Alpha Beta Co.

National Labor Relations Board - Board Decisions

Jan 23, 1985

273 N.L.R.B. 1546 (N.L.R.B. 1985)

1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alpha Beta Company and Elizabeth Mahon and
Terry Rendon and Florence O'Day and Norma
Meyers and Carol Mitchum and Richard
Hutson and Linda Parrette and Ralph's Gro-
cery Company and Josie Melendez. Cases 32-
CA-1275, 32-CA-1313, 32-CA-1332-1, 32-
CA-1332-2, 32-CA-1332-3, 32-CA-1332-4,
32-CA-1332-5, and 32-CA-1405
23 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 17 December 1980 Administrative Law
Judge Russell L. Stevens issued the attached deci-
sion. The General Counsel and the Respondents
filed exceptions and supporting briefs.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
On 7 August 1978 members of Teamsters Locals
287 and 315 employed by the Respondents began
an unsanctioned economic strike against the Re-
spondents. Thereafter by letter dated 9 August
1978, Retail Clerks Locals 428 and 1179 (the
Unions) informed their members that the Central
Labor Council had sanctioned the Teamsters strike
and advised that: (1) members were not to cross a
picket line; (2) if members were requested to work
and no bona fide picket line was present, they were
authorized to go to work; and (3) if the picket line
showed up later, members were to complete their
shift unless they had to leave the store, but they
were not to cross the line and reenter. The letter
also solicited all members to fully support the
strike. By letter dated 7 and 8 September, the
Unions notified their members that the strike sanc-
tion had been withdrawn on 7 September. The
strike lasted, however, until about 27 November
1978.
The Respondents had a discretionary policy, not
challenged by the Union, of disciplining employees
for taking unauthorized or unexcused absences. On
14 August 1978, by letter mailed to all employees
and posted in all stores, the Respondents advised
their employees as follows concerning their partici-
pation in the sympathy strike: "If there is picketing
i The General Counsel and the Respondents have excepted to some of
the Judge's credibility findings The Board's established policy is not to
overrule an administrative law Judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cm 1951) We have carefully examined the record and
find no basis for reversing the findings
at your store, it is your individual choice to work or
not to work . . . . If striking Teamsters have not
placed a picket line at your store you are expected
to work as scheduled or be subject to disciplinary
action. . . . Should pickets appear after you have
started your shift, you may finish your shift
. . . •" 2 Pursuant to this policy the Respondents
discharged 15 employees during the course of the
sympathy strike because they refused to work
when no pickets were present at their respective
worksites. The Respondents also discharged five
employees who failed to report for work after the
strike sanctions were lifted.3
The Union filed grievances on behalf of all these
employees and pursuant to the contractual
grievance/arbitration procedures a board of adjust-
ment was convened to consider the grievances.
Several meetings were held and testimony was
given by the affected employees, union officials,
and the Respondents' store managers. The board of
adjustment deadlocked on a mutually agreeable so-
lution. As a result of private discussions between
representatives of the Respondents and the Unions
on 25 October, an agreement was reached whereby
15 of the employees would be reinstated without
backpay and 4 would be considered voluntary
quits. 4 As found by the judge, when the employees
were apprised of the terms of the agreement, they
were "displeased" with the refusal of backpay, but
voted to accept the offer. They also decided
among themselves to pursue backpay through
unfair labor practice charges filed with the Board.
The reinstatement occurred on 29 October.5
Meanwhile on various dates in October 1978,
eight of the dischargees who ultimately were rein-
stated filed the instant labor charges alleging that
the Respondents violated Section 8(a)(3) and (1) of
the Act by discharging employees because of their
protected activities. Regarding the 15 employees
who were discharged because they failed to report
for work during the sanctioned period of the strike,
the judge found that deferral to the settlement
agreement was improper under Spielberg 6 because
2 The Judge found that the Respondents' letter violated Sec 8(a)(1) of
the Act because it Interfered with employees' Sec 7 rights to engage in
such strikes In view of our deferral to the settlement agreement regard-
ing the discharge allegations we find the violation based on the 14
August letter standing alone to be de minims and not requiring a notice
posting Accordingly, we shall dismiss it
3 One other employee who quit on 12 August 1978 thereafter did not
seek reinstatement
4 These determinations were not based on whether the employee had
failed to report for work during or after the sanctioned period, e g, four
of five employees who failed to report after the sanctioned period were
to be reinstated
5 In November 1978, one other employee was classified as a voluntary
quit and in January 1979 one other employee was reinstated
6 Spielberg Mfg Co, 112 NLRB 1080 (1955)
273 NLRB No. 194
ALPHA BETA CO. 1547
the discharge grievances had not been pursued to
arbitration. Further finding that there had been no
waiver of the employees' statutory right to engage
in sympathy strikes, the judge found that the dis-
charges were unlawful and therefore deferral to the
settlement agreement—insofar as it covered those
employees—would also be repugnant to the Act.
However, regarding the five employees who had
been discharged for failing to report for work after
the strike sanction was lifted, the judge found that
those discharges were lawful, and therefore the set-
tlement agreement was not repugnant to the Act
insofar as it covered those five employees.
In deciding whether deferral principles should
apply to settlements arising from the parties' con-
tractual grievance/arbitration procedures, we find
the views of former Member Penello in his dissent
in Roadway Express, 246 NLRB 174, 177 (1979), to
be instructive. Member Penello stated:
Deferral in general will encourage parties . . .
to negotiate rather than to litigate their differ-
ences. The establishment of grievance-arbitra-
tion procedures has been a major factor in pro-
moting and achieving industrial stability and
peace, encouraging parties to use such proce-
dures will further the fundamental purposes of
the Act. I believe that the Spielberg tests for
deferral apply to grievance settlements as well
as arbitration awards. . . .
. . . .
As an administrative agency the Board
should not take a narrow, legalistic view of
the Act and seek to rule on every dispute that
may fall within the letter of the Act, but
should instead take a broad view of the Act
and seek to further the spirit and purpose of
the Act. The Board should encourage employ-
ers and unions to negotiate their differences
arising during the term of their bargaining
agreement, to discuss and settle grievances,
and, if necessary, to arbitrate their differences.
We agree with former Member Penello that the
deferral principles apply equally to settlements aris-
ing from the parties' contractual grievance!-
arbitration procedures because they further the na-
tional labor policy which favors private resolutions
of labor disputes. 7 These deferral principles of Col-
lyer Insulated Wire, 192 NLRB 837 (1971), and
Spielberg Mfg. Co., 112 NLRB 1080 (1955), were
recently reaffirmed in Olin Corp., 268 NLRB 573
(1984), and Metropolitan Edison Co. v. NLRB, 460
U.S. 693 (1983). We particularly note that in Olin,
supra, the Board stated its commitment to a policy
7 See also Member Penello's dissent in Douglas Aircraft Co., 234 NLRB
578 (1978), enf darned 609 F.2d 352 (9th Cir. 1979).
of full, consistent, and evenhanded deference to the
deferral process where appropriate safeguards for
statutory rights are satisfied.
Applying these principles to the instant case we
still defer to the settlement agreement. Our deter-
mination is based on the following. The grievance
proceedings were fair and regular, and the settle-
ment was made under the contract's grievance pro-
cedure. All parties had agreed to be bound, includ-
ing the employees. Although the employees were
not themselves involved in the settlement negotia-
tions, they were fully informed as to the specific
terms of the proposed settlement by the Unions.
Indeed, the Unions left the final decision of accept-
ance or rejection of the proposed settlement up to
the employees, who knew that it did not contain
any provision for backpay. Instead of rejecting the
settlement on that basis, and without expressing
any dissatisfaction to the Respondents, the employ-
ees authorized the Unions to accept the settlement
agreement on their behalf. Thus, the employees
were bound by their acts and those of their collec-
tive-bargaining representative. •
We further find that the General Counsel has
failed to carry his burden of proving that the re-
sults of the settlement agreement are "clearly re-
pugnant" to the principles and policies of the Act.
In Olin Corp., above, the Board stated that, in de-
termining if an arbitrator's award is clearly repug-
nant, the test to be applied is not whether the
Board would have reached the same result, but
whether the award is "palpably wrong" as a matter
of law. Thus, the Board's concern in a possible de-
ferral situation is to ensure that its decision does
not impinge on the parties' rights under the Act.
Here, we find that the settlement of the contractual
grievances was not "palpably wrong" under the
law, particularly because it resulted from negotia-
tions between the Respondents and the Unions
within the context of the agreed-upon griev-
ance/arbitration procedures. .
It is clear that the settlement agreement was in-
tended to resolve the parties' contractual dispute
over the discharge of employees who failed to
report for work in connection with a sympathy
strike. To resolve this contractual dispute, the
Union could—if they felt it necessary—waive the
employees' statutory rights. Metropolitan Edison Co.
v. NLRB, 460 U.S. 693 (1983). The. terms of this
agreement suggest that both the Respondents and
the Unions made concessions in order to settle the
grievances without going to arbitration, with the
Unions primarily concerned with getting the em-
ployees' jobs back. We note that the employees
may have authorized the Unions to accept the set-
tlement agreement solely because they wished to
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursue the matter of backpay before the Board, but
we find that to be insufficient to prove that the set-
tlement of the grievances is repugnant to the Act.
Based on all the foregoing, we shall defer to the
settlement agreement in this case. Accordingly, we
shall dismiss the complaint in its entirety.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge This
case was tried on various dates in May and August
1980, 1 in Campbell and Oakland, California. Charges
were filed by the Charging Parties 2 as follows:
32-CA-1275-10/3/78—Beth Mahon
32-CA-1313-10/19/78—Terry Rendon
32-CA-1332-1-10/27/78—Florence O'Day
32-CA-1332-2-10/27/78—Norma L. Meyers
32-CA-1332-3-10/27/78—Carol A. Mitchum
32-CA-1332-4-10/27/78—Richard W. Hutson
32-CA-1332-5-10/30/78—Linda T Parrette
32-CA-1405-10/30/78—Josie Melendez
By order dated May 22, 1979, the Regional Director for
Region 32 of the National Labor Relations Board
(NLRB) consolidated Cases 32-CA-1275, 32-CA-1313,
and 32-CA-1332-1-5 and filed a complaint 3 alleging that
Alpha Beta Company (Respondent Alpha Beta) violated
Section 8(a)(3) and (1) of the National Labor Relations
Act (Act). The complaint in Case 32-CA-1405, dated
May 22, 1979, alleges that Ralph's Grocery Company
(Respondent Ralph's) 4 violated Section 8(a)(3) and (1) of
the Act. Respondents' answer to the consolidated com-
plaint is dated June 1, 1979. The answer admits jurisdic-
tion, denies the substantive allegation of the complaint,
and interposes affirmative defenses. The answer was
amended July 19, 1979, relative to Case 32-CA-1405,
and further was amended at trial to add another affirma-
tive defense. By order dated August 13, 1979, the Acting
Regional Director for Region 32 consolidated Case 32-
CA-l405 with all cases previously consolidated Both
complaints were amended May 2, 1980, to add the names
of three individuals as agents of Respondent Alpha Beta
and Respondent Ralph's.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
1 All dates hereinafter are within 1978, unless stated to be otherwise
2 Individuals are referred to herein by their last names
3 A minor amendment was made at trial, with my permission, and an
8(a)(I) allegation was added, with similar leave, to charge a violation by
Respondent in stating in a letter to employees dated August 14, 1978 (R
Exh 7) "If striking Teamsters have not placed a picket line at your
store, you're expected to work as scheduled or be subject to disciplinary
action"
4 When the context so indicates, the two Respondents sometimes are
not named separately, but rather, are referred to simply as Respondent,
or as Respondents
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
On the entire record, 3 and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent Alpha Beta is now, and at all times mate-
rial herein has been, a corporation duly organized under
and existing by virtue of the laws of the State of Califor-
nia, with places of business located in various locations
throughout California, including facilities in Danville,
San Jose, and Sunnyvale, California, where it is engaged
in the distribution and retail sale of grocery products and
related items.
Respondent Ralph's is now, and at all times material
herein has been, a corporation duly organized under and
existing by virtue of the laws of the State of California,
where it does business at various locations, including San
Jose, California, where it is engaged in the retail sale and
distribution of grocery products and related items.
During the past 12 months, Respondent Alpha Beta
and Respondent Ralph's, in the course and conduct of
their business operations, each derived gross revenues in
excess of $500,000, and purchased and received goods or
services valued in excess of $5000 which originated out-
side the State of California.
I find that Respondent Alpha Beta and Respondent
Ralph's are, and each of them is now, and at all times
material herein have been, employers engaged in com-
merce and in businesses affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act
II. THE LABOR ORGANIZATIONS INVOLVED
Retail Clerks Union, Local 1179 and Local 428, AFL-
CIO (Locals 1179 and 428) 6 are, and each of them is,
labor organizations within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Summary7
Local 428, located in San Jose, California, and Local
1179, located in Martinez, California, are part of the
Retail Clerks Bay Area Council which has engaged in
bargaining on a multiunion basis since 1970 with the
Food Employers Council (FEC), which represents the
major retail grocery store chains in the Bay area, includ-
ing Alpha Beta, Ralph's, Safeway, Albertson's Lucky,
Brentwood, P & W, and Cala Markets, in all labor mat-
ters including contract negotiations and grievance han-
dling. The Retail Clerks locals which bargain with FEC
in addition to Locals 428 and 1179 are the following: San
Francisco, Local 648; San Mateo, Local 775; Alameda,
5 The General Counsel's motion to correct transcript was not opposed,
and is granted
6 Where the context so indicates, the two Locals sometimes are re-
ferred to as the Union, or the Unions
7 This background summary is based on stipulations of counsel for the
parties, credited testimony, and evidence not in dispute
ALPHA BETA CO. 1549
Local 870; Vallejo, Local 373; and Mann, Local 1119.
Although bargaining is conducted on a multiunion-multi-
employer basis, each local separately has signed agree-
ments with individual employers. Approximately 25,000-
30,000 employees of the various grocery stores represent-
ed by FEC were members of Bay Area Retail Clerks
locals in the summer of 1978.
From January 1, 1977, to December 31, 1979, Local
428 was party to identical collective-bargaining agree-
ments with Respondent Alpha Beta and Respondent
Ralph's. During that same period, Local 1179 was party
to a collective-bargaining agreement with Respondent.
Respondent Alpha Beta and Respondent Ralph's were
struck, initially without official sanction, and picketed by
the Teamsters Union, Locals 287 and 315 from August 7
until November 27, 1978. In anticipation of the strike,
which was an economic strike, Respondent organized a
strike preparation committee, sent communications to in-
terested corporate divisions, and sent strike packets to
store managers. The packets included such things as doc-
uments for use in obtaining replacement personnel, mer-
chandising plans, notices to employees, and picketing in-
formation. By letter dated August 9, 8 Locals 428 and
1179 advised all their members that the Central Labor
Council had sanctioned the Teamsters strike, and asked
for full support of the strike. Local 428's letter stated,
inter alia:9
1. Local 428 members are not to cross a bonafide
picket line at any time to go to work.
2. If any of you are requested to go to work and
there is not a bonafide picket line around the store,
you are authorized to go to work.
3. If a picket shows up after you have gone to
work, you are to complete your shift unless going
out of the store for any reason. When returning and
there is a picket line around the store, you are not
to cross the picket line.
4. You should come into the Union office and
sign up with our Dispatch Department.
We strongly urge every Union member to respect
your Union obligation in full, in spirit and letter.
Unions have full legal sanction to discipline members
who work behind a recognized picket line no
matter what the Food Employers Council trys to
persuade you to do.
By letter dated September 8, 10 Local 428 advised all of
its members that the strike sanction had been withdrawn
on September 7." The letter stated, inter alia:
This action means that you must report to work at
your store immediately because you are no longer
protected by the contract if you refuse to return to
work. In fact, you may be subject to termination if
you do not report to work behind the Teamsters
8 G.C. Exh. 5.
9 Local 1179's letter was less instructive than that of Local 428.
" G.C. Exh. 4.
" Local 1179 similarly notified its members by letter dated September
7.
picket line. We feel this is a new and tragic experi-
ence for Bay Area.
By letter dated August 14, 12 Respondent notified its
employees of certain of their rights and responsibilities
relative to the strike and its attendant events. The letter
had been included Within the prestrike packet given to
all store managers; was posted in all stores, at one place
in some and at two places in others; and was mailed to
all of Respondent's employees at their home address."
The letter states, inter alia:
If there is picketing at your store, it is your individ-
ual choice to work or not to work. If you choose to
work, the Company will do everything possible to
continue normal operations and insure available
work for you to maintain your earnings. The Com-
pany will also do everything it can to protect you
against coercion from any source. If striking Team-
sters have not placed a picket line at your store,
you are expected to work as scheduled or be sub-
ject to disciplinary action. Should pickets appear
after you have started your shift, you may finish
your shift.' 4
After imposition of the strike sanction, picketing by
the Teamsters was fairly regular and continuous at most
stores for approximately 2 weeks. Thereafter, picketing
at most stores was sporadic, inexact, and uncertain." On
some occasions at some stores, pickets appeared late in
the morning and left early in the evening; or appeared
for only a few hours and then left; or appeared on some
days but not on other days. From approximately Septem-
ber 4, picketing ceased at some stores."
12 R. Exh. 7.
I9 This statement is based on credited testimony of several store man-
agers; some employees; Richard Hinshaw, Respondent's director of labor
relations for the northern California division; and Gregory Tarr, Re-
spondent's director of personnel, northern California division. Some em-
ployees testified that they did not receive, or did not read, Respondent's
letter. That testimony is not consistent with the record, was not believ-
able, and is given no credit.
" It is clear from the testimony of several of the General Counsel's
witnesses, as well as from several of Respondent's witnesses, and it is
found, that no employee of Respondent Alpha Beta or Respondent
Ralph's was disciplined for refusing to cross a picket line to work. Re-
spondent's contracts with Locals 428 and 1179 provide, inter alia:
SECTION 17. STRIKE OR LOCKOUT
-17.1 Dunng the life of this Agreement the Union agrees not to
engage in any strike or stoppage of work as long as the Employer
has not committed an act held by the Adjustment Board or Arbitra-
tor to be in violation of this Agreement, or the Employer is not in
clear violation of a provision of the Agreement where no question of
interpretation is involved.
. . . .
17.3 Refusal of any employee covered by the terms of this Agree-
ment to pass through any picket line which has been sanctioned by
the Central Labor Council of proper jurisdiction and/or the Retail
Clerks Bay Area Council shall not constitute a violation of this
Agreement.
16 Much testimony was devoted to the subject of a "bona fide" picket
line. That testimony is given no weight, since it is clear that the actions
of Respondent Alpha Beta and Respondent Ralph's, which resulted in
charges by employees, were not controlled or affected by the nature of
the picketing—clearly, store managers considered any presence of pick-
ets, however they conducted themselves, to constitute a picket line.
" This statement is based on the credited testimony of store managers,
and is supported, in part, by the testimony of some of the General Coun-
sel's witnesses.
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the entire strike period, news of strike-related
events was disseminated in broad fashion by newspapers,
radio stations, and television stations. In addition, Local
428 maintained a "hot line" telephone which employees
could call to obtain the latest information relative to the
strike. Lou Menacho, a business agent of Local 428, vis-
ited employees and store managers at stores for conver-
sations related to the strike
Respondent's contract with Local 428 provides, inter
aim:
7.1 POSTING OF WORK SCHEDULES: The
Employer agrees to post a weekly schedule in ink
of working hours specifying the starting and finish-
ing times, meal periods and days off, and this sched-
ule shall continue in effect until a new one is
posted. The schedule shall contain the employee's
full name. A twenty-four (24) hour notice of any
change in such schedule, other than meal period,
shall be given by the Employer, except that in the
case of a change in a day off, at least five (5) days
advance notice shall be posted except in case of a
bona fide emergency.
POST NOTICE Work schedules must be posted
by Noon on Friday of the week preceding the week
in which such schedules are to be effective.
Prior to the strike, Respondent regularly posted work
schedules as required by the contract. Posting of sched-
ules during the strike was done in the same manner as
prior to the strike, although store managers maintained
records and systems during the strike, which were in ad-
dition to regular schedules, in order to account for the
work of strike replacements. 17 These additional records
were not uniform among the stores—each manager de-
vised his own system Both before and during the strike
store managers prepared or approved and posted all
work schedules. If assistance was required, the managers
usually relied on assistant store managers."
Although specific numbers were not established at
trial, many employees continued working during the
strike, and the remainder that was required for store op-
erations was obtained "off the street" as strike replace-
ments. Of those employees who honored the picket lines,
many kept close watch of their schedules and reported
to work on occasions when no pickets were present.
Some employees entered through rear doors when only
front entrances were picketed 19 Of all employees of Re-
spondent Alpha Beta and Respondent Ralph's, only a
few did not come to work as scheduled, when no pickets
were present at the stores. Those few were discharged,
and are Charging Parties herein. 20 Some employees did
17 This statement is based on credited testimony of store managers
i8 is clear, and not in dispute, that store managers were supervisors
within the meaning of the Act It is not clear that assistant store manag-
ers were supervisors, but it is found that they were agents of Respondent
Alpha Beta and Respondent Ralph's, and that they frequently acted as
agents in dealing with employees
19 See, e g, the testimony of Chns Anderson, below
20 G C Exhs 13(a)-(s) constitute the termination documents prepared
for employees discharged by Respondent The information on all docu-
ments is accepted as accurate, and in accord with Respondent's regular
not return to work immediately after the sanction was
withdrawn on September 7, and were discharged for that
reason. Those employees also are Charging Parties
All employees discharged by Respondent Alpha Beta
and Respondent Ralph's reported that fact to union rep-
resentatives, and grievances were filed on their behalf
pursuant to contract provisions, which are, in pertinent
part:
182 DISCIPLINARY GRIEVANCES. Pursu-
ant to Section 3 of this Agreement, any employee
who feels he has been unjustly discharged or sus-
pended shall file a grievance with the Union and
thereafter within ten (10) business days of notice of
the disciplinary action, the Union, if it desires to
proceed with the grievance, shall notify the Em-
ployer or its representative that an Adjustment
Board should be convened to hear the grievance.
Within fifteen (15) business days (Monday-Friday,
holidays excluded) thereafter, the Union and the
Employer shall meet as a Board of Adjustment,
consisting of two representatives of the Employer
and two representatives of the Union, in an effort to
settle the matter. This time limit may be extended
by mutual agreement of the parties. If the matter is
not adjusted and is impassed, the Union, if it so
elects, within fifteen (15) business days following
the meeting of the Board of Adjustment, shall pro-
ceed to arbitration. If the Employer fails to meet
with the Union within the time limits herein speci-
fied, the grievance will be deemed substantiated and
the employee shall be made whole. If the Union
fails to comply with the time limits herein specified,
such failure shall be deemed to be a conclusive
waiver of the grievance. The Union's intention to
proceed to arbitration shall be communicated to the
Employer or its representative within the time limit
specified above
A board of adjustment meeting was held September
30, attended by Richard Dodge, who at times relevant
herein was labor relations advisor for the FEC of which
Respondent Alpha Beta and Respondent Ralph's were,
and are, members; James Gaddis, labor relations associate
of the FEC; James McLoughlin, then president of Local
428 (now retired); Claudia Wallace, 21 Local 428's inside
representative (grievance handling), Menacho; and some
of the employees who had been discharged. Hinshaw
was present only at part of the meeting. Principal spokes-
men at the meeting were Gaddis and McLoughlin.
Gaddis contended that the employees who were present
had been discharged for failing without justification to
report for work McLoughlin contended that the em-
ployees did not report for work because, when they ar-
rived at the stores, picketing was in progress. Since store
managers were not present, and their testimony was es-
sential, the parties decided to depart from the usual pro-
cedure, first take the testimony of the employees, then
business practice The documents primarily are for internal use, hence not
all employees were given copies
21 Wallace is McLoughlin's daughter
ALPHA BETA CO 1551
adjourn to a later date to hear what the store managers
had to say Respondent's termination notices for all em-
ployees who were present were available at the meeting.
Employees then were asked to give their version of
events leading to discharge, which they did, after which
they were asked questions by those desiring to do so. All
employees stated, or made it clear, that they were sched-
uled to work on the days they did not work They stated
that they did not work on those days because of the
presence of pickets. Some employees failed to report for
work after the sanction was lifted, and those employees
contended that the failure was because they were out of
town, or did not know the sanction had been withdrawn.
No other contention was made relative to the discharges
by employees or by union representatives 22
The next board of adjustment meeting was held on
October 3, attended by Dodge; managers of stores from
which employees had been discharged; McLoughlin,
Wallace; Menacho, Claude Fernandez, then secretary-
22 McLoughlin initially agreed with Gaddis' testimony that no conten-
tion was made by the Union at the meeting of September 30 that employ-
ees had a right to withhold their services, whether or not pickets were
present McLoughlin later changed his testimony and said that such a
right was discussed at length during the meeting on September 30, and at
"numerous" other meetings McLoughlin appeared to be a confused, un-
realistic witness, and his contention on this point, relative to the meeting
of September 30, is given no credence If such an employee right was the
basis of the Union's defense to the discharges, there would have been no
necessity for the lengthy questioning of employees on September 30, rela-
tive to the absence or presence of pickets McLoughlin further testified
that he met informally on one occasion with Hinshaw, David Cox, a
labor relations associate with the Food Employers' Council, and John
Bacon, executive vice president of the Food Employers' Council, and
that he told the three that the question was whether the employees had a
right not to work even in the absence o f pickets Bacon denied that
McLoughlin made such a statement during the con versations, or that
McLoughlin or any other union representative ever took that position
with him Hinshaw testified in the same manner as Bacon Gaddis testi-
fied that he was present at the conversation, but that McLoughlin said
nothing about a right of employees Bacon, Hinshaw, and Gaddis are
credited on this point Finally, Menacho testified concerning the two
board of adjustment meetings
We met to ask Alpha Beta and Food Employers Council to put
these members back to work with their lost wages They refused to
do it and at that time we produced a letter from the Teamsters
saying that they had manned their picket lines ai ound the clock in
the stores that these people had worked in
Q To your recollection, did anyone in the Union state that It did
not matter whether pickets were present or not?
A No, I don't remember that
Q When was the second meeting held?
A The second meeting was held in the beginning of October at
some time
Q Where was it?
A We had that in our offices in San Jose
Q Who was present?
A At that one, there was myself, Claudia Wallace, Jim McLough-
lin, Claudia Fernandez was there and two other business agents I'm
not sure whether they stayed in or not There was Lilly Sugimoto
and Ed McGee
Q What was said at this meeting?
A Again, we asked them to put the employees back to work and
spoke about the letter that the Teamsters had given us and we had
some managers that were there, store managers, that came in and
testified
Q To your recollection, did anyone from the Union state during
this meeting that it did not matter whether pickets were present at
the stores?
A No, we didn't bring that point up
Several of the discharged employees also testified that such a right was
not mentioned at either of the two board of adjustment meetings
treasurer of Local 428; 23 and employees who had been
discharged. Work schedules and termination documents
were brought to the meeting by Respondent Each em-
ployee testified and was questioned, as on September 30,
after which store managers testified and were questioned.
Employees contended that pickets always were present
when they were scheduled to work, and the store man-
agers contended they were not. Those who were fired
for not working after the sanction was withdrawn con-
tended they were out of town or did not know the sanc-
tion had been lifted The meeting ended in a "deadlock,"
i.e., the Union wanted the employees reinstated, and Re-
spondent declined. Dodge said, however, that he would
discuss the matter further with Hinshaw. Nothing was
discussed at this meeting concerning nor did the Union
contend that employees had a right not to work as
scheduled even in the absence of pickets.
Approximately October 25 Hinshaw and McLoughlin
talked on the telephone and reached an agreement
whereby four employees who had been terminated
would be considered as having decided to quit their jobs,
and 15 other employees who had been terminated would
be reinstated without backpay The following day
McLoughlin met with the employees and discussed the
offer. Although the employees were displeased with the
refusal of backpay, they voted to accept the offer, and
decided among themselves to seek the assistance of the
NLRB in recovering backpay McLoughlin called Hin-
shaw on the telephone to advise that the employees had
accepted the offer. Dodge sent a letter to McLoughlin
dated October 25, 1978, 24 confirming the agreement be-
tween Hinshaw and McLoughlin. The letter stated, inter
alio, that the grievances filed by the employees and
Local 428 "have been resolved, and the settlement in this
matter is final and binding." By letter of November 9,
1978, Fernandez forwarded to Dodge a copy of the
signed agreement. 23 All employees except voluntary
quits were reinstated October 29
23 Fernandez testified that he did not recall attending the meeting It is
found that he did attend
24 R Exh 31
25 The letter dated October 25 superseded a similar letter prepared by
Dodge and dated November 2 (G C Exh 9) Hinshaw and McLoughlin
objected to some of the language in the letter dated November 2, and to
the date, which they both wanted to reflect the date of the oral agree-
ment, i e, October 25 The new letter, agreed to by Hinshaw and
McLoughlin, was prepared in November but back dated to October 25
McLoughlin and Wallace testified that the words stating that the settle-
ment was "final and binding" were added without their knowledge or
consent, and McLoughlin testified that he signed the agreement dated
October 25 without reading It The letter passed through the hands of
three union representatives—McLoughlin, Wallace, and Fernandez—and
remained in the union files for a long period of time without objection It
first was objected to when this controversy became ripe for litigation It
would be inappropriate at this stage of proceedings to set aside the agree-
ment reached after such a long and trying period of time, solely on the
basis that McLoughlin now seeks to disavow the agreement as not
having been read before signed The agreement was freely discussed
before being reduced to writing, it was signed voluntarily and freely
without protest, and there is no evidence of fraud or misrepresentation in
either the inception or execution of the document The testimony of
McLoughlin and Wallace on this point is given no weight The document
is found to be a valid one, and to represent the Intent of the parties
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Further Findings of Fact
1. McLoughlin. As pointed out supra, this witness ap-
peared confused and uncertain in his testimony He
changed his testimony on at least two important points,
and he seemed unsure of his memory in many important
areas of inquiry. He now contends that he told Hinshaw
and others at the board of adjustment hearings and else-
where of his belief that the employees had the right to
withhold their services even in the absence of pickets,
but that contention is contrary to the record and is con-
trary to Menacho's testimony. It is apparent that
McLoughlin's only serious concern at times prior to set-
tlement of the grievances was the jobs of the employ-
ees—he wanted them reinstated as quickly as possible,
and apparently was not too concerned with the reason
for the discharges. He said he believed, and he often
stated, that the employees were discharged for refusing
to cross picket lines, and the record is clear that such
was not the reason for the discharges. It is apparent that
McLoughlin did not make serious inquiry into the back-
ground of the discharges prior to the board of adjust-
ment meetings. McLoughlin is credited only to the
extent that credit specifically is given.
2. Menacho. The record is clear that the picketing of
the Teamsters was poorly executed. Menacho and
McLoughlin acknowledged that fact. Many employees
worked during the strike, being able to do so because of
the frequent absence of pickets. Menacho's testimony
generally was not convincing, and often appeared incon-
sistent with the record, e.g., his denial of conversations
relative to "bona fide" picketing, and to employee rights
in the absence of picketing, did not square with the gen-
eral situation of employees who wanted to work, and did
work when pickets were not present. Unless specifically
credited, Menacho's testimony is deemed doubtful
3. Dodge and Hinshaw. Both of these witnesses, and
particularly Dodge, gave straightforward, credible ac-
counts of events, and generally are credited.
4 Store Managers. This group of witnesses was impres-
sive. All the managers were straightforward, sincere, and
prompt in their answers None of them appeared devious
or evasive Each of them is credited, except as otherwise
noted, in specific instances.
5. Based on the testimony of Bacon, and on the record
as a whole, I find that at no time prior to the controver-
sy herein has any union representative contended with
Respondent Alpha Beta and Respondent Ralph's that
employees have a right to refuse to work as scheduled in
the absence of pickets during a strike. (Respondent's
counsel sometimes refers to this as an "invisible picket
line" theory.)
C. Individual Discharges
The factual situation relative to each dischargee is dif-
ferent, and each is discussed as follows
Jack Alarcon: Alarcon, a member of Local 428,
worked at times relevant herein at Respondent's store
508, under Store Manager Willis Cole and Assistant
Store Manager James Finley. Alarcon worked an irregu-
lar schedule that changed each week.
Alarcon testified that the day before the Teamsters
strike started he talked with Finley and asked whether or
not he should report Finley advised him to call the fol-
lowing morning to ask about pickets. Alarcon did as ad-
vised and talked with someone whose name he does not
know, who advised him not to come to work. He was
notified by the Union that the strike had been sanctioned,
and he did not work during the strike. He checked for
pickets during the sanction by driving to the store each
day, and on each occasion pickets were present. After
the first week, he drove by every other day. On the
Sunday after the sanction was lifted he talked at the
store with Finley, who said he had been discharged for
not reporting to work after the sanction was lifted. He
asked Finley what he could do, and Finley advised him
to talk with Cole the following day, Monday. He went
to the store on Monday and talked with Cole, who said
he had been discharged for "not showing up for work."
No one from the store had called to tell him he was
scheduled to work. No one from Respondent's manage-
ment or the Union had told him he could be discharged
for not working as scheduled when pickets were not
present, nor had anyone from management called to tell
him no pickets were present, or that he should come to
work. He told the Union about his discharge, and about
a month thereafter attended a meeting of 18 persons, in-
cluding store managers and representatives from the
Union. He told Cole at the meeting that he did not know
the sanction had been lifted. He attended a meeting at
the union hall approximately 2 weeks later, together with
union representatives and other discharged employees.
Respondent's offer of reinstatement without backpay was
discussed, and one employee talked about going to the
NLRB concerning the backpay problem.
On cross-examination, Alarcon testified that prior to
the conversation with Finley he testified to on direct ex-
amination Finley told him he was supposed to come to
work if no pickets were present. He said he received
advice during the strike from the Union and from Re-
spondent that he was authorized to work if no pickets
were present. He did not check his schedule for the
week of September 4.
Willis Cole testified that he prepares or approves and
nearly always posts all work schedules. Alarcon was
scheduled to work the week of September 3, and
throughout the strike. Alarcon, a part-time employee,
usually worked at night as a stock clerk. Alarcon did not
report to work or call in when he was scheduled to
work on September 8 and 9. Head clerk Matt Erkle and
grocery clerk Jim Finley attempted without success to
reach Alarcon by telephone. Alarcon called the store on
Sunday, September 10, but Cole was not in. Alarcon
came to the store to see Cole on September 11, and said
he had not heard the strike sanction had been lifted, nor
had he received any letter from the Union. Cole replied
that Alarcon had missed two shifts and it was necessary
to replace him, so he was discharged. Cole said he
learned Thursday afternoon (September 7) that the sanc-
tion had been lifted. He learned that fact from clerks
who came in to get their schedules, and who said they
heard on the news and on the Union "hotline" about the
ALPHA BETA CO 1553
sanction having been lifted. Approximately 15 or 20 em-
ployees came to work or got in touch with the store on
Thursday afternoon. The only three clerks who did not
report as scheduled were Alarcon, Carlos Lopez, and
Daniel Alvarado (The latter two are discussed else-
where herein.) During the strike, 50 to 60 percent of the
employees honored the picket line and did not work
Picketing was constant throughout the strike, 24 hours
each day and 7 days each week Alarcon was discharged
for not reporting to work as scheduled after the sanction
was lifted At the time of discharge, he checked Alar-
con's work schedule and timecards
Discussion
To the extent of any discrepancies between the testi-
mony of Cole and Alarcon, Cole is credited. Cole's ver-
sion of events is credited.
It is noted at the outset that there is no evidence that
Respondent was out to "get" Alarcon or any other em-
ployee because of his or their union or other protected
activity. The record does not support the argument that
Respondent, as a policy matter, decided to punish em-
ployees for honoring the picket line. Respondent was or-
ganized by and bargained and contracted with the
Union, and there is no evidence of any attempt by Re-
spondent to interfere with union activity of employees.
So far as the record shows, Alarcon was not treated dif-
ferently from other employees similarly situated.
It is also noted that the store involved herein, as all
other of Respondent's stores, was a busy place with a
complicated work schedule involving long hours of op-
eration and a sizeable number of employees. Notice is
taken of the relatively low profit margin of retail gro-
cery stores, and the consequent necessity of close sched-
uling and prudent use of employees' time. Cole credibly
testified that Respondent's policy is to discharge employ-
ees for not reporting for work without excuse or ad-
vance notice, and that policy has the support of common
sense. Alarcon did not report for work on two consecu-
tive days. Respondent attempted, without success, to
reach Alarcon by telephone All but three employees
came to work or reported the day the sanction was
lifted, and only those employees, cif all who honored the
picket line, were discharged. Alarcon contends that he
did not know the sanction was lifted, but that contention
is not credited. All except three of the employees sched-
uled to work on September 8 and 9 reported to work or
called in, and Respondent did not know why Alarcon
was not in that group. Respondent was justified in con-
cluding that Alarcon, a part-time employee, was not in-
terested in coming back to work, or was indifferent to
his obligations.
The legal issue involved in discharging Alarcon for
not reporting to work as scheduled, aftei the sanction
was withdrawn, is discussed below.
Daniel Alvarado: Alvarado, a member of Local 428,
was a part-time courtesy clerk at Respondent's store 508
during times relevant herein The store manager was
Willis Cole, and the assistant manager was James Finley
Alvarado's schedule was irregular, and changed each
week.
Alvarado testified that he was notified approximately
August 9 by letter from the Union that the Teamsters
strike had been sanctioned by Local 428. He was sched-
uled to work that day, but seeing pickets at the store he
did not work. He did not work thereafter during the
sanction, but he drove by the store three or four times to
check for pickets He telephoned the store and talked
with Finley to check for pickets, 26 but was not told the
pickets were absent He was told "always" that pickets
were present He was notified by union letter dated Sep-
tember 8 that the sanction had been lifted. The day he
received the letter, September 9, he reported for work
sometime between 12 and 1 p.m. When he arrived he
talked with Cole:
I had asked him if the schedule was up for me to
work. He said that he couldn't help me with that
because I had not shown up for work Thursday or
Friday, and he filled out a termination notice on
me I told him that I just received that letter that
day, and he said he was sorry, he couldn't help me
Q Had anyone from the store called you on
Thursday, Friday or Saturday and told you that the
sanction had been lifted and that you were sched-
uled to work.
A. No.
No one from Respondent's management or the Union
ever told him that he had to check the work schedule
during the strike, that he had to check for pickets on
days he was scheduled to work, or that he could be dis-
charged if he failed to work as scheduled when no pick-
ets were present. No one from Respondent's manage-
ment called him during the strike to say that no pickets
were present or to ask him to come to work. He never
received a discharge notice. He notified the Union of his
discharge and attended a meeting at the union hall in late
September or early October. Also present were Cole and
two other employees who had been discharged (Alarcon
and Carlos Lopez). They discussed the discharges, and a
subsequent meeting was held in the union hall in late Oc-
tober All discharged employees and union representa-
tives attended They discussed Respondent's offer of re-
instatement without backpay and also discussed the com-
ments of one employee who said the NLRB may be able
to assist in getting backpay. The employees voted unani-
mously to accept the offer.
Cole testified that he is familiar with Respondent's
policy that employees are supposed to work during a
sanctioned strike if no pickets are present. He prepares
or approves and nearly always personally posts work
schedules for the store. Schedule preparation and posting
during the strike was done in the same manner as prior
to the strike. Alvarado was scheduled to work through-
out the strike, including the week of September 3 His
reporting time for Friday, September 8, was 8 a.m. and
for Saturday, September 9, was 2 p.m. Alvarado did not
report or call in for either Friday or Saturday. Alvarado
came to the store at 4 or 4:30 p m. on Saturday to check
26 Alvarado was not asked, nor did he state, how many times he tele-
phoned the store
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on his schedule, and Cole told him he was discharged for
not reporting to work as scheduled for 2 days. Alvarado
said he did not know the sanction had been lifted Head
clerk Matt Erkle and grocery clerk James Finley tried
unsuccessfully to reach Alvarado by telephone on Friday
and Saturday. The store employed approximately 35 em-
ployees, of which 15 or 20 came to the store to work or
called in on Thursday All scheduled employees reported
or called in, except three—Alvarado, Lopez, and Alar-
con. Cole worked on September 8 and 9, from store
opening until closing. Approximately 50 or 60 percent of
the employees honored the picket line and did not work
during the sanctioned period. Picketing was continuous,
24 hours per day and 7 days per week. Alvarado was
discharged because he failed to work as scheduled after
the sanction was lifted. Cole heard on Thursday about
the sanction being lifted, when employees came to work
and told him they heard it on the news. Approximately
15 employees reported on Thursday.
Discussion
As discussed in the case of Alarcon, there is no con-
vincing evidence that Respondent personally was antago-
nistic toward Alvarado because of his union or other
protected activity, or toward the Union. Alvarado was
not treated disparately from other employees similarly
situated.
To the extent of any discrepancies between the testi-
mony of Alvarado and that of Cole, Cole is credited and
his version of events is credited.
As discussed elsewhere, the store involved here, as all
other of Respondent's stores, was busy and utilized em-
ployees at nearly all hours. Close scheduling was impera-
tive, and scheduling was a complicated process because
of the store's long hours and vaned operations. Cole's
testimony that Respondent's policy is to discharge em-
ployees for unexcused or unauthorized absences was log-
ical and believable. Attempts to get in touch with Alva-
rado on two separate days were not successful. Alvara-
do's contention that he did not know the sanction had
been lifted was not credible, in view of the publicity
given to the event, and the fact that all employees except
Alvarado, Alarcon, and Lopez reported for work or
called in. Regardless of Alvarado's reason for not report-
ing, Respondent was not responsible for that fact, and it
was not incumbent upon Respondent, so far as the
record shows, to run Alvarado down and ask him to
come to work. Alvarado should have reported for work
within a reasonable time after the sanction was lifted.
What was a reasonable time can be inferred from the fact
that nearly all employees returned to work or reported
in immediately or soon after the sanction was lifted. Re-
spondent was justified in considering Alvarado's failure
to report or call in as negligent or intentional. Possibly,
discharge was a too severe penalty, but that is not a
matter for the Board to consider. Whether or not Alvar-
ado's discharge was a violation of the Act is discussed
below.
Alex Avlakeotes: Avlakeotes did not testify. Counsel
stipulated that Avlakeotes was an employee of store 509
during times material herein; that Avlakeotes' termina-
tion notice was prepared to show that he was terminated
for not reporting to work when no pickets were present;
and that Avlakeotes quit his job as of September 9, 1978.
Peter Jimenez, manager of Respondent's store 509, tes-
tified that Avlakeotes was a frozen food clerk at the
store. Jimenez testified that Avlakeotes was scheduled to
work 5 days during the week of September 2, but did
not report for work dunng that week, nor did he call the
store on the telephone. Jimenez prepared Avlakeotes'
termination notice on September 5, based on his personal
knowledge, reports of other employees, and the store's
work schedules He talked with Avlakeotes on Monday,
September 11, and Avlakeotes said he was quitting
before being fired. Jimenez replied, "I still was officially
telling him he was terminated because he hadn't reported
to work." Avlakeotes stated "he had another job bar-
tending and that he wasn't going to work during the
strike anyhow." A vlakeotes was terminated because he
did not work when no pickets were at the store. Avla-
keotes could have learned about his schedule by calling
in, without having to cross the picket line to read the
schedule.
Discussion
Based on Jimenez' testimony, which is credited, it is
clear that Avlakeotes was terminated for not working
when no pickets were at the store. It may be, as counsel
stipulated, that Avlakeotes quit his job on September 9,
but that does not alter the fact that Respondent fired Av-
lakeotes prior to Avlakeotes' quitting. Jimenez testified
that Avlakeotes already had been fired by September 11.
Whether or not Avlakeotes had been notified of his dis-
charge, Jimenez had initiated the paperwork and, by his
own testimony, notified Avlakeotes of the discharge,
prior to Avlakeotes' stating that he quit his job. Even
though Avlakeotes had been working elsewhere prior to
September 11, he had not quit his job prior to talking
with Jimenez, and he told Jimenez that he would not
work during the strike. Therefore, the question is a legal
one, as to whether the discharge was a violation of the
Act, i.e , whether or not Respondent legally could dis-
charge Avlakeotes for not working when no pickets
were present. That question is discussed infra.
Daniel Gonzalez: Gonzalez, a member of Local 428,
worked at Respondent's store 509 during times relevant
herein, as a bread clerk on a regular schedule, 6 to 11
a m. on Monday, Tuesday, Thursday, Friday, and Satur-
day each week The store manager was Peter Jimenez,
and the assistant store manager was Randy Rose.
Gonzalez testified that he learned of the Teamsters
strike in August, and soon thereafter was notified by
letter from Local 428 that the strike had been sanctioned.
On the morning of the sanction he called the store on
the telephone and talked with bookkeeper Debbie Bar-
rios, who told him there was a picket at the front door,
but none at the back door. She said, "You could come in
the back door like some of the other people are doing."
He replied, "I had talked to the Union and they in-
formed me that the strike had been sanctioned and it was
my legal right to cross or not to cross, depending on
what I chose." And she said, "we'll see what happens
during the day." He did not go to work during the
ALPHA BETA CO 1555
strike, but he checked for pickets, every day for 3 weeks,
and every other day thereafter. He checked each day he
was scheduled to work by driving to the store at 6 or 7
a.m Pickets always were present when he checked. He
talked with Jimenez at 6 a.m. the day after the sanction
was lifted, and Jimenez said he was discharged for "fail-
ure to report to work when there were no pickets" He
reported the discharge to the Union No one in manage-
ment or the Union ever told him that he was supposed to
check for pickets, or that he could be discharged for not
working as scheduled when no pickets were present. No
one from management called him during the strike to tell
him no pickets were present, or to ask him to come to
work. He told the Union about his discharge, and in late
September attended a meeting of terminated employees,
members of the Food Employers Council, and union of-
ficials. The strike, picket lines, and work attendance
were discussed. He attended a second meeting with most
of the same people, plus store managers He explained
his actions, which generally were denied by Jimenez. He
attended a third meeting of union officials and terminat-
ed employees in late October. The employees were told
about Respondent's reinstatement offer without backpay,
provided acceptance was unanimous. All the employees
decided to accept the offer and to seek backpay through
the NLRB.
On cross-examination, Gonzalez denied that no pickets
were present when he was scheduled for work on Sep-
tember 11 and 12. He said that even if no pickets had
been present when he checked at the store he would not
have gone to work. He said he was only checking on
"the status of the picket line." He changed his earlier tes-
timony concerning September 11 and 12, and said he
worked those 2 days.
Jimenez testified that Gonzalez' scheduled hours were
the same prior to and during the strike. Jimenez said he
based Gonzalez' termination on his own knowledge, re-
ports of employees, and the work schedules. He said he
told Gonzalez that the latter had been discharged for not
working when no pickets were present.
Discussion
To the extent that there are discrepancies between the
testimony of Gonzalez and Jimenez, the latter is credited.
It is found that Gonzalez did not work as scheduled
on some days when there were no pickets at the store,
and that he was discharged for that reason. The legal
issue thus raised is discussed below.
Robert Hammond- Hammond did not testify. Counsel
stipulated at trial that Hammond was an employee at Re-
spondent's store 549; that he was covered by Local 428's
contract with Respondent; that the Teamsters picketed
store 549 continuously from midnight, August 9-12,
1978; that there was picketing after August 12, on dates
counsel could not agree to; that Hammond was terminat-
ed for not reporting to work on days he was scheduled
to work when no pickets were present; and that Ham-
mond was advised by letter dated August 31, 1978,
signed by Richard Hinshaw, that he had been terminated
for failing to report for work as scheduled
Vincent Spanno, manager of store 549, testified that he
prepared Hammond's termination notice, based on the
work schedule involved, on Hammond's timecards, and
on his personal knowledge of the absence of pickets on
the dates set forth in the termination notice When Ham-
mond was scheduled to report to work
Michael Lamb, assistant store manager of store 549,
testified that he told Hammond and Hutson about his
conversation with Menacho, discussed above, and that
Hammond and Hutson worked the night of August 19
Discussion
Lamb's testimony that Menacho told him that employ-
ees were required to work as scheduled if no pickets
were present, which testimony was denied by Menacho,
is credited
Spanno's testimony that, on the dates shown in Ham-
mond's termination notice, no pickets were present when
Hammond was scheduled to report for work is credited.
The legal issue involved in Hammond's discharge is
discussed below.
Arturo Herrera Herrera, a member of Local 428 at
times relevant herein, was employed as an apprentice
clerk, on probation in Respondent's store 505, on a
schedule that changed each week. His store manager was
Lyle Born.
Herrera testified that he learned by letter from the
Union that Local 428 had sanctioned the Teamsters
strike. He worked the day of the strike, but not thereaf-
ter He checked his schedule almost every week of the
strike, and he checked for pickets almost every day.
Pickets always were there when he checked. He learned
from his father that the sanction had been lifted, and that
information was verified in a telephone call to the Union.
The same morning he learned the sanction was lifted, he
called Born on the telephone and asked about his sched-
ule. Born did not tell him, and said it was Herrera's re-
sponsibility to know his schedule. He went to work that
day at approximately 9:30 a m and checked his schedule,
which was different from, and earlier than, his usual
schedules. Soon thereafter he talked with Born:
He asked where I was at that morning, and I said
I normally don't work 7 00 in the morning to 4.00
in the afternoon, and all he said, all he could see
was that I voluntarily quit. And, well, there wasn't
much I could say then, so I just said all right.
But I had asked to stay, to work from 9:30 til
6 . 30 that night, but he said he was sorry, he
couldn't do it.
No one from the store called to advise that the sanction
had been lifted or that he was scheduled to work or that
no pickets were present. No one from Respondent's man-
agement or the Union ever told him that he could be dis-
charged if he did not work as scheduled when no pickets
were present. He informed the Union of his discharge,
and attended one board of adjustment meeting concern-
ing his discharge.
Born testified that Herrera was a produce apprentice,
who usually worked early shifts, starting at 5 a.m. be-
cause produce had to be trimmed for display early in the
day. Born prepared or approved all schedules and their
posting. When the sanction was lifted, the produce de-
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment head was on vacation and the department was
being operated on a makeshift basis. Produce employees
worked early shifts, often starting at 4, 5, or 6 a.m. After
the orientation period of 13 weeks, employees sometimes
started later in the day Later in the week, or when three
employees were available for the department, one em-
ployee worked from noon to 9 p.m. During the strike the
store closed at 7 p.m, and all employees were scheduled
for hours earlier than usual Usually three employees
worked in the department. Born learned on September 7
that the sanction had been lifted. The schedule for that
period had been posted on Friday, September 1, effective
September 3-9 Because the produce head was on vaca-
tion and there were only two employees in the depart-
ment, Herrera was scheduled to work early on Septem-
ber 8 and 9. All the stores' approximately 50 employees
either came to work or called in on September 8, except
Herrera All employees who were scheduled to work on
September 8 and 9 worked those days, except Herrera.
Herrera did not report for work or call in on either Sep-
tember 8 or 9. He never saw Herrera in the store during
the strike, nor did he hear from Herrera during the sanc-
tioned period. The first time he heard from Herrera was
on Monday, September 11 Born testified:
It was in the morning about nine o'clock in the
morning. He phoned and asked—He said that he
just heard the sanction had been lifted and he
wanted to know what his schedule was. And I told
him that he had been scheduled at 6:00 a.m the 8th
and 9th and being that he didn't show up for those
shifts, I took it as a voluntary quit.
Q. What was his response, if any?
A. Not much. He didn't really offer any excuses
as to why he did not come in.
About August 20 he talked with Lou Menacho, a busi-
ness agent for Local 428, while other employees were
present. Menacho had been talking with other employees
when Cole arrived. Menacho said he had been explaining
to the employees that if pickets were not at all doors,
they could come to work through doors not being pick-
eted. Menacho said all entrances and exits had to be
picketed in order for the picketing to be "bona fide."
Menacho also explained that the employees were obligat-
ed to check their schedules, and to check every morning
for pickets and if no pickets were present the employees
were obligated to work. One of the employees asked
Menacho whether he could come to work through the
back door if no pickets were at that door, and Menacho
replied yes.
Menacho testified that he talked alone with Born on
one occasion during the strike, but they only discussed
"generalities." Menacho testified that he talked with
three employees of store 505 the same day:
Well, they asked me if they were going to get in
trouble working in the store and I told them that it
was their option If they came to work and there
were no pickets there, it was their option to go to
work We perferred [sic] if they didn't as long as
there was a sanctioned picket line out there. As
long as they didn't cross a picket line, it wasn't
really violating a principle.
Q. Did you say to either Mr. Born, Mr Windes
or Mr. Kitchell that there had to be pickets at every
door or the employees had to go to work?
A No, I didn't
Menacho denied telling employees that if no pickets
were at the back door they could come to work.
Discussion
To the extent there are discrepancies in the testimony
of Herrera and Born, Born is credited. Further, Born's
recitation of events is credited
Menacho was not a convincing witness. In view of the
questions concerning his reliability in this, and other in-
stances discussed elsewhere, Born, who was a straight-
forward witness with a convincing demeanor, is credited
to the extent that his testimony differs from that of Men-
acho.
There is no convincing evidence that Respondent per-
sonally was antagonistic toward Herrera because of his
union or other protected activity, or toward the Union.
There is no evidence that Herrera was treated in a dis-
parate or arbitrary manner.
Born credibly explained that Herrera was needed in
the produce department on September 8 and 9, and was
scheduled for work on the early morning shifts of those
days. Herrera testified that he usually worked from 10
a m. to 7 p.m, or 11 a m to 8 p.m., but Herrera amply
demonstrated that he was a confused witness, with a
poor memory. For instance, he had much difficulty re-
membering when schedules were posted at the store, and
for what days Even after extensive questioning, he
could not recall the scheduled days with accuracy. Nor
did he remember who the assistant store manager was,
nor the day he reported to work after the sanction was
lifted. Born's testimony that Herrera usually worked the
early morning hours was logical and is credited.
Herrera did not remember when he returned to work,
but Born credibly testified that it was September 11,
after Herrera had failed to report to work, without call-
ing in, for 2 days There is no evidence that Respondent
was required to seek out Herrera, or to remind him to
come to work. All other of the stores' employees re-
turned to work, or called in, on September 7 and 8. Born
was justified in assuming that Herrera did not intend to
return to his job. The return of all other employees es-
tablishes that Herrera's absence on September 8 was not
reasonable. Further, the record is clear that the lifting of
the sanction on September 7 was public knowledge.
The legal issue involved in Herrera's discharge for not
returning to work after the sanction was lifted is dis-
cussed infra.
Kathy Holland. Holland did not testify. Counsel stipu-
lated at trial that Holland was an employee of store 519,
and subject to the contract between Local 428 and Re-
spondent, at times material herein, that picketing at store
519 was continuous from August 10-14, 1978; that pick-
eting was sporadic from August 14 until September 1,
1978; that Holland was terminated for not reporting to
ALPHA BETA CO 1557
work on days she was scheduled to work when no pick-
ets were present at the store, for weeks ending August
19 and August 26, 1978; and that, by letter dated Sep-
tember 8, 1978, signed by Hinshaw, Holland was advised
that she had been terminated for her failure to report for
work as scheduled.
Mariano Capodiece testified that he was manager of
store 519 in August 1978, and one of the store employees
was Holland, who was a part-time journeyman clerk and
who worked on an irregular schedule. During the week
ending August 19 picketing began to be sporadic, with
pickets appearing off and on during the day and, on
some days, appearing not at all. There 'were no pickets
on Labor Day, and after that, there were no pickets most
of the time. He always either prepared work schedules
himself, or approved schedules prepared by his assistant.
The practice relative to schedules after the strike started
was the same as it was prior to the strike. He prepared
Holland's termination notice, based on the fact that she
did not report for work at any time after August 12, al-
though there were times when she was scheduled to
report, when no pickets were present. His knowledge of
the absence of pickets and the sporadic nature of picket-
ing was based on personal observation and reports of
employees. Based on his knowledge and reports from
employees, Holland did not call the store after August
12. During the first week of picketing, Holland crossed
the picket line to work. He did not hear from Holland,
either after he prepared her termination notice or after
the sanction was lifted. He attended the first board of ad-
justment meeting, at which Holland did not appear. He
understood at the meeting, from Claude Fernandez of
the Union he believed, that Holland's case was dismissed
because she voluntarily quit her job. He was asked if he
would accept the quit, and he said yes.
Chris Anderson, the store bookkeeper at times relevant
herein, corroborated Capodiece's testimony relative to
notices to employees (R. Exh. 7), the sporadic nature of
the picketing, the occasional absence of pickets at the
rear entrance, and related matters. Anderson was a con-
vincing witness, and her testimony is credited.
Discussion
The principal issue concerning Holland is whether or
not she quit her job prior to Respondent's termination of
her. Capodiece credibly testified that Holland did not
work after August 12, and that she did not thereafter get
in touch with anyone at the stoi e. Holland's termination
notice states that she "discontinued reporting for work."
"Has not reported for scheduled work shifts" during the
weeks ending August 19 and 26, 1978, and last worked
August 12, 1978. The notice is dated September 20, 1978,
effective September 7, 1978. Capodiece credibly testified
that he understood from someone at a board of adjust-
ment meeting, probably Fernandez, that Holland's case
was dismissed because she voluntarily quit her job. Fer-
nandez, Menacho, Soares, and Wallace, all of whom at-
tended the board of adjustment meeting, all testified, and
none of them contradicted Capodiece on this issue.
It is clear, as a factual matter, that Holland quit her
job August 12, 1978. The General Counsel did not show
otherwise. Stipulations of counsel on this issue are am-
biguous, but regardless of their content, the facts show
that Holland was not an employee of Respondent from
and after August 12, 1978. Whatever happened thereafter
does not create a legal issue, so far as Holland is con-
cerned. There is nothing to show that Holland, the
Union, or Respondent considered her to be an employee
after said date. No legal issue is involved in Holland's
case.
Richard Hutson: At times relevant herein Hutson, a
member of Local 428, worked on the stock crew at Re-
spondent's store 549, under Store Manager Vincent
Spanno and Assistant Store Manager Michael Lamb.
Usually, he worked from midnight until 9 a.m., with
Sundays off, and had one other day off which varied
from week to week He learned informally, and later by
letter from the Union, of the sanction by Local 428 of
the Teamsters strike.
Hutson testified that the day after he first learned of
the sanction he went to the store, but did not work be-
cause of the presence of pickets. Thereafter, he checked
for pickets each night he was scheduled to work, except
2 days when he was ill, and each time he checked, pick-
ets were present and he did not work. On one occasion,
August 19, no pickets were present and he worked. Ap-
proximately 1 month after the strike began and prior to
the sanction being lifted, he and some other employees
talked with Spanno about returning to work, and Spanno
told all of them they had been discharged. No one from
management or the Union ever told him he must check
his schedule, and check for pickets during his scheduled
starts, or that he could be discharged if he failed to work
as scheduled when no pickets were present. No one from
management ever called him to advise that no pickets
were present, or to ask him to come to work. He in-
formed the Union of his discharge and attended two
board of adjustment meetings concerning the termina-
tion. The first was held a month or so after the dis-
charge, attended by discharged employees, union repre-
sentatives, and representatives of Respondent. They dis-
cussed pickets and what constituted a picket line. The
second meeting was held a month or so later, attended
by much the same group, plus some witnesses from the
store. They discussed the same subjects as before. Prior
to the second meeting he, Rendon, and Mitchum visited
the NLRB.
On cross-examination, Hutson testified that his termi-
nation notice shows him as a voluntary quit rather than
as a dischargee Thereafter, he began working for Fry's,
and still later, for Manor Market. He did not discuss the
termination notice with Spanno, or ask him about it, be-
cause his first reaction was to ask union representatives
about it. He did not talk with Spanno when he worked
August 19, nor does he remember talking with Spanno
about the strike, prior to its inception. He never was told
that he was permitted to enter the back door of the
store, if there were pickets only at the front door. He
was reinstated by Respondent, and thereafter on Novem-
ber 3 or 4 quit his position. When he was reinstated by
Respondent, he quit working for another store in order
to return to Respondent, and subsequently returned to
his pre-reinstatement employer after quitting Respondent.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He attended the second board of adjustment meeting be-
cause Respondent improperly considered him a volun-
tary quit for allegedly not working August 14, 16, 17, 21,
22, and 26 He did not attend the meeting at which Re-
spondent's offer of reinstatement was considered.
Spanno testified that he did not talk with Hutson
during the strike, and that he prepared Hutson's termina-
tion slip, based on work schedules and timecards.
Lamb testified that he talked with Hutson on Satur-
day, August 19, and gave him information received from
Lou Menacho of the Union, i.e., that if there were no
pickets at work scheduled time, employees had to go to
work, and further, that employees could go in the back
door if no pickets were there Hutson worked that same
night, August 19, when no pickets were present
Discussion
Hutson appeared to be a confused witness with a
rather poor memory. However, his testimony concerning
the nature of his departure from the store's employment
appeared truthful, was corroborated by Rendon and Mit-
chum, and is credited. Although Spanno referred to
Hutson as a "voluntary quit," it is clear and found that
Hutson was discharged.
Hutson testified that he checked for pickets each night,
but Spanno testified that Hutson's absences were shown
on work schedules and timecards. Hutson testified that
he would have worked had there been no pickets, and
the record shows that he did work in the absence of
pickets on August 19. However, Lamb testified that he
had informed Hutson during the day of August 19 that
Menacho had told him that employees "had" to work as
scheduled, if there were no pickets. As found elsewhere
herein, the testimony of Lamb relative to Menacho is
credited. In any event, in view of Hutson's generally un-
convincing testimony and Spanno's credibility, Spanno's
testimony that Hutson did not work when scheduled and
when there were no pickets is credited.
It is found that Hutson was discharged by Respondent
for not working as scheduled during the strike sanction,
in the absence of pickets. The legal issue involved is dis-
cussed below.
Jerry Lee Kimber: At times relevant herein Kimber, a
member of Local 428, worked for Respondent's store
538, as a member of the night stock crew. His schedule
was irregular, and changed each week The store manag-
er was Larry Stevens, and the assistant store manager
was Dave (not otherwise identified).
Kimber testified that he learned informally of Local
428's sanction of the Teamsters strike, and received no
formal notification from the Union. He called the store
to find out if pickets were present, and learned that they
were. Thereafter, he called and drove by the store sever-
al times to learn if pickets were present. They were
present each time he checked, but on some occasions no
one answered the telephone and he was unable to check
On a date he does not remember, but which was "a
couple of days" after the strike was over, fellow employ-
ee Richard DiMartini called him and said Kimber was
scheduled to go to work that night and that Kimber
should report for work. Kimber was "totally exhausted,"
and declined to go to work. He went to the store the fol-
lowing day and talked with Stevens, who said he had
been discharged. No one from management or the Union
ever told him to check his schedule during the strike, or
to check for pickets on work scheduled days, or said he
could be discharged for failing to report as scheduled
when no pickets were present. No one from management
called him during the strike to advise him about pickets
or to ask him to come to work. He does not remember
how long it was before he talked with Stevens that he
learned that the sanction had been lifted, nor does he re-
member how he learned that fact. He told union repre-
sentatives about his discharge, and attended two meet-
ings to discuss the discharge. At one of the meetings,
union representatives discussed with discharged employ-
ees Respondent's offer of reinstatement on former sched-
ules, with benefits but without backpay, provided the
employees' acceptance was unanimous
On cross-examination, Kimber testified that he had
been a real estate agent since October 1977, and was
working only part-time for Respondent. While working
for Respondent, he sold real estate 8 or 9 hours each
day. In his pretrial affidavit, he stated that he learned
about September 6 that the sanction had been lifted. His
discharge conversation with Stevens was approximately
September 15. He did not check his schedule during the
strike. His pretrial statement was true, wherein he stated:
I did not call in during the week after sanctions
were lifted I did not report to work during this
period, September 7th-September 15th, because I
was busy with my job as a realtor.
Kimber was reinstated, and quit in November 1979 to
sell real estate
Stevens did not testify. Kimber's termination notice27
shows that he was terminated for failure to appear at
work September 8 and 9, and that Kimber had not been
heard from for "over 6 weeks."
Discussion
Kimber's testimony was confusing and incomplete He
seemed to imply that DiMartini called on behalf of the
store, a couple of days after the strike was over, to tell
him to come to work. However, DiMartines position
was not described—it is not clear whether DiMartini was
a friend, a coworker, a management agent, or something
else In his pretrial affidavit, which he could neither
affirm nor deny in his testimony so far as dates were
concerned, Kimber said he knew that about September 6
the sanction had been lifted, yet the sanction was not
lifted until September 7 He said he could not remember
whether he knew about September 6 that the sanction
had been lifted. Kimber could not put a date on DiMar-
tini's call, yet he said he said he reported for work the
following day, while in his affidavit he said he did not
report to work at all between September 7 and 15. Fur-
ther, he testified that he did not go to the store immedi-
ately after DiMartini called because he was "exhausted,"
yet he stated in his affidavit that he did not go to the
27 G C Exh 13(r)
ALPHA BETA CO. 1559
store between September 7 and 15, because "I was busy
with my job as a realtor." He acknowledged at trial that
the affidavit was true.
Under such circumstances, the General Counsel's con-
tention that Kimber was fired because he did not work
as scheduled during the sanction is not persuasive.
Kimber's testimony is too unreliable to provide a basis
for finding that Respondent illegally fired him. By his
own testimony, Kimber did not report to the store for at
least a week after the sanction was lifted. He did not tes-
tify that his reason for not reporting was lack of knowl-
edge that the sanction was lifted, nor was he fired an un-
reasonably short time after the sanction was lifted. Pa-
tently, he was indifferent to his job with Respondent
since he was busy with his real estate job. Respondent
was fully justified in considering Kimber as having aban-
doned his job, and in discharging him for that reason.
It is found, as a factual matter, that Kimber was fired
because he did not return to work after the sanction was
withdrawn. The legal issue involved is discussed below.
Carlos Lopez: Lopez, a member of Local 428, was a
part-time clerk apprentice at times relevant herein, work-
ing at Respondent's store 508 on an irregular schedule
that changed every week. The store manager was Willis
Cole and the assistant manager was James Finley.
Lopez testified that he learned from a letter he re-
ceived from the Union that Local 428 had sanctioned the
Teamsters strike. The day before the strike started he
talked with Cole and asked what he should do. Cole re-
plied, "Well, there's pickets outside. You're not supposed
to come to work. But if there's no pickets you're sup-
posed to be at work." Thereafter, he honored the strike,
but he called in every day for 3 weeks to check for pick-
ets. He talked with Cole or whomever answered the tele-
phone. He received a letter from the Union during the
morning of September 9 advising that the sanction had
been lifted. He called and talked with Finley on the tele-
phone at 10:30 or 11 a.m. and asked about the strike.
Finley said he was supposed to have been at work on
Friday, and missed again on Saturday, and that as far as
he was concerned Lopez was discharged. He then talked
with Cole, who told him the same thing. No one had
called on Thursday, Friday, or Saturday to tell him the
sanction had been lifted and he was supposed to be at
work. No one from Respondent's management or the
Union ever told him it was his duty to check the work
schedule during the strike to check for pickets or that he
could be discharged for not working as scheduled when
pickets were not present. He informed the Union of his
termination, and a few weeks later attended a meeting
with other employees who had been discharged, store
managers, and others. The discharges were discussed. A
few weeks later he attended another meeting at the
• union hall, and the discharged employee discussed with
uilion representatives Respondent's offer of reinstatement
without backpay, provided acceptance of the offer was
unanimOus. The employees decided to accept the offer,
and to pursue their backpay claims through the NLRB.
On cross-examination, Lopez testified that employees
"were supposed to call in to get our schedule and I did
this." He said his calls to the store were to check on
pickets, and to check his schedule. He never went to the
store to check for pickets—he only called in on the tele-
phone.
Cole testified that he is familiar with Respondent's
policy that employees are supposed to work during a
sanctioned strike if no pickets are present. He prepares
or approves, and nearly always personally posts, work
schedules for the store. Schedule preparation and posting
during the strike were done in the same manner as prior
to the strike. Lopez usually worked a late afternoon or
evening shift. Lopez did not come to work as scheduled
on Friday, September 8, and came to the store at ap-
proximately 5 p.m. on September 9. He told Lopez that
the sanction was lifted Thursday afternoon and he had
been scheduled for work the Friday and Saturday but
had not reported, hence, he was discharged. Lopez re-
plied that he had been busy working for Tropicana
Foods. Matt Erkle, head clerk, and James Finley, gro-
cery department head, tried unsuccessfully to reach
Lopez by telephone on Friday and Saturday. The store
employed approximately 35 employees, of which 15 or
20 came to the store to work or called in on Thursday.
All scheduled employees reported or called in, except
three—Lopez, Alvarado, and Alarcon. Cole worked on
September 8 and 9 from store opening until closing. Ap-
proximately 50 or 60 percent of the employees honored
the picket line and did not work during the sanctioned
period. Lopez was discharged because he failed to work
as scheduled after the sanction was lifted. Cole learned
on Thursday about the sanction being lifted, when em-
ployees came to work and told him they heard it on the
news.
Discussion
To the extent of any discrepancies in the testimony of
Lopez and Cole, Cole is credited, and Cole's version of
events is credited.
As discussed in the case of Alarcon and Alvarado,
there is no convincing evidence that Respondent person-
ally was antagonistic toward Lopez because of his union
or other protected activity or toward the Union. Lopez
was not treated disparately from other employees simi-
larly situated.
As discussed elsewhere, the nature of the store's busi-
ness necessitated close and complicated scheduling of
employees' work. Cole's testimony that Respondent's
policy is to discharge employees for unexcused or unau-
thorized absences was logical and is credited. Attempts
to get in touch with Lopez on two separate days were
not successful. Cole's testimony that Lopez said he did
not report for work because he had been busy working
for another employer was not rebutted and is credited.
Lopez did not give any convincing reason in his testimo-
ny for his failure to report for work after the sanction
was lifted. Regardless of why Lopez failed to report,
there is no evidence that it was Respondent's duty to
seek him out and ask him to come to work. Lopez did
not report for work a reasonable time after the sanction
was lifted; such reasonable time is shown by the fact that
nearly all other employees returned to work on Thurs-
day and Friday as scheduled. Although discharge may
have been somewhat severe as discipline, that matter is
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Respondent's decision. The legal issue involved is
discussed below
Elizabeth Mahon • Mahon, a member of Local 1179,
began working in the summer of 1978 at Alpha Beta's
store 515, as a part-time apprentice checker Her store
manager was Dewey Mayer. Mahon was on an irregular
schedule, which changed every week.
Mahon testified that the day after she was notified by
Local 1179 of the fact that the Retail Clerks had sanc-
tioned the Teamsters strike, she talked with Chuck Matt-
son, a union representative, explained that she had no ex-
perience in such a situation, and asked what she should
do. Mattson said to call Mayer and find out whether or
not the store was being picketed. If there were pickets,
she should not enter the store; if there were no pickets,
she was "to go in to work." She called Mayer, who said
pickets were at the store. She said she could not come in
if there were pickets, and he replied, "Would you please
come in in plain clothes and work?" She said she would
check with Mattson, which she did Mattson said if she
crossed the picket line, she would be subject to a heavy
union fine. She called Mayer and said she could not do
as he requested. She called Mayer thereafter on each of
3 days after the sanction was in effect, and was advised
that pickets were present. On the third day she also
called Mattson, asked if she had to call the store each
day, and was informed, "I didn't have to call every day,
that if they needed me, or the pickets were gone, if I was
able to come to work, and I had a schedule, they [the
store] would call me." Thereafter, she did not call Mayer
or personally check to see if pickets were present at the
store. Mahon was in Los Angeles September 4, 5, and 6.
She learned from a news broadcast the evening of the
day the sanction was lifted that such was the fact, and
she also was notified of that fact by letter from the
Union. The following morning she asked her husband to
call Mayer for her, and was advised she had been dis-
charged. She went to the store that day and talked with
Mayer, who gave her a discharge notice and advised her
that she had been terminated for failure to report for
work on 6 days when she was scheduled to work and
there were no pickets present. The termination notice is
dated September 20, 1978, effective August 21, 1978. She
said Mattson had told her that Mayer would notify her if
no pickets were present. No one from Respondent's man-
agement or the Union had told her that it was her duty
to check her work schedule during the strike, to check
for pickets, or that she could be discharged if she did not
work when no pickets were present. No one from Re-
spondent's management called her during the strike, nor
did she call the store to check her schedule or to check
for pickets after the third day of the sanction. She talked
with Mattson about her discharge, and on September 25
Mattson told her Respondent refused to rehire her, and
that they considered her to be a voluntary quit, howev-
er, they would give her a good recommendation. Matt-
son said there was nothing more he could do for her.
Mayer testified that work schedules which he always
approves and posts and sometimes prepares were pre-
pared and posted during the strike in the same manner as
before the strike. Mahon was scheduled to work during
the strike, on the same basis as prior to the strike. The
work schedule for the week of August 13-19 28 shows
that Mahon did not report for work on August 15-19, al-
though she was scheduled to work on those days. The
schedule for August 20-26 29 shows that Mahon was
scheduled to work August 21-25, which was a normal
prestrike schedule. Mahon did not come to work on
August 21, and she was discharged that day by Mayer.
Picketing commenced the afternoon of August 9, on a
24-hour basis, and continued through August 12. No
pickets appeared after August 12, and that fact is based
on personal observation. On August 13 and 14 he called
some employees in order to reactivate the store, but most
of the employees had been calling in each day. Mahon
did not call in on August 13 or 14, and Mayer tried on
three occasions to get in touch with Mahon by tele-
phone. He discharged Mahon on August 21 and so in-
formed her husband, who called the store to find out if
any picketers were present. The husband said Mahon
was in Los Angeles, and Mayer replied that there were
no pickets, and she should be back at work. On Septem-
ber 8 Mahon and her husband came to the store, and
Mayer explained that he expected Mahon to come to
work after the pickets left, but that she did not, and he
could not get in touch with her, therefore he discharged
her. Of all the store employees, totaling approximately
45, only Mahon and Curtis McCullom did not return to
work after the pickets left, and both employees were dis-
charged. The Union took no action, so far as Mayer
knows, other than to call Mayer on the telephone to ask
why Mahon was discharged.
Discussion
Mayer's testimony was firm, given without hesitation
or uncertainty, and convincing. Mayer is credited. It is
found there were no pickets at the store from and after
August 13, 1978. There is little discrepancy between
Mayer's testimony and that of Mahon. It is clear that
Mahon intentionally did not check for pickets after the
first 3 days of checking, and that in so doing, she relied
solely on Mattson's advice. She never discussed the sub-
ject with any member of Respondent's management.
However, as discussed supra, Mahon and all other em-
ployees had ample and continuous written notice from
Respondent that absence from work when no pickets
were present could result in disciplinary action.
It is equally clear that Mahon did not report for work
as scheduled, for 6 successive days when there were no
pickets at the store, and that she was discharged because
of those absences.
A subsidiary issue is presented so far as Mahon's
reason for absence from work is concerned. There is no
showing that Mahon absented herself from work during
the 6 days involved because of her sympathy with thc
Teamsters. It appears that her absence was occasiciied
solely by her failure to check for pickets, since she testi-
fied on cross-examination that when she called the first 3
days of picketing she was prepared to go to work if no
pickets were at the store, and the sanction still was effec-
28 R Exh 27
29 R Exh 28
ALPHA BETA CO. 1561
tive at that time. The legal issue thus presented is wheth-
er or not motive for failure or refusal to work during a
sanctioned strike is relevant. That . issue is discussed infra.
The principal issue is whether or not Mahon was dis-
charged in violation of the Act. That issue also is dis-
cussed infra.
Josie Melendez: Melendez, a member of Local 428,
worked at Ralph's Grocery Company store 94, at times
relevant herein, as a part-time cashier, on a varying
schedule 4 or 5 days, 24 to 32 hours per week. Her man-
ager was Darrell Sniffen, and Sniffen had two assistant
managers, Jan Harrington and James Shelton. Melendez
was discharged because of failure to report to work as
scheduled in the absence of pickets. 3 ° She attended a
board of adjustment meeting concerning her discharge
on a date she could not remember, bid which she testi-
fied was sometime in January or February 1979. She ac-
cepted Respondent Ralph's offer of reinstatement with
seniority but without backpay conveyed to her by a
union representative, and returned to her job in January
or February 1979.
Melendez testified that she learned from Local 428's
letter of August 9, received and read by her, that the
Local had sanctioned the Teamsters strike. She went to
work the next day she was scheduled, but did not enter
the store because of the picket line that was in effect.
She called Sniffen from a telephone booth and told him
she could not go to work because of the picket line. He
told her to come to work "and look the other way." She
replied, "no," and Sniffen gave the telephone to Harring-
ton, who told her to come to work as scheduled, an hour
ahead of time, and to call from a telephone booth.
Thereafter, she checked for pickets two or three times
each week, either by calling the store on the telephone,
by going to the store, or by having her niece go to the
store. On three or four occasions each week, she called
the store and talked with "different people" to tell them
she was not going to come to work because of the picket
line. On Friday or Saturday of the week she was fired,
someone other than Sniffen, but she does not remember
who, told her on the telephone that no schedule was
posted for the following week and that "it was a day-to-
day basis." Thereafter, she did not check to see if there
was a schedule until she had her son call on September
6. On the Sunday before she was discharged, Shelton
called her on the telephone and asked her to go to work,
and she refused, saying that she could not return to work
until Local 428 told her to. Prior to that time, no one
from the store had called her. On September 6, the day
she was fired, she instructed her 13-year old son to call
the store for her, and tell them she "wasn't going in."
Her son later told her she had been discharged. Later
that day she called Sniffen on the telephone and asked
why she had been discharged, and he replied that it was
because she did not come to work when there was no
picket line. She said she "figured the line was still there"
and Sniffen replied that "he couldn't be calling all the
employees to tell them there was no line." Melendez tes-
tified that no one from the Union or store management
ever told her that she was required to check for pickets
each day she was scheduled, and that if she did not work
in the absence of pickets, she could be discharged. She
received in the mail a copy of Local 428's letter of Sep-
tember 8, notifying members that the strike sanction had
been lifted. She notified the Union the day after her dis-
charge, and attended the board of adjustment meeting re-
ferred to above.
On cross-examination, Melendez testified that Re-
spondent's rules are posted on a bulletin board near the
timeclock, and she "figured if you don't call in if you're
sick or something they'll fire you from any job"; such a
conclusion is "common sense." She denied ever having
seen the work schedule for the week ending September
2, 31 or the schedule for the week ending September 9.32
Sniffen testified that he prepared the work schedules
for all employees, and posted them each Friday morning
to cover the following week, from Sunday through Sat-
urday. From two to six pickets appeared at the store on
August 8, and thereafter picketed 24 hours each day, for
approximately 28 consecutive days. There were no pick-
ets at the store from and after Thursday, August 31. His
statements relative to pickets were based on personal ob-
servations, and on employee reports. Beginning August
31, Sniffen, Harrington, and Shelton began calling em-
ployees to come back to work, since there were no pick-
ets at the store. By the following day, September 1, all
scheduled employees except Pat O'Brien were back at
work. Seven or eight of those employees were called on
the telephone, but the remainder, approximately 10, came
in voluntarily. However, Melendez did not come to
work on Friday, September 1, as scheduled, nor did she
work on Saturday, September 2, as scheduled. He had
called Melendez on Thursday, Friday, and Saturday, but
no one answered the telephone. Harrington also attempt-
ed to call Melendez on Saturday, but with no success.
Shelton tried without success to call Melendez on
Friday, but reached her on Sunday, September 3. Shel-
ton reported that Melendez said she would not return to
work until instructed by the Union to do so. Sniffen
called Melendez on Thursday morning, September 5, and
told her she should return to work, but she refused to do
so until the Union told her to return. He told her that if
she did not come to work her refusal could become
cause for discharge. Melendez replied that in such case
she would be terminated. As shown by the schedule, Me-
lendez did not work on September 5 and 6. Sniffen
called Respondent's personnel manager Gayle Fahr and
explained the Melendez matter, and was told that Melen-
dez should be called once more, and that if she refused
to come to work she should be discharged. Sniffen called
Melendez again, but could not reach her. His under-
standing of company rules was that unexcused absences
for 3 days was grounds for discharge, and prepared Me-
lendez' proposed discharge, which was the basis of
Fahr's notification to Melendez. In October or Novem-
ber Sniffen attended a board of adjustment meeting rela-
tive to Melendez, at which time her discharge was dis-
cussed. Sniffen testified that other employees regularly
31 R. Exh. 22.
32 R. Exh. 21.30 Melendez was not given any documentary notices of discharge.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checked schedules during the strike sanction, personally
and by telephone, and that some employees, possibly 12
or so, crossed picket lines to check.
Sniffen testified that during the first week of picketing
he overheard Union Representatives Herb Sisti and Lil-
lian Sugimoto tell employees that if there were no pick-
ets at the back door employees could come to work,
even if there were pickets at the front door, and that
"we really don't want to back the Teamsters."
Discussion
Sniffen and Melendez generally agreed on the ultimate
facts involved in this issue, but they disagreed on many
details. Sniffen was an impressive witness. His answers
were prompt and firm, and he gave the impression of a
forthright and candid witness. Melendez' testimony was
not of equal calibre. She seemed unsure of herself, and
was not convincing in her recitation. To the extent that
the testimony of Sniffen and Melendez differs, Sniffen is
credited, and his version of events involved in this issue
is accepted as accurate.
Based on Sniffen's testimony, it is found that there
were no pickets at Respondent's store involved herein
from and after the first morning shift of pickets on
August 31; that Sniffen, Harrington, and Shelton made
several unsuccessful attempts to get in touch with Melen-
dez on and after August 31; that Melendez refused to
come to work on September 3, 5, and 6 after Sniffen and
Shelton got in touch with her and asked her to, and that
she said she would not come to work until Local 428
told her to; and that all other employees did work as
scheduled from and after August 31. Finally, it is found
that Melendez refused to come to work after she was in-
formed that she was scheduled to work and there were
no pickets at the store.
Melendez contends that she regularly checked for
pickets, personally, by telephone, and through interme-
diaries. That contention is given little credence, particu-
larly in view of Melendez' position that she would not
come to work, regardless of the presence or absence of
pickets. The legal issue involved in Melendez' discharge
is discussed below.
Carol Mitchum: Mitchum, a member of Local 428, was
employed at times relevant herein as a clerk in Respond-
ent's store 549. The store manager was Vincent Spanno
and the assistant store manager was Michael Lamb. She
worked on a regular schedule, from 6 a.m. to 3 p.m. on
Monday, Tuesday, Thursday, Friday, and Saturday. She
learned informally on August 9 that the Teamsters strike
had been sanctioned by Local 428, and learned of that
fact later in the day, by letter from the Union. Counsel
stipulated that there was picketing continuously from
midnight, around the clock, on August 9-12.
Mitchum testified that she talked with Lamb on the
telephone Thursday morning, August 10, after learning
that pickets were at the store, and told Lamb she would
not report for work that day, to which he replied okay.
She talked with Lamb the following day when she went
to get her paycheck:
He told me that I could be considered a no-show
because he felt—he said there were no pickets there
that morning. And I told him that I did not know
that I had to check for picketers. It was a sanc-
tioned strike and all I needed in order not to work
was that letter saying it was a sanctioned strike by
my Union.
Q. To your knowledge, was Mr. Lamb the
person in charge that day?
A. Yes he was.
Lamb did not say that she could be terminated if she did
not work when no pickets were present. Later that day
she called the Union, and said she felt threatened by
what Lamb had said. She was not told by anyone at the
Union that she was required to check for pickets, or to
work if there were no pickets. Thereafter she did, how-
ever, check for pickets each morning she was scheduled
to work, prior to her schedule, for approximately 3
weeks, at which time there ceased to be schedules. Pick-
ets always were present when she checked. On the third
Friday after picketing commenced, she went to the store
and talked with Spanno, and said she was sorry, but she
could not cross a picket line. Spanno said he understood,
and "that there was definitely no hard feelings." She
checked for a schedule that day, and there was none. No
one in management or the Union ever told her she
should check her schedule while honoring a picket line,
or to check for pickets, or that she could be discharged
for not working as scheduled when no pickets were
present. No one from management ever called her to say
there were no pickets or to ask her to come to work.
She was notified by union letter that the sanction had
been lifted, and went to the store the following day.
Spanno notified her and other employees that they had
been discharged. She attended a board of adjustment
meeting concerning her discharge, approximately the end
of September. Discharged employees, union representa-
tives, and Food Employers Council representatives were
present. They discussed the discharges and related mat-
ters. There was a second meeting, approximately in mid-
October, attended by some of the same persons and also
by Spanno and Lamb. A third meeting was held the end
of October, at the union hall, attended by discharged em-
ployees and union representatives. The employees were
told that Respondent offered reinstatement with full se-
niority and the same schedules, but with no backpay,
provided the offer unanimously was accepted. The em-
ployees protested, and the offer was discussed at length.
Terry Rendon advised the employees that the NLRB
had informed her, as well as Mitchum, that they should
accept the offer and seek backpay through the NLRB.
During the meeting, Rendon called NLRB concerning
the other employees, and informed them that the NLRB
said they should do the same. The employees then voted
to accept the offer.
On cross-examination, Mitchum testified that she did
not know, of her own knowledge, whether or pot she
was scheduled to work during the week of August 27.
Spanno never told her that schedules had been discontin-
ued. She does not know who told her that.
Spanno testified that Mitchum called him on the tele-
phone August 25 to check for pickets, and stated that
she was not going to work because of the strike. He told
ALPHA BETA CO. 1563
her she was obligated to work if no pickets were present,
and she said she would not work while there was a
strike. He told her no pickets were present the day she
called on her scheduled shift He prepared Mitchum's
termination notice, on the basis of the work schedule.
The schedule shows there were no pickets at Mitchum's
starting time.
Lamb testified that early in the strike he told Mitchum
when she came to the store to pick up her paycheck that
she must come to the store when scheduled, to check for
pickets. She said she would.
Discussion
So far as knowledge of what Respondent expected rel-
ative to work when no pickets were present is con-
cerned, it is clear, as discussed elsewhere herein, that Re-
spondent fully notified all employees, by posting notices
and mailing notices to employees, that it expected such
work Thus, whether or not Spanno also made such a
statement to Mitchum is immaterial.
Spanno was an impressive witness. His testimony con-
cerning events, and that Mitchum did not work as sched-
uled when pickets were not present, is credited. The
legal issue presented by the facts is discussed below.
Norma Myers: Myers, a member of Local 428, worked
at times relevant herein, at Respondent's store 509. Ji-
minez was store manager and Rose was assistant store
manager. Myers was a grocery clerk, and her work
schedule changed each week. She learned of the strike
sanction when she received notice in the mail from the
Union. She learned of picketing the first night of such
activity, when she was at the store.
Myers testified that she talked with Jiminez at the
store a few days after the strike began:
Well, I talked to Pete and I told him that I really
didn't like the whole idea of the picketers being
there and I was afraid of what they might do, and
that I needed a steady income and a steady income
wasn't going to be provided for me by only being
able to work when there wasn't picketers there.
And that I really had thought about it and felt that
if we had sanctioned the strike, then it meant that
we were going to uphold the strike as long as the
strike lasted, or until we dropped the sanction That
they didn't have to have people on the doors in
order for that to be a strike And I really wasn't
going to work through the whole thing, throughout
the strike. So I told him about it and he said, he
didn't really blame me, because his daughters had
gone to work for somebody else during the strike
also And, that it made sense to him And I said,
okay, I'll see you when the strike's over. He said,
okay, bye. 3 3
After that conversation, Myers did not check for pickets
at LIze: store She had another conversation with Jiminez
at a Labor Day picnic, and Jimmez teased her about
having a "nice little vacation" from work. She heard
23 This testimony is broader and more explicit than Myers' pretrial af-
fidavit
about the sanction being lifted on the radio the day it
happened and she later received a letter from the Union
telling her the sanction had been discontinued. On the
day of the lifting she called Jimmez on the telephone and
asked about coming to work, and Jiminez told her she
had been discharged for failure to report for work when
there were no pickets. No one from Respondent's man-
agement, or from the Union, had told her she was sub-
ject to possible discharge if she failed to work as sched-
uled when there were no pickets. No one from manage-
ment called her during the sanction to advise that there
were no pickets or to ask her to come to work. She re-
ported the discharge to the Union, and approximately a
week later attended a board of adjustment meeting. Also
in attendance were other employees who had been dis-
charged, as well as union representatives from the Food
Employers Council. The discharges were discussed at
the meeting. A week or so later a second meeting was
held, attended by much the same group, plus store man-
agers involved in the discharges, including Jiminez. The
discharges again were discussed. A few weeks later a
third meeting was held at the union hall, attended by the
dischargees and by union representatives, who told the
employees that the Union had received an offer to rein-
state employees to their prior positions, on their former
schedules, without backpay, provided the offer unani-
mously was accepted. The employees were angry, and
objected until one employee told the others that NLRB
representatives had advised her that the employees
should accept the offer, then file a claim with the NLRB
for backpay. The offer then was accepted by the em-
ployees.
On cross-examination, Myers testified that she was on
vacation from August 23 through September 3, during
which period of time she worked at a grocery store un-
related to Respondent On Friday, September 1, she
made no effort to ascertain what her schedule was for
the following week, nor did she make any such effort
thereafter, until she called Jiminez on September 8. After
her reinstatement she again was terminated by Respond-
ent for swearing at her supervisor. She did not report for
work on September 5, 6, or 7, nor did she check for
pickets on those days. She did not receive a termination
notice. She worked after the sanction until picketers ap-
peared.
Jimmez testified that Myers was scheduled to work
during the week of September 5 when no picketers were
present at the store. He had only one conversation with
Myers, which was at the store, during the second week
of the strike. Myers told him that she was going to
"honor the strike," and would not be coming to work.
He told her that it was her choice, if no pickets were
present, but if there were no pickets, she was obligated
to check her schedule, and work if scheduled She said
she would not do that, and he told her that, in such a
situation, she would have to suffer the consequences. He
did not hear from Myers until the strike was over. He
based Myers' termination notice on her work schedule,
and talked with her on September 9 when she called on
the telephone to get her schedule. He informed Myers
that she had been discharged because she had failed to
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report for work as scheduled, when no pickets were
present, on September 6, 7, and 8 Rose generally cor-
roborated Jiminez.
Discussion
The essential facts involved in Myers' discharge are
not in dispute, but the versions of Myers and Jimmez
differ somewhat in detail. Although those detailed differ-
ences do not control any finding, Myers is credited to
the extent that any discrepancy is considered. So far as
picketing is concerned, Jiminez is credited, and it is
found that Myers was discharged as Jiminez testified,
i.e., because she did not work as scheduled, when pickets
were not present, on September 6, 7, and 8. The sanction
was withdrawn on September 7, but Myers already by
then had been terminated, thus, the legality of the termi-
nation is in issue, as discussed below
Jackie Niswonger: Niswonger, a member of Local 428,
worked at times relevant herein as a part-time clerk and
checker in Respondent's store 523. The store manager
was Terry Zink and the assistant store manager was
Tony San Filhpo. Often her work schedule was in the
evening, from 5 to 10 p.m. or 6 to 11 p.m.
Niswonger testified that shortly before the strike she
talked with Zink, and said that, since she never had been
involved in a strike, she would like to know what her
rights were.
At that time he told me that the company
wouldn't hold it against you if you chose not to
cross picket lines But I would have to let him
know, and I would have to stick with my decision
because he had a schedule to write; I couldn't work
one day, and then decide I didn't want to work the
next day because of the schedule; and to let him
know. It was my choice. The company wouldn't
hold it against you.
She received a letter from the Union advising her that
Local 428 had sanctioned the Teamsters strike, and she
knew of pickets appearing at the store. She does not re-
member when pickets appeared, but "we were one of the
last stores to get picket lines." She worked during the
strike until picket lines appeared and, when pickets first
appeared, she called Zink on the telephone and said she
did not want to cross the picket line She called the first
week to get her schedule, but did not call thereafter. She
drove to the store every day or every other day to
check for the presence of pickets, and they were always
there when she checked She heard informally that the
sanction had been lifted, and also received a letter to that
effect from the Union. Shortly after she first heard, she
called Zink on the telephone and asked for her schedule.
He said she had been terminated, because she did not
work on two or three dates when no pickets were
present. No one from management ever told her she had
to check her work schedule during the strike, or that she
had to check for pickets when she was scheduled to
work, or that she could be discharged if she did not
work as scheduled when no pickets were present. No
one from management called her during the strike to
advise that no pickets were at the store, or to ask her to
come to work. She advised the Union of her termination,
and a couple of weeks later attended a meeting at the
Union concerning her discharge A few weeks later she
attended a second meeting at the Union, at which Zink
also was present. She testified, "Well, they [later ex-
plained as representatives of the Food Employers Coun-
cil] asked to have a voluntary quit put on my record
rather than a termination"
On cross-examination, Niswonger testified that she
filed a claim for sick leave taken in August 1978. She
would not have worked during the sanction, even if no
pickets were present. Claudia Wallace, a union represent-
ative, suggested, at the second meeting relative to her
discharge, that Niswonger be considered a voluntary quit
rather than a dischargee, and Respondent later agreed to
that suggestion, by letter. Before going to the meeting,
she suggested to the Union that she be considered a vol-
untary quit, and at the time of the meeting she was em-
ployed at a store of an employer other than Respondent
Backpay never was discussed.
Zink testified that pickets first appeared at the store
during the week of August 14 or 15, and picketing was
continuous thereafter for approximately 2 weeks. After 2
weeks picketing was very sporadic, and on some days no
pickets were present. There were no pickets on August
29 and September 5. He worked 12 to 14 hours each day
of the strike. Approximately a week before the strike he
talked with Niswonger:
Okay I explained what I felt were their rights. I
told them that if they came to work and there was
a picket line out in front of the store, then they
would have to make a decision on what they were
going to do. But, they were to report to work
every day as scheduled If there was no picket line
at the store, they were to come to work and com-
plete their shift. And primarily just explained, basi-
cally, what I felt their rights and obligations were.
Q. What was her response?
A. She said that she understood.
Zink denied stating to Niswonger that he would need to
know in advance whether she was willing to cross the
picket line. He called Niswonger on the telephone
August 9 because she was not at work as scheduled, and
no pickets were present Niswonger later called back and
said she would not come to work because she could not
get a babysitter He told her she would be discharged if
she did not work as scheduled in the future She worked
August 11 and 12, as scheduled, when there were no
pickets, but did not work thereafter, as scheduled. She
did not work as scheduled on August 29 or September 5,
when there were no pickets She was discharged after
not working on September 5, and papers were sent
through regular channels for the discharge. No termina-
tion notice was sent to Niswonger. He advised her on
the telephone, September 9 or 10, that she had been dis-
charged. During the first week of picketing he talked
with Lou Menacho of the Union, at which time 10 to 15
employees were present. Several employees asked Mena-
cho questions concerning the definition of a bona fide
picket line, and their obligations. Menacho defined a
ALPHA BETA CO. 1565
picket line as not including pickets sitting down in front
of the store, and not including pickets present at some
entrances but not at others. Further, Menacho stated:
He said they were obligated to report to work
every day that they were scheduled. He said that if
there were no pickets, they were obligated to go
inside the store and work their shift. He said that if
they got inside the store and they were working
and pickets showed up, they were obligated to com-
plete their shift. And he said that if they failed to do
so, it could result in their termination.
Zink attended a board of adjustment meeting at the
union hall on October 3. Also in attendance were repre-
sentatives from the Union and the FEC, Niswonger, and
others. Zink said Menacho stated that he had told em-
ployees they were obligated to report to work as sched-
uled, and if no pickets were present, they were obligated
to report for work. Menacho agreed that he had made
such a statement. Union representatives asked if Re-
spondent would consider changing Niswonger's dis-
charge to a voluntary quit, and Respondent's representa-
tives agreed to the change. Nothing was said concerning
Niswonger's right to refuse to work in the absence of
pickets.
The store manager prepared all work schedules, and
Zink reviewed and approved them. The store had ap-
proximately 50 employees, and some employees were on
duty 24 hours each day, on various shifts. Only 2 or 3
employees other than Niswonger honored the picket
lines. Absence of pickets was verified by Zink's personal
observations, and through reports of employees to Zink.
Only one schedule was maintained during the strike. If
an employee did not report for work, a replacement was
called in. Niswonger was not discharged for refusing to
cross a picket line.
Menacho testified that he talked with Zink during the
sanction, and that no employees, or anyone else, was
present:
Well, Terry was complaining about the Teamster
pickets. They were making noise. He claimed that
they were drinking beer and wanted me to talk to
them and then he asked me what was a bona fide
picket line, so I—We got into a discussion on that. I
told him that as long as there was somebody out
there with a picket sign either in their hand or near
by, that as far as I was concerned, that was a bona
fide line.
Q. Do you recall anything else being said?
A. He asked me if there were no pickets out
there, did the people have to come to work and I
said that it was their option. That if there weren't
any pickets there, we preferred that they didn't go
to work. It was their option to go to work or not.
Q. Did you tell him that if pickets were sitting
down that employees could enter through the back
door?
A. No.
Q. Did you tell him that the employees had to go
to work if there were no pickets?
A. No.
Menacho testified that at the second board of adjustment
meeting Zink "tried to say that I told him that the mem-
bers were obligated to go to work if there were no pick-
ets at the store," and Menacho said "that wasn't true."
Scott Shields, head clerk of store 523 at times relevant
herein, corroborated Zink's testimony concerning the
nature and times of picketing. Shields testified that a
group of approximately 10 employees talked with Mena-
cho at the store early in the strike. Zink also was
present. The employees asked Menacho about their
status during the strike, about requirements of a bona
fide picket line, and about the possibility Of being fined.
Menacho replied:
If there is no picket line, we are obligated to
work. In essence, we were supposed to be there.
Other people asked questions as well, one to define
what a picket line was and to what degree, as far
as—he was stating that if there is a picket at the
front door and not at the back door you can go in
the back door, that would be up to you.
Thereafter, Shields stated, "a lot of the people seized
that opportunity to work." Menacho denied that Shields
was present when he talked with Zink.
Discussion
Niswonger seemed to have a poor memory, and was
not a convincing witness. Zink appeared quite straight-
forward and impressive, and to the extent that their testi-
mony differs Zink is credited. It is found that Niswonger
did not report for work on August 9 and 29, nor on Sep-
tember 5 as scheduled, and that no pickets were present
at the store when she was scheduled to work.
Zink did not testify concerning Niswonger's testimony
relative to her quitting rather than being discharged, but
regardless of that testimony, it is apparent that Nis-
wonger was discharged, and the legal issue is considered
below on that basis.
Zink was a more credible witness than Menacho.
Zink's testimony concerning Menacho's statement was
convincing, and was corroborated by Shields. Zink and
Shields are credited on this point. It is further noted that
many employees at various stores worked during the
sanctioned period, yet were not fined by the Union. The
inference is strong that some of them entered through
nonpicketed doors, even during picketing at other doors.
The credited testimony of Chris Anderson on this
point is revealing. She credibly stated:
Q. Did you follow any practice with respect to
reporting to the store during the strike?
A. Yes, I phoned into my store to talk to either
my store manager or the man in charge, to inquire
if there were pickets there, or I would drive down
there. I live real close to my store. I would drive to
the store and see if there were pickets up or not.
Q. Could you explain to the Administrative Law
Judge why you did either of those things?
A. Well, I did not want to cross a picket line, but
I wanted to work. I wouldn't have worked if there
were pickets up. So I wanted to make sure that
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they weren't there when I was supposed to go to
work.
Q. When you drove to the store, what, if any-
thing, would you do?
A. I usually would just drive right into the park-
ing lot and, if no one was up front, then I would
drive around to the back and see if there were pick-
ets in the back, which there weren't—I think we
hardly ever had any pickets in the back—and then
I'd just park and go to work if there was no one
there.
Florence O'Day. At times relevant herein, O'Day, a
member of Local 428, worked as a flower woman at Re-
spondent's store 509 on a part-time, regular schedule.
The store manager was Peter Jiminez and the assistant
store manager was Randy Rose
O'Day testified that she received a letter from the
Union notifying her that Local 428 had sanctioned the
Teamsters strike. Thereafter, she had a conversation with
Jiminez, and told him she did not want to come to work
during the strike because she was afraid of violence Ji-
minez said it was her choice, whether or not she came to
work. There were pickets at the store that day, and she
did not come to work thereafter She was new in the
Union and did not know what she was supposed to do.
Her fellow employees told her she should check at the
store to see if pickets were present, even if she did not
come to work. Thereafter, she checked for pickets each
day before she was scheduled to go to work, personally
or by telephone, for the first couple of weeks. She then
began checking only once or twice each week. Pickets
always were present when she checked. No one from
Respondent's management or from the Union told her
she could be discharged if she did not work as scheduled
when no pickets were present No one called her from
the store to tell her no pickets were present or to ask her
to come to work. On September 9 she received a letter
from the Union dated September 8, 1978, advising that
the sanction had been lifted, but she did not report for
work the following Saturday, for which she was sched-
uled. She reported for work as scheduled the following
Monday, September 11, and Jiminez told her, "You are
terminated on a technicality," but he did not explain. She
said she would report the matter to the Union, and he
said, "Go ahead Maybe they'll get your job back for
you" She went to a meeting the end of September, at-
tended by several employees, union representatives, and
members of the FEC All the discharges were discussed.
She attended a second meeting a week or so later, at
which the same general group was present, plus the store
managers involved, including Jiminez. Jiminez stated at
the meeting that she was discharged August 21 because
the picketers were at an 8 o'clock coffeebreak when she
was scheduled to work She attended a third meeting a
week or so later, at which the discharged employees and
union representatives were present. Respondent's offer to
reinstate the employees without backpay, provided the
employees unanimously agreed, was discussed and ap-
proved. After the meeting Rendon said she was going to
seek the assistance of the NLRB, and all the employees
decided to do the same.
On cross-examination, O'Day said she does not know
who she talked with when she called the store to ask
about pickets; she never talked with Jiminez on the tele-
phone She said she would not have worked when she
called in, even if pickets were not there, since it was a
sanctioned strike She did not go to the store on Septem-
ber 6, 8, or 9, which were regularly scheduled days for
her, nor did she call the store on those days. There were
other days on which she neither went to, nor called, the
store.
Jiminez testified that he was on vacation during the
beginning of the week of August 12, and when he re-
turned to the store there were no pickets. During the fol-
lowing week, August 14-19, pickets were present most
of the time. None were there on Saturday of that week.
The following week picketing was sporadic, and no pick-
ets appeared the last 4 days of the week A few pickets
were present early in the week ending September 2, but
none were present "towards the end of the week." The
following week, beginning September 5, no pickets were
present. The department head prepared all work sched-
ules, and Jiminez reviewed and approved them There
was no separate strike schedule; strike replacements were
listed on the schedules with regular employees. Schedule
patterns were not changed during the strike Preparing,
approving, and posting of schedules were the same
during the strike as prior to the strike. O'Day did not
report for work during the strike. Randy Rose, the de-
partment head, and Ernie Mock, the produce head and
O'Day's supervisor, advised Jiminez almost daily that
they had not heard from O'Day Sometime during the
course of the week of August 19 he talked with Mena-
cho and Soares of the Union, and Menacho asked Ji-
minez if anyone had walked through the picket line. .11-
minez said no, that no pickets were present when the
employees came to work that morning. Menacho said
employees were obligated to come to work if they were
scheduled and if no pickets were present Menacho also
said that a checker, Claire Barnum, told him she had
come through the back door when no pickets were
there, and that he told her she could come to work if
there were no pickets at the back of the store Jiminez'
knowledge of picketing was based on personal observa-
tion, and reports of employees. Jiminez prepared
O'Day's termination notice based on her written sched-
ule, and talked with her on September 11. He told her
she was terminated because she did not work as sched-
uled when there were no pickets. O'Day was scheduled
to work on September 8 and 9, after the sanction was
lifted, but she did not come to the store or call in. Em-
ployees could, and regularly did, call on the telephone to
get their schedules. Jiminez said on cross-examination
that he did not remember talking with O'Day about
strike violence, or about anything else. He testified that
he may have told O'Day that he really did not want to
discharge her, but that he did not remember saying any-
thing about a "technicality" concerning her discharge.
He said he attended a board of adjustment meeting con-
cerning O'Day's discharge, and there gave the reason for
the discharge Of the store's 47 employees, approximate-
ly 40 worked during the strike Prior to O'Day's dis-
ALPHA BETA CO 1567
charge, but after the strike sanction was lifted, District
Manager Donald Vadnais had instructed Jiminez that
anyone who failed to report as scheduled, when there
were no pickets, should be discharged.
Rose testified, and generally corroborated Jiminez
Menacho testified that he and Soares visited Respond-
ent's store 509 in August 1978 and spoke with Jimmez,
who asked Menacho if the Union was going to do any-
thing about an employee named Claire (Barnum) Mena-
cho replied:
I said if somebody saw her cross a picket line,
then it would be up to the individual to cite her to
the executive board and then they would take what-
ever action they deemed as necessar y. As far as I
was concerned, I didn't see her cross the picket
line, so there was nothing I could do to her.
Q Did you say anything further about her or her
working at the store?
A. Not that I recall.
He denied telling Jiminez that if no pickei s were present
employees were obligated to work, denied asking Ji-
minez if anyone had crossed the picket line, and denied
asking Jimmez if there were any pickets at the back
door He does not know why the sanction was lifted, al-
though part of the reason was that the employees had
been out of work for a long time. He thought the strik-
ing Teamsters who were doing the picketing "did a
fairly good job with the people they had." The lifting of
the sanction had an adverse impact on the Teamsters
strike, and was a politically charged, highly sensitive
action. He told employees that if there were no pickets
when they came to work, they could go to work and
finish their shift, even if pickets appeared during the
shift. Menacho said he knew some union members
worked behind picket lines, and a "large number" of
them, approximately 100, were fined by the Union for
that reason One of the reasons he visited stores was to
ascertain if some union members were working behind
picket lines; he checked approximately 20 Alpha Beta
stores (all of them) during the sanction period.
Soares, who was secretary-treasurer of Local 428, tes-
tified that he was with Menacho when they talked with
Jiminez, but that he does not remember the conversation,
although Menacho did most of the talking, which was
"noncontroversial."
O'Day's termination notice shows that she was dis-
charged for "Discontinued reporting for work" on
August 20 to 26, and August 27 to September, when no
pickets were on duty
Discussion
O'Day was terminated for failure to work as sched-
uled, when no pickets were present. Details of the dis-
charge generally are not in dispute. The legal issue cre-
ated by the facts is discussed below
Soares' testimony adds little, if anything, to the testi-
mony of Menacho. Jiminez testi fled that Menacho told
him that if they were scheduled to work and no pickets
were present, employees were obligated to come to work
during the sanction. Menacho denied Jiminez' testimony
on this point. As discussed above, Jiminez' testimony on
this point is corroborated by other witnesses, and is cred-
ited.
The legal issue raised by the discharge is discussed
below.
Linda Parrette At times relevant herein Parrette, a
member of Local 428, worked at Respondent's store 533
as a bookkeeper. She was on a regular schedule, 6 days
each week, Monday through Saturday. Her starting
times were 12 a m. Monday, and 4 a.m. Tuesday through
Saturday The store manager was Harvard Holley, and
the assistant store manager was Larry Moots.
Parrette testified that she learned informally of the
sanction of the Teamsters strike by Local 428 during the
evening of the sanction, and later was so advised by a
union letter sent to her in the mail She talked with
Moots the following day:
I told him that we had been notified that the
strike had been sanctioned, and that we were told
that when we finished our work shift, to leave and
honor the pickets. And I told him that since I was
going to be off the next day, the weekend and
Monday, that I would call him Monday evening
and check as to what the status was of the strike.
When she returned home Monday evening, she called
the store and told someone, whom she does not remem-
ber, that she would not cross a picket line. Thereafter,
she refused to cross the picket line until the sanction was
lifted. She checked with the store by telephone to see if
pickets were there each day or every other day during
the sanction, and never was told that no pickets were
present On Friday, after the sanction was lifted the pre-
ceding day, she talked with Holley on the telephone and
asked for her schedule, and Holley told her that she had
been discharged "because I had not come to work
during the strike." Holley said nothing about pickets not
being present on days she was scheduled to work. No
one in management or the Union ever told her she was
obligated to check for pickets on scheduled workdays, or
that she could be discharged for not working as sched-
uled when there were no pickets. No one from manage-
ment called her during the sanction to tell her no pickets
were present or to ask her to come to work She in-
formed the Union of her discharge, and attended a meet-
ing approximately the end of September. Present were
three discharged employees and union representatives.
She never received a termination notice She attended a
second meeting concerning her discharge in October.
Present were discharged employees, union representa-
tives, a member of the FEC, and Holley They discussed
her discharge. A third meeting was held the end of Oc-
tober at the union hall, attended by discharged employ-
ees and union representatives. The employees were in-
formed of Respondent's offer of reinstatement with bene-
fits but without backpay, and there was much discussion
of the offer, which had to be accepted unanimously, if at
all. One employee discussed the possibility of going to
the NLRB with the problem of the backpay.
Holley testified that pickets first appeared at the store
at approximately noon on Thursday, August 10. Picket-
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that week was intermittent, the pickets arriving any-
time between 8 a.m. and noon, or sometimes not at all
Picketing was less frequent and more sporadic the
second and third weeks of the strike. He worked 10 to
14 hours each day The last day Parrette worked was
Thursday, August 10. She was scheduled to work
Friday, August 11, but did not do so. She called in and
asked about pickets, and he told her that pickets were
there, that she was required to report to work as sched-
uled, and that her schedule would remain posted. Par-
rette had said she had no intention of working, and
would see Holley "when the strike was over," which
prompted Holley's remarks. Parrette did not report for
work the weeks of August 19 and 26, or for a day she
was scheduled during the week ending September 9. He
prepared Parrette's termination notice, and when she
called in on September 8 he advised her that she had
been terminated because she failed to report to work as
scheduled when there were no pickets. Another employ-
ee, Sue Trujillo, took over Parrette's duties during the
strike. Based on his personal knowledge and reports of
employees, Parrette did not call the store during the
strike, except on two occasions to ask about pickets. Hol-
ley's knowledge of the presence of pickets was based on
personal observation and reports of employees. All
except three of the store's employees refused to cross
picket lines. He attended one board of adjustment meet-
ing in late September at which Parrette, union represent-
atives, and a Food Employers Council representative
were present. He explained at the meeting that Parrette
was terminated because she did not work as scheduled
when no pickets were present. Holley denied that he
ever said to Parrette, or anyone else, that Parrette was
discharged because she failed to work during the strike
or refused to cross picket lines.
Discussion
There is little discrepancy between the testimony of
Parrette and Holley, but to the extent there is any, Par-
rette is credited.
Holley's testimony concerning the absence of pickets
until 8 o'clock or so in the morning and their sporadic
picketing and occasional total absence is consistent with
the nature of picketing at all stores involved in this con-
troversy, was corroborated by Trujillo, and is credited
It is clear that Parrette could have reported for work on
several occasions at her regular shift time in the absence
of pickets. Holley's testimony that Parrette did not work
on the days named in the termination notice, and that she
could have reported on those days before pickets came
on duty, is credited. However, that fact does not control
the issue, as discussed below.
Regardless of whether or not Holley told Parrette she
had to report to work each morning as scheduled, the
fact remains that she did not report on days when no
pickets were present at reporting time, and it is that fact
which must be considered in settling the legal issue in-
volved, rather than what Holley may have said Parrette
must do.
Ralph Ramirez: At times relevant herein, Ramirez, a
member of Local 428, was employed at Respondent's
store 516, as a part-time courtesy clerk. The store man-
ager was Christopher Parnello and the assistant manager
was Gregg Powell. Ramirez received a letter from the
Union informing him that Local 428 had sanctioned the
Teamsters strike.
Ramirez testified that on the first day he was sched-
uled to work after the strike was sanctioned he talked
with Powell and told him he could not cross the picket
line Powell replied, "Fine, it was all right." Thereafter,
he did not work during the strike, but checked the work
schedule, as instructed by Powell. Approximately 3 or 3-
1/2 weeks after the strike started, Ramirez talked with
Parnello and asked for 2 days off to visit relatives, and
Parnello said "that'd be all right, be fine." He either
went to the store, or called on the telephone, every day
he was scheduled to work On three or four occasions
when he went to the store he saw no pickets, but did not
report for work because he was "honoring the strike"
He talked with Powell 2 or 3 weeks after the strike
began
He said that if I wanted to work, they could, you
know, they could let me in through the back door
or I could just walk into the front, that they
wouldn't recognize me
I told him, well, I can't work because I'm honor-
ing the picket line; and he goes, well, all right.
He was informed on a Saturday by letter from the Union
that the sanction was lifted, and he reported for work
the first day he was scheduled to work thereafter, on a
Monday (September 11). Parnello told him he had been
discharged for not reporting to work on the preceding
Friday, and Parnello did not give him an opportunity to
explain that he did not get the letter from the Union
until Saturday No one called from the store to tell him
that the sanction had been lifted, or that he was sched-
uled to work. No one from the Union told him it was his
obligation to check for pickets. No one from manage-
ment or the Union told him he could be discharged for
not working as scheduled when no pickets were present.
No one from management called him during the strike to
advise that no pickets were present, or to ask him to
come to work. He informed the Union of his discharge
and attended a meeting in October, also attended by an-
other employee, and by Parnello, a lawyer from Re-
spondent, and two union representatives, at which his
discharge was discussed. He attended another meeting
approximately 2 weeks later at the union hall. Also in at-
tendance were other employees who had been dis-
charged and two union representatives Respondent's
offer of reinstatement without backpay, provided accept-
ance was unanimous, was discussed. Also discussed was
the possibility of seeking backpay through the NLRB.
On cross-examination, Ramirez testified that he left his
house on Friday to visit relatives out of town, and prior
to leaving, had not heard that the sanction was lifted.
His schedule nearly always was posted on Saturday, and
he does not remember whether or not he checked his
work schedule for the week of September 3, or whether
or not he was scheduled to work on Friday or Saturday,
ALPHA BETA CO 1569
September 8 or 9. 34 In any event, he knows that he was
scheduled to work on the Friday (September 1) before
he was terminated
Parnello testified that he usually prepared the store's
work schedules, but if someone else prepared them, he
always approved them He posted the schedules himself
every Friday. When he returned from vacation August 9
pickets were present at the store. They were there "con-
stantly" for approximately 10 days and, thereafter, pick-
eting was very sporadic. No pickets were present from
Thursday afternoon, August 31, until Tuesday, Septem-
ber 5. Thereafter, picketing again was sporadic Ramirez
usually worked on Fridays and Saturdays, and two other
days during the week. Another employee, named Greco,
told Parnello that Ramirez had agreed to work part of
her shift on Saturday, September 2, in addition to work-
ing his own shift. (Ramirez denied having made this ar-
rangement) Ramirez did not report for work on Septem-
ber 2, and no pickets were present on that day Ramirez
was scheduled to work Friday and Saturday, September
8 and 9, but did not report on either day He called Ra-
mirez on the telephone on Friday, but there was no
answer He called again on Saturday, and was told that
Ramirez was out of town. He never talked with Ramirez
about the latter taking time off, other than on one occa-
sion prior to the strike. When Ramirez came to work on
Monday, September 11, he was discharged for not
coming to work on Friday and Saturday, September 8
and 9:
I was waiting for Ralph at the time clock, be-
cause I didn't want him to punch in when he came
to work, because I was going to terminate him. I
had his termination all prepared. When he came in,
I told him that he was terminated I told him why
He challenged that I explained to him. He, also,
said that he hadn't heard about the sanction being
lifted, because he was out of town I asked him why
he was out of town He said, because I wanted to
see my grandparents And then he said—And then I
said, why didn't you show up for work last Satur-
day? He said, well, I just didn't. He says, I was out
of town, then, too I explained to him that Kathy
Greco had said that she was going to work for him
and that he had said, okay, and asked him why he
changed his mind.
He said, because I decided to go out of town in-
stead. And that was basically the extent of the con-
versation. I got him to sign the termination and that
was it
When he prepared Ramirez' termination notice, he relied
on the work schedules, and he showed the notice to Ra-
mirez, although he did not give him a copy since it was
a document for management use All of the store's regu-
larly scheduled employees, other than Ramirez, returned
to work on September 8 and 9 Approximately half of
the employees honored the picket line during the strike.
Parnello said he talked with Menacho about August 20:
3 4 Ramirez later testified that he did remember checking the schedule,
either on Friday or Saturday, September 1 or 2
. I approached—Well, he was in the store. I ap-
proached him. I was working in the meat depart-
ment that day I approached him when I saw him in
the store. I started talking to him as normal and I
told him about the lousy picketing going on And
asked him about, what is a picket line and he ex-
plained to me that if they can't put up a decent
picket line and they're not at the door when they
first show up for work, then let your folks come to
work.
Q. Did he say anything else?
THE WITNESS. He said that if there wasn't, what
he considered a bonafide picket line, if there
weren't pickets at every door, any door that was
uncovered would be—For example, we didn't have
any pickets at the back door, ever. He said, let
your—come through the back door
On cross-examination, Parnello testified that he dis-
charged Ramirez for not working on September 8 and 9
and on the previous Saturday, September 2.
Menacho testified that he talked with Parnello during
the strike, but only in "generalities." He denied telling
Parnello that if the Teamsters could not put up decent
picket lines, the employees could go to work through the
back door.
Discussion
Neither Parnello nor Ramirez was a totally convincing
witness, but between the two Parnello appeared more
credible than Ramirez. To the extent that their testimony
differs, Parnello is credited.
Menacho was not a convincing witness. To the extent
that their testimony differs, Parnello is credited over
Menacho. The Union's and Menacho's attitude toward
the picketing is illustrated by the testimony of Pamela
Scott, discussed elsewhere, and the testimony of Chris
Anderson, who stated
Q. Did you receive any instructions or any infor-
mation from someone at the union when you called
that first time?
A They told me to call in or report to work to
see if I was scheduled to work and that I was ex-
pected to work if there were no pickets
Q Do you know who you spoke to?
A. No, I don't
Ramirez was discharged because he did not report for
work for 2 days after the sanction was lifted, which
would appear to place him in a category different from
employees who were discharged because they did not
work as scheduled during the sanction in the absence of
pickets. However, Parnello testified that Ramirez also
was discharged because he did not work as scheduled on
September 2 That date was not included in the termina-
tion notice, but it is apparent from Parnello's testimony
that the date was considered when the discharge was ef-
fected. Therefore, Ramirez' discharge must be consid-
ered in the same fashion as those employees who were
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged for not working during the sanction The
legal issue thus presented is discussed below. Ramirez'
testimony that he would not work even in the absence of
pickets, while the sanction was in effect, is credited
Terry Rendon: Rendon first started working for Re-
spondent at store 511 in 1976, and during times relevant
herein worked at store 549 as a journeyman clerk under
Store Manager Vincent Spanno and Assistant Manager
Michael Lamb.
Rendon testified that she learned by letter dated
August 9, 1978, which she received from the Union, that
Local 428 had sanctioned the Teamsters strike. On
August 10 she was informed by a fellow employee that
pickets then were present at the store, and that same day
she called Lamb and told him she was not coming to
work that day because of the presence of pickets. Later
the same day she and two fellow employees went to the
store to get their paychecks, and talked briefly with
Spanno, but did not go to work. Thereafter, Rendon did
not work during the sanction of the strike by Local 428.
She called the store each Friday to check the schedule,
and spoke to "the person in charge" When she called
approximately the third week of the strike, she spoke
with Mike Alexander, the head clerk, who told her "that
there was no schedules, that he only had schedules for
the scabs." She checked for pickets when she was sched-
uled during the strike before her shift or shortly thereaf-
ter She learned of the sanction being lifted on the day it
was removed, and she received a letter from the Union
advising her of that action She reported for work the
following day and asked Spanno for her schedule, and he
said she had been terminated. No one from management
or the Union ever told her that she was subject to dis-
charge if she did not work when there were no pickets,
and no one from management called her during the sanc-
tion and asked her to come to work. She received a
notice of discharge. She advised the Union of her dis-
charge, and attended a meeting concerning the dis-
charge, the end of September. Other employees, union
representatives, and representatives of Respondent were
there. They talked about discharges of several employ-
ees, and about the reason for the discharges She attend-
ed a second similar meeting a week or two later, at
which those present argued among themselves concern-
ing the presence or absence of pickets and related mat-
ters. She attended a third meeting relative to her dis-
charge on October 25, at which only discharged employ-
ees and union representatives were present. McLoughlin
stated that there was an offer from Respondent to rein-
state the employees on their former schedules, with se-
niority, but with no backpay, but only if there was unani-
mous agreement among the employees to accept the
offer. Rendon already had gone to the NLRB prior to
the meeting, and a representative advised her to return
to work without backpay if necessary, since she could
"keep going on further" with her claim for backpay,
through the NLRB. She then filed a charge with the
NLRB. A fellow employee, Richard Hutson, was with
her at the time. The employees talked and argued among
themselves, and Rendon told them about her advice from
the NLRB. She then called the NLRB to ask if other
employees could follow the same course recommended
to her, and the answer was yes. She so informed the
other employees, whereupon all of them agreed to
accept the offer
On cross-examination, Rendon testified that she
worked on August 9, and that pickets appeared at the
store after she began working that day Thereafter, she
checked the store for pickets on each morning she was
scheduled to work. She had been told by union repre-
sentatives that the Union had no objection to her work-
ing if there were no pickets
Spanno testified that pickets first appeared at the store
on August 9, and picketing during the second and third
week thereafter was very sporadic and inconsistent The
last time pickets were present was the day before Labor
Day. He was present at the store 6 days each week
during the strike, from 5 or 5:30 a.m. to 6 or 7 p.m. His
observation of the irregular hours and days of picketing
was confirmed to him by other employees During the
early part of the strike, employees asked about their obli-
gation to work and he replied that, if pickets were not
present, they should work their scheduled hours. During
the second week of the strike he, Lamb, and Doug Mi-
chaelson talked at the store with Lou Menacho, a Local
428 business agent, and George Soares, a Local 428 rep-
resentative. Lamb asked Menacho what a picket line
was, and Menacho replied.
His remark was that they had to have a picket at
each door walking and if there wasn't any in the
back door, the boys could come through the back-
door, if there wasn't any in the front they could
come through the front. That was his definition
Spanno asked Menacho about the employees' obligation
to come to work, and Menacho replied that they were
"responsible for coming to work scheduled shifts if there
wasn't any pickets, that they had to go to work." On
August 21 he talked with Rendon and another employee,
in the office:
. . Terry Rendon was in the store with Hammond
to pick up her check and I had the checks I asked
them why they hadn't been reporting to work and
the remark from Terry Rendon was she wasn't
going to cross a picket line. I informed them that at
their scheduled times there were no pickets and that
they had the responsibility to work those scheduled
shifts
Q Was there a response to that?
A. Just yes. Terry said she wasn't working be-
cause there was a strike and that was it.
Q. Did you say anything more?
A. No, I did not
On the dates shown on Rendon's discharge slip as work
absences, no pickets were present at the scheduled start-
ing times Spanno attended the board of adjustment
meeting during the first week of October, and explained
that Rendon was discharged because she failed to report
to work when there were no pickets. Rendon and other
employees contended that pickets were present at their
scheduled starting times Nothing else was stated in de-
ALPHA BETA CO 1571
fense of absence from work. In August 1978 the store
had from 50 to 55 employees, 45 of which were members
of Local 428. Approximately 80 percent of the employ-
ees came to work regularly during the strike. Schedules
were made up each week on the assumption there was
no strike, and if employees did not come to work as
scheduled, replacements were called in and their names
incorporated with the regular schedule. There was no
separate schedule for strike replacements Rendon never
called the store to check for pickets.
Lamb testified that he was a member of Local 428 in
August 1978. He prepared work schedules for the store,
and Spanno approved them. During the first week of the
strike pickets were at the store all the time, 24 hours
each day. During the next 2 weeks picketing was sporad-
ic and irregular. Pickets arrived at 8 or 8.30 a.m., well
after he arrived, and became fewer in number. Lamb
personally observed the hours and irregularity of picket-
ing. Lamb corroborated Spanno's testimony relative to
their conversation with Menacho. He never talked with
Rendon during the strike, and denied Rendon's testimony
that he did. He kept a close watch on the pickets, their
absence or presence, and made notes of their activity as
instructed by Spanno. The only four employees who did
not work in the absence of pickets were Rendon, Mit-
chum, Hutson, and Hammond
Menacho denied the statements attributed to him by
Spanno and Lamb.
Discussion
Spanno and Lamb were impressive witnesses, and they
are credited. It is found that Rendon did not work as
scheduled, when pickets were present at the store, and
that she was discharged for that reason. The legal issue
relative to these facts is discussed below.
So far as the conversation with Menacho is concerned,
Spanno and Lamb are credited
Pamela Scott: Scott, a member of Local 428, worked at
Respondent's store 519 during times relevant herein as a
checker on an irregular schedule that changed each
week. Her store manager was Mariano Capodiece and
the assistant manager was George Chatfield.
Scott testified that she learned about the strike while
on vacation in Los Angeles, and called Capodiece on the
telephone. Capodiece said employees were coming to
work through the back door when pickets were at the
store. When she returned home she had received a letter
advising her that Local 428 had sanctioned the Team-
sters strike. She went to the store as scheduled on
August 16, but saw picketers and returned home without
reporting to work. She did not work thereafter during
the sanction. She learned, informally from news media
and formally by letter from the Union, that the sanction
was lifted. She immediately called Capodiece on the tele-
phone, who said she had been terminated for not coming
to work, and who also said no one had heard from her
since the first day she called. She replied that she was
under the impression it was a sanctioned strike and em-
ployees were not supposed to go to work She received
a letter from Richard Hinshaw, Respondent's director of
labor relations, northern California division, 35 notifying
her of her termination. No one from management or the
Union told her that if she did not work as scheduled
when there were no pickets she could be discharged. No
one from management called her during the strike to
advise her that no pickets were present or to ask her to
come to work. She attended a board of adjustment meet-
ing in early September, also attended by representatives
of the Union and Respondent's management, at which
her discharge and surrounding circumstances were dis-
cussed. She attended a second meeting of union repre-
sentatives and employees who had been discharged by
Respondent. Those present discussed Respondent's offer
of reinstatement with no penalties and no backpay, but
with seniority, provided the employees unanimously
agreed to return to work. The employees were angry,
but decided to accept the offer and pursue their backpay
claims through the NLRB
On cross-examination, Scott said she called the Union
from Los Angeles when she heard about the strike, and
someone, whom she could not identify, told her "if pick-
eters are there, you are not supposed to report in. If
there are no picketers there, you are supposed to report
in." Shortly thereafter she called Capodiece, but did not
ask about her schedule since she still was on vacation.
She later called the Union again, and was told "it was a
sanctioned strike." She never went to the store after the
first occasion on August 16, but she called the store on
one occasion only to see if she was scheduled to work
the following day, and was advised that she was. She did
not report for work that day as scheduled. She did not
know that she was scheduled to work on August 17, 18,
and 19.
Capodiece testified that Scott went on vacation in
mid-July and was scheduled to work August 16, 17, 18,
and 19, but she did not report for work on those days.
During those 4 days pickets were present, but on a spo-
radic basis and not when Scott was scheduled to work
Scott was scheduled thereafter to work the weeks of
August 26 and September 2. He prepared Scott's termi-
nation notice, and he personally knew no pickets were
present on the days shown on the notice, when Scott
was scheduled to work. When Scott called and talked
with him, he told her she was scheduled to work at 4
p.m. August 16, and that she was supposed to report for
work then, if no pickets were present. She did not report
as scheduled, or call in. Other employees who were
union members reported to work on the same shift Scott
was scheduled for, and those employees told Capodiece
that no pickets then were present.
Capodiece's testimony relative to the sporadic nature
of the picketing, and related matters, credibly was cor-
roborated by Chris Anderson, the store's bookkeepker at
the time.
Discussion
Scott and Capodiece agree that Scott did not come to
work or report for work on days she was scheduled to
work. Capodiece's testimony that no pickets were
35 G C Exh 12
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present on those days and that other employees who
were union members did report to work on those days is
credited.
The legal issues involved in Scott's termination are dis-
cussed below.
Craig Wroblewski: Wroblewski, a member of Local
428, worked at Respondent's store 517 at times relevant
herein on an irregular schedule under Store Manager
Martin Falkowski and Assistant Store Manager Frank
Perry. Wroblewski testified that he learned that Local
428 had sanctioned the Teamsters' strike by calling the
Union the day of the sanction, and by letter received
from the Union a couple of days later. He first observed
pickets at the store on August 14. He went to the store
that day, but did not report for work. Thereafter, he did
not work during the sanction On August 18 he and
other employees asked Falkowski why two schedules
were posted, and Falkowski replied that one was a strike
schedule and one was a nonstrike schedule. The employ-
ees asked if they must check their schedules every week,
and Falkowski replied that they did not have to come to
the store, since the schedules would be the same each
week. Wroblewski's schedule was somewhat different on
the two posted schedules. He went to the store "most
every day," at approximately 7 or 8 a m. and talked with
the picketers from 10 minutes to an hour. Pickets were
present each time he checked. The day the sanction was
lifted, Falkowski called him on the telephone:
Well Martin—he said "This is Martin from Alpha
Beta." And he asked me if I knew that the sanction
had been lifted at four forty-two or something like
that today. And I said no, that I didn't.
And he said "Well it doesn't matter anyway be-
cause I've terminated you for not showing up for
work during the strike." And he said if you have
any further questions call Local 428.
Q Was anything else said?
A I don't remember
Q. Did he make any reference to specific days?
A. Oh, yes He said something like on August
1 1 th and on September 7th or something—I don't
remember what days. He gave like three different
days that he said I didn't show up for work And
that there were no pickets there
No one in management or the Union told him that he
should check his work schedule during the strike, that he
should check for pickets on days he was scheduled to
work, or that he could be discharged if he did not work
as scheduled if no pickets were present. No one from
management called him during the strike to advise that
no pickets were present, or to ask him to come to work
He informed the Union of his discharge and a week or
two thereafter attended a meeting at which terminated
employees, union representatives, and representatives
from the Food Employers Council were present The
discharges and attendant circumstances were discussed.
Approximately 2 weeks later he attended a second meet-
ing with the same people, plus managers of stores from
which employees had been discharged The same matters
were discussed. A week or two thereafter, discharged
employees met with union representatives at the union
hall. They discussed Respondent's offer of reinstatement
without backpay, provided the agreement to return was
unanimous The employees agreed to the offer, and de-
cided to pursue their claim for backpay through the
NLRB. Wroblewski already had talked with NLRB rep-
resentatives on the telephone about the problem. On
cross-examination, Wroblewski testified that even though
he checked for pickets almost every day he would not
have worked during the sanction, even had no pickets
been present. He did not check for pickets on September
3 He did not come to the store or call on Friday, Sep-
tember 1 He was told by union representatives that he
could work if no pickets were present, if he wanted to.
On redirect examination, Wroblewski testified that he
would not have worked even in the absence of pickets,
because it was a sanctioned strike He believed he was
"protected" if he did not work in the absence of pickets,
because the strike was sanctioned by Local 428. Some-
one from the Union, whom he cannot identify, told him
he would not be fired if he did not check for pickets. He
denied receiving any correspondence from Respondent
during the strike
Falkowski testified that he was a store manager during
the 1973 meatcutters strike, and the managers were told
by Respondent's labor relations representatives prior to
the strike that retail clerks were obligated to work in the
absence of pickets, if pickets appeared while employees
were on their shift, they had the option of finishing the
shift, or leaving. Managers were advised in 1978 that the
policy of 1973 still was in effect. The first picket in 1978
appeared on August 10, and picketed singly Organized
picketing commenced August 14 at 11 a.m. Thereafter,
picketing was around the clock, except for a few days.
Wroblewski was scheduled to work Friday, August 11,
from 1 to 10 p m He punched in at 1 a m., punched out
for lunch at 5 p.m., and never returned to work. Falk-
woski worked the entire day, and went home at 6 p m.,
as always. No pickets were present during the entire day
of August 11 Falkowski testified.
. I called him the following day when I became
aware of the fact he didn't return to work. I asked
him why he didn't return to work He said, well,
there's a strike And I informed him that if there are
no pickets then he is obligated to work his sched-
uled shift, and informed him that if pickets showed
up while he was working, then yes, he could go
home if he felt so inclined. But there were no pick-
ets that day
Wroblewski was scheduled to work at 10 a.m. on August
14, but did not report for work. Pickets appeared at 11
a.m. Falkowski came to work at 7 a.m. and personally
checked for pickets. On August 21 Wroblewski was
scheduled for work at 9 a m. Pickets did not arrive until
10.10 a.m., based on Falkowski's personal observation.
Wroblewski arrived at 10-30 a.m. and talked with the
picketers. Falkowski asked why he did not report for
work, and Wroblewski replied that he was there in the
morning and pickets were present Falkowski said he had
been there since 7 a.m. and there were no pickets Fal-
ALPHA BETA CO 1573
kowski then said Wroblewski was subject to discharge if
he did not report for work as scheduled if no pickets
were present. On September 3 Wroblewski was sched-
uled for 8 a.m., but did not report to work. Pickets ap-
peared at 8:20 a m. Falkowski attempted, without suc-
cess, to reach Wroblewski by telephone on September 5
He finally reached Wroblewski on September 6 and told
him he -was terminated as a voluntary quit because he
failed to report to work for 3 days
06 cross-examination, Falkowski - testified that his
knowledge of the presence of 'pickets was based on per-
sonal observation and verification of employees' re-
ports. 36 Falkowski prepared all regular schedules, and
the department head prepared all schedules for replace-
ments during the strike, separate schedules were main-
tained. The store had approximately 55 employees, of
which apprOximately 25 to 30 continued to report for
work even though pickets were present Three employ-
ees other than Wroblewski were discharged for not
working as scheduled when no pickets were present.
Employees were to be discharged when they failed to
report for work on three occasions; store managers were
so advised by the district managers. Falkowski prepared
Wroblewski's discharge, based on his own notes and
work schedules.
Discussion
Falkowski was a firm, straightforward, and convincing
witness. Wroblewski was not. To the extent that their
testifriony differs, Falkowski is credited. It is found that
Wroblewski 'did not report for work as scheduled at
times when pickets were not present, and that he was
discharged for that reason The legal issue is discussed
below .
' So far as pak practice of Respondent is concerned
(meatcutters strike of 1973),' the issue involved is dis-
cussed below. •
Issues and Discussion
A. Possible Deferral to Arbitration
Respondent argues that "Deferral to arbitration of the
underlying contractual issues is appropriate"
It is first noted that the NLRB, in the exercise of its
jurisdiction to hear and decide unfair labor practice
cases, has jurisdiction to resolve questions of contract in-
terpretation, regardless of the fact that some other
forum, or an arbitrator, also could hear and decide the
same contract issue. 37 The fact that contract interpreta-
tion is involved, does not, per se, oust the NLRB from
the controversy Respondent refers to the 8(a)(3) charges
as possibly "bogus," but it is clear, as discussed herein,
that those charges are not "bogus."
Respondent further argues that deferral of some issues
would result in "an unwarranted bifurcation so as to
cloud rather than illuminate those issues," and states that
the issues easily could be framed for an arbitrator, result-
36 Falkowskis testimony was supported by his notes, made contempo-
raneously with events to which he testified
37 NLRB v Strong Roofing il Insulation Co. 393 U S 357 (1969),
NLRB v C& C Plywood Corp, 385 US 421 (1967)
ing in an early decision. However, that argument is
based on a self-serving conclusion not warranted by the
record. First, Respondent apparently concedes that the
issues are not limited to contract interpretation; several
other matters are presented, including consideration of
statutory principles. Second, this case does not involve
an arbitrator's award—Respondent asks that the issues
first be presented to an arbitrator, rather than to the
NLRB Thus, Servair39 cited by Respondent is not con-
trolling. There, the issue involved an arbitrator's award.
Under such circumstances, the question of deferral to
future arbitration must be answered in accordance with
principles adhered to by the NLRB. Under the Collyer39
doctrine, as modified by General American Transportation
Corp.," the Board possibly may defer to contractual ar-
bitration in cases involving alleged violations of Section
8(a)(5) of the Act,,but not of Section 8(a)(3), which is in-
vOlved herein. Further, as in Amcar, 4 ' the charges
herein were filed by individual employees, and as in
Amcar, a question is presented as to whether the position
of Locals 428 and 1179 is aligned with that of the charg-
ing individuals That question, , involving possible waiver
Of a statutory right, has been discussed at trial, in briefs
of counsel, and in this decision. Finally, as in Amcar, a
question of statutory interpretation, as well as of contrac-
tual interpretation, here is involved.
, In view of the foregoing, it is found . that this contro-
versy ,is one which properly should be decided by , the
NLRB, rather than being deferred for arbitration under
the contract between the Union and Respondent 42
B. Discharge of Employees Who Did Not Report for
Work as Scheduled During Strike Sanction When
Picketers WERE NOT Present
This group of employees differs from the group of em-
ployees who did not report for work after the sanction
was lifted. The latter group is discussed below.
Some essential facts are not in 'dispute, or are clear
from the record. First, the Teamsters strike, at times rel-
evant to this discussion, was a lawful, primary strike."
Second, picketing by the Teamsters was sporadic and in-
consistent, there were times and days when no pickets
Were present at some stores. Third, Respondent and all
of its employees were fully aware of the primary strike,
its duration, its sanction by the Union, and Respondent's
38• Servair, Inc v -NLRB, 607 F 2d 258 (9th Cir 1979), rehearing grant-
ed 624 F 2d 92 (9th Cir 1980)
36 Collyer Insulated Wire, 192 NLRB 837 (1971)
, 40 228-NLRB 808 (1977) See also Roy Robinson Chevrolet, 228 NLRB
828 (1977)
47 ACF Industries, 247 NLRB 1056 (1980) The deferral portion of the
administrative, law judge's decision was not disturbed by the Board, al-
though other portions were modified ,.
. 42 As argued by the General Counsel in her posttnal brief, deferral
would be improper under Dubo Mfg Corp, 142 NLRB 431 (1963), to an
arbitrator pursuant to agreement of some of the union locals affected by
this controversy, but not including Locals 428 and 1179, which said
agreement was effected during a recess in these proceedings Such a de-
ferral would be untimely and, for the reasons discussed above, contrary
to Board principles ,
43 Respondent's argument that the strike sanction was converted to a
primary strike because some employees involved herein accepted stnke
benefits is found to be without merit
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention that employees were expected to work when
no pickets were present.
1. Right of employees to engage in sympathy strikes
The NLRB and the courts consistently have held that
"Nile right to strike, including the right to engage in
sympathy strikes or refusals to cross other unions' picket
lines, is a right guaranteed by the Act "44 In a case fre-
quently cited for the proposition that sympathy strikers
are making common cause with those involved in a pri-
mary dispute, Judge Learned Hand listed sympathetic
striking as concerted activity constituting mutual aid or
protection, and thus falling within the protection of the
Act 45
The statutory right to honor picket lines and engage in
sympathy strikes may be waived," but such waivers will
be found only under stringent conditions.'" Further, col-
lective-bargaining agreements may provide that union
members are not required to cross picket lines."
The NLRB repeatedly has held that, since those who
honor picket lines are making common cause with pri-
mary strikers, sympathy strikers of the same employer
have the same status as the primary strikers.49
The NLRB and court cases do not draw a clear dis-
tinction between refusals to work and refusal to cross
picket lines when considering the nature of protected
sympathetic activity For example, in Lexington Ship-
building Co., 5 ° the Board affirmed an administrative law
judge's decision wherein he discussed staying away from
work as a sign of sympathy for the strike, and refusing to
cross a picket line, as though the two types of actions
were synonomous." In Texas Foundrzes, 52 the Board
stated, id. at 1681, inter alia:
• . . the work of these employees ceased as a conse-
quence of and in connection with the then current
labor dispute between the Union and the Respond-
ent It is further found that these employees, by
identifying themselves with the Union and by ceas-
ing to work during the strike, gave aid, support, and
assistance to the Union and joined and made
common cause with the strike and concerted activi-
ties of their fellow union members who were within
the bargaining unit.
44 Amcor, supra, Teamsters Local 79 (Redwing Carriers), 137 NLRB
1545 (1962), enfd 325 F 2d 1011 (DC Cir 1963), cert denied 377 U S
905 (1964), NLRB v West Coast Casket Co, 205 F 2d 902, 908 (9th Or
1953), enfg 97 NLRB 820 (1951), Montag Bros , 51 NLRB 366 (1943),
enfd 140 F 2d 730 (5th Or 1944)
45 NLRB v Kohler Swiss Chocolate Co, 130 F 2d 503, 505-506 (2d Or
1942)
46 Waiver principles are discussed below
47 Keller-Crescent Co, 217 NLRB 685 (1975), enf denied 538 F 2d
1291 (7th Cir 1976)
45 NLRB v Rockaway News Supply Co, 345 U S 71, 80 (1952) This
principle is discussed below
45 Pilot Freight Carriers, 224 NLRB 341 (1976) (unfair labor practice
strikers), Cooper Thermometer Co, 154 NLRB 502 (1965) (economic stnk-
ers)
52 235 NLRB 578 (1978)
51 See also, for such failure to distinguish, Canada Dry Corp, 154
NLRB 1763, 1767-70 (1964)
52 101 NLRB 1642 (1952), enf denied on other grounds 211 F 2d 791
(5th Or 1954)
In finding a violation of, inter all.% Section 8(a)(1) of the
Act for discharges of sympathetic nonunit strikers, the
Board concluded (101 NLRB at 1683).
It is no defense to the Respondent that the nonunit
employees were not primarily and directly Involved
in the controversy that gave rise to the strike. Their
refusal to come to work while the strike was in
progress constituted an act of assistance to the labor
organization conducting the strike, within the mean-
ing of Section 7 of the Act.53
The basic law on this issue thus is clear Whether the
issue is framed in terms of a statutory right to honor
picket lines, or in terms of a broad statutory right sympa-
thetically to refrain from working during a strike wheth-
er or not pickets are present, the result is the same The
Board's repeated use of language to the effect that sym-
pathy strikers may refrain from working, and may make
common cause with the primary strikers "during the
course of a strike" establishes that sympathetic strikers
may refuse to work even though pickets actually are not
present The analytical key is the concept that sympa-
thizers are making common cause with primary strikers,
that cause would be defeated if the sympathizers were
half-hearted, and struck only in the presence of the
picket line.
Much trial time was devoted to testimony concerning
the motives of employees. The General Counsel intro-
duced testimony to establish that employees regularly
checked their schedules and checked for the presence or
absence of picketers. Employees and union representa-
tives took the position, at adjustment board hearings and
at trial, that picketers always were present, and that em-
ployees were fired because they refused to cross picket
lines. That testimony was not material or relevant, if the
General Counsel's view of the law of the case is correct,
since under that view employees would not be con-
cerned with whether pickets were present at the stores.
In any event, as found above, it is clear that employees
were fired because they did not report for work as
scheduled when, as a factual matter, pickets were not
present On the other hand, Respondent introduced testi-
mony to show that some employees failed or refused to
work during the strike when pickets were not present for
purely personal reasons, unrelated to the strike. The
question thus is presented as to whether or not motive is
relevant to this issue.
The Board long has held that motive for one's refusal
to cross a picket line is not relevant to a determination of
whether such refusal is protected activity under the Act
A leading case regarding this issue is Montag Bros.,
Inc., 54 wherein the Board found that the motives of two
nonunit women who refused to cross an unauthorized
picket line and return to work were irrelevant (one had
expressed fears of reprisal; the other had indicated her
support for her husband, a union adherent) In Texas
53 Ibid See also A 0 Smith Corp, 132 NLRB 339, 401 (1961), South-
ern Greyhound Lines, 169 NLRB 627 (1968), enfd 426 F 2d 1299 (5th Or
1970), Congoleum Industries, 197 NLRB 534, 537 (1972)
54 Supra
ALPHA BETA CO 1575
Foundries, 55 the Board again rejected the employer's de-
fense to an illegal discharge complaint that the discharg-
ees were not truly sympathetic, but feared for their per-
sonal safety should they cross the picket line. "Whether
employees engage in concerted or strike activities must
be judged by the character of their activity," the Board
held 56
The case cited most frequently in sympathy striker
motive cases is Cooper Thermometer Co , 57 The Board
stated in that decision
• . . the focal point of inquiry in determining
whether Kraucalis' refusal to cross the picket line to
perform production work was a protected activity
must of course be the nature of the activity itself
rather than the employee's motives for engaging in
activity.5
The Cooper Thermometer case was cited and supported
by the trial examiner (and sustained by the Board) in
Tenneco Chemicals," wherein the trial examiner stated
"Easton's motives in honoring the picket line are not a
legitimate subject matter for inquiry."
While the Fourth Circuit Court of Appeals has held
that an employee's refusal to cross a picket line because
of fear of physical harm was not protected activity (the
court reasoned that such fear was not "common cause"
with the primary strikers), 60 the Board specifically has
disavowed the Fourth Circuit's view, and continues to
find that motive for refusing to cross picket lines is irrel-
evant
Based on the foregoing, it is clear that the legality or
illegality of discharge of employees who were dis-
charged because they did not work as scheduled in the
absence of pickets cannot be decided on the basis of mo-
tives of those employees in failing or refusing to work
Unless the right to refuse to work was waived, in one
form or another, employees were entitled not to work
during the Teamsters strike, regardless of their reason for
staying off the job 61
2 Possible waive of the right of employees to
withhold their services during a sanctioned strike
a Contractual provisions
Basic law on contractual waiver is not in dispute and
is of longstanding duration, if such waiver exists, it must
be clear and unambiguous; if it exists, sympathy strikers
are not protected by the Act and are subject to discipline
or discharge
The contractual provisions here involved, quoted
above, are not clear and unambiguous. The phrase prin-
cipally relied on by Respondent to show unambiguity,
55 Supra
36 Id 101 NLRB at 1683
57 Supra
58 Id 154 NLRB at 504
59 176 NLRB 611, 613 (1969) See also 31 Ann Rep 71-72 (1966) of
the NLRB
60 NLRB v Union Carbide Corp. 440 F 2d 54 (1971)
61 Congoleum Industries, supra, 197 NLRB at 547 See also Pacific
Grinding Wheel Co, 216 NLRB 529, 531-532 (1972), Rainbow Coaches,
241 NLRB 589 (1979)
e, "to pass through any picket line," in fact is not ex-
actly descriptive. Respondent argues that inclusion in the
contract of section 17.3 "warrants, if not compels, the
conclusion that the parties understood that the broadly
based no-strike clause prohibited sympathy strike activity
with the exception of those situations specified in Section
17.3." However, that argument avoids the issue. The
General Counsel does not contend that section 17 3 does
not authorize sympathy strikes Rather, it is argued that
the section does not preclude refusals to work during a
sanctioned strike, even though pickets are not present. It
is quite clear from the record that even though picketing
was sporadic at most stores, that inconsistency was not
uniform. Absence of pickets occurred at different times,
and on different dates, at various locations; but at some
store locations picketing was uniform and consistent. The
parties and all employees throughout the store system
were fully aware of the Teamsters strike and its sanction
by the Retail Clerks The strike and sanction were given
broad coverage in the media, by mail posted by the
Union and by Respondent, by personal conversations,
and by a union "hot-line." There is no doubt about the
awareness of all persons involved, concerning the fact
that the strike was in progress, and that the strike was
being honored by some Retail Clerks, whether or not
every door of every store was being picketed It may
well be that most employees worked at those times, and
on those dates, when pickets happened not to appear, but
that fact does not alter the continuing nature of the strike
and its sanction, nor does it dilute the right of some em-
ployees to exercise their statutory right to engage in a
sympathy strike At first blush, it appears possible that
Respondent jumped at the opportunity to discharge em-
ployees the minute they failed to report to work, and
supported their actions on the basis of a technicality, but
the record does not support that conclusion Only a
handful of the total employee complement was dis-
charged; there is no evidence that Respondent wanted to
rid itself of the employees who were discharged, and it is
clear that Respondent took its position as a matter of
principle, rather than because of union or employee
animus. In any event, this issue did not arise because of a
disagreement concerning the basic right of employees to
engage in sympathetic action Rather, it arose because of
the mechanics of that action, and the limited nature of
the language of section 17.3 of the contract.
The trial examiner stated the law on this issue, as fol-
lows, in Newspaper & Mail Deliverers (Interborough
News), 62 and that language was affirmed by the Board:
The significance of a picket line lies in the fact that
it serves as notice of a dispute at the place being
picketed. But it is not necessary that each and every
entrance to struck premises be picketed in order to
convey notice that the premises as a whole are
strike-bound. In this case the employees delivering
newspapers were actually on notice through other
means that the Respondent had resolved to picket
Interborough's entire Independent Subway System
62 90 NLRB 2135, 2150 (1950)
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations, and, though pickets were actually
posted at only certain subway entrances, the em-
ployees could properly view the remainder of the
entrances as likewise out of bounds in the eyes of
the striking union.
The same principle underlies the decision in W-I Canteen
Service. 63
Respondent diligently has sought, and continues to
seek, arbitration of the dispute concerning the meaning
of section 17.3 of the contract. Some of the discharged
employees have contended continuously since they re-
fused to work that they did not want to work even in
the absence of picketers because they felt they had the
right to withhold their services. Respondent has taken
every opportunity, even in the absence of retort by the
Union, to advance its interpretation of the contract. Re-
spondent introduced at trial extrinsic evidence to support
its interpretation of the contract. Under such circum-
stances, it cannot reasonably be concluded that the con-
tract is clear and unambiguous If a waiver is to be estab-
lished, it must be through some medium other than the
contract of the parties 64
b. Collective-bargaining history
Not only does the contract of the parties fail to estab-
lish the waiver alleged by Respondent, there is no evi-
dence that the bargaining history shows an intent, or at-
tempt, to effect such a waiver.
Section 17.3 of the contract has been in agreements be-
tween the Union and food industry employers since the
1940s, but the evidence at trial was limited to post-1970,
when those employers first were represented by the
Food Employers Council. Respondent introduced no
evidence to establish discussion of, or agreement to, the
waiver by the Union or employees of their right to
refuse to work as scheduled during a sanctioned strike
when no pickets are present Further, no employee was
shown to have been discharged or disciplined in the past
for refusing to work in such a situation 65
c. Past practice and work policies
Respondent contends, and the record shows, that the
policy of Respondent Alpha Beta and Respondent
Ralph's provides that employees may, at the option of
the two Respondents, be disciplined in the event of unau-
thorized or unexcused absences. The two Locals, 428
and 1179, acknowledge that policy, and do not challenge
it. The policy has the support of common management
sense, as discussed above, in view of the large sales
63 238 NLRB 609 (1978) As pointed out in the General Counsel's
brief, the fact that sympathy strikes are authorized by the contract does
not compel the conclusion that employees have waived all their rights
inherent in the right to engage in such strikes Here, the issue involves
the method in which employees showed their sympathy, as much as it
involves the nght under which they proceeded Keller-Crescent Co,
supra
64 Whether or not the Union contended prior to trial herein that the
employees had a right not to work as scheduled when no pickets were
present is irrelevant
65 Hinshaw testified that there have been such discharges in the past,
but that testimony appeared self-serving and unconvincing, was not sup-
ported by any documentation or recitation of facts, and is not credited
volume and busy nature of the grocery stores involved.
However, that policy and its enforcement do not resolve
any issue herein.
Respondents notified all employees, both by mail and
by formal notices posted in stores at prominent places,
that employees were obligated to work as scheduled in
the physical absence of pickets. 66 So far as the record
shows, no employee challenged that position or com-
plained to the Union about it. Menacho made such a
statement to employees, and acknowledged his agree-
ment with the position to store managers. However, nei-
ther of those circumstances constituted a waiver of the
kind urged by Respondent. Respondent's August 14
letter and the notices posted in stores by Respondent
were unilateral statements which, so far as the record
shows, never were communicated to the Union, or ac-
quiesced in by the Union No link was shown by Re-
spondent between the statements contained in that letter,
and the contract of the parties, or its bargaining history
There is no basis on which to conclude that Respond-
ent's letter, or any statements made therein, became part
of the contract between the parties, or constituted a sep-
arate agreement or waiver of employee rights In view of
such facts, the letter not only does not support Respond-
ent's contentions relative to a waiver but constitutes a
violation of Section 8(a)(1) of the Act, as alleged by the
General Counse1. 67 Menacho's statements to employees
and store managers, discussed above, appear to show his
agreement with Respondent's position. However, those
statements must be assessed in context. Menacho was a
lower-echelon representative of the Union, and there is
no evidence that he was authorized or directed to make
such statements. Menacho was not a contract negotiator
of the Union, and there is no evidence that his statements
were anything more than his personal opinion. He made
the statements only to a few of the thousands of Re-
spondent's employees, and he made them in the stores, in
the presence of store managers, and in the heat of battle.
Such conditions give little opportunity for reflection, ar-
gument, or confirmation with union officials. Under such
circumstances, Menacho's statements did not constitute a
waiver of employee rights as alleged by Respondent.68
It is further found that failure of the Union to protest or
challenge Respondent's position of waiver during board
of adjustment grievance meetings did not constitute
agreement with Respondent's position." The Union was
not required then to agree or disagree with Respondent.
As pointed out above, the Union, at that time, was pre-
occupied with but one matter—the jobs of the employ-
ees, some of whom had worked for Respondent several
years. McLoughlin was quite concerned about those
66 The Union also sent letters to the employees, telling them they were
authorized to work if requested to do so in the absence of pickets Many
employees took advantage of that offer, since It relieved them of any
worry about possibly being fined for working However, those letters
neither suggested nor stated that employees must work in the absence of
pickets, nor did they state, expressly or implicitly, that the Union had
waived or would waive the right of employees to refuse such work if
they so desired
67 Amcor, supra
68 Amcor, supra, American Cyanamid Ca, 246 NLRB 87 (1979)
69 Keller-Crescent, supra, Amcor, supra
ALPHA BETA CO 1577
jobs, and was doing all he could to get the employees
back to work as soon as possible. The principal topics of
discussion were the facts of discharge and the status of
picketing.
Respondent introduced testimony and evidence con-
cerning an agreement reached by the Retail Clerks and
FEC during a butchers' strike in 1973, alleging that the
agreement showed past practice of the parties herein to
waive the right of employees not to work during a sanc-
tioned strike when no pickets are present In that in-
stance, it was agreed that the stores, which sold both
meat and merchandise, would cease selling meat prod-
ucts, and that union members 'who had been honoring
the strike would return to work. However, that agree-
ment does not stand for the proposition urged by Re-
spondent. The agreement did not require that employees
must work in the absence of pickets; it merely removed
from employees the burden of possible union reprisal in
the event they worked when no pickets were present
No waiver of employee statutory rights was involved."
Finally, Respondents contend that a waiver of employ-
ee rights is shown by the conversation between Mahon
and Chuck Mattson, a union business representative, dis-
cussed above in "Findings of Fact" Matt son did not tes-
tify, and Mahon's testimony is not credited in its entirety.
It is not clear from Mahon's ambiguous statements that
Mattson did, as contended by Respondent, agree with
Respondent's position relative to a waiver when he
talked with Mahon. However, assuming arguendo that
he did, such a private statement was an expression of
opinion and did not, standing alone, establish that a
waiver existed. The statement was not tied in any
manner to the Union, or to the contract between the par-
ties The statement is much the same as those of Mena-
cho, discussed above, and does not establish a waiver for
the same reasons Menacho's statement did not.71
3. The settlement issue
It is found, above, that neither the Union nor its mem-
bers ever waived, contractually or otherwise, the statuto-
ry right of Respondent's employees to engage in protect-
ed sympathetic activity, and that Respondent illegally
discharged 15 of their employees (named below) in viola-
tion of that right. Those 15 employees were discharged
because they failed to report for work during the sanc-
tioned period of the strike Employees discharged for
failure to report after the sanction was withdrawn are
considered separately below.
Respondent contends that the settlement agreement of
October 25, discussed above in the "Background Sum-
mary," was a "final and binding" resolution of all 21 dis-
charges contested herein, and that the settlement agree-
ment should be deferred to.
So far as the group of 15 is concerned, deferral is not
warranted because it is clear that the agreement results in
deprivation of employees' statutory rights without the
consent of the employees or then union. Deferral under
Spielberg 72 would be Improper, since the discharges were
70 Cf Amcar, supra
" Amcor, supra
72 Spielberg Mfg Co, 112 NLRB 1080 (1955)
not pursued to an impartial tribunal, i e., to an arbitrator
pursuant to provisions of the contract of the parties."
The agreement of the parties was a private one, follow-
ing pre-arbitration board of adjustment meetings.
Deferral to the settlement agreement would be repug-
nant to the Act, since, as shown above, the 15 discharges
were unlawful. Existence of a settlement agreement
which perpetuates those unlawful discharges does not
preclude Board action to rectify the wrong. 74 The issues
discussed herein were not discussed or resolved at the
board of adjustment hearings, or otherwise, prior to trial.
Further, the employees who were discharged never
agreed to accept the offer of Respondent to return to
work without backpay, as an abandonment of all their
rights under the Act. They immediately talked with the
NLRB, and commenced pursuit of backpay under the
Act 7 5 Local 428's agreement with Respondent may
have been "final and binding" so far as those parties
were concerned, but their agreement did not preclude
the individuals from acting on their own, relative to
backpay.
C Discharge of Employees Who Did Not Report for
Work as Scheduled After the Strike Sanction Was
Withdrawn
The factual situation relative to all 21 employees is dis-
cussed in detail, above. So far as Kimber, Alarcon, Alva-
rado, Lopez, and Herrera are concerned, the record is
clear that they were discharged for cause The impor-
tance of dependable work attendance in Respondent's
stores is discussed above. Whether or not this group of
employees was discharged within a time that the General
Counsel may consider "reasonable" after the sanction
was withdrawn is irrelevant. The employees were fully
aware of the strike and the sanction, and it was incum-
bent upon them to report for work as scheduled after the
sanction no longer protected them in their absences. The
General Counsel implies that it was Incumbent upon Re-
spondent to get in touch with employees and ask them to
return to work, but that was not Respondent's responsi-
bility. Further, it is noted that nearly all employees did
report for work on their first shifts after the sanction was
lifted.
As previously discussed, the record does not show a
personal or union animus on the part of Respondent, nor
does it show that Respondent discharged the five em-
ployees in retaliation for their actions, or for any reason
other than the necessity of having full employee comple-
ments on hand for business. Only a few of Respondent's
many employees are involved in these proceedings, and
at no place in the record is there an Indication of pattern
reprisal or design These five employees chose not to
comply with normal and reasonable rules relative to
work attendance, and they were discharged for that
73 WI:11.pp°' Corp, 216 NLRB 183 (1975), Keller-Crescent, supra T 7'
Industries, 235 NLRB 517 (1978)
" Roadway Express, 246 NLRB 174 (1979), American Cyanamid Co,
239 NLRB 440 (1978)
73 Respondent argues that not all of the 15 discharged employees pur-
sued their cases with the NLRB That fact is irrelevant, since statutory
rights, rather than contractual rights, control the issues
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason. At the time of discharge, those employees were
not under the umbrella of protection afforded the other
15 employees, by the law relative to sympathetic strikers.
The settlement agreement covered these five employ-
ees as well as the other 15. There is no basis on which to
go behind that agreement, since a violation of the Act is
not involved. The agreement was worked out between
Respondent and the Union, and covered reinstatement of
the five without backpay. If the five employees accepted
that agreement and returned to work, that was their
choice, and there is no basis on which to hold that the
agreement is repugnant to the Act. Section 17.1 of the
bargaining agreement is a proscription of strikes or work
stoppages, the only exception being provided by section
17 3 relating to sympathy strikes. Section 17.3 is limited
to sanctioned sympathy strikes. Once the sanction was
withdrawn, the protection of section 17.3 also was with-
drawn, and section 17 1 was effective. Under principles
normally applied in alleged 8(a)(3) violations, the five
were discharged for cause unrelated to the Act.
Kathy Holland: As discussed above, Holland was not
discharged She simply quit working on August 12, and
her quit was recorded by Respondent as "Discontinued
reporting for work." That quit was not challenged by
any union official during trial or otherwise. Holland did
not testify, and no credibility resolution relative to her
case is necessary. Holland did not attend any board of
adjustment hearing, or otherwise indicate any interest in
this controversy. She did not call or visit the store after
August 12 Until August 12, Holland crossed the picket
line to work. The Union dismissed Holland's claim at the
first board of adjustment meeting.
Under such circumstances, there is no legal issue upon
which to base a recommendation that Holland be rein-
stated by Respondent. She was not discharged because
she did not report for work as scheduled in the absence
of pickets. She terminated her own employment soon
after picketing commenced, and never thereafter assert-
ed, through herself or the Union, a right to be permitted
to return to work.
B. Validity of the Sanction
Respondents argue that because the membership of
Local 428 did not vote on the issue of whether to sanc-
tion the Teamsters strike, the sanction was invalid, and
any sympathy strike action taken by alleged discrimma-
tees was unprotected. 7 6
The bargaining contract provides that employees may
refuse to work while honoring a strike sanctioned by the
Retail Clerks Bay Area Council. The Council sanctioned
the strike, and whether the Council had authonty to
impose a sanction under Local 428's constitution and
bylaws is irrelevant to the issue of whether the Team-
sters strike had been properly sanctioned under the terms
of the collective-bargaining agreement. Respondents
argue that because Local 428's bylaws require that exec-
utive board decisions must be approved by the member-
ship, a failure to submit the board's decision to sanction
the Teamsters strike to the membership makes such deci-
sion improper. However, the record shows that the
76 There is no contention that the sanction of Local 1179 was invalid
membership of Local 428 approved the executive board's
action at their regularly scheduled meeting in September
1978. Even had the membership not approved the
board's action, McLoughlin credibly testified that au-
thority to sanction another union's strike is vested in the
Council rather than in local unions, and that there is no
provision in the contract or bylaws requiring the mem-
bership to vote on the Council's action. Local 428's
bylaws provide that employees can be fined for crossing
or working behind a sanctioned picket line established by
a union other than the Retail Clerks, if the sanction also
is approved by the local's executive board and the local
has given notice to the membership affected by the
picket line. Such approval and notice were given here
This argument by Respondent is found to be without
merit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with their operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices, in violation of Section 8(a)(1)
and (3) of the Act, I shall recommend that they be or-
dered to cease and desist therefrom, and take certain af-
firmative actions designed to effectuate the policies of
the Act.
It has been found that Respondents unlawfully dis-
charged the following employees:
Terry Rendon Craig Wroblewski
Richard Hutson Ralph Ramirez
Robert Hammond Alex Avlakeotes
Carol Mitchum Norma Myers
Linda Parrette Florence O'Day
Jackie Niswonger Daniel Gonzalez
Pamela Scott Josie Melendez
Elizabeth Mahon
All employees except Mahon were reinstated by Re-
spondents, with seniority and benefits, but without back-
pay. I will, therefore, recommend that Respondent
Alpha Beta offer Mahon her former job or, if that job no
longer exists, a substantially equivalent job, without prej-
udice to her seniority and other rights and privileges. I
will recommend that Respondents make whole all the
above-named employees for any loss of earnings suffered
by reason of the discrimination against them, by payment
to them of sums of money equal to that which they nor-
mally would have earned, absent the discrimination, less
net earnings during such period, with interest thereon to
be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as set forth
in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida
ALPHA BETA CO. 1579
Steel Corp., 231 NLRB 651 (1977). It will be further rec-
ommended that Respondent preserve and make available
to the Board, on request, all payroll records, social secu-
rity payment records, timecards, personnel records and
reports, and all other records necessary and useful to de-
termine the amounts of backpay due and the rights of re-
instatement under the terms of these recommendations.
On the basis of the foregoing findings of fact and on
the entire record, I make the following
CONCLUSIONS OF LAW
1. Alpha Beta Company and Ralph's Grocery Compa-
ny are, and at all times material herein have been, em-
ployers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Retail Clerks Union, Local 1179 and Local 428,
AFL-CIO are, and each of them is, labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondents violated Section 8(a)(1) of the Act by
telling their employees in letters that the employees were
to report for work as scheduled in the absence of pickets
during a sanctioned strike, or risk disciplinary action.
4. Respondents violated Section 8(a)(3) and (1) of the
Act by discharging employees because of their protected
activity.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
"
,