less benefits than before the union.  They didn’t gain anything, but they still take union dues out of your salary.”⁸⁴⁴  She recalled another skit:

There were two Wal-Mart associates with smocks.  One brought up [the union] and said, “I hear if a union comes in, we’ll all get big raises.”  And the other says, “That’s not true.  My uncle worked at a store that got a union, and they had to close because they couldn’t pay these huge salaries.”  The understanding behind that was that it’s better to have low-paying jobs than no jobs.⁸⁴⁵

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:

Then they showed an example of two women, one disgruntled.  [The film said that it] usually starts with one disgruntled employee. . . .  The union will hold a meeting in a hotel room.  They will have a lavish party and promise all kinds of things, but they can’t deliver.  They will try to talk you into signing union cards.⁸⁴⁶

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 Rules

Near the end of July 2001, store manager Mallett called Barbara “Tippy” Hall, a worker in the Aiken store’s accounting department, into his office and disciplined her for violating Wal-Mart’s solicitation policy.⁸⁴⁸  Mallett testified at the NLRB hearing in the case that he gave Hall a verbal “coaching,” the first phase of Wal-Mart’s 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-Mart’s 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 company’s 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.  He’s a [New Orleans] Saints fan, and I’m 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-Mart’s arguments:

The problem with Mallett's approach during his meetings with MacDonald and Hall is that these two employees were not soliciting in the first place.  To ask an employee for their telephone number to discuss the Union, if the employee is interested, after work is not soliciting by any stretch of the imagination.  Wal-Mart does not have a rule prohibiting one employee from asking another employee for their telephone number.  So it is easy to understand in the confusion created by Mallett how MacDonald and Hall would interpret what Mallet was trying to convey as a prohibition against talking on the sales floor.⁸⁵⁸

The ALJ continued:

Mallett was not acting in good faith.  Either at the behest of or with the explicit approval of Wal-Mart's home office he was enforcing a policy that [Wal-Mart] knew was problematic.  Additionally, Hall and MacDonald were treated disparately.  Employees were allowed to discuss non-work-related topics while they were working either on the sales floor or in a work area.  While they were doing the same thing, Hall and MacDonald were disciplined because the non-work-related topic they spoke about was a Union meeting.⁸⁵⁹

In addition, other workers and outside vendors regularly violated the solicitation policy when they sold items, according to MacDonald:

After the NLRB hearing, we walked into the store and there was a guy selling leather belts.  He was set up in front of the men’s department selling leather belts, wallets.  He was independent. . . .  Girl Scouts sold cookies. . . .  There is a lady who sells boiled peanuts out of a peanut cart . . . on the sidewalk. . . .  Disabled American vets sell those felt things on the sidewalk.⁸⁶⁰

The NLRB administrative law judge held:

Wal-Mart with its own Labor Department and legal staff could not get the solicitation policy right. . . .  Mallett’s telling MacDonald and Hall that what they did was prohibited solicitation is neither correct in fact nor as a matter of law.  Mallett was citing an unlawful policy and he was making the facts out to be something other then what they were. . . .  Mallett’s testimony on this matter is not credited.  [Wal-Mart] and Mallett created the situation.  [Wal-Mart] must suffer the consequences.⁸⁶¹

The ALJ found that Wal-Mart had acted unlawfully and ordered the company to remove any reference to MacDonald’s and Hall’s 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 Activity

In 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 worker’s tenure with the company, job responsibilities, and salary.  Cannon requested approval for the survey from Wal-Mart’s 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 taken—working up a wage compression report—to 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.