Schlein testified that Dehlendorf's instruction meant she was âlooking to send ...... UFCW staff, in collaboration wit
UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD
WAL-MART STORES, INC. Respondent,
Case 16-CA-096240 16-CA-105873 16-CA-108394 16-CA-113087 16-CA-122578 16-CA-124099 21-CA-105401 26-CA-093558 13-CA-107343
and THE ORGANIZATION UNITED FOR RESPECT AT WALMART (OURWALMART), Charging Party.
WAL-MART STORES, INC.’S BRIEF IN SUPPORT OF EXCEPTIONS TO THE JANUARY 21, 2016 DECISION OF THE ADMINISTRATIVE LAW JUDGE
STEPTOE & JOHNSON LLP 201 East Washington Street, Suite 1600 Phoenix, AZ 85004-2382 Telephone: (602) 257-5200 Facsimile: (602) 257-5299 Steven D. Wheeless Alan Bayless Feldman Email:
[email protected] [email protected] Attorneys for Wal-Mart Stores, Inc.
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TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iv STATEMENT OF THE CASE ....................................................................................................... 1 QUESTIONS PRESENTED........................................................................................................... 4 ALJ INTERMITTENT WORK STOPPAGE FINDINGS ............................................................. 6 FACTUAL BACKGROUND ......................................................................................................... 7 I.
THE ADs PARTICIPATED IN A UFCW/OWM ORCHESTRATED SERIES OF INTERMITTENT WORK STOPPAGES FOR A COMMON PLAN OR PURPOSE. (EXCEPTIONS 1-15.) .............................................. 9 A.
Each AD Participated In At Least One Of The Work Stoppage Waves And Knew About – And Made Common Cause With – Prior Work Stoppages. ................................................................................ 9
B.
UFCW/OWM Conducted Four Waves Of Short-Duration Work Stoppages, Recruited And Paid Participants, And “Really Redefin[ed]” The Strike. ....................................................................................... 10 1.
The UFCW Chose The Strike Tactic And Recruited Participants. ........... 10
2.
The UFCW Covered All Costs Of Its Set-Length Work Stoppages. ........ 13
3.
Schlademan “Redefin[ed]” The Strike...................................................... 14
C.
UFCW/OWM Promised To Continue The Intermittent Work Stoppages. ........... 14
D.
The UFCW/OWM Orchestrated A Pre-Conceived Series Of Intermittent Work Stoppages For A Common Plan Or Purpose........................... 16 1.
The ALJ Found That UFCW/OWM Orchestrated A Pre-Conceived Series Of IWS Work Stoppages For A Common Plan Or Purpose. ..................................................................................................... 16
2.
The UFCW Stipulated To Common Planning For All Work Stoppages And Stipulated To A Common And Constant Economic Objective................................................................... 16
3.
During The Relevant Period, The UFCW Believed That Walmart’s Lower Labor Costs Undermined Existing Union-Represented Jobs. .......................................................................... 16
4.
The UFCW Believed It Had To Force Walmart To “Raise The Bar” (Increase Labor Costs) To Avoid Losing More DuesPaying Jobs. .............................................................................................. 17
5.
The UFCW Created OURWalmart To “Deal With Walmart.” ................ 19
6.
Schlademan And Dehlendorf Decided It Would Take A Sustained Campaign Of “Crisis Compression Moments” To Change Walmart. ............................................................... 23
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E. II.
7.
Dehlendorf Began Building Name ID For OWM And Road-Testing The Raise-The-Bar Messaging In 2011. ............................ 27
8.
In February 2012, Schlademan And Dehlendorf Set Their Pre-conceived IWS “Crisis Compression Moments” Strategy In Motion. ................................................................. 28
9.
UFCW/OWM Initiated, Planned, And Executed The Four Waves Of Work Stoppages Using The Same Months-Long Preparation Pattern. ............................................................ 31
10.
The UFCW Confirmed Work Stoppage Dates Weeks And Months In Advance Of Any Actual Work Stoppage. ....................... 34
11.
UFCW/OWM Employed The Same IWS Pattern And Techniques In Each Of The Four Waves Of Work Stoppages. ................ 37
12.
UFCW/OWM Orchestrated The Four Waves Of Work Stoppages For A Common Purpose; The Raise-The-Bar Objective Never Changed. ................................................................................................... 41
Walmart Applied Its Attendance Policy In A Uniform, Non-Discriminatory Manner. ................................................................................ 45
THE COMPLAINT RAISES CERTAIN ADDITIONAL INDIVIDUAL ISSUES. ....... 46 A.
B.
C.
ADs Colby Harris And Mark Bowers Started The May-June Wave Of IWS With A May 6, 2013 Work Stoppage. .......................................... 46 1.
Harris and Bowers Engaged In A May 6 IWS As Part Of The UFCW’s Overarching IWS Campaign. ........................................ 46
2.
Management Issued Harris And Bowers Attendance-Related Discipline Based On Their Failure To Work Their Scheduled Shifts........................................................................................ 47
Certain Other AD Situations Involved Unique Issues. ......................................... 48 1.
Walmart Told Gertz It Would Not Hold Her Work Stoppage Absences Against Her. .............................................................. 48
2.
Walmart Cancelled The Personal Discussion It Issued To Slowey. ......... 48
3.
Martinez Incurred Sufficient Non-Work Stoppage Absences To Warrant A Personal Discussion In December 2012. ........... 49
4.
Juanitas Incurred Sufficient Non-Work Stoppage Absences To Warrant A Personal Discussion In June 2013. .................... 50
5.
Walmart Discharged Davis Because She Simply Stopped Showing Up For Work After Her SW Work Stoppage. ............. 51
The ADs Abandoned Shifts For Personal Business And To Attend Events Unrelated To Any Work-Related Protest. ............................... 52
ARGUMENT ................................................................................................................................ 54 ii 8999820
I.
WALMART FOLLOWED WELL-ESTABLISHED COURT AND BOARD LAW WHEN IT APPLIED ITS ATTENDANCE POLICY TO THE IWS ABSENCES. (EXCEPTIONS 16-27.) ....................................... 54 A.
B. II.
III.
The ALJ Erred By Overlooking The Fundamental Rationale For The Supreme Court’s IWS Rule And Creating Inconsistent Elements Of Proof................................................................................................. 54 1.
The Courts And Board Hold That The Act Does Not Give Employees The Right To Come And Go From Work Anytime They See Fit. .............................................................................. 55
2.
The ALJ Reshaped Two Generic IWS Descriptors To Create Artificial IWS Factors That Are Inconsistent With Controlling Law. ....................................................................................... 62
3.
The ALJ Improperly Discounted Additional Evidence Of The Unprotected “Inherent Character” Of The UFCW’s IWS Campaign. ......................................................................... 75
Walmart Lawfully Applied Its Attendance Policy To The UFCW/OWM’s Shareholder Week IWS Absences. ............................................ 77
WALMART LAWFULLY NOTIFIED CERTAIN ASSOCIATES THAT THE ACT DOES NOT PROTECT IWS. (EXCEPTIONS 28-34.) ..................... 78 A.
An Employer Does Not Violate The Act By Telling Employees That It Will Apply Its Work Rules To Unprotected Activity. .............................. 78
B.
The ALJ Erred By Failing To Apply Controlling Board Law And Misquoting The Record. ....................................................................................... 80
WALMART ACTED LAWFULLY WITH RESPECT TO THE INDIVIDUAL ISSUES RAISED IN THE CASE. ........................................................... 82 A.
Management Lawfully Applied The Attendance Policy To The May 6 IWS. (Exception 35.) .................................................................... 82
B.
Walmart Dealt Lawfully With Certain Other Unique AD Situations. .................. 82 1.
Walmart’s Personal Discussion Does Not Constitute Discipline. (Exception 36-40.) ................................................ 82
2.
Walmart Did Not Take Any Adverse Employment Actions Against Gertz or Slowey. (Exceptions 43-46.) ............................ 86
3.
The ALJ Erred In Holding Walmart Violated The Act By Issuing The December 17 Personal Discussion To Martinez. (Exceptions 47-53.) ............................................................. 86
4.
The ALJ Erred In Holding That Walmart Violated The Act By Issuing A Personal Discussion To Juanitas. (Exceptions 54-59.) .............................................................. 87
5.
The ALJ Erred By Holding That Walmart Violated The Act By Discharging Davis. (Exceptions 54-59.) ............................... 88 iii 8999820
C.
Walmart Lawfully Applied Its Attendance Policy To ADs Who Abandoned Work For Non-Work-Related Reasons. (Exceptions 60-62.) ... 90
D.
The CGC Did Not Allege Or Litigate That Stonehouse’s Absence Constituted Discipline And An Absence Is Not Discipline. (Exception 63-74.) ................................................................................................................... 91
IV.
THE ALJ ERRED BY DECLINING TO ADDRESS WHETHER THE “UNDER REVIEW” STATEMENT WAS LAWFUL BECAUSE IT DID NOT IMPLICATE PROTECTED ACTIVITY. (EXCEPTION 75.) .................. 93
V.
THE ALJ ERRED BY RULING THE TOVAR NEWS SEGMENTS ADMISSIBLE. (EXCEPTION 76.) .................................................................................. 93
VI.
THE ALJ ERRED BY ORDERING THE EXTRAORDINARY REMEDY OF A NOTICE READING. (EXCEPTIONS 77-80.) .................................... 94
VII.
THE ALJ ERRED BY LISTING ALL DISCIPLINED AND DISCHARGED ASSOCIATES FROM DIFFERENT STORES IN THE REMEDIAL NOTICES. (EXCEPTION 81.) ........................................................................................ 96
VIII.
THE ALJ FAILED TO ADDRESS MATERIAL EVIDENCE ON THE VACANCY ACT ISSUE. (EXCEPTIONS 82-87.) ........................................................ 97
IX.
THE CGC’S FILED AN UNTIMELY AMENDMENT TO ADD A SEARCH-FOR-WORK-EXPENSES REMEDY ON THE LAST DAY. (EXCEPTION 88.) ............................................................................ 99
CONCLUSION ........................................................................................................................... 100
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TABLE OF AUTHORITIES Page(s) CASES Auto Workers UAW Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245 (1949) .................................................................................................................55 Bus. Services by Manpower, Inc. v. NLRB, 784 F.2d 442 (2d Cir. 1986)...............................................................................................76, 75 Chamber of Commerce of U.S. v. Brown, 554 U.S. 60 (2008) ...................................................................................................................94 City Fed. Savs. & Loan Ass’n v. Fed. Home Loan Bank Bd., 600 F.2d 681 (7th Cir. 1979) ...................................................................................................98 Dayton Newspapers, Inc. v. NLRB, 402 F.3d 651 (6th Cir. 2005) ...................................................................................................75 Excavation-Constr., Inc. v. NLRB, 660 F.2d 1015 (4th Cir. 1981) .................................................................................................56 Gen. Elec. Co. v. UAW, 568 F. Supp. 1138 (S.D. Ohio 1983) .......................................................................................94 Greene v. McElroy, 360 U.S. 474 (1959) ...............................................................................................................100 Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215 (10th Cir. 2006) ...............................................................................................83 Home Beneficial Life Insurance Co. v. NLRB, 159 F.2d 280 (4th Cir. 1947) .............................................................................................56, 66 In re Cassidy, 892 F.2d 637 (7th Cir. 1990) ...................................................................................................99 Indep. Elec. Contractors v. NLRB, 720 F.3d 543 (5th Cir. 2013) ...................................................................................................92 Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109 (7th Cir. 2001) .................................................................................................83 Liberty Mut. Ins. Co. v. NLRB, 592 F.2d 595 (1st Cir. 1979) ....................................................................................................56
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Machinists Lodge 76, v. Wisconsin Empl. Rel. Commn., 427 U.S. 132 (1976) .....................................................................................................55, 56, 74 Marlene Indus. v. NLRB, 712 F.2d 1011 (6th Cir. 1983) ...............................................................................................100 Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997) ...................................................................................................83 Morton Salt Co. v. NLRB, 472 F.2d 416 (9th Cir. 1972) ...................................................................................................99 Ne. Beverage Corp. v. NLRB, 554 F.3d 133 (D.C. Cir. 2009) .................................................................................................90 NLRB v. Blades Mfg. Co., 344 F.2d 998 (8th Cir. 1965) .................................................................................56, 57, 70, 72 NLRB v. Insurance Agents, 361 U.S. 477 (1960) .....................................................................................................55, 57, 70 NLRB v. Jasper Seating Co., 857 F.2d 419 (7th Cir. 1988) .............................................................................................61, 73 NLRB v. McEver Engineering., Inc., 784 F.2d 634 (5th Cir. 1986) ...................................................................................................61 NLRB v. Robertson Industries, 560 F.2d 396 (9th Cir. 1976) .......................................................................................61, 73, 76 Roseville Dodge v. NLRB, 882 F.2d 1355 (8th Cir. 1989) ...........................................................................................61, 73 Salt River Valley Water Users’ Ass’n v. NLRB, 769 F.2d 639 (9th Cir. 1985) ...................................................................................................96 Shakman v. City of Chicago, 2014 WL 711010 (N.D. Ill. Feb. 21, 2014) .............................................................................96 Southwest General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015) ...................................................................................................97 Tepperwien v. Entergy Nuclear Ops., Inc., 663 F.3d 556 (2d Cir. 2011).....................................................................................................83 United States v. Sarro, 742 F.2d 1286 (11th Cir. 1984) ...............................................................................................94
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Weeks v. N.Y. State, 273 F.3d 76 (2d Cir. 2001).......................................................................................................83 AGENCY PROCEEDINGS A-1 Fire Prot., Inc., 273 NLRB 964 (1984) .............................................................................................................97 Altercare of Wadsworth Ctr. for Rehab., 355 NLRB 565 (2010) .............................................................................................................83 Audubon Health Care Ctr, 268 NLRB 135 (1983) .............................................................................................................60 Bingham-Willamette Co., 199 NLRB 1280 (1972) ...........................................................................................................96 Bob’s Ambulance Serv., 183 NLRB 961 (1970) .............................................................................................................99 Care Center of Kansas City, 350 NLRB 64 (2007) .......................................................................................58, 66, 68, 70, 72 Chelsea Homes, Inc., 298 NLRB 813 (1990) .......................................................................................................62, 73 City Dodge Center, 289 NLRB 194 (1988) .............................................................................................................61 CL Frank, 358 NLRB No. 111 (2012) ................................................................................................61, 73 Connecticut Distributors, Inc., 255 NLRB 1255 (1981) ..................................................................................................... 90-91 Crenlo, 215 NLRB 872 (1974) .............................................................................................................73 Crown Coach Corp., 155 NLRB 625 (1965) .............................................................................................................90 Dallas Glass, 2013 WL 703258 (Div. of Judges)..........................................................................61 Desert Aggregates, 340 NLRB 289 (2003) .............................................................................................................92 Eckert Fire Prot., Inc., 332 NLRB 198 (2000) .............................................................................................................90 vii 8999820
Edro Corp., 362 NLRB No. 53 (Mar. 31, 2015)..........................................................................................94 Embossing Printers, Inc., 268 NLRB 710 (1984) .....................................................................................59, 60, 70, 79, 80 Farley Candy Co., 300 NLRB 849 (1990) .......................................................................................................62, 73 Farm Fresh Co., Target One, LLC, 361 NLRB No. 83 (Oct. 30, 2014)..................................................................................... 95-97 Ferenbach, Inc., 212 NLRB 896 (1974) ............................................................................................................93 First Nat’l Bank, 171 NLRB 1145 (1968) ...........................................................................................................75 Fred Jones Mfg. Co., 239 NLRB 54 (1978) ...............................................................................................................82 GK Trucking Corp., 262 NLRB 570 (1982) .............................................................................................................90 Good Hope Refineries, 245 NLRB 380 (1979) .......................................................................................................83, 85 Gulf Coast Oil Co., 97 NLRB 1513 (1952) .............................................................................................................90 Hanover House Indus., 233 NLRB 164 (1977) .............................................................................................................94 Honolulu Rapid Transit Co., 110 NLRB 1806 (1954) ...................................................................................57, 58, 66, 72, 75 Indiana Ready Mix Corp., 141 NLRB 651 (1963) .............................................................................................................75 Kohler Co., 108 NLRB 207 (1954) .............................................................................................................58 Lancaster Fairfield Comm. Hosp., 311 NLRB 401 (1993) .......................................................................................................82, 93 Mal Landfill Corp., 210 NLRB 167 (1974) .............................................................................................................93
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McDonald’s USA, LLC, 363 NLRB No. 91 (2016) ........................................................................................................99 McGuire Steel Erection, Inc., 324 NLRB 221 (1997) .............................................................................................................94 Merillat Indus., 307 NLRB 1301 (1992) ...........................................................................................................90 Metal Polishers Local 67, 200 NLRB 335 (1972) .............................................................................................................93 Monroe Auto Equip. Co., 159 NLRB 613 (1966) .............................................................................................................94 National Steel and Shipbuilding Co., 324 NLRB 499 (1997) .........................................................................59, 70, 78, 79, 80, 81, 82 New Fairview Hall Convalescent Home, 206 NLRB 688 (1973). ................................................................................................79, 80, 81 New Process Co., 290 NLRB 704 (1988) .............................................................................................................94 Oak Park Nursing Care Ctr., 351 NLRB 27 (2007) ......................................................................................................... 83-84 Pacific Telephone & Telegraph Co., 107 NLRB 1547 (1954) .........................................................................................60, 63, 66, 78 Pecheur Lozenge Co., 98 NLRB 496 (1952) ...............................................................................................................75 Pennsylvania American Water Co., 362 NLRB No. 18 (2015) ................................................................................66, 67, 68, 79, 80 Pergament United Sales, Inc., 296 NLRB 333 (1989) .............................................................................................................92 Phoenix Processor, 348 NLRB 28 (2006) ...............................................................................................................86 Pink Supply Corp., 249 NLRB 674 (1980) .............................................................................................................86 Polytech, Inc., 195 NLRB 695 (1992) ........................................................................................... 62, 64-65, 73
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Promedica Health Sys., 343 NLRB 1351 (2004) ..................................................................................................... 83-84 Quantum Elec., Inc., 341 NLRB 1270 (2004) ...........................................................................................................90 Robertson Industries, 216 NLRB 361 (1975) .......................................................................................................61, 76 Saginaw Control & Engineering, 339 NLRB 541 (2003) .............................................................................................................86 Savage Gateway Supermarket, Inc., 286 NLRB 180 (1987) ....................................................................................................... 90-91 St. George Warehouse, 351 NLRB 961 (2007) ...........................................................................................................100 St. James Mercy Hosp., Inc., 307 NLRB 322 (1992) .............................................................................................................96 Terri Lee, Inc., 107 NLRB 560 (1953) .............................................................................................................90 Texas Gas Corp., 136 NLRB 355 (1962) .............................................................................................................76 Tube Craft, 287 NLRB 491 (1987) .............................................................................................................93 United States Service Industries., 315 NLRB 285 (1994) .......................................................................................................62, 73 U.S. Elec. Motors, 261 NLRB 1343 (1982) ...........................................................................................................94 W. Wirebound Box Co., 191 NLRB 748 (1971) .......................................................................................................58, 72 WestPac Elec., 321 NLRB 1322 (1996) .....................................................................................................61, 73 CONSTITUTIONS First Amendment ...........................................................................................................................94 STATUTES 5 U.S.C. § 3345(b) .........................................................................................................................97 x 8999820
NLRA.................................................................................................1, 3, 56, 79, 81, 86, 87, 94, 96 OTHER AUTHORITIES Allied Int’l, 1984 WL 47422 (NLRB GC) .....................................................................................94 Associated Grocers, 1978 WL 14140 *3 (NLRB GC) ..................................................................76 Calmex, Inc., Advice Mem., 2006 WL 5054747 ...........................................................................90 RESTATEMENT (THIRD) OF AGENCY § 4.05 (2006) ........................................................................98
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STATEMENT OF THE CASE The United State Supreme Court says that the Act does not give employees the right to usurp control over their work schedules – repeatedly dictating when they will come and go from work – for a common plan or purpose. The Court, federal courts of appeals, and the Board all recognize that the “intermittent work stoppage” tactic represents a type of employeeinsubordination (“I will work when I see fit”) that improperly interferes with the employer’s legitimate need for a reliable and predictable work force and work schedule. According to the Court, neither the courts nor the Board may regulate the “intermittent work stoppage” tactic; it must be left to the free play of market forces under Machinist. Not surprisingly then, Walmart is not aware of a single Board or Court case that extends the Act’s protections to a proven strategy of intermittent work stoppages for a common plan or purpose. And in the case below, the Administrative Law Judge found – and the real-party-in-interest Union stipulated – that the Union conceived of and implemented a strategy of intermittent work stoppages in 2012 and 2013 for a common plan or purpose: to pressure Walmart to “raise the bar” on working conditions. Each time, the Union unilaterally dictated when the participating employees would come to and when they would go from work; usurping control over the work schedule for the same reason over and over and over again. Thus, when the ALJ analyzed whether Walmart lawfully applied its attendance policy to the Union’s third wave of intermittent work stoppages, the ALJ’s IWS finding and the Union’s stipulation should have ended the inquiry. However, contrary to the Supreme Court’s directive and the Board’s own uniform jurisprudence, the ALJ found that the Act did protect the proven strategy of intermittent work stoppages for a common plan or purpose at issue here. He arrived at that novel finding by first completely ignoring the very reason for the IWS rule: the NLRA does not give employees the
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right to dictate their own work schedules. He did not even mention that fundamental rationale. Instead, he pointed to the factual context of a few IWS cases and summarily concluded that the context created a rule of law. Under his “factual circumstances = rule of law” approach, the ALJ determined that unprotected “intermittent” work stoppages are only (a) “brief” work stoppages of no more than one or two shifts (b) “grouped” together in some undefined temporal period. Likewise, the ALJ – based on the context of some IWS cases – concluded that the IWS rule applies only in a single context: a union strategy to pressure an employer during – and only during – collective bargaining. Those first-ever findings are error. The Board routinely applies the IWS rule to “common plan or purpose” work stoppages in non-CBA settings. And no case has ever limited the IWS rule to one- or two-shift, temporally-grouped strikes. To the contrary, those characteristics cannot serve as a principled basis for making work stoppages unprotected because the Board and courts consistently point to “brief” and “temporally grouped” work stoppages that are protected. The difference is that repeated, brief, temporally-grouped protected strikes arise from separate causes; i.e., they do not seek to repeatedly usurp control over the work schedule for the same unchanging reason, while repeated, brief, temporally-grouped unprotected strikes do. Thus, the IWS rule and cannot viably rest on whether pre-determined, set-length work stoppages last one shift or six or occur every week or every six months. In the “plugged-in” world of 2016, employees – and unions – who want to put consistent, momentum-building pressure on an employer for some long-term, unchanging objective don’t limit themselves to a strategy of “temporally-grouped” pressure tactics; they attack the employer’s brand on key dates – whenever those dates may be – when the employer’s image and reputation are most vulnerable. That is exactly what happened here. In this case, the UFCW planned and executed repeated “waves” of same-purpose strikes (with concurrent mass
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demonstrations) to create publicity “crisis compression moments” at multiple facilities on dates when Walmart would be most vulnerable to reputational attack in the media: October/November 2012 (Walmart’s “Wall Street Week” and Black Friday) and June/November 2013 (Walmart’s annual shareholder meeting and Black Friday), with the first, second, and fourth work-stoppage waves planned for one or two shifts and the third wave a bit longer, two-to-nine shifts, depending on the strikers’ work schedules. In each case, the UFCW and participating employees usurped control over their work schedules whenever they saw fit as part of their ongoing “raise the bar” campaign; calling into play the Supreme Court’s rationale for the IWS rule. Under that established rule, it is the attempt to dictate the work schedule on a repeated basis with set-length absences for the same purpose that places IWS outside the Act’s affirmative protections, not some artificial number of abandoned shifts or undefined “temporal” grouping. Those factors do nothing to address the underlying reason for the rule. To be sure, employees may certainly withhold their labor to protest a disputed working condition, but federal law does not give them the right to come and go from work anytime they see fit to protest that same issue over and over and over again. The Act does not create “NLRA Intermittent Strike Leave.” Nor does it create the right to “strike on the installment plan.” To the contrary, the Board and Courts repeatedly and uniformly hold that employees – and unions – may not “arrogate[] [to themselves] the right to determine their schedules and hours of work.” The Board and the Courts’ IWS rule applies to (a) intermittent work stoppages, (b) for a common plan or purpose. The ALJ found those factors present here and the UFCW stipulated to those facts at trial. Consequently, Walmart lawfully applied its attendance policy to the thirdwave of IWS absences that the UFCW admittedly orchestrated as part of a strategy of repeated striking in support of an unchanging, “raise the bar” objective.
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QUESTIONS PRESENTED Question 1:
Did the ALJ err on certain factual findings? (Exceptions 1-15, 41-42.)
Question 2:
Did the ALJ err by failing to apply or even mention the fundamental
rationale for the Intermittent Work Stoppage doctrine; i.e., that employees – and unions – may not “arrogate[] [to themselves] the right to determine their schedules and hours of work”? (Exceptions 16-27.) Question 3:
Did the ALJ err by finding that the Act gives employees – and unions –
the right to unilaterally dictate employee schedules and hours of work through a planned strategy of repeated striking in support of a constant, never-changing objective as long as the repeated work stoppages: (1) last for more than one or two shifts; (2) are not “grouped” together; and (3) do not support a preconceived collective bargaining strategy in a union-represented environment? (Exceptions 16-27.) Question 4:
As applied here, did the ALJ err by finding that the Act affirmatively
protected (and the IWS defense did not apply to) the UFCW’s admitted and planned strategy of repeated striking in support of a constant, never-changing objective because the UFCW: (1) dictated that the third wave of striking (in June 2013) would last between two and nine shifts, depending on the strikers’ individual work schedules, instead of just one or two shifts; (2) executed the waves of work stoppages when Walmart would be most vulnerable to brand and reputation attack in the media during its Wall Street Week, Black Friday, and annual Shareholder Meeting events, instead of grouping them together during some undefined temporal period; and (3) executed its IWS strategy to pressure Walmart for the same “raise the bar” objective (wages, benefits, etc.) outside the collective bargaining context? (Exceptions 16-27.)
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Question 5:
Did the ALJ err by finding that Walmart violated the Act by notifying
participants in the UFCW’s on-going intermittent work stoppage campaign that the Company would apply its attendance policy in the future to “union-orchestrated intermittent work stoppages that are part of a common plan or design to disrupt and confuse the Company’s business operations” when that language comes directly from controlling Board law holding that the Act does not protect such intermittent work stoppages? (Exceptions 28-34.) Question 6:
Did the ALJ err by finding that Colby Harris and Mark Bowers engaged in
protected concerted activity by striking on May 6-9, 2013, when they testified that they left work in support of the UFCW’s ongoing IWS campaign? (Exception 35.) Question 7:
Did the ALJ err by finding that Walmart’s attendance-related Personal
Discussion constitutes discipline? (Exceptions 36-40.) Question 8:
Did the ALJ err by finding that Walmart violated the Act by issuing
Personal Discussions to Lawrence Slowey and Barbara Gertz? (Exceptions 43-46.) Question 9:
Did the ALJ err by finding that Walmart violated the Act when it issued a
Personal Discussion to Victoria Martinez? (Exceptions 47-53.) Question 10: Did the ALJ err by finding that Walmart violated the Act when it issued a Personal Discussion to Juan Juanitas? (Exceptions 54-59.) Question 11: Did the ALJ err by finding that Walmart violated the Act by discharging Pamela Davis after she stopped showing up for work for over a month? (Exceptions 54-59.) Question 12: Did the ALJ err by finding that the Act protected associates who purported to go “on strike,” but then used the time off from work to attend educational, non-work related events, and handle personal business? (Exceptions 60-62.)
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Question 13: Did the ALJ err by finding that Walmart violated the Act by “disciplining” Shana Stonehouse because it treated her IWS-related absences as a single unexcused absence where the CGC never alleged that a single unexcused absence constituted discipline, the parties did not litigate the issue, and a single, unexcused absence, does not trigger any discipline of any type? (Exceptions 63-74.) Question 14: Did the ALJ err in his remedial order and notices by including the term “unexcused absence” in his broader reference to “discipline”? (Exceptions 63-74.) Question 15: Did the ALJ err by declining to address Walmart’s alternative argument that a manager’s “under review” statement was permissible because it related to unprotected picketing activity? (Exception 75.) Question 16: Did the ALJ err by admitting the David Tovar television news snippets into evidence? (Exception 76.) Question 17: Did the ALJ err by ordering a notice-reading remedy? (Exceptions 77-80.) Question 18: Did the ALJ err by listing the names of non-store associates in storespecific remedial notices? (Exception 81.) Question 19: Did the ALJ err by not dismissing the complaints actually or apparently approved by Acting General Counsel Solomon? (Exceptions 82-87.) Question 20: Did the ALJ err by allowing the CGC to amend the Complaint on the last day of trial to add “search-for-work” expenses to the remedy request? (Exception 88.) ALJ INTERMITTENT WORK STOPPAGE FINDINGS “In this case, it is fair to say that OURWalmart members have engaged in a pattern of recurring strikes, and have demonstrated their intent to engage in recurring strikes in the future.” [ALJ Dec. 54:46-47.]
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“The evidentiary record does not show that the Ride for Respect strike arose from separate and distinct concerns that associates may have had about the terms and conditions of employment. Instead, the associates submitted strike letters and return to work letters that generally raised the same concerns that OURWalmart set forth in the Declaration of Respect that it presented to Walmart in June 2011 (i.e., concerns about retaliation against associates who speak out about wages, healthcare benefits, and work schedules). The Ride for Respect and associates strikes therefore continued OURWalmart’s campaign to induce Walmart to make changes to its working conditions and workplace policies.” [ALJ Dec. 55:29-36; also 67:2-4.] FACTUAL BACKGROUD The ALJ gives a high-level, but largely accurate overview of the factual context surrounding the preconceived strategy of repeated striking for a common plan or purpose at issue here. However, he does make one consistent labeling error that warrants correction, or at least, clarification. As noted in Exceptions 1 and 3-15, the ALJ labels the driving force behind the preconceived strategy of repeated, single-purpose striking as “OURWalmart.” [See, e.g., ALJ Dec. at 1:33-36 (“The allegations in this case arise out of an ongoing effort by the Organization United For Respect at Walmart (OURWalmart or charging party) to use strikes and other actions to induce Walmart to change the way that Walmart interacts with and manages its associates.”).] But it was not “OURWalmart” (OWM) – as any independent entity – that drove the boat here. As the ALJ repeatedly found throughout his decision, it was the United Food and Commercial Workers International Union staff directors that conceived of the “crisis compression moment” strategy of repeated demonstrations and strikes and planned, coordinated, and conducted those strikes. [See, e.g., ALJ Dec. 14:40-43, 15:6-8.] As the record evidence cited below repeatedly demonstrates, it was also the UFCW – using a small army of 230 paid UFCW organizers – that recruited OWM members and then secured their strike commitments. (The ALJ did not cite that 7 8999820
undisputed record evidence. (Exceptions 1, 3-15.) There is no evidence in the record that a single strike in the multiple waves of multiple intermittent work stoppages would have occurred but for the UFCW making them happen. Indeed, not one of the scores of strike-planning communications by and between UFCW staffers admitted in this case went to any associate OWM member or OWM “leader.” [RT 2850:2-14, 4343:22-4345:24, 4386:6-23, 4452:244453:5, 4843:5-4845:6, 4978:19-4979:9, 5558:3-5559:8, 6071:2-6073:14.] Not one. [See, e.g., RT 2133:10-2135:16 and R. 60; RT 2180:25-2181:17 and R. 70; RT 2267:5-18 and R. 83; RT 2329:12-18 and R. 96.] In fairness to the ALJ, he did describe OWM’s status as a UFCW subsidiary (owned and controlled by the UFCW, per DOL rule) [ALJ Dec. 13:35], so he may simply have used the OWM label as a shortcut when he meant “the UFCW, directly and working through its OWM subsidiary.” However, it is important to recognize that the undisputed record – and the ALJ’s numerous factual findings – establish beyond any doubt that the UFCW was the producer, director, playwright, conductor, stagehand, and grip for the 2012/2013 intermittent work stoppages at issue here. It is true, as discussed below, that it does not matter legally whether one labels the driving force behind the preconceived strategy of striking as the UFCW or OWM because in either event a labor organization (parent or subsidiary) stood behind the strategy of repeated striking in pursuit of an unchanging objective. But Walmart details the full factual background here (noting the ALJ’s parallel findings) to ensure that the Board understands the UFCW’s “area standards” motive behind its multi-million dollar, multi-year intermittent work stoppage campaign. To best reflect the undisputed record evidence and the ALJ’s on-point
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findings, Walmart uses the label “UFCW/OWM” where appropriate to mean “the UFCW, directly and working through its OURWalmart subsidiary.”1 I.
THE ADs PARTICIPATED IN A UFCW/OWM ORCHESTRATED SERIES OF INTERMITTENT WORK STOPPAGES FOR A COMMON PLAN OR PURPOSE. (EXCEPTIONS 1-15.) A.
Each AD Participated In At Least One Of The Work Stoppage Waves And Knew About – And Made Common Cause With – Prior Work Stoppages.
Each alleged discriminatee (AD) who testified acknowledged that he or she participated in at least the Shareholder-Week 2013 work stoppages (also referred to in the record as the “Ride for Respect”).2 Many ADs also participated in one or both of the prior 2012 work stoppage “waves” – during Wall Street Week (WSW) in October and Black Friday (BF) in November – and/or at Black Friday 2013.2 & 3 The parties stipulated to the work-stoppage participation dates for those ADs who did not testify.2 Participating ADs did not report to – or left early from – scheduled, mandatory shifts.2 The ADs who participated for the first time during the SW work stoppages in late-May, early-June 2013 all testified (or otherwise confirmed or the parties stipulated) that they knew about the UFCW’s prior 2012 work stoppages and acted in support of
1
Presumably inadvertently, the ALJ also stated that “The UFCW intended for the Making Change at Walmart campaign to be led by Walmart associates . . . .” [ALJ Dec. at 13:4-8 (Exception 3).] The record (including the record repeatedly cited by the ALJ) establishes that the UFCW staffed its MCAW campaign solely and only with UFCW employees. [R. 24, 306; RT 913:14-916:15, 921:9-923:11.] The UFCW did attempt to develop associate “leaders” under the “OURWalmart” umbrella [R. 45 at 101:18-21, 104 at 100:17-24 & 103:7-104:13 & 105:17-22); RT 988:9-990:9, 1000:2-7], but the OWM initiative was a sub-component of the UFCW’s overall UFCW-directed and led MCAW campaign. [R. 45 at 61:1-62:13; RT 913:20-914:1, 923:12-924:1, 963:6-17, 2064:23-2065:6, 2346:22-2347:14.] 2 See Chart Titled “AD Work Stoppage and Absence Discipline Summary” at Tab A. 3 UFCW/OWM conducted each set of work stoppages in the series at multiple facilities across the country with a “momentum-building” strategy that focused media attention on work stoppages in certain geographic areas and then announced a growing “wave” of work stoppages at other locations in the same timeframe. [See also Part I.D. below.] UFCW/OWM orchestrated work stoppages at 9 stores during WSW (12 AD participants); 13 stores during BF 2012 (27 AD participants); 29 stores during SW 2013 (55 AD participants); and 9 stores during BF 2013 (10 AD participants).2 9 8999820
and made common cause with the 2012 work stoppages when participating in the SW work stoppages.4 The ADs all testified consistently with AD Michael McKeown, who reported that he knew about the November 2012 work stoppages and participated in the SW 2013 work stoppages to “continue the . . . message that Wal-Mart needs to change that had started back in November 2012.”4 [RT 3764:21-3765:5.] B.
UFCW/OWM Conducted Four Waves Of Short-Duration Work Stoppages, Recruited And Paid Participants, And “Really Redefin[ed]” The Strike. 1.
The UFCW Chose The Strike Tactic And Recruited Participants.
The UFCW stipulated at the beginning of the hearing that it is a “real party in interest” in this case. [GC 1(ii) and GC 1(jj) (Protective Orders I and II).] The UFCW further stipulated in Joint Exhibit 1 [“Stipulation regarding future strike activity”] that it “helped plan and assist Walmart workers hold [strikes] in October and November 2012, June 2013, and November 2013.” The UFCW did more than just “plan and assist.” It chose the “strike tactic” as the foundational element of its “crisis compression moments” strategy (discussed below), and it actively “targeted” and recruited Walmart associates to participate in its “strike tactic.”5 & 6 [ALJ Dec. 19:10-12 (“[UFCW/OWM] decided to begin using associate strikes as an additional tactic in its effort to induce Walmart to change its policies.” (emphasis added)); R. 95, 99(c) at 19, 99(d) at 11:34-11:50.]7 As discussed in detail below, the UFCW chose the “strike tactic” to serve as its rallying cry to gain the agreement of allies, affiliates, and activists to participate in the UFCW’s National
4
See Chart Titled “ADs Who Participated in IWS Series for the First Time During the SWWS Knew of the UFCW IWS Campaign and Made Common Cause With It” at Tab B. 5 See Chart Titled “UFCW Chose Strike Tactic” at Tab C. 6 See Chart Titled “UFCW Targeted and Recruited Associates to Engage in IWS” at Tab D. 7 The ALJ did not cite the undisputed record evidence that paid UFCW organizers targeted Walmart associates and recruited them to participate in the UFCW-orchestrated series of strikes. (Exception 7.) 10 8999820
Day of Action (NDA) events.
UFCW Assistant Director Andrea Dehlendorf testified that
“getting an associate striker to participate in a pre-planned action helps amplify the campaign’s message at that action.” [RT 2215:13-16.] Of course, “amplify” means drawing social- and national-media attention to those events (described below), putting enormous negative pressure on Walmart to accede to the UFCW’s demands or face major brand damage, alienated customers, loss of sales, stock losses, and disillusioned investors (discussed below). Dehlendorf and her UFCW staff set “target numbers for strikes.” The UFCW based its “strike” goals on the number of associates the staff thought they could get to participate in the work stoppages. [R. 72 and RT 2191:24-2194:11 (Dehlendorf).] Dehlendorf’s team of UFCW organizers used “strike rap” talking points to recruit associates to “stand and strike.” [ALJ Dec. 36:34-37; RT 2333:18-2336:6 (Dehlendorf) and Jt. 131; R. 134 and RT 2447:19-2451:20 (Blair); RT 2546:10-2547:24 (Albert) and R. 173; RT 2413:2-24 (Schlein).]
Those talking points
included instructions to “agitate” associates to get them “engaged and worked up on whatever issue the individual identified as being a concern to them,” before asking “[w]ill you stand and strike with your co-workers?” [R. 134 and RT 2447:19-2451:20 (Blair).] If associates were hesitant to commit to participating in a work stoppage, the “rap” instructed organizers to respond to objections and then “[r]e direct[] BACK and MAKE[] THE ASK.”
[Id. (emphasis in
original).] UFCW Organizer Matt Loveday instructed his UFCW recruiting team to “ask your leaders to join the national Black Friday Strike leadership team.
This comes with two
responsibilities: first of all, taking part in the Black Friday strike, and second of all, being a leader and leading others to join them.” [R. 233 (emphasis added).] To that second end, the UFCW trained its OWM-leaders to use the “rap” talking points to solicit work stoppage commitments from coworkers. [R. 147 and RT 2496:15-2471:12 (Blair).] The talking points
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instructed the OWM-supporter to “agitate around issues,” before asking “[w]ill you join me in striking Walmart to make change?” [Id.] UFCW Organizer Marcus Hughes conducted training for UFCW/OWM supporters; teaching them how to recruit associates for strike commitments: “[S]ome of them have never struck before . . . so that [talking about striking] might be the third conversation or the fourth conversation that you have with them, but that should never be the first conversation with the associates . . . don’t start off automatically talking about a strike, you’re gonna miss ‘em every time.” [R. ID23, 280 at 0:01-0:24 (emphasis added).] Dehlendorf instructed UFCW “Strategic Campaign Database Coordinator” Ray Suelzer to “do some geographically targeted emails drawing people to the BF strike pledge.” [R. 108.] Schlein testified that Dehlendorf’s instruction meant she was “looking to send out . . . e-mails to try and solicit or attract people . . . specifically Walmart associates to support store actions in their areas . . . [b]oth in terms of a demonstration and also potentially for being willing to strike.” [R. 104 at 73:8-75:7 (Schlein).] Diaz told his local UFCW “strike” recruiter, Kevin Blair, to “Please update and let us know which leaders are willing to do what action,” and Blair reported: “our goal is to have 15 associates strike to go to the shareholder meeting.” [R. 142 (3/18-3/26 email exchange between UFCW lieutenants Diaz and Blair); see also strike-commitment emails at R. 162 (4/4), 256 at 5-6 (4/16).] Schlein explained that “One of the responsibilities that [UFCW] online to offline Organizers had was keeping track of and mapping the associates that they had gotten strike commitments from.” [RT 2412:23-2413:2 (Schlein); accord ALJ Dec. 28:19-22 and n.35, 36:34-37.] The UFCW was persistent, as Blair expressed in a planning email leading up to BF 2012: “We collected 23 signed strike letters today. We also contacted 9 who refused to sign and said they will not strike. We have follow-up plans on all the refusals involving leaders and/or staff,
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who have good relationships with them.” [R. 138.] When UFCW lieutenant Kevin Salsman circulated a list of “[s]trikers verbally committed for Ohio,” he pointed out “one potential striker who is on the fence that we can get in front of on Saturday.” [R. 205.] UFCW chief lieutenant Peter Diaz also worked hard to keep the “strike” recruits on task; he arranged to publish photos of associates who committed to “strike” on campaign literature, explaining that “[w]e are doing this as a further commit for strikers . . . so we can show to the strikers with the hope that seeing their pictures on a strike flyer will further commit them to strike.” [R. 247.] Blair stated the obvious: “We were responsible for persuading folks to go out on strike.” [RT 2459:8-2460:9.] And persuade they did. As AD Margaret Hooten testified, “every time they [“the OWM leadership team,” including UFCW Organizers Amanda and Eric] asked me to strike, I have struck.” [RT 679:20-680:1.] AD Andrea Carr testified, UFCW organizer Simone Monk explained to her “why we’re going [on strike], and I agreed to why we’re going.” [RT 442:11-13.] Charmaine Givens-Thomas explained that “we learned about what day we were going on strike from [UFCW Organizer] Georges [Tounou].” [RT 6108:2-14.] AD Christopher Collins testified that he “learned about the June strike, the Ride for Respect strike, via text message” from UFCW organizer Terry Dunn. [RT 2904:22-2905:5.] 2.
The UFCW Covered All Costs Of Its Set-Length Work Stoppages.
UFCW/OWM scheduled each of the four work stoppage waves for a short, pre-defined period (one or a few shifts); UFCW/OWM planned the WSW, BF 2012, and BF 2013 work stoppages for one or two shifts maximum. UFCW/OWM planned the SW work stoppages for a maximum of ten days (from bus pick up to plane delivery) for caravanning to the Home Office and participating in educational events, during which ADs missed between two and nine shifts.2 [See R. 6 at 2 (WSW 2012); R. 70 (BF 2012); R. 257 (SW 2013); Jt. 126 and R. 94 at 8 (BF 2013); see also ALJ Dec. 20:24-27, 20:46-21:1, 22:20-24 (WSW 2012), 25:1-3 (BF 2012), 13 8999820
37:10-11, 38:19-21 (BF 2013).] The UFCW compensated work stoppage participants through cash payments or gift cards in both 2012 and 2013.8 [ALJ Dec. 25:4-5, 33:17-18.] The UFCW paid for or reimbursed work stoppage participants for food, travel, and incidental expenses during work stoppages.9 [ALJ Dec. 13:39-41, 20:27-28, 20:33-35, 29:29-30, 29:40-42, 33 at n.39.] Schlademan acknowledged that the UFCW paid for almost every aspect of the SW work stoppages; he exclaimed “[w]e’re proud of it.” [RT 888:22-889:19.] 3.
Schlademan “Redefin[ed]” The Strike.
Schlademan opined matter-of-factly that his strike-first strategy “really redefine[ed] what the strike is.” [R. 304 at 2:16-32, 305 at 2.] As discussed in Part I.D. below, Schlademan “redefined what the strike is” by rejecting the idea of a “total,” open-ended work stoppage, pitting the collective strength and will of strikers against the financial wherewithal of the employer. Instead, Schlademan redefined the strike by hitting Walmart with (1) periodic, shortduration (2) generic “ULP strikes” (minimizing risk to participants), (3) packaged with massively disruptive “community” support protests, on – and only on (4) key dates when Walmart would be most vulnerable to brand damage, to (5) achieve maximum pressure/leverage to try and force Walmart to make the desired “area standards” concessions. C.
UFCW/OWM Promised To Continue The Intermittent Work Stoppages.
The UFCW stipulated at the beginning of the hearing: “The UFCW and OURWalmart intend to continue planning and assisting Walmart workers in striking in a manner consistent with the strikes that the UFCW and OURWalmart helped plan and assist Walmart workers hold in October and November 2012, June 2013, and November 2013.” [Jt. 1 (emphasis added); see
8
[RT 902:14-903:13, 997:23-998:21 (Schlademan); RT 2182:4-10 and R. 70 (Dehlendorf); RT 2960:1-24 (Adams); RT 3107:21-3108:8, 3141:15-24 (Bowers); RT 611:2-12 (Brown); RT 2910:22-2911:5 (C. Collins); RT 4436:7-11 (Garrett); R. 216 at 2, 242, 245.] 9 [RT 888:22-889:19, 926:8-11, 943:3-7, 1002:9-16 (Schlademan), 2148:5-2149:3 (Dehlendorf).] 14 8999820
also ALJ Dec. 15:8-12, 26:4-6, 38:39-46.] Consistent with that stipulation, immediately after the BF 2012 work stoppage wave (the second in the series), OURWalmart leader, Elaine Rozier, told the world (and Walmart) on November 24, 2012, “There’s going to be more days we’re going to strike and it’s not going to stop. I’m not going to stop until they respect us and give us what we want;” and, at the same time, Schlademan announced “this is a new, permanent reality for Walmart.” [ALJ Dec. 38:44-47 (“OURWalmart leader Elaine Rozier and UFCW official Dan Schlademan indicating that protests and strikes would continue until Walmart gave protesters what they wanted.”); the ALJ cited this evidence, but did not do so in the relevant chronological order (prior to the February 2013 talking points (Exception 12); R. ID 2.] The parties stipulated that “Elaine Rozier, during the relevant time period was an OURWalmart leader.” [RT 6748:1820.] UFCW/OWM never disavowed its intent to continue the work stoppages that began in October 2012 and then continued in November 2012, May-June 2013, and November 2013, and it never disavowed its intent to continue targeting Walmart associates to join in its “strike tactic” strategy. (Obviously not, as it stipulated at the hearing that it intends to continue the work stoppages.)
Indeed, Assistant UFCW Campaign Director Andrea Dehlendorf stated on
November 3, 2013, the “strikes and protests won’t stop until Walmart changes.” [RT 2316:92317:3, RT 2317:14-2318:7, and R. 94 at 15 (emphasis added).] After Rozier/Schlademan’s predictions of a continuing pattern of work stoppages and no disavowal of intent to stop, Walmart prepared Talking Points in February 2013 for store managers to use with prior IWS participants. [Jt. 6(a).] Those Talking Points notified the prior IWS participants that “the Company does not believe that the Act protects the UFCW’s hit-andrun work stoppages, and if you engage in union-orchestrated intermittent work stoppages that are part of a common plan or design to disrupt and confuse the Company’s business operations, the
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Company will apply its attendance policy to such absences.” [Id.] Those Talking Points did not say or suggest that the Act would not protect any future strike or work stoppage activity; only unprotected IWS. [Id.] In fact, the talking points explicitly stated “the Company respects your right to support a union and to engage in other protected, concerted activity.” [Id.]
Store
managers delivered the Talking Points verbatim to certain ADs. [ALJ Dec. 26:13-27:12.] D.
The UFCW/OWM Orchestrated A Pre-Conceived Series Of Intermittent Work Stoppages For A Common Plan Or Purpose. 1.
The ALJ Found That UFCW/OWM Orchestrated A Pre-Conceived Series Of IWS For A Common Plan Or Purpose.
See ALJ Dec. 54:46-47 (UFCW/OWM orchestrated a preconceived series of intermittent work stoppages), 55:29-36 & 67:2-4 (for a common plan or purpose). Based on the following: 2.
The UFCW Stipulated To Common Planning For All Work Stoppages And Stipulated To A Common And Constant Economic Objective.
“The UFCW and OURWalmart intend to continue planning and assisting Walmart workers in striking in a manner consistent with the strikes that the UFCW and OURWalmart helped plan and assist Walmart workers hold in October and November 2012, June 2013, and November 2013.” [Jt. Ex. 1 (emphasis added).] Per that stipulation, UFCW/OWM employed a “consistent” or common approach to planning and assisting (and recruiting for) all the 2012 and 2013 work stoppages. The parties further stipulated, “One of the objectives of the strikes that took place between 2012 and 2013, that are subject of this case, was to get better hours.” [RT 6753:14-20.] The parties further stipulated, “One of the objectives of the strike activity that is at issue in this case, in 2012 and 2013, was to increase wages.” [RT 6762:2-13.] 3.
During The Relevant Period, The UFCW Believed That Walmart’s Lower Labor Costs Undermined Existing Union-Represented Jobs.
Between 2000 and 2012, the UFCW saw a 7.8% decrease in membership, losing 108,409 members. [See DOL, Union Reporting History at Tab E.] According to UFCW International 16 8999820
President Joe Hansen, Walmart’s expansion led directly to the decline of existing unionrepresented employers, and, thus, reduced the numbers of dues-paying members. [Jt. 103(a) at 0:17-26, 103(b).] In his words, “Walmart gets some business but there’s really a net loss of jobs. And the jobs that are lost are . . . mostly [u]nion jobs.” [Id.] Hansen noted the UFCW’s interest in “slow[ing] or stop[ping] Walmart’s expansion into key markets.” [R. 5485 VID1 CG(a) at 0:18-27 and R. 5485 VID1 CG(b) at 1.] Changing Walmart is a “strategic” objective of the UFCW. [RT 2423:25-2424:5.] 4.
The UFCW Believed It Had To Force Walmart To “Raise The Bar” (Increase Labor Costs) To Avoid Losing More Dues-Paying Jobs.
Over the course of time, the UFCW repeatedly predicted a decline in the American economy and union-represented, dues-paying jobs if Walmart did not “raise the bar” and provide its associates higher wages, affordable benefits, and better hours; i.e., meet UFCW “area standards.” [ALJ Dec. 12:22-28; R. 22 at 1 and R. 23 at 2:46-50 (Schlademan); R. 304 at 11:2137 and R. 305 at 5 (Schlademan); Jt. 114 at 2 (Hansen).] The UFCW’s website stated, “We’re . . . dedicated to . . . raising the bar for jobs throughout the entirety of our industries,” and “[w]hen big companies like Walmart slash benefits and wages, it has a negative effect on job standards . . . throughout the entire global retail industry.” [ALJ Dec. 12:22-26; R. 29 (emphasis added).] UFCW President Joe Hansen told supporters “It doesn’t end until we change Walmart, where it’s a decent place to work, with a union contract, union wages, and union benefits.” [R. ID14 and R. 275 at 0:46-55.] To that union-standards end, Hansen hired Dan Schlademan from the Service Employees International Union in 2010 to create and direct a Making Change at Walmart campaign.
[ALJ Dec. 12:32-33; RT 897:3-16, 913:11-17 (Schlademan).]
UFCW/MCAW
Director Dan Schlademan made clear, “there’s not a path forward for a labor movement unless 17 8999820
we deal with Walmart.” [ALJ Dec. 12:26-28; R. 22 at 1 and R. 23 at 2:46-50.] In Schlademan’s own words, “one of the basic principles of why Making Change exists is because Walmart is the largest private employer on Earth and has a dramatic impact on setting standards for millions of workers.” [RT 972:5-12.] One of Schlademan’s lieutenants (Brian Winkler) further emphasized the “area standards” objectives of the UFCW’s IWS campaign when he explained why he was helping to conduct the SW work stoppages: “[I]t affects us in our own state and the standard, the standards in the grocery industry all around the nation. And so when Walmart gets brought up, so does the rest of the industry. And I’m out here in solidarity and to fight for this nation and for all the workers at Walmart, King Soopers and Safeway.” [R. ID22 and R. 279 at 0:39-49.] Schlademan agreed, explaining that protecting UFCW-organized jobs “[is] an important part of why we exist.” [RT 929:18-9:30:13.] The UFCW’s raise-the-bar message trickled down to even the rank-and-file OWM members. AD Sara Gilbert testified that she went on a local radio show and stated that “Wal-Mart seems to set the precedence for other companies across the United States because they’re the leader” and that other “companies are saying we [competitors] don’t have to give people raises because Wal-Mart doesn’t” and that Wal-Mart “set the bar for that.” [RT 3855:15-3856:3.] Because of an 8(b)(7)(C) issue [R. 294], the UFCW specifically disclaimed (and continues to disclaim) any interest in working with Walmart associates to try and change their working conditions through collective bargaining. [ALJ Dec. 12:20-22; R. 24; RT 871:1-6 (Schlademan).] Yet, as described below, it assembled a small army of paid UFCW organizers and spent multiple millions of dollars over multiple years [UFCW LM-2 Excerpts re UFCW/MCAW 2012-13 Staff Salaries at Tab F (CD Disc)] to protect existing UFCW-
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represented employers by creating a series of high-intensity “public relations” crises designed to force Walmart to “raise the bar” with repeated strikes and strike-related demonstrations. [RT 930:14-932:13 (Schlademan); RT 2219:25-2220:16 (Dehlendorf); R. 45 at 184:7-14, 132:12139:1 (Dehlendorf); RT 6117:11-21 (Givens-Thomas).] 5.
The UFCW Created OURWalmart To “Deal With Walmart.”
After UFCW President Hansen hired Schlademan to create and execute a program to try and force Walmart to raise the bar to meet UFCW area standards, Schlademan got right to work. Schlademan began by creating three campaign “brands” for the UFCW’s Walmarttargeted efforts: Making Change at Walmart, UNI Walmart Alliance, and OURWalmart. [RT 913:20-914:5.] The UFCW’s MCAW label referred to the UFCW’s efforts in the United States. [R. 24.] The UNI Walmart Alliance label referred to the UFCW’s international efforts. [RT 892:24-893:11.] The OURWalmart label referred to a “worker” group that the UFCW created to serve as the primary face and voice of the UFCW’s MCAW campaign. [RT 2346:22-2347:14 (Dehlendorf); R. 45 at 61:1-62:13 (Dehlendorf); RT 874:2-8 (Schlademan); R. 100(a)-(c).] With respect to the OWM effort, Schlademan made contact with a group of associates in 2010 and obtained their agreement to join his organization; he then created OURWalmart as a legal entity. [RT 874:2-8, 897:1-15.] Before picking a name for the group, the UFCW hired and paid a New York public relations firm to come up with the OWM name, which it did after conducting focus group research.
[RT 968:13-2 (Schlademan).]
The UFCW listed
OURWalmart on all its LM-2s during the relevant period as a UFCW “subsidiary” [ALJ Dec. 13:35; RT 874:18-875:11 (Schlademan)], which means – per the Department of Labor’s regulations – that the UFCW “owns” and “controls” OURWalmart.10 10
“Within the meaning of [the Department of Labor, LM-2 Labor Organization Annual Report] instructions, a subsidiary organization is defined as any separate organization of which the 19 8999820
Schlademan hired Andrea Dehlendorf, also from the SEIU, in February 2011 to serve as his Assistant UFCW/MCAW Campaign Director and to take charge of the UFCW’s OWM program.
[ALJ Dec. 14:18-19; R. at 45 55:3-56:1 (Dehlendorf); RT 923:12-924:1
(Schlademan).] During the relevant time period, Schlademan and Dehlendorf became OWM members and sat on the OWM Board of Directors as the only two officers of the Board: President and Secretary/Treasurer respectively. [ALJ Dec. 14:12-15; RT 2664:13-21; 871:18-22, 872:16-19, 962:11-23 (Schlademan); RT 2065:5-14 (Dehlendorf).] A few rank-and-file current or former Walmart associates participated as BOD members. [ALJ Dec. 14:15-16; RT 898:1317 (Schlademan).] As the only two officers on the OWM Board and as the only Board members with relevant organizational and campaign experience, Schlademan and Dehlendorf effectively controlled the Board; giving campaign strategy and planning advice and execution know-how to the other Board members, who had no such experience. [ALJ Dec. 14:19-23; RT 938:6-8, 958:2-6 (Schlademan); R. 45 91:9-93:13 (Dehlendorf).]
Significantly, Schlademan and
Dehlendorf (and their UFCW campaign lieutenants) produced scores of strategy, planning, and execution communications in this case pursuant to subpoena (presumably disclosing all relevant materials), but not one of those planning and execution communications went to any associateOWM member or “leader”; not one.11 And although Walmart issued subpoenas to each AD and non-AD OWM leaders, they did not produce – and the record does not reflect – a single workstoppage planning, coordination, or execution document from any OWM member to anyone. [See, e.g., RT 4843:5-4845:6 (Cruz); RT 2850:2-14 (Harris).]
ownership is wholly vested in the reporting labor organization or its officers or its membership, which is governed or controlled by the officers, employees, or members of the reporting labor organization, and which is wholly financed by the reporting labor organization. [R. 100(d) § X.] 11 See Chart of UFCW Planning, Coordination, and Execution Communications attached at Tab G. 20 8999820
Indeed, associate-OWM Board member and “leader” Evelyn Cruz testified that she did not even know about the SW work stoppages – announced by the UFCW in January/February 2013 to some OWM members – until May. [RT 4923:22-4929:14.] And the UFCW shared even less information with other OWM members who it recruited to participate in its work stoppages; one AD testified that he didn’t know the “Ride for Respect” would involve work stoppages until after he boarded the bus heading to Bentonville: “I really didn’t know what I was getting into . . . but once we got on the bus and they said we was going on strike, you know, it kind of hit me.” [RT 4374:7-15 (Yates).] The UFCW completely dominates all aspects of the OWM group. [See ALJ Dec. 13:3044, 14:13-23, 14:28-32.] It receives, manages, disburses, and accounts for all OWM money and finances. [Id. at 13:37-39, 14:8-9; RT 964:7-966:5 (Schlademan).] The UFCW pays for lawyers to represent OWM, and UFCW lawyers give instruction to OWM members during UFCW/OWM activities and related state-court trespass litigation. [ALJ Dec. 13:38; R. 45 at 102:17-20 (Dehlendorf); RT 944:24-945:2, 967:22-968:7 (Schlademan).] Schlademan and other high-level UFCW employees serve as OWM 30(b)(6) representatives in such litigation. [RT 6742:24-6743:4 (Blair); R. 149 at 15:3-21 (Fabela); RT 2567:23-2568:2 (Hanson); RT 2645:1722 (Schlademan); RT 2554:21-24 (Williamson).] UFCW attorneys represented each AD at the hearing on behalf of the “OWM” Charging Party. [RT 5:2-5.] The UFCW’s General Counsel, Nick Clark, had to sign off on an 8(b)(7)(C) settlement agreement with the NLRB’s General Counsel dealing with purported “OURWalmart” activities. [R. 294.] The UFCW provides the infrastructure, backbone, logistics, and planning power for all OWM activities. [R. 149 at 98:13-20 (Fabela); see also ALJ Dec. 13:30-44, 14:13-23, 14:2832.] The UFCW creates and maintains the OWM social media communications infrastructure
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that allows the UFCW to recruit new OWM members on-line, communicate with existing OWM members, and facilitate communications among OWM members. [ALJ Dec. 13:17-22 (“the UFCW . . . has staff that specializes in communicating with Walmart associates . . . online”); RT 875:14-878:15, 918:18-919:4, 946:12-25, 947:8-948:3 (Schlademan); RT 2347:15-2348:24 (Dehlendorf); R. 104 at 53:2-23 (Schlein).] The UFCW retains professional communications consultants to help create and manage media interactions and messaging for OWM members. [RT 930:14-931:24, 948:4-7 (Schlademan);
RT 2177:5-16, 2354:5-16 (Dehlendorf).]
The
UFCW owns, pays for, and operates, the OWM “Dodge Nitro” van used at UFCW/OWM demonstrations. [ALJ Dec. 13:41-42; RT 952:9-953:1 (Schlademan).] The UFCW pays for all personal and organizational costs associated with OWM activities. [RT 943:3-7, 1000:8-11 (Schlademan); R. 45 at 101:15-21 (Dehlendorf).] The UFCW recruits, staffs, and pays for “offsite” training for OWM “leaders” and other OWM members. [R. 45 at 101:18-21 (Dehlendorf); R. 104 at 103:7-104:13, 105:17-22 (Schlein); RT 988:9-990:9 (Schlademan); see also, e.g., ALJ Dec. 27:28-41.] UFCW/MCAW representatives conduct planning calls with OWM leaders on a weekly basis and give them strategy advice on a daily basis. [RT 1000:2-7 (Schlademan); R. 104 at 100:17-24 (Schlein).] The UFCW employed a small army of UFCW organizers – 230 strong – during the relevant time period to personally recruit and direct the efforts of OWM members.12 &
13
[ALJ
Dec. 13:30-33, 13:37; R. 306.] The UFCW organizers approached Walmart associates in their workplaces, gave them membership paperwork, collected the completed paperwork, took and processed the recruits’ financial information for the monthly OWM membership fee, and 12
See Chart Titled “UFCW Organizers Recruited Associates to Join OURWalmart” at Tab H. The UFCW acknowledged that at least 230 UFCW employees worked directly on the UFCW/OWM campaign, including at least 210, who worked directly on orchestrating IWS events. [R. 306.] 22
13
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provided the new OWM members OWM wrist bands, lime-green T-shirts, and OWM buttons.12 [ALJ Dec. 14:6-11 (UFCW collects and processes OWM membership fee).]
The UFCW
organizers then conducted regular OWM meetings where the UFCW organizers informed OWM members of upcoming IWS and other events, and guided local planning efforts.14 [ALJ Dec. 13:30-33.] The UFCW actively targeted and recruited Walmart associates to go on strike.6 The UFCW disbursed all work stoppage-related payments to participating members.9 [ALJ Dec. 25:45, 33:17-18, 36:13-15.] 6.
Schlademan And Dehlendorf Decided It Would Take A Sustained Campaign Of “Crisis Compression Moments” To Change Walmart.
By the end of 2011, Schlademan and Dehlendorf decided that it would take a multi-year series of “crisis compression moments” to change Walmart. [ALJ Dec. 15:6-8; R. 45 at 82:3-8 (Dehlendorf); RT 979:21-980:7 (Schlademan); 2350:11-15 (Dehlendorf).] According to them, these “crisis compression moments” would individually and cumulatively “create a crisis Walmart has to respond to . . . in terms of . . . responding to the core issues of wages, scheduling and RESPECT.” [R. 46, 45 at 79:16-81:3 (Dehlendorf).] Schlademan and Dehlendorf decided early on to use a series of short-duration work stoppages packaged with mass demonstrations by allies, affiliates, and activists (“National Days of Action”) to draw intense, negative media attention to create the desired “crisis” for Walmart.15 [RT 998:22-999:21, 903:20-904:3 (Schlademan).] One of the early OWM leaders, Carlton Smith, told AD Jovani Gomez as early as April 2011 about “the goals of the campaign, workers speaking up about improving working conditions, pay, and he shared like that they were going out on strike.” [RT 4747:3-4748:3 (Gomez).] Consistent with that testimony, AD Margaret 14
See Chart Titled “UFCW Organizers Conducted Meetings Informing OURWalmart Members of Upcoming IWS and Other Events and Guided Local Planning Efforts” at Tab I. 15 According to one of Schlademan’s chief lieutenants, “strikes” are “actions” and “actions” are “strikes.” [R. 104 at 102:4 (Schlein).] 23 8999820
Hooten (one of OWM-leader Barbara Collins’ coworkers) testified that she decided to participate in the BF 2012 work stoppage “the year before.” [RT 664:10-12 (Hooten).] UFCW chief lieutenant Alan Hanson explained the key role the media played; he testified that “earned media and community support are an important and integral part of putting together . . . the most effective strike action.” [RT 2585:1-25.] Indeed, the UFCW made decisions about when and where to conduct work stoppages based on expected media coverage. [ALJ Dec. 30:34-41 (“[UFCW/OWM] frequently sent delegations of associates and community supporters to stores to support strikers when they walked out . . . in part to create opportunities for media coverage.”).] In the lead up to BF 2012, UFCW lieutenant Alan Morrissette made a detailed list of various “strike” options that included pros like “project a good turnout for press,” and cons such as “no press turnout is likely.” [R. 135.] In one instance, a “walk-off action and press conference” was cancelled because a bus of OWM supporters could not arrive in time to participate in the made-for-media event. [R. 131 at 130:16-133:20 (Blair).] As AD Hooten testified, “once the media arrived [during work stoppage demonstrations], [the UFCW organizers Amanda or Eric] decide who they feel would be a best person to represent [UFCW/OWM] and a lot of times I’m chosen.” [RT 675:3-12.] According to Schlademan, his raise-the-bar strategy used work stoppages as an “education moment for the public.” [RT 1001:13-16.] According to Dehlendorf, the work stoppages created an important reason for community groups to stay engaged in the campaign and show up to and engage in demonstrations in front of Walmart stores, which in turn drew media coverage, which in turn created reputational pressure on Walmart. [RT 2327:10-2328:5; R. 45 at 34:1-36:2.] Accordingly, she urged her UFCW-organizers to work hard to “keep[] the strike tactic alive.” [Id.] Dehlendorf said that “[h]aving folks out striking has . . . been very
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important for our message.” [R. 48 at 4 and R. 45 at 113:20-114:21.] The UFCW planned each step in the IWS series with the “crisis compression moment” strategy in mind. [RT 977:18980:7 (Schlademan); R. 45 at 78:9-81:3 (Dehlendorf); R. 46.] Schlademan and Dehlendorf settled on a “rhythm” of IWS dates that included Walmart’s Wall Street Week (where Walmart briefs Wall Street analysts at its Home Office in October), Black Friday (Walmart’s busiest shopping day of the year at Thanksgiving), and Walmart’s Shareholder Week (where Walmart briefs its shareholders at its Home Office in June). [R. 45 at 156:2-158:3 (Dehlendorf); RT 926:4-25, 933:20-23, 942:7-13 (Schlademan).] Schlademan and Dehlendorf picked those highest-of-visibility dates because the “eyes of the world” and the national/international media are focused on Walmart at those times, which maximized the chances that negative media coverage would (1) pressure Wall Street analysts to downgrade Walmart’s stock rating;16 (2) disrupt Walmart’s business operations on its most important shopping days of the year; and (3) alienate Walmart’s shareholders. [R. 304 at 8:37-45 and 305 at 4 (Schlademan); R. 45 at 129:6-17, 133:17-135:18, 136:4-20 (Dehlendorf); RT 926:16-19 (Schlademan), 6117:11-21 (Givens-Thomas).] As AD Hooten testified, “We usually go around the same time of the year when the shareholders are [] flown into Bentonville.” [RT 663:11-18.] Given the billion-dollar implications of each of those negative outcomes, Schlademan and Dehlendorf knew that attacking Walmart on its most vulnerable dates would maximize the chances that Walmart would give in to the UFCW’s raise-the-bar demands to avoid negative brand damage. [R. 45 at 184:7-14, 132:12-139:1 (Dehlendorf).] Consistent with that goal, a “strike pledge” posted online by UFCW/MCAW staff to solicit associates for the 2013 SW work 16
A campaign timeline page on the OWM website (created by the UFCW) noted that during the
WSW 2011 National Day of Action, “Five OURWalmart members were on a panel explaining how the company’s cost cutting and low staffing levels harm Associates, customers, and shareholders. Months later a Dutch pension withdrew its money from Walmart.” [R. 58.] 25 8999820
stoppages stated that “[e]very single Walmart executive and Board of Directors member will be there and all eyes will be on Walmart. We’ve decided this week is the best opportunity to get Walmart’s attention and demand better pay, treatment, and an end to retaliation against associates who speak out.” [RT 2275:20-2276:8 (Dehlendorf) and GC 8; accord ALJ Dec. 28:19-21 and n.35.] Schlademan and Dehlendorf planned the work stoppages at the key-moment, preconceived intervals during working hours without advance notice to Walmart as to who would participate or at which stores or whether or when the participating associates would return. [R. 45 at 149:7-14, 150:17-151:3, 191:20-192:5 (Dehlendorf); RT 1002:1-8 (Schlademan).] Schlademan explained how Black Friday serves as the centerpiece of his “crisis compression moment” strategy: “Retail workers, whether Walmart, Costco, CVS, anybody, Target, they actually have more power than they know. They have more power . . . I’d argue than a lot of other workers in our country right? Because for retail workers anywhere between 25 and 40% of a retailers sales happen in a 6 week window . . . that if they can take a stand in that window and challenge a company in that window that they can make that company’s year or break that company’s year.” [R. 22 and 23 at 7:34-8:13 (emphasis added); accord ALJ Dec. 18 at n.24.] Accordingly, the “crisis compression moment” strategy involved a “fall escalation” period leading up to Black Friday.
[R. 30; accord ALJ Dec. 37:1-5.]
Schlademan also
emphasized the importance of actual or threatened brand damage to his strategy: “But you know the route [should be “root”] of it is most people saw this for what it was right [referring to the BF strikes], Walmart’s image has been hurt, Walmart’s image is under attack and so Walmart has been responding with this is just a PR stunt, people don’t give it much credibility, the company really isn’t losing its credibility and ultimately the company is actually really worried about its
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image. It’s actually launching a rebranding campaign called Therealwalmart.com. We’ve launched reallywalmart.com? [S]o but the idea is that the company is really watching and is feeling the pain of all the work so everybody who came out on Black Friday is having an impact, every worker who stood [up] is having an impact, everybody who is standing up against this company, this company is feeling it and is responding.” [R. 22, R. 23 at 11:16-56 (emphasis added).] UFCW-organizers recruited work stoppage participants by telling them that Walmart is “feeling the heat . . . from the public and investors and customers.” [R. 134 at 2 and RT 2472:11-2473:5 (Blair); R. 173 at 1 and RT 2547:1-2 (Albert).] 7.
Dehlendorf Began Building Name ID For OWM And Road-Testing The Raise-The-Bar Messaging In 2011.
The UFCW deployed UFCW-organizers to recruit and sign-up OWM members in 2011. [ALJ Dec. 13:30-32; RT 963:18-22 (Schlademan).] Simultaneously, Schlademan assigned Silvia Fabela the job of building a network of allies, affiliates and activists to provide support to OWM, which included his “crisis compression moment” strategy. [ALJ Dec. 13:44-14:1; R. 149 at 45:9-18 (Fabela).] Dehlendorf then set about building name recognition for OWM and the UFCW/OWM raise-the-bar message with the main stream media and Walmart’s stakeholders (customers, analysts, shareholders, and associates). In June 2011, Dehlendorf invited OWM members to attend a UFCW-paid-for, well-publicized demonstration at Walmart’s Home Office, where they drafted and delivered a “Declaration for Respect” that set forth the “raise the bar” demands that remained constant throughout the 2012-2013 IWS campaign. [ALJ Dec. 55:29-36 (“The evidentiary record does not show that the Ride for Respect strike arose from separate and distinct concerns . . . Instead, the associates . . . raised the same concerns that OURWalmart set forth in the Declaration of Respect that it presented to Walmart in June 2011 . . . .”); see also ALJ Dec. 15:18-17:17; RT 775:1-23, 776:7-778:1, 781:3-11 (B. Collins); RT 2094:19-2095:1 27 8999820
(Dehlendorf); R. 45 at 73:15-74:8, 74:19-75:3, 108:7-12, 167:10-14 (Dehlendorf); RT 938:25939:18 (Schlademan); GC 3(a); R.2, R.17, R.48 at 2.] Dehlendorf took OWM protesters back to the Home Office on UFCW-paid-for trips during Wall Street Week 2011 and Shareholder Week 2012. [ALJ Dec. 17:41-45, 18:4-6; RT 792:13-793:7, 798:7-21 (B. Collins); R. 45 at 129:18130:2, 135:19-136:3 (Dehlendorf); R. 45 at 139:7-140:20 (Dehlendorf) and R. 49; R. 31.] The demonstrators conveyed the same message. [ALJ Dec. 17:41-45; R. 18, 19, and 20.] 8.
In February 2012, Schlademan And Dehlendorf Set Their Preconceived IWS “Crisis Compression Moments” Strategy In Motion.
In February 2012, Schlademan and Dehlendorf called a group of OWM members (described as “leaders”) to a year-beginning, UFCW-paid-for, conference in Los Angeles. [R. 45 at 153:13-154:1, 164:12-165:5 (Dehlendorf); RT 988:9-15 (Schlademan).]
At that meeting,
they laid out the plan for work stoppages and concurrent mass demonstrations at Wall Street Week and Black Friday 2012 (described as “National Days of Action”). [R. 45 at 164:12-165:5 (Dehlendorf).] They secured “strike commitments” from the assembled OWM leaders. [R. 45 at 193:7-16 (Dehlendorf).] Schlademan and Dehlendorf repeated the process in January/February 2013, when they, again, paid for OWM leaders to come together in Washington, D.C. [R. 45 at 170:19-21 (Dehlendorf); RT 988:9-15 (Schlademan).] There, the group discussed the plan for work stoppages and concurrent mass demonstrations at Shareholder Week and Black Friday 2013 and got strike commitments from the OWM members. [RT 3852:25-3853:14 (Gilbert); R. 45 at 171:17-172:1 (Dehlendorf) and RT 998:22-999:21 (Schlademan); R. 45 at 193:17-194:4 (Dehlendorf).]17 The work stoppages and concurrent mass demonstrations (by allies, affiliates, and activists) were intended to draw media attention to the UFCW/OWM raise-the-bar 17
Although generally subsumed in the ALJ’s finding that the UFCW/OWM orchestrated all the work stoppages for a common plan or purpose, the ALJ did not cite this undisputed record evidence. (Exception 7.) 28 8999820
messaging.
[ALJ Dec. 30:34-41; RT 2219:25-2220:16, 2224:24-2225:4, 2230:25-2231:4
(Dehlendorf); RT 647:23-25 (Hooten).] Dehlendorf planned the IWS strategy to reap exponentially greater impact benefits than a traditional strike (hitting Walmart with massive media/demonstration attacks on precisely selected, brand-vulnerability dates packaged around one or a few walk-out participants) while minimizing job/wage-loss risks for the work stoppage participants. [RT 2110:3-23; R. 45 at 184:7-14, 132:12-139:1.] In addition to scheduling the work stoppages for just one or a few shifts (always announcing the work stoppage period as “Today” [R. 94(a)]) and arranging lostpay compensation for many [RT 998:4-15 (Schlademan); RT 2205:17-2206:6, 2252:11-24 (Dehlendorf)], she designed the work stoppage messaging to ubiquitously include the buzz words, “ULP Strike” and “Retaliation” [RT 2208:4-16, R. 94 at 2]; always phrasing the economic messaging for OWM members as Walmart “retaliating against those who speak out for [then she inserted the economic objectives].”
[R. 4(a); accord ALJ Dec. 19:32-20:16
(UFCW/OWM took steps to “ensure that [OWM] members consistently adhered to the ULP strike strategy”).] Dehlendorf instructed her team of organizers that, “[strikers] can mention what we are fighting for as long as it is clear that the strike is for retaliation when we speak out.” [R. 94 at 1; accord ALJ Dec. 37:33-37.] Accordingly, Dehlendorf’s chief lieutenant, T. Albert, briefed his UFCW team to ensure their associate recruits “[a]lways mention ISSUE AND RETALIATION TOGETHER . . . [w]e are on a ULP STRIKE.” [R. 301.] Albert left nothing to chance; Albert prepared talking points for the work stoppage participants to use that carefully packaged the generic “retaliation” and “ULP strike” words with the actual economic issues. [Id.] Dehlendorf and her team repeatedly told associate-participants to say the generic ULP words throughout 2012 and 2013, which, of course, made recruiting participants easier. [ALJ
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Dec. 19:21-30; RT 316:13-14, 362:9-18 (Gurule); RT 2110:3-23; R. ID17 and R. 1735 VID1 RC at 0:08-22; RT 2208:4-2210:16 (Dehlendorf) and R. 4(a); R. 4 at 12; RT 2324:18-23 at R. 94 at 1; R. 3782 VID1 at 1:57-2:29 (Williamson); R. ID18 and 276 at 8:18-9:04 (Goumbri and Blain); R. ID19 and 277 at 1:49-2:25 (Goumbri and Blain); RT 2146:9-2147:3 (Dehlendorf) and R. 5; RT 2316:17-2017:3 and R. 94 at 13-19; RID 18 and 276 at 8:18-9:04 (Almaz); RID19 and R. 277 at 1:49-2:25 (Dixon); R. ID6 and R. 3782 VID1 at 2:00-2:30.] The UFCW’s scripted “ULP strike” message was always generic, thus, impossible to disprove. [Jt. 97; Jt. 98 and R. 26; Jt. 100 and R. 25; Jt. 129(a)-(b); see also Chart of record cites for generic ULP language at Tab J.] The ADs also regularly conveyed the actual raise-the-bar message as well. [See ALJ Dec. 17:21-22; RT 3138:17-3140:23 and R. 140 MB(a); RT 3134:2-3135:8 and R. 306.] As did non-associate participants. [RT 2208:4-2210:16 and R. 4(a); accord ALJ Dec. 20:16-20 (“[In] contrast [to work stoppage participants] . . . community supporters[] remained free to carry signs with a broader range of economic and other messages.”), 37:33-37.] Dehlendorf also ensured that her army of UFCW organizers distributed, collected, and delivered the signed walk-out and walk-back form letters drafted by the UFCW legal department for each UFCW-work-stoppage participant after each wave of work stoppages.18 [ALJ Dec. 19:32-41, 30:27-31; R. ID23 and R. 284; R. ID24 and R. 5228 VID2; Jt. 94(a).] The UFCWdrafted walk-back letters all contained the exact same language demanding – on threat of legal action – that Walmart return the work-stoppage participant to his or her job immediately. [Jt. 94(a); see also ALJ Dec. 20:46-21:1, 22:20-24, 25:1-4, 33:4-15, 38:21-33.] The letters all used the same “unconditional” magic-words language:
“This letter hereby constitutes our
unconditional offers to return to our positions with Walmart for our next scheduled shifts.” [Id.] 18
See Chart Titled “Organizers Distributed, Collected, and Submitted Signed Walkout and Walkback Letters for Work Stoppage Participants” at Tab K. 30 8999820
9.
UFCW/OWM Initiated, Planned, And Executed The Four Waves Of Work Stoppages Using The Same Months-Long Preparation Pattern.
Schlademan admitted that his UFCW team “initiated, planned, and executed” all four waves of work stoppages in 2012 and 2013 (WSW, BF, SW, BF). [RT 942:7-943:1; R. 45 at 190:6-11, 191:12-192:5 (Dehlendorf); see also Jt. Ex. 1; accord ALJ Dec. 21:21-26, 22:4-6; 22:26-33, 23:11-13, 24:29-33, 27:31-28:5, 28:19-29:5, 28 at n.35, 33:20-21, 36:32-37, 38:33-35.] What is missing from that admission is the excruciatingly detailed and virtually identical methodology that the UFCW used across all four series of work stoppages to control every possible detail of each of the IWS events. Dehlendorf testified it took three to four months to plan each wave of work stoppages in the series. [ ALJ Dec. 14:44-45; R. 45 at 152:15-21.] That months-long planning process started, of course, with the UFCW army of organizers making contact with new potential recruits, signing them up for OWM membership, and getting their commitment to participate in the pre-planned work stoppages.6 & 12 [ALJ Dec. 28:19-22 and n.35, 36:34-37; RT 2202:1-12 (Dehlendorf) and R. 112; RT 2275:20-2276:8 (Dehlendorf) and GC 8; RT 2307:22-2309:25 (Dehlendorf) and Jt. 132; R. 104 at 236:4-24 (Schlein) and R. 115.] One of Schlademan’s chief lieutenants explained that UFCW field-teams “target[ed]” associates that they thought “we could have a good chance to commit, you know, get committed to going out on strike.” [R. 210 at 162:13-167:2 (Diaz) and R. 211.] As AD Rose Campbell explained, “when [UFCW organizer] Omar said ‘well you can take this off’ [referring to BF 2012 mandatory shifts], I like well hey, why not.” [R. ID17 and R. 1735 VID1 RC at 0:08-24.] Thereafter, the local UFCW organizer would conduct OWM meetings, share work stoppage planning information, facilitate local event planning, and get OWM members connected with each other and the UFCW/MCAW team via social media.17 [ALJ Dec. 13:17-22, 30-33; R. ID23 and R. 280-83; R. ID17 and R. 1735 VID1 RC at 0:08-22; see also Chart of 31 8999820
additional record cites at Tab L.] Dehlendorf noted that “the use of social media to proliferate and get our message out worker to worker but also with supporters has been key to our strategy.” [R. 48 at 3 and R. 45 at 113:8-19.] Then, some weeks or months before the IWS event, Fabela’s UFCW “allies” team would work with allies, affiliates, and activist groups to get their commitments to participate in the “strike-support” demonstrations at the work stoppage participants’ stores.
[ALJ Dec. 24:30-33, 29:32-40, 36:38-37:1; RT 917:23-918:3, 943:20-
944:10 (Schlademan) 2501:4-13 (Fabela); R. 149 at 1-21, 221:3-222:15 (Fabela); R. 71.] Fabela and her team solicited work stoppage demonstration support from third-party groups directly, via email, and also through a sophisticated web-based system on the Corporate Action Network, where activists could sign up to host a strike-support demonstration, complete with demonstration directions, messaging, and points of contact. [RT 2487:22-2488:10 (Fabela) and R. 157; RT 2128:15-2129:15 (Dehlendorf) and R. 97, 98, 100, 101; RT 2195:6-2196:6 (Dehlendorf) and R. 73; RT 2304:14-2306:10 (Dehlendorf) and R. 92; RT 2310:23-2314:3 (Dehlendorf) and Jt. 129(a)-(b); R. 302; see also ALJ Dec. 13:17-22, 22:28-32.] At the same time, Schlademan’s PR and media team began creating draft press releases with pre-approved raise-the-bar messaging (including PR-created “quotes” that the UFCW would then find a worker to adopt as his or her own). [ALJ Dec. 20:37-39, 22:45-23:3, 24:30-33, 27:41-28:3, 28:22-23; RT 2170:6-2172:21 and R. 66; RT 2158:11-2160:14 and Jt. 104(b).] The PR team beat the drum in the media to a fever pitch. [ALJ Dec. 20:39-41, 22:45-23:3, 24:30-33, 27:4128:3, 28:22-23; RT 2161:22-25 (Dehlendorf) and Jt. 106; RT 2201:14-19 (Dehlendorf) and Jt. 111; RT 2285:14-2287:6 (Dehlendorf) and Jt. 122; RT 2328:6-2329:6 (Dehlendorf) and Jt. 126; R. 88.] Dehlendorf and her UFCW staff then picked locations to start the IWS “wave”; using a momentum-building strategy that focused media attention first on work stoppages in certain
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geographic areas and then announced a growing “wave” of work stoppages at other locations during the same high-vulnerability time frame. [RT 2299:2-22; R. 94 at 2; R. 83 at 2.] For each work stoppage in the series, the UFCW employed the same pattern of preparation, using its army of UFCW organizers to schedule, plan, coordinate, conduct, pay for, and participate in every microscopic, excruciating detail of the work stoppages, as well as the made-for-media “strike support” mass demonstrations. [ALJ Dec. 14:28-32.] As just one of hundreds of examples, AD Dominic Ware testified that he knew what to write on his work stoppage picket sign because “I got a text message [from UFCW organizer Monk] and it just told me about what to put on signs.” [RT 223:11-24.] For each IWS event, the UFCW/MCAW organizers, working with Dehlendorf: (1) picked specific locations, dates, and times for the work stoppages [ALJ Dec. 23:11-13, 28:3-4, 29:1-5]; (2) picked demonstration meeting locations and staging areas [ALJ Dec. 22:4-6, 22:26-32, 23:11-13, 24:29-33, 27:31-36, 29:1-5, 38:33-35]; (3) disseminated work stoppage and demonstration logistics information to participants through UFCW meetings, telephone, and UFCW social media platforms [ALJ Dec. 13:17-22, 22:28-32, 27:38-41]; (4) told work stoppage participants what to wear; (5) developed and disseminated all work stoppage and demonstration messaging and told work stoppage participants what to say (e.g., speeches, chants) [ALJ Dec. 19:21-20:20]; (6) identified, solicited, and coordinated with previously-identified ally, affiliate, and activist groups [ALJ Dec. 13:17-22, 24:30-33, 29:32-40, 36:38-37:1]; (7) arranged entertainment; (8) contacted media and coordinated coverage, interviews [ALJ Dec. 20:39-40, 22:45-23:3, 24:30-33]; (9) created and disseminated press releases [ALJ Dec. 20:37-39, 22:45-23:3, 24:30-33, 27:41-28:3, 28:22-23, 32:30-32]; (10) created and disseminated social media coverage [ALJ Dec. 13:37-38, 14:28-32, 20:40-41, 22:4523:3, 24:30-33, 32:30-32]; (11) decided on the appropriate media “visuals” for demonstrations;
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(12) provided signs, flyers, scripts, chants, bullhorns, banners, and the Dodge Nitro van [ALJ Dec. 13:41-42, 14:28-32, 19:43-20:16]; (13) coordinated and paid for transportation for participating associates and demonstrators [ALJ Dec. 13:39-41, 20:27-28, 20:33-35, 27:31-36, 29:29-30, 33 at n.39]; (14) determined the on-site IWS event plan of action [ALJ Dec. 22:26-32, 24:29-33, 28:23-24]; (15) trained/practiced with work-stoppage participants and demonstrators [ALJ Dec. 19:21-23, 27:38-41, 28:24-28]; (16) served as or designated a point person to direct on-site activity and liaise with police and store management [ALJ Dec. 14:28-32, 28:24-28]; (17) provided “crowd control” marshals (red hats) [ALJ Dec. 28:24-28]; (18) created, distributed, collected, and delivered UFCW-drafted (by the UFCW legal department) “Walk Out” and “Walk Back” letters for all participants [ALJ Dec. 19:32-41, 30:27-31]; and (19) orchestrated Walkout/Walk-back delegations [ALJ Dec. 30:34-40.] For all, see footnote.19 Schlademan’s UFCW/MCAW team orchestrated about 200 work stoppage-support demonstrations at Walmart facilities during WSW 2012; 1,100 during BF 2012; 19 at SW 2013; and 1,400 at BF 2013.20 [ALJ Dec. 24:29-30, 38:33-35; R. 273; R. 104 at 85:4-86:21 (Schlein).] 10.
The UFCW Confirmed Work Stoppage Dates Weeks And Months In Advance Of Any Actual Work Stoppage.
Dehlendorf and her team confirmed that the UFCW collected strike commitments from OWM leaders for the WSW/BF 2012 and SW/BF 2013 work stoppages at year-beginning conferences. [RT 2122:18-2123:10 and R. 45 at 193:7-194:4; see also ALJ Dec. 36:32-34.] AD Gilbert testified that she heard about the October WSW 2012 work stoppage “right from the first time that [she] became a[n] [OURWalmart] member” in August/September. [RT 3851:1-4.]
19
See Chart Titled “UFCW Planned, Coordinated, Conducted, and Participated in Work Stoppages” at Tab M. 20 See Chart Titled “Work Stoppage Demonstration Disruption Evidence” at Tab N. 34 8999820
Gilbert further testified that the UFCW/OWM staff planned for the Black Friday 2012 work stoppages “a few months prior . . . in September.” [RT 3837:18-3838:2.] Dehlendorf explained that the work stoppages in early October 2012 were “test runs” that established work stoppages as “a strategy that workers could deploy without it being a guarantee of losing their jobs. And so [they] would keep it in [their] playbook.” [RT 2117:13-2118:17 and R. 34 at 3.]
Immediately after the BF 2012 work stoppage series, OWM Leader Rozier
announced the strikes would not stop until Walmart gave OWM what they wanted. [R. ID2 and RT 6748:18-20.] Likewise, another OWM leader, Barbara Collins, told OWM supporters at her store there would be work stoppages again at Shareholder Week 2013 within days of the BF 2012 work stoppage. [RT 608:20-609:25 (Brown).] The UFCW staff, in collaboration with OURWalmart members, sent blast emails in November 2012 to let everyone know “if Walmart does not stop its retaliation . . . we will strike again.” [Jt. 119.] In the same time frame, Schlademan said the strikes and demonstrations were a “new permanent reality.” [R. ID2.] The UFCW/OWM “inner circle” knew there would be work stoppages at WSW 2012, BF 2012, SW 2013, and BF 2013 at least 5-10 months in advance of each. [ALJ Dec. 36:32-34; R. 104 at 182:24-183:16 (Schlein), R. 45 at 164:12-165:5 (Dehlendorf); RT 3852:25-3853:14 (Gilbert); R. 45 at 171:17-172:1 (Dehlendorf) and RT 998:22-999:21 (Schlademan); R. 45 at 193:17-194:4 (Dehlendorf).] The UFCW publicly announced the WSW 2012 work stoppages and related mass demonstrations the week they occurred. [RT 2156:17-2157:1 and Jt. 104(a); RT 2177:17-2178:2 and Jt. 109.]
The UFCW publicly announced the BF 2012 work stoppages and mass
demonstrations on October 10, 2012, the same day the UFCW orchestrated the main WSW 2012
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work stoppage/mass demonstration events at Walmart’s Home Office, and six weeks before the actual BF 2012 work stoppages. [R. 45 at 164:7-11; Jt. 105 at 3-4, 8 and RT 2138:20-2139:20.] As discussed above, Dehlendorf secured strike commitments from certain OWM leaders for SW and BF 2013 in January/February 2013. AD Collins testified that the “Ride for Respect” was developed “after the Black Friday strike, and it was probably around January or February. . . . the beginning of the year.” [RT 711:18-19.] AD Gilbert testified that “shortly after Black Friday 2012 strikes, the membership started talking about what can we do next,” and so “in the February 2013 timeframe, the membership decided on let’s do a strike and actions during shareholder week in 2013.” [RT 3853:7-14.] To that end, Dehlendorf’s UFCW team began emailing each other (but never any associate OWM member or “leader”) about strike commitments for the June SW 2013 work stoppages in mid-March 2013, three months before the actual work stoppages. [R.142 (3/183/26 email exchange between UFCW Chief lieutenants Diaz and Blair: (Diaz) “Here’s your leader list. Please update and let us know which leaders are willing to do what action. And let us know what your leader membership goals are.” (Blair) “And our goal is to have 15 associates strike to go to the shareholder meeting.”); see also strike-commitment emails at R. 162 (4/4), R. 256 at 5-6 (4/16).] Schlademan personally solicited third-party groups to support the SW 2013 work stoppages in mid-April 2013, weeks before Schlademan and Dehlendorf hosted the UFCW-paid-for “Ride for Respect” planning conference in Birmingham, Alabama in early-May 2013. [RT 2487:22-2488:10 (Fabela) and R. 157; see also ALJ Dec. 27:38-41.] AD Norma Dobyns learned from OWM-leader and coworker Collins “in late March of 2013 that there was going to be strikes at the end of May.” [RT 493:3-4 (Dobyns).] AD McKeown testified that “in March, April 2013 . . . the planning was well developed” for the SW work stoppages and the
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actions associated with those work stoppages, which he learned about from UFCW Organizers Abbie and Ro. 21 [RT 3765:8-24.] AD Scott testified that during meetings in Arkansas “at the June [Ride for Respect] strike” she learned from UFCW Organizer Abbie, that “there was going to be a strike and strikerelated actions at Black Friday 2013.” [RT 3939:7-3940:2.] The UFCW publicly announced the BF 2013 work stoppages in early-September 2013, nearly three months before the actual work stoppages. [R. 104 at 182:24-183:10 (Schlein).] 11.
UFCW/OWM Employed The Same IWS Pattern And Techniques In Each Of The Four Waves Of Work Stoppages.
Schlademan “redefin[ed] what the strike is” by creating a force multiplier effect with quick-hit “ULP strikes” on key brand-vulnerability dates that minimized risk to the participants (making recruitment much easier) while maximizing the harassing “pain” of operational disruption and brand damage. [R. 304 at 2:16-32 and R. 305 at 2.] He used the identical “redefined” strike pattern in each of the four waves of work stoppages in 2012 and 2013. The UFCW intended for the unannounced work stoppages of unknown duration to disrupt Walmart’s operations at the affected stores. [RT 2455:17-2456:1 (Blair).] Blair testified that “the point of a strike is for workers to – to withhold their work. So by withholding work in – in important departments was a factor that – we discussed with them....[i]including how that would affect shoppers and store operations.” [RT 2455:17-2456:1] In a planning email discussing the BF 2012 work stoppages, one of Dehlendorf’s other chief lieutenants noted that at one store “[we] have commitments from almost the entire meat dept to walk which would effect (sic) business for shoppers getting thanksgiving dinner items,” and at a second store “with a large commitment I could really see making a statement and affecting their stores operation if even just for a day.” 21
Fabela further testified that the Bentonville caravan activities were planned “over a series of phone calls over several months,” starting in early-2013. [RT 2489:24-2490:20.] 37 8999820
[R. 135 (Morrissette).] A set of Facebook posts drafted by the UFCW in advance of WSW 2012 threatened that “[Walmart] can expect major actions and work disruptions on Black Friday.” [RT 2138:20-2139:20 and Jt. 105 at 3-4.] As noted above, Schlademan believed the work stoppage participants could “make or break” Walmart during the WSW-BF period. [R. 22 and 23 at 7:34-8:13.] In a labor conference speech titled “Rethinking Collective Bargaining and Union Representation,” he touted the campaign’s “ability to disrupt.” [R. 304 at 8:37-45 and 305 at 4.] Schlademan’s chief lieutenant Kevin Blair echoed that sentiment, making clear that the UFCW wanted the work stoppages to “affect[] their store operations, even if it’s just for a day.” [RT 2454:8-2456:20.] The ADs testified that Walmart understaffed their respective stores and admitted that unannounced work stoppages adversely affected customer service and burdened their co-workers (Tab O); the UFCW/OWM did not announce in advance which stores the UFCW/OWM would hit with the work stoppages or who would participate (Tab P); Management witnesses testified that they staffed their stores “lean,” and that unexpected absences always create staffing problems; regardless of the reasons (Tab Q); and Management witnesses testified to specific operational disruption caused by the unannounced work stoppage absences (Tab Q). [See Charts of Record Cites On Absence Disruption at Tabs O, P, Q.] One AD admitted the obvious, which was that UFCW/OWM wanted as many associates as possible to stop work. [RT 6155:20-6158:5 (Givens-Thomas).] Nothing in the record establishes that some other unspecified associate or manager was available or qualified to cover the unannounced absences. Consequentially, work was left undone, done at the expense of work in another department, or pushed off to the next shift. [See Chart of Additional Record Cites On Absence Disruption at Tab R.] Although the ALJ gave only a summary overview of the disruption evidence, he confirmed the operational and customer-service disruption caused by the
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UFCW/OWM work stoppages. [ALJ Dec. 8:24-25, 9:4-11 and n.15 (“Walmart staffs its retail stores leanly . . . [w]hen an associate does miss a scheduled shift, Walmart generally covers for that associate on an ad hoc basis, which can include reassigning associates from other areas of the store, having associates work past the end of their scheduled shifts, or simply running the store shorthanded.”), 25:8-9, 33:22-25 and n.40 (noting that Walmart was forced to close departments due to work stoppage participant absences).] Schlademan’s
work-stoppage-support
mass
demonstrations
created
significant
operational and customer service disruption as well. [See Video Disk at Tab S.] Schlademan and his team orchestrated the same pattern of mass-demonstration disruptions across every wave of the IWS series. The pattern started with Fabela’s team working with allies, affiliates, and activist groups to line up support commitments for strike-support “actions.” [ALJ Dec. 24:3033, 29:32-40, 36:38-37:1; RT 917:23-918:3, 943:20-944:10 (Schlademan); RT 2501:4-13 (Fabela); R. 149 at 1-21, 221:3-222:15 (Fabela); RT 2487:22-2488:10 (Fabela) and R. 157; R. 71.] The UFCW PR team then began hyping the “National Day of Action” work stoppages on social media [ALJ Dec. 20:40-41, 22:45-23:3, 24:30-33; RT 2330:8-2331:15 (Dehlendorf) and Jt. 130; RT 2138:20-2139:20 (Dehlendorf) and Jt. 105 at 8; R. 89 at 3], followed by the PR group creating messaging for participating associates and orchestrating main-stream media interviews. [ALJ Dec. 20:39-40, 22:45-23:3, 24:30-33; RT 2170:6-2172:21 (Dehlendorf) and R. 66; RT 2173:21-2174:16 (Dehlendorf) and R. 67; RT 2158:11-2160:14 (Dehlendorf) and Jt. 104(b); RT 225:20-227:19 (Ware) and R. 6; RT 2288:3-24 and R. 87.] Then the PR group put out a drumbeat of press releases to develop PR momentum going into the IWS events. [ALJ Dec. 20:37-39, 22:45-23:3, 24:30-33, 27:41-28:3, 28:22-23; RT 2161:22-25 (Dehlendorf) and Jt. 106; RT 2201:14-19 (Dehlendorf) and Jt. 111; RT 2285:14-2287:6 (Dehlendorf) and Jt. 122; RT
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2328:6-2329:6 (Dehlendorf) and Jt. 126; R. 88.] At that point, Schlademan’s leadership team either orchestrated the work-stoppage-support mass demonstrations personally or handed over control to a local UFCW lieutenant. [ALJ Dec. 14:28-32; R. 232, 237; R. 73; RT 2204:212206:6 (Dehlendorf) and Jt. 114 at 3; RT 2273:7-2274:18 (Dehlendorf) and Jt. 124; RT 2469:152470:10 (Blair).] During each wave of IWS events in the series, UFCW organizers packaged the made-for-media mass demonstrations around one or a few “striking” associates to draw mainstream and social media attention to the actions. [RT 2158:11-2160:14 and Jt. 104(b); RT 2138:20-2139:20 and Jt. 105; Jt. 127, 128.]
That tactic created the appearance that the
demonstrations grew out of local, community-based support for the UFCW’s raise-the-bar objectives. As found by the ALJ and established by overwhelming and detailed record evidence, the strike-support mass demonstrations created actual disruption to operations and the customer shopping experience at nine stores during WSW 2012; 29 stores during BF 2012; 19 stores during SW 2013, and 15 stores during BF 2013.20 [Accord ALJ Dec. 23 at n.28, 37 at n.49.] The disruptive demonstrations included song and dance routines, shouting through bull horns, selfdescribed picketing, and physical obstruction inside and outside Walmart stores for extended periods on some of busiest shopping days of the year.20 [ALJ Dec. 14:45-15:5, 20:29-32, 21:2829:2, 23:38-24:27, 30:40-31:27, 32 at n.38, 37:40-38:16; RT 2523:7-24 and R. 168(b); see also R. 140 at 1:18-22 (“We’re gonna block traffic while we load up.”).] UFCW Organizer Maria Elena Perez laid out her plan to disrupt store operations with a BF 2012 demonstration, explaining “[w]e intend to go in as shoppers, get placed at the checkstands with some groceries in baskets and then kick off the caroling session.” [R. 239.]
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12.
UFCW/OWM Orchestrated The Four Waves Of Work Stoppages For A Common Purpose; The Raise-The-Bar Objective Never Changed.
In June 2011, Dehlendorf began the public phase of the UFCW/OWM campaign by taking her OWM group to the Home Office during Shareholder Week, where the group presented Karen Casey with a list of campaign demands: more money, more affordable healthcare, more full-time hours, more predictable schedules, no retaliation/equal treatment (and Weingarten rights and a Home Office steward). [ALJ Dec. 15:28-17:17; R. 2.] The group quickly dropped the Weingarten right and steward demands, but, when they returned for another round of demonstrations during Wall Street Week that year (October 2011), the demands did not change; exactly the same thing. [ALJ Dec. 17:41-45; R. 18, 20, and 58.]
The week before
WSW 2011, the UFCW instructed members and allies to “engage [associates] in a conversation around issues of scheduling and hours” with the hope of “activating” and “getting [associates] to join the OURWalmart organization.” [Jt. 95 and RT 2129:19-2130:7 (Dehlendorf); accord ALJ Dec. 17:26-35.] Then, the UFCW/OWM group returned to the Home Office for its last “warm up” demonstration during Shareholder Week 2012 (June), and they again repeated the exact same demands; nothing different; nothing new. [ALJ Dec. 18:4-6; RT 2130:19-2131:19 and Jt. 96.] A UFCW/MCAW “Tool-Kit” document used in the run-up to SW 2012 reiterated those same demands (directly referencing the demands presented to Karen Casey during SW 2011) and explained that “Walmart has enormous power to set the trends not just for the retail and service industries, but for the economy as a whole. Wages and working conditions at Walmart have a ripple-effect throughout all jobs.” [Id.] The UFCW then continued to make the same raise-thebar demands during the WSW 2012 work stoppages, the Black Friday 2012 work stoppages, the SW 2013 work stoppages, and the Black Friday 2013 work stoppages.22 [ALJ Dec. 37:33-37, 22
See Chart Titled “UFCW Campaign Work Stoppage Rationale” at Tab T. 41 8999820
17:21-22 (“[UFCW/OWM] has remained consistent with these goals throughout the campaign [referring to the list of demands presented to Karen Casey in June 2011]”).] Nothing new; nothing different.
The UFCW’s raise-the-bar message permeated every facet of the
UFCW/OWM campaign, including non-NDA actions that did not involve work stoppages (because they fell outside the pre-conceived, repetitive series of “crisis compression moment” time periods when work stoppages were most likely to negatively impact Walmart). [ALJ Dec. 17:26-35; R. 15; Jt. 99; R. 13.] Indeed, the only difference between the pre- and post-WSW 2012 demands was that, after the UFCW began the IWS series, it couched its raise-the-bar demands in a “job protection” narrative; having participating associates list the UFCW/OWM demands in reverse order, focusing first on a generic claim of retaliation “against those who speak out,” followed by the list of economic demands the group was “speaking out” to get. [Jt. 94(a).]
Every strike-demonstration sign, every strike-demonstration chant, every strike-
demonstration manager confrontation; they all repeated the same raise-the-bar demands from June 2011 to November 2013: more money, more affordable healthcare, more full-time hours, more predictable schedules, no retaliation/equal treatment. [RT 939:19-940:3 (Schlademan); R. 45 at 122:8-125:11 (Dehlendorf); see also R. 64(a) at 0:47-52, R. 1985 VID2 at 0:40-1:20 (WSW 2012); R. 140 at 0:00-22, R. 1875 VID2 at 0:46-1:11 (BF 2012); R. 202 at 1:25-2:13, R. 203 at 3:40-5:40 (SW 2013); R. 2571 VID6 at 1:45, R. 3086 VID1 at 1:05 (BF 2013).] In fact, the UFCW started its massive PR build up to the SW 2013 work stoppages and demonstrations by announcing the UFCW’s early-May Birmingham work stoppage planning conference. [ALJ Dec. 27:38-28:8; Jt. 87.] In that major PR announcement, the UFCW did not say one word about any specific or discrete unfair labor practice allegation or purported act of retaliation; just the same raise-the-bar demands.
[Id.]
Of course, those demands echo the same raise-the-bar
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objectives that the UFCW prominently lists on its Web site as the rationale for its “Change Walmart” efforts. [R. 24, 29.] Schlademan testified: “I mean, we’re seeking to fulfill our mission as an organization which is to support and – support retail workers in trying to build better jobs and to build better futures for themselves and their families.” [RT 891:21-892:3.] He went on to explain that the goals of the UFCW/OWM campaign have always been to “move” Walmart to increase wages, provide affordable benefits, give more full-time hours, more predictable scheduling, give respect, not retaliate. [RT 938:9-939:2; accord ALJ Dec. 17:21-22.]
To be sure, Schlademan and
Dehlendorf routinely sprinkled the generic word “retaliation” into their campaign rhetoric [see, e.g., Jt. 97, 102, 109, 120; R. 4(a), 5, 94 at 2], but during a week of trial testimony, neither they nor any of their testifying UFCW-lieutenants ever identified any specific purported act of retaliation (other than the absence occurrences at issue here), and they certainly never claimed to have planned or conducted any of the individual work stoppages at issue here in response to any discrete or separate purported act of retaliation (or any other discrete action). No one from the UFCW ever offered any alternative explanation for the work stoppages (other than the generic raise-the-bar objectives), and neither the CGC nor CP ever asked them for one.23 & 24 Likewise, the record contains no evidence that any AD would have engaged in any work stoppage but for the fact that the UFCW orchestrated the work stoppages in support of the
23
The UFCW did not – nor did any AD – identify the June-July attendance feedback at issue in this case as a rationale for the annualized BF 2013 work stoppages. Nor could they. The UFCW planned, and obtained strike commitments for BF 2013 in January/February 2013. [RT 2122:18-2123:10 (Dehlendorf).] 24 [RT 884:20-885:24, 938:9-24, 939:19-25, 992:13-993:4, 1011:10-19, 1015:1-14 (Schlademan); RT 2106:14-2107:2, 2110:3-23 (Dehlendorf); RT 2117:13-2122:2 (Dehlendorf) and R. 32; RT 2208:4-2209:21, 2306:11-25, 2324:13-13 (Dehlendorf); R. 45 at 30:10-31:2 (Dehlendorf); RT 2507:8-2508:15 (Albert).] 43 8999820
UFCW/OWM raise-the-bar objectives. Not one alleged discriminatee claimed to have stopped work because of any ULP charge or specific and discrete act of alleged retaliation.25 Their work stoppage-related signs, chants, and speeches repeated the same raise-the-bar demands that the UFCW/OWM campaign first advanced in 2011. [See, e.g., R. 64(a) at 0:18-54, R. 1985 VID2 at 0:39-1:21 (WSW 2012); R. 140 at 0:00-20, R. 141 at 0:57-2:42 (BF 2012); R. 185 at 2:55-4:53, R. 202 at 1:26-2:12 (SW 2013); R. 98 at 1:04, R. 2571 VID6 at 2:06 (BF 2013).] Every one of them read or delivered the identical UFCW-created, distributed, -collected, and –delivered job-protection walk-out and walk-back letters that stated the identical raise-thebar reasons for every one of the work stoppage participants for every one of the work stoppages (just in reverse order; with the generic retaliation claim first and then the list of economic demands second). [R. 94(a); See also ALJ Dec. 19:32-40, 20:46-21:16, 22:9-24, 23:24-36, 25:14, 30:8-31, 32:38-33:15, 37:10-27, 38:19-33.] They all made common cause with the UFCWorchestrated series of intermittent work stoppages for a common plan or purpose. Tellingly, although the CGC and CP had every chance to inquire as to whether the individual ADs disagreed with – or had alternative motives to – the generic, never-changing work stoppage rationale expressed in the ubiquitous walk-out/walk-back letters, neither ever showed an AD his or her walk-out or walk-back letters and asked, “What did you mean by that?” Not one AD gave any alternative explanation to management (or at trial) as to why they participated in the work stoppages. One AD stated the obvious, “[the strikes are] stepping stone[s] to get where we want to be.” [RT 2881:5-12, 2904:1-3 (C. Collins).] The ADs all testified that Walmart did not address any of their individual or group demands or resolve any of their individual or group concerns during the relevant period.26 The 25
See Chart Titled “AD Rationale for Joining OURWalmart and Participating in Work Stoppages” at Tab U. 44 8999820
ADs testified uniformly that nothing changed in their working conditions at Walmart in between the four waves of work stoppages.26 Managers testified the same.27 Nothing new; nothing different; nothing distinct; nothing separate. Walmart’s response didn’t matter, because the UFCW’s pre-conceived work-stoppage campaign would have continued regardless of what Walmart did or did not do, short of total capitulation to the UFCW’s raise-the-bar demands. Indeed, the UFCW inadvertently caught one its UFCW-directed work-stoppage participants speaking with unguarded candor in the days leading up to BF 2013, when she told her daughter that she (the daughter) would get an OWM hat (like her Mom’s) “Next year. Next strike.” [R. ID23 and R. 284 at 0:45-55.] E.
Walmart Applied Its Attendance Policy In A Uniform, Non-Discriminatory Manner.
The parties agree that Walmart treated the SW work stoppage absences like any other absence under its no-fault attendance policy [Jt. 0(a)-(m)], which did not result in any action for one ADs, an attendance-status discussion for some, written discipline (“coaching”) for others, and discharge for a smaller group based on their pre-existing disciplinary records.2 The CGC and CP do not dispute that Walmart applied its no-fault attendance policy to the SW work stoppage absences in a uniform, non-discriminatory manner, consistent with the progressive steps of the attendance policy.28 The CGC acknowledged, “I think I elaborated, and I think Deborah [Gaydos] has confirmed, we’re not pursuing a separate, disparate treatment type of a – type of theory.” [RT 6790:13-16.] 26
[RT 3135:9-19 (Bowers); RT 602:9-603:1 (Brown); RT 813:8-14 (B. Collins); RT 2895:6-15 (C. Collins); RT 4918:17-4920:3 (Cruz); RT 4455:23-4456:5 (Garrett); RT 354:22-355:5 (Gurule); RT 4999:7-9 (Martinez); RT 3769:5-14 (McKeown); RT 4010:24-4011:7 (Stonehouse); RT 214:16-215:13 (Ware).] 27 [RT 1258:25-1259:7, 1259:5-7 (Bornhoft); RT 6323:6-10 (Moon); RT 3188:18-3189:8 (Stewart); RT 1554:9-12 (Wainaina).] 28 [See, e.g. RT 1713:15-20 (Allen); RT 5344:4-12 (Atkins); RT 1270:1-20 (Bornhoft).] 45 8999820
II.
THE COMPLAINT RAISES CERTAIN ADDITIONAL INDIVIDUAL ISSUES. A.
ADs Colby Harris And Mark Bowers Started The May-June Wave Of IWS With A May 6, 2013 Work Stoppage. 1.
Harris and Bowers Engaged In A May 6 IWS As Part Of The UFCW’s Overarching IWS Campaign.
Harris attended the UFCW-coordinated and paid-for “Ride for Respect” planning conference in Birmingham, Alabama in early-May 2013. [RT 2778:21-2779:5, 2781:14-15 (Harris); Jt. 88.] As discussed above, at that planning conference, the UFCW coordinated with OWM Leaders, such as Harris, to plan the specific logistical details for the next wave of IWS during SW 2013 in late-May/early-June 2013. [RT 2785:22-2786:9 (Harris).] Empowered and motivated by the UFCW’s Birmingham events, Harris and Mark Bowers got a head start on the late-May-June IWS wave with an IWS event on May 6, 2013. “[L]ike the previous [and subsequent] ones,” Harris and Bowers signed the same generic UFCW-drafted walk-out and walk-back letters stating the same generic objectives for the work stoppage that they used when participating in the UFCW’s IWS waves in October and November 2012. [RT 3111:12-24, 3114:11-3115:11 (Bowers); RT 2764:11-24, 2848:20-2849:9 (Harris); Jt. 176, 177, 212, 214.] And just “like the previous ones,” the UFCW Organizers faxed Harris’ and Bowers’ walk-out letters to management. [RT 2765:1-3 (Harris).] Harris testified that he went on the work stoppage based on the generic reasons specified in the UFCW-drafted walk-out and walk-back letters. [RT 2848:20-2849:9.] Bowers similarly testified that he went on the work stoppage “because of better respect on the job.” [RT 3112:16.] Harris added that he decided to go on the work stoppage for the generic, unspecified ULPs filed “in different locations around the country,” but at the time of the work stoppage he “didn’t remember any specific ULPs” that had been filed. [RT 2849:10-20.]
46 8999820
Harris and Bowers failed to work two or three scheduled shifts as part of the May 6, 2013 IWS, and returned to work on May 10, 2013.
[RT 3115:13-15 (Bowers); RT 2768:12-16
(Harris); Jt. 170, 171, 207, 208; Tab A.] As before, UFCW Organizers Terry Dunn or Will Cox gave Harris and Bowers the UFCW-drafted walk-back letters to sign and they returned them to the UFCW Organizers to fax to management. [RT 3114:11-3115:11, 3136:7-17 (Bowers).] Consistent with the generic reasons in the UFCW-drafted walk-out and walk-back letters, Harris further testified that during the last day of his work stoppage, he created an online petition to call on Walmart to stop retaliating against associates who were speaking out, but it contained nothing specific, just the same generic claim. [RT 2768:19-2771:2; GC 471-1.] Bowers testified that during the three days he failed to work his scheduled shifts, he was “at home chilling” and “[t]aking care of personal business.” [RT 3143:24-3144:5.]29 2.
Management Issued Harris And Bowers Attendance-Related Discipline Based On Their Failure To Work Their Scheduled Shifts.
Harris had just received a First Written Coaching on May 3 for excessive absences and tardiness in violation of the attendance policy (unrelated to the UFCW’s IWS campaign). [Jt. 204.]
Consequently, Walmart issued Harris the next level of coaching, a Second Written
Coaching for his May 6 IWS absences. [Jt. 205.] As for Bowers, at the time he failed to work his scheduled shifts during the May 6 IWS, he already had a First Written Coaching for Destruction of Property (he pushed shopping carts into the grocery door and shattered the glass) and a Second Written Coaching for Attendance/Punctuality for a no call/no show (unrelated to 29
On direct examination Harris seemed to suggest that he left work because of something he thought the Store Manager said about OWM, but Harris testified that he could not remember the comment. [RT 2765:19-2766:1.] On cross examination, Harris clarified and explained that he went on the work stoppage based on the reasons specified in the walk-out and walk-back letters. [RT 2848:20-2849:9.] The ALJ overlooked Harris’ cross-examination testimony and, therefore, erred in finding that Harris (and Bowers) walked out in response to some, unidentified manager comment. (Exception 35.) 47 8999820
the UFCW’s IWS campaign). [Jt. 167, 168.] Consequently, Delicino issued Bowers a Third Written Coaching. [Jt. 169.] B.
Certain Other AD Situations Involved Unique Issues.30 1.
Walmart Told Gertz It Would Not Hold Her Work Stoppage Absences Against Her.
Barbara Gertz missed seven scheduled shifts due to her participation in the SW work stoppage [Jt. 1328 (Stipulation) at II(3).] The parties stipulated that on June 18, 2013, Assistant Manager Dibble and Support Manager Gary met with Gertz “and discussed that Gertz had more absences than were allowed under the policy.” [Id. at II(6).] Those absences included the dates Gertz missed as a result of her participation in the SW work stoppage. [Id.] The parties also stipulated that store management later informed Gertz that her SW work stoppage absences “were not going to be held against her.” [Id. at II(7).] 2.
Walmart Cancelled The Personal Discussion It Issued To Slowey.
Walmart’s Attendance/Punctuality Policy provides for a non-disciplinary reminder before Walmart imposes attendance-related discipline. [Jt. 0(a)-(m).] Under that Policy, if an associate incurs three unexcused absence occurrences in a six-month rolling period, store management meets with the associate to conduct a “Personal Discussion.” [Id.] The Personal Discussion serves as a friendly reminder to associates about their attendance status to help them avoid attendance-related discipline. [RT 3515:15-19 (Fewell); RT 5967:18-24 (Gawel).]
30
In addition to the individual issues discussed in this section, the ALJ also erred on two individual associate issues, which are likely just inadvertent misstatements. The ALJ erred in holding that Walmart issued a coaching to Marie Kanger-Born in late-June 2013. [ALJ Dec. 35:27-37 (Exception 41).] The record evidence establishes and the ALJ found elsewhere that Walmart issued Kanger-Born a Personal Discussion on June 26, 2013. [ALJ Dec. 77:15-18; Jt. 1011; R. 272; RT 5806:4-5810:19.] The ALJ erred in holding that Walmart discharged Louis Callahan in June 2013. [ALJ Dec. 35:27-36:9 (Exception 42).] The record evidence shows that Walmart discharged him on May 29, 2013. [RT 1509:21-1510:1, 1513:12-1515:6; Jt. 20(a).] 48 8999820
Importantly, the Personal Discussion does not serve as a mandatory prerequisite to attendance-related discipline. [Id.] Indeed, the Policy itself calls the Personal Discussion an “opportunity” for associates, not a consequence.
[Jt. 0(a)-(m), 3(a).]
Rather, as the ALJ
recognized, an associate who accumulates four or more occurrences may receive discipline in the form of a Coaching, with or without a prior Personal Discussion. [ALJ Dec. 12 n.21 (stating that “Walmart managers have the discretion to either have the personal discussion with the associate even though the associate has more than three occurrences, or alternatively skip the personal discussion and impose the applicable coaching”).] Lawrence Slowey missed eight scheduled shifts due to his participation in the SW work stoppage. [R. 272 (Stipulation) at VII(D)(1).] The parties stipulated that Store Manager Kim Carson “issued Slowey JT EX 452 [Personal Discussion] because of his [SW work stoppage] absences . . . as well as for other absences.” [Id. at VII(F).] Carson testified that “When I covered his attendance, I went over the dates that he was absent, which brought him to three occurrences, which is why he was receiving the personal discussion. During the personal discussion, [Slowey] stated that he believed that the March 29th [absence] should have been an approved occurrence because he used time.” [RT 3643:6-19.] After checking with personnel that same day, Carson found Slowey and told him “you did use time; I got it taken care of, the discussion has been taken away.” [RT 3643:24-3644:8.] Carson then wrote on the Personal Discussion: “canceled – took discussion away 6/24/13.” [Jt. 452 (Personal Discussion).] Carson also removed the Personal Discussion from Slowey’s personnel file. [RT 3644:11-14.] 3.
Martinez Incurred Sufficient Non-Work Stoppage Absences To Warrant A Personal Discussion In December 2012.
Victoria Martinez incurred seven absence occurrences between June 16 and December 16, 2012 – twelve tardies (three tardies equals one occurrence) (6/19, 7/6, 7/17, 7/21, 9/24, 10/6, 49 8999820
10/25, 11/15, 11/25, 11/30, 12/3, and 12/16) and three absences (9/21, 10/4, and 11/23). [Jt. 856.] Martinez engaged in work stoppages on two of those dates: October 4 and November 23. [ALJ Dec. 68:22-27; Jt. 765, 853, 856; GC 2886-2, 2886-3.] Although Martinez called the IVR system and submitted a strike letter on November 20, Walmart did not schedule Martinez to work that day. [ALJ Dec. 68:22-27, n.77; Jt. 853, 856.] On December 17, Assistant Manager Pasillas met with Martinez and gave her a Personal Discussion for four absence occurrences. [ALJ Dec. 68:33-69:2; RT 4959:19-4960:16; Jt. 860.] The Personal Discussion document did not state which four occurrences it covered. [ALJ Dec. 68:33-69:2; Jt. 860.] Martinez testified that in the meeting she asked Pasillas “are you sure” she incurred four occurrences. Pasillas responded “yes, that’s what it shows here on the computer.” [RT 4960:1924.] The CGC then asked Martinez whether she recognized a truncated report showing she called the IVR on November 20 and 23 (GC 2886-5). Martinez responded that she got the document from Pasillas during the meeting and that the document “show[ed] my absences.” [RT 4961:13-21.] The CGC did not ask Martinez whether Pasillas showed or gave her the Absence Report showing all of her occurrences or the full IVR Report showing all of her absence hotline calls. [Jt. 855, 856.] Walmart did not issue a Personal Discussion or discipline to any other associate for the October and November 2012 work stoppages or demonstrations.31 4.
Juanitas Incurred Sufficient Non-Work Stoppage Absences To Warrant A Personal Discussion In June 2013.
Juan Juanitas missed five scheduled shifts due to his SW work stoppage: May 28 and 31, and June 2, 3, and 4, 2013. [ALJ Dec. 67:19-21; R. 272.] He returned to work on June 7. [ALJ Dec. 67:23-24; Jt. 16(b).] Shortly thereafter, Juanitas missed seven scheduled shifts in a row on June 15, 16, 17, 18, 21, 22, and 23. [Jt. 16(a), 16(b), 16(c).] Management gave Juanitas a verbal 31
[See, e.g., RT 39:1-7 (CGC), 2937:3-5 (Adams), 3103:10-13 (Bowers), 851:14-16 (Bravo), 562:15-17 (Brown).] 50 8999820
Personal Discussion. [ALJ Dec. 67:26-27; R. 272.]
No witness or document in evidence
identified the date that Walmart gave Juanitas the Personal Discussion. Juanitas did not testify. Nevertheless, record evidence shows that Walmart did not issue discipline or a Personal Discussion to any of the other ADs in Walmart’s Western Business Unit until June 21. [Jt. 29, 922.] Juanitas did not show up to work on June 21, 22, or 23. So, Walmart could not have given Juanitas the Personal Discussion until June 24 at the earliest. 5.
Walmart Discharged Davis Because She Simply Stopped Showing Up For Work After Her SW Work Stoppage.
Davis worked two nights a week. [ALJ Dec. 72 n.83; RT 1520:11-25.] She worked in the store during the day for a Walmart vendor. [ALJ Dec. 72 n.86; RT 1520:20-23, 1522:10-14.] Davis frequently missed work, and Walmart issued Davis a coaching for absences in September, 2012. [RT 1524:22-1525:3; Jt. 22(e).] Davis then tried unsuccessfully to obtain a medical Leave of Absence, and she continued to miss work. [ALJ Dec. 72 n.86; RT 1521:16-1522:9.] Davis then missed work on May 25, 26 and June 2 and 8, the last two dates because of her SW work stoppage. [ALJ Dec. 72:24-26; R. 272.] At some point in late-June 2013, Walmart decided to issue Davis a Second Written Coaching for her SW and other absences. [Jt. 29.] Davis then missed almost all of her scheduled shifts for the rest of June and missed the entire month of July. [Jt. 22(a)] Consequently, Walmart discharged Davis on July 30. [ALJ Dec. 72:21-23; Jt. 22(a).]
The store manager testified without contradiction that Davis “was
terminated for a lot of attendance absences” [RT 1501:3-6], and he would not have terminated her “if she hadn’t had more” absences after her SW work stoppage. [RT 1502:11-17.] 32 32
In addition to Davis, Walmart would have issued Stinnett a Second Written Coaching for attendance, regardless of the days she missed to participate in the SWWS, because she had an active First Written Coaching for attendance and missed three additional shifts before the SWWS (for unknown reasons) and one additional shift on June 10 to attend the lobbying conference. [ALJ Dec. 70 n.81; Jt. 14(a) (noting absences on May 3, 8, 21, 22, and June 10, 2013), (b)-(d), 51 8999820
C.
The ADs Abandoned Shifts For Personal Business And To Attend Events Unrelated To Any Work-Related Protest.
The UFCW/OWM designed the SW 2013 work stoppages as a “massive educational program” and a pro-labor alternative meeting to Walmart’s Associate Appreciation Week and Shareholder Meeting.
[GC 5(d) (The Nation article quoting Schlademan) at 2; R. 45
(Dehlendorf) at 149:7-14.] To further those objectives, the UFCW/OWM sent “civil rights movement-style caravans of workers from around the country to Walmart’s June 7 annual shareholder meeting” in Arkansas. [R. 297 (UFCW 5/30/13 Press Release).] On their road trip to and while in Arkansas, associates and UFCW/OWM organizers engaged in activities having nothing to do with working conditions at Walmart: They met with local unions, community organizations, and community leaders on general union and worker issues unrelated to working conditions at Walmart; held “send offs,” panel discussions, photo-ops, and press events; received training on conducting actions and improving OURWalmart as an organization; conducted community outreach and encouraged other associates to join OURWalmart; held a vigil to honor workers killed in a factory fire in Bangladesh; marched against “the 1%”; toured a museum and looked at artwork; and visited the town square next to the first Walmart store.33 Indeed, Brown testified that one of her primary reasons for going on “strike” was to “go and check out the first Wal-Mart store” in Arkansas. [RT 545:10.]
(e) (noting five missed shifts in March and April 2013); R. 272 at XVII; RT 813:19-814:23.] That is, Stinnett missed four shifts for reasons having nothing to do with protesting working conditions, and Walmart would have issued her the next level of coaching for those days. [See Jt. 0(a)(1) (associates advance to the next coaching level for “each subsequent [attendance] occurrence that results in more than three occurrences in a rolling six month period”).] 33 [See, e.g., ALJ Dec. 70 n.81; Jt. 86 at 9-11, 124 at 3, 7; R. 9-11, 32, 33, 45, 110, 119, 297, 298, 1102-BG-1; RT 116:7-16, 118:3-11, 121:1-20, 123:10-124:5, 233:13-234:12, 259:6-260:4, 448:20-449:3, 615:17-616:24, 839:19-840:2, 982:12-983:4, 984:12-985:9, 986:5-987:3, 2790:212791:15, 343:17-345:12, 346:5-18, 3044:15-25, 3144:17-3145:12, 3726:2-21, 4312:21-25, 4336:1-14, 4428:25-4429:13, 4477:6-4478:6, 4755:18-4756:2, 4969:9-15, 4829:8-17, 4851:214852:1, 4967:9-15, 6058:12-17.] 52 8999820
The UFCW/OWM’s entire work-stoppage agenda “culminated” with OWM-leader Janet Sparks making a formal proposal to the 15,000+ shareholder attending the Annual Shareholder Meeting. Sparks proposed limiting executive compensation but said absolutely nothing about associate terms or conditions of employment.34 In addition, not all participating associates attended the UFCW/OWM’s SWWS events. Some came and went from work as they wanted during the SWWS period, skipping mandatory, scheduled shifts because they stayed home, attended to “personal business,” “ate and watched TV,” or helped their family members.35
B.
Collins, Dobyns, Yvette Brown, and Amy Stinnett missed additional shifts after returning home from Arkansas for the sole purpose of attending a lobbying conference in Sacramento. [Jt. 9(b), 9(c), RT 813:19-814:23 (Collins missed June 9 and 10); Jt. 11(b), 11(c) (Dobyns, same); Jt. 10(b), 10(c) (Brown missed June 10); Jt. 14(b), 14(c) (Stinnett, same).] Other ADs missed scheduled shifts but did not go to Arkansas at all.
Matt Gauer stayed home to help his
grandmother [Jt. 12(b), Jt. 12(c), RT 388:13-389:3 (missed 7 shifts)]; Javon Adams and Collins visited other Walmart stores near their home and organized for OWM. [Jt. 140, Jt. 142, RT 2943:13-2944:8, 2957:11-2958:18 (Adams missed 5 shifts); Jt. 188, Jt. 189, RT 2908:18-2909:8 (C. Collins missed 7 shifts).]
34
[Jt. 125(a)-(b); RT 2291:19-25; also RT 2290:6-2292:22, 816:13-817:14, 2813:6-14, 4336:1524, 4341:11-16, 4401:22-4402:18, 4462:25-4464:11, 4851:10-20, 5564:2-16, 6076:20-6077:5.] 35 [Jt. 27(b), 27(c), RT 255:15-22; Jt. 9(b), 9(c), 124 at 3, RT 714:9-10; Jt. 852, 853, RT 4964:254965:1, 4985:20-4986:6, 4987:8-16; Jt. 24(b), 24(c); RT 457:13-458:12.] 53 8999820
ARGUMENT I.
WALMART FOLLOWED WELL-ESTABLISHED COURT AND BOARD LAW WHEN IT APPLIED ITS ATTENDANCE POLICY TO THE IWS ABSENCES. (EXCEPTIONS 16-27.) A.
The ALJ Erred By Overlooking The Fundamental Rationale For The Supreme Court’s IWS Rule And Creating Inconsistent Elements Of Proof.
As discussed below, the United States Supreme Court, the federal courts of appeals, and the Board repeatedly and uniformly hold that the Act does not give employees or unions the right “to come and go as they please” “any time the Union saw fit” “as directed by the union” at “the changing whim which may suit the employees’ or a union’s purpose” so as to “work under terms prescribed by themselves alone.” There is no right under the Act to “strike on the installment plan” or “arrogat[e] [to themselves] the right to determine their schedules and hours of work” or pick “their own chosen conditions of employment” by “attempting to dictate the terms and conditions of employment” with a plan to “walk-out and return and to engage in this activity repeatedly.” They “cannot pick and choose” when they will work with a “hit and run” “plan to strike, return to work, and strike again” or “set their own terms and conditions of employment in defiance of their employer’s authority to determine those matters,” which is a type of “worker insubordination.” Every one of those quotes comes from a Court or Board case (discussed below) explaining that the Act does not affirmatively protect (nor prohibit) the IWS tactic because it seeks to unilaterally dictate the work schedule. That is the foundation on which 60plus years of intermittent work stoppage jurisprudence rests. Here, the ALJ found – and it is undisputed – that UFCW/OWM repeatedly dictated that participating associates come and go from work anytime UFCW/OWM saw fit (with threats to continue) for a common plan or purpose. [ALJ Dec. 54:46-47, 55:29-36, 67:2-4.] That should have ended the inquiry. But the ALJ ignored the core foundation for the IWS rule – did not even 54 8999820
mention it – and built his own foundation on a number of “sinking sand” assumptions that led to an untenable result that contradicts – and cannot coexist with – the Supreme Court’s and the Board’s IWS rule.
Walmart cannot locate a single IWS case that does not endorse the
“employees do not get to repeatedly dictate their work schedule for the same reason” rationale. Nor can Walmart locate a single case where the Board and courts do not apply the IWS rule and rationale to a strategy of intermittent striking for a common plan or purpose. The ALJ erred. 1.
The Courts And Board Hold That The Act Does Not Give Employees The Right To Come And Go From Work Anytime They See Fit. a.
Courts.
In Auto Workers UAW Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245, 249-50 (1949) (Briggs-Stratton), the union pressured the employer during collective bargaining by calling intermittent work stoppages “any time the Union saw fit.” (Emphasis added.)
As a result, the employer “was disabled thereby from making any dependable
production plans or delivery commitments.” Id. “It was commended [by the Union] as a procedure which would avoid hardships that a strike imposes on employees and was considered ‘a better weapon than a strike.’” Id. The Union called 27 work stoppages over approximately five months. Id. The Court held that “Congress has not made such employee and union conduct as is involved in this case subject to regulation by the federal Board . . . [and] the federal Board has no authority either to investigate, approve or forbid the union conduct in question.” Id. at 254. In NLRB v. Insurance Agents, 361 U.S. 477, 479-80 (1960), the union pressured the employer by instituting a “Work Without A Contract” intermittent work stoppage strategy at facilities in 35 different states, where employees came and went from work “as directed by the union” “to harass the company.” Id. (emphasis added). The Court found the Board could neither protect nor prohibit the IWS tactic. Id. In Machinists Lodge 76, v. Wisconsin Empl. Rel. 55 8999820
Commn., 427 U.S. 132, 134-36 (1976) (Machinists), the union pressured the employer with IWS by dictating that its members leave work after 7.5 hours and refuse any overtime hours. Id. The Court reiterated that “[o]ur decisions hold that Congress meant that these [self-help, pressure] activities whether of employer or employees, were not to be regulable by States any more than by the NLRB, for neither States nor the Board is afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful.” Id. Rather, such IWS tactics – lying between the protected traditional strike and the prohibited Section 8(b)(4) strike – must be left to the “free play of economic forces.” Id. In Excavation-Constr., Inc. v. NLRB, 660 F.2d 1015 (4th Cir. 1981), the court held that the Act did not protect the non-union employees’ IWS tactic to refuse weekend work if the employer paid “straight time” because “[t]he men, then, were seeking to continue to work under terms prescribed by themselves alone, and were not engaged in a single, isolated, concerted protest against conditions of employment.” Id. at 1022 (emphasis added). In Liberty Mut. Ins. Co. v. NLRB, 592 F.2d 595, 604-05 (1st Cir. 1979), the court called a similar intermittent refusal to report to work at a non-union employee’s own whim “insubordinate” and “a strike on the installment plan.” In Home Beneficial Life Insurance Co. v. NLRB, 159 F.2d 280, 286 (4th Cir.), cert. denied, 332 U.S. 758 (1947), the court found unprotected a plan where non-union employees “agreed among themselves to report only two days a week”; noting “We are aware of no law or logic that gives the employee the right to work upon terms prescribed solely by him. That is plainly what was sought to be done in this instance. . . . If they had a right to fix the hours of their employment, it would follow that a similar right existed by which they could prescribe all conditions and regulations affecting their employment.” (Emphasis added). In NLRB v. Blades Mfg. Co., 344 F.2d 998, 1000-01 (8th Cir. 1965), the court relied on Briggs-
56 8999820
Stratton and Insurance Agents to find that the Act did not protect three work stoppages that a group of unrepresented employees (aided by a union) engaged in as part of a “walk out for a day” strategy, where they agreed amongst themselves to walk-out in protest each time – anytime – their employer refused to meet with their Union spokesman over a grievance.” Id. The court further noted that “there is nothing in the [Act] which would imply that the right to strike carries with it the right to exclusively to determine the timing and duration of all work stoppages. The right to strike as commonly understood is the right to cease work – nothing more.” Id. (citing Justice Stewart) (emphasis added). b.
Board.
In Honolulu Rapid Transit Co., 110 NLRB 1806, 1807-10 (1954) (full Board decision), the union pressured the employer with 2-day weekend strikes periodically over a 2½ month period and did not disavow its intent to stop. The Board noted that the no-weekend-work “scheme was, in the Union’s own words, designed to ‘turn the tables on the [employer],’ by depriving it of some income while allowing the employees to embarrass the Company without serious economic loss to themselves”; “an entirely new gimmick,” according to the union. Id. at 1807. The Board rejected the “new gimmick,” relying on Briggs-Stratton, holding that “the employees [can] choose either of the two avenues available to them – either quit work or discharge the obligations for which they are hired and paid. The employees, however, chose neither of these courses, but instead chose to engage in a form of strike action which has generally been held to be unprotected.” Id. at 1810. More specifically, the Board held that “[t]he decision of the employees in this case, implemented in their part-time weekend strike, can only be described as an arrogation of the right to determine their schedules and hours of work . . . . [The] employer is not required . . . to alter and adjust his operating schedules and hours to the changing whim which may suit the employees’ or a union’s purpose . . . and thereby in effect 57 8999820
establish and impose upon the employer their own chosen conditions of employment.’” Id. at 1809-10 (emphasis added). The Board cited Liberty Mutual for the characterization of IWS as an unprotected “strike on the installment plan.” Id. at 1811 (emphasis added). The Board affirmed the ALJ’s substantial reliance on Honolulu Transit in Care Center of Kansas City (Swope Ridge Geriatric Center), 350 NLRB 64, 64-66 (2007), where the Board found that the Act did not protect repeated striking (2 strikes with significant third-party demonstrations and a threat of a third) in furtherance of the same wage increase demand, even though the employer “was well prepared for the strikes and [] there was no disruption of services and care for the residents.” Id. at 66. The Board affirmed the ALJ’s finding that the employer established unprotected IWS by showing: (1) employee participation in a continuing series of intermittent, set-length work stoppages; (2) for a common plan or purpose; i.e., not direct, contemporaneous responses to distinct and separate employer actions.
Id.; see also W.
Wirebound Box Co., 191 NLRB 748, 762 (1971) (citing Briggs-Stratton: “It is well settled that concerted activity, such as that in which the [non-union] employees engaged on August 8 and September 5 [leaving work 1.5 hours early to protest the employer’s perceived refusal to bargain with the organizing-union and no disavowal of intent to continue], is tantamount to a partial or ‘quickie strike,’ which is unprotected by the Act”; noting that “[t]he vice in such a strike derives from two sources. First, the Union sought to bring about a condition that would be neither strike nor work. And, second, in so doing, the Union in effect was attempting to dictate the terms and conditions of employment”) (emphasis added); Kohler Co., 108 NLRB 207, 218 (1954), enfd., 220 F.2d 3, 11 (7th Cir. 1955) (affirming ALJ finding that the Act did not protect a single work stoppage protesting lack of ventilation coupled with a threat to engage in repeated work stoppages over same, unchanged grievance).
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In National Steel and Shipbuilding Co., 324 NLRB 499, 499 n.13, 509-510 (1997), the Board affirmed the ALJ’s finding that the Act did not protect the union’s strategy of repeated, same-purpose striking (one-day strikes on March 17, April 29, May 17, and June 23); noting the “‘repeated condemn[ation]’ delivered by ‘[b]oth the Board and the courts’ against such less-than(complete) strike activities [which] appears to be grounded in the notion that they involve a kind of worker insubordination, i.e., a ‘refusal to work on the terms lawfully prescribed by the employer while remaining on their jobs.’” Id. (emphasis added). In Embossing Printers, Inc., 268 NLRB 710, 710 n.3 (1984), the Board likewise found that “the Respondent lawfully disciplined its first-shift employees for engaging in [three] unprotected intermittent walkouts . . . .”; with the ALJ (affirmed by the Board) noting “it is immaterial whether such would have been considered an unfair labor practice strike. . . ., if employees had the right to engage in the activity they did, they had that right regardless of whether it was to protest the Company’s unfair labor practices or to achieve some other end. If, on the other hand, their concerted activity was unprotected, their purpose does not change the unprotected nature of the act.” Id. The ALJ (affirmed by the Board) further found: “They did not have a right under the Act to come and go as they pleased. They were entitled to strike. But they were not entitled to walk-out and return and to engage in this activity repeatedly. The employees established a pattern of intermittent partial strikes. For this their employer had the right under the Act to discipline them if it chose.” Id. (emphasis added). The ALJ (affirmed by the Board) further rejected “[t]he Charging Party argu[ment] that K. C. Jones was unlawfully locked out even if the others were not because he attended only one meeting on company time.” Id. The ALJ found: “I conclude that by participating in only one of several walkouts, he associated himself with the intermittent activity. Thus the Respondent could lawfully discipline
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him as the others.” Id.; see also Audubon Health Care Ctr, 268 NLRB 135, 137 (1983) (“While employees may protest and ultimately seek to change any term or condition of their employment by striking or engaging in a work stoppage, the strike or stoppage must be complete, that is, the employees must withhold all their services from their employer. They cannot pick and choose the work they will do or when they will do it. Such conduct constitutes an attempt by the employees to set their own terms and conditions of employment in defiance of their employer’s authority to determine those matters and is unprotected.” (commenting on non-union employees’ refusal to cover shifts for sick co-worker) (emphasis added)). In Pacific Telephone & Telegraph Co., 107 NLRB 1547 (1954), the Board found that the Act did not protect the union’s “resort to a form of economic warfare entirely beyond the pale of proper strike activities” involving “a multiplicity of little ‘hit and run’ work stoppages [implemented three times] deliberately calculated, in [the union’s] own words, to ‘harass the company into a state of confusion’” while ensuring that the participating employees “suffer[] no great loss.” Id. at 1547-48 & n.3 (emphasis added). The union enlisted the help of another union – representing the employer’s “tollmen” – to direct the tollmen to refuse to work whenever – any time – the traffic employees put up a picket line. Id. at 1548. The Board found that the Act did not protect IWS absences, including absences by tollmen who participated in the strategy just once, and even if they did not know about the union’s plan or strategy: “[I]t is entirely possible that some few of them [the tollmen] – particularly those who quit work only once – might have had no personal knowledge of the other group’s [the traffic employees’] intention. . . . . It was sufficient for the Respondent that each of the tollmen here involved was a participant in the strike strategy; whether knowingly or unwittingly is of no significance.” Id. at 1551-52.
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In Dallas Glass, 2013 WL 703258 (Div. of Judges), the Act did not protect two “salts” in a non-union workforce who engaged in two “strikes” where they had a “plan to strike, return to work, and strike again” on a “repeated” basis for a common purpose: “The only explicitly stated reason for taking action, asserted in connection with the second strike, was to protest employee wages. Nothing changed with regard to employee wages from 2007 to the time of the hearing. The recurrent strikes in the interim, therefore, were not even ostensibly in response to discrete employer actions. . . . [T]here is no reason to believe the alleged discriminatees’ pattern of conduct of intermittent work stoppages would change until they achieved their goal of union recognition and/or area standards pay and benefits.” Id.36
36
In cases where a court/Board deals with two or more strikes (or a single strike with a claim that more might follow), but does not apply the IWS rule, those tribunals always endorse the rule and then explain that the case at bar does not involve an orchestrated series of continuing work stoppages for a common plan or purpose; i.e., each work stoppage involved a separate response to a distinct employer action or evidenced no strategy of repeated striking. See, e.g., Roseville Dodge v. NLRB, 882 F.2d 1355, 1358-59 (8th Cir. 1989), sub nom City Dodge Center, 289 NLRB 194 (1988) (second work stoppage in four days did not qualify as unprotected IWS because it grew out of the employer’s new “help wanted advertisement [foreshadowing the employees’ replacement] and not because the mechanics had a preconceived plan of action”; “They did not have a preconceived plan to engage in a series of strikes to harass the petitioner”); NLRB v. Jasper Seating Co., 857 F.2d 419, 421 n.3 (7th Cir. 1988) (finding a one-time, one-day work stoppage protected, but noting, “[h]ad Thompson or Goodpasture engaged in partial or repeated intermittent work stoppages or created a safety hazard by their precipitate walkout, which would have removed their protest from the Act’s protection, the Respondent could then have lawfully discharged or disciplined them”); NLRB v. McEver Engineering., Inc., 784 F.2d 634, 642 n.5 (5th Cir. 1986) (“Such a single concerted walkout is presumptively protected, absent evidence that the work stoppage is part of a plan or pattern of intermittent action inconsistent with a genuine withholding of services or strike.”); NLRB v. Robertson Industries, 560 F.2d 396, 397-99 (9th Cir. 1976), sub nom, Robertson Industries, 216 NLRB 361, 362 (1975) (two, one-day work stoppages in three months did not arise from “a repeated pattern of half-strikes,” but, instead, arose from separate distinct complaints); CL Frank, 358 NLRB No. 111, slip op. at *7-8 (2012) (a single work stoppage where “neither Local 2 nor the room cleaners have threatened further work stoppages of this nature” did not constitute a “stoppage [that] is part of a plan or pattern of intermittent action which is inconsistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer”); WestPac Elec., 321 NLRB 1322, 1360 (1996) (three strikes in one week did not constitute unprotected IWS because “I can find no substantial support in the record for the notion that these 61 8999820
Here, the ALJ did not acknowledge or apply or even mention the core rationale for the IWS rule (employees don’t get to repeatedly dictate the work schedule) as established unequivocally, decade after decade, by the United States Supreme Court, the federal courts of appeal, and the Board. Not one word. 2.
The ALJ Reshaped Two Generic IWS Descriptors To Create Artificial IWS Factors That Are Inconsistent With Controlling Law.
To get to his ultimate finding, the ALJ not only ignored and did not apply the Supreme Court’s rationale for the IWS rule, he also used two generic phrases describing the IWS tactic as vessels into which he poured three new artificial and untenable IWS elements-of-proof (brief, temporally-grouped, CBA-only). The ALJ’s newly-minted analytical framework runs counter to – and cannot coexist with – controlling Supreme Court and Board law. a.
The ALJ Created A Flawed Analytical Framework.
The ALJ started from an inaccurate analytical predicate. Instead of correctly noting the concrete, easy-to-understand, and practical rule that “the Board holds that intermittent work stoppages are not protected by the Act because the Act does not give employees the right to strikes were conducted in furtherance of a single, underlying plan or scheme by the Unions or the strikers . . . . I judge that each strike was ‘unique to its facts and circumstances,’ i.e., that each strike had its distinct origins and motivating antecedent features”); United States Service Industries., 315 NLRB 285, 285, 289-90 (1994) (two strikes in two months by non-union employees, assisted by union, were not “part of a planned strategy intended to harass the company,” where first strike on May 30 was conducted to generically protest “their working conditions” while second strike vote and strike on July 26 came after employer gave non-striking employees a bonus and employer made unlawful threats to prior strikers); Polytech, Inc., 195 NLRB 695, 696 (1992) (one-time refusal to work overtime protected absent evidence “that the stoppage is part of a plan or pattern of intermittent action which is inconsistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer”); Farley Candy Co., 300 NLRB 849, 849 (1990) (two strikes in two days did not constitute “a plan to strike, return to work, and strike again” where second strike was “a [direct, spontaneous] reaction to the Respondent’s decision the previous day [after the first strike] to address the packaging department employees’ demands after refusing [spokespersons’] earlier, similar request on behalf of the pan department employees”); Chelsea Homes, Inc., 298 NLRB 813, 831 (1990) (“[T]wo work stoppages, even of like nature, are insufficient to constitute evidence of a pattern of recurring, and therefore unprotected, stoppages.”). (Emphasis added.) 62 8999820
repeatedly dictate their work schedule for the same reason,” the ALJ chose instead to use a generic IWS descriptor – with no self-defining meaning – to create a malleable, multi-factor framework that redefines the IWS rule contrary to Board and Court law, including the very case from which he drew the generic phrase. Citing Pacific Telephone, he said, “the Board has held that intermittent work stoppages are not protected by the Act because they seek to create a ‘condition that would be neither strike nor work.’” [ALJ Dec. 50:20-22 (emphasis added).] Not exactly. Rather, the Board said, “At the outset we must disagree with the Trial Examiner’s conclusion that the CWA’s strike actions constituted protected concerted activities within the meaning of the Act. There is no doubt that the intention of that Union was to bring about a condition that would be neither strike nor work. . . .
However lawful might have been the
economic objective which CWA sought to achieve by its hit-and-run technique, . . . the inherent character of the method used sets this strike apart from the concept of protected union activity envisaged by the Act.” 107 NLRB at 1550 (citing Briggs-Stratton). The Board then defined the “inherent character” of IWS that places it outside the Act’s affirmative protection: “Because they joined in the unprotected strike of the traffic employees with knowledge of its planned intermittent and hit-and-run aspects, the tollmen also removed themselves from the protection of the Act.” Id. at 1550 (emphasis added). So it is the “intermittent, hit-and-run aspects” of IWS (i.e., employees repeatedly coming and going from work at their – or the union’s – whim for the same reason) that makes IWS unprotected, not some vague “neither strike nor work” descriptor. Indeed, the Board made clear in Pacific Telephone, and all the subsequent cases discussed above, that the phrase “neither strike nor work” means intermittent work stoppages by which employees – and unions – seek to “arrogat[e] [to themselves] the right to determine their schedules and hours of work.” The ALJ was not free to redefine “neither strike nor work” in a way that ignores
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the unprotected “inherent character” of the IWS tactic. Accordingly, when he defined “neither strike nor work” as “brief/temporally grouped/CBA-only” (discussed below) and not “employees cannot repeatedly usurp the work schedule,” he erred. Similarly, the ALJ selected a second generic IWS descriptor to anchor his analysis. But, again, he chose an anchor with no chain to the foundations of the IWS rule. He cited Polytech, Inc., 195 NLRB 695, 696 (1972), a one-time-strike case, for the proposition that unprotected work stoppages result from “a plan or pattern of intermittent action which is inconsistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer.” [ALJ Dec. 50:23-27.] The ALJ then redefined “inconsistent with genuine strike or performance” to mean “brief/temporally-grouped/CBA-only.” But in doing so, he overlooked the plain meaning of the term “inconsistent with genuine strike or performance” as set forth in Polytech itself – indeed, in the very language he quotes. As stated in Polytech, the vice of the IWS tactic is that employees using the tactic “refus[e], nonetheless, to perform all of the work they were hired to do” and fail to perform “the work normally expected of them by the employer.” Id. So the term “inconsistent with genuine strike or performance” does not provide a malleable vessel into which the ALJ can pour any meaning. It means something very specific. It means that employees who try to dictate when they will come and go from work in pursuit of an unchanging objective act inconsistently with a genuine strike or genuine job performance. The repeated, unequivocal, and consistent holding of the cases cited above establish that rule of law – established in the first instance by the United States Supreme Court – beyond any question. b.
“Neither Fish Nor Fowl” Does Not Mean “Brief/Temporally Grouped/CBA-Only.”
As discussed above, the ALJ inaccurately found that the Act does not protect intermittent work stoppages “because” (1) they are “neither strike nor work”; and/or (2) are “inconsistent 64 8999820
with a genuine strike or genuine performance by employees of the work normally expected of them by the employer.” But that is like saying that IWS is “neither fish nor fowl”; those phrases don’t define – on their face – what IWS is. But the cases using those phrases do define what conduct the IWS rule addresses, i.e., repeated usurpation of the work schedule for the same reason. However, the ALJ ignored that concrete, easy-to-understand, and practical meaning. Instead, he gave those phrases his own meaning, saying, “The following factors are relevant to that inquiry”; i.e., of whether IWS is “neither strike nor work” and “inconsistent with a genuine strike.” [ALJ Dec. 50:27-28.] According to the ALJ, the IWS rule turns on five factors, two of which are grounded in Board and Court law, and three that are not. As to the properly-grounded factors, the ALJ accurately noted that the IWS rule applies when: (1) “the employees engaged in a pattern of recurring work stoppages, and/or demonstrated intent to engage in future recurring work stoppages”; and (2) “the work stoppages [did not] ar[i]se in response to separate and distinct concerns that employees had about the terms and conditions of their employment.” [ALJ Dec. 51:1-7, 51:26-52:3.] The numerous, unequivocal, and consistent cases detailed above establish those two factors as the fundamental criteria for establishing the IWS rule. And the ALJ found those factors present here. [ALJ Dec. 54:46-55:7 (pattern of recurring strikes “that they intend to continue”), 55:29-36, 56:15-17 (common plan or purpose).] The UFCW stipulated to those facts. [Id.] That should end the inquiry. But the ALJ did not stop there. He added three additional elements-of-proof to the IWS rule. He did so by merely pointing to the factual context of a few IWS cases and concluded that the factual context of those cases created the elements-of-proof for the IWS defense. But that is like saying that a tort negligence award that arose in the context of a green car hitting a red car at the intersection of Main and Central establishes a rule of law that tort damages can only be
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awarded if a green car hits a red car at that same intersection.
Such a rule ignores the
fundamental rationale of tort law, which is to remedy the effects of negligent conduct regardless of the factual context. Yet, that is exactly what the ALJ did here. Notably, his three “factual context = rule of law” conclusions not only find no logical or policy basis in Board or Court law, they would directly conflict with the fundamental rationale of the Supreme Court’s IWS rules as they would give employees and unions carte blanche to repeatedly usurp the work schedules of employers across America “anytime [they] saw fit.” (1)
The IWS Rule Is Not – And Cannot Logically Be – Limited To Work Stoppages Of Only One Or Two Days. (a)
The ALJ missed the IWS-rationale forest for the factual-context trees.
The ALJ said that the IWS rule requires that “the work stoppages were short in duration (i.e., the work stoppages last for portions of days, or one or two days), such that employees minimized the risks associated with being out on strike for longer periods of time.” [ALJ Dec. 51:9-15 (citing Care Center (aka Swope Ridge) and Honolulu Rapid Transit).] But no Board or court case says that, and no Board or court case limits the IWS rule to work stoppages of only one or two days. To the contrary, the Fourth Circuit applied the rationale of the IWS rule in Home Beneficial to a situation where insurance agents planned to refuse to report to work five out of seven days. In Pennsylvania American Water Co., 362 NLRB No. 18 (2015), and Pacific Telephone, the Board applied the IWS rule to situations where employees repeatedly abandoned work whenever a picket line went up, regardless of duration. But more to the point, the Supreme Court’s rejection of the idea that employees can repeatedly abandon work “anytime [they] see fit” applies equally to any pre-determined, set-length work stoppage where the employees – or the union that directs them – unilaterally decide when they will come and go from work on a repeated basis for the same reason. Said another way, employees – or unions – “arrogat[e] [to 66 8999820
themselves] the right to determine their schedules and hours of work” just as much when they decide they will repeatedly abandon work for a pre-determined four or six or nine shifts as they do when they abandon their work for two shifts.
There is no principled or even logical
difference between “two or less” and “more than two” when applying the Supreme Court’s rationale for the IWS rule. But the ALJ avoided all that by ignoring the Court’s “usurping the work schedule” rationale. Instead, he predicated his conclusion that the IWS rule applies only to work stoppages of one or two days because such “brief” work stoppages reduce lost wages and risk of replacement. [ALJ Dec. 51:9-15, 51 n.61, 55:13-17, 56:19.] But that contextual fact only explains why employees and unions like to schedule short-duration IWS. It does not provide a principled, understandable, practical basis for why the United States Supreme Court holds that the Act does not protect nor prohibit the tactic. It certainly does not explain why the Act would not protect a two-shift work stoppage campaign, but would protect a five- or nine-shift campaign. But, again, the ALJ did not attempt to grapple with those nettlesome questions. He simply ignored them in favor of an almost perfectly circular line of reasoning. As noted above, he first said that IWS is only unprotected if it creates a condition that is “neither strike nor work.” Then he said that “neither strike nor work” is defined (in part) by the brief duration of work stoppages (pointing to two IWS cases involving one- or two-day IWS). He then said that “brief” work stoppages reduce wage loss and risk of replacement. Which brought him 360°, full-circle, as he concluded that reduced-risk work stoppages “come closer to creating a condition that is neither strike nor work.” [Id.] Voila. Consistent with that circle of thought, the ALJ summarily excluded from the IWS rule, “employees who go on strike for longer periods of time [because they] take on more of the risks
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associated with being on strike.” [Id.] But the amount of risk or lack of risk to the intermittent striker resulting from pre-determined, set-length work stoppages cannot serve as the practical, legal, or national policy basis for extending or withdrawing the protections of the Act. That is simply a by-product of the length of the pre-determined work stoppages selected by the employees – or the union directing them – and completely within their control. The employees’ risk tolerance is an analytical anchor made of balsa wood. The national labor policy of America cannot protect repeated abandonment of work for four shifts, but not two shifts because the striker loses an extra $120 dollars or because the employer might hypothetically start thinking about a replacement option. What principled reason can serve to protect a same-purpose, repeat striker who strikes for 5 shifts, but not protect a same-purpose, repeat striker who strikes for 2 shifts? The ALJ says the difference is that the two-shift striker foregoes less pay and reduces her/his risk of replacement. But why does that matter? Why would the national labor policy of America – on such a fundamental issue – turn on whether an employee can tolerate a little less in pay this week and accept a little more risk of replacement? The ALJ gives no reason. Nor does the ALJ cite a single case that so holds. The only cases he cites for his one-totwo-days = unprotected/more-than-two-days = protected conclusion are Care Center and Honolulu Transit. [ALJ Dec. 51:9-15.] Both cases involved one- or two-day IWS strikes, but neither held that that the IWS rule applied only to one- or two-day strikes. And neither one – nor any other IWS case, ever – relies or focuses on or separately analyzes the “one or two day” duration of the IWS strikes as the underlying rationale for applying or not applying the IWS rule. Quite to the contrary, both cases hold in unequivocal terms that the IWS rule applies to intermittent work stoppages for a common plan or purpose because the IWS tactic impermissibly seeks to “arrogat[e] [to themselves] the right to determine their schedules and hours of work.” It
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is the “plan to strike, return to work, and strike again” that is the touchstone for the IWS rule, not some artificial inquiry into whether a striker is willing to risk wage loss and replacement for two shifts or less, but not more than two shifts. The ALJ gives absolutely no legal, practical, or policy reason for that distinction. None exists. (b)
The ALJ ignored his own findings that the UFCW designed its IWS campaign to eliminate risk.
The ALJ’s suggestion that the 2013 Shareholder Week work stoppage participants somehow fall outside the IWS rule because they took on greater wage-loss/replacement risk ignores his own findings of fact. As found by the ALJ, and described in detail above, the UFCW created an intricate, interwoven IWS plan that eliminated any realistic risk of replacement and minimized wage loss for the 2013 Shareholder Week work stoppage participants. First, the UFCW orchestrated the first two waves of IWS (in 2012) for pre-defined one-or two-shift walk outs. So that is what Walmart expected for the next wave at Shareholder Week 2013. And, indeed, the UFCW carefully crafted their IWS walk-out letters to say only that the IWS strikers were striking “Today,” giving Walmart the intended understanding that the work stoppage participants would return to their next-scheduled shifts. Consequently, Walmart was not in a position to even think “replacement” during the week of the participants’ absences because it expected them to return to work each day. Second, the UFCW meticulously built a generic, undefined, impossible-to-disprove “ULP-strike” wall around their IWS campaign for the express purpose of protecting the work stoppage participants from any permanent job replacement. And the UFCW aggressively threatened Walmart with ULP litigation in every walk-out and walk-back letter should Walmart fail to reinstate an IWS participant whenever the participant saw fit to return to work.
Third, the UFCW carefully included the magic
“unconditional” offer to return to work language in every walk-back letter after every wave of 69 8999820
work stoppages, which imposed on Walmart a legal obligation to return the work stoppage participants to their jobs even if those jobs had been filled during the work stoppage under applicable “ULP striker” authority (discussed further below). Fourth, the UFCW provided the Shareholder Week work stoppage participants with wage-replacement payments. Thus, if the risk of replacement or amount of wage loss could somehow control the national labor policy of America, there was no realistic risk of any replacement here and little wage loss, as evidenced by the ALJ’s findings. The IWS rule applies. (2)
The IWS Rule Is Not – And Cannot Logically Be – Limited To “Temporally Grouped” Work Stoppages.
The ALJ said that the IWS rule requires that “the work stoppages occurred over a short period of time (i.e., multiple work stoppages that occurred in the span of a few weeks).” [ALJ Dec. 51:16-24 (citing Care Center (aka Swope Ridge), New Fairview Hall, and Blades), 51 n.62, 55:19-27, 56:19-22.] But, again, no Board or court case says that, and no Board or court case limits the IWS rule to work stoppages that occur during a “short period of time” or “a few weeks,” whatever those terms might mean in the real world. To the contrary, many IWS cases don’t even specify the temporal relationship or duration of the IWS events at issue (BriggsStratton, Insurance Agents, Liberty Mutual, Excavation Constr., Dallas Glass). Some cases involve IWS events spanning two weeks (Care Center, Embossing Printers). Some involve IWS events spanning many months (Briggs-Stratton, National Steel). In National Steel, more than five weeks separated most of the IWS events (March 17, April 29, May 17, June 23). Not one Court, Board, or other ALJ analyzing the IWS issue attempts to draw an arbitrary line on the time between work stoppages to define whether the IWS defense applies. Notably, the ALJ here made no attempt to explain for those working in the real world of business, employment, and labor relations when the Act would “kick in” temporally to make 70 8999820
some repeated, same-purpose, usurp-the-work-schedule stoppages protected and others unprotected. But, in fairness, how could he? Where would one draw the line? Based on what? Particularly given that – as the ALJ found and Board law establishes – the IWS rule does not require a showing of disruption. There is simply no principled legal distinction that makes some same-purpose IWS protected while denying protection to other same-purpose IWS based on frequency. The ALJ did not attempt to wrestle with that head-scratching conundrum. He just noted that the work stoppages in several IWS cases were temporally grouped, decided that temporal grouping must be part of the IWS rule of law, and found that the repeated, samepurpose striking here did not qualify because it did not meet his temporally-grouped requirement. The ALJ might just as well have said that the IWS rule does not apply here because a green car did not hit a red car at Main and Central. The ALJ, again, attempted to justify the imposition of a “temporally grouped” IWS requirement by virtue of circular reasoning that proved itself by proving itself. As with the “brief” requirement, the ALJ started by concluding that IWS is only unprotected if it creates a condition that is “neither strike nor work.” Then, after overlooking the meaning of that phrase given by the Board, he decided that “neither strike nor work” is defined (in part) by temporal grouping of work stoppages “over a short period of time.” And he justified that connection by explaining – closing the circle – that “it is the grouping of work stoppages (along with their recurring nature) that makes them intermittent, and thus closer to the line of creating a condition that is neither strike nor work.” [ALJ Dec. 51 n.62; see also 56:19-21 (“. . . nor was it scheduled close in time with a group of other strikes, such that the strikes could be viewed as intermittent”) (emphasis added).] That turn around the analytical circle finds no support in Board law, and the ALJ cites none. Moreover, The ALJ never explains why temporally-grouped work stoppages
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“make them intermittent.” The Merriam-Webster Dictionary defines “intermittent” as “starting, stopping, and starting again; not constant or steady; coming and going at intervals; not continuous; occasional (as in intermittent trips abroad).” Nothing in that definition – or any other to Walmart’s knowledge – defines intermittent as having anything to with temporal grouping. The ALJ simply misdefined or misconstrued the term “intermittent.” The Act does not protect some repeated, same-purpose work stoppages that dictate the work schedule, but not others based on some undefined temporal grouping. (3)
The IWS Rule Is Not – And Cannot Logically Be – Limited To The Collective Bargaining Context.
The ALJ said that the IWS rule requires that “the work stoppages arose from a union strategy to exert additional economic pressure on the employer during collective-bargaining negotiations.” [ALJ Dec. 52:5-8 (citing Care Center (aka Swope Ridge) and Honolulu Rapid Transit), 53:18-54:37 (citing USSI, Westpac, Care Center, National Steel, Honolulu Rapid Transit, Pacific Telephone), 55:38-56:12, 56:21-27.] But that is just not correct. Many Board and court cases hold that the IWS rule applies to a strategy of repeated, same-purpose striking in a non-CBA, non-unionized context.
See discussion above re Excavation-Constr., Liberty
Mutual, Home Beneficial Life, Blades, Wirebound, and Dallas Glass.
In fact, Blades,
Wirebound, and Dallas Glass illustrate the scenario, found here, where non-union-represented employees engage in IWS at the behest of an interested union. Given the numerous IWS cases holding to the contrary, Walmart can offer no analysis of why the ALJ concluded that the IWS rule applies only in the CBA-negotiation context. As with the ALJ’s “brief” and “temporally-grouped” requirements, he appears to have simply observed that some IWS cases involve CBA negotiations and decided that contextual fact somehow becomes a rule of law, untethered to any anchoring rationale. Why would the Act protect 72 8999820
repeated, same-purpose work stoppages that dictate the work schedule outside the collective bargaining context, but not protect an identical strike strategy in the CBA context? Again, that is a head-scratcher the ALJ does not attempt to address. c.
The ALJ’s “Brief” And “Temporally Grouped” IWS Requirements Also Contradict Established Law.
The Board and courts routinely extend the Act’s protections to brief one- or two-shift strikes, absent some evidence of a strategy or plan to engage in repeated striking for the same purpose, even though those strikers expose themselves to very little wage loss and little or no risk of replacement. See CL Frank (one, one-shift work stoppage protected); Polytech Inc. (one-time refusal to work overtime protected); WestPac Elec. (three, one-shift strikes in one week protected); United States Service Industries. (two, one-shift strikes in two months protected); Farley Candy Co. (two partial-shift strikes in two days protected); Chelsea Homes (two, partialshift work stoppages in seven days protected); Crenlo, 215 NLRB 872, 878-79 (1974) (two, partial-shift work stoppages in two days protected); Robertson (two, one-day work stoppages in three months protected); Roseville Dodge (two, one-shift work stoppages in four days protected); Jasper Seating Co. (one, one-day work stoppage protected) (cases cited above). The converse is also true. No citation is need for the fact that the Act protects strikes that last for years even though the strikers expose themselves to enormous wage loss and a near-certainty of replacement. Thus, the ALJ’s linkage between the duration of the strike and the risk to the striker cannot serve as a principled basis for extending or withholding the Act’s protections. Likewise, the Board and courts often hold that the Act protects temporally-grouped, repeat strikers if they strike for distinct reasons or evidence no intent to engage in repeated strikes. Id. Accordingly, temporal grouping “in a (undefined) short period of time” cannot serve as a principled basis to characterize work stoppages as “intermittent” and, therefore, unprotected as 73 8999820
“neither strike nor work.” There is only one rationale that consistently explains when the Act protects or does not protect repeated striking: Does the striking evidence a strategy of repeatedly usurping the work schedule for the same reason? If Yes, unprotected. If no, protected. Clear. Understandable. Practical to apply. Consistent with all relevant Board and court authority. And also the rule of law that applies here. d.
Employers Need Predictable Work Schedules.
The ALJ’s mechanical addition and application of “brief,” “temporally grouped,” and “CBA-negotiation” elements-of-proof to the IWS rule would create a hole in America’s work schedules big enough to drive the proverbial “Mack Truck” through. In this case, associates “went on strike” only to stay home and “chill,” take care of personal business, help a family member, go to a lobbying conference, visit a museum, and organize for the union, among many other non-“terms and conditions” activities. One does not need a crystal ball to see the potential for abuse and significant impact on employers’ business operations if employees could simply come and go from their work anytime they saw fit as long as they (or even one employee) pointed to some continuing “concerted” work complaint and abandoned work for at least three shifts at a time no more than once every month or two and never in the context of CBA negotiations. Beach trip anyone? Take the kids to Disneyland? Visit Grandma? But even if every employee in America viewed such a rule with true “protected, concerted, activity” fervor and used the ALJ’s new IWS rule only to truly pursue improved working conditions, the ALJ’s view of the rule would still turn over control of the work schedules of America to employees and unions at their whim. Employers would take a back seat to the business of running their business. Such a result cannot stand in the face of the Supreme Court’s IWS rationale as set forth in Briggs-Stratton, Insurance Agents, and Machinists. It certainly cannot stand in the face of the Board’s own consistent decisions discussed above. 74 8999820
3.
The ALJ Improperly Discounted Additional Evidence Of The Unprotected “Inherent Character” Of The UFCW’s IWS Campaign.
Under Board law, making an unconditional offer to return to work imposes a reinstatement obligation on the employer in exchange for an implied promise to abandon the strike demands and not repeatedly strike again for the same purpose. Dayton Newspapers, Inc. v. NLRB, 402 F.3d 651, 662 (6th Cir. 2005) (employer lawfully locked out employees because of the potential for continuing “quickie” strikes which the union would not disavow, but the lawful lockout became unlawful when the employer refused to reinstate employees after the Union abandoned its pre-strike demands with an “unconditional” offer to return to work); First Nat’l Bank, 171 NLRB 1145, 1151 (1968) (“It is at this point, when the employees want to resume their services, that the employer may legitimately ask them what their intentions for the future are, and to insist that they either remain on strike, or else return to work under the conditions then prevailing, including the schedule of hours which he has set.”); Pecheur Lozenge Co., 98 NLRB 496, 498 (1952), enfd. in relevant part, modified in part, 209 F.2d 393, 405 (2d Cir. 1953) (“It was not incumbent upon the union to go further and to spell out the plain intendment of the word ‘unconditional’ by stating that this meant that the employees were abandoning their prior request for the elimination of overtime.”); Honolulu Rapid Transit Co. Ltd., 110 NLRB 1806, 1829 (1954) (“We do not construe the Union’s [qualified and conditional return to work] letter as necessarily announcing an abandonment of the work stoppages so as to place it upon a par with an unconditional application for reinstatement of strikers.”); Brooks, Inc., 228 NLRB 1365, 1368 (1977) (“[T]he Union’s offer to call off the strike was unconditional and neither the offer itself nor any of the Union’s actions carried any threat of subsequent strike action.”); Indiana Ready Mix Corp., 141 NLRB 651, 652 (1963) (holding that an offer to return to work that reserved the right to strike again in 30 days pending the results of contract negotiations did not constitute an 75 8999820
unconditional offer to return to work); Texas Gas Corp., 136 NLRB 355, 364-65 (1962) (“[T]he striking employees were willing and ready to return to work with a genuine desire to continue their former working relationship with the Respondent and not for the purpose of securing a tactical advantage over the Respondent to enable it to engage in a surprise strike in the future.”); Bus. Services by Manpower, Inc. v. NLRB, 784 F.2d 442, 454 (2d Cir. 1986) (“In any event, an element of the ‘permanent replacement’ doctrine is an unconditional offer to resume employment. Here Cordes and Monroe never offered that if a picket line theretofore unknown to them were to turn up at some other assignment, they would not again walk off the job without giving advance notice.”); Associated Grocers, 1978 WL 14140 *3 (NLRB GC 1978), (concluding that an offer to return to work at the start of the Sunday night shift “since there was no picket line up at that time” did not constitute an unconditional offer; rather, it merely offered “a respite in their striking until the picket line reappeared”) (emphasis added throughout). The ALJ disagreed, citing Robertson and Texas Gas. [ALJ Dec. 52 n.63.] Neither of those cases support the ALJ’s disagreement. In Texas Gas, 136 NLRB at 364-65, the ALJ specifically found – affirmed by the Board – that there was no strategy of repeated striking. The union representative’s statement regarding potential future strikes (depending on bargaining results) was highly ambiguous, noting, “whether or not the employees would actually authorize or support another strike, and if one were called, who would support it, is highly speculative, particularly in view of their prior unsuccessful strike venture.” Id. Likewise, the Board in Robertson Industries, 216 NLRB 361, 362 (1975), specifically found that the two work stoppages at issue, where “the employees . . . were merely continuing their earlier efforts to have their work-related problems resolved,” did not involve a strategy of striking because they
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“involved different situations and different people. While the November incident was a protest concerning overtime, the February incident involved other issues.” Thus, the UFCW’s strategy here of making unconditional offers to return to work, all the while knowing it would continue targeting the same work force and continue usurping control over the work schedule for the same, continuing purpose, reinforces the UFCW’s complete disregard for Walmart’s need for reliable and predictable employees and work schedules and underscores the unprotected “inherent character” of the UFCW’s IWS campaign strategy. B.
Walmart Lawfully Applied Its Attendance Policy To The UFCW/OWM’s Shareholder Week IWS Absences.
For all the foregoing reasons, the Act does not protect intermittent work stoppages for a common plan or purpose. The Act does not give employees the right to repeatedly dictate their own work schedules for the same reason over and over and over again, regardless of whether they repeatedly usurp the work schedule for a pre-determined one shift or ten and regardless of whether they repeatedly usurp the work schedule every week or only on key, brand-vulnerability dates when the strikers can create a “crisis compression moment” to pressure the employer. The Act certainly does not give employees the right to repeatedly dictate their own work schedules for the same reason as long as they do so outside the collective bargaining context. The ALJ found, and the UFCW stipulated, that UFCW/OWM orchestrated two waves of intermittent work stoppages for common plan or purpose in late-2012, immediately threatened more, then delivered on that promise with continuing work stoppages for the same reason at key, “crisis compression moments” in June and November 2013. The ALJ found, and the record establishes, that each one of the alleged discriminatees knowingly participated in – and made common cause with – the UFCW/OWM strategy of repeated, same-purpose striking.
The
UFCW set out to “redefine the strike” with its “crisis compression moment” strike strategy. That 77 8999820
strategy derives directly from the “better than a strike,” “work without a contract,” “walk out for a day,” “hit and run,” and “entirely new gimmick” IWS campaigns of the past. And just like all those IWS campaigns, the Act does not protect this “redefine the strike” campaign under the controlling and on-point Supreme Court and Board law discussed above.
Consequently,
Walmart lawfully applied its attendance policy to the third-wave of the UFCW/OWM’s proven – and admitted – strategy of repeated striking for the same “raise the bar” reason.37 II.
WALMART LAWFULLY NOTIFIED CERTAIN ASSOCIATES THAT THE ACT DOES NOT PROTECT IWS. (EXCEPTIONS 28-34.) A.
An Employer Does Not Violate The Act By Telling Employees That It Will Apply Its Work Rules To Unprotected Activity.
Telling an associate that the Act does not protect unprotected activity cannot logically or legally constitute an Act violation. Thus, the Board affirmed the ALJ in National Steel: The judge stated, and we agree, that “hit and run” strikes engaged in as part of a planned strategy intended to “harass the company into a state of confusion” [quoting Pacific Telephone, supra, 107 NLRB at 1548] are not protected activity. [As quoted from the ALJ] For reasons that I trust will be largely obvious in the light of details yet to be recorded, I have found in summary that the March 17 and March 19 work stoppages were, indeed, union-orchestrated 37
Although not directly raised by the ALJ’s decision, a number of relevant IWS principles emerge from the cases discussed above: (1) two, same-purpose work stoppages plus a threat (or no disavowal of an evident intent) to continue constitutes IWS; (2) the IWS rule applies to employees who participate only once in an orchestrated strategy of repeated, same-purpose striking, regardless of any individual motive or lack of knowledge about the orchestrated strategy; (3) the IWS rule applies equally to economic and ULP-related objectives; and (4) the IWS rule applies equally to pre-conceived and evolving repeated, same-purpose striking. The ALJ correctly found that the IWS rule does not require proof of actual disruption (although the UFCW/OWM intended and did cause significant disruption here). [ALJ Dec. 53:1-16, n.64.] Although the ALJ did find that the UFCW/OWM IWS campaign disrupted operations and customer service, Walmart excepts to the ALJ’s limited description of the significant, unprecedented, and wide-spread disruption caused by the strikes and strike-related demonstrations. (Exception 19.) The ALJ also found that Aaron Lawson, Trina Vetato, Harris, Bowers, Creach-Slate received a next-level coaching (unrelated to the SWWS absences) because they previously received a SWWS-absence coaching. [ALJ Dec. 35 nn.42-44, 36 nn.4647.] Those findings are error because Walmart lawfully applied its attendance policy to the SWWS IWS absences as discussed above. (Exceptions 16-27.) 78 8999820
tactics in a contract-bargaining game plan contemplating other unprotected intermittent or partial strike activity, or threats thereof, calculated not only to “confuse” NASSCO, but to damage it economically and thereby to achieve the “benefits” of strike action without assuming the vulnerabilities of a forthright and continuous strike. This is another way of saying that the two March stoppages were integral elements of a union “plan” or “strategy” involving precisely the kinds of hit-and-run strike tactics denounced by the Board in U.S. Service Industries, supra. And because I have found that the two March stoppages were elements of this unprotected pattern of action, I conclude that the March stoppages were themselves unprotected, no matter that either might have been protected as a bona fide “protest” if either had occurred in isolation, or in the absence of such a strategy. I judge, therefore, that when NASSCO, consistent with its established programs, assessed attendance points against or otherwise disciplined participants in those March stoppages, and when it admittedly threatened to discipline others who engaged in similarly unprotected activities, its actions did not implicate Section 7 rights and thus did not violate Section 8(a)(1) or (3). 324 NLRB at 499 n.13, 509-510 (1997). Similarly, in Embossing Printers, Inc., 268 NLRB 710, 722-23 (1984), after employees engaged in unprotected IWS on three separate occasions, the employer lawfully conditioned the strikers’ return to work on their agreement not to engage in further unprotected intermittent strike activity.
And in Pennsylvania Am. Water Co., the
employer lawfully warned employees that “such refusal [to cross a stranger picket line] may constitute an intermittent work stoppage, [and, the employer] reserves the right to take appropriate action, including but not limited to discipline and available legal remedies, against individual employees as well as against Local 537.” 362 NLRB No. 18 (2015), adopting 359 NLRB No. 142, slip op. at *21 (2013). Finally, in New Fairview Hall Convalescent Home, the ALJ said (affirmed by the Board), “I do not find and conclude that management’s warnings and notices to employees summarized above [to refrain from unprotected IWS] tended to interfere with the exercise of employee protected activities.” 206 NLRB 688, 747 (1973).
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B.
The ALJ Erred By Failing To Apply Controlling Board Law And Misquoting The Record.
Here, after the first two waves of work stoppages in the series (Wall Street Week and Black Friday 2012), the ALJ found that UFCW/OWM immediately threatened more work stoppages for the same reason and never disavowed an intent to continue. [ALJ Dec. 38:39-46.] Accordingly, under the dispositive authority discussed above, Walmart lawfully notified the prior IWS participants in February 2013 that “the Company does not believe that the Act protects the UFCW’s hit-and-run work stoppages, and if you engage in union-orchestrated intermittent work stoppages that are part of a common plan or design to disrupt and confuse the Company’s business operations, the Company will apply its attendance policy to such absences.” [ALJ Dec. 46:25-44 (emphasis added).]
That language tracks almost verbatim the description of
unprotected IWS approved by the Board in National Steel (quoted above). Yet, the ALJ found that Walmart’s language violated the Act. He did so by completely ignoring (or overlooking) the Board’s controlling decisions in National Steel, Embossing Printers, and New Fairview Hall Convalescent Home.
Instead, he compared this case to
Pennsylvania American Water. He determined that the IWS warning in that case (quoted above) was OK because of “the equivocal language that the employer used about intermittent work stoppages.”
[ALD Dec. 48:43-44 (“the employer . . . merely stated that employees who
repeatedly refused to cross picket lines and report for work ran a risk that those activities might be deemed unprotected, intermittent work stoppages”).] Neither the Board nor the ALJ in Pennsylvania American suggested that the status of the employer’s notice turned on its “you run a risk” language. Nevertheless, the ALJ here used the word “risk” as a foundational launching point for his finding that Walmart’s language was not OK because it was “unequivocal.” [Id. 49:4-14.] From that launch point, the ALJ then took a giant – and untethered – analytical leap, 80 8999820
equating Walmart’s unequivocal language to a blanket “prohibiti[on] [on] future strikes associated with the Making Change at Walmart campaign, irrespective of whether those strikes could accurately be characterized as unprotected intermittent work stoppage or (alternatively) protected strikes or work stoppages.” [Id.] There are at least two fundamental problems with that finding. First, Walmart said nothing about prohibiting “future strikes associated with the Making Change at Walmart campaign.”
The ALJ misstates his own factual findings.
To the contrary, Walmart very
carefully drafted its statement using the Board’s own language directly from National Steel describing unequivocally unprotected IWS: “if you engage in union-orchestrated intermittent work stoppages that are part of a common plan or design to disrupt and confuse the Company’s business operations, the Company will apply its attendance policy to such absences.” [ALJ Dec. 46:40-44.] That actual statement (of existing Board IWS law) bears no resemblance to the ALJ’s version of what Walmart associates would purportedly understand. Second, the ALJ’s equivocal/unequivocal distinction cannot stand in the face of the Board’s controlling holding in National Steel, a case cited to the ALJ, but which the ALJ ignored. In National Steel, the Board expressly agreed with the ALJ’s finding that, “when [the employer], consistent with its established programs, assessed attendance points against or otherwise disciplined participants in those March stoppages, and when it admittedly threatened to discipline others who engaged in similarly unprotected activities, its actions did not implicate Section 7 rights and thus did not violate Section 8(a)(1) or (3).” (Emphasis added.) There was
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nothing equivocal in those “threat[s] to discipline others who engaged in similarly unprotected activities.” Just like here. The ALJ’s contrary finding was error.38 III.
WALMART ACTED LAWFULLY WITH RESPECT TO THE INDIVIDUAL ISSUES RAISED IN THE CASE. A.
Management Lawfully Applied The Attendance Policy To The May 6 IWS. (Exception 35.)
The ALJ found that Colby Harris and Marc Bowers engaged in protected concerted activity by striking on May 6-9, 2013, in response to some unidentified manager comment about OWM. [ALJ Dec. 85:13-21, 102:2-4.] The ALJ erred because Harris and Bowers testified as described above that they engaged in the work stoppage in support of the same purpose as the ongoing IWS campaign. B.
Walmart Dealt Lawfully With Certain Other Unique AD Situations. 1.
Walmart’s Personal Discussion Does Not Constitute Discipline. (Exception 36-40.)
The ALJ found that Walmart’s Personal Discussion constitutes discipline because it “lays the foundation for future discipline” and “the employer may consider it at a later date when the employer is deciding whether to impose discipline.” [ALJ Dec. 64-65.] However, as a matter of law, the Personal Discussion does not constitute discipline because it does not affect any term or condition of employment and management does not predicate discipline on Personal Discussions. See, e.g., Lancaster Fairfield Comm. Hosp., 311 NLRB 401, 403 (1993) (holding that conference report regarding employee’s disruptive behavior “constituted nothing more than
38
The ALJ may have side-stepped National Steel and created his own start-from-scratch equivocal/unequivocal distinction because Walmart’s statement did not incorporate his newlyminted “brief/temporally-group/CBA-only” IWS factors. But Walmart cannot be found to have violated the Act under a standard the Board has never considered or announced. See Fred Jones Mfg. Co., 239 NLRB 54, 54 (1978) (finding that the ALJ committed error by “substituting his own view of what the law should be for applicable board precedent” and therefore failing to “follow and apply established board precedent, regardless of his personal views”). 82 8999820
counseling” and “did not affect any term or condition of employment” because it “merely warned an employee of potential performance or behavior problems” and “no discipline was being imposed”). The Personal Discussion serves two limited purposes: (1) to remind associates of the Attendance/Punctuality Policy; and (2) to help associates avoid attendance-related discipline. It defies logic to hold that Walmart somehow disciplined its associates by giving them an opportunity to avoid discipline.39 In finding that the Personal Discussion constitutes discipline, the ALJ cited several Board cases. [ALJ Dec. 64-65 (citing Altercare of Wadsworth Ctr. for Rehab., 355 NLRB 565 (2010); Oak Park Nursing Care Ctr., 351 NLRB 27 (2007); Promedica Health Sys., 343 NLRB 1351 (2004); Good Hope Refineries, 245 NLRB 380 (1979)).] However, the facts and reasoning in those cases do not support the ALJ’s finding. In Altercare, the Board found that verbal warnings constituted discipline for two key reasons: (1) Respondent’s handbook included verbal warnings “as part of the progressive discipline system,” and (2) the parties’ collective-bargaining agreement “clearly indicate[d]” that verbal warnings counted as discipline. 355 NLRB at 565. In contrast, Walmart’s “progressive 39
Indeed, courts uniformly recognize, in a wide variety of contexts, that personal discussions, counselings, and warnings do not constitute discipline unless they affect an adverse consequence. See, e.g., Tepperwien v. Entergy Nuclear Ops., Inc., 663 F.3d 556, 570 (2d Cir. 2011) (counseling letter that did not place plaintiff in an active disciplinary process “was not a material adverse employment action”); Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1224 (10th Cir. 2006) (“A written warning may be an adverse employment action only if it effects a significant change in the plaintiff’s employment status.”); Weeks v. N.Y. State, 273 F.3d 76, 86 (2d Cir. 2001) (holding, in the context of a “counseling memo,” that “criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action” (parenthetical in original)); Kersting v. WalMart Stores, Inc., 250 F.3d 1109, 1118-19 (7th Cir. 2001) (verbal warnings that “did not result in, and were not accompanied by, any tangible job consequence” did not constitute materially adverse employment action); Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997) (final warning did not constitute adverse employment action because of its “lack of consequence”). The foregoing represents a small fraction of the many cases that recognize this settled rule of law. 83 8999820
discipline system” does not include the Personal Discussion; rather, under Walmart’s Attendance Policy, the Personal Discussion gives associates an “opportunity” to avoid the progressive discipline system. Moreover, no collective-bargaining agreement exists in this case, let alone one that “clearly indicates” the Personal Discussion constitutes discipline. Similarly, in Oak Park, the Board found that the counselings at issue constituted discipline based on the following mandatory language in the respondent’s handbook: “In each of the above offenses, a written employee counseling form shall be used and signed by 1) the immediate supervisor, 2) a witness, [and] 3) the employee.” 351 NLRB at 27-28 (emphasis added). In contrast, Walmart’s handbook does not use mandatory language with respect to the Personal Discussion, and (as noted above) the ALJ found that the Personal Discussion does not serve as a mandatory prerequisite to attendance-related discipline. [ALJ Dec. 12 n.21.] Likewise, in Promedica – the case on which the ALJ placed the most reliance – the Board held that the coaching component of the respondent’s progressive discipline policy constituted discipline because the “coachings play[ed] a significant role in the Respondent’s progressive disciplinary process.” 343 NLRB at 1351. The Board reasoned that the coachings were “step[s] in the progressive disciplinary system,” and that the respondent “duly considered” the coachings when contemplating future discipline. Id. at 1351-52. By contrast, the Personal Discussion does not constitute a “step” in Walmart’s progressive disciplinary process; rather, it gives associates an opportunity to avoid the steps in that process.
Moreover, given the
undisputedly optional nature of the Personal Discussion, management does not duly consider Personal Discussions when deciding to issue coachings for absences; instead, they duly consider whether the associate accumulated four or more active occurrences in a six-month rolling period, which triggers the first step in the disciplinary process, a First Written Coaching.
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Finally, in Good Hope Refineries, the Board affirmed the ALJ’s findings that: (1) the respondent predicated progressive discipline on its employees’ past counseling sessions as a matter of practice; and (2) the respondent characterized the file in which it stored counseling session records as a “disciplinary file.” 245 NLRB at 383-84. In affirming those findings, the Board noted the “investigatory” nature and “disciplinary overtones” of the counseling at issue. Id. at 380 n.1. In contrast, Walmart does not predicate discipline on Personal Discussions (rather, it predicates discipline on the number of active occurrences and/or prior coachings). Additionally, the words “investigatory” and “disciplinary overtones” do not describe Walmart’s Personal Discussion process. Moreover, the CGC did not introduce evidence that Walmart maintains Personal Discussions in a “disciplinary file” (it does not). Importantly, the ALJ’s “the employer may consider it at a later date” definition of discipline carries far-reaching future ramifications. Under his definition of “discipline,” new employee orientation and mandatory annual trainings on sexual harassment and/or drug and alcohol policies also constitute discipline. Like the Personal Discussion, those trainings serve to remind employees of workplace policies and to help employees avoid discipline under those policies. Further, in deciding whether to issue discipline to an employee under any policy, employers routinely consider whether an employee’s personnel file contains a signed acknowledgement that the employee attended a training or otherwise received a copy of the policy. According to the ALJ, those are the defining characteristics of “discipline.” Clearly, they are not. Here, Personal Discussions and other opportunities to avoid discipline only serve to
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benefit employees, not harm them.
Thus, the Board should find that Walmart’s Personal
Discussion does not constitute discipline.40 2.
Walmart Did Not Take Any Adverse Employment Actions Against Gertz or Slowey. (Exceptions 43-46.)41
The ALJ erred by finding that Walmart “disciplined” Gertz and Slowey by issuing them Personal Discussions. [ALJ Dec. 97:31-34.] The undisputed record evidence cited above shows they were not disciplined. First, Personal Discussions do not constitute discipline, as discussed. And, as noted, both Personal Discussions were withdrawn, and management told Gertz and Slowey they were withdrawn. Under applicable Board law, Walmart therefore did not unlawfully discipline Slowey or Gertz in light of the undisputed record. For example, in Phoenix Processor, 348 NLRB 28, 30 (2006), the Board found no Act violation where “after [supervisor] Rafferty made his ‘you’re fired’ comment, both [managers] Smith and Hermans told the processors they could return to work with no penalty.” Similarly, in Saginaw Control & Engineering, 339 NLRB 541, 541 (2003), the Board found no violation where, although supervisor-May initially told employeeMaziarz “to persuade other employees to vote against the union, . . . May then changed his mind and told him not to say anything.” See also Pink Supply Corp., 249 NLRB 674, 674, n.2 (1980) (no violation when considering “the conversation taken as a whole”). 3.
The ALJ Erred In Holding Walmart Violated The Act By Issuing The December 17 Personal Discussion To Martinez. (Exceptions 47-53.)
The ALJ erred in holding that Walmart violated Section 8(a)(1) when it gave Martinez the December 17 Personal Discussion. [ALJ Dec. 99:38-40, 101:32-34.] The ALJ erroneously found that Pasillas confirmed the Personal Discussion included Martinez’s November 20 40
The ALJ further erred by describing “unexcused absences” as discipline in his Order and Notice postings. [ALJ Dec. 108:9, 19-21, 109:11-13, Appxs. B, C, E, H; Jt. 0(a)-(m), 3(a).] 41 Exceptions 41-42 are found above at footnote 30. 86 8999820
demonstration activities (a non-absence date), and Walmart failed to prove it would have issued the Personal Discussion even absent those activities. [ALJ Dec. 100:6-11.] Specifically, the ALJ found that in response to Martinez’s question about whether she incurred four absences, Pasillas handed her a printout showing she called the IVR system to report a November 20 absence (a day she was not scheduled to work). [ALJ Dec. 69:4-9, 99:43-100:4, 101 n.115.] First, the ALJ ignored the undisputed record evidence that Walmart did not schedule Martinez to work on November 20. It simply does not make sense that Walmart would consider a day she did not miss work in a discussion about work absences. Second, the ALJ ignored evidence that Pasillas issued the Personal Discussion on December 17, the day after Martinez incurred her December 16 tardy.
There is no temporal relationship to her November 20
demonstration activity, on a day she was not scheduled to work. Third, Martinez testified only that Pasillas gave her the truncated IVR Report in the meeting, and not in response to any particular question. Martinez did not testify about what, if anything, Pasillas said in handing her the document. In addition, Martinez did not testify about whether or not Pasillas gave or showed her any other documents, such as her full IVR or Absence Reports. Fourth, an “IVR” report only indicates when an associate calls the “interactive voice recording” system to report an absence. It does not show actual absences. Here, Martinez just called the IVR line in error on November 20, she was not actually absent that day. Accordingly, Walmart could not have given her a Personal Discussion for a day she was not absent. 4.
The ALJ Erred In Holding That Walmart Violated The Act By Issuing A Personal Discussion To Juanitas. (Exceptions 54-59.)
The ALJ erred in holding that Walmart violated Section 8(a)(1) when it issued a Personal Discussion to Juanitas. [ALJ Dec. 93:29-36.] The ALJ found that Walmart issued Juanitas the Personal Discussion on June 9, and rejected Walmart’s argument that it would have issued 87 8999820
Juanitas a Personal Discussion for the non-work stoppage absences that occurred after June 9. [ALJ Dec. 67:26-29, 94 n.108.] But none of the documents cited by the ALJ show that Walmart gave Juanitas the Personal Discussion on June 9.
The Stipulation simply provided that Walmart issued the
Personal Discussion to Juanitas “upon his return to work.” [R. 272 at XVI(E).] Walmart’s Answer denied the allegation that Walmart issued the Personal Discussion on June 9. [GC 1(ff), ¶ 50(B).] Walmart’s Position Statement provided no date for the Personal Discussion. [GC 127(a) at 22.] Finally, the Work Stoppage Accountability sheet, which listed all associate discipline and Personal Discussions related to the work stoppage, stated simply at the top of the document “communication – Monday 6/24/13.” It provided no date for when Walmart gave the Personal Discussion to Juanitas. [Jt. 29.] Importantly, no other AD listed on the Work Stoppage Accountability sheet received a Personal Discussion or discipline earlier than June 21. There is no evidence in the record that Walmart gave Juanitas a Personal Discussion two weeks prior to anyone else. Because Juanitas did not show up for his scheduled shifts on June 21, 22, and 23, Walmart could not have given him a Personal Discussion until June 24. By that time, Juanitas incurred seven absences beyond his work stoppage absences, and Walmart would have given him the Personal Discussion regardless of his SWWS absences. 5.
The ALJ Erred By Holding That Walmart Violated The Act By Discharging Davis. (Exceptions 54-59.)
The ALJ erred in holding that Walmart violated the Act by discharging Davis. [ALJ Dec. 93:29-36.] The ALJ erroneously found that Walmart decided to discharge Davis on June 24, and rejected Walmart’s argument that it would have discharged Davis for her multiple July absences even absent her two June work stoppage absences. [ALJ Dec. 72:12-14, 94 n.109.] The ALJ 88 8999820
cited Joint Exhibit 29 (associate accountability for work stoppages) to support his finding. But the handwriting at the top of the document (“communication – Monday 6/24/13”) did not indicate when Walmart made any of the accountability decisions. Further, the document stated that Walmart originally decided to coach Davis with a “Second Written Coaching.”
The
handwritten “terminated” beside her name in different ink and different handwriting indicated Walmart later changed its mind. Tellingly, the handwritten “job abandonment” note next to Vercher’s name in the same ink and same handwriting indicated that although Walmart originally intended to coach Vercher (like Davis), it discharged her on July 26 after she stopped coming to work (like Davis). [Jt. 91 at 216.]
Thus, the same-ink/same-handwriting
“termination” note on the document next to Davis’ name (like Vercher) was added at the end of July, after Davis had stopped showing up for work for a month, after the SWWS absences. The ALJ ignored that evidence as well as the store manager’s testimony that he would not have discharged Davis but for the fact she stopped coming to work. If Walmart intended to discharge Davis for her two early-June work stoppage absences, it would not have waited almost two months to do so. The ALJ also erroneously found that Walmart tolerated the absences Davis incurred prior to her work stoppage. [ALJ Dec. 94 n.109.] The ALJ ignored evidence that Walmart issued Davis a coaching for absences in September 2012, and failed to acknowledge that Davis was seeking a long medical leave at the time she incurred her early-2013 absences. The ALJ also erred in holding that Walmart demonstrated animus in the Richmond and Placerville stores based on violations the ALJ found in a different case, in a different year, involving different people. [ALJ Dec. 93 n.107.] The CGC offered no evidence of animus by her store manager towards Davis or her participation in OWM. Further, Walmart excepted to most of the issues listed by the ALJ and those exceptions remaining pending before the Board.
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C.
Walmart Lawfully Applied Its Attendance Policy To ADs Who Abandoned Work For Non-Work-Related Reasons. (Exceptions 60-62.)
The ALJ erred in finding that certain ADs qualified as bona fide strikers where the facts demonstrate that they participated in the UFCW/OWM’s strategy of repeated striking for a common plan or purpose, but while participating, simply attended to personal or union business. [See ALJ Dec. 66:11-31; see also footnote 32 regarding Stinnett.] The Act does not protect employees who claim they are “on strike” as an excuse to take vacation days or attend union-sponsored events. See, e.g., Merillat Indus., Inc., 307 NLRB 1301, 1305 (1992); see also Ne. Beverage Corp. v. NLRB, 554 F.3d 133, 140 (D.C. Cir. 2009); Quantum Elec., Inc., 341 NLRB 1270, 1279 (2004); GK Trucking Corp., 262 NLRB 570 (1982); Crown Coach Corp., 155 NLRB 625, 636 (1965); Terri Lee, Inc., 107 NLRB 560 (1953); Gulf Coast Oil Co., 97 NLRB 1513 (1952); Calmex, Inc., Advice Mem., 2006 WL 5054747 (Kearney). Here, many associates – as noted in the record evidence cited above – abandoned their shifts under the umbrella of the UFCW/OWM IWS Campaign, but spent many “strike” days helping family, organizing at other stores, touring museums, tendering or attending a shareholder proposal on executive compensation, or attending lobbying conferences; not protesting working conditions. See Merillat Indus., 307 NLRB at 1305 (the Act does not protect a work stoppage that is “an excuse for absenteeism” or “merely a ploy . . . rather than a strike designed to obtain concessions from the employer”); cf. Eckert Fire Prot., Inc., 332 NLRB 198, 212-14 (2000) (the Act did not protect an employee who claimed after the fact he went on strike when his actions indicated he quit: “once he left the jobsite, [he] never returned to picket or otherwise act on his claim of being on strike”). The ALJ cited Savage Gateway Supermarket, Inc., 286 NLRB 180 (1987), and Connecticut Distributors, Inc., 255 NLRB 1255 (1981), for the proposition that “the Board has 90 8999820
implicitly deemed employees to be bona fide strikers even though they did very little while on strike.” [ALJ Dec. 66:24-25.] But in those cases, the striking employees missed work for the undisputed purpose of honoring a picket line. See Savage Gateway, 286 NLRB at 183; Conn. Distribs., 255 NLRB at 1267. The facts here demonstrate otherwise, and, therefore, the Act does not protect ADs who abandoned work under the guise of protesting, but, instead, just took care of personal or union business. D.
The CGC Did Not Allege Or Litigate That Stonehouse’s Absence Constituted Discipline And An Absence Is Not Discipline. (Exception 63-74.)
In the Complaint (GC 1(bb), ¶ 51), the CGC alleged that Walmart “disciplined” Stonehouse on or about June 18, 2013, by issuing her a “warning for absences.” The ALJ rejected that allegation as unsupported by the record. [ALJ Dec. 100:15-101:24.] However, on his own accord, the ALJ determined that Walmart nevertheless violated the Act by recording Stonehouse’s SWWS absences as a single absence or in Walmart-lingo, an “occurrence.” [Id. (“a form of discipline because it laid a foundation for future discipline”). That finding was error. The CGC did not allege that recording a single absence constituted discipline. Nor did the parties litigate that issue. The parties litigated Personal Discussions, Written Coachings (First-Third), and Discharge, but no one said one word at any time during the entire 18-month trial or any post-trial brief claiming or rejecting the idea that recording a single absence had anything to do with “discipline” or “warnings.” Proving that point, the CGC only argued in his post-hearing brief that – as noted by the ALJ – Walmart disciplined/warned Stonehouse with either a Third Written Coaching or a Personal Discussion; nothing about the recording of a single absence. [Id. at 100:17-25.] Indeed, the ALJ acknowledged that his finding was “different” from that alleged. [Id. at 101 n. 117.] If Walmart had known that the status of a single absence was at issue in the case, it would have called and cross-examined witnesses and made argument 91 8999820
on why that claim fails as a practical and legal matter. It was denied that opportunity because no one knew that was an issue in the case. Pergament United Sales, Inc., 296 NLRB 333, 335 (1989) (holding that “the absence of a specific allegation [may] preclude[] a respondent from presenting exculpatory evidence or . . . [could] have altered the conduct of its case at hearing, had a specific allegation been made”); see also Desert Aggregates, 340 NLRB 289, 292-93 (2003); Indep. Elec. Contractors v. NLRB, 720 F.3d 543, 554 (5th Cir. 2013) (Board violated respondent’s due process rights; whether respondent “could have offered additional justifications for its practices . . . is unknown because respondent had no notice this was necessary”). The ALJ side-stepped the due process issue by saying that “the parties fully litigated how Walmart handled Stonehouse’s strike-related absences after she returned to work in June 2013 [true, no dispute on that point], and the disciplinary action that Walmart took against Stonehouse on June 12 is closely related to (if not squarely within) the complaint allegation that Walmart unlawfully disciplined Stonehouse for being absent from work while on strike during the Ride for Respect.” [ALJ Dec. 101 n.117.] But that is just circular reasoning. No one litigated whether the recording of an absence constituted “disciplinary action.” No one ever mentioned the idea. The ALJ just declares the recording of an absence to be “discipline” after-the-fact, but that does not mean anyone litigated the issue or knew that it was an issue. Clearly, the CGC did not know it was an issue. He argued that the “disciplinary action” at issue was either a Third Written Coaching or a Personal Discussion; nothing about the mere recording of an absence. Finally, under Walmart’s Attendance/Punctuality Policy, it takes four or more occurrences (absences or tardies) in a rolling six-month period for an associate to be subject to the first step in the disciplinary process, and a single unexcused absence will roll off an associate’s record in six months with absolutely no discipline.
[Jt. 0(a)-(m).]
Compare
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Lancaster Fairfield Comm. Hosp., 311 NLRB 401, 403 (1993) (conference report “constituted nothing more than counseling” and “no discipline was being imposed”). There is nothing in the record to support the ALJ’s conclusion that recording a single absence is a “form of discipline because it laid a foundation for future discipline.” That finding was error.42 IV.
THE ALJ ERRED BY DECLINING TO ADDRESS WHETHER THE “UNDER REVIEW” STATEMENT WAS LAWFUL BECAUSE IT DID NOT IMPLICATE PROTECTED ACTIVITY. (EXCEPTION 75.) With respect to the November 16, 2012 protest activity at the Lancaster, Texas, store,
Walmart excepts to the ALJ’s decision that he need not address Walmart’s alternative argument that the manager’s “under review” statement was permissible because it related to certain picketing activity not protected by the Act. [ALJ Dec. 41 n.50.] The protest activity blocked ingress and egress to the store and parking lot and did not constitute protected activity. The ALJ should have made that finding. See Tube Craft, 287 NLRB 491, 492 (1987) (“[P]eaceful picketing does not include the right to block access to the employer’s premises.”); Mal Landfill Corp., 210 NLRB 167 (1974) (preventing both ingress and egress at gates constituted unprotected activity); Ferenbach, Inc., 212 NLRB 896, 904 (1974) (“Mass picketing, where a large number of pickets form a solid wall across the factory entrance to prevent everyone from entering, has long been illegal and unprotected.”); Metal Polishers Local 67, 200 NLRB 335, 336 (1972) (Act did not protect blocking ingress to plant for two to three minutes). V.
THE ALJ ERRED BY RULING THE TOVAR NEWS SEGMENTS ADMISSIBLE. (EXCEPTION 76.) The ALJ dismissed the allegations in paragraph 4(B)(1)-(2) of the complaint concerning
Tovar’s interview. Walmart agrees with that finding. But, Walmart excepts to the ALJ’s finding that the NBC and CBS news segments were admissible in the first instance. [ALJ Dec. 44 n.53.] 42
The ALJ further erred by describing “unexcused absences” as discipline in his Order and Notice postings. [ALJ Dec. 108:9, 19-21, 109:11-13, Appxs. B, C, E, H, I; Jt. 0(a)-(m), 3(a).] 93 8999820
The news segments are not admissible because (1) the CGC did not meet the strict authentication requirements for television interviews, ALJ Benchbook § 13-212; United States v. Sarro, 742 F.2d 1286, 1292 (11th Cir. 1984), (2) the segments are not probative of any Act violation, Gen. Elec. Co. v. UAW, 568 F. Supp. 1138 (S.D. Ohio 1983); Allied Int’l, 1984 WL 47422 (NLRBGC), (3) Walmart cannot be held liable for the editing choices of independent third-party media broadcasters, Monroe Auto Equip. Co., 159 NLRB 613, 617 (1966); U.S. Elec. Motors, 261 NLRB 1343, 1344 (1982), and (4) admitting the segments as sole evidence of an alleged Act violation runs afoul of Section 8(c) and First Amendment, Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 67-68 (2008). VI.
THE ALJ ERRED BY ORDERING THE EXTRAORDINARY REMEDY OF A NOTICE READING. (EXCEPTIONS 77-80.) The ALJ ordered affected Store Managers to read the remedial notices to associates or
attend meetings at which Board agents read the notices. [ALJ Dec. 107:36-39, 110:29-33.] The Board routinely recognizes the extraordinary nature of the notice-reading remedy and reserves that remedy for cases involving flagrant, pervasive, and outrageous unfair labor practices. Edro Corp., 362 NLRB No. 53 (Mar. 31, 2015) (declining to order notice reading because that remedy applies to “unfair labor practices [that] are ‘so numerous, pervasive, and outrageous’ that such remedies are necessary ‘to dissipate fully the coercive effects of the unfair labor practices found’”); McGuire Steel Erection, Inc., 324 NLRB 221, 221 (1997) (finding that employer’s unfair labor practices were not “so flagrant, aggravated, persistent or pervasive, as to warrant the imposition of [an] extraordinary remedy”). Additionally, the Board does not order extraordinary remedies in cases that involve difficult questions of fact, law, and policy. See, e.g., New Process Co., 290 NLRB 704, 750 (1988) (declining to order extraordinary remedy because the case involved “difficult questions of fact, law, and policy”); Hanover House Indus., 233 NLRB 164, 94 8999820
178 (1977) (declining to order extraordinary remedy because the case raised “close questions of law, giving rise to fairly debatable issues”). Walmart’s actions do not warrant the imposition of a notice reading because Walmart did not commit a flagrant or outrageous violation of the Act. Instead, Walmart earnestly tried to comply with a nuanced area of Board law. In fact, even the CGC acknowledged the complexity of the issues in this case, stating: “Yeah, I acknowledge the intermittent work stoppage issue was a very difficult issue. So I completely acknowledge that.” [RT 5129:23-24.] Walmart acted based on its reasonable interpretation of the law governing the IWS issue as set forth in the multiple Board and Court cases cited above. The ALJ cited only one case in support of its decision to order a notice reading. [ALJ Dec. 106:19-20, 107:37-38 (citing Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, *21 (Oct. 30, 2014).] However, the ALJ cannot hang his hat on that case because it does not support a notice reading on the facts of this case. In Farm Fresh, “as soon as [the respondent] learned of the union organizing campaign, [it] took swift and certain action by discharging four union supporters . . . , three of whom were the earliest union supporters, and two of whom . . . openly worked with Union organizers to encourage employees to support the Union.” 361 NLRB No. 83, *21. The Board held that such misconduct “was sufficiently serious and widespread” to warrant a notice-reading order. Id. In contrast, Walmart did not apply its attendance policy to any of the IWS participants until after the UFCW/OWM conducted two massive waves of highly disruptive IWS and immediately threatened more, which UFCW/OWM did – i.e., conduct that Walmart reasonably believed (and continues to believe based on controlling Supreme Court and Board law) the Act did not protect. A substantial difference exists between Walmart’s actions and the actions of an
95 8999820
employer who discharged top union supporters at the first hint of an organizing campaign. Farm Fresh supports Walmart’s position that the Board should not order a notice reading in this case. VII.
THE ALJ ERRED BY LISTING ALL DISCIPLINED AND DISCHARGED ASSOCIATES FROM DIFFERENT STORES IN THE REMEDIAL NOTICES. (EXCEPTION 81.) The ALJ found it appropriate to list “all associates that Respondent unlawfully
disciplined and/or discharged, instead of just the associates in the particular store where the notice will be posted.” [ALJ Dec. 107 n.120.] He deemed that finding “[c]onsistent with the fact that the unlawful disciplines and discharges in this case generally arose out of similar circumstances and occurred in multiple stores.” [Id.] However, the ALJ did not cite any supporting authority, and Walmart knows none. Under settled Board law, remedial notices serve to remind employees of their Section 7 rights and to reassure employees that their employer will respect those rights in the future. See, e.g., St. James Mercy Hosp., Inc., 307 NLRB 322, 323 (1992) (citing Bingham-Willamette Co., 199 NLRB 1280 (1972)).
Remedial notices that list names of employees at other stores,
unknown to the target audience, do not serve that purpose. If anything, such notices create an unwarranted intrusion on the privacy of non-store associates by putting their disciplinary records on display to the public. Compare Shakman v. City of Chicago, 2014 WL 711010, at *4 (N.D. Ill. Feb. 21, 2014) (“In the ordinary workplace setting, an employee has a privacy interest in her employment records, and disciplinary actions generally are not public . . . . That interest finds some degree of protection in a variety of ordinances and laws.”); Salt River Valley Water Users’ Ass’n v. NLRB, 769 F.2d 639, 642 (9th Cir. 1985) (disciplinary records “implicate significant privacy interests of the affected employees”). Thus, the remedial notices should not list the names of non-store associates in store-specific notices.
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VIII. THE ALJ FAILED TO ADDRESS MATERIAL EVIDENCE ON THE VACANCY ACT ISSUE. (EXCEPTIONS 82-87.) The ALJ erred by not dismissing the complaints approved by Acting General Counsel Lafe Solomon. The unique timing of this case and the evidence establish with a very high degree of certainty that, in violation of the federal Vacancy Act, Solomon – and not General Counsel Griffin – decided to issue complaints on the so-called “Solomon Charges”: -
Tovar (Compl. ¶ 4(B)) and Yokum (Compl. ¶ 4(D)) charges, Ride for Respect I and its companion charge (Compl. ¶¶ 4(E), 5-9, 11, 12-69), Harris charge (Compl. ¶ 10(A) & (B), ¶ 12(A) & (B)), Martinez charge (Compl. ¶ 45(A) & (B)), and February 2013 Talking Points at Chicago Store charge (Compl. ¶ 4(E)(12)).43
The Board should at least remand for further proceedings so the ALJ can address material evidence he ignored. See, e.g., A-1 Fire Prot., Inc., 273 NLRB 964, 970 (1984) (Board ordered record reopened and further hearing to receive evidence as to unresolved factual issues). In Southwest General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), the court held that the Vacancy Act, 5 U.S.C. § 3345(b), barred Solomon from serving as the Acting GC after January 5, 2011, the date on which he was nominated to that position. Id. at 78. Any action taken by a person in violation of the Vacancy Act, the court noted, “shall have no force or effect.” Id. at 78. Only after Southwest General did current General Counsel Griffin file a Notice of Ratification, admitting that the prosecution of Case 16-CA-096240 (the “Under Review” allegations in Compl. ¶ 4(A)) began under Solomon’s authority. [Ratification materials admitted on 12/16/15.] Griffin then “decided” that issuance of the initial complaint – on the “Under Review” charge – is “a proper exercise of [his] broad and unreviewable discretion.” [Id. at 2 (emphasis added).] By “initial complaint,” Griffin referred to one complaint: “the complaint 43
The complaints encompassing the Solomon Charges are 26-CA-093558, 16-CA-108394, 16CA-113087, 16-CA-105873, 21-CA-105401, and 13-CA-107343. 97 8999820
[singular] was consolidated with a number of complaints,” which he went on to identify as the remaining case numbers in this proceeding. [Id. at 1 (emphasis added).] Thus, Walmart argued in its post-hearing brief that Griffin did not “ratify” any of the other complaints consolidated into this case. The ALJ conceded the issue was “ambiguous,” but instead of resolving this significant legal issue,44 he concluded it was “moot” because, on January 14, 2014, Griffin “authorized litigation in the consolidated complaint (including all cases identified therein).” [Dec. 4 n.8.]45 But the evidence flatly contradicts any such conclusion. A mere 10 days after Griffin took office on November 4, 2013, the Board publicly announced that it was issuing complaints on the Solomon Charges. The press release stated that the Board “investigated charges alleging that Walmart violated the rights of its employees as a result of activities surrounding employee protests,” and “found merit in some of the charges and no merit in others.” [R. 308 at Tab 4 (emphasis added).] It defies logic and common sense that Griffin was able to walk in on his first day on the job and, in just 10 days, get up to speed on that investigation and approve issuance of five complaints on complicated (both factually and legally) charge allegations that had been pending for as long as 10 months and no fewer than four months.46 Remarkably, the ALJ never mentions the press release. Not one word about it. See City Fed. Savs. & Loan Ass’n v. Fed. Home Loan Bank Bd., 600 F.2d 681, 689 (7th Cir. 1979) (if the “record before an agency shows that significant questions were seriously contested” and “[i]f the agency decision does not address these issues, even a restrained exercise of judicial review is impossible”). Instead, the ALJ fast forwards to January 2014, when individual complaints were 44
Griffin’s actions were also invalid as he waited over two years – after the 18-month trial in this case was over – to issue his “ratification.” See, e.g., RESTATEMENT (THIRD) OF AGENCY § 4.05 (2006) (ratification ineffective where it is made after “a material change in circumstances”). 45 Any ambiguity in the ratification’s scope should be resolved in the first instance by the ALJ, based on all relevant evidence, and after permitting Walmart to take additional testimony. 46
Tovar and Yokum were filed in November 2012; the others were filed in May and June 2013. 98 8999820
consolidated into a single complaint. Consolidation, however, is separate and distinct from the decision to issue a complaint in the first place. Compare McDonald’s USA, LLC, 363 NLRB No. 91 (2016) (decision to consolidate complaints reviewed for abuse of discretion), with Morton Salt Co. v. NLRB, 472 F.2d 416, 419 (9th Cir. 1972) (“[T]he [GC]’s decision to . . . issue a complaint is unreviewable by the Board.”). And complaints on the Solomon Charges had to have been authorized before the Board went public with that news on November 14, 2014. See In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990) (judicial estoppel “is to be applied where intentional self-contradiction is being used as a means of obtaining unfair advantage . . . , to prevent litigants from playing fast and loose with the courts”). Collectively, the press release and e-mails the Board produced (after trial) raise more unanswered questions regarding Solomon’s involvement in these complaints (certainly the Tovar/Yokum charge allegations).
They show he was the one reviewing, analyzing, and
weighing the evidence in the months leading up to the press release. Absent a dismissal of the Solomon Charges, the Board should reopen the record so Walmart may conduct discovery. IX.
THE CGC’S FILED AN UNTIMELY AMENDMENT TO ADD A SEARCH-FORWORK-EXPENSES REMEDY ON THE LAST DAY. (EXCEPTION 88.) Apart from whether “search-for-work” and work-related expenses are recoverable under
the Act, the CGC cannot seek that additional remedy in this case. Instead of making an offer of proof or introducing evidence as to whether that remedy was appropriate (as opposed to the specific amount of any such expenses), the CGC waited until the last hour of trial to mention the issue. The CGC even stayed silent as Walmart’s counsel inquired into the ADs’ post-discharge employment history throughout the trial.
Once trial ended, it was too late to amend the
Complaint. See Bob’s Ambulance Serv., 183 NLRB 961, 961 (1970) (“suitability” for back pay “is a proper subject of inquiry at this time [and not] at compliance stage . . . because it is material 99 8999820
to the question of the appropriateness of the . . . remedy”); see also Marlene Indus. v. NLRB, 712 F.2d 1011, 1020 (6th Cir. 1983) (distinguishing between “entitlement to, and not merely computation of, back pay”; former cannot be “deferred to compliance stage” (emphasis added)). Allowing the untimely amendment for “search-for-work” expenses also raises serious due process concerns. If that remedy were available (it is not, as the ALJ correctly found), Walmart would have the right to cross-examine each of the 55 ADs regarding its suitability given his or her individual circumstances and efforts to find work. See, e.g., St. George Warehouse, 351 NLRB 961, 966 (2007) (Respondents have a right to cross-examine ADs on details of interim employment); see also Greene v. McElroy, 360 U.S. 474, 495-97 (1959) (requirements of crossexamination apply in cases where administrative orders are under scrutiny). Nor can a remand remedy the prejudice to Walmart (assuming the Board were to reverse its long-standing rule precluding recovery of “search-for-work” expenses except as an offset to interim earnings). Given that the current appeals process would have to play out, it would be years before the parties ended up back before the ALJ for a second trial, long after documentation goes missing or gets misplaced and memories get just foggy enough to fall prey to a bit of exaggeration. No employer should have to defend itself against such stale claims.
CONCLUSION For all the foregoing reasons, Walmart did not violate the Act as alleged, and Walmart requests that the Board dismiss the Complaint in its entirety with the exception of Complaint ¶ 4.D (an 8(a)(1) finding to which Walmart does not take Exception.)
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Respectfully submitted this 3rd day of March, 2016. s/ Steven D. Wheeless Steven D. Wheeless Alan Bayless Feldman STEPTOE & JOHNSON LLP 201 East Washington Street, Suite 1600 Phoenix, AZ 85004-2382 Attorneys for Wal-Mart Stores, Inc.
[email protected] [email protected]
The foregoing filed electronically this 3rd day of March, 2016 and eight copies (with CDs) via Federal Express with: Gary Shinners Executive Secretary National Labor Relations Board 1015 Half Street SE Washington, DC 20570-0001 Copy of the foregoing sent via email this 3rd day of March, 2016 and via Federal Express on the 4th Day of March, 2016 to: Roberto Perez, Counsel for the General Counsel David Foley, Counsel for the General Counsel National Labor Relations Board Region 16 819 Taylor Street, Room 8A24 Fort Worth, TX 76111-5906
[email protected] [email protected] Deborah Gaydos, Counsel Joey Hipolito, Counsel The Organization United for Respect (OURWalmart)/UFCW 1775 K Street, NW Washington, DC 20006-1521
[email protected] [email protected]
s/Elizabeth Alvarado 101 8999820
Tab A
Work Stoppage and Absence Discipline Summary (Tab A)
Last Name
First Name
State
City
Adams
Javon
TX
Lancaster
Ahles
Michael
MN
Sauk Centre
Bowers
Bravo
Marc
Raymond
TX
CA
Lancaster
Store No.
Work Stoppage Date(s) (Missed Shifts)
11/21/12 (1) 471 6/2/13 - 6/8/13 (5) 11/23/12 (1) 4253 5/30/13 - 6/9/13 (9)
11/21/12 - 11/26/12 (4) 5/6/13 - 5/9/13 (3) 471 5/31/13 - 6/9/13 (8)
Richmond
10/9/12 (1) 11/23/12 (1) 3455 5/29/13 - 6/8/13 (9)
Brown* Callahan
Yvette Louis
CA CA
Placerville Richmond
11/23/12 (1) 2418 5/27/13 - 6/8/13 (9) 3455 No Missed Days
Campbell
Rose
IL
Wheeling
1735 5/30/2013 - 6/8/13 (8)
Carr
Andrea
CA
San Leandro
5434 5/28/13 - 6/8/13 (6)
Collins
Chris
TX
Lancaster
11/22/12 (1) 471 6/1/13 - 6/10/13 (7)
Post SWWS Attendance Action Taken
Citation(s)
Discharge (6/22/13)
Jt. 140 (TCAR), Jt. 141 (Schedule), Jt. 145 (IVR), and Jt. 148 (Exit Interview)
First Written Coaching (6/22/13)
Jt. 1324 at n. 2, 3, 5, and 7 (Ahles Stip.)
Discharge (6/22/13)
Jt. 170 (TCAR), Jt. 171 (Schedule), Jt. 179 (IVR), and Jt. 182 (Exit Interview)
Discharge (6/27/13)
Jt. 18(a) (Exit Interview), Jt. 18(b) (TCAR), Jt. 18(c) (Schedule), and Jt. 18(d) (IVR)
Discharge (6/23/13) Discharge (5/29/13)
Jt. 10(a) (Exit Interview), Jt. 10(b) (TCAR), Jt. 10(c) (Schedule), Jt. 10(d) (IVR), Jt. 51 (BF 2012 Return Letter), and RT 559:23560:8 (BF 2012) R. 272 at n. XIX.B (Non-Testifying AD Stip)
Third Written Coaching (6/25/13) R. 272 at n. IV.B, IV.B.1 and IV.D (Non-Testifying AD Stip) Third Written Coaching Jt. 24(a) (Coaching), Jt. 24(b) (TCAR), Jt. 24(c) (Schedule), and (6/23/13) Jt. 24(d) (IVR)
Discharge (6/22/13)
Jt. 183 (Exit Interview), Jt. 188 (TCAR), Jt. 189 (Schedule), and Jt. 192 (IVR)
Collins (Andridge)*
Barbara
CA
Placerville
10/10/12 (1) 11/23/12 (1) 2418 5/28/13 - 6/8/13 (8)
Coulombe
David
MA
Chelmsford
2903 5/28/13 - 6/8/13 (7)
Discharge (6/29/13) First Written Coaching (6/21/13)
Creach Slate
Jeanna
TX
Quinlan
4215 5/31/13 - 6/8/13 (7)
Third Written Coaching Jt. 269 (Coaching), Jt. 270 (TCAR), Jt. 271 (Schedule), and Jt. (6/26/13) 273 (IVR)
Jt. 9(a) (Exit Interview), Jt. 9(b) (TCAR), Jt. 9(c) (Schedule), and Jt. 9(d) (IVR) Jt. 1328 at n. III.2, III.3, and III.7 (Non-Testifying AD Stip)
*After returning from the UFCW/OWM Shareholder Meeting events, Yvette Brown failed to report to one additional shift for unrelated personal reasons, and Barbara Collins failed to report to two additional shifts for unrelated personal reasons.
Page 1
8631093
Work Stoppage and Absence Discipline Summary (Tab A)
Last Name
First Name
State
City
Store No.
Work Stoppage Date(s) (Missed Shifts)
Post SWWS Attendance Action Taken
Citation(s)
Cruz
Evelin
CA
Pico Rivera
10/4/12 (1) 11/20/12 (1) 11/23/12 (1) 5/30/13 - 6/7/13 (7) 2886 11/7/13 (1)
Davis
Pamela
CA
Richmond
11/24/12 - 11/25/12 (2) 3455 6/2/13 - 6/8/13 (2)
Discharge (7/30/13)
R. 272 at n. XVIII.B.1, XVIII.C, XVIII.C.1, and XVIII.D (NonTestifying AD Stip)
Dobyns*
Norma
CA
Placerville
2418 5/28/13 - 6/8/13 (8)
Discharge (6/22/13)
Jt. 11(a) (Exit Interview), Jt. 11(b) (TCAR), Jt. 11(c) (Schedule), and Jt. 11(d) (IVR)
Edick
Aubretia
MA
Chicopee
5278 5/29/13 - 6/8/13 (9)
Personal Discussion (6/26/13)
Jt. 1328 at n. IV.2, IV.3, and IV.8 (Non-Testifying AD Stip)
Garrett
Brandon
LA
Baker
1102 5/30/13 - 6/9/13 (9)
Discharge (6/28/13)
Jt. 626 (Exit Interview), Jt. 634 (TCAR), Jt. 635 (Schedule), and Jt. 639 (IVR)
Gauer
Matt
CA
Placerville
11/22/12 (1) 2418 5/28/13 - 6/5/13 (8)
First Written Coaching (6/22/13)
Jt. 12(a) (Coaching), Jt. 12(b) (TCAR), Jt. 12(c) (Schedule), and Jt. 12(d) (IVR)
Gertz
Barbara
CO
Aurora
No Action
Jt. 1328 at n. II.2, II.3, and II.7 (Non-Testifying AD Stip)
Gilbert
Sara
WA
Federal Way
5334 5/31/13 - 6/8/13 (7) 10/10/12 (1) 11/15/12 (1) 2571 5/30/13 - 6/7/13 (7)
First Written Coaching (6/21/13)
Jt. 299 (Coaching), Jt. 301 (TCAR), Jt. 302 (Schedule), and Jt. 308 (IVR)
Givens-Thomas
Charmaine
IL
Chicago (Evergreen Park)
11/22/12 - 11/23/12 (2) 5485 5/30/13 - 6/8/13 (8)
Personal Discussion (6/24/13)
Jt. 972 (TCAR), JT. 973 (Schedule), Jt. 976 (IVR), and Jt. 978 (Personal Discussion)
Gomez
Jovani
CA
Lakewood
2609 5/31/13 - 6/8/13 (7)
Discharge (6/21/13)
Jt. 771 (Exit Interview), Jt. 786 (TCAR), Jt. 787 (Schedule), and Jt. 791 (IVR)
Gurule
Cecilia
CA
San Leandro
5434 6/3/13 - 6/7/13 (5)
Third Written Coaching Jt. 26)a) (Coaching), Jt. 26(b) (TCAR), Jt. 26(c) (Schedule), and (6/24/13) Jt. 26(d) (IVR)
First Written Coaching (6/21/13)
Jt. 752 (Coaching), Jt. 760 (TCAR), Jt. 761 (Schedule), Jt. 768 (IVR), and RT 4854:12-14 (BF 2013)
*After returning from the UFCW/OWM Shareholder Meeting events, Norma Dobyns failed to report to two additional shifts for unrelated personal reasons.
Page 2
8631093
Work Stoppage and Absence Discipline Summary (Tab A)
Last Name
First Name
State
City
Store No.
Work Stoppage Date(s) (Missed Shifts)
Post SWWS Attendance Action Taken
Citation(s)
Haluska
Linda
IL
Glenwood
Harris
Colby
TX
Lancaster
11/22/12 (1) 5/30/13 - 6/8/13 (8) 5404 11/13/13 (1) 10/9/12 - 10/11/12 (3) 11/16/12 (1) 11/22/12 - 11/23/12 (2) 5/6/13 - 5/8/13 (3) 471 5/31/13 - 6/10/13 (7)
10/8/12 - 10/11/12 (3) 11/23/12 (1) 5/29/13 - 6/8/13 (9) 2418 11/21/13 (1)
First Written Coaching (6/22/13)
Jt. 13(a) (Coaching), Jt. 13(b) (TCAR), Jt. 13(c) (Schedule), Jt. 13(d) (IVR), Jt. 71 (BF 2013 Walkout Letter) and RT 664:2-9 (BF 2013)
Personal Discussion (6/21/13) Personal Discussion (Undated)
R. 272 at n. XV.B, XV.B.1, XV.D, and XV.E.1 (Non-Testifying AD Stip) R. 272 at n. XVI.B.1, XVI.D.1, and XVI.E (Non-Testifying AD Stip)
R. 272 at n. II.B, II.B.1 and II.C (Non-Testifying AD Stip)
Personal Discussion (6/27/13)
R. 272 at n. I.B.1, I.D, I.D.1, I.F, and I.G.1 (Non-Testifying AD Stip)
Third Written Coaching Jt. 206 (Coaching), Jt. 207 (TCAR), Jt. 208 (Schedule), and Jt. (6/21/13) 216 (IVR)
Hooten
Margaret
CA
Placerville
Johnson
Vanzell
TX
Lancaster
Juanitas
John
CA
Fremont
6/3/13 - 6/8/13 (4) 471 11/20/13 (1) 11/23/12 (1) 2989 5/28/13 - 6/4/13 (5)
Kanger-Born
Marie
IL
Chicago (Crestwood)
3601 5/31/13 - 6/8/13 (7)
Personal Discussion (6/26/13)
Kapil
Pooshan
IL
Wheeling
Aaron
KY
Stanford
Discharge (6/24/13) Personal Discussion (6/21/13) First Written Coaching (8/17/13)
R. 272 at n. III.B, III.C.1 and III.D (Non-Testifying AD Stip)
Lawson
1735 5/13/13 - 6/8/13 (9) 10/12/12 (1) 11/19/12 - 11/23/12 (3) 5/31/13 - 6/8/13 (6) 825 11/17/13 - 11/18/13 (2)
Locks
Patricia
WA
Federal Way
Personal Discussion (6/21/13)
R. 272 at n. IX.B.1, IX.D, IX.D.1, and IX.F (Non-Testifying AD Stip)
Martinez
Victoria
CA
Pico Rivera
11/15/12 (1) 2571 5/30/13 - 6/8/13 (8) 10/4/12 (1) 11/20/12 (1) 11/23/12 (1) 2886 5/31/13 - 6/9/13 (8)
First Written Coaching (6/21/13)
Jt. 844 (Coaching), Jt. 852 (TCAR), and Jt. 853 (Schedule), and Jt. 855 (IVR)
Page 3
Jt. 1328 at n. VI.3, VI.8, VI.9, VI.13, VI.14, and VI.16 (NonTestifying AD Stip)
8631093
Work Stoppage and Absence Discipline Summary (Tab A)
Last Name
First Name
State
City
Store No.
Work Stoppage Date(s) (Missed Shifts)
Post SWWS Attendance Action Taken
Citation(s)
First Written Coaching Jt. 348 (Coaching), Jt. 355 (TCAR), Jt. 356 (Schedule), and Jt. (6/26/13) 359 (IVR) Third Written Coaching (6/27/13) R. 272 at n. XIV.B, XIV.B.1 and XIV.D (Non-Testifying AD Stip)
McKeown (II)
Michael
WA
Federal Way
2571 5/31/13 - 6/7/13 (6)
Mixon
Shawndia
LA
Baker
Murray
Cynthia
MD
Laurel
1102 6/1/13 - 6/9/13 (7) 10/10/12 (1) 11/23/12 (1) 1985 5/29/13 - 6/8/13 (8)
Pefua
Liai
WA
Federal Way
2571 5/30/13 - 6/8/13 (5)
Plowe
Cheryl
NC
Elizabeth City
Pritchett
Anna
IL
Chicago (Chatham)
1527 5/30/13 - 56/7/13 (7) 6/1/13 - 6/8/13 (5) 5781 11/13/13 (1)
Personal Discussion (6/26/13) First Written Coaching (6/21/13) Personal Discussion (6/21/13) Personal Discussion (6/22/13)
Roberty
Marie-Anne
FL
Hialeah
1590 5/30/13 - 6/8/13 (8)
Discharge (6/22/13)
Jt. 1186 (Exit Interview), Jt. 1195 (TCAR), Jt. 1196 (Schedule), and Jt. 1199 (IVR)
First Written Coaching (6/21/13)
Jt. 407 (Coaching), Jt. 409 (TCAR), Jt. 410 (Schedule), Jt. 414 (IVR), and RT 3941:16-22 (BF 2013)
Personal Discussion (6/24/13) Third Written Coaching (6/24/13)
R. 272 at n. VIII.B, VIII.B.1, VIII.D, and VIII.E.1-2 (NonTestifying AD Stip) Jt. 251 (Coaching), Jt. 252 (Schedule), Jt. 253 (Schedule), and Jt. 255 (IVR)
Personal Discussion (6/26/13)
R. 272 at n. XIII.B.1, XIII.C, XII.C.1, XII.E, and XII.F.1 (NonTestifying AD Stip)
No Action
R. 272 at n. VII.B.1, VII.D, and VII.D.1 (Non-Testifying AD Stip), Jt. Ex. 452 (Cancelled Personal Discussion), and RT 3642:103644:14
Second Written Coaching (6/21/13)
R. 272 at n. XII.B.1, XII.C.1, XII.E, XII.E.1, and XII.G (NonTestifying AD Stip)
Scott
Patricia
WA
Federal Way
11/15/12 (1) 5/28/13 - 6/7/13 (9) 2571 11/12/13 (1)
Sherman
Vivian
WA
Bellingham
5/29/13 - 6/8/13 (8) 2450 11/11/13 (1)
Shimmel
Cody
TX
Dallas
Shove
Betty
WA
Mt. Vernon
Slowey
Lawrence
WA
Port Angeles
Smith (IV)
John
WA
Federal Way
286 6/1/13 - 6/9/13 (7)
10/9/12 - 10/11/12 (3) 5/29/13 - 6/6/13 (5) 2596 11/12/13 (1)
11/23/12 (1) 2196 5/31/13 - 6/9/13 (8) 10/10/12 (1) 11/15/12 (1) 2571 5/30/13 - 6/7/13 (7)
Page 4
Jt. 1328 at n. VII.3, VII.8, VII.14, VII.15, and VII.19 (NonTestifying AD Stip) R. 272 at n. X.B, X.B.1 and X.D (Non-Testifying AD Stip) Jt. 1328 at n. V.2, V.4 and V.8 (Non-Testifying AD Stip) R. 272 at n. V.B, V.C.1, V.D, and V.E.1 (Non-Testifying AD Stip)
8631093
Work Stoppage and Absence Discipline Summary (Tab A)
Last Name
First Name
State
City
Store No.
Work Stoppage Date(s) (Missed Shifts)
Post SWWS Attendance Action Taken
Citation(s)
Stinnett*
Amy
CA
Placerville
2418 5/27/13 - 6/8/13 (9)
Second Written Coaching (6/22/13)
R. 272 at n. XVII.B, XVII.D.1 and XVII.E (Non-Testifying AD Stip)
Stonehouse
Shana
WA
Bellevue
3098 5/30/13 - 6/8/13 (8)
Personal Discussion (Undated)
Jt. 535 (TCAR), Jt. 536 (Schedule), Jt. 538 (IVR), and RT 3985:13-3987:20
Uvalle
Esmeralda
WA
Mt. Vernon
2596 5/30/13 - 6/7/13 (5)
Vandell
Ronnie
IL
Chicago (Chatham)
5781 5/31/13 - 6/8/13 (7)
Vetato
Trina
KY
Paducah
431 5/29/13 - 6/8/13 (7)
Personal Discussion (6/21/13) Personal Discussion (6/22/13) Personal Discussion (6/23/13) Second Written Coaching (7/21/13)
Jt. 1323 at n. 2, 3, 5, and 6 (Vetato Stip)
Jt. 27(a) (Exit Interview), Jt. 27(b) (TCAR), Jt. 27(c) (Schedule), and Jt. 27(d) (IVR) Jt. 674 (Coaching), Jt. 676 (TCAR), Jt. 677 (Schedule), and Jt. 679 (IVR)
R. 272 at n. XI.B, XI.B.1 and XI.D (Non-Testifying AD Stip) R. 272 at n. VI.B, VI.C.1 and VI.D (Non-Testifying AD Stip)
Ware
Dominic
CA
San Leandro
10/9/12 (1) 11/22/12 - 11/23/12 (2) 5434 5/26/13 - 6/8/13 (8)
Williams
Mariah
LA
Baker
1102 6/2/13 - 6/9/13 (7)
Discharge (7/3/13) First Written Coaching (6/27/13)
Williams
Debra
WA
Mt. Vernon
5/31/13 - 6/8/13 (7) 2596 11/12/13 (1)
Personal Discussion (6/21/13)
Jt. 588 (TCAR), Jt. 589 (Schedule), Jt. 592 (IVR), Jt. 594 (Personal Discussion), and RT 4042:3-4044:17 (BF 2013)
Yates
Tavarus
LA
Baker
1102 5/30/13 - 6/9/13 (8)
Discharge (6/28/13)
Jt. 682 (Exit Interview), Jt. 688 (TCAR), and Jt. 689 (Schedule), and Jt. 695 (IVR)
*After returning from the UFCW/OWM Shareholder Meeting events, Amy Stinnett failed to report to one additional shift for unrelated personal reasons.
Page 5
8631093
Tab B
ADs Who Participated in IWS Series for the First Time During the SWSS Knew of the UFCW IWS Campaign and Made Common Cause With It (Tab B)
Last Name
Callahan
Campbell
First Name
Louis
Rose
State
CA
IL
City
Richmond
Wheeling
Carr
Andrea
CA
San Leandro
Coulombe
David
MA
Chelmsford
Store No.
Testimony/Stipulation
At the time he participated in the Ride for Respect work stoppage/strike, Callahan knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Callahan’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose testimony 3455 is reflected in the record. At the time she participated in the Ride for Respect work stoppage/strike, Campbell knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Campbell’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect 1735 strikers whose testimony is reflected in the record. 18 Q So if you were involved in Our Wal-Mart in July/August 19 2012, then you were aware of and probably saw the strikes and 20 demonstrations that went on at Black Friday 2012? 21 A Yes. 8 Q BY MR. WHEELESS: November of 2012, Black Friday -9 A Uh-huh. 10 Q -- that was a National Day of Action, right? 11 A Yes. 12 Q And that was put on by the Our Wal-Mart organization? 13 A Yes. 14 Q And the June 2013 National Day of Action was also put on 15 my Our Wal-Mart organization? 16 A Yes. 17Q And you knew that they both were put on by the same 18 or ganization? 19 A Yes. 20 Q And pursued the same goals and objectives? 21 MR. PEREZ: Your Honor, I think that's been asked and 22 answered multiple times. 23 JUDGE CARTER: Overruled. 5434 24 THE WITNESS: Yes. Coulombe knew that some of the other Ride for Respect strikers had gone on strike before in 2012. Coulombe's knowledge of the Black Friday strike in 2012 was similar in nature to that of other similar Ride for Respect strikers whose testimony is 2903 reflected in the record.
Page 1
Citation
R. 272 at n. XIX.E (Non-Testifying AD Stip)
R. 272 at n. IV.B.6 (Non-Testifying AD Stip)
RT 439:18-440:22 and 462:8-24
Jt. 1328 at n. III.10 (Non-Testifying AD Stip)
8632385
ADs Who Participated in IWS Series for the First Time During the SWSS Knew of the UFCW IWS Campaign and Made Common Cause With It (Tab B)
Last Name
First Name
State
City
Store No.
Testimony/Stipulation
Citation
25 Q Okay. Why did you sign up to become a member of OUR 1 Walmart? 2 A For me it was to stand up legally to retaliation and that a 3 lot of associates besides myself were feeling.
Creach Slate
Dobyns
Edick
Jeanna
Norma
Aubretia
TX
CA
MA
Quinlan
20 Q And she explained to you at that time the -- about the 21 prior Black Friday strikes and national days of action that had 22 happened the year before? 4215 23 A Yes, she did go over somewhat of it, not in great detail.
RT 3032:25-3033:3 and 3072:20-23
Placerville
19 Q And you knew that there were going to be strikes in that 20 June -- first week of June timeframe? 21 A Correct. 22 Q When -- or how did you learn about those? 23 A That was through Barbara Collins. 24 Q Okay. What did she tell you about that? 25 A That we're going on strike May 28th and -- this was before 1 I knew about the Ride for Respect. So I just told her that I 2 was tired of -- I wanted to stand up and speak out and I'm -3 you know, want to make a difference, make a change -- on being 4 respect, and our salary because I'm a single mother of six, so. 5 I tried to stand and, you know, and help everybody that I can. 6 Q Uh-huh. 7 A And I got tired of being disrespected, you know, and -8 for what we -- our pay is, it's not much, but, you know, we 2418 9 needed -- I needed to stand.
RT 487:16-488:2 and 490:19-491:9
Chicopee
Edick knew that some of the other Ride for Respect strikers had gone on strike before in 2012. Edick's knowledge of the Black Friday strike in 2012 was similar in nature to that of other similar Ride for Respect strikers whose testimony is reflected 5278 in the record. Jt. 1328 at n. IV.14 (Non-Testifying AD Stip)
16 Q And did you -- or were you aware that Barbara Collins 17 participated in a Our Wal-Mart national day of action in 18 November of 2012? 19 A Yes, I did. 20 Q And that was -- there was a big demonstration at your 21 Placerville store on November 23rd, Black Friday, wasn't there? 22 A Yes, there was. 23 Q And to be clear for the record, that's 2012? 24 A Correct. 25 Q And several of your coworkers including Barbara Collins 1 and Margaret Hooten went -- gone out on strike there? 2 A Correct.
Page 2
8632385
ADs Who Participated in IWS Series for the First Time During the SWSS Knew of the UFCW IWS Campaign and Made Common Cause With It (Tab B)
Last Name
Garrett
Gertz
First Name
Brandon
Barbara
State
LA
CO
City
Store No.
Testimony/Stipulation
Citation
Baker
16 Q And I think there was maybe a demonstration at the store 17 Black Friday 2012, does that sound right? 18 A They did an action at the store, yes. 19 Q Okay. But you didn't participate in that, right? 20 A No. 21 Q And then Ms. Janet Sparks, she also participated in the 22 Ride For Respect strike in June of 2013? 23 A Yes. 24 Q And by that time you had joined with her in supporting OUR 25 Walmart? 1 A Yes, sir. 2 Q And you joined with her, were wanting to continue the call 3 for change that she and others had started back in November of 4 2012? 1102 5 A Yes, sir.
Aurora
Gertz knew that some of the other Ride for Respect strikers had gone on strike before in 2012. Gertz's knowledge of the Black Friday strike in 2012 was similar in nature to that of other similar Ride for Respect strikers whose testimony is 5334 reflected in the record. Jt. 1328 at n. II.11 (Non-Testifying AD Stip)
Page 3
RT 4453:16-4454:5
8632385
ADs Who Participated in IWS Series for the First Time During the SWSS Knew of the UFCW IWS Campaign and Made Common Cause With It (Tab B)
Last Name
First Name
State
City
Store No.
Testimony/Stipulation
Citation
3 Q How long have you been a member of this organization? 4 A Well, I signed up in April 2011. 5 Q At that point you had already been working for a period of 6 time? 7 A Yes. 8 Q So you weren't a member of this organization when you 9 first started working for Wal-Mart? 10 A No. 11 Q How did you find out about it? 12 A Well, when I was on the remodel team I worked with another 13 worker from the Paramount Wal-Mart, Carlton Smith, he was a 14 member of the campaign and he introduced me to his organizer 15 and he introduced me to the campaign. 16 Q So Carlton Smith, who was he again? 17 A He was a department manager in the Paramount Store. 18 Q And what was he doing at the Lakewood Store? 19 A He was in the Lakewood Store working as a supervisor for 20 the remodel team. 21 Q So when you were working on the remodel team that's where 22 you met him? 23 A Yes. 24 Q And so what did Mr. Smith tell you about the -- or what 25 did you learn of OURWalmart based on what Mr. Smith told you? 1 A Well, the goals of the campaign, workers speaking up about 2 improving working conditions, pay, and he shared like that they 3 were going to go out on strike.
Gomez
Gurule
Johnson
Kanger-Born
Jovani
Cecilia
Vanzell
Marie
CA
CA
TX
IL
Lakewood
11 Q What were you seeking to accomplish by going on this 12 strike? 13 A To have my voice heard and to be a part of, like, this 2609 14 movement that would bring positive changes to the company.
RT 4747:3-4748:3 and 4761:11-14
San Leandro
8 Q Okay. But you did know that Dominic and a number of other 9 associates had gone on strike Black Friday 2012? 10 A Yes. 11 Q And in going on strike in June of 2013, you were standing 12 in solidarity with those prior strikers? 5434 13 A Yes.
RT 340:8-13
Lancaster
Chicago (Crestwood)
At the time he participated in the Ride for Respect work stoppage/strike, Johnson knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Johnson’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect 471 strikers whose testimony is reflected in the record. R. 272 at n. XV.B.5 (Non-Testifying AD Stip) At the time she participated in the Ride for Respect work stoppage/strike, KangerBorn knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Kanger-Born’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose 3601 testimony is reflected in the record. R. 272 at n. II.B.6 (Non-Testifying AD Stip)
Page 4
8632385
ADs Who Participated in IWS Series for the First Time During the SWSS Knew of the UFCW IWS Campaign and Made Common Cause With It (Tab B)
Last Name
First Name
State
City
Kapil
Pooshan
IL
Wheeling
McKeown (II)
Michael
WA
Federal Way
Mixon
Shawnadia
LA
Baker
Pefua
Liai
WA
Federal Way
Plowe
Cheryl
NC
Elizabeth City
Pritchett
Anna
IL
Chicago (Chatham)
Store No.
Testimony/Stipulation
At the time he participated in the Ride for Respect work stoppage/strike, Kapil knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Kapil’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose testimony is 1735 reflected in the record. 21 Q Okay. And so at the time that you went on the Ride for 22 Respect in late May, early June of 2013 you were well aware 23 that your friends and family had participated in a walk-off 24 back in November of 2012, right? 25 A Yes. Q And you participated in the Ride for Respect strike in 2 part to support your friends and family and continue the -- you 3 know, the message that Wal-Mart needs to change that had 4 started back in November of 2012? 2571 5 A Yes. At the time she participated in the Ride for Respect work stoppage/strike, Mixon knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Mixon’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose testimony is 1102 reflected in the record. At the time she participated in the Ride for Respect work stoppage/strike, Pefua knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Pefua’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose testimony is 2571 reflected in the record. Plowe knew that some of the other Ride for Respect strikers had gone on strike before in 2012. [Plowe's] knowledge of the Black Friday strike in 2012 was similar in nature to that of other similar Ride for Respect strikers whose 1527 testimony is reflected in the record. At the time she participated in the Ride for Respect work stoppage/strike, Pritchett knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Pritchett’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose 5781 testimony is reflected in the record.
Page 5
Citation
R. 272 at n. III.C.6 (Non-Testifying AD Stip)
RT 3764:21-3765:5
R. 272 at n. XIV.B.6 (Non-Testifying AD Stip)
R. 272 at n. X.B.6 (Non-Testifying AD Stip)
Jt. 1328 at n. V.11 (Non-Testifying AD Stip)
R. 272 at n. V.C.5 (Non-Testifying AD Stip)
8632385
ADs Who Participated in IWS Series for the First Time During the SWSS Knew of the UFCW IWS Campaign and Made Common Cause With It (Tab B)
Last Name
First Name
State
City
Roberty
Marie-Anne
FL
Hialeah
Sherman
Vivian
WA
Bellingham
Shimmel
Cody
TX
Dallas
Store No.
Testimony/Stipulation
Citation
24 Q And so for the Ride for Respect strike that happened in 25 June of 2013, at that point you had been aware that there would 1 have been strikes back in Black Friday 2012? 2 A Yes. 3 Q In fact you participated in some demonstration activity 4 there in support of the strikers, right? 5 A Yes, sir. 6 Q And that was at the Miami Gardens store? 7 A It -- North Miami. 8 Q North Miami? 9 A In Miami -- yeah, we did a couple. 10 Q Right. And so there were a series of strike related or 11 strike support demonstrations at Black Friday 2012? 12 A Yes, sir. 13 Q And you participated in some of those? 14 A Yes, sir. 15 Q At that time though you weren't on strike because you were 16 working out that open door issue? 17 A Yes, sir. 18 Q Okay. So at the time that you went on strike in June of 19 2013, I take it you were striking in solidarity with the folks 20 who had been on strike back Black Friday 2012? 1590 21 A Yes, sir. RT 5564:24-5565:21 At the time she participated in the Ride for Respect work stoppage/strike, Sherman knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Sherman’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose 2450 testimony is reflected in the record. R. 272 at n. VIII.B.5 (Non-Testifying AD Stip) 7 Q And why did you join OUR Walmart? 8 A Because I wanted more respect and better the -- for the 9 employees to get more hours, get better pay, be treated better. 10 Q Okay. And after you became a member of OUR Walmart, did 11 you do anything that would alert the employer to your 12 membership? 13 A Yes, I went on one -- oh, what was it -- I think an -- I 14 went one action and then I did wear the bracelet. And then I 15 went on that -- the Ride for Respect. 8 Q Now, you mentioned that you got involved with OUR Walmart 9 sometime in 2012, right? 10 A Yes, sir. 11 Q And so you knew about the Black Friday 2012 national day of 12 action and the strikes? 286 13 A Yes, sir.
Page 6
RT 3161:7-15 and 3172:8-13
8632385
ADs Who Participated in IWS Series for the First Time During the SWSS Knew of the UFCW IWS Campaign and Made Common Cause With It (Tab B)
Last Name
First Name
State
City
Stinnett
Amy
CA
Placerville
Stonehouse
Shana
WA
Bellevue
Uvalle
Esmeralda
WA
Mt. Vernon
Vandell
Ronnie
IL
Chicago (Chatham)
Vetato
Trina
KY
Paducah
Store No.
Testimony/Stipulation
At the time she participated in the Ride for Respect work stoppage/strike, Stinnett knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Stinnett’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose 2418 testimony is reflected in the record. 16 Q Okay. And during your -- during the Ride for Respect 17 strike you rode on the bus with other associates from the 18 Seattle area, right? 19 A Yes. 20 Q And many of them had participated in the Black Friday 2012 21 strikes, right? 22 A Correct. 23 Q And you knew that based upon your conversations with them? 24 A Yes. 25 Q And also your conversations with Alyssa and Jeremy? 1 A Yes. 2 Q All right. And I take it you wanted to be supportive of 3 and join with them in continuing the calls for change at Wal4 Mart that had started back in 2012? 3098 5 A Yes. At the time she participated in the Ride for Respect work stoppage/strike, Uvalle knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Uvalle’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose testimony is 2596 reflected in the record. At the time she participated in the Ride for Respect work stoppage/strike, Vandell knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Vandell’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose 5781 testimony is reflected in the record. At the time she participated in the Ride for Respect work stoppage/strike, Vetato knew that some of the other Ride for Respect 2013 strikers had gone on strike before in 2012. Vetato’s knowledge of the Black Friday 2012 strike was similar in nature to that of other similar Ride for Respect strikers whose testimony is 431 reflected in the record.
Page 7
Citation
R. 272 at n. XVII.D.4 (Non-Testifying AD Stip)
4002:16-4003:5
R. 272 at n. XI.B.5 (Non-Testifying AD Stip)
R. 272 at n. VI.C.6 (Non-Testifying AD Stip)
R. 272 at n. XX (Non-Testifying AD Stip)
8632385
ADs Who Participated in IWS Series for the First Time During the SWSS Knew of the UFCW IWS Campaign and Made Common Cause With It (Tab B)
Last Name
Williams
First Name
Mariah
State
LA
City
Baker
Store No.
Testimony/Stipulation
10 Q Ms. Williams, when you went on strike on May 31st for the 11 Ride for Respect, you knew about previous strikes that UFCW and 12 OUR Walmart had conducted? 13 A I've heard about them. Seen them. 14 Q You heard about them and seen them? 15 A Yes, they were on YouTube. 16 Q And that was back in October of 2012 and November of 2012? 17 A You're talking about when I saw the previous strikes? 18 Q Yes. 19 A Yes. 20 Q And you knew that the OUR Walmart supporters were doing 21 that through the "Making Change at Walmart" campaign, 22 coordinating that? 23 A Well, I really didn't know who was coordinating it. I mean 24 Miss Janet was talking to me about it, so I just wanted to see 25 what they were about before I put myself in a situation. 1 Q And you know now that they were coordinated by the UFCW? 2 A Yes. 3 Q And you decided to join them to continue the call for the 4 change that they were trying to make at Walmart? 5 A Yes, make a better Walmart. 6 Q And that was the same message when you went on the Ride for 7 Respect, as well, right? 1102 8 A Yes.
Citation
RT 4346:10-4347:8
16 Q So what'd you learn -- come to learn that this 16 17 organization was? 18 A For respect, for our associates, better hours. I can't 19 remember what it is. 20 Q That's okay, ma'am. Just whatever your understanding is. 21 Okay. So you understood they were for respect and better 22 hours?
Williams
Debra
WA
Mt. Vernon
16 Q And I take it you talked a lot during your three or four17 day trip down to Arkansas? 18 A Yes. 19 Q And you were aware that a number of them had been on 20 strike previously, the prior Black Friday? 2596 21 A Yes.
Page 8
RT 4020:16-22 and 4051:16-21
8632385
ADs Who Participated in IWS Series for the First Time During the SWSS Knew of the UFCW IWS Campaign and Made Common Cause With It (Tab B)
Last Name
Yates
First Name
Tavarus
State
LA
City
Baker
Store No.
Testimony/Stipulation
10 Q I understand that you didn't go on strike, but you wanted 11 to change Walmart for the better, back then on Black Friday, 12 2012? 13 A I get what you're saying, saying I want to change Walmart 14 for the better, but it seems like you trying to ask me why did I 15 go in to work on Black Friday. 16 Q No, I apologize if I was too -- I probably asked a bad or 17 confusing question; that wasn't my intent. It wasn't about 18 going in or not going in to work. 19 In November, 2012, you wanted to change Walmart? 20 A Sir, did I want to change Walmart? 21 Q Yes. 22 A I still do want to change Walmart for the better for 23 everybody. 24 Q And that was something that was the same from November, 25 2012, all the way through June, 2013, that you wanted to change 1 Walmart for the better? 2 A Unless I joined the organization -- when I signed and 3 joined, that's when I wanted to change Walmart for the better. 4 I still do now. 5 Q And you wanted that when you signed the strike letters back 6 in November of 2012, right? 1102 7 A Yes, sir.
Page 9
Citation
RT 4395:10-4396:7
8632385
Tab C
UFCW Chose Strike Tactic (Tab C) Citation
RT 2117:13-2118:17 (Dehlendorf) and R. 34 at 3
R. 70 and RT 2181:3-2184:3 (Dehlendorf) R. 94
R. 96 and RT 2329:7-22
RT 2452:22-2457:8 (Blair) and R. 135
R. 136 R. 197
Quote Early October 2012 "test runs" established work stoppages as "a strategy that workers could deploy without it being a guarantee of losing their jobs. And so [MCAW/OWM] would keep it on our playbook." In a pre-BF 2012 MCAW email, Dehlendorf stated that "[W]e are also planning to have strikes start the week after the election so that we have strikes start popping and put the issue back on everyone's radar. We could even consider having a group of workers go out for more than just one day." Dehlendorf testified that she and her team had "advised that [this timing of the strikes] would be a strategic thing to do." Pre-BF 2013 Dehlendorf email attaching "strike pledge" to “build up to your strikes,” among other materials. Pre-BF 2013 Dehlendorf email notes that "[b]y keeping the strike tactic alive we are showing community supporters that workers need them to come out in full force on Black Friday and beyond to make it clear to Walmart that the movement to change them is growing and will not relent until they change." Pre-BF 2013 Dehlendorf email congratulates MCAW staff members on "pulling of strikes this week." Pre-BF 2012 Morrissette email discussing “strike” options and listing pros and cons of various dates and locations for work stoppages where associates were "committed." Morrissette noted, for example, that at certain locations "we feel we can strike that store at any time." Blair explains the email also discusses a "blitz" which "refer[red] to them contacting Wal-Mart employees and asking them to strike." Pre-BF 2012 Morrissette email discussing plans for BF 2012 work stoppages, suggesting that "we should have any worker not scheduled Thursday strike on Wednesday. We could use these workers for other things." Pre-BF 2012 email chain between Dehlendorf and some of her MCAW organizing team, discussing "when and where we do early strikes."
8635387
Tab D
UFCW Targeted and Recruited Associates to Engage in IWS (Tab D) Last Name
First Name
State
City
Store No.
Citation
Dehlendorf Diaz Fabela
Andrea Peter Silvia
N/A N/A N/A
N/A N/A N/A
N/A N/A N/A
Blair
Kevin
N/A
N/A
N/A
RT 2098:9-2100:6; RT 2180:14-2182:3 and R. 70; RT 2189:14-2190:2 and R. 71; RT 2191:24-2194:11 and R. 72; RT 2194:12-2197:16 and R. 73; RT 2202:1-12 and Jt. 112; RT 2214:11-2215:16 and R. 75; RT 2217:12-17; RT 2275:20-2276:8 and GC 8; RT 2333:18-2336:6 and Jt.131 R. 210 at 162:13-167:2 and R. 211; R. 210 at 165:4-166:7, 166:20-23 R. 149 at 184:3-8 RT 2447:19-2451:20 and R. 134; RT 2452:22-2457:8 and R. 135; RT 2459:8-2460:9 and R. 138; RT 2468:14-17 and R. 142; RT 2469:15-2471:12 and R. 147
Schlein Hanson Albert UFCW Documents
Eric Alan T N/A
N/A N/A N/A N/A
N/A N/A N/A N/A
N/A N/A N/A N/A
RT 2398:12-2399:16 and R. 4; RT 2412:23-2413:24 and R. 121; RT 2414:3-2417:13 and R. 21; RT 2420:25-2421:15 and R. 123; RT 2429:21-2430:19 and R. 129; R. 104 at 233:7-237:12 and R. 115 R.183 at 123:4-24 RT 2457:14-24 and R. 173; RT 2513:23-2514:10; 2516:18-2519:2 and R. 162 R. 94; R. 136; R. 171; R. 205; R. 233; R. 242; R. 247
Adams Bowers Bravo Callahan Campbell Carr Collins (Andridge) Coulombe Creach Slate Cruz Davis Dobyns Edick Garrett Givens-Thomas Gomez Haluska Hooten Johnson Juanitas Kanger-Born Kapil Lawson Locks McKeown (II)
Javon Marc Raymond Louis Rose Andrea Barbara David Jeanna Evelin Pamela Norma Aubretia Brandon Charmaine Jovani Linda Margaret Vanzell John Marie Pooshan Aaron Patricia Michael
TX TX CA CA IL CA CA MA TX CA CA CA MA LA IL CA IL CA TX CA IL IL KY WA WA
Lancaster Lancaster Richmond Richmond Wheeling San Leandro Placerville Chelmsford Quinlan Pico Rivera Richmond Placerville Chicopee Baker Chicago (Evergreen Park) Lakewood Glenwood Placerville Lancaster Fremont Chicago (Crestwood) Wheeling Stanford Federal Way Federal Way
471 471 3455 3455 1735 5434 2418 2903 4215 2886 3455 2418 5278 1102 5485 2609 5404 2418 471 2989 3601 1735 825 2571 2571
RT 2932:12-2932:21, 2940:21-2942:1, 2963:11-2965:5 RT 3136:25-3137:16, 3146:18-3147:3 RT 831:9-833:8, 847:8-848:11 R. 272 at n. XIX.G (Non-Testifying AD Stip) R. 272 at n. IV.E (Non-Testifying AD Stip) RT 439:8-439:17, 441:2-441:16, 441:19-442:24 RT 776:2-776:21 Jt. 1328 at n. III.9 (Non-Testifying AD Stip) RT 3071:18-3072:23, 3075:5-9 RT 4848:3-4848:21 R. 272 at n. XVIII.E (Non-Testifying AD Stip) RT 473:2-473:24, 490:5-493:22 Jt. 1328 at n. IV.13 (Non-Testifying AD Stip) RT 4457:15-4458:9, RT 6102:17-6105:2, 6106:10-6108:18 RT 4750:4-17 R. 272 at n. I.H (Non-Testifying AD Stip) RT 679:10-680:1 R. 272 at n. XV.F (Non-Testifying AD Stip) R. 272 at n. XVI.F (Non-Testifying AD Stip) R. 272 at n. II.D (Non-Testifying AD Stip) R. 272 at n. III.D (Non-Testifying AD Stip) Jt. 1328 at n. VI.19 (Non-Testifying AD Stip) R. 272 at n. IX.G (Non-Testifying AD Stip) RT 3765:11-3766:11
Page 1
8639568
UFCW Targeted and Recruited Associates to Engage in IWS (Tab D) Last Name
Mixon Pefua Plowe Pritchett Scott Sherman Shove Slowey Smith (IV) Stinnett Stonehouse Uvalle Vandell Williams Williams Yates
First Name
Shawndia Liai Cheryl Anna Patricia Vivian Betty Lawrence John Amy Shana Esmeralda Ronnie Mariah Debra Tavarus
State
LA WA NC IL WA WA WA WA WA CA WA WA IL LA WA LA
City
Baker Federal Way Elizabeth City Chicago (Chatham) Federal Way Bellingham Mt. Vernon Port Angeles Federal Way Placerville Bellevue Mt. Vernon Chicago (Chatham) Baker Mt. Vernon Baker
Store No.
1102 2571 1527 5781 2571 2450 2596 2196 2571 2418 3098 2596 5781 1102 2596 1102
Citation
R. 272 at n. XIV.E (Non-Testifying AD Stip) R. 272 at n. X.E (Non-Testifying AD Stip) Jt. 1328 at n. V.10 (Non-Testifying AD Stip) R. 272 at n. V.E (Non-Testifying AD Stip) RT 3931:8-3932:9 R. 272 at n. VIII.G (Non-Testifying AD Stip) R. 272 at n. XIII.G (Non-Testifying AD Stip) R. 272 at n. VII.G (Non-Testifying AD Stip) R. 272 at n. XII.H (Non-Testifying AD Stip) R. 272 at n. XVII.E (Non-Testifying AD Stip) RT 4000:20-4001:13, 4004:4-22 R. 272 at n. XI.E (Non-Testifying AD Stip) R. 272 at n. VI.E (Non-Testifying AD Stip) RT 4333:17-4334:20 RT 4044:23-4045:9, 4050:11-4050:4 RT 4364:14-23
Page 2
8639568
Tab E
Organization Query Results (Disclosure)
Page 1 of 1
A to Z Index | Site Map | FAQs | DOL Forms | About DOL | Contact Us
July 5, 2015
DOL Home > OLMS > Public Disclosure Home > Search Criteria > Select Report > Detail
Union Reporting History 000-056 FOOD & COMMERCIAL WKRS NATIONAL HEADQUARTERS 1775 K STREET NW WASHINGTON, DC 20006
Show National Headquarters
Below lists all reports filed for this union. Scroll down to see a list of available attachments (including constitution and bylaws filed for that organization. Select All
Date Received
Filing Type
Mar 25, 2015
LM-2
Mar 26, 2014
LM-2
Mar 22, 2013
LM-2
Mar 27, 2012
LM-2
Mar 24, 2011
LM-2
Mar 25, 2010
LM-2
Mar 26, 2009
LM-2
Mar 28, 2008
LM-2
Mar 22, 2007
LM-2
Mar 30, 2006
LM-2
Mar 29, 2005
LM-2
Mar 30, 2004
LM-2
Mar 31, 2003
LM-2
Mar 27, 2002
LM-2
Mar 06, 2001
LM-2
Fiscal Year 2014 Report 2013 Report 2012 Report 2011 Report 2010 Report 2009 Report 2008 Report 2007 Report 2006 Report 2005 Report 2004 Report 2003 Report 2002 Report 2001 Report 2000 Report
Total Assets
Total Liabilities
Total Receipts
Total Disbursements
Total Membership
$203,673,596
$5,115,529
$279,187,175
$326,057,170
1,271,804
$208,470,136
$4,567,854
$301,814,129
$253,877,670
1,274,156
$185,201,672
$5,587,699
$258,426,162
$258,519,770
1,272,313
$182,822,869
$4,943,376
$273,004,024
$295,836,980
1,285,415
$174,867,261
$4,387,117
$270,335,335
$241,821,710
1,291,663
$157,341,257
$4,886,288
$279,693,413
$326,646,607
1,310,474
$166,057,598
$6,535,994
$238,885,674
$223,531,340
1,319,966
$162,238,859
$4,271,852
$247,122,435
$226,429,537
1,310,996
$149,534,747
$4,435,606
$215,614,352
$229,669,328
1,304,061
$127,942,091
$6,988,946
$201,924,005
$176,996,735
1,311,548
$99,802,233
$1,757,971
$222,135,702
$213,884,196
1,338,625
$106,169,024
$2,145,513
$229,790,359
$248,901,306
1,358,723
$176,775,902
$1,814,641
$174,022,952
$178,237,014
1,380,507
$166,657,583
$2,102,279
$179,217,505
$165,549,307
1,385,043
$161,091,734
$1,408,964
$178,216,342
$172,919,422
1,380,722
Attachments Document Type
Filing Year Received Date
File Name
Constitution, Bylaws and Other Attachments
2013
2013 UFCW International Constitution.pdf
2014-03-26 16:19:11.0
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http://kcerds.dol-esa.gov/query/orgReport.do
7/5/2015
Tab F
re
UFCW LM-2
Excerpts UFCW/MCAW 201 -13 Staff Salaries
Tab G
UFCW Planning, Coordination, and Execution Communications (Tab G) Citation Jt. 106 Jt. 107 Jt. 108 Jt. 114 Jt. 116 Jt. 122 Jt. 130 Jt. 131 R. 31 R. 49 R. 59 R. 60 R. 66 R. 67 R. 68 R. 70 R. 71 R. 72 R. 73 R. 74 R. 75 R. 76 R. 78 R. 82 R. 83 R. 86
Citation R. 87 R. 88 R. 91 R. 92 R. 93 R. 94 R. 95 R. 96 R. 97 R. 108 R. 109 R. 110 R. 114 R. 115 R. 116 R. 117 R. 118 R. 119 R. 120 R. 123 R. 126 R. 128 R. 134 R. 135 R. 136 R. 138
Citation R. 142 R. 147 R. 150 R. 157 R. 159 R. 162 R. 167 R. 172 R. 197 R. 198 R. 205 R. 216 R. 230 R. 231 R. 232 R. 233 R. 234 R. 235 R. 236 R. 237 R. 238 R. 239 R. 240 R. 241 R. 242 R. 243
Citation R. 244 R. 245 R. 246 R. 247 R. 248 R. 249 R. 250 R. 251 R. 252 R. 253 R. 254 R. 255 R. 256 R. 257 R. 258 R. 259 R. 274 R. 292 R. 293 R. 295 R. 296 R. 299 R. 301
9004045
Tab H
UFCW Organizers Recruited Associates to Join OURWalmart (Tab H)
Last Name
First Name
State
City
Store No.
Citation
Schlademan
Dan
N/A
N/A
N/A RT 947:8-948:3, 963:18-964:6 RT 2098:9-2099:10 and R. 59; RT 2116:9-2117:6 and R. 46; RT 2129:19-2130:7, Jt. 95, N/A Jt. 96, R. 13; RT 2244:20-2245:11 and R. 79 N/A RT 2468:10-13 and R. 142; R. 210 at 48:18-24, 49:15-19 N/A RT 2420:5-24 and R. 123; RT 2323:23-2324:19 and R. 126
Dehlendorf Blair Schlein
Andrea Kevin Eric
N/A N/A N/A
N/A N/A N/A
Adams Bowers Bravo Callahan Campbell Carr Collins
Javon Marc Raymond Louis Rose Andrea Chris
TX TX CA CA IL CA TX
Lancaster Lancaster Richmond Richmond Wheeling San Leandro Lancaster
471 471 3455 3455 1735 5434 471
RT 2926:3-2927:6, 2928:22-2929:4, 2957:16-2958:22, 2961:19-2962:20 RT 3089:18-3090:11, 3093:11-3094:4, 3134:2-23 RT 828:9-829:23 R. 272 at n. XIX.G (Non-Testifying AD Stip) R. 272 at n. IV.E (Non-Testifying AD Stip) RT 404:23-405:10, 406:16-22 RT 2878:22-2879:11, 2879:24-2880:9, 2900:21-2901:17
Collins (Andridge) Coulombe Creach Slate Cruz Davis Edick Garrett Gauer Gertz Givens-Thomas Gomez Gurule Haluska Harris Hooten Johnson Juanitas Kanger-Born Kapil Lawson Locks
Barbara David Jeanna Evelin Pamela Aubretia Brandon Matt Barbara Charmaine Jovani Cecilia Linda Colby Margaret Vanzell John Marie Pooshan Aaron Patricia
CA MA TX CA CA MA LA CA CO IL CA CA IL TX CA TX CA IL IL KY WA
Placerville Chelmsford Quinlan Pico Rivera Richmond Chicopee Baker Placerville Aurora Chicago (Evergreen Park) Lakewood San Leandro Glenwood Lancaster Placerville Lancaster Fremont Chicago (Crestwood) Wheeling Stanford Federal Way
2418 2903 4215 2886 3455 5278 1102 2418 5334 5485 2609 5434 5404 471 2418 471 2989 3601 1735 825 2571
RT 701:8-702:15, 772:19-773:22 Jt. 1328 at n. III.9 (Non-Testifying AD Stip) RT 3074:25-3075:9 RT 4858:21-4859:22 R. 272 at n. XVIII.E (Non-Testifying AD Stip) Jt. 1328 at n. IV.13 (Non-Testifying AD Stip) RT 4418:5-22, 4458:15-22 RT 379:7-20 Jt. 1328 at n. II.10 (Non-Testifying AD Stip) RT 6038:1-6039:2, 6077:25-6078:24 RT 4748:25-4749:10 RT 306:19-307:10, 337:4-11 R. 272 at n. I.H (Non-Testifying AD Stip) RT 2704:23-2705:9, 2708:24-2709:7, 2813:21-2814:2 RT 671:5-18 R. 272 at n. XV.F (Non-Testifying AD Stip) R. 272 at n. XVI.F (Non-Testifying AD Stip) R. 272 at n. II.D (Non-Testifying AD Stip) R. 272 at n. III.D (Non-Testifying AD Stip) Jt. 1328 at n. VI.19 (Non-Testifying AD Stip) R. 272 at n. IX.G (Non-Testifying AD Stip)
Page 1
8639303
UFCW Organizers Recruited Associates to Join OURWalmart (Tab H)
Last Name Martinez McKeown (II) Mixon Pefua Plowe Pritchett Roberty Scott Sherman Shimmel Shove Slowey Smith (IV) Stinnett Stonehouse Uvalle Vandell Ware Williams Williams
First Name Victoria Michael Shawndia Liai Cheryl Anna Marie-Anne Patricia Vivian Cody Betty Lawrence John Amy Shana Esmeralda Ronnie Dominic Mariah Debra
State CA WA LA WA NC IL FL WA WA TX WA WA WA CA WA WA IL CA LA WA
City Pico Rivera Federal Way Baker Federal Way Elizabeth City Chicago (Chatham) Hialeah Federal Way Bellingham Dallas Mt. Vernon Port Angeles Federal Way Placerville Bellevue Mt. Vernon Chicago (Chatham) San Leandro Baker Mt. Vernon
Store No. 2886 2571 1102 2571 1527 5781 1590 2571 2450 286 2596 2196 2571 2418 3098 2596 5781 5434 1102 2596
Page 2
Citation RT 4939:9-4940:15, 4997:3-25, 4998:14-21 RT 3758:14-3759:7 R. 272 at n. XIV.E (Non-Testifying AD Stip) R. 272 at n. X.E (Non-Testifying AD Stip) Jt. 1328 at n. V.10 (Non-Testifying AD Stip) R. 272 at n. V.E (Non-Testifying AD Stip) RT 5567:14-23. 5568:8-5569:25 RT 3945:7-14 R. 272 at n. VIII.G (Non-Testifying AD Stip) RT 3175:7-13 R. 272 at n. XIII.G (Non-Testifying AD Stip) R. 272 at n. VII.G (Non-Testifying AD Stip) R. 272 at n. XII.H (Non-Testifying AD Stip) R. 272 at n. XVII.E (Non-Testifying AD Stip) RT 3968:8-3969:15 R. 272 at n. XI.E (Non-Testifying AD Stip) R. 272 at n. VI.E (Non-Testifying AD Stip) RT 243:9-19 RT 4331:8-4333:4 RT 4021:23-4022:11, 4048:7-4050:7
8639303
Tab I
UFCW Organizers Conducted Meetings Informing OURWalmart Members of Upcoming IWS and Other Events and Guided Local Planning Efforts (Tab I)
Last Name
Schlademan
First Name
Dan
State
N/A
City
N/A
Store No.
N/A
Citations
RT 880:23-882:16 and GC 5(b); RT 988:5-15, 991:24-992:3, 999:22-1000:11
Dehlendorf Blair
Andrea Kevin
N/A N/A
N/A N/A
N/A N/A
Albert
T
N/A
N/A
N/A
N/A
N/A
N/A
RT 2094:19-2095:1 and GC 3(a); RT 2114:2-16 and R. 46; RT 2148:5-2149:13; RT 2357:82360:20; RT 2180:14-2182:3 and R. 70; RT 2185:20-2187:16 and R. 71; RT 2191:72193:5 and R. 72; RT 2194:12-2197:16 and R. 73; RT 2214:11-2215:16 and R. 75 RT 2456:21-2457:8 and R. 135 RT 2512:22-2513:1, 2516:18-2518:19 and R. 162; RT 2537:25-2538:24 and R. 171; RT 2539:6-2542:8 and R. 271 Jt. 114; Jt. 124; Jt. 131; R. 118; R. 121; R. 123; R. 147; R. 171; R. 197; R. 216; R. 233; R. 237, R. 280-84 and RID 23; R. 285, 285, 287, 288 and RID 25
UFCW Exhibits Adams Brown Callahan Campbell Coulombe Cruz Davis Edick Gertz
Javon Yvette Louis Rose David Evelin Pamela Aubretia Barbara
TX CA CA IL MA CA CA MA CO
Lancaster Placerville Richmond Wheeling Chelmsford Pico Rivera Richmond Chicopee Aurora
471 2418 3455 1735 2903 2886 3455 5278 5334
RT 2932:14-21, 2940:21-2942:1, 2963:11-2966:4 RT 582:4-20, 612:9-613:25 R. 272 at n. XIX.G (Non-Testifying AD Stip) R. 272 at n. IV.E (Non-Testifying AD Stip) Jt. 1328 at n. III.9 (Non-Testifying AD Stip) RT 4857:13-4858:20, , 4848:3-21, 4859:23-4860:17 R. 272 at n. XVIII.E (Non-Testifying AD Stip) Jt. 1328 at n. IV.13 (Non-Testifying AD Stip) Jt. 1328 at n. II.10 (Non-Testifying AD Stip)
Givens-Thomas Haluska Johnson Juanitas Kanger-Born Kapil Lawson
Charmaine Linda Vanzell John Marie Pooshan Aaron
IL IL TX CA IL IL KY
Chicago (Evergreen Park) Glenwood Lancaster Fremont Chicago (Crestwood) Wheeling Stanford
5485 5404 471 2989 3601 1735 825
RT 6039:3-6039:9, 6100:8-6102:2, 6102:17-6105:2, 6106:10-6108:18, 6113:5-6115:4 R. 272 at n. I.H (Non-Testifying AD Stip) R. 272 at n. XV.F (Non-Testifying AD Stip) R. 272 at n. XVI.F (Non-Testifying AD Stip) R. 272 at n. II.D (Non-Testifying AD Stip) R. 272 at n. III.D (Non-Testifying AD Stip) Jt. 1328 at n. VI.19 (Non-Testifying AD Stip)
Locks Mixon Pefua Plowe Pritchett Roberty
Patricia Shawndia Liai Cheryl Anna Marie-Anne
WA LA WA NC IL FL
Federal Way Baker Federal Way Elizabeth City Chicago (Chatham) Hialeah
2571 1102 2571 1527 5781 1590
R. 272 at n. IX.G (Non-Testifying AD Stip) R. 272 at n. XIV.E (Non-Testifying AD Stip) R. 272 at n. X.E (Non-Testifying AD Stip) Jt. 1328 at n. V.10 (Non-Testifying AD Stip) R. 272 at n. V.E (Non-Testifying AD Stip) RT 5543:19-5544:5, 5572:20-5573:3 Page 1
8639442
UFCW Organizers Conducted Meetings Informing OURWalmart Members of Upcoming IWS and Other Events and Guided Local Planning Efforts (Tab I)
Last Name
Sherman Shove Slowey Smith (IV) Stinnett Stonehouse Uvalle Vandell Yates
First Name
Vivian Betty Lawrence John Amy Shana Esmeralda Ronnie Tavarus
State
WA WA WA WA CA WA WA IL LA
City
Bellingham Mt. Vernon Port Angeles Federal Way Placerville Bellevue Mt. Vernon Chicago (Chatham) Baker
Store No.
2450 2596 2196 2571 2418 3098 2596 5781 1102
Citations
R. 272 at n. VIII.G (Non-Testifying AD Stip) R. 272 at n. XIII.G (Non-Testifying AD Stip) R. 272 at n. VII.G (Non-Testifying AD Stip) R. 272 at n. XII.H (Non-Testifying AD Stip) R. 272 at n. XVII.E (Non-Testifying AD Stip) RT 3968:8-23, 4000:20-4001:13 R. 272 at n. XI.E (Non-Testifying AD Stip) R. 272 at n. VI.E (Non-Testifying AD Stip) RT 4364:14-23, 4370:20-24, 4391:4-18
Page 2
8639442
Tab J
Record Cites For Generic ULP Language (Tab J) Citation RT 2940:21‐2941:7 RT 828:22‐829:1, 847:20‐848:3, 855:6‐10, 878:16‐879:2 RT 408:8‐14 RT 714:11‐23, 734:11‐15, 740:4‐12, 769:4‐24 RT 2872:14‐16 RT 3032:25‐3033:3, 3039:5‐7 RT 4807:4‐23, 4812:7‐13, 4827:21‐23, 4837:7‐9, 4930:24‐ 4931:3 RT 6036:11‐17, 6051:19‐24 RT 362:1‐8 RT 2712:21‐2713:9, 2718:20‐2719:7, 2726:1‐10, 2765:14‐ 2766:16, 2791:16‐2692:11, 2849:10‐22 RT 649:12‐20 RT 4957:24‐4958:3, 4966:20‐23 RT 3727:15‐20 RT 5541:21‐24, 5551:19‐24, 5589:4‐6 RT 3919:16‐18 RT 88:13‐21, 99:16‐100:1, 101:4‐9, 144:17‐25, 230:23‐231:3, 209:5‐13 R. 112 R. 184 R. 185 R. 202 R. 203
Witness Name Javon Adams Raymond Bravo Andrea Carr Barbara Collins Chris Collins Jeanna Creach‐Slate Evelin Cruz Charmaine Givens‐Thomas Cecilia Gurule Colby Harris Margaret Hooten Victoria Martinez Michael McKeown Marie Roberty Pat Scott Dominic Ware N/A N/A N/A N/A N/A
9003872
Tab K
UFCW Organizers Distributed, Collected, and Submitted Signed Walkout and Walkback Letters for Work Stoppage Participants (Tab K) Last Name
First Name
State
City
Schlademan Dehlendorf Diaz Hanson UFCW Documents
Dan Andrea Peter Alan N/A
N/A N/A N/A N/A N/A
N/A N/A N/A N/A N/A
Adams
Javon
TX
Lancaster
Bowers Bravo Brown Callahan Campbell Carr Collins Collins (Andridge) Coulombe Creach Slate
Marc Raymond Yvette Louis Rose Andrea Chris Barbara David Jeanna
TX CA CA CA IL CA TX CA MA TX
Lancaster Richmond Placerville Richmond Wheeling San Leandro Lancaster Placerville Chelmsford Quinlan
Cruz Davis Dobyns Edick Garrett Gauer Gilbert Givens-Thomas Gomez Gurule Haluska Hooten Johnson Juanitas
Evelin Pamela Norma Aubretia Brandon Matt Sara Charmaine Jovani Cecilia Linda Margaret Vanzell John
CA CA CA MA LA CA WA IL CA CA IL CA TX CA
Pico Rivera Richmond Placerville Chicopee Baker Placerville Federal Way Chicago (Evergreen Park) Lakewood San Leandro Glenwood Placerville Lancaster Fremont
Store No.
N/A N/A N/A N/A N/A
Citation
RT 968:8-12 RT 2210:17-2211:6, R. 4(a), R. 4 at 6-9 R. 210 at 164:15-165:3 R. 183 at 88:5-89:15 R. 172; R. 205; R. 230; R.240; R.242; R. 246
471 RT 2930:22-2932:4, 2942:14-2943:1, 2947:14-2948:13, 2962:21-2963:10, RT 3094:16-3096:24, 3099:24-3101:1, 3103:17-3105:21, 3111:12-3112:6, 471 3120:22-3122:6, 3124:14-3125:13, 3136:2-24 3455 RT 833:11-835:12, 837:19-838:21, 842:10-843:10 2418 RT 587:3-588:25, 598:18-599:24, 607:19-608:5, 619:6-620:2 3455 R. 272 at n. XIX.G (Non-Testifying AD Stip) 1735 R. 272 at n. IV.E (Non-Testifying AD Stip) 5434 RT 411:9-412:19, 413:11-15, 415:18-416:3, 447:14-448:11 471 RT 2885:2-2886:4, 2905:22-2906:25 2418 RT 736:1-21, 771:10-772:18 2903 Jt. 1328 at n. III.9 (Non-Testifying AD Stip) 4215 RT 3035:25-3036:19, 3045:13-3046:14 RT 4805:13-4806:16, 4809:4-13, 4809:4-13, 4811:1-17, 4815:19-4817:20, 2886 4825:13-4827:6, 4830:9-4831:8, 4852:9-4853:2, 4854:3-4855:19 3455 R. 272 at n. XVIII.E (Non-Testifying AD Stip) 2418 RT 477:14-478:1, 479:18-480:11, 498:17-499:7 5278 Jt. 1328 at n. IV.13 (Non-Testifying AD Stip) 1102 RT 4419:12-4420:19, 4432:4-4433:16, 4459:12-25 2418 RT 380:7-381:19, 383:15-384:11, 391:7-392:12 2571 RT 3821:22-3823:6, 3853:15-18 5485 RT 6044:12-6045:1, 6056:4-21, 6064:10-6065:8, 6118:2-14, 6145:1-13 2609 RT 4750:23-4751:23, 4758:5-4759:13, 4759:18-4760:3 5434 RT 309:21-310:8 5404 R. 272 at n. I.H (Non-Testifying AD Stip) 2418 RT 678:8-17, 687:11-20 471 R. 272 at n. XV.F (Non-Testifying AD Stip) 2989 R. 272 at n. XVI.F (Non-Testifying AD Stip) Page 1
8639662
UFCW Organizers Distributed, Collected, and Submitted Signed Walkout and Walkback Letters for Work Stoppage Participants (Tab K) Last Name
Kanger-Born Kapil Lawson Locks Martinez McKeown (II) Mixon Pefua Plowe Pritchett Roberty Scott Sherman Shimmel Shove Slowey Smith (IV) Stinnett Stonehouse Uvalle Vandell Ware Williams Williams Yates
First Name
Marie Pooshan Aaron Patricia Victoria Michael Shawndia Liai Cheryl Anna Marie-Anne Patricia Vivian Cody Betty Lawrence John Amy Shana Esmeralda Ronnie Dominic Mariah Debra Tavarus
State
IL IL KY WA CA WA LA WA NC IL FL WA WA TX WA WA WA CA WA WA IL CA LA WA LA
City
Chicago (Crestwood) Wheeling Stanford Federal Way Pico Rivera Federal Way Baker Federal Way Elizabeth City Chicago (Chatham) Hialeah Federal Way Bellingham Dallas Mt. Vernon Port Angeles Federal Way Placerville Bellevue Mt. Vernon Chicago (Chatham) San Leandro Baker Mt. Vernon Baker
Store No.
Citation
3601 1735 825 2571 2886 2571 1102 2571 1527 5781 1590 2571 2450 286 2596 2196 2571 2418 3098 2596 5781 5434 1102 2596 1102
R. 272 at n. II.D (Non-Testifying AD Stip) R. 272 at n. III.D (Non-Testifying AD Stip) Jt. 1328 at n. VI.19 (Non-Testifying AD Stip) R. 272 at n. IX.G (Non-Testifying AD Stip) RT 4952:23-4953:3, 4999:10-20 RT 3766:12-22 R. 272 at n. XIV.E (Non-Testifying AD Stip) R. 272 at n. X.E (Non-Testifying AD Stip) Jt. 1328 at n. V.10 (Non-Testifying AD Stip) R. 272 at n. V.E (Non-Testifying AD Stip) RT 5548:18-5549:19, 5565:18-25 RT 3903:5-17, 3923:1-3924:4 R. 272 at n. VIII.G (Non-Testifying AD Stip) RT 3165:24-3165:8 R. 272 at n. XIII.G (Non-Testifying AD Stip) R. 272 at n. VII.G (Non-Testifying AD Stip) R. 272 at n. XII.H (Non-Testifying AD Stip) R. 272 at n. XVII.E (Non-Testifying AD Stip) RT 3973:11-3974:19 R. 272 at n. XI.E (Non-Testifying AD Stip) R. 272 at n. VI.E (Non-Testifying AD Stip) RT 241:19-242:10 RT 4334:21-4335:5, 4337:24-4338:14 RT 4025:16-4026:4 RT 4365:24-4366:8
Page 2
8639662
Tab L
UFCW Organizers Managed and Directed All OURWalmart Activities (Tab L) Citation RT 2094:3-7 and R. 3(a) RT 2190:5-19 RT 2195:6-2197:16 and R. 73 RT 2211:16-2212:3 R. 45 at 113:8-19, 125:12-21 RT 947:8-948:3 RT 999:22-1000:7 RT 2403:6-15 and R. 119 RT 2428:18-2430:19 and R. 129 RT 2413:25-2417:13 and R. 21 R. 48 at 3-4 RT 2556:3-13 Jt. 105 R. 46 R. 110 R. 120 R. 121
Witness Name Andrea Dehlendorf Andrea Dehlendorf Andrea Dehlendorf Andrea Dehlendorf Andrea Dehlendorf Dan Schlademan Dan Schlademan Eric Schlein Eric Schlein Eric Schlein Eric Schlein Angela Williamson N/A N/A N/A N/A N/A
9004135
Tab M
UFCW Organizers Planned, Coordinated, Conducted, and Participated in Work Stoppages (Tab M)
Issue Picked specific locations, dates, and times for the work stoppages
General Admission re Topics R. 131 at 67:4-12 (Blair); R. 45 at 93:19-94:3 (Dehlendorf); R. 210 at 48:9-17, 175:12-24 (Diaz); R. 149 at 98:13-20, 121:10-14 (Fabela); R. 183 at 93:5-14 (Hanson); RT 972:22-976:5 and R. 30; RT 1006:6-10 (Schlademan); R. 104 at 96:9-16 (Schlein)
Wall Street Week 2012 (Citation) RT 2504:19-2506:10 (Albert); RT 2134:112135:16; RT 2138:20-2139:20 and Jt. 105; RT 6162:23-6162:20; R. 45 at 155:13-19 (Dehlendorf); R. 149 at 182:4-183:10(Fabela); RT 998:22-999:21 (Schlademan); RT 2556:32557:6 (Williamson)
Black Friday 2012 (Citation) RT 2504:19-2506:10 (Albert); RT 2452:23-2454:7 and R. 135; 2457:9-20 and R. 136 (Blair); RT 2182:11-21 and R. 70; R. 45 at 155:13-19 (Dehlendorf); R. 149 at 182:4-183:10(Fabela); R. 70 at 1; R. 135; RT 998:22-999:21 (Schlademan); R. 197; R. 242; R. 104 at 66:9-67:11 (Schlein); RT 2556:3-2557:6 (Williamson)
2
Picked demonstration meeting locations and staging areas
RT 924:2-19, 943:14-944:12; R. 45 at 93:19-94:3 (Dehlendorf); R. 123
R. 45 at 153:13-1 (Dehlendorf); R. 183 at 93:15-17 (Hanson); R. 190; R. 231; R. 232
R. 45 at 153:13-1 (Dehlendorf); R. 104 at 73:1-7 RT 2519:3-24 and R. 165 (Albert); Jt. 124; R. 32; R. 104 at 231:17-232:23 (Schlein); R. 114; R. (Schlein); Jt. 117; R. 136; R. 234; R. 235; R. 239 R. 33; R. 132; R. 157; R. 167; R. 243 128
3
Disseminated work stoppage and demonstration logistics information to participants through UFCW meetings, telephone, and UFCW social media platforms
R. 131 at 66:9-13 (Blair); RT 2094:3-7 and GC. 3(a) at R. 45 at 162:1-164:3 (Dehlendorf); Jt. 105; RT R. 45 at 162:1-164:3 (Dehlendorf); RT 999:224; RT 2125:5-2127:3; RT 2211:16-2212:3; R. 45 at 999:22-1000:7 (Schlademan) 1000:7 (Schlademan); R. 197 99:11-100:15, 113:8-19 (Dehlendorf); R. 149 at 188:7189:3 (Fabela); 946:12-948:3 (Schlademan); RT 2413:25-2417:13 and R. 104 at 43:12-44:4, 45:1447:20, 52:16-53:23, 62:9-21, 86:24-88:9, 92:8-95:5, 99:3-100:10 (Schlein); R. 48 at 3-4; R. 123
4 5
Told work stoppage participants what to wear Developed and disseminated all work stoppage and demonstration messaging and told work stoppage participants what to say (e.g., speeches, chants)
RT 2134:11-2135:7 (Dehlendorf) R. 190; R. 232 Jt. 117; R. 117 RT 2519:3-24 and R. 165 (Albert) RT 2349:5-23 and R.99(b) (Dehlendorf);RT 945:22-25 R. 5 and RT 2146:9-2147:3; RT 2176:4Jt. 117; R. 4, R. 4(a) and RT 2208:17-2210:16, RT RT 2288:21-24 (Dehlendorf); R. 183 at 87:9(Schlademan) 2177:16 and R. 68; (Dehlendorf); RT 2409:18- 2208:4-2209:10 and R. 4(a); RT 2240:8-22 and R. 91:20 (Hanson); R. 25 24; RT 2413:25-2414:15 and R. 121; R. 6 78 (Dehlendorf); R. 26; R. 238; R. 255
6
Identified, solicited, and coordinated with previously- R. 149 at 121:15-21 (Fabela); R. 183 at 93:18-21 identified ally, affiliate, and activist groups (Hanson); RT. 878:16-879:2, 891:3-16, 892:11-896:14, RT 2202:13-2203:21 and Jt. 113 (Dehlendorf); 902:2-13, 917:18-918:3; RT 940:14-941:1 and R. 24; RT R.149 at 147:15-149:4 (Fabela); R. 232 949:4-950:8 (Schlademan); R. 104 at 64:21-65:6 (Schlein)
7 8
Arranged for entertainment Contacted media and coordinated coverage/interviews
9
Created and disseminated press releases
1
10 Created and disseminated social media coverage
11 Decided on the appropriate media “visuals” for demonstrations 12 Provided signs, flyers, scripts, chants, bullhorns, banners, and the Dodge nitro van
13 Coordinated and paid for transportation for participating associates and demonstrators
Jt. 117; R. 198; R. 235; R. 236 RT 2144:7-2145:7 and R. 63; RT 2350:16-2351:12 and RT 2163:21-2164:13 and Jt. 107; RT 2170:6- RT 2219:6-2220:5 and R. 76 (Dehlendorf); R. 135 R. 99(b); RT 2353:25-2354:16 and Jt. 133); R. 45 at 2172:22 and R. 66 (Dehlendorf); Jt. 106; R. 125:12-21 (Dehlendorf); RT 845:9-12, 888:22-889:7, 231; R. 251 930:14-931:24, 901:15-902:1 (Schlademan); Jt. 116; R. 249 R. 45 at 125:12-21 (Dehlendorf); RT 968:23-969:13 RT 2156:17-2161:15 and Jt. 104(a)-(c); RT R. 235 and Jt. 87 (Schlademan); R. 104 at 99:3-100:10 2161:18-2162:7 and Jt. 106; RT 2173:20(Schlein) 2174:2 and R. 67; Jt. 105; Jt. 106; R. 6; R. 116; R. 231; R. 251 R. 45 at 99:11-100:15, 113:8-19, 125:12-21 R. 45 at 162:1-164:3 (Dehlendorf); RT (Dehlendorf); RT 918:4-919:4, 946:12-948:3 R. 45 at 162:1-164:3 (Dehlendorf); R. 104 at (Schlademan); R. 13 at 2; R. 123 43:12-44:4 (Schlein); Jt. 105
RT 2095:20-25; RT 2131:20-2132:22 and R. 16; 2141:1- Jt. 108 22 and R. 62 (Dehlendorf); RT 2146:9-2147:3 and R. 5; R. 183 at 94:24-95:2 (Hanson); RT 946:1-4, 952:9953:1 , 10047-1005:6 (Schlademan) RT 2145:8-2146:2 and R. 63; R. 45 at 101:18-21 RT 2148:5-2149:3 (Dehlendorf); R. 190, RT (Dehlendorf); R. 183 at 93:22-24 (Hanson); RT 926:8- 926:8-10, RT 943:3-6 (Schlademan); R. 250 25 (Schlademan)
Black Friday 2013 (Citation) RT 2504:19-2506:10; RT 2545:25-2546:9 and R.172 (Albert); RT 2296:3-12 and R. 89; 2302:14-2303:4 and R. 91 (Dehlendorf); R. 149 at 182:4-183:10(Fabela); R. 128
RT 2278:9-25 and R. 85; RT 2279:20-2280:5 Jt. 130; R. 46 and R. 85; RT 2303:22-2304:24 and R. 92; R. 45 at 176:15-177:17 (Dehlendorf); RT 999:221000:7 (Schlademan); R. 104 at 76:5-77:18 (Schlein); R. 120; R. 121; R. 157
R. 172 RT 2316:9-2317:3 and R. 94 (Dehlendorf); R. 247
RT 2273:22-2274:18 and Jt. 124 (Dehlendorf); R.149 at 147:15-149:4 (Fabela); Jt. 130; R. RT 2487:22-2488:5 and R.157; R.149 at 147:15- 94 149:4 (Fabela); RT 951:16 and R. 25; RT 955:17 956:4 and R. 27 (Schlademan); RT 2402:8-15 and R. 118 (Schlein); R. 241; R. 243 Jt. 124; R. 167 R. 171 R. 131 at 133:3-11 (Blair); Jt. 122; R. 87; R. 243 R. 104 at 234:13-24 (Schlein); Jt. 126; Jt. 127
RT 2264:17-23 and Jt. 87; RT 2286:5-10 and Jt. RT 2328:10-2329:6 and Jt. 126 122; (Dehlendorf) (Dehlendorf); R. 104 at 85:15-86:16 (Schlein); Jt. 127; R. 247
R. 45 at 176:15-177:17 (Dehlendorf); 2403:7- R. 104 at 85:15-86:16 (Schlein); Jt. 130; R. 2404:11 and R. 119; RT 2406:20-2407:19 and 172; R. 247 R. 120; R. 104 at 76:5-77:18 (Schlein); R. 87; R. 119; R. 120; R. 121 RT 2201:9-25 and Jt. 111; 2224:6-2224:12 and Jt. R. 87, R. 88, R. 167 117 (Dehlendorf); Jt. 122; R. 198 RT 2167:9-2169:2 and Jt. 108 (Dehlendorf); Jt. RT 2519:3-24 and R. 165 (Albert); R. 25 at 2-3; R. 104 at 229:20-230:15 (Schlein); R. 94; R. 117; R. 26; R. 117; R. 235; R. 237 R. 167 172
R. 190
Jt. 117; R. 136; R. 198; R. 235; R. 238; R. 239
RT 2519:3-2521:2 and R. 165 (Albert); RT R. 114; R. 128; R. 172 2274:19-2275:19 and Jt. 124 (Dehlendorf); RT 878:16-879:2, 888:22-889:19, 943:9-6, 1002:916 (Schlademan); R. 118 RT 2519:3-24 and R. 165 (Albert); R. 167 R. 172
RT 945:3-8 (Schlademan); R. 104 at 100:17-104:13
RT 945:3-8 (Schlademan)
RT 945:3-8 (Schlademan)
RT 945:3-8 (Schlademan)
RT 945:3-8 (Schlademan); R. 280-84
RT 946:5-8 (Schlademan)
R. 232
Jt. 177; R. 70 at 2
RT 2508:24-2509:17 (Albert); R. 167
RT 2508:24-2509:17 (Albert); R. 172
14 Determined the on-site IWS event plan of action 15 Trained/practiced with work-stoppage participants and demonstrators 16 Served as or designated a point person to direct onsite activity and liaise with police and store management
R.149 at 147:15-149:4 (Fabela); R. 104 at 62:2263:13, 85:4-14 (Schlein); RT 953:16-954:15 and R. 26; RT 955:17-956:4 and R. 27 (Schlademan); Jt. 117; R. 136; R. 197; R. 234; R. 236; R. 242
Shareholders Week (Citation) RT 2504:19-2506:10; RT 2525:4-22 and R. 167 (Albert); RT 2490:5-20 and R.157; R. 149 at 182:4-183:10 (Fabela); RT 998:22-999:21 (Schlademan); R. 162
Page 1
RT 943:3-6 (Schlademan); RT 2963:11-2964:7 (Adams)
8636567
UFCW Organizers Planned, Coordinated, Conducted, and Participated in Work Stoppages (Tab M)
Issue 17 Provided “crowd control” marshals (red hats)
General Admission re Topics
Wall Street Week 2012 (Citation)
Black Friday 2012 (Citation)
18 Created, distributed, collected, and delivered UFCW “Walk Out” and “Walk Back” letters for all participants 19 Orchestrated Walk-out/Walk-back delegations
See EN17
See EN17
See EN17
RT 2500:25-2501:13 (Fabela); RT 1005:7-1006:5 (Schlademan)
R. 109; R. 232
R. 149 at 220:13-222:4 (Fabela); R. 104 at 65:7- RT 2519:3-2521:2 and R. 165 (Albert); R. 131 at R. 104 at 75:8-76:4, 234:5-12, 235:7-23 18, 73:20-75:7 (Schlein); Jt. 117; R. 138; R. 150; R. 130:16-131:19 (Blair); RT 2277:4-2278:8 and Jt. (Schlein); R. 172; R. 205; R. 216 242 123 (Dehlendorf); R. 210 at 162:19-164:13 (Diaz); R. 183 at 89:16-91:20 (Hanson); RT 2557:7-18 (Williamson); R. 112, R. 168; R. 177; R. 184; R. 185; R. 203; R. 244
Page 2
Shareholders Week (Citation) Black Friday 2013 (Citation) RT 2282:20-2285:13 and R. 86 (Dehlendorf); R. R. 172 167 See EN17 See EN17
8636567
Tab N
Work Stoppage Demonstration Disruption Evidence (Tab N) Date
City
10/4/2012 Pico Rivera 10/9/2012 10/9/2012 10/9/2012 10/10/2012 10/10/2012 10/10/2012
Laurel Ennis Lancaster Bentonville Bentonville Rogers
State
CA MD TX TX AR AR AR
10/10/2012 Chicago
IL
10/10/2012 Dearborn
MI
11/15/2012 Federal Way
WA
11/16/2012 Lancaster
TX
11/21/2012 Chicago
IL
11/22/2012 11/22/2012 11/22/2012 11/22/2012 11/22/2012 11/22/2012 11/23/2012
CA FL FL KY TX TX CA
San Leandro Miami Gardens Orlando Louisville Balch Springs Dallas Paramount
Store #
Citation
WSW 2012 R. 21, 64(a), 64(b), 64(c), 64(d), 64(e), 64(f), 64(g), 2886 64(h), 64(i), and 65 1985 R. 1985 VID1 and VID2 286 R. 286 VID1 (Clip 1) and (Clip 2) 471 RT 3207:21-3208:20, 3211:16-3212:15 (Stewart) HO R. 3 (Clip 1) 100 R. 69 and 219 1 R. 1 VID1 and 3 (Clip 4) RT 6448:16-21, 6449:19-6450:19, 6452:2-14 5647 (Melsness); and R. 5647 Photo1 4383 R. 4383 VID1 Black Friday 2012 RT 4070:24-4071:2, 4071:12-16, (Fewell); R. 2571 PS4, 2571 VID1, VID4, VID8, and VID9 471 JT EX 290(a) RT 6457:23-6458:9, 6459:9- 20 (Melsness); and R. 5647 5647 VID1 5434 RT 2019:25-2020:23, 2021:11-2023:19 (Tamayo) 3397 R. 200, 201, and 3397 VID1 908 R. 177 5417 R. 5417 VID1 1118 R. 140 949 R. 141 2110 R. 2110 VID1 and VID2 RT 1829:25-1830:4, 1834:19-1835:2 (Hileman); R. 3 2418 (Clip 6), and (Clip 7) RT 1544:8-16, 1545:22-1546:21 (Wainana); R. 77(a), 3455 77(b), 77(c), 77(d), 220, and 3455 Photo1
11/23/2012 Placerville
CA
11/23/2012 Richmond
CA
11/23/2012 San Leandro
CA
5434
RT 2033:16-22 (Tamayo), R. 3 (Clip 5); and 5434 VID1
11/23/2012 Lakewood 11/23/2012 Orlando
CO FL
2125 3782
11/23/2012 Orlando
FL
4588
11/23/2012 Chicago
IL
5402
11/23/2012 Chicago
IL
5781
11/23/2012 Forrest Park
IL
2204
11/23/2012 Glenwood
IL
5404
11/23/2012 11/23/2012 11/23/2012 11/23/2012 11/23/2012
MD MD MI MN PA
5129 1875 4383 5437 5891
R. 2125Photo1 and 2125 VID1 R. 3782 VID1 RT 6542:12-6543:1, 6546:4-19 (Wilson); R. 177, and 4588 VID1 R. 5402 VID1 RT 6366:15-6367:6, 6369:7-14, 6371:4-16, 6373:3-20 (Richard); R. 5781 VID 1 and VID2 RT 6427:17-22, 6430:3-25, 6434:5-15 (Logan); and R. 2204 VID1 RT 6518:22-6519:7, 6519:23-6520:15, 6523:11-22, 6525:15-21 (Black); and R. 5404 VID1 R. 5129 VID1 and VID2 R. 1875 VID1 and VID2 R. 4383 VID2 and R. 4383 VID3 R. 5437 VID1 R. 5891 VID1
Landover Hills Severn Dearborn St. Paul Philadelphia
Page 1
8638826
Work Stoppage Demonstration Disruption Evidence (Tab N) Date
City
State
Store #
Citation
11/23/2012 Port Angeles
WA
2196
RT 4129:12-4130:2 (Carson); R. 228; R. 229 and 229(a)
11/23/2012 Renton 11/23/2012 Milwaukee
WA WI
2516 2452
11/23/2012 Milwaukee
WI
2828
CA FL FL CA CA ID IL NM
3455 1590 908 1805 2110 2508 5781 821
R. 2516 VID1 and VID2 R. 2452 VID1 R. 2828 Photo1, 2828 Photo2, 2828 Photo3, and 2828 VID1 SW 2013 RT 1538:5-1539:4, 1540:20-1541:5 (Wainana) R. 184 R. 202 R. 168(b) and 1805 VID1 R. 168(a) R. 2508 Photo1, 2571 MM1, and 2571 MM1(a) RT 6302:18-6303:12 (Kwak) and R. 112 R. 168
5/30/2013 Federal Way
WA
2571
5/31/2013 5/31/2013 6/1/2013 6/1/2013
CO LA AR KY
2125 1102 5 5417
6/1/2013 Kirkwood
MO
2694
6/1/2013 Oklahoma City 6/1/2013 Lancaster 6/3/2013 Bentonville
OK TX AR
564 471 HO
6/7/2013 Chicago
IL
5647
6/7/2013 Bowie
MD
1893
CA CA CA WA
2110 2609 3086 2571
11/13/2013 Chicago
IL
5781
11/16/2013 11/18/2013 11/26/2013 11/26/2013 11/29/2013
TX OH MD MD CA
471 3749 5228 5129 1988
11/29/2013 Chicago
IL
5645
11/29/2013 11/29/2013 11/29/2013 11/29/2013
MA MN TX WA
2683 5437 1118 5939
5/27/2013 5/28/2013 5/29/2013 5/30/2013 5/30/2013 5/30/2013 5/30/2013 5/30/2013
11/6/2013 11/7/2013 11/7/2013 11/12/2013
Richmond Hialeah Orlando La Quinta Paramount Boise Chicago Clovis
Lakewood Baker Conway Louisville
Paramount Lakewood Los Angeles Federal Way
Lancaster Cincinnati Columbia Landover Hills Roseville
Hadley St. Paul Balch Springs Bellevue
RT 4074:13-4075:3 (Fewell); R. 2571 VID2 and VID3 R. 2125 VID2 R. 185 R. 203 R. 5417 CG1 and CG1(a) R. CG1, CG1(a), CG2, 2694 CG2(a), 2694 CG3, and CG3(a) RT 2536:6-2537:8 (Albert); and R. 169 R. 471 VID1 R. 3 (Clip 8) RT 6463:6-6464:22, 6471:7-18 (Melsness); R. 5647 VID2 R. 1893 VID1, VID2, VID3, VID4 BF 2013 R. 2110 VID3 R. 2609 VID1 R. 3086 VID1 R. 2571 VID5, VID6, and VID7 RT 6342:18-6343:16, 6414:2-6415:9 (Moon); R. 5781 Photo1 and Photo 2 RT 3202:4-13 (Stewart) R. 3749 Photo1 and Photo2 R. Photo1, Photo2, and 5228 VID2 R. 5129 VID3 and 5228 VID1 R. 98 RT 6502:13-22, 6505:17-6506:12, 6507:2-14 (Zrekat); R. 5645 VID1 R. 2683 VID1 R. 5437 Photo1, Photo2, and VID2 R. 1118 VID2 R. 5939 VID1
Page 2
8638826
Tab O
Work Stoppages Adversely Affected Customer Service (Tab O) Citations RT 2961:6-18 RT 577:5-578:23 RT 405:21-406:9, 433:10-18; 437:21-438:21 RT 699:3-8, 754:8-19 RT 2899:22-2900:20 RT 4882:8-17 RT 486:2-487:5 RT 4456:25-4457:10 RT 3858:14-3859:2 RT 6158:18-6159:24 RT 2864:18-2865:14 RT 668:21-670:22 RT 4990:11-24, 5005:16-22 RT 3768:11-3769:4 RT 5592:18-5593:1, 5593:4-6 RT 3946:16-3947:1 RT 3171:21-3172:7 RT 4011:22-4012:3 RT 159:18-160:5, 160:22-162:7 RT 4053:18-25 RT 4354:13-4355:6 RT 4387:14-4389:25, 4398:1-12, 4407:14407:20
Witness Javon Adams Yvette Brown Andrea Carr Barbara Collins (Andridge) Christopher Collins Evelin Cruz Norma Dobyns Brandon Garrett Sara Gilbert Charmaine Givens-Thomas Colby Harris Margaret Hooten Victoria Martinez Michael McKeown Marie Anne Roberty Patricia Scott Cody Shimmel Shana Stonehouse Dominic Ware Debra Williams Mariah Williams Tavarus Yates
9004132
Tab P
UFCW/OWM Did Not Announce Work Stoppage Details in Advance (Tab P) Citation RT 1753:8-10 RT 5355:9-18 RT 1260:5-21, 1261:5-23 RT 3661:9-15, 3661:16-18 RT 5813:19-22, 6253:12-14 RT 1384:2-10, 1395:17-21 RT 1798:18-20 RT 3591:17-25; 3593:25-3594:12 RT 6187:18-6188:4, 6191:13-16 RT 6284:6-20, 6286:16-6287:1 RT 6334:1-6335:8 RT 5524:17-19 ); RT 6220:18-6221:5, 6235:16-6236:1 RT 3196:11-25, 3199:12-17 RT 5388:17-5389:9, 5391:2-13 RT 1471:19-1472:2, 1473:19-25
Witness Name Robert Tyler Allen Rosie Atkins Aaron Bornhoft Kimberly Carson Bonnie Engle Kapiolani Faiaipau Kristy Geisseman Vicki Graham Brenton Litherland James McAlpine Joshua Moon Tinamarie Parsons-Kelly Cathy Slater Lajuan Stewart Hoiyan Tam Robert Wainana
9004095
Tab Q
Management Witnesses Testified that Unexpected Absences Always Create Staffing Problems (Tab Q) Citation RT 1696:12-22, 1700:17-1701:1, 1702:20-24 RT 5343:9-15, 5355:9-18, 5356:22-5357:7 RT 1140:3-12, 1262:25-1263:10, 1264:5-13, 1270:21-1271:1, 1319:25-1320:3 RT 3692:4-7, 3692:11-17 RT 3639:4-8, 3658:2-7, 3660:16-22 RT6240:21-6241:13, 6253:15-19, 6256:24-6257:15 RT 1383:18-21, 1384:21-1385:2, 1385:17-1386:3 RT 4058:23-4059:8, 4061:6-14, 4062:10-18 RT 5934:1-4 RT 1819:17-24, 1972:7-10 RT 3591:14-16, 3592:8-18 RT 4491:1-21 , 4494:5-11, 4497:7-17 RT 6183:5-25, 6188:5-14 RT 6276:25-6277:16, 6281:9-14, 6287:2-6 RT 5990:14-5991:22, 6327:16-19, 6330:13-21 RT 5525:14-21, 5624:7-10, 5625:20-23 RT 1957:10-1958:3 RT 6207:18-6208:6, RT 6209:14-6210:3, 6214:21-6215:1, 6217:7-21 RT 3190:2-14, 3193:6-18, 3195:3-17 RT 5380:4-19, 5385:21-25 RT 2027:23-2028:4 RT 1548:19-1549:9, 1554:13-16
Witness Name Robert Tyler Allen Rosie Atkins Aaron Bornhoft Kevin Breen Kimberly Carson Bonnie Engle Kapiolani Faiaipau Christopher Fewell Robert Gawel Kristy Geisseman Vicki Graham Edward Johnson Brenton Litherland James McAlpine Joshua Moon Tinamairie Parsons-Kelly Cathy Sanchez Cathy Slater Lajuan Stewart Hoiyan Tam Suzanne Tamayo Robert Wainaina
9004150
Tab R
During Work Stoppages, Work was Left Undone, Done at the Expense of Work in Another Department, or Pushed Off to the Next Shift (Tab R) Citation RT 1705:17-21; 1707:1-12 RT 5357:13-20 RT 1268:1-12, 1312:21-24 RT 3689:6-12 RT 3660:23-3661:8 RT 5813:23-5814:4, 6259:16-21 RT 1383:23-1384:1, 1384:11-18 RT 4063:8-17 RT 1792:11-19 RT 3592:19-23, 3595:1-7 RT 4495:7-19, 4495:25-4496:6 RT 6188:14-24 RT 6281:15-24 RT 6326: 16-23, 6328:28:1-10 RT 5524:6-14 RT 6213:14-6214:12 RT 3194:15-22, 3198:17-25 RT 5386:2-4, 5386:6-8 RT 2028:5-8 RT 1549:4-9, 1550:23-25
Witness Name Robert Tyler Allen Rosie Atkins Aaron Bornhoft Kevin Breen Kimberly Carson Bonnie Engle Kapiolani Faiapau Christopher Fewell Kristy Geisseman Vicki Graham Edward Johnson Brenton Litherland James McAlpine Joshua Moon Tinamarie Parsons-Kelly Cathy Slater Lajuan Stewart Hoiyan Tam Suzanne Tamayo Robert Wainaina
9004079
Tab S
Tab T
UFCW Campaign Work Stoppage Rationale (Tab T) Citation
Description
Quote(s) WSW 2012
Jt. 97
Jt. 104(a) Jt. 105 Jt. 109
MCAW WSW 2012 National Day of Action Instructions
10/4/12 Press Release re WSW October 2012 Eblasts 10/9/12 Press Release re WSW
RT 2146:9-2147:3 and R. 5 Picket Sign Guide
R. 6
Draft of 10/10/12 Press Release re WSW
RT 2173:21-2174:16; R. 67 Draft of 10/10/12 Press at 3 Release re WSW
R. 68
Jt. 98; R. 26 Jt. 111
Jt. 112 Jt. 115
RT 100:4-102:1, 379:21383:22; GC 9
R. 4(a)
Draft of 10/10/12 Press Release re WSW
MCAW BF 2012 National Day of Action Instructions Draft Press Release for BF 2012
"calling on [Walmart] to end retaliation against those who speak out….about the lack of hours, low wages and understaffing." "strike…in protest of attempts to silence and retaliate against workers for speaking out for improvements on the job…take home pay so low that Associates are forced to rely on public programs…understaffing." "strike to protest Walmart's unlawful retaliation." "protesting attempt to silence and retaliate against workers for speaking out for improvements on the job…take home "I spoke out about ________ (ex. Understaffing or Not Getting Enough Hours) and Walmart tried to silence me." "call on Walmart to stop trying to retaliate against workers for speaking out for job improvements…low-wages and inconsistent hours and scheduling." "walk-out…protesting attempts to silence and retaliation against workers for speaking out for improvements on the job….take home pay so low that Associates are forced to rely on public programs to support their families and understaffing that is keeping workers from receiving sufficient hours." "Workers began walking off the job…calling on Walmart…to address take home pay so low that Associates are forced to rely on public programs to support their families and understaffing that is keeping workers from receiving sufficient hours." BF 2012 "going on strike to stop [Walmart's] retaliation and attempts to silence workers from speaking out...speaking out for good jobs with decent pay, regular hours, affordable healthcare and respect." "Walmart...attempting to silence workers…calling on Walmart to address low take-home pay and understaffing."
"Members of OUR Walmart are…refusing to work on Black Friday in protest of Walmart's continuing retaliation against Associates who speak out for better pay, affordable healthcare, improved working BF 2012 Strike Pledge conditions, fair schedules, more hours, and most of all, respect." "Walmart…attempt to silence those of us who speak out for better BF 2012 Blast Email wages, more hours, and respect at work." Associate Walk-off/Return- "I am not working today to protest Walmart's attempts to silence and to-work Script (used for retaliation against Associates who have spoken out about things like both BF 2012 and SW Walmart's low take home pay, unpredictable work schedules and 2013) unaffordable health benefits." "Always use this message…[a]ssociates have joined together as OUR Walmart to speak out for better pay, fair scheduling and respect…Walmart has responded by illegally attempting to silence and retaliating…[t]hat's why we are on strike." 11/16/12 Dehlendorf Email
RT 215:18-216:24 and R. 4 ULP Striker's Toolkit
"Call Out Instructions...it is not necessary this round to call into home office." (emphasis added) Toolkit includes instructions, scripts, letters, and other materials, all in line with campaign messaging re "things like Walmart's low take home pay, unpredictable work schedules and unaffordable health benefits."
Page 1
8635139
UFCW Campaign Work Stoppage Rationale (Tab T) Citation
Description
Quote(s) SW 2013
Jt. 100; R. 25
Jt. 87
"speaking up for change, including better working conditions such as increasing flexibility and availability of hours and scheduling, respect for the individual, and increasing the pay of associates…Walmart has MCAW SW 2013 National retaliated against and attempted to silence those who speak out...[w]e Day of Action Instructions are calling for an end to this retaliation." "call on Walmart to address retaliation, poverty wages and scheduling MCAW 5/6/13 Press concerns….[Walmart] has yet to take meaningful action to address the Release re SW 2013 problems plaguing associates…[n]ow, members of OUR Walmart are National Day of Action taking the next step."
Jt. 120
SW 2013 Talking Points
Jt. 122
SW 2013 Draft Press Release
Jt. 123
Ride for Respect Flier
GC 8
RT 100:4-102:1, 379:21383:22; GC 9
R. 87 and 88
R. 297
"Through OUR Walmart, Walmart employees have been standing together and speaking up for change, including better working conditions such as increased flexibility and availability of hours in scheduling, an end to Walmart's attempts to silence and retaliate against workers who speak out, and a commitment to pay full-time workers a minimum of $25,000 a year...steady hours and affordable health care....Why now?...On Black Friday hundreds of associates went out on strike...their voices were heard...Walmart hasn't followed through on its public commitments...[t]hats why hundreds of OUR Walmart members will be taking their message directly to Bentonville." "end retaliation against employees and…publicly commit to providing full-time work with a minimum salary of $25,000 a year…calls for change [have] only grown since the historic Black Friday strikes." "calling for Walmart to end retaliation against those Associates who speak out to improve working conditions."
"Every single Walmart executive and Board of Directors member will be there and all eyes will be on Walmart. We've decided this week is the best opportunity to get Walmart's attention and demand better pay, SW 2013 Pledge treatment, and an end to retaliation against associates who speak out." Associate Walk-off/Return- "I am not working today to protest Walmart's attempts to silence and to-work Script (used for retaliation against Associates who have spoken out about things like both BF 2012 and SW Walmart's low take home pay, unpredictable work schedules and 2013) unaffordable health benefits." "[S]triking Walmart associates…will be in Bentonville calling for an end to retaliation against employees and for the company to publicly 5/30/13 email re SW 2013 commit to providing full-time work with a minimum salary of $25,000 a Media Release year."
5/30/13 UFCW Webpage Blog re SW 2013
Jt. 125(a)
"OUR Walmart members have called on the company to publicly commit to raising wages and increasing access to full time hours….Though Walmart has paid lip service to workers' concerns since the historic Black Friday strikes last fall, the company has yet to take meaningful action to address the problems plaguing associates." "We are stretching our paychecks to pay our bills…[m]any of us are not getting hours -- as many hours as we used to…the new associates in my store aren't even hired as permanent employees." BF 2013
Page 2
8635139
UFCW Campaign Work Stoppage Rationale (Tab T) Citation Jt. 102
Jt. 127, 128 Jt. 129(a)-(b)
Jt. 130
Description MCAW BF 2013 Talking Points 11/18/13 Press Release re November 2013 Strikesupport Actions BF 2013 Instructions and Action Planning Guide
Email attaching Digital Guide for BF 2013
Quote(s) "call for a minimum of $25,000 a year, full-time work, and an end to the illegal retaliation against those who speak out" "Workers put jobs on the line to end retaliation; call for better pay, fulltime work." "stand up to Walmart and call for an end to retaliation against those who bravely speak out and an real wage of $25,000/yr."
"workers have called on the company to address their concerns around low wages, unaffordable benefits, under-staffing, erratic scheduling and above all else lack of respect in the workplace…This Black Friday we are going on strike to protest Walmart's illegal retaliation and attempts to silence us....For more than a year, Walmart retail workers from around the country have been coming together to call for change at Walmart."
Email indicates "The message for all strike related actions needs to be about ULPs...Walmart workers who speak out for better pay, more hours…Signs can say:…On strike for the right to speak out for more hours...On strike for the right to ask for better pay...basically we can mention what we are fighting for as long as it is clear that the strike is for retaliation when we speak out." Attached "strike pledge indicates "[w]hen we, the Associates, speak out for better pay, affordable health care, fair scheduling and respect, Walmart tries to retaliate against us...[t]hat's why we're standing up...[j]oin Associates across the country who are standing up to Walmart's retaliation by participating in a nationwide [ULP] strike." Attached "official Narrative Document" for BF 2013 re "pay people decent, livable wages, provide stable jobs with full-time hours, predictable schedules and treat every Walmart worker with respect."
R. 94
Attached "Digital Guide," which includes various messaging materials re "stand[ing] up for better working conditions, an end to illegal retaliation against workers who speak up and higher wages." One pre-written blog post [see , R. 94 at 26] notes that "Tens of thousands of people came 11/3/13 Dehlendorf email out on Black Friday last year and the movement only continues to attaching BF 2013 grow...[t]is momentum promises to deliver a Black Friday (the biggest materials shopping day of the year) that Walmart will remember."
Page 3
8635139
Tab U
AD Rationale for Joining OURWalmart and Participating in Work Stoppages (Tab U) Last Name
First Name
State
City
Store No.
Reason for Joining OURWalmart
Adams
Javon
TX
Lancaster
471 RT 2927:10-2928:16
Bowers
Marc
TX
Lancaster
471 RT 3090:12-3092:13, 3135:9-19
Bravo
Raymond
CA
Richmond
Brown Carr
Yvette Andrea
CA CA
Placerville San Leandro
Collins
Chris
TX
Lancaster
3455 RT 827:23-829:9, 2627:14-2628:22
2418 RT 525:24-527:3 5434 RT 404:23-406:9 471 RT 2879:12-23
Collins (Andridge)
Barbara
CA
Placerville
2418 RT 701:8-702:12, 738:22-739:19
Cruz
Evelin
CA
Pico Rivera
2886 RT 4799:13-16
Dobyns Garrett Gauer
Norma Brandon Matt
CA LA CA
Placerville Baker Placerville
2418 RT 471:1-472:3 1102 RT 4417:4-4418:2, 4454:6-4456:5 2418 RT 379:7-12
Gilbert
Sara
WA
Federal Way
2571 RT 3801:22-3802:13, 3807:2-5
Givens-Thomas Gomez Gurule
Charmaine Jovani Cecilia
IL CA CA
Chicago (Evergreen Park) Lakewood San Leandro
5485 RT 6036:23-6037:6, 6158:6-6159:2 2609 RT 4748:20-24 5434 RT 306:19-307:18, 337:4-338:8
Harris Hooten
Colby Margaret
TX CA
Lancaster Placerville
RT 2700:4-2704:19, 2816:25-2818:5, 471 2864:4-17 2418 RT 643:3-644:4
Page 1
Reason for Participating in Work Stoppage RT 2935:1-12 (BF 2012); 2940:21-2941:7 (SW 2013) RT 3106:24-3107:2 (BF 2012); 3111:12-3114:4 (Bowers/Harris Strike) RT 833:9-12, 839:13-840:7, 856:7-16 (SW 2013); 852:20853:5, 855:22-856:6 (BF 2012); 854:22-855:21 (WSW 2012) RT 543:25-544:24, 545:8-545:11, 610:1-8, 629:16-630:2 (SW 2013); 559:23-560:14, 605:12-19 (BF 2012); 585:1421, 586:10-587:2, 600:13-603:8 (General) RT 408:12-14, 441:19-447:13 (SW 2013); RT 2880:20-2881:12, 2904:13-18 (BF 2012); 2886:172887:2, 2893:8-2895:15, 2903:23-2904:21 (SW 2013) RT 714:9-23, 739:20-740:17, 778:20-780:25 (SW 2013); 734:11-736:4, 769:8-13 (WSW 2012); 769:14-18 (BF 2012); 768:24-769:7 (BF 2013), 766:5-768:18 (General) RT 4806:15-16, 4807:18-23 (WSW 2013); 4812:7-20, 4816:22-4817:6 (BF 2012); 4827:21-25, 4838:13-4839:6 (SW 2013); 4854:12-19 (BF 2013); 4919:3-4920:3 (General) RT 478:25-479:8, 482:22-483:4, 490:19-491:12, 495:22496:2 (SW 2013); 488:19-490:4 (General) RT 4427:2-10, 4436:18-4437:6 (SW 2013) RT 380:2-6 (BF 2012); 387:4-12 (SW 2013) RT 3815:14-21, 3852:25-3853:6 (SW 2013); 3837:6-12 (BF 2012); 3856:8-3857:1 (General) RT 6040:23-6044:11, 6085:6-10 (BF 2012); 6057:4-19, 6059:13-21 (SW 2013); 6108:20-6109:13 (BF 2013); 6168:3-17 (General) RT 4756:8-14 (SW 2013) 351:22-352:5 (SW 2013) RT 2725:22-2726:10, 2848:11-19 (BF 2012); 2718:202719:7 (WSW 2012); 2765:14-2766:21 (Bowers/Harris Strike), 2804:4-2806:3 (General) 664:16-664:21 (BF 2012)
8637990
AD Rationale for Joining OURWalmart and Participating in Work Stoppages (Tab U) Last Name
First Name
State
City
Store No.
Reason for Joining OURWalmart
Reason for Participating in Work Stoppage
Martinez
Victoria
CA
Pico Rivera
2886 RT 4940:16-4941:17
RT 4944:3-13, 4998:22-4999:9 (WSW 2012); 4950:15-23, 4956:19-23, 4957:24-4958:3 (BF 2012); 4966:20-23, 5007:17-19 (SW 2013)
McKeown (II)
Michael
WA
Federal Way
2571 RT 3716:1-12, 3717:8-3719:5, 3727:15-22
RT 3727:15-22, 3765:1-5 (SW 2013)
Roberty
Marie-Anne
FL
Hialeah
1590 RT 5536:18-5537:6
Scott Shimmel Stonehouse
Patricia Cody Shana
WA TX WA
Federal Way Dallas Bellevue
2571 286 3098
Ware
Dominic
CA
San Leandro
5434
Williams Williams Yates
Mariah Debra Tavarus
LA WA LA
Baker Mt. Vernon Baker
1102 RT 4302:10-20 2596 RT 4021:1-2 1102 RT 4364:14-23, 4391:19-4392:2
RT 5541:21-24, 5551:19-24, 5589:4-5590:9 (SW 2013) RT 3906:15-17 (SW 2013); 3919:16-18, 3934:3-20 (BF RT 3899:1-25, 3944:16-3945:6 2012) RT 3161:7-9 RT 3162:23-3163:2 (SW 2013) RT 3969:16-21 RT 3980:22-3981:6 (SW 2013) RT 143:1-22 (WSW 2012); 144:20-144:25 (BF 2012); RT 75:12-76:9, 77:12:79:11, 244:20-245:25 88:13-90:6, 99:16-100.6 (SW 2013)
Page 2
RT 4309:17-24, 4311:11-17, 4318:8-4319:9 (SW 2013) RT 4034:10-17 (SW 2013); 4053:14-17 (General) RT 4374:22-4375:13, 4394:4-13 (SW 2013)
8637990
