In addition to the companys tactics to derail worker organizing efforts that largely comport with US law, Wal-Mart has repeatedly used tactics that run afoul of US law and directly infringe on workers right to freedom of association. Time and again, Wal-Mart managers have failed to heed the warning provided to them on little pink cards in trainings across the United States and explicitly stated in the Managers Toolbox: As long as you do not threaten, interrogate, promise or spy on your associates, Wal-Mart, through your efforts, will be able to share its view on unionization in an open, honest and legal manner.491
Between January 2000 and July 2005, NLRB regional directors issued thirty-nine complaints against Wal-Mart. The complaints consolidated 101 cases, combining those charges involving the same stores and, in some cases, combining charges against stores located near each other. An NLRB complaint is a formal act, like an indictment in criminal law, which sets the stage for a hearing before an NLRB administrative law judge at which lawyers representing the NLRB, workers, and the accused company present evidence and witnesses. Four of these complaints were withdrawn, and two are still pending. Thirteen were resolved by settlements that required Wal-Mart to remedy the alleged violations, including by posting and complying with notices promising not to engage in the unfair labor practices charged. The company did not admit guilt as part of the settlements, however.492 US labor law authorities heard the remaining twenty.
At this writing, fifteen decisions finding that Wal-Mart engaged in unfair labor practices between January 2000 and July 2005 are still standing against the company, six of which are pending on appeal before the Board.493 The fifteen cases cover ten states, and each involves multiple NLRA violations.494 The flow chart below tracks the progress through the US labor law system of all cases filed against Wal-Mart between January 2000 and July 2005.495
NLRB Cases Against Wal-Mart Filed Between January 2000 & July 2005
Human Rights Watch has compared Wal-Marts recent history before the NLRB with that of the companys key US competitors and other large US retailers: Albertsons, Costco, Home Depot, Kmart, Kroger, Sears, and Target. We calculated the total number of cases filed against these companies between January 2000 and July 2005 in which NLRB rulings finding unfair labor practices are still standing. Human Rights Watch found a combined total of only four such cases, only 27 percent of the number of cases still standing against Wal-Mart alone. Nonetheless, with combined revenues of $337.14 billion in fiscal year 2005, these seven companies together were 7 percent larger than Wal-Mart.496 With roughly 1.6 million workers, their combined workforce was roughly 26 percent greater than Wal-Marts.497 The chart below summarizes our findings.
NLRB Cases Against Wal-Marts US Competitors Filed Between January 2000 & July 2005
*These findings are still standing against the companies, though some may be pending on appeal.
Wal-Mart has not publicly addressed the large disparity between its record before the NLRB and that of its competitors. The difference can likely be explained by a variety of factors, including Wal-Marts aggressive strategy to defeat worker organizing combined with Wal-Mart workers significant and concerted attempts in the early 2000s to organize US stores. As part of the organizing campaign, unions and workers filed 292 cases against Wal-Mart alleging US labor law violations.498
Human Rights Watch has observed a pattern of unlawful tactics, forbidden under US as well as international law, that Wal-Mart has repeatedly used to prevent workers from exercising their internationally recognized right to freedom of association.499 We detail each of these tactics below, as described in decisions by US labor law authorities and by current and former workers and managers.
Despite growing concern that in the 2000s the NLRB has become increasingly hostile to workers claims of employer unfair labor practices, Human Rights Watch has not included in the discussion that follows any allegations of unlawful activity that were dismissed by the NLRB. We have, however, included charges of illegal conduct that were not explicitly raised before the NLRB but which current and former workers and managers described in interviews with us. These new allegations were raised by workers and managers who did not testify at NLRB hearings or who testified but omitted important charges. It is difficult for regional NLRB attorneys and union supporters to convince current and former workers and managers to testify in legal proceedings openly and comprehensively against their company, as they may fear reprisals even after leaving their charged employer. As a result, NLRB attorneys may be unable to interview current or former employees with critical information or may fail to uncover all possible unfair labor practices during their interviews and investigation. This repeatedly occurred in cases against Wal-Mart.
The portrait that emerges from our research is of a company that repeatedly has engaged in illegal action to stop workers from deciding for themselves whether to organize.
Since 2000, Wal-Mart has discriminated against union sympathizers on a number of occasions. The company has disciplined them for breaking company rules that were not enforced against other workers and stood by while union opponents harassed them in violation of Wal-Mart policies. Wal-Mart has threatened workers with dismissal, refused to hire them, and fired them because of their union-related activity. US labor law bans such employer discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.500
In July 2000, the director of operations at the Spring Mountain Road, Las Vegas, Nevada, Sams Club disciplined Alan Peto for carrying a concealed tape recorder and threatened Peto with dismissal if any workers complained about his conduct. Peto testified at the ALJ hearing that he carried the tape recorder primarily because I felt that I would be interrogated or questioned again about the petition he was circulating about possible unfair wage and training practices and because I felt I was being targeted because of prior union activity. Affirming the ALJs finding in the case, the five-member Board found that the discipline and threat were unlawfully motivated by animus toward [Petos] protected activities, which included circulating the petition.501 The NLRB noted that Peto was an exemplary 7-year employee, who had received a glowing performance review days before [Wal-Mart] learned that he was circulating the wage petition. The NLRB further found:
The following year, union activity began at the Spring Mountain Road Sams Club and nearby at the Serene Avenue, Las Vegas, Nevada, store. Dina Eldridge, a Spring Mountain Road Sams Club worker, and Cory Butcher, a former Serene Avenue Sams Club employee, recounted to Human Rights Watch that they perceived that union supporters were being disproportionately and discriminatorily fired after organizing began at stores. In particular, they believed that suspected union supporters were regularly being transferred to the cash registers, where they were more likely to be found violating company policy, grounds for termination.
Dina Eldridge explained:
Butcher told a similar story:
These claims are difficult to prove, however, and Human Rights Watch was unable to independently verify Eldridges and Butchers allegations. The NLRB administrative law judge hearing the case did not address the general practice, described by Eldridge and Butcher, of transferring union supporters to cashier positions and discriminatorily firing them for register discrepancies. Instead, the judge dismissed the more narrow, specific charge that Sandra Mena, an open union supporter who started as a cashier long before the organizing campaign began, was discriminatorily fired for register discrepancies that the company tolerated with her anti-union colleagues.505
An NLRB administrative law judge found that at Wal-Marts Port Orange, Florida, store, in response to union activity initiated in April 2000, the company unlawfully fired union supporter, Edward Eagen. Despite Wal-Marts three-phase disciplinary program, Eagen received no discipline before he was fired. The five-member NRLB affirmed the ALJs finding that the record as a whole supports an inference of animus and unlawful motivation. In her decision, the ALJ noted that, at the time of his firing, Eagen was the only employee specifically known to have signed a union card and that Eagen was the only known union supporter and he was terminated less than six weeks after he made his support known.506 She held that Eagen was fired for his union activity and noted that [t]he most persuasive factor in finding an inference of animus is the timing of Eagen's discharge.507
Similarly, Angie Griego, an open and active union supporter, applied for a pharmacy cashier position at Wal-Marts East Tropicana Avenue, Las Vegas, Nevada, store in 2001 and was denied, though she was clearly the best-qualified applicant based upon her lengthy experience in the job and having completed the computer training applicable to the position.508 Instead, Wal-Mart selected one of Griegos co-workers, who had been hired only one month earlier in another department, had not taken any of Wal-Marts pharmacy computer training, and had no prior experience at the position. The NLRB administrative law judge hearing the case found that Wal-Mart illegally passed over Griego for the pharmacy cashier post, holding The timing of the denial of the job to Griego was during the same time period she was zealously engaged in union activities. I conclude that the Government has proven the necessary elements to establish that the denial of the pharmacy cashier position to Griego was based upon her union activities.509
Human Rights Watch research indicates that, in many cases since 2000, Wal-Mart has engaged in unlawful surveillance of workers union activities and illegally created the impression among workers that it was doing so. Under US law, employers, generally, may observe any open, public union activity on or near their property.511 They may not, however, do something out of the ordinary to spy on workers union activity or even to give the impression that they are doing so.512 That includes altering surveillance cameras so that they are purposefully directed at protected concerted activity.513 US law holds that employees should be free to participate in union organizing campaigns without the fear that members of management are peering over their shoulders, taking note of who is involved in union activities, and in what particular ways.514 Employers can legally maintain surveillance cameras while union organizing is underway, but they cannot photograph, videotape, or otherwise use cameras, hand-held or security, to monitor workers union activity without proper justification, such as a legitimate security objective or a reasonable basis to believe misconduct would occur.515 US law considers that, in particular, [p]hotographing and videotaping clearly constitute more than mere observation of union activity because such pictorial record keeping tends to create fear among employees of future reprisals.516
Wal-Mart store manager Ed Hohlt clearly wrongfully created the impression among employees that the employees union activities were under surveillance by informing workers, at a series of shift meetings, that Wal-Mart was getting detailed information respecting which employees were supporting the Union, when and where they were meeting and what they were doing at meetings at the Stapleton, Colorado, Wal-Mart store in September 2002. The ALJ hearing the case noted, All of this was done in an address that included a reminder to employees that [Wal-Mart] was strongly opposed to its employees being represented by a labor organization. The judge concluded, Hohlt's statements made it clear that [Wal-Mart] was obtaining detailed, specific reports respecting employees union activities and, indeed, was likely to continue to do so. This is sufficient in my view to sustain the violation alleged.517
In June 2000, the store manager at the Spring Mountain Road, Las Vegas, Nevada, Sams Club also unlawfully created an impression that employees protected activities were under surveillance. Store manager Greg Roberts told worker Alan Peto that he had heard that Peto was circulating a petition about associates wages. Affirming the decision of the ALJ in the case, the five-member NLRB found, Roberts telling Peto that he heard Peto was circulating a petition about wages leads reasonably to the conclusion that [Wal-Mart] had been monitoring Petos activities. Peto did not circulate the petition openly, and Roberts never revealed how he came by the information.518
Union activity reportedly began the following year at the Spring Mountain Road Sams Club, and union supporters with whom Human Rights Watch spoke explained that they felt that their activities and those of their co-workers, particularly in the Sams Club break rooms, were also under surveillance. The NLRB administrative law judge hearing the case dismissed the charges of unlawful surveillance contained in the NLRB general counsels complaint, but the specific allegations that workers made to Human Rights Watch were not raised with the NLRB and, therefore, not addressed by the ALJ. Marsha Wardingly, a worker at the store, recounted to Human Rights Watch:
Dina Eldridge, Wardinglys co-worker speaking on condition of anonymity, agreed, noting, Associates knew they were being watched. She added, They [managers] started spending more time in the break room. They came for meals and lunches. They didnt do that before.520
One of the most effective ways to defeat worker organizing is by manipulating the composition of the proposed bargaining unit, a group of workers united by a community of interest that seeks to form a union and then bargain collectively with an employer.521 If an employer can ensure more anti-union than pro-union workers in the unit, the union will not win the representation election. According to current and former workers and managers, Wal-Mart has on several occasions transferred union opponents into proposed bargaining units to pack the unit in order to dilute support for the union and transferred pro-union workers out to reduce the total number of union supporters. US law bans such transfers unless the employer has a good business reason for the timing and number of employees hired and workers transferred.522 Despite multiple charges against Wal-Mart for unit packing and anti-union transfers, however, in only one case since 2000 has the NLRB found Wal-Mart guilty of such staffing manipulation to undermine worker organizing. The NLRB dismissed the other charges.523
Charges of unit packing and illegal anti-union transfers are notoriously difficult to prove. Staffing decisions are made by management-level employees, whose testimony is often essential to demonstrating unlawful conduct. In many cases, only management-level testimony can reveal the anti-union motivation behind such decisions and debunk alleged business justifications offered by employers. Management-level employees, however, are also often the most reluctant to testify at hearings against their companies. Finding such witnesses is extremely difficult. James Porcaro, one of the attorneys who successfully argued at an NLRB hearing that Wal-Mart engaged in unlawful unit packing and worker transfers at its New Castle, Pennsylvania, facility in late 2000, explained that in that case, we had Steve Grimm [assistant bakery manager], . . . a smoking gun. We rarely have this.524 That is why, he believes, the NLRB administrative law judge ruled against Wal-Mart in that case.
Two former management team members at the Kingman, Arizona, Wal-Mart described to Human Rights Watch the stores efforts to ensure that all workers hired or transferred into the TLE during the fall 2000 union campaign opposed the union. Former assistant manager Tony Kuc explained, They were trying to put people in the TLE, putting in people least likely to be union.525 A former management team member speaking on condition of anonymity elaborated:
The management team member speaking anonymously to Human Rights Watch did not testify at the ALJ hearing, and although Kuc testified, he did not address the issue of unit packing. For reasons unknown to Human Rights Watch, allegations of unlawful unit packing were not explicitly included among the charges of unfair labor practices filed against Wal-Mart in the wake of the 2000 organizing drive at the Kingman, Arizona, TLE. Although the NLRB did not rule on the issue, the ALJ hearing the case nonetheless observed that during the campaign period, all personnel actions for TLE employees had to be cleared through the [Labor Relations] team. Therefore, it is clear . . . that whether a TLE employee was pro-union, or anti-union, was of paramount importance to [Wal-Mart].527
Human Rights Watch has found that, on several occasions, Wal-Mart has reacted to union organizing by suddenly addressing workers complaints, improving their working environment, and seeking out and responding to their concerns. It is illegal under US law for an employer to shift from virtually ignoring employee complaints to bending over backwards to identify and remedy them when the new-found solicitousness is motivated by anti-union animus.529
At first glance, this may seem counterintuitive. How can an employers change in attitude that brings about greater benefits for workers be illegal? The US Supreme Court has explained, The danger inherent in well-timed increases in benefits is the suggestion of the fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged.530 Workers may fear that if they choose to organize, their anti-union employer will retaliate in anger, no longer being so solicitous and even rescinding benefits already granted or failing to fulfill promises already made.
As a result, under US law, there is an inference that any benefits granted and any solicitation of worker grievances made during an organizing drive are coercive and designed to influence workers to vote against union representation.531 The inference can only be rebutted with an explanation other than the pending election, for the timing of the grant of benefits or the solicitation of complaints, including consistency with past practice or evidence that the benefit was planned before organizing began.532 It is notoriously difficult for unions to file unfair labor practice charges alleging such illegal conduct because the resolution can present a conundrum for workers and unions: an employer can settle the case by withdrawing the workplace improvements or recanting the promises, returning to the status quo ante and blaming the union, thereby further undermining support for the union.
NLRB administrative law judges found that in late 2000 and 2001, Wal-Mart acted illegally by remedying concerns and granting benefits to workers in response to their union organizing activity at the companys facilities in Kingman, Arizona; New Castle, Pennsylvania; and Aiken, South Carolina. In Kingman, Arizona, Wal-Mart repaired the TLE cooling system and installed new oil grates shortly after union activity began at the store.533 In New Castle, Pennsylvania, the company removed an unpopular district manager, installed new equipment, and added workers to address inadequate staffing.534 In Aiken, South Carolina, Wal-Mart promised to improve employee wages and then granted widespread pay increases.535 US labor law authorities concluded in each case that Wal-Mart had unlawfully interfered with workers organizing efforts.
In addition, workers also told Human Rights Watch that Wal-Mart improved facilities and working conditions in response to worker discussions of union formation in February 2005 at the Kingman, Arizona, Wal-Mart and organizing efforts at the Loveland, Colorado, store in late 2004. John Weston, an hourly manager at the Kingman, Arizona, store observed, When you mention the word union, everything starts to get taken care of because theyre afraid of it. . . . The only time they listen to the ideas of associates is when the talk of the union comes in. Then they run around.536 No charges of unfair labor practices were filed in either case, however, so the NLRB has not addressed these allegations. All five cases are discussed in greater detail below.
Wal-Mart has also illegally solicited employee grievances during organizing campaigns and, in some cases, remedied them. For example, in March 2000, district manager David Eugene Craig asked a worker at the Lubbock, Texas, Wal-Mart store to submit her concerns and complaints during an organizing campaign. Craig met with the worker in one of the store managers offices and asked her how she was doing in her new job and if she liked her new job and if she needed help with any problems in the store. An NLRB administrative law judge held and the five-member Board affirmed:
Threatening Benefit Loss if Workers Organize
Wal-Mart management and Labor Relations Team members often left workers with the understanding that they would lose certain benefits if they organized, according to US labor law authorities and current and former Wal-Mart workers. In some cases, workers reached this conclusion after being informed that, during collective negotiations, everything (their wages, benefits and working conditions) would go on the bargaining table. . . . They could get more, they could get the same, or they could get less.538 This is technically true, and Wal-Mart does not violate US law by presenting this view of bargaining. In other cases, however, Wal-Mart threatened workers explicitly with benefit loss if they voted to form a union. This practice is illegal. Under US law, employers are prohibited from withholding benefits or threatening to withhold benefits or otherwise depart[ing] from preexisting policies in response to union activity. Instead, to avoid unfairly influencing the union election, [a]n employer must grant the preexisting benefit as if the union were not on the scene.539 Specifically, expectations of upcoming benefits created by the employer either by promises or through a regular pattern of granting benefits cannot be disappointed without proof of a union-neutral justification.540
Greg Roberts, the general manager at the Spring Mountain Road, Las Vegas, Nevada, Sams Club, told workers that merit raises would be suspended pending the [union] election so as to avoid the appearance of [Sams Club] attempting to buy votes in early 2001. Roberts failed to inform workers that the raises would be resumed regardless of the election result, however. An NLRB administrative law judge found that Roberts statements could reasonably lead them [workers] to conclude that resumption of the wage increase would depend on voting against the Union. The ALJ, therefore, concluded that Roberts conduct violated the NLRA.541
At the nearby East Tropicana Avenue, Las Vegas, Nevada, Wal-Mart, an assistant store manager told union supporter Valerie González in December 2000, that if the store went union, she would not be able to do things like let González leave work early or let her pick up her paycheck early.542 The NLRB administrative law judge hearing the case found that Wal-Mart illegally threatened González with the loss of these privileges if workers organized.
A member of Wal-Marts Labor Relations Team told workers at Wal-Marts Alliance, Ohio, store in 2001 that if they select the union to represent them the open door will be closed. Wal-Mart regularly extols the merits of its Open Door Policy, communicating to workers that the policy is a valuable asset and contributes to a positive workplace environment. As a result, losing the open door could reasonably be seen as a benefit loss by some workers. An administrative law judge found, The threat to close the open door if the union is selected was a threat that violated [the NLRA].543
Wal-Mart has also violated workers right to organize on a number of occasions by coercively interrogating them about their and their co-workers union or union-related activities and sympathies, according to current and former Wal-Mart workers and NLRB decisions against the company. Under US law, interrogating workers about these matters is not, per se, illegal and casual discussions and informal employer questioning about organizing that may occur during a workday are generally considered lawful.544 Nonetheless, if either the words themselves or the context in which they are used . . . suggest an element of coercion or interference, the interrogation is illegal.545
An assistant store manager interrogated union supporter Valerie González about her union sympathies at the East Tropicana Avenue, Las Vegas, Nevada, facility in December 2000. The assistant manager asked her if she had anything to do with the Union, and when González answered affirmatively, she questioned González as to why she wanted the Union.546 González told Human Rights Watch that the assistant store manager said to her:
The NLRB administrative law judge in the case found that the assistant store managers interrogation of González was unlawful because it was accompanied by the coercive threat that if the union represented the employees their existing benefits would be lost to them.548
The five-member NLRB in Washington, DC, upheld an ALJ decision that a Wal-Mart district manager also overstepped the bounds of legality when he asked a worker if she had heard about anything going on in the store at Wal-Marts Lubbock, Texas, store in March 2000. The NLRB held:
At the Spring Mountain Road, Las Vegas, Nevada, Sams Club in June 2000, a store manager likewise interrogated Alan Peto after he began circulating a petition complaining of possible unfair wage and training practices. The stores business manager Donna Burton summoned him into the office of store manager Greg Roberts for questioning:
An NRLB administrative law judge found the questioning coercive:
Wal-Mart has also warded off organizing activity by illegally prohibiting communication among workers about working conditions at its stores. It is well settled under US law that section 7 of the NLRA provides that employees have the right to engage in activity for their mutual aid or protection, including communicating regarding their terms and conditions of employment to colleagues, customers, and others.553
In April 2001, during a union campaign at Wal-Marts Alliance, Ohio, facility, the store manager told a worker in the stores break area that she was not allowed to discuss working conditions while on break. The administrative law judge hearing the case found, Employees on non-work time in non-work areas cannot be prohibited from discussing terms and conditions of employment, etc., with each other, and ordered Wal-Mart to post a notice in the store promising not to ban employees from discussing terms and conditions of employment with other employees on non-work time in non-work areas.554
Because the posting was limited to the Alliance, Ohio, facility, however, workers at stores across the country did not receive the same message. Twelve current and former Wal-Mart workers and managers from four different Wal-Mart stores in Aiken, South Carolina; New Castle, Pennsylvania; and Loveland, and Greeley, Colorado, told Human Rights Watch that they believed that they were banned from discussing their salaries with their co-workers. Most explained that they had understood managers instructions when they were hired or at new-employee orientation as prohibiting salary discussions. For example, Chris Davis, an Aiken, South Carolina, Wal-Mart worker speaking to Human Rights Watch on condition of anonymity, stated, Were not supposed to talk about what we make with other associates. She explained that when she was hired, they said it was store policy that youre not supposed to talk about wages. I assume its still the policy.555 Davis co-worker Pat Quinn, also speaking anonymously, similarly told Human Rights Watch, They dont want you to talk about your salary. They tell you when youre hired that youre not supposed to talk about salary.556 Jared West, a Greeley, Colorado, Wal-Mart worker, likewise recounted, We were told this when we were hiredpart of orientation. Youre not supposed to talk about evaluations or salary.557
Wal-Marts internal policy documents define solicitation, in relevant part, as [t]o request or seek, in writing or orally, donations, help, or the like for any cause. Distribution of literature is defined as [t]he act or process of giving out or delivering leaflets, pamphlets, or other written material.559 The companys solicitation and distribution policy, in pertinent part, states:
The NLRB has generally held that Wal-Marts solicitation and distribution of literature policy for employees and non-employees complies with legal standards on paper. Under US law, employers may generally ban union organizers from soliciting and distributing literature on company property as long as the ban does not discriminate against the union by allowing other distribution.563 For example, if employers ban union representatives from leafleting in the parking lot, employers must also ban local high school students from distributing flyers requesting donations to fund a field trip. As an NLRB administrative law judge explained in a case against Wal-Mart, Whether [Wal-Mart] lawfully prohibited the Union's unapproved activity depends on whether, as alleged, [Wal-Mart] discriminatorily applied its . . . solicitation/distribution policies.564 Similarly, while employers may generally also prohibit their workers from soliciting and distributing union literature during working time and, in some cases, in work areas even on non-work time, they may also not do so discriminatorily.565
Nonetheless, on a number of occasions, the company has applied its valid solicitation and distribution policy discriminatorily both against Wal-Mart workers inside its stores and union organizers outside, according to NLRB rulings against the company and testimony of current and former workers and managers to Human Rights Watch. In some cases, Wal-Mart managers and staff have even called or threatened to call the police against union representatives leafleting outside company stores.
Wal-Mart has refused to allow union representatives to distribute handbills outside company stores, while permitting staff of other organizations to hand out information. For example, at two Wal-Mart stores in Orlando, Florida, in June 2000, Wal-Mart banned union handbillers from its premises, while allowing solicitation by the Girl Scouts, the Salvation Army, and other local non-profit charitable organizations that may have a need to raise funds, such as performing car washes on the Companys facilities. At the East Colonial Drive, Orlando, Florida, store, a security guard told a union handbiller to leave and [g]o out by the street, and an assistant store manager ordered the handbiller to go to the street or to go off the property by the road. Similarly, an overnight assistant manager at the South John Young Parkway, Orlando, Florida, store instructed a union handbiller to move off the premises or go to the end of the store or he would call the police. The NLRB administrative law judge hearing the case against the company ruled that Wal-Mart had illegally discriminated against the union organizers at both stores.566
Store management asked union handbillers outside a Noblesville, Indiana, Wal-Mart to leave and when they failed to do so, called the police and instructed the officer to warn the handbillers that they were trespassing in August 2000, even though the companys policy states that people can distribute handbills if they stay fifteen feet from the store. The NLRB found that Wal-Mart broke the law because the company discriminated against union members when it violated its own recently-adopted solicitation rule . . . when presented with an instance of union solicitation.567
In March 2001, Wal-Mart falsely claimed that its property lease banned union handbilling in front of the East Tropicana Avenue, Las Vegas, Nevada, store. Assistant store managers told Angie Griego, an employee distributing union literature in front of the facility, that she was not allowed to handbill in front of the store and would have to leave or management would call the police. One of the managers explained that KSK Properties, with which Wal-Mart had a lease agreement, prohibited handbilling outside the store and that Wal-Mart was compelled to uphold the KSK policy. The other assistant manager called Wal-Marts Union Hotline and was instructed to enforce the lease agreement. At the NLRB administrative law judge hearing in the case, a store security guard also claimed he had orders from KSK Properties to prohibit handbilling outside the store.568
The ALJ found, however, that the record does not show that the lease agreement between [Wal-Mart] and its landlord contained any restriction on handbilling outside the East Tropicana store and concluded that the prohibition of union handbilling was an unlawful promulgation and enforcement of a no solicitation rule.569 Griego commented to Human Rights Watch:
Wal-Mart management at the East Tropicana Avenue store even illegally prohibited workers from handing out pro-union pens on the store floor. For example, Griego stopped to ask Josephine Ross, her co-worker, if she would testify for the Union if Griego's pending unfair labor practice charges went to trial. During the conversation, Griego gave Ross a brightly colored union pen.571 Assistant manager Connie Commitor had seen Griego hand a pen to a co-worker earlier that day, and after witnessing her give the pen to Ross, told Griego, [T]his is not allowed on the sales floor. You need to take it to the break room.572 Griego commented to Human Rights Watch:
Commitor acknowledged at the NLRB administrative law judge hearing in the case that employees were allowed to use their own pens at work, could ask co-workers for pens, and could use any pens they wanted. The judge concluded that Commitors conduct, therefore, unlawfully discriminated against union activity.574
An NLRB administrative law judge found that the company discriminated against the distribution of union materials at another Las Vegas, Nevada, store, as well. At the South Rainbow Boulevard store, the company did permit solicitations involving nonunion matters in work areas and, therefore, acted unlawfully when it disciplined an employee on July 12, 2000, and again on August 30, 2000, for distributing union literature in a work area. The judge held:
The company also discriminated against union solicitation at the Spring Mountain Road, Las Vegas, Nevada, Sams Club in early 2001. The ALJ hearing the case found that while Sams Club banned union solicitation, a television advertisement admitted into evidence suggested:
In some cases, Wal-Mart has promulgated additional rules on solicitation and distribution that discriminate, even on paper, against union-related activity. Under US law, rules banning solicitation during all work hours, including lunch and break periods, are presumed invalid and illegal, as are rules prohibiting workers from wearing union insignia on clothing, buttons, pins, lanyards, and other similar items.577 Such activities can only be legally limited if an employer shows that a special circumstance exists which requires restrictions of this right, for example, to maintain production, reduce employee dissension or distractions from work, or maintain employee safety and discipline.578 Wal-Mart has reportedly issued just such bans without demonstrating any special circumstances to justify them.
Ban on Discussing the Union
On September 19, 2001, Jamie Duran, facility operations manager at the Spring Mountain Road, Las Vegas, Nevada, Sams Club, prohibited talking about the union while on the clock, according to workers who testified at the ALJ hearing in the case.579 Duran denied making the announcement. The administrative law judge rejected Durans denial and found that he had unlawfully announced that workers were banned from discussing the union on the sales floor, the parking lot or outside the store in the smoking area.580 Spring Mountain Road workers who spoke to Human Rights Watch also recalled believing that a general ban on union discussions was in effect. Gail Hass, a union opponent and former Spring Mountain Road store team leader and current worker speaking on condition of anonymity, explained to Human Rights Watch that there was no talking about the union on the clock.581 Dina Eldridge added, Managers . . . only stopped saying you cant talk about the union after the charges were filed [with the NLRB]. . . . After management said [you] cant talk about the union anywhere in the store, [we] pretty much stopped.582
In June 2001, in the wake of increased union activity at the Sams Club stores in Las Vegas, Nevada, the executive vice president of operations for Sams Club announced a new name-badge policy. The policy prohibited employees from having other than an approved badge backer; required employees to wear the badges on lanyards approved by the company with the companys logo; and prohibited employees from wearing pins on their lanyards.583 As a result, workers were no longer permitted to wear union lanyards or attach union buttons to their lanyards. An NLRB administrative law judge found that there was no evidence that employees . . . wearing a union lanyard or wearing union buttons on their lanyards had any kind of detrimental effect on customers, or that such affected production or store discipline and, as a result, held that Sams Clubs new policy was unlawful.584
Managers at Wal-Marts Tahlequah, Oklahoma, store likewise told a worker that the message on his T-shirt was a form of solicitation and that he would have to leave the store immediately in January 2001. The T-shirt read, Union Teamsters on the front and Sign a card . . . Ask me how on the back. Upholding an ALJ decision against Wal-Mart in the case, the five-member NLRB found that the T-shirt [m]ust be treated as simply the wearing of union insignia and, therefore, Wal-Mart could not lawfully apply its no-solicitation rule to prohibit [the worker] from wearing the T-shirt on its premises, absent a showing of special circumstances. The NLRB held that having failed to show such special circumstances, Wal-Mart acted illegally by ordering the worker wearing a pro-union T-shirt to leave the store.585
When Wal-Mart has failed to prevent distribution of union literature on its property, the company has often illegally confiscated the pro-union materials. Under US law, employees have a protected right to receive union literature and confiscation of union literature unlawfully interferes with that right even where the union literature was unlawfully distributed.587
A union organizer who distributed literature at the East Colonial Drive, Orlando, Florida, Wal-Mart store in June 2000 testified at an administrative law judge hearing in the case that assistant store managers told employees they didnt need this trash, referring to the handbills, and to throw it away[,] . . . and one of the department managers told the two women taking the flyers, you should not take that trash, and later one of the department managers snatched it out of the hand of one of the women and crumpled it up and threw it away.588 The judge accepted the organizers testimony and found that Wal-Mart managers illegally told employees who accepted Union handbills that they should not have done so.589
Scott Miller, co-manager of a Wal-Mart store in Henderson, Nevada, likewise took handbills from employees as union representatives distributed them in October 2002. Store manager Yvonne Garza told two employees who had accepted handbills, You know what to do with that, a clear directive to destroy or otherwise disregard the material.590 According to the ALJs decision in the case, After she [Garza] spoke to them, the two employees threw the handbills away.591 The judge held, In taking handbills away from employees and implicitly telling them to destroy them, Scott Miller and Ms. Garza, respectively, interfered with, restrained, and coerced employees in the exercise of their . . . rights in violation of . . . the Act.592
In December 2000, Norine Sorensen, a former worker at the South Rainbow Boulevard, Las Vegas, Nevada, Wal-Mart, was handbilling outside the West Craig Road, Las Vegas, Nevada, store when co-manager in training Tiffani McClendon approached her and asked if she was a Wal-Mart employee. According to the ALJ decision in the case, when Sorensen answered affirmatively and tried to hand McClendon a handbill, McClendon angrily asked, [W]hat are you out here doing this for? McClendon then grabbed all the handbills, got in a waiting car, and left. The judge held, McClendon took all of the union handbills from Sorensen without authorization while angrily castigating her for engaging in union activity. I find that McClendons actions were coercive and an unlawful interference with employees union activities.593
According to several workersSorensen, Marsha Wardingly, and Dina Eldridge, workers at the Spring Mountain Road Sams Club nearby; and Cory Butcher, a former Serene Avenue, Las Vegas, Nevada, Sams Club workermanagers also confiscated union literature handed out by union representatives or left in the stores break rooms during the 2001 organizing drives at their stores. Sorensen recalled, In the break room, I put [union] brochures downone with rights at work. . . . The managers in the break room would take away the materials.594 Butcher remembered that at the Serene Avenue store, If someone from the union came to pass out stuff from the union, my team leader would take the stuff away. She would turn it into Jeff [general manager] and others to make herself look good.595 Wardingly and Eldridge recalled that managers also threw out union literature placed in the break room of the Spring Mountain Road store. Eldridge explained that she and a union representative distributed literature in the break room and as soon as management or a team leader walked into the break room, they would pick it up and put it in the trash.596 Wardingly added, Associates put it [union literature] on the table in the break room, and it ended up in the trash. Management did it at first, and then they had associates throw it out for them.597
The allegations that managers at the Spring Mountain Road and Serene Avenue Sams Clubs and South Rainbow Boulevard Wal-Mart illegally confiscated union literature were not explicitly included in the charges of unfair labor practices filed with the NLRB for reasons unknown to Human Rights Watch. Therefore, those allegations were never specifically addressed by the Board.598
Wal-Mart did not respond directly to Human Rights Watchs questions about its use of unlawful tactics to defeat union formation. Instead, the company noted in a letter to Human Rights Watch that over the last two years, the UFCW has had far more unfair labor practice charges filed against it than has Wal-Mart.599 The number of charges of unlawful conduct against the UFCW, however, has little relevance to the legality of Wal-Marts anti-union conduct. And while it is true, as already noted above, that the number of charges against Wal-Mart has dropped since early 2005, that drop correlates directly with the similarly sharp decline in workers efforts to organize using the NLRB-sanctioned process at Wal-Mart stores across the country, also described above.
491 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003), G.C. Exh. 13.
492 In one settlement, Wal-Mart also agreed to award $70.34 in back pay to a worker allegedly not hired due to her union sympathies; in another, the company promised to pay $6,971.84 in back pay to a worker claiming to have been terminated for her union activity; and in a third, Wal-Mart agreed to pay $32,000 to four workers in consideration for waiver of rights and/or in lieu of life insurance policy proceeds. Settlement Agreement, Wal-Mart Stores, Inc. and UFCW International Union, AFL-CIO, NLRB Div. of Judges, Case No. 28-CA-17791 (July 19, 2002); Settlement Agreement, Wal-Mart Stores, Inc. and UFCW International Union, AFL-CIO, CLC, NLRB Div. of Judges, Case Nos. 12-CA-21860(-1), 12-CA-21941, 12-CA-21977(-2), 12-CA-22722 (June 23, 2003); Settlement Agreement, Wal-Mart Stores, Inc. and UFCW, AFL-CIO and UFCW Local 540, NLRB Div. of Judges, Case Nos. 16-CA-20298, 16-CA-20321, 16-CA-20723, 16-CA-20951, 16-CA-21276 (December 17, 2001).
493 Board decisions in these cases may be further appealed to US federal circuit courts of appeals and, ultimately, to the US Supreme Court. In four of the fifteen cases, US federal circuit courts have already upheld Board decisions against Wal-Mart.
494 The cases covered stores in Arizona, Colorado, Indiana, Florida, Nevada, Ohio, Oklahoma, Pennsylvania, South Carolina, and Texas.
495 Human Rights Watch gathered this information through FOIA requests sent to all regional NLRB offices on August 18, 2004, and July 1, 2005, and to the five-member Board on October 3, 2006. We also consulted the CD-ROM database of NLRB cases against Wal-Mart created by the Board, though based on the responses to our FOIA requests, we found the database to be incomplete. Insofar as the FOIA requests did not produce all requested materials, the total number of cases may be higher than indicated here.
496 CNN Money.com, Fortune Global 500 2006: Companies, U.S., 2006, http://money.cnn.com/magazines/fortune/global500/2006/countries/U.html (accessed November 10, 2006).
497 As indicated above, companies employee numbers may include management-level employees, slightly inflating the figures as compared to Wal-Marts, which only includes hourly employees.
498 Workers at Albertsons, Costco, and Kroger successfully organized at least some company facilities years earlier. As discussed in this report, their counterparts at Wal-Mart, in contrast, remain unorganized to this day.
499 Nonetheless, US labor law authorities found Wal-Mart guilty of some specific violations only once in the fifteen cases of adverse rulings against the company. For example, in one case, an ALJ found that Wal-Mart illegally interfered in worker organizing by helping to circulate and collect signatures on an anti-union letter. Supplemental Decision, Sams Club, a Division of Wal-Mart Stores, Inc., and UFCW International Union, AFL-CIO, CLC, NLRB Div. of Judges, Case Nos. 28-CA-17057, 28-CA-17058, 28-CA-17059, 28-CA-17150, 28-CA-17152, 28-CA-17194, 28-CA-17273, 28-CA-17276, 28-CA-17309, 28-CA-17602, 28-CA-17970 (May 25, 2004).
500 NLRA, sec. 8(a)(3). The critical issue in determining whether such unlawful discrimination occurred is employer motivation. To prove illegal motivation, the NLRB general counsel must first make a prima facie showing, by a preponderance of the evidence, sufficient to support the inference that protected conduct [union activity] was a motivating factor in the employer's decision. Four elements must be shown to establish an employers intent to discriminate: 1) that protected concerted activity existed; 2) that the employer was aware of the activity; 3) that the worker against whom the employer allegedly discriminated suffered an adverse employment action; and 4) that there was a link between the protected activity and the adverse employment action. Once the showing is made, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. Wright Line, a Division of Wright Line, Inc., and Bernard R. Lamoureux,251 NLRB 1083 (1980), enforced, NLRB v. Wright Line, a Division of Wright Line, Inc., 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).
501 Sams Club, a Division of Wal-Mart Corporation, and Alan T. Peto, an Individual, and UFCW International Union, AFL-CIO, CLC, 342 NLRB No. 57 (2004).
503 Human Rights Watch interview with Dina Eldridge, March 24, 2005.
504 Human Rights Watch interview with Cory Butcher, March 25, 2005.
505 Decision and Order, Sams Club, a Division of Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-17057, et al. (November 29, 2002).
506 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 12-CA-20882, 12-CA-22441 (November 4, 2003); see also, Wal-Mart Stores, Inc., 341 NLRB 796 (2004).
508 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16831, et al. (September 24, 2002).
510 Human Rights Watch interview with Norine Sorensen, March 25, 2005. Allegations of unlawful surveillance in the South Rainbow Boulevard, Las Vegas, Nevada, break room were not raised among the charges against Wal-Mart of unfair labor practices a this facility. Therefore, the NLRB did not address this issue in this case.
511 Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL-CIO, d/b/a Teamsters United For Change, 343 NLRB No. 125 (2004), citing F.W. Woolworth Co. and UFCW Local 4R, affiliated with UFCW International Union, AFL-CIO, CLC, 310 NLRB 1197 (1993).
512 Metal Industries, Inc., and Sheet Metal Workers International Association Local 411, AFL-CIO, 251 NLRB 1523 (1980). The test for determining whether an employer illegally creates an impression of surveillance is whether the employee would reasonably assume . . . that his union activities had been placed under surveillance. South Shore Hospital and Service Employees International Union Local 880, AFL-CIO, 229 NLRB 363 (1977); see also, Waste Stream Management, Inc., and its wholly owned subsidiary, CBI Steel, Inc., and Teamsters Local 687, International Brotherhood of Teamsters, AFL-CIO, 315 NLRB 1099 (1994); see also, United Charter Service, Inc., and John Hubbard, 306 NLRB 150 (1992).
513 Snap-On Tools, Inc., and International Union, UAW, 342 NLRB No. 2 (2004).
515 Alle-Kiski Medical Center and UFCW International Union Local 23, AFL-CIO, CLC, 339 NLRB 361 (2003), citing National Steel and Shipbuilding Co. and Shopmens Local 627, affiliated with the International Association of Bridge, Structural, and Ornamental Ironworkers, AFL-CIO, and International Brotherhood of Electrical Workers Local 569, AFL-CIO, and Shipwrights, Boatbuilders & Helpers, Carpenters Local 1300, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and International Association of Machinists and Aerospace Workers Local Lodge 389, District Lodge 50, AFL-CIO, 324 NLRB 499 (1997), enforced, National Steel and Shipbuilding Co. v. NLRB,156 F.3d 1268 (D.C. Cir. 1998); F. W. Woolworth Co., 310 NLRB 1197 (1993).
516 F. W. Woolworth Co., 310 NLRB 1197 (1993). The test to determine whether camera surveillance is lawful is whether the photographing or videotaping has a reasonable tendency to interfere with protected activity under the circumstances in each case. National Steel and Shipbuilding Co., 324 NLRB 499 (1997), enforced, National Steel and Shipbuilding Co. v. NLRB, 156 F.3d 1268 (D.C. Cir. 1998), citing, F. W. Woolworth Co., 310 NLRB 1197 (1993).
517 Decision and Order, Wal-Mart Stores, Inc., and UFCW Local 7, UFCW International Union, NLRB Div. of Judges, Case Nos. 27-CA-18206-2, 27-CA-18206-3, 27-CA-18206-4 (July 22, 2003).
518 Sams Club, a Division of Wal-Mart Corporation,342 NLRB No. 57 (2004).
519 Human Rights Watch interview with Marsha Wardingly, March 23, 2005.
520 Human Rights Watch interview with Dina Eldridge, March 24, 2005.
521 Human Rights Watch, Unfair Advantage, p. 56; Gorman, Finkin, eds., Basic Text on Labor Law, Unionization and Collective Bargaining, pp. 83-88.
522 Sonoma Mission Inn and Spa and Hotel, Motel & Restaurant Employees & Bartenders Union Local 18, Hotel Employees and Restaurant Employees (HERE) International Union, AFL-CIO, 322 NLRB 898 (1997); D & E Electric, Inc., and Local 1, International Brotherhood of Electrical Workers, AFL-CIO, 331 NLRB 1037 (2000).
523 Unions alleged unlawful unit packing between 2000 and 2005 at Wal-Mart facilities in Palestine, Texas; Las Vegas, Nevada; and Loveland, Colorado. In each case, however, the NLRB ultimately rejected the allegations, finding that Wal-Mart had legitimate business reasons for the hires and transfers.
524 Human Rights Watch interview with James Porcaro, August 9, 2005.
525 Human Rights Watch interview with Tony Kuc, March 16, 2005.
526 Human Rights Watch interview with member of Wal-Mart store management team speaking on condition of anonymity, March 17, 2005.
527 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003).
528 Human Rights Watch interview with James Porcaro, August 9, 2005.
529 Insight Communications Company and David Beebe, 330 NLRB 431 (2000); Marriott Corporation and Robert Elliott and Earle Timmins and Keith Watkins, 310 NLRB 1152 (1993).
530 NLRB v. Exchange Parts Co., 375 U.S. 405 (1964).
531 Lampi, L.L.C. and International Brotherhood of Electrical Workers Local 558 and Lomas West, 322 NLRB 502 (1996). Under US law, it is the promise, expressed or implied, to remedy the grievances that constitutes the essence of the violation, and the solicitation of grievances in the midst of a union campaign inherently constitutes an implied promise to remedy the grievances. Clark Distribution Systems, Inc., and Patrick Anthony and Jason Lamatsch, 336 NLRB 747 (2001), citing Capitol EMI Music, Inc., and Chauffeurs, Teamsters and Helpers Local 391, affiliated with International Brotherhood of Teamsters, 311 NLRB 997 (1993), enforced, Capitol EMI Music, Inc., v. NLRB, 23 F.3d 399 (4th Cir. 1994).
532 Uarco, Inc., and Printing Specialties and Paper Products Union, District Council No. 2, International Printing and Graphics Communications Union, AFL-CIO, 216 NLRB 1 (1974); Traction Wholesale Center Co., and Teamsters Union Local 115, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, 328 NLRB 1058 (1999); Decision and Order, Capitol EMI Music, Inc., 311 NLRB 997 (1993), enforced, Capitol EMI Music, Inc., v. NLRB, 23 F.3d 399 (4th Cir. 1994).
533 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16832, et al. (February 28, 2003).
534 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003).
535 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 11-CA-19105, 11-CA-19121 (September 10, 2003).
536 Human Rights Watch interview with John Weston, March 17, 2005.
537 Wal-Mart Stores, Inc., and UFCW International Union, 335 NLRB 1310 (2001).
538 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case No. 6-CA-31556 (November 12, 2003), G.C. Exh. 13.
539 Parma Industries, Inc., and Wolverine Metal Specialties, Inc., and International Union, UAW Local 62, 292 NLRB 90 (1988); Gupta Permold Corporation and United Steelworkers of America, AFL-CIO-CLC, 289 NLRB 1234 (1988). An exception to this general rule is permitted only in cases in which the employer . . . make[s] it clear to the employees that the adjustment would occur whether or not they select a union, and that the sole purpose of the adjustment's postponement is to avoid the appearance of influencing the election's outcome. Atlantic Forest Products, Inc., and United Warehouse, Industrial and Affiliated Trades Employees Union Local 20408, 169 NLRB 1153 (1987); Uarco, Inc., 216 NLRB 1 (1974).
540 NLRB v. Dons Olney Foods, Inc., 870 F.2d 1279 (7th Cir. 1989).
541 Decision and Order, Sams Club, a Division of Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-17057, et al. (November 29, 2002).
542 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16831, et al. (September 24, 2002).
543 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 8-CA-32441, et al. (August 6, 2002).
544 Rossmore House and HERE Union Local 11, HERE International Union, AFL-CIO, 269 NLRB 1176 (1984). The test for assessing the legality of interrogation regarding union sympathies is whether under all the circumstances, the interrogation reasonably tends to restrain or interfere with employees in the exercise of their statutory rights. Mathews Readymix, Inc., and General Teamsters, Professional, Health Care and Public Employees Local 137, International Brotherhood of Teamsters, AFL-CIO, 324 NLRB 1005 (1997); see also, Rossmore House, 269 NLRB 1176 (1984).
545 Rossmore House, 269 NLRB 1176 (1984).
546 Decision and Order, Wal-Mart Stores, Inc.,NLRB Div. of Judges, Case Nos. 28-CA-16831, et al. (September 24, 2002).
547 Human Rights Watch interview with Valerie González, March 21, 2005.
548 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16831, et al. (September 24, 2002).
549 Wal-Mart Stores, Inc., 335 NLRB 1310 (2001).
550 Sams Club, a Division of Wal-Mart Corporation, 342 NLRB No. 57 (2004).
551 Decision and Order, Sams Club, a Division of Wal-Mart Corporation and Alan T. Peto, an Individual, and UFCW International Union, AFL-CIO, CLC, NLRB Div. of Judges, Case Nos. 28-CA-16669, 28-CA-16939, 28-CA-16954 (December 6, 2001).
552 Sams Club, a Division of Wal-Mart Corporation, 342 NLRB No. 57 (2004).
553 Kinder-Care Learning Centers, Inc., and UAW, District 65, AFL-CIO, 299 NLRB 1171 (1990).
554 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 8-CA-32441, et al. (August 6, 2002).
555 Human Rights Watch interview with Chris Davis, June 15, 2005.
556 Human Rights Watch interview with Pat Quinn, June 13, 2005.
557 Human Rights Watch interview with Jared West, July 17, 2005.
558 Human Rights Watch interview with Cory Butcher, March 25, 2005.
559 Wal-Mart Stores, Inc., Wal-Mart Corporate Policy: Solicitation & Distribution of Literature, March 31, 2006.
560 The policy defines working areas as [a]ll areas except breakrooms, restrooms, lobbies, and Associate parking areas. Ibid.
561 The policy defines working time as [w]orking time of both the Associate doing the soliciting and/or distributing and the Associate to whom the distribution and/or the soliciting is directed against. Working time does not include break, meals and time before and after work. Ibid.
562 Ibid. Wal-Marts solicitation and distribution of literature policy has changed little since the NLRB rulings against the company described in this section. See, e.g., Wal-Mart Stores, Inc., Wal-Mart Corporate Policy: Solicitation & Distribution of Literature, Policy PD-38, 2002 (on file with Human Rights Watch); Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-18255, et al. (April 26, 2004).
563 NLRB v. Babcock & Wilcox, Co., 351 U.S. 105 (1956); Riesbeck Food Markets, Inc., and UFCW International Union Local 23, AFLCIO, CLC, 315 NLRB 940 (1994).
564 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-18255, et al. (April 26, 2004).
565 Gorman, Finkin, eds., Basic Text on Labor Law, Unionization and Collective Bargaining, pp. 230-31; see Essex International, Inc., and International Union, UAW, 211 NLRB 749 (1974); see also, Stoddard-Quirk Manufacturing Co. and International Woodworkers of America, AFL-CIO, 18 NLRB 615 (1962); J. C. Penney Company, Inc., and Retail and Department Store Employees, Amalgamated Clothing and Textile Workers Union, AFL-CIO, 266 NLRB 1223 (1983); Clinton Electronics Corporation and United Steelworkers of America, AFLCIO, CLC, 332 NLRB 479 (2000).
566 Decision and Order, Wal-Mart Stores, Inc., and UFCW, AFL-CIO, NLRB Div. of Judges, Case Nos. 12-CA-20986-1, 12-CA-20986-2 (October 3, 2001).
567 Wal-Mart Stores, Inc., and UFCW International Union, AFL-CIO, CLC, 340 NLRB 1216 (2003).
568 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16831, et al. (September 24, 2002).
570 Human Rights Watch interview with Angie Griego, March 21, 2005.
571 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16831, et al. (September 24, 2002).
573 Human Rights Watch interview with Angie Griego, March 21, 2005.
574 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16831, et al. (September 24, 2002).
576 Decision and Order, Sams Club, a Division of Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-17057, et al. (November 29, 2002).
577 Gorman, Finkin, eds., Basic Text on Labor Law, Unionization and Collective Bargaining, pp. 230-32.
578 Meijer v. NLRB, 130 F.3d 74 (6th Cir. 1996); see also, NLRB v. United Steelworkers of America, 357 U.S. 357 (1958); Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
579 Supplemental Decision, Sams Club, a Division of Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-17057, et al. (May 25, 2004).
581 Human Rights Watch interview with Gail Hass, March 25, 2005.
582 Human Rights Watch interview with Dina Eldridge, March 24, 2005.
583 Decision and Order, Sams Club, a Division of Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-17057, et al. (November 29, 2002).
585 Wal-Mart Stores, Inc., and UFCW Local Union 1000, 340 NLRB 637 (2003).
586 Human Rights Watch interview with Angie Griego, March 21, 2005. The union did not include charges of unlawful confiscation of union-related materials among the allegations of unfair labor practices at Wal-Marts East Tropicana Avenue, Las Vegas, Nevada, facility. Therefore, the NLRB has not addressed this issue in this case.
587 Romar Refuse Removal, Inc., and Local 813, International Brotherhood of Teamsters, AFL-CIO, 314 NLRB 658 (1994); Alle-Kiski Medical Center, 339 NLRB 361 (2003), citing NCR Corporation and Communications Workers of America Local 4900, AFL-CIO, 313 NLRB 574(1993).
588 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 12-CA-20986-1, 12-CA-20986-2 (October 3, 2001).
590 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-18255, et al. (April 26, 2004).
593 Decision and Order, Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-16831, et al. (September 24, 2002).
594 Human Rights Watch interview with Norine Sorensen, March 25, 2005.
595 Human Rights Watch interview with Cory Butcher, March 25, 2005.
596 Human Rights Watch interview with Dina Eldridge, March 24, 2005.
597 Human Rights Watch interview with Marsha Wardingly, March 23, 2005.
598 Supplemental Decision, Sams Club, a Division of Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-17057, et al. (May 25, 2004). The 2004 ALJ decision affirmed and amended the decision in this case on November 29, 2002. See Decision and Order, Sams Club, a Division of Wal-Mart Stores, Inc., NLRB Div. of Judges, Case Nos. 28-CA-17057, et al. (November 29, 2002).
599 Letter from Tovar, October 5, 2006.