Key Food Stores Cooperative, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1987

286 N.L.R.B. 1056 (N.L.R.B. 1987)

1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Key Food Stores Cooperative , Inc. and Joseph Tu-
disco and John D. Smallman. Cases 29-CA-
11866, 29-CA-12028, 29-CA-1193 3
23 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 14 May 1986 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief;' the General Counsel filed a cross-exception;
and Charging Party Smallman filed a brief in oppo-
sition to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions2 and briefs and
has decided to affirm the judge's rulings, findings, 3
and conclusions only to the extent consistent with
this Decision and Order, and to modify the
remedy.4
1. The judge found that the Respondent's super-
visors, Stamler, Conselyea, and Oehm, engaged in
surveillance of employee Tudisco's TDU activities
' The Respondent has requested oral argument The request is denied
as the record , exceptions , and briefs adequately present the issues and the
positions of the parties
No exceptions have been filed to the judge's finding that a contrac-
tual issue, cognizable under the parties' collective -bargaining agreement,
is implicated by the complaint allegation that Supervisor Stamler on 15
April 1985 unlawfully threatened employee Tudisco with discharge for
distributing Teamsters for a Democratic Union (TDU) literature Nor
have any exceptions been filed to his recommendation that this allegation
be dismissed because of its deferral to arbitration Consequently, these
issues are not before us for ruling on the merits We therefore find it un-
necessary to pass on the judge's earlier findings on the question whether
Stamler's conduct violated Sec 8(a)(1) of the Act, and we shall delete
that portion of the recommended Order relating to the judge's apparent
finding of such a violation We shall, however, despite the dismissal of
the allegation , retain jurisdiction over this matter for the limited purpose
of determining whether the grievance of Tudisco has been processed in
accordance with our Order below In this regard , the Respondent must
waive any timeliness provisions of the grievance arbitration clauses of the
contract to permit the grievance to be processed
S The Respondent has excepted to some of the judge's credibility find-
ings 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 Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We note that the judge inadvertently referred to the Free Key Press as
the Key Free Press in sec II(B) of his decision and as the Free Key
Review in sec II(c)(1) of his decision
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 US C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
on 22 and 23 May 19855 in violation of Section
8(a)(1) of the Act. We find merit in the Respond-
ent's exceptions to the judge's finding.
The relevant facts are as follows. On 22 May, at
the 3:30 a.m. lunch break for the third shift, Tu-
disco6 solicited signatures on the sidewalk outside
the warehouse for a petition addressed to the union
president protesting the fact that supervisors held
union cards. As Tudisco did so, Conselyea and
Oehm watched him from 10 or 15 feet away. They
remained watching for 4 or 5 minutes, said nothing
to him or to each other, and then turned around
and went inside. At lunchtime on 23 May, outside
an entrance to the warehouse, Stamler also
watched Tudisco for 4 or 5 minutes, said nothing,
and left.
The judge found that the conduct of the three
supervisors constituted overt surveillance such as
would tend to discourage employees from signing
the petition and Tudisco from soliciting their signa-
tures. Relying on NLRB v. Intertherm, Inc., 596
F.2d 267 (8th Cir. 1979), enfg. in relevant part 235
NLRB 693 (1978), the judge found that the super-
visors' conduct tended to interfere with, restrain,
or coerce employees in the free exercise of the
rights guaranteed them by Section 7 of the Act.
Contrary to the judge, we find that the supervi-
sors' observation of Tudisco as he solicited signa-
tures for a petition outside the warehouse on 22
and 23 May does not constitute unlawful surveil-
lance. In this regard, we note initially that the case
relied on by the judge does not support his finding.
NLRB v. Intertherm, above, is factually distinguish-
able in a critical respect from the instant case since
the supervisor there did not merely observe an em-
ployee who had distributed authorization cards but
actually removed an authorization card from the
employee's pocket and examined it. Further, the
judge's finding of a violation here is inconsistent
with the many Board cases holding that an em-
ployer's mere observation of open, public, union
activity on or near its property does not constitute
unlawful surveillance.? Accordingly, we shall dis-
miss this portion of the complaint.
2. The judge found, and we agree, that the Re-
spondent discharged employee Smallman on 27
May for reasons associated with his activities as a
shop steward and in support of the TDU, in viola-
5 All dates are in 1985 unless otherwise specified
6 We note that the judge inadvertently referred to 3 30 p in rather
than 3 30 a in and once referred to Tudisco as Santarelli
' See e g, Hoschton Garment Co., 279 NLRB 565 (1986), Emenee Ac-
cessories, 267 NLRB 1344 (1983), Porto Systems Corp, 238 NLRB 192
(1978), Chemtronics, Inc, 236 NLRB 178 (1978), Larand Leisurelres, Inc,
213 NLRB 197, 205 (1974), enfd 523 F 2d 814 (6th Cir 1975), Milco,
Inc, 159 NLRB 812, 814 (1966), enfd 388 F 2d 133 (2d Cir 1968)
286 NLRB No. 102
KEY FOOD STORES 1057
tion of Section 8(a)(3) and ( 1) of the Act-8 In
adopting the judge 's refusal to defer to an arbitra-
tor's 11 July decision finding just cause for Small-
man's discharge , we do so on the basis that the ar-
bitrator 's decision is "clearly repugnant to the pur-
poses and policies of the Act." Spielberg Mfg. Co.,
112 NLRB 1080, 1082 (1955). Specifically , we rely
on the facts that the arbitrator in his decision on
the merits of the discharge tool: into consideration
Smallman's postdischarge picketing ; Smallman's in-
ternal union activities , including his critical attitude
towards some of the Union 's representatives; and
the merits of the grievances employees had asked
Smallman to investigate on 23 May.9 Therefore,
we find it unnecessary to pass on the judge 's addi-
tional finding that Smallman was not adequately
and timely advised of the issues he was confronted
with at the arbitration hearing or that there were
such procedural infirmities at the hearing that the
hearing was not "fair and regular ." Spielberg at
1082.
3. Finally, the judge found that the Respondent
threatened Tudisco with discharge in violation of
Section 8(a)(4) and ( 1) by initiating an arbitration
proceeding against him on 28 August because he
had filed a charge with the Board . We agree with
the judge 's finding , 10 but shall modify his recom-
mended Order , in accordance with the General
Counsel's cross -exception , to require that the Re-
spondent withdraw its request that an arbitration
proceeding be initiated to discharge Tudisco, ex-
punge from its records any reference to the Re-
spondent 's request for such an arbitration, and
notify Tudisco that this has been done.
ORDER
The National Labor Relations Board orders that
the Respondent , Key Food Stores Cooperative,
8 The judge found that Smallman spent 1 1/2 hours writing up griev-
ances at the start of his shift on 23 May and 1 hour later adjusting an
employee's vacation time The Respondent contends that Smallman de-
voted 2-1/2 hours to grievances at the beginning of his shift in addition
to the later hour While the difference does riot affect our result , we note
that the judge did not resolve conflicting testimony about whether Small-
man performed work in addition to processing grievances during the first
part of his shift
9 Contrary to our dissenting colleague, we find that the arbitrator did
not merely "mention" such other conduct, rather he explicitly relied on
that conduct in finding that Smallman engaged in serious "improprieties "
Moreover , what the arbitrator called "improprieties" is conduct that the
Board , certainly in the case of Smallman 's picketing and internal union
activity, finds protected under Sec 7 of the Act.
10 We note that the judge 's refusal to admit an 8 July letter from a
Board field examiner , proffered by the Respondent, was at most a harm-
less error , because neither the alleged discrepancy allegations in that
letter and the testimony by Security Director Berti about a conversation
with Tudisco concerning a locker break- in, nor the Regional Director's
refusal to issue a complaint on the basis of some of the allegations con-
tained in Tudisco's charge, is dispositive of Tudisco's good faith or ve-
racity in making those allegations
Inc., Brooklyn, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they perform
shop steward duties required by the Union's consti-
tution and bylaws and the collective-bargaining
agreement between the Union and the Respondent,
or because they engage in intraunion activities.
(b) Threatening employees with discharge by ini-
tiating arbitration proceedings against them because
they have filed charges with the National Labor
Relations Board.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer John D. Smallman immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section
of the decision.
(b) Remove from its files any reference to the
unlawful discharge and notify the employee in
writing that this has been done and that the dis-
charge will not be used against him in any way.
(c) Withdraw its requests to initiate an arbitra-
tion proceeding seeking the discharge of Joseph
Tudisco.
(d) Remove from its records any reference to the
request for an arbitration proceeding against Tu-
disco and notify him in writing that this has been
done and that evidence of the unlawful request for
arbitration will not be used as a basis for future
action against him.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its facility in Brooklyn, New York
copies of the attached notice marked "Appen-
dix." 11 Copies of the notice, on forms provided by
r i If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 29, after being
signed by the Respondent's authorized representa-
tive , shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not found herein , provided that regarding the ques-
tion of the Respondent 's threat to discharge Tu-
disco:
Jurisdiction over these proceedings is retained
for the limited purpose of entertaining an appropri-
ate and timely motion for further consideration on
a proper showing that either (a) the dispute has
not, with reasonable promptness , been resolved by
amicable settlement in the grievance procedure or
submitted promptly to arbitration , or (b) the griev-
ance or arbitration procedures have not been fair
and regular or have reached a result which is re-
pugnant to the Act.
CHAIRMAN DOTSON , dissenting in part.
Contrary to my colleagues I would defer to the
arbitrator 's decision to uphold the 28 May 19851
discharge of John Smallman and dismiss that por-
tion of the complaint.
Smallman's discharge was considered by the ar-
bitrator 20 June pursuant to a union filed grievance
under article 25 of the collective -bargaining agree-
ment . The arbitrator found that Smallman was enti-
tled to lost earnings for the period 27 May to the
date of the award, 11 July, because the manner of
his discharge violated the collective -bargaining
agreement . The arbitrator concluded , however,
that the discharge itself was justified because of
Smallman 's insubordinate refusal to refrain from
talking to workers during work time 23 May. The
arbitrator found that Smallman was obligated to
return to work when directed to do so , and that
the evidence that past grievances had been handled
during work hours did not give Smallman the right
unilaterally to insist on talking to workers and to
distribute new grievance forms during work hours.
The judge found , and the majority agrees, that
the contractual issue considered by the arbitrator is
factually parallel to the unfair labor practice issue,
i.e., whether Smallman was discharged for union
activity , and no party disputes that the arbitrator
1 All dates are in 1985
was presented with the facts relevant to the resolu-
tion of this issue . The majority, however, charac-
terizes the arbitrator 's decision as repugnant to the
Act under the Spielberg doctrine2 because in up-
holding the discharge the arbitrator took into ac-
count Smallman 's postdischarge picketing , internal
union activities , and the merits of grievances Small-
man was investigating the day he was discharged.
A brief look at the arbitrator's decision, which is
part of the record before us, illuminates the fallacy
of that position . To begin with , the arbitrator's de-
cision makes clear that the greatest weight is given
to the evidence that Smallman was discharged for
refusing to obey a supervisor 's direct order. Thus,
the arbitrator relied on evidence that Smallman
continued talking to workers during work hours
after being told to stop , and that he persisted in dis-
tributing grievance forms on work time.
While the arbitrator does state "further" that
Smallman 's postdischarge picketing of the Employ-
er's warehouse "was not an appropriate way to re-
solve his grievance" and mentions that Smallman
was critical of some internal union political activi-
ty, the majority cites no case , and I am unaware of
any, to indicate that the mention of this conduct in-
validates the award. As is noted above , the arbitra-
tor was faced squarely with the same issue that is
the subject of the 8 (a)(3) allegation and was pre-
sented with the facts relevant to its resolution. The
award reflects the arbitrator 's conclusion that
Smallman was discharged for insubordination as
argued by the Respondent and had engaged in seri-
ous improprieties . As the judge's decision points
out, deferral under Spielberg does not require
agreement with the arbitrator 's findings or even
that the decision be totally consistent with Board
precedent . For these reasons, I would find that the
General Counsel has not met its burden of demon-
strating deficiencies in the arbitral process,3 and
would therefore dismiss the 8(a)(3) allegation.
2 Spielberg Mfg Co, 112 NLRB 1080, 1082 (1955)
9 Olin Corp , 268 NLRB 573 (1984)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
KEY FOOD STORES
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge employees because they
perform duties as shop stewards or engage in in-
traunion activities.
WE WILL NOT threaten employees with dis-
charge by initiating arbitration proceedings against
them because they have filed charges with the Na-
tional Labor Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer John D. Smallman immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed and
WE WILL make him whole for any loss of earnings
and other benefits resulting from his discharge, less
any net interim earnings , plus interest.
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way.
WE WILL withdraw our request to initiate an ar-
bitration proceeding seeking the discharge of
Joseph Tudisco.
WE WILL remove from our records and notify
Joseph Tudisco that we have removed from our
records any reference to the request for an arbitra-
tion proceeding against him and that evidence of
our unlawful request for arbitration will not be
used as a basis for future action against him.
KEY FOOD STORES COOPERATIVE,
INC.
Amy S. Krieger, Esq., for the General Counsel.
Milton Waxenfeld, Esq. (Warshaw, Burstein, Cohen,
Schlesinger & Kuh, Esqs.), of New York, New York,
for the Employer.
Daniel E. Clifton, Esq. (Clifton & Schwartz, Esqs.), of
New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was heard by me at Brooklyn, New York, on
21 October 1985 and at New York, New York, on 21-24
October 1985. The three complaints in this consolidated
1059
proceeding allege threats and surveillance in violation of
Section 8(a)(1) of the National Labor Relations Act (the
Act); the discharge of John D. Smallman for union-con-
nected activities protected by Section 7 of the Act, and
refusal to reinstate him, in violation of Section 8(a)(3)
and (1) of the Act; and the threat of discharge and the
institution of an arbitration proceeding seeking an award
to permit Respondent to discharge Joseph P. Tudisco be-
cause he had filed a charge under the Act, in violation of
Section 8(a)(4) and (1) of the Act.
The Respondent's answers to the respective complaints
deny all allegations of wrongdoing and statutory viola-
tion and allege affirmative defenses to the effect that this
tribunal should defer to an arbitration award already
made that upheld Smallman's discharge and should defer
to Respondent's pending request for arbitration respect-
ing Tudisco's discharge, the same being the very arbitra-
tion request complained of as a violation of Section
8(a)(4) and (1) in this proceeding. It was further alleged
affirmatively that Tudisco had lost the protection of the
Act because he knew that the charge he filed against Re-
spondent was false.
The parties were afforded full opportunity to be heard;
to call , examine , and cross-examine witnesses; and to in-
troduce relevant evidence. Posthearing briefs have been
filed on behalf of the General Counsel, on behalf of the
Respondent and on behalf of John D. Smallman, one of
the Charging Parties.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs submitted on behalf of the respective parties, I
make the following
FINDINGS OF FACT
I. JURISDICTION
There is no issue regarding jurisdiction. The Respond-
ent's answers admit, and I accordingly find, that Re-
spondent purchases and receives at its warehouse in
Brooklyn, New York, annually, from points outside of
New York State, goods and materials valued in excess of
$50,000; that Respondent is and at all material times has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act; and that
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 138
(the Union) is and at all material times has been a labor
organization within the meaning of Section 2(5) of the
Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview'
Respondent is engaged in the wholesale distribution of
groceries and related products through affiliated but in-
' The matters narrated without evidentiary comment are those facts
found by me on the basis of admissions in the answer, data contained in
the exhibits, stipulations between or concessions by counsel , undisputed
or uncontradicted testimony , and, in instances where conflicts in the testi-
mony did not warrant discussion, the testimony which I have credited
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dependent stores and retail chains of stores. Its principal
office is located at its warehouse in Brooklyn, New
York Smallman and Tudisco are warehouse employees
and members of a bargaining unit represented by the
Union. Both of them are active in an organization of dis-
sident Teamsters members known as "Teamsters for a
Democratic Union" (T.D.U.) Smallman was also a shop
steward, having been elected to that position pursuant to
the union bylaws.
During the spring and summer of 19852 there was a
lot of ferment from internal dissensions among the union
employees at the warehouse. The T.D.U. supporters
began publishing a newspaper, the Free Key Press, in
support of T.D.U., and another group of employees
began putting out a paper called the Key Review, which
supported the incumbent union administration. These are
activities that are protected by Section 7 of the Act.
United Parcel Service, 261 NLRB 1012 (1982); Steelwork-
ers Local 1397, 240 NLRB 848 (1979).
On 27 May, Smallman was discharged, an event that
touched off picketing at the warehouse and at one of the
retail affiliates by T D.U. members who were friends of
Smallman . Smallman participated in the picketing at the
warehouse. The collective-bargaining agreement provid-
ed that, except for certain cases of extreme misconduct
that were specified, the pay of any discharged employee
would continue until a final decision of the arbitrator,
provided the Union demanded arbitration within 48
hours after written notice from the Employer to the
Union of the employee's discharge. During the pendency
of the arbitration, it was optional with Respondent to
have the employee perform his customary duties. There
was also a general provision for arbitration of any dis-
pute between Respondent and an employee which the
Respondent and the Union were unable to adjust "amica-
bly and as speedily as possible." Smallman's discharge
was upheld by an impartial arbitrator.
On 28 August, Respondent served notice of its inten-
tion to arbitrate its right to discharge Tudisco.
The General Counsel contends that the Respondent's
actions against Tudisco and Smallman resulted from its
displeasure at their activities in support of the T.D.U.
and, in Smallman's case, for the further reason that he
was zealously performing his duties as shop steward.
Smallman's attorney expressed the belief that his client's
discharge resulted from Respondent's ill-informed con-
cern about the T.D.U. drive among the warehouse em-
ployees. Actions by Respondent's supervisory personnel
are cited to demonstrate the Respondent's favoritism to-
wards the Union and are also alleged as separate and in-
dependent violations of the Act.
Some of the provisions of the collective-bargaining
agreement are pertinent.
Article 6 prohibits summary discharge of employees
"for any reason except [Employer] having caught said
employee in a dishonest act, intoxicated while on duty,
or fighting on the job." Other discharges are dependent
on the final determination of an arbitrator, provided the
Union demands arbitration within 48 hours after notifica-
z All dates hereinafter mentioned are in 1985 except as otherwise
stated
tion of the discharge from Respondent. In this instance,
however, the Respondent summarily discharged Small-
man and then sent notification to the Union.
Article 11 of the agreement provides:
The employees of each employer shall elect one of
their members to act as shop steward, whose duty it
shall be to see that the conditions of this agreement
are not violated by either the Employer or employ-
ee. . . He shall not be discriminated against by the
Employer.
Article 24 gives the arbitrator the power to determine
whether any question of legality is raised in good faith.
Article 25 provides for arbitration in the event of a
dispute arising between the employee and the Employer
that cannot be adjusted between the Employer and the
Union, and designates a named arbitrator.
Articles 29 and 31 reserved discretion to management
to regulate employees' work, subject to the terms of the
agreement.
Article 30 sets forth that each employee is to be given
a copy of the Employer's work rules, which "are consid-
ered to be part of Company's Operational Procedures
and a copy is affixed hereto." There was no evidence
that any written set of work rules had ever been distrib-
uted or given to Smallman , and none was attached to
Joint Exhibit 1, the agreement.
B. Threats and Surveillance
The allegations of threats and surveillance relate to in-
cidents in connection with the distribution of T.D.U. lit-
erature, which are alleged to have occurred on 15 April
and 22 and 23 May. It is alleged that on 15 April Charles
Stamler, a supervisor within the meaning of Section
2(11) of the Act, threatened employees with discharge
and reprisals if they distributed T.D.U. literature, and
that on the dates in May Paul Conselyea and Steve
Oehm, supervisors, engaged in surveillance of T.D.U. ac-
tivities being carried on by employees.
A threshold question is presented by Respondent's
denial that these persons were supervisors within the
meaning of the Act. It is the Respondent's contention
that they were simply the supervisors of certain employ-
ees on their own respective shifts. (Respondent's conten-
tion that this portion of the complaint should be dis-
missed as premature because of Tudisco's failure to seek
arbitration of the alleged disputes as required by the col-
lective-bargaining agreement is dealt with below.)
Paul Conselyea testified that he was the senior supervi-
sor on Tudisco's shift, which was the third shift (10:30
p.m. to 7 a.m.). Charles Stamler and Steve Oehm were
also supervisors on that same shift. The contention that
these men were simply supervisors of certain employees
was not developed by Respondent, and the record is re-
plete with evidence that, with respect to other employ-
ees, they had "authority, in the interest of the employer,
to . . . assign . . . or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such
action."
Very grave disciplinary problems were referred to
Arthur (Archie) Bucholz, who has been the overall su-
KEY FOOD STORES
pervisor of all the shifts for the last 16 years. Neverthe-
less, it is apparent from the whole record that the subor-
dinate supervisors had enough of the authority pre-
scribed in Section 2(11) of the Act to render their actions
and statements imputable to the Respondent . At the very
least, they possessed apparent authority to bind the Re-
spondent . Accordingly , I find that Conselyea , Oehm, and
Stamler were supervisors within the meaning of Section
2(11) of the Act. In reviewing their actions as such, I
find that the evidence does not establish that unlawful
threats of discharge were made , but it supports the alle-
gation of unlawful surveillance of employees ' activities in
violation of Section 7 and Section 8(a)(1) of the Act.
The General Counsel claimed to find threats of dis-
charge and other reprisals in an incident in April when
Tudisco and an employee named Edward Santarelli were
confronted by Stamler in the locker room. Tudisco had
obtained copies of the Free Key Press from Santarelli's
locker. He was not on working time. Stamler saw him
with the papers in his hands. Tudisco testified that at
that time it had been his intention to put them in his own
locker.
Tudisco testified that he had met Santarelli in the hall-
way off the locker room and Santarelli told him he had
copies of the Free Key Press left over from the distribu-
tion he had been making outside the warehouse , and fur-
ther remarked "that I should be careful about distribut-
ing them because we could be fired-a person could be
fired if he was caught distributing them ." Tudisco re-
moved the papers from Santarelli 's locker and was on his
way to his own locker (which was in the locker room on
the other side of the corridor) to put them away when
he encountered Stamler . Tudisco quoted the conversa-
tion between the two men as follows:
Q. Can you tell us, was anything said at that
time?
A. Yes. Chuck Stamler said to me , what are you
doing and he pointed towards the papers and he
said, if you distribute those papers on company time
you will be fired immediately . Upon that I turned
to him and I explained that I was not distributing
them . But just putting them into my locker. And at
that point, I went-proceeded into my locker
room-
Stamler then went into the other wing of the locker
room , where Santarelli 's locker was located . Tudisco did
not follow him . Stamler testified that he had seen Santar-
elli distributing the Free Key Press outside the ware-
house . Stamler confronted Santarelli and told him that he
was "in trouble ," and a shop steward was requested to
come to the locker room.
Stamler 's testimony is basically consistent with Tudis-
co's, but is different in emphasis . Stamler testified that
Bucholz had instructed him to make sure the Free Key
Press was not distributed on company time (i.e., while
employees were clocked in and being paid for their time)
and he saw Tudisco "come out" with the papers, mean-
ing that he came into the corridor between the two
wings of the locker room.
1061
Whereas Tudisco's account has Stamler speaking first
to him and then going into the other locker room to see
Santarelli , Stamler testified that he spoke first to Santar-
elli, who told him simply that Tudisco had taken the
papers out of his locker, Stamler then went to speak to
Tudisco. He testified that he did not threaten Tudisco,
but cautioned him, "reminded him . . . that he wasn't al-
lowed to give these out in the warehouse on company
time." At that point the papers had apparently already
been put away in Tudisco's locker. According to
Stamler, he never threatened to fire Tudisco. He testified
that , "I did point out that if he did this he could face the
loss of his job, but not that I would fire him."
The General Counsel argues that Stamler 's statements
to Tudisco can be construed only as a threat of dis-
charge. The nature of the publication was known:
Stamler had , on an earlier occasion , been given a copy of
it by Santarelli while Santarelh was distributing them
outside the warehouse . (Stamler had even come back and
requested an additional copy.) This contention finds
some support in Stamler's testimony that on the night in
question Bucholz told the other supervisors that the
papers were being distributed and that they should get to
the men and see that it was not done on working time.
However , these statements , which are the only state-
ments cited by the General Counsel to show actual
threat of discharge, also support the position of the Re-
spondent that it made known to the employees that they
would be fired if they distributed the Free Key Press on
working time. The General Counsel concedes that the
employees were not supposed to distribute the paper on
working time, but asserts that there is no evidence that
they did and argues that at the time of these events there
was no no-solicitation rule in effect . In its essentials, the
question is whether the fact that discharge was never
mentioned in any context other than as a consequence of
distributing the T.D.U. papers on working time is offset
by the fact that the Respondent began making such an-
nouncements only at the time distribution of the Free
Key Press was commenced.
Tudisco and Santarelli both testified that prior to the
locker room incident no one from management had ever
told them that they were not supposed to be passing out
papers or anything else at the warehouse . In response to
specific questions , they asserted that no statements had
been made to such effect and that nothing had been said
about doing so either on or off working time The pro-
mulgation of a no-solicitation rule by Respondent under
these circumstances and at this time would patently be
for the purpose of interfering with the distribution of
T.D.U. literature and would be an interference with the
employees ' rights guaranteed by Section 7 of the Act.
Pedro's Restaurant , 246 NLRB 567 (1979); United Parcel
Service, 261 NLRB 1012 (1982). In contrast to the explic-
it testimony of Tudisco and Santarelli in this regard, the
testimony of Respondent's supervisors avoids the point
altogether . There is no testimony that a no-solicitation
rule was ever promulgated; the nearest the supervisors
come to it is Stamler 's testimony that he "reminded" Tu-
disco that he was not allowed to make distribution in the
warehouse on company time . This is accompanied by
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Stamler's evasive testimony that he warned Tudisco that
he could lose his job for doing it, but that Stamler never
told Tudisco he would fire him. (He disclaimed having
that power.) The most that Paul Conselyea would testify
to was that he told Tudisco that he could not bring liter-
ature into the warehouse and distribute it during working
hours, accompanied by his concession that there was
nothing in writing and that the statement merely reflect-
ed his "practice," which was designed to get the work
done.
Santarelli's uncontroverted testimony was that the Re-
spondent issued to all newly hired employees a set of
"Key Food Stores Co-Operative, Inc. Rules and Regula-
tions" which began with the statement, "This booklet
represents written clarification of our basic work rules
and safety regulations." The booklet set out a number of
rules governing employee conduct in the warehouse and
listed violations of company rules that "could be consid-
ered just cause for discharge, depending on the serious-
ness of the offense." It does not contain any rule or regu-
lation relating to the distribution of literature or solicita-
tion inside the warehouse.
With respect to the fact that there was no-solicitation
rule or no-distribution rule, Respondent's counsel con-
ceded expressly that "it has already been established that
there was no such specific rule." He conceded that in the
printed rules and regulations the subject matter is not
specifically covered.
In the absence of any explanation, Tudisco's testimony,
quoted above, to the effect that Santarelli warned him to
be careful because he could be fired for distributing the
literature, might seem to imply that a warning from man-
agement had, in fact, been received. Santarelli testified
that when he asked Tudisco if he was "off the clock" he
did so because he was afraid of losing his job if he were
caught passing out literature on company time . Howev-
er, he specifically testified that the basis for his fear was
his knowledge that the company was not in agreement
with the viewpoints which they had expressed in the
paper. His caution was thus not grounded on the exist-
ence of any rule prohibiting the solicitation.
Stamler's characterization of his remarks to Tudisco as
a "reminder" does not, of course, cure the omission from
the record of any real evidence that the policy existed or
was made known to the employees before Bucholz gave
his instructions to the supervisors. The failure of Re-
spondent's supervisors, therefore, to testify as to when
and where and how a no-solicitation and no-distribution
rule had been promulgated makes it necessary for me to
view the events in the locker room in the light of the
almost instantaneous announcement of the rule.3 Stamler
3 There is no dispute respecting the Respondent's right to promulgate
such a rule A rule of this nature is presumptively invalid if it prohibits
solicitation on the employees ' own time, and a rule prohibiting distribu-
tion of literature during "working time" is presumptively valid Our Way,
Inc, 268 NLRB 394 (1983) In this case, the rule could not reasonably be
interpreted as forbidding distribution during nonworking time and Tu-
disco and Santarelli understood the rule, as expressed to them, in its valid
and legal sense See Taylor-Dunn Mfg Co, 252 NLRB 799 (1980), and
Aircraft Hydro-Forming, 221 NLRB 581 (1975)
testified that Bucholz called in the supervisors as soon as
he learned that the Free Key Press was being distributed;
Bucholz "wanted us to make sure that this wasn't done
on company time. He sent us down to the time clock
area to make sure that this was observed." The April in-
cident followed immediately on Bucholz' instructions,
and violated Section 8(a)(1) of the Act.
The statements made by Stamler to Santarelli in the
other wing of the locker room are claimed to be viola-
tive of the Act as threats of "other reprisals." Santarelli
testified that Stamler came into his section of the locker
room and, "He said to me, you're not supposed to be
passing them out. Sit down and you're in trouble ." (I un-
derstand the import of Santarelli's testimony to be that
Stamler said, "Sit down. You're in trouble.") Stamler
summoned a shop steward and told Santarelli he was
going to see what Bucholz wanted to do about the situa-
tion. A shop steward came in, conferred with Santarelli,
left, and returned in about 10 minutes with the news that
Bucholz had terminated the incident and that no action
would be taken against Santarelli.
Considering all the circumstances, it can be argued
that Stamler, by detaining Santarelli in the locker room
and telling him he was in trouble, suggested an intention
on his part to secure from higher authority imposition of
some kind of punishment. Nevertheless, looking at the
situation realistically, in this instance no effective threat
was made. Stamler never purported to act. He said, from
the very beginning, that he would see what Bucholz
wanted to do about it, and Bucholz quashed the matter.
Whatever momentary fears Tudisco and Santarelli may
have suffered, the fact is that Stamler, in the circum-
stances, might reasonably have believed they were dis-
tributing literature on working time, the policy sought to
be enforced was one which would have been legal
except for its timing, and Stamler claimed neither actual
nor apparent authority to impose discipline with respect
to Santarelli's conduct. Accordingly, his action with re-
spect to Santarelli was not in violation of the Act.
The allegation of unlawful surveillance on 22 and 23
May is founded on observation of Tudisco by two super-
visors, Paul Conselyea and Steve Oehm. Tudisco testi-
fied that during the lunchbreak (at 3:30 p.m.) on 22 May,
he was on the sidewalk outside the warehouse building,
soliciting signatures on a petition addressed to the union
president protesting the fact that supervisors held union
cards. He spoke to employees as they passed and was
holding a copy of the petition and a pen. He was not
blocking entrance into or egress from the building. Ac-
cording to his testimony, an employee named William
Mancusi commented, "Look at the way the supervisors
are storming to the door." Tudisco turned and saw Con-
selyea and Oehm standing about 10 or 15 feet away and
looking at him. He estimated that they remained there,
looking at him, for 4 or 5 minutes, during which time
they said nothing to him or to each other. At the end of
that time, they turned around and went inside.
The Mancusi remark, a patent case of hearsay, con-
notes an enormously exaggerated interest in Tudisco's
activities on the part of Conselyea and Oehm. Oehm
denied any recollection of having seen Tudisco on the
KEY FOOD STORES
days in question and denied recollection of the events in
question at any time. Oehm suggested that he might have
seen Tudisco if he went outside to a lunchwagon for a
cup of coffee. He did not, however, testify that he did so
or that there had been a lunchwagon positioned near the
door on either of the occasions in question. Conselyea
had no recollection of having seen Tudisco hand out lit-
erature on the days in question, and testified that he
thought that he would not have seen Santarelli at all
except in the course of work. He conceded knowledge of
Tudisco's activity, however, when he testified that he
warned Tudisco not to bring literature inside the ware-
house.
Tudisco testified that Stamler observed him at lunch-
time on 23 May, outside the Foster Avenue entrance and
that, like Conselyea and Oehm, he said nothing, but just
watched for 4 or 5 minutes and then left. Stamler denied
it.
I find Tudisco's testimony respecting these incidents to
be more convincing than the extremely vague and for-
getful testimony of Conselyea and Oehm. Respondent's
counsel insinuates, without actually proving, that if the
supervisors were outside on these occasions, it was for a
legitimate purpose; they were patronizing the lunchwa-
gon. Accepting, as I do, Tudisco's version of the events,
I find a case of overt surveillance by all three supervi-
sors. Testimony by Respondent's supervisors that they
did not interfere with or stop the distribution of litera-
ture or the collection of signatures by Tudisco is beside
the point. Their conduct was such as tended to discour-
age employees from signing the petition, and was of a
nature to discourage Tudisco from soliciting their signa-
tures. Such conduct by supervisors, observing and star-
ing at an employee in stony silence, clearly intimates
their disapproval of his activity and tends to interfere
with, restrain, or coerce employees in the free exercise of
their rights guaranteed by Section 7 of the Act NLRB v.
Intertherm, Inc., 596 F.2d 267 (8th Cir. 1979).
There are numerous manifestations of animus on the
part of Respondent toward Section 7 activity, such as in-
terference with shop stewards' work, support of a union
faction fighting the T.D.U., and remarks by Conselyea,
all discussed below. These are matters to be considered
along with all the other circumstances, and I conclude
on the entire record that a motivation to discriminate
against Tudisco was present. Knowledge of Tudisco's
beliefs and activities is conceded. Conselyea testified that
he was aware that Tudisco objected to the fact that some
supervisors held union cards. It was the subject matter of
the petition on which Tudisco collected signatures and
he had also expressed the same objection on an occasion
when he had been given a warning by a supervisor; in
signing the acknowledgement of receipt of the warning,
Tudisco criticized procedure by which one union
member was being disciplined by a fellow union
member. In April, Conselyea saw Tudisco at the time-
clock with literature and told him he could not bring it
inside the warehouse to hand out during working hours.
Accordingly, I find that the General Counsel has
proved by a preponderance of the evidence that Stamler
unlawfully threatened Tudisco with discharge and Con-
selyea, Oehm, and Stamler committed unlawful surveil-
1063
lance of his activities. I do not find that Santarelli was
unlawfully threatened with unspecified repnsals.
C. Discharge of Smallman
1. The General Counsel's case
Smallman was the elected shop steward for Local 138
and was active in promoting the T.D U. Respondent was
aware of his activities in that regard by reason of his
having subscribed his name to an article in the Free Key
Review, a publication put out by some employees in sup-
port of the T D.U. Copies were sent to high-level offi-
cers of Key Food. The evidence establishes that though
distribution of the Free Key Press was discouraged, Re-
spondent facilitated the distribution of another publica-
tion, the Key Review, which was put out by some em-
ployees for the purpose of supporting the Union and
combating the T.D.U. Stacks of the paper were placed
next to the timeclock on a desk at which a supervisor
was stationed. It was clear from Stamler's testimony that
employees took copies of the paper on their way into
work, for he described the stacks as lying "on the desk
in a pile as you come into the warehouse by the timeclock
and people would take it." (Emphasis supplied .) Having
punched in, they were on working time. Stamler conced-
ed that he had never seen the Key Review distributed
outside the warehouse or in any manner other than by
being made available at the timeclock. He saw papers
stacked at the timeclock on at least two occasions, with
the second-shift supervisor, Mike Primeggia, seated at
the desk on which they were stacked. Respondent also
permitted a meeting , on company time, which lasted half
an hour, of some 50 employees, at which they heard an
explanation by several employees of reasons for opposing
the T.D.U. Respondent's lack of impartiality in this inter-
nal union matter is something that cannot be ignored.
See United Parcel Service, 230 NLRB 1147, 1151 (1977).
Smallman , who had processed grievances on company
time from the inception of his stewardship, developed a
one-page form for use in noting down the pertinent data
regarding a grievance. It was a form he adapted from a
manual distributed by the T.D.U. He never took any
steps to clear its use with either the Union or the Re-
spondent. He intended it solely for his own use; it was
not a grievance form designed to be utilized by manage-
ment or the Union to preserve a record of action on
grievances, although the testimony of some of Respond-
ent's supervisors indicates that they may have thought it
was.
On 23 May, Smallman used the form during consulta-
tion with several employees who had previously consult-
ed him with regard to what they claimed to have been
the Respondent's disregard of seniority in transferring
employees into the dairy department.4 While he was
doing this, Bucholz passed by on a motorized scooter or
golf cart and called to him to do that on his own time.
Smallman responded that when the Union paid him to
do it, he would do it on his own time. For a few min-
4 Art 5 of the collective-bargaining agreement provides that seniority
shall apply with respect to interdepartmental transfers in the warehouse.
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
utes, Smallman continued processing the grievances and
taking care of some other matters that he customarily
handled as a shop steward (such as checking employees'
absences to make sure they did not run afoul of company
rules) and then started work. On that day, he devoted
approximately 2-1/2 hours to union business and did not
complete the work he was supposed to complete by the
time his shift ended.
On 27 May Smallman was discharged summarily when
he came in to work. The reason given orally at that time
and later in the day, when he unsuccessfully sought to
obtain a written statement of the reason for his dis-
charge, was that he had used an unauthorized form in
the processing of grievances.
The 23d of May was a Thursday. Smallman's next
working day was Monday, 27 May. When he came in at
2 p.m., Bucholz went over to him and told him he was
fired. This was done in the presence of John Berti, direc-
tor of security, and Michael Primeggia, the second-shift
supervisor. Smallman returned about 7:30 p.m. with an
employee named Michael Viverito, who came along to
act as a witness . Smallman tried unsuccessfully to obtain
a written statement of the reason for his discharge from
Berti and Primeggia . Primeggia called Bucholz, who
joined them and asserted that written reasons for dis-
charge were not given out.
The testimony of Smallman and other witnesses called
by the General Counsel, as well as testimony of some of
Respondent's witnesses, tended to prove that (1) employ-
ee grievances had uniformly been processed, at all times
and by all shop stewards, on company time; (2) the proc-
essing of grievances on company time had been sanc-
tioned, and in the case of a supervisor named Maloney,
had been encouraged by the supervisors and by the
Union as a means of keeping production from being im-
peded; (3) no written or oral policy statement by the Re-
spondent had ever forbidden the processing on company
time ; (4) the Union had orally instructed shop stewards
to process grievances immediately, but there was no
written union pronouncement on the subject; (5) in the
normal course of processing grievances, shop stewards
prior to Smallman had made informal notes in whatever
form and to the extent that same were necessary in order
to handle grievances; (6) other shop stewards had, on oc-
casions when conference with management personnel
was involved, spent as much time during the work shifts
as the matter required, and sometimes as much as four
hours.
The testimony also showed that there was no uniform-
ity of procedure in disciplining employees. There was no
definite step procedure governing discipline of employ-
ees. Some errant employees had been given many warn-
ings without being discharged; some had been discharged
after several warnings; others had been discharged with-
out any warnings at all. Smallman's discharge without
preliminary warning had therefore not been a unique oc-
currence, but I think it is significant that other employees
had received warnings while Smallman, a shop steward
with superseniority rights under the collective-bargaining
agreement , received none.
The body of evidence thus introduced by the General
Counsel established a prima facie case of violation of
Section 8 (a)(3) and ( 1) of the Act. It was incumbent on
the Respondent to demonstrate that the actual reason for
Smallman's discharge was a legal one that would have
resulted in Smallman 's termination in any event . Wright
Line, 251 NLRB 1083 , 1089 (1980), enfd . 662 F.2d 899
(1st Cir. 1981), cert . denied 455 U.S. 989 ( 1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U. S. 393, 403 (1983).
2. Respondent's explanation of Smallman's
discharge
The reason for the discharge of Smallman given in this
proceeding by Respondent's counsel and testified to by
its supervisors was that he had used unauthorized forms
in the processing of grievances.
The form, which is in evidence, consists of a one-page
piece of paper with ruled lines entitled "Grievance Fact
Sheet." It breaks down the grievant's story into the basic
components (who, what, when, and where ), manage-
ment's story, other pertinent facts, the legal basis for the
grievance (contract clause, unfair discipline, and so
forth), the relief sought, and the supervisor's first-step
verbal reply. A notation typed in the upper left-hand
corner directs, "No copies to management."
Respondent 's witnesses testified that after Smallman
reported for work on 23 May he spent the first 2 to 2-
1/2 hours of company time conferring with three em-
ployees and writing up the forms dust described. The
shift supervisor called his conduct into question and then
referred the matter to the senior supervisor, Bucholz,
who also spoke to Smallman about it. The supervisor
was Charles Stamler, now third-shift supervisor in the
grocery department but at that time the second-shift su-
pervisor. Smallman was a picker and loader on that shift
(2 to 10:30 p.m).
Stamler testified that Smallman arrived for work on 23
May with a stack of papers and said he needed a light
load that day because he had a lot of writing to do. He
next saw Smallman a half hour later, talking to another
employee. Subsequently, on two other occasions, he
spotted Smallman talking to other employees, and was
unable to observe any work having been done. On the
last occasion, when Smallman was talking to an employ-
ee named Rusigno , he approached and asked Smallman
what he was doing; Smallman said he had to write up
grievance fact sheets; Stamler told him he had to do
some work and that he should start working and do the
fact sheets on his own time. He testified as to the re-
sponse: "Mr. Smallman replied when somebody pays me
to do it on my own time, that's when I'll do it on my
own time." Stamler reported the matter to Bucholz, who
later went over to Smallman. When Smallman told Bu-
cholz that he was writing grievance fact sheets, Bucholz
told him that they were not authorized by the company
or the Union "and that he should do his work."
Bucholz testified that the report that he received from
Stamler was
that Mr. Smallman was writing up grievance prac-
tices, that was unauthorized by Key Food and he
had no authorization from any supervisor on this
KEY FOOD STORES
shift to write these grievances up, he's been writing
them and he had been writing them up since about
two o'clock that afternoon. He had not done any
work up till that time, from two to four, that we
knew of.
Bucholz testified that he told Smallman it was unau-
thorized and he could not do it on company time but
would have to do it on his lunch hour or coffeebreak.
Smallman told him it was union business and that when
the Union paid him he would do it on his own time.5
With that, Bucholz told him he had to stop. Smallman
finished what he was doing and went to work within a
few minutes thereafter. This apparently satisfied Bucholz,
for Bucholz took no further action other than to talk
about it to Michael Marascia, who was regarded by the
supervisors as the senior shop steward in the warehouse,
by reason, apparently, of his being the shop steward on
the first shift. In his discussion with Marascia, Bucholz
mentioned only the grievance form: "I said it's not au-
thorized by me, he never approached me for any permis-
sion to conduct any of these grievances. I didn't know
anything about it."
3. Analysis of Respondent' s explanation
On its face, the explanation furnished by the Respond-
ent shows an unwarranted interference with Smallman's
performance of his duties as a union shop steward and
establishes a discharge in violation of Section 8(a)(1) and
(3) of the Act. No contention is made that in utilizing the
grievance fact sheet form in the course of his duties as a
shop steward, Smallman ceased to be engaged in con-
certed protected activity. Such an argument would have
been difficult to sustain in the face of the provisions of
the collective-bargaining agreement for election by the
employees of a shop steward "whose duty it shall be to
see that the terms and conditions of this agreement are
not violated by either the Employer or employee" and
for superseniority and guarantee against discrimination
by the Employer.
Section 16.04 of the constitution and bylaws of Local
138 provides:
Sec. 16.04. DUTY OF SHOP STEWARD. It shall be the
duty of shop stewards to assist the union in obtain-
ing faithful performance of collective bargaining
agreements by the employers and the employees,
and stewards shall promptly report to this local
union all violations thereof. The shop steward shall
have no authority to order a strike or stoppage of
work except by the express direction of the Execu-
tive Board of this local union,
See Meyers Industries, 268 NLRB 493, 497 ( 1984), re-
manded sub nom . Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985). Nor is there any question that the supervisors
6 Smallman's response to Bucholz was cited in the testimony of Re-
spondent 's witnesses as an integral part of his act of disobedience No
claim was made that the remark constituted such misconduct as would
deprive Smallman of the protection of the Act and, indeed, it would not
have been sufficient to have that effect See United Postal Service, 250
NLRB 4 fn 1 (1980)
1065
knew Smallman was investigating grievances. Obviously,
Smallman was not working secretly. Stamler even dis-
cussed the subject matter of the grievance with Rusigno,
one of the grievants to whom Smallman had spoken, and
so he knew Smallman was looking into a possible viola-
tion of the seniority provisions of the collective-bargain-
ing agreement.
There are additional cogent reasons for rejecting the
Respondent's explanation for Smallman's discharge: (1)
the assertion, at different times and places, of shifting
reasons for Smallman's discharge, (2) uncontroverted
evidence of Respondent's bias and overt encouragement
of anti-T.D.U. sentiment, (3) uncontroverted evidence
that the order for Smallman 's discharge emanated from
the top level of management, and (4) the disparate treat-
ment accorded Smallman.
The explanations furnished by Respondent' s witnesses
for Smallman's discharge were muddled, to say the least.
Mention was usually made of a complex of factors in-
cluding the use of the grievance fact sheet and the time
he spent using it. This became expanded into what
seemed to be a contention that he spent time on matters
other than his work. In essence, however, the gravamen
of the charge against him, as delineated in this proceed-
ing, was the use of the grievance fact sheet. Respond-
ent's counsel stated:
The contention . . . the reason for discharging this
man has got to do with this particular grievance
fact sheet. . . . We are complaining about the time
that he spent in devoting himself and writing up this
grievance fact sheet, a creature of his own making
and doing. That's what this case is all about. . . .
There are no other-there are no other minor side
issues as far as I know . .. .
The sole reason that we contend he was discharged,
was for whatever his-whatever he did and what-
ever time he spent on May 23rd, in connection with
this document . . . the grievance fact sheet, Gener-
al Counsel's 16. That is the reason that we terminat-
ed him. That is the reason that was arbitrated, and
the issue that's mentioned in the arbitrated decision.
We mentioned it. The arbitrator mentioned it. That
is the issue . The grievance fact sheet is the issue.
. . How he came to create it, why he created it,
what time he did with it and how he neglected
other things because of his activities in connection
with this form. That's the only issue in this case.
In the course of argument on the relevancy of a ques-
tion to which there had been an objection, Respondent's
counsel stated:
Well, I think it goes to the fact that it [the fact
sheet] was being created and used in an irregular
manner , without the knowledge of the company
and the union, and that there was an ulterior pur-
pose for its use-its creation and use.
Respondent's witnesses testified to the same effect. Bu-
cholz testified that he fired Smallman on orders from
Walter Czajka, the controller:
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Did Mr. Czajka tell you why you were to dis-
charge him?
A. I stated the reason before, the grievance form
was unauthorized and it was on company time, un-
authorized company time.
He accordingly, on 27 May, fired Smallman when he re-
ported in at 2 p.m.:
Q. What did you tell him?
A. I told him he was being discharged, the com-
pany wants to discharge him and I am discharging
him for writing up unauthorized grievance fact
sheets, it was unauthorized by the company and he
was doing it on company time, being paid by the
company for doing this work which was unauthor-
ized.
John Berti, who witnessed the exchange between Bu-
cholz and Smallman, testified that the complete conver-
sation was as follows:
Mr. Bucholz approached Mr. Smallman and told
him he was being fired. Mr. Smallman asked, why
am I being fired. He told him it was for activity on
company time that was unauthorized.
Berti recalled that Bucholz identified the unauthorized
activity, but did not recall what that activity was.
Berti was also present when Smallman returned at 7:30
p.m. and requested his "termination papers." He was
trying to obtain a written statement of the reason for his
discharge. After it was decided not to give him anything
in writing, Bucholz again stated the reason for discharge
to Smallman. According to Berti's description of the
second occasion , Bucholz simply stated the reason as
"unauthorized activity on the previous Thursday" and he
heard no specification of what that activity had been.
Michael Primeggia's recitation of the stated reason for
discharge is more circumscribed:
Q. Would you please tell us what the discussion
was, who said what?
A. Mr. Bucholz informed Mr. Smallman he was
being terminated, discharged for unauthorized activ-
ity in the warehouse on Thursday.
Q. Anything else said?
A. That's basically what was said. I don't remem-
ber all the minute details, but that's basically what
was said.
Presuming that a reason for discharge is not a minute
detail , I note Primeggia 's omission of any reference to
any of the other reasons, such as misappropriation of
company time. The reference to activity in the ware-
house cannot be interpreted, I believe, as a reference to
the time when the work was being done. It is a descrip-
tion of place , not time. (Primeggia had no recollection at
all whether at the second meeting that day the reason for
discharge was repeated. He did not recall whether at the
earlier meeting , Bucholz specified the nature of the "un-
authorized activity.")
Despite the limitation of the reasons for discharge to
this one ground, or at most to a combination of the use
of the grievance sheet and the expenditure of time in
using it , other reasons for termination were advanced
before the contract arbitrator. The contractual procedure
governing Smallman's discharge required immediate
notice to the Union of the employee's discharge and re-
tention of the employee on the payroll, whether his serv-
ices were utilized, if the Union demanded arbitration
within 48 hours. The notice which Respondent sent to
the Union gives the reason for Respondent's action as
"refusing a direct order from a Supervisor, working on
matters not related to his job at Key Food during normal
working time and other reasons that have made him an
unsatisfactory employee." Prior to the commencement of
the hearing before the arbitrator, this statement of rea-
sons was modified by deletion of the reference to "other
reasons that have made him an unsatisfactory employee."
In spite of the deletion, a number of reasons for dis-
charge not asserted in this proceeding and not mentioned
in the letter, as amended, were submitted to the arbitra-
tor. The reasons furnished to the arbitrator , as is appar-
ent from his decision, were Smallman's refusal to stop
talking to workers during work hours; his continued ac-
tivity; his interruption of the Employer 's operations; use
by Smallman of grievance fact sheet forms of his own
devising ; distribution of fact sheets during work hours;
picketing of the warehouse after Smallman's discharge;
threats to picket stores that did business with Respond-
ent, which were made by Smallman's friends and T.D.U.
supporters and for which Respondent held Smallman re-
sponsible; Smallman's attitude, caused by internal union
activities, which he allowed to affect the Employer's op-
eration; and Smallman's lack of concern about the effects
his improprieties had on the Employer's operations.
In the course of his brief testimony, Bucholz illustrated
the confusion in the minds of Respondent's witnesses
about what the objection to Smallman's behavior was
supposed to be. He touched on a number of factors but
left it unclear whether the objection was the use of an
unauthorized form, misapplication of working time, the
supervisor's (erroneous) impression that Smallman was
resolving grievances without the participation of man-
agement (though that would have been impossible), the
amount of time being devoted to union matters, the
amount of time being devoted to noting the facts on his
form, or the conduct of union business on company time.
There is a heavy emphasis in Stamler's testimony re-
specting the amount of time that Smallman was devoting
to the writing up of the grievances. While conceding
that he did not keep Smallman under continuous obser-
vation, Stamler estimated that over the course of the
period on 23 May during which he observed Smallman
talking to three different employees, Smallman had done
no work at all from about 2 to 4:30 p.m. Nevertheless, he
testified that that was not the reason he reported the in-
cident to Bucholz. He reported it to Bucholz because
Smallman had not resumed work when told to do so.
This was a ground presented to the arbitrator. I note that
it was not proven. Stamler conceded in the proceedings
before me that he did not give a direct order to Small-
man to go back to work:
KEY FOOD STORES
Q. at any point in your conversation with him,
did you instruct or direct him to stop working on
these grievance fact sheets and go back to work?
A. I instructed him to start working because I
hadn't seen him do any work yet. I didn't tell him
to go back to work. I told him to start working and
to process those or do what he had to do on his
own time. As far as I could see, this was an illegal
thing filling out sheets and walking around the
warehouse when he was supposed to be doing his
work.
Q. When you gave him that instruction, what did
he reply?
A. He just [said] this is the procedure I must
follow and he continued with Mike Rusigno at that
point. That's why I went to the head supervisor.
In fact, no supervisor gave testimony that any direct
order to return to work had been violated. Bucholz' tes-
timony was that within a very few minutes after he
spoke to him Smallman obeyed his order.
It is apparent from the foregoing that Stamler sought
to justify the action taken against Smallman on several
different grounds. At points in his testimony he seemed
also to suggest that Smallman was going around solicit-
ing employees to file grievances, instead of waiting until
they came to him. At one point in his testimony his ob-
jection seemed to be primarily to the filling out of the
forms themselves. Stamler testified that neither the Com-
pany nor the Union had a particular form for noting the
facts of grievances and that Smallman told him that he
had composed the form in order to process the griev-
ances that he had. Stamler felt that Smallman, instead,
should have proceeded immediately to take up the griev-
ance with a supervisor. (Smallman did not bring any
grievance to a supervisor that day.) Thus, the forms
should have been filled out on his own time.
Stamler emphasized the failure of Smallman to load his
truck and, in reporting it to Bucholz, he complained that
Smallman had been "doing these 1 hings and not selecting
Stamler's participation in the event ended after Bu-
cholz' conversation with Smallman, which Stamler de-
scribed as follows:
Mr. Bucholz reminded John Smallman that he had
his work to do and not these union activities. At
that time I think John said just about the same
thing, when somebody pays me to do this on my
own time I would do it. Archie told him you'll
have to go to work now and he said something
about seeing the chief shop steward Mike Marascia
and straightening it out with him.
There is thus a shift to an objection based on the fact,
not that Smallman was writing up the grievance sheet,
but that he was not doing his work. As he put it, "No, in
my capacity as shop steward we had to write on occa-
sion , but we also had to do our work." His objection
was that Smallman had not done any work for 2 hours.
He also testified that he objected to the omission of man-
agement from the grievance sheet.
1067
I have quoted the explicit statement made by Respond-
ent's counsel during the hearing respecting the ground
asserted for Smallman' s dismissal . Yet, at other points in
the hearing, he attempted to broaden the basis of Re-
spondent's defense. In his opening statement, he asserted
that Smallman did things in furtherance of a dissident
faction that violated the union contract; "basically, it was
going around on company time for two hours"; "proc-
essing a grievance fact sheet for his purposes-TDU pur-
poses-at a time when he was being paid in excess of
$26,000 and refused a direct order not to do it on compa-
ny time." In addition, complaint was made that he had
used a grievance fact sheet that he made up himself and
that was not a union document and not approved by
either the Company or the Union; that he failed to finish
his work that day; that picketing had occurred, with the
implication that Smallman instigated it. Counsel sought
to justify the discharge on the basis of "the totality of
the thing." Some of counsel 's statements in the course of
final argument also seemed to show resentment at what
was believed to be Smallman's instigation of grievances.
The fact that different reasons for Smallman's dis-
charge were given at different times and places is signifi-
cant, not only because it warrants an inference that the
reason advanced in these proceedings is pretextual, but
because a question arises whether Smallman may have
been deprived of due process in connection with the ar-
bitration proceeding, discussed below. I am not unmind-
ful of certain testimony by Smallman that appeared to
me to be evasive at the time it was given. Smallman was
asked if, prior to 11 June (the first day of the arbitra-
tion), any management representative told him that he
had been terminated for refusing a direct order from a
supervisor. His answer was, "I don't believe so." He
went on to testify that he could not recall whether
anyone had made such a statement to him and conceded,
"It may have been said and I don't recall it." In the light
of all the testimony, however, I conclude that the reason
or reasons stated to him at the time of his discharge and
the reason stated in these proceedings do not match the
battery of charges that were hurled at Smallman in the
arbitration proceeding. I am left with the impression that
at various times the Respondent' s witnesses have ex-
pressed , as reasons for their action, whatever seemed
most apt to them at the moment of utterance.
Convincing evidence of Respondent's anti-T.D.U. bias
is found in its overt assistance to the Union in permitting
distribution of a prounion publication in the warehouse,
in assisting the distributions, and in making available fa-
cilities for a meeting in support of the Union in the ware-
house on company time which 50 employees attended.
Employees who were distributing T.D.U. literature were
harassed, as previously described. Tudisco was unlawful-
ly threatened with discharge because of it and his activi-
ties were subject to unlawful surveillance . Respondent's
assertion that prounion literature was distributed after
employees punched out is contradicted by the evidence
showing distribution to them as they punched in. In ad-
dition, Michael Rusigno testified that he was given a
copy of the Key Review by Sal Alberta, a second-shift
foreman, who took it out of the desk. John R. Asem re-
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ceived a copy from Bobby Anderson , a day-shift supervi-
sor, one day in early July as he was about to leave; he
was still not punched out , and was therefore on company
time . He testified , without contradiction from any of Re-
spondent 's foremen , that the employees who published
the Key Review were able to leave stacks of the papers
at the desk near the timeclock-which was also near the
lunch room-because they had spoken to Allen
Newman , Respondent 's chief executive , or to Czajka,
and thus had permission to start the paper.
Michael Viverito testified that Anderson , another su-
pervisor , expressed disapproval of the views published in
the Free Key Press, the pro -T.D.U. publication , and Bu-
cholz warned Viverito to be "careful" and to distribute it
on his own time , saying , "We don 't want any trouble
here."
In reviewing the circumstances of the actual dismissal,
I noted that Bucholz seemed satisfied that Smallman had
returned to work. Bucholz testified to another significant
circumstance : that not all of the time Smallman spent
away from work on the afternoon of 23 May was spent
processing grievances ; he spent 1 hour straightening out
a matter pertaining to an employee 's vacation time
(which Bucholz had told him to straighten out). Conse-
quently , only 1 - 1/2 hours, at most, had been spent on the
grievances.
Another important factor is that the treatment accord-
ed Smallman differed markedly from that accorded other
employees in two respects : First, as a shop steward, he
was not permitted to conduct his business on company
time or by use of a fact -gathering sheet , though other
shop stewards, and Smallman himself up until 23 May,
had been permitted to process grievances on company
time and had normally taken whatever notes they needed
to do that work . Second, though procedures were not
uniform, many employees had not been discharged until
after they had received warnings , but nevertheless per-
sisted in their misconduct , whereas Smallman, a shop
steward with superseniority , was given no warning.
John Tormey had been a shop steward for 2 years,
from 1981 to 1983 . During this period he was a selector-
loader. He testified that he handled grievances, including
the interviews with the employees prior to taking the
matters to management , on company time, and on sever-
al occasions , as a result of the time spent in such activity
and handling other problems , ended his shift without
having completed his assigned work . He was not disci-
plined and received no warning . He testified that though
grievance handling generally reduced his worktime by
about an hour a day because as a shop steward he cov-
ered four different departments , he was never docked for
the time so spent . The only limitation was that he was
told not to talk to the men too much (this, usually, by
Paul Conselyea). Tormey also testified that "pullbacks"
and assignment . of work to others because someone does
not finish loading a truck is not an uncommon event, but
an everyday occurrence that is not limited to shop stew-
ards . Respondent's emphasis on Smallman 's failure to
finish loading his truck is thus indicative of disparate
treatment . He conferred with grievants on company time
and made informal notes . On more than one occasion,
Conselyea came by and told him he talked to the men
too much and should go back to work and leave the men
alone, Tormey always told him he was doing his job as
shop steward , whereupon Conselyea would leave with-
out making any further attempt to disrupt the process.
Tormey was never disciplined , warned, or docked.
Tormey observed the working methods of the two shop
stewards who preceded him and the three who followed
him. They all conferred privately with the men and
made notes . Some of Tormey 's conferences with the men
prior to taking the matter to management had lasted as
long as an hour. No employee with whom he conferred
was docked . As in Smallman 's case , there were situations
both in which the men came to him with the grievances
and in which he went to them, as when he would hear
from a third party that a man had problems or was in
trouble.
Stamler, a former shop steward for 2 years , testified
that Respondent had not issued written instructions on
the processing of grievances , but that oral instructions
were for the supervisors to cooperate . Both as a shop
steward and as a supervisor, Stamler had received in-
structions from the president of the Union and from
management to try to work problems out in the ware-
house before getting the Union itself involved . He heard
this from Ribustello and from other union delegates. The
stewards were to see management right away when there
was a problem. This was made known to both stewards
and supervisors . When he was a shop steward, no one
was ever docked whether supervisors were involved or
not. Obviously , therefore , performance of shop stewards'
functions was to be carried out on company time. He
conceded that shop stewards occasionally are unable to
complete their assigned duties because of the time they
have devoted to work as shop stewards , but insisted that
though it happens sometimes , "Not on a lot of occa-
sions ." It had happened with other shop stewards. So far
as he knew , the situation on 23 May was the only time it
had ever occurred with Smallman.
Paul Conselyea began his testimony by contradicting
Stamler . He testified that he was told by management,
including Czajka , on "quite a few" occasions , that shop
stewards had to handle union business , including griev-
ances, on their own time, and he testified that he passed
that word along to the shop stewards. (Conselyea 's refer-
ence to the matter as a factor in Smallman 's discharge,
though it was not asserted as a ground of discharge, is
just another example of the muddled and shifting founda-
tion of Respondent 's case for discharging Smallman.)
I do not credit Conselyea's testimony. It is in direct
conflict with credible testimony by others, including
Stamler, that company policy was to handle problems
immediately . Conselyea himself conceded that it was the
practice for employees to come to the shop stewards to
discuss grievances as soon as problems arose, even if it
was on company time , and that no one was ever docked
for discussing a grievance with a shop steward on com-
pany time , even if a supervisor was not involved. As to
those grievances in which management was involved, he
was, of course , compelled to concede that these were
properly handled on company time. He testified , "There
was no quidelines to handle the situation. We tried to
KEY FOOD STORES
solve them immediately and as quick as possible." He
also conceded that there was no docking of pay even in
situations in which only the steward and employees were
involved, and that no purported rule had anything to do
with the length of the conferences involved.
Conselyea's concession that management personnel
never issued any statement, advice, or rule relative to the
amount of working time that could be devoted to the
processing of grievances was echoed in the testimony of
Santarelli, Tudisco, Rusigno, Srnallrian, Michael Viver-
ito, John Tormey, and John R. Asem. Their testimony
covered their own experiences as shop stewards or the
practices followed by shop stewards whom they had ob-
served and, in some cases, both. It is apparent from their
testimonies that company time was defined as the time
between punching in and punching out; that inevitably
stewards had preliminary conferences alone with the em-
ployees who had problems and then conferred with the
supervisors, and that the time required at all phases of
the handling of the grievance varied widely; that some
stewards made few or no notes; and that others made
notes at some length.
John R. Asem, a selector on the third shift, testified
that conferences are conducted as soon as the problem
arises; management personnel have told him to hurry up
the process, but have never told him not to conduct such
business on company time or threatened him with dis-
charge or discipline if he did not stop a conference and
return to work; the prodding by supervisors is not
geared to the actual duration time of conferences because
the supervisors are mobile and make the same suggestion
whenever they see a conference in progress, and as a
rule cannot know conferences' duration because they are
riding around on carts. Asem's practice has been to
advise them that he was processing a grievance, and they
normally have either expressed an interest in the problem
or simply told him not to take 100 long. A supervisor
named Maloney who was in charge of the third shift in
1984 gave Asem directions to handle grievances on the
spot or as soon as possible, so that they do not get out of
hand. Asem further testified that note-taking is a regular
part of a shop steward's job and is inevitably done on
company time.
Michael Viverito gave similar testimony, noting in ad-
dition that for 2 years he had always handled grievances,
during which he made notes, during working hours; that
that was the way shop stewards worked; that most griev-
ances were handled in periods that varied from 10 min-
utes to 1 hour, on company time , and that he has been
involved in some lengthy grievances, one of which lasted
between 3 and 4 hours. His situations all involved super-
visors. There was no clocking system for time spent on
grievances.
That grievances were customarily processed on com-
pany time, at all stages, both before and after involve-
ment of management supervisory personnel, is estab-
lished overwhelmingly, and in part by testimony from
Respondent's own witnesses. Even Santarelli's own prob-
lem, when he was accused of distributing the Free Key
Press on company time, was handled by the shop stew-
ard, Mazurkewitz, on company time.
1069
Finally, the very top management of the Company
was involved in Smallman's dismissal. The order came to
Bucholz on Sunday, 26 May, from the controller,
Czajka, who was in charge of day-to-day handling of the
Company's labor relations, was deeply involved in the
settlement of grievances, and who reported directly to
Allen Newman, the chief executive officer. John Berti,
director of security, who reports directly to Newman,
was instructed by Newman to be present when Bucholz
fired Smallman. There is ample evidence that both
Newman and Czajka were familiar with Smallman's role
in the T.D.U., and it is apparent from the comments of
Respondent's counsel, in his opening statement quoted
here, that affiliation with the T.D.U. was considered a
distraction from the Company's work and disruptive of
an orderly working atmosphere. Czajka testified that he
had filed away copies of the Free Key Press, having re-
ceived and read them.
A penchant for interfering in the business of the union
shop stewards seems to have been endemic among Re-
spondent's supervisors. Michael Viverito testified that
Paul Conselyea told him, on an occasion when he was
defending an employee against what appeared to be an
abuse of authority by a supervisor, that some employees
did not deserve to be defended, and that he was repre-
senting the wrong people. Their meddling in the internal
fight between the T.D.U. and the incumbent union offi-
cials has been noted above.
4. Conclusion
I find the reason put forth by Respondent for having
fired Smallman to be incredible. Because I reject it as
pretextual, I am compelled to infer that he was really
discharged because of his activities in support of the
T.D.U., which was the reason stated by the General
Counsel. The inference is supported by a preponderance
of the evidence showing Respondent's bias against the
T.D.U., disparate treatment of Smallman, and the in-
volvement of the top echelons of Respondent's manage-
ment.
Section 8(a)(3) provides that it shall be an unfair labor
practice for any employer
by discrimination in regard to hire or tenure of em-
ployment or any term or condition of employment
to encourage or discourage membership in any
labor organization .. . .
Smallman 's support for the dissident T.D.U. brought
him within the protection of this provision of the Act.
United Parcel Service, 230 NLRB 1147 (1977).
Accordingly, I find that the Respondent, in discharg-
ing Smallman , violated Section 8(a)(3) and (1) of the
Act.
D. Threats of Discharge and Commencement of
Arbitration Proceeding Against Joseph P. Tudisco
It is alleged that on 28 August, the Respondent's con-
troller, Walter J. Czajka, threatened employees with dis-
charge because they filed a charge and gave testimony
under the Act, and initiated an arbitration proceeding to
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discharge Tudisco because Tudisco had filed a charge
and given testimony under the Act. Respondent contend-
ed that it sought to discharge Tudisco because he know-
ingly filed a false charge against Respondent with the
NLRB in order to injure Respondent, and that the re-
quest for an arbitration of Tudisco's proposed termina-
tion was in accordance with the terms of the collective-
bargaining agreement.
The Respondent's position with respect to its request
for arbitration to fire Tudisco puts it in the position of
having to prove that Tudisco knowingly filed a charge
with the Board that was false. It is settled that employers
may not "use grievances as a sword to gain immunity
from the consequences of harassment." Caterpillar Trac-
tor Co., 242 NLRB 523, 530 (1979). Once the General
Counsel has proved the threat to discharge Tudisco on
the basis of his having filed a charge with the Board, the
burden is on the Respondent in this proceeding, not in
the arbitration, to show the falsity of the charge brought
by Tudisco and Tudisco's knowledge of such falsity. The
gravamen of the offense for which Respondent claims
the right to discharge Tudisco is harassment with intent
to injure the Respondent, and this is what the Respond-
ent must prove. Caterpillar Tractor Company, supra.
The record is utterly barren of any evidence that
would tend to establish that Tudisco filed an unfair labor
practices charge with the NLRB against Respondent
knowing that the same was false. Notwithstanding the
contention of Respondent's counsel during final argu-
ment that such conduct on his part had been established,
in fact no attempt was even made to prove it during the
course of the hearing. How far from proving it the Re-
spondent strayed is apparent from the lack even of evi-
dence that would tend to establish when the charge was
filed and what the exact nature of the charge was. Re-
spondent's counsel indicated that some evidence of this
nature had been placed before the arbitrator. That does
not put it before me, and there has been no arbitration
yet with respect to Tudisco. If the evidence emerged in
the Smallman arbitration, it was clearly irrelevant. The
failure of proof on this point is so complete that I con-
clude that Respondent had no basis for any asserted
belief that Tudisco knowingly filed a false charge and, in
fact, did not so believe. The Respondent's asserted
reason having been determined to be pretextual, I con-
clude that Respondent seeks to fire Tudisco for the un-
lawful reason imputed to it by the General Counsel.
The Respondent's contention that it had just cause to
fire Tudisco because he wilfully filed a false charge with
the NLRB directly conflicts with the prohibition con-
tained in Section 8(a)(4) of the Act against any interfer-
ence by an employer with an employee's right to file
such a charge or to testify in a proceeding conducted
with respect to a charge. An employer cannot set itself
up as the judge of the propriety of the employee's action;
that function is vested in the Board.
The Respondent raises the specter of an employee har-
assing an employer by deliberately and repeatedly filing
false charges. The argument is irrelevant. The Respond-
ent in this case seeks to fire an employee who has filed
only one charge and there is not a scintilla of evidence in
the record to establish that Tudisco knew that the charge
as filed did not conform to the provable facts of the case
he proposed to present to the Board or that he had or
has any intention to file false charges or additional
charges.
Consideration of all the circumstances of this case in
conjunction with the provisions of the collective-bargain-
ing agreement make it hard to view the request for arbi-
tration as anything other than a threat of discharge. I
find the General Counsel's argument highly persuasive
on this point. She calls attention to the contractual provi-
sion for summary discharge for certain limited reasons
and compares it with the procedure provided for all
other cases. The agreement provides that on discharge of
an employee, the employee will continue to receive pay
provided the Union demands arbitration within 48 hours.
She asks, quite rightly I think, what are we to make of
the procedure followed in this instances, whereby the
Respondent has kept Tudisco on the job and has itself
served a notice of arbitration seeking permission to dis-
miss him? The notice of arbitration expressly states that
Respondent will seek Tudisco's discharge.
The Respondent asserted that the procedure it fol-
lowed with respect to Tudisco was its regular practice. I
have no evidence that the collective-bargaining agree-
ment had ever been modified or that any new or existing
practice is pertinent in this respect. Had the agreement
provided for the procedure the Respondent followed, or
if such a practice were sanctioned, it might well be
argued that a finding that the notice of arbitration consti-
tuted a threat of discharge would vitiate the collective-
bargaining agreement and deprive the parties of the rea-
sonable arrangement for which they had contracted, sub-
jecting the employer to the risk of prosecution for viola-
tion of the Act every time it invoked the agreed proce-
dure. That is a patently nonsensical result that requires
me, in the light of all the other circumstances, to view
the procedure followed by Respondent, and not provid-
ed for in the contract, as an attempt to intimidate Tu-
disco by threatening him with discharge.
Furthermore, the notice of arbitration constituted an il-
legal threat of discharge as a result of its substantive con-
tent. On its face, it is issued because Tudisco invoked the
processes of the Board. This constituted a prima facie
violation of Section 8(a)(4) of the Act.
The question of whether the charge filed by Tudisco
was true or false was squarely within the issues of this
proceeding. It is a matter not properly referrable to the
contractually appointed arbitrator, notwithstanding the
provisions of the collective-bargaining agreement, be-
cause 8(a)(4) violations do not fall in the class of those in
which deferral is sanctioned. International Harvester Co.,
271 NLRB 647 (1984).
Accordingly, I find that the Respondent has violated
Section 8(a)(4) of the Act.
E. The Affirmative Defenses
1. The Smallman arbitration
It is alleged that in violation of Section 8(a)(3) and (1)
of the Act, Respondent discharged Smallman on 28 May
because he joined and assisted the T.D.U., because of his
KEY FOOD STORES 1071
activities as a shop steward for the Union, and because
he engaged in other concerted protected activities. Re-
spondent concedes the discharge and refusal to reinstate
and alleges affirmatively that pursuant to the collective-
bargaining agreement , an arbitration was conducted on
20 June wherein the arbitrator found just cause for the
discharge, and demands that the charges be dismissed
under the doctrine of Spielberg MFg. Co., 112 NLRB 1080
(1955). If "the proceedings in which it was issued appear
to have been fair and regular, all parties had agreed to be
bound, and the decision is not clearly repugnant to the
purposes and policies of the Act" then I am required to
defer to it. Spielberg Mfg. Co., supra at 1082. The Gener-
al Counsel contends, however, that this is not a case for
deferral.
The arbitration proceeding was initiated by a union
grievance dated 30 May alleging that Smallman had been
improperly dismissed. The arbitrator's decision and
award, a copy of which was made part of Respondent's
answer, summarized the evidence adduced at the hearing
before him and set forth his factual findings. The testi-
mony of the Employer's witnesses was stated to have
been to the effect that on 23 May Smallman was distrib-
uting "Grievance Fact Sheets" which he had prepared
himself; he was directed to stop doing so during working
hours and to do it on his own time. Instead of ceasing
this activity, he continued what he was doing and re-
mained away from the job for 2-1/2 hours. Following his
dismissal , Smallman and others picketed in front of the
warehouse; the witnesses believed that Smallman was
also responsible for picketing that occurred at four stores
served by Respondent, in which he did not participate.
The Union introduced testimony to the effect that Small-
man was processing grievances in his capacity as a shop
steward, an activity that had customarily been permitted
on company time with participation by management rep-
resentatives. Smallman testified that he had reviewed
grievances during working hours without objections
from the Company. He conceded that he had been or-
dered to return to work by Bucholz and had responded
that he would do so as soon as he finished with the
grievance forms. According to the arbitrator, "He fur-
ther acknowledged that he had been instrumental in
causing the picketing and had participated in it because
he felt that he had been wrongfully dismissed."
The arbitrator concluded that the manner in which
Smallman had been discharged violated the collective-
bargaining agreement , entitling Smallman to lost earnings
for the period from 27 May to the date of the award, 11
July, but that the dismissal itself was justil ied, for six rea-
sons which the arbitrator set forth:
(1) Smallman acted improperly when he refused to
stop talking to workers during work hours; he was obli-
gated to return to work as directed.
(2) His continued activity and interruption of the Em-
ployer's operation was not excused by past practice re-
specting grievance processing.
(3) He used forms of his own devising: "Further, the
forms were not approved nor submitted to the Union or
to the Employer for comment or approval. Smallman
stated that he had, devised it and had used material from
other grievance forms. There was no need for him to
have insisted on continuing to personally distribute them
during work hours."
(4) Picketing of the warehouse, which Smallman
"seemed able to control," was inappropriate.
(5) The decision to picket the stores was intended to
coerce the Employer and bypass the contractual griev-
ance procedure and "could have had disastrous conse-
quences."
(6) As a result of internal union political activities,
"Smallman was allowing his attitude to affect the Em-
ployer's operation." His "improprieties were extremely
serious and he did not seem to be concerned about the
effect it had on the Employer's operation and the jobs of
many employees." (The context of this remark makes it
clear that the arbitrator's reference is to Smallman's "im-
proprieties" after, as well as before, his discharge.)
On the basis of the facts thus found, the arbitrator
made an award to the effect that, "The Employer has
just cause to dismiss John Smallman. The Employer is
directed to pay to Smallman the lost earnings from the
date of dismissal, May 27, 1985, to the date of this
Award."
Where a collective-bargaining agreement provides for
arbitration of disputes between employees and the em-
ployer, deferral to arbitration by this tribunal is the pref-
erable course in appropriate situations, inasmuch as the
protection of the Act remains available. The Board has
noted that deferral is "merely the prudent exercise of re-
straint, a postponement of the use of the $oard's process-
es to give the parties' own dispute resolution machinery
a chance to succeed. The Board's processes may always be
invoked if the arbitral result is inconsistent with the stand-
ards of Spielberg. (Emphasis supplied.) United Technol-
ogies Corp., 268 NLRB 557, 560 (1984). Those standards
do not require, for deferral to an arbitrator' s decision,
that there be agreement with the arbitrator's findings. It
is not even necessary for an arbitrator's decision to be to-
tally consistent with Board precedent. Deferral will be
declined only when an arbitrator's decision is "palpably
wrong," which means that it is not susceptible of an in-
terpretation consistent with the Act. The Board has elu-
cidated the guidelines. An arbitrator is to be deemed to
have adequately considered an unfair labor practice if
the contractual issue before him is factually parallel to
the unfair labor practice issue and if he was presented
generally with the facts relevant to resolving the unfair
labor practice. The burden is on the General Counsel or
the Charging Party to show that the standards have not
been met and to demonstrate what the defects were in
the arbitral process or award. Olin Corp., 268 NLRB 573
(1984).
I think the General Counsel has successfully made
such a showing, on the basis of the testimony of Small-
man, facts stipulated to with counsel for Respondent, and
the text of the award itself, which reveal serious proce-
dural and substantive infirmities in the award.
The issue submitted to the arbitrator, in accordance
with an agreement reached at the outset of the arbitra-
tion, was whether Smallman had refused a direct order
from a supervisor and worked on matters not related to
his job at Key Food during normal working time. Re-
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent 's counsel read the Respondent 's discharge
notice letter , as modified , into the record of these pro-
ceedings , and the reason for discharge is stated therein as
follows: "Mr . Smallman was terminated for refusing a
direct order from a supervisor , working on matters not
related to his job at Key Food during normal working
time ." Respondent 's counsel stated , on the record:
And the reason for it was to make it crystal clear
that the only issue here was this man taking it upon
his own , to create a form from a T.D.U. manual,
without anyone 's authority and permission , spend-
ing an-and he admitted himself, admitted at least
two and a half hours. Going around , filling these
things out.
He added:
Every other issue was deleted at the very outset.
Not later on at all.
In Betts v. Brady, 316 U.S. 455 (1942), the Supreme
Court noted that questions of due process must be deter-
mined a fresh in each case, with all the circumstances
being taken into consideration. Though the Court's
ruling in that case was subsequently repudiated in Gideon
v. Wainwright, 372 U.S. 335 (1963), Justice Roberts' ob-
servations remain valid as a characterization of the con-
siderations underlying a determination of due process.
The phrase formulates a concept less rigid and more
fluid than those envisaged in other specific and par-
ticular provisions of the Bill of Rights. Its applica-
tion is less a matter of rule . Asserted denial is to be
tested by an appraisal of the totality of facts in a
given case. That which may, in one setting, consti-
tute a denial of fundamental fairness , shocking to
the universal sense of justice, may, in other circum-
stances, and in the light of other considerations, fall
short of such denial. [316 U.S. at 462.]
The contractual issue was factually parallel to the
unfair labor practices issue , both revolving about the
question of whether Smallman was discharged for justifi-
able business reasons or because of his pursuit of an ac-
tivity protected by the Act. The arbitrator was presented
with the facts relevant to resolution of the unfair labor
practices issue , as is apparent from the summary con-
tained in the award of the evidence that was placed
before the arbitrator.
Thus, the issues relating to Smallman 's discharge
would have merited deferral and the arbitrator heard
evidence on them. Thus, two of the basic requirements
for deferral have been met. Mere disagreement with the
arbitrator's conclusion would be insufficient basis for de-
clining to defer to the arbitrator's award. See Anderson
Sand & Gravel, 277 NLRB 1204 (1985). However, I find
that the arbitrator's decision is not susceptible of an in-
terpretation that is consistent with the Act, and is there-
fore repugnant to the Act, and I find that the proceed-
ings were not "fair and regular," which precludes defer-
ral. Spielberg Mfg. Co., supra at 1082.
The arbitrator expressly found that Smallman's dis-
charge was justified because he refused to stop process-
ing grievances during working hours. The arbitrator
found that past practice sanctioned the handling of griev-
ances during work hours, referring to "[H]is assertions
and the additional evidence which indicated that in the
past, grievances were handled during the work hours"
yet he disallowed that circumstance as an excuse for
Smallman 's action and in effect sustained Smallman's dis-
charge though it was based directly on his having en-
gaged in concerted protected activity in a manner that
conformed to the past practice of the parties and a sub-
sisting collective -bargaining agreement. The arbitration
award was therefore repugnant to the Act. Equally im-
portant, it appears to me that the proceedings were not
"fair and regular," there having occurred a denial of due
process because Smallman was not adequately and timely
advised of the issues he would be confronted with at the
arbitration hearing and because the hearing itself was
unfair and the decision palpably in error.
In Wolf v. Colorado, 338 U.S. 25, 27 ( 1949), Justice
Frankfurter commented:
Due process of law thus conveys neither formal nor
fixed nor narrow requirements. It is the compendi-
ous expression for all those rights which the courts
must enforce because they are basic to our free so-
ciety. . . . Representing as it does a living principle,
due process is not confined within a permanent
catalogue of what may at a given time be deemed
the limits or the essentials of fundamental rights.
Smallman was not given proper notice of the charges
he was expected to meet. He had been told by Bucholz
on 27 May that he was being fired for using the unau-
thorized grievance forms. When he appeared at the arbi-
trator's office on 11 June, he learned that other reasons
for his discharge were being pressed. Counsel for Re-
spondent read to the arbitrator the notice of Smallman's
discharge that had been sent to the Union, and that con-
cluded , "Mr. Smallman was terminated for refusing a
direct order from a Supervisor, working on matters not
related to his job at Key Food during normal working
time and other reasons that have made him an unsatisfac-
tory employee." The last phrase, relating to "other rea-
sons," was deleted only after Ribustello raised questions
about its meaning and what specifically was covered by
it. Even after the last phrase ("and other reasons that
have made him an unsatisfactory employee") had been
stricken from the letter, by agreement between Respond-
ent and the Union, other grounds were in fact pressed on
the arbitrator during the hearing, as is apparent from his
findings.
The manner in which the arbitration hearing was con-
ducted and decided is even more disturbing. Though the
issue was whether Smallman had been justifiably dis-
charged on 27 May, the asserted ground of discharge
that most impressed the arbitrator related to events that
had transpired thereafter. This was the picketing-not
mentioned to Smallman when he was fired (it had not
happened yet), not mentioned in the letter, and excluda-
ble as a ground both by reason of the express limitation
KEY FOOD STORES 1073
of the issues to the grounds stated in the letter to the
Union and by the fact that the picketing, having oc-
curred after the discharge, could not have been a reason
for the discharge.
Walter Czajka testified that the evidence presented to
the arbitrator included a letter dated 10 June sent to
Allen Newman, the chief executive of Key Foods, by
the "Steering Committee of the Long Island Chapter of
T.D U." The letter demanded Smallman 's reinstatement
and concluded, "Should you decide to pursue these erro-
neous charges [against Smallman ], we will continue to
support informational picketing to be extended to your
patrons at select Key Food stores until Mr. Smallman is
back to work."
Evidence of purported misbehavior which occurred
almost 3 weeks after Smallman 's discharge manifestly
could not have influenced the decision to fire him and
should not have been received and considered by the ar-
bitrator. This was a denial of due process that was both
procedural and substantive. Recognition of a denial of
due process has, of course, never been limited to those
instances in which there has been departure from proce-
dural regularity. There is a basic lack of fairness which is
apparent from the arbitrator's decision, whether viewed
as a denial of due process or simply as a failure to accord
Smallman the "full and fair hearing" envisioned by the
Spielberg doctrine.
The arbitrator's uncritical acceptance of Respondent's
viewpoint is apparent in the arbitrator's mischaracteriza-
tion of the documents prepared and used by Smallman as
"grievance forms" when they were merely forms to
embody factual summaries . His biased approach is fur-
ther evident in the heavy emphasis placed by him on the
postdischarge picketing and his worry about the "disas-
trous consequences" that might have ensued, which were
considerations not relevant to the immediate issue of mo-
tivation for the discharge; his reference to "internal
Union political activities which were critical of some of
the Union 's representatives" (a position which is repug-
nant to the Act and a matter with which he should not
have concerned himself); his reference to the purported
fact that "Smallman was allowing his attitude (critical to
the Union) to affect the Employer's operation," a conten-
tion not made in the notice of discharge sent to the
Union and embracing a matter with which the arbitrator
should have had no concern; and in his refusal to take
into consideration the fact that Smallman 's insistence on
talking to the workers was nothing more than assertion
of his right to complete concerted activity protected by
the Act and provided for in the collective-bargaining
agreement.
The desirability of deferring to an arbitrator's decision,
when appropriate , has never meant that the Board relin-
quishes its interest in the fairness of the result achieved
in the case. The manner in which the arbitration is con-
ducted has always been a matter of direct concern to the
Board . In United States Steel Corp., 264 NLRB 76, 79
(1982), an issue was held not to have been resolved by an
arbitrator who framed the question presented to him "in
such a manner as to make only one answer possible." In
Inland Steel Co., 264 NLRB 84 (11982), there was no de-
ferral in a situation in which the Board found a failure to
follow a "clear precedent interpreting the Act" with the
result that the arbitrator arrived at a decision which was
"palpably wrong." In General Dynamics Corp., 271
NLRB 187, 190 (1984), jurisdiction was retained follow-
ing deferral to the arbitrator, among other purposes, "for
the purpose of entertaining a motion for further consider-
ation on a showing that . . . (b) the grievance-arbitration
procedure has not been fair and regular or has produced
a result repugnant to the Act." In Combustion Engineer-
ing, 272 NLRB 215 (1984), the Board reviewed the arbi-
trator's findings to determine whether they were repug-
nant to the Act. In holding that the decision whether to
defer depends on whether deferral will impinge upon the
parties' rights under the Act, not on whether the same
result would be reached, it expressly noted that, "[N]o
party alleges that the proceedings before either Arbitra-
tor Pettico or Arbitrator Foy were not fair and regular."
(Id. at 216.)
The affirmative defense asserting that there should be
deferral to the arbitration award is accordingly dis-
missed.
2. Tudisco's failure to demand arbitration
In response to the complaint based on Tudisco's
charge that his rights under Section 7 of the Act had
been infringed, the Respondent pleaded affirmatively that
the complaint was premature because Tudisco was obli-
gated, in the first instance, to request arbitration. The
collective-bargaining agreement is cited as the source of
that obligation.
The Respondent would be correct if the matters in-
volved were contractual disputes under the collective-
bargaining agreement. It is to such disputes that the arbi-
tration clause is applicable. The charge does not involve
matters covered by the contract, but unlawful surveil-
lance and suppression of distribution of T.D.U. literature
by unlawful threats. The alleged surveillance does not
bring into play the contractual provisions relating to su-
pervision and direction of employees' work. Out-and-out
violations of the Act are alleged, not merely "a dispute
arising between the employee and the employer." It is
difficult to envisage the means by which Respondent
would invoke arbitration with respect to the matters em-
braced in Tudisco's charges, considering that the proce-
dure called for in the collective -bargaining agreement is
for "the Union and the Employer . .. [to] make every
effort to adjust such dispute amicably and as speedily as
possible." Only thereafter is a dispute to be referred to
the arbitrator.
In the present case, the Respondent has denied surveil-
lance and does not assert a contractual right to observe
employees walking up and down outside the entrance to
the warehouse. Tudisco is not claiming a right to do so
on the basis of the contract, but on the basis of Section 7
of the Act. There is no contractual issue for an arbitrator
to decide in connection with the surveillance charge.
The situation is different, however, with respect to Tu-
disco's allegations that Stamler sought to suppress distri-
bution of T.D.U. literature by threatening discharge and
other reprisals. All parties to the incident alleged were
inside the warehouse during the time when the shifts
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were changing. The evidence tends to show that Bu-
cholz sought to prevent unauthorized activities which
would diminish productivity during working time, and
Stamler entered the locker room attempting to follow
Bucholz' orders. The crux of the issue raised by their ac-
tions is whether Bucholz and Stamler were doing some-
thing the contract authorizes or were interfering with
employees' rights under Section 7. An arbitrator would
have a contractual question presented to him, in the
course of which he would also consider the unfair labor
practice aspects of the case. This is an arbitrable dispute
which should be referred to the contract arbitrator in ad-
vance of a hearing in this tribunal.
Accordingly, the affirmative defense is dismissed as to
the charge of surveillance, but is sustained, and the com-
plaint is dismissed, with respect to the charge of threats
of discharge and other reprisals.
3. The claim that Tudisco lost his right to statutory
protection
By reason of his misconduct in knowingly filing a false
claim, according to the Respondent, Tudisco "lost the
protection of the Act, including Section 8(a)(4) thereof."
By way of affirmative defense, the Respondent has
raised the question of whether the Board will lend its as-
sistance to a complainant who has lied to it and present-
ed a false claim . It is important in considering this aspect
of the issue to distinguish between rights and remedies.
Whatever the employee may or may not have done so
far as veracity is concerned, his right to bring charges
before the Board and testify in Board proceedings is so
vital to attainment of the purposes and policies of the
Act that the right cannot be permitted to be curtailed at
the Employer's discretion. In this case, Respondent con-
cedes that it wishes to fire Tudisco for the very reason
that he filed a charge. It thereby violates Section 8(a)(4)
of the Act. The point at which we undertake determina-
tion of the appropriate remedy to achieve the purposes
and policies of the Act is the time to consider whether
the charge filed by Tudisco was false and was filed mali-
ciously and with knowledge of its falsity. As Tudisco has
not been fired yet and no question of reinstatement
exists , the question which has to be decided now is
whether the Respondent's request for arbitration of its
intended discharge of Tudisco should be nullified. It
should be.
The danger inherent in permitting the merits of a
grievance or charge filed with the Board to be the basis
of an employer's defense is apparent: the validity of the
grievance or charge should be litigated in the proceed-
ings invoked to resolve them, not in other proceedings
involving fundamentally different issues. The Respond-
ent's contention herein has been rejected by the Board in
other types of cases in which the employees' good faith
in invoking the aid of the Board has been brought into
serious question.
In Caterpillar Tractor Co., 242 NLRB 523 (1979), the
employer contended that its legitimate interest in con-
serving working time empowered it to discipline employ-
ees who filed repetitive grievances. In rejecting this con-
tention, the Board approved the decision of the adminis-
trative law judge which noted that the merits of a griev-
ance are irrelevant in determining whether a right is pro-
tected under the Act. The Respondent has remedies if
the employee engages in unwarranted harassment . Its at-
tempt to discharge Tudisco for filing a claim is an exam-
ple of that. It does not, however, warrant depriving Tu-
disco of the right to bring charges based on alleged vio-
lations of the Act by the Respondent. Two wrongs do
not make a right, especially when the responsibility for
effectuation of the purposes and policies of the Act is
placed by law with the Board, not with either of these
parties.
CONCLUSIONS OF LAW
1. Respondent Key Food Stores Cooperative, Inc. is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local 138 , International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent violated Section 8(a)(1) and (4) of the
Act by threatening an employee, Joseph P. Tudisco,
with discharge through the medium of initiating an arbi-
tration proceeding seeking termination of his employ-
ment because he filed a charge under the Act.
4. Respondent violated Section 8(a)(1) of the Act by:
(a) Threatening an employee , Joseph Tudisco, with
discharge if he distributed literature for Teamsters for
Democratic Action in the warehouse on company time,
without having previously promulgated any rule prohib-
iting such practice.
(b) Engaging in surveillance of employees distributing
T.D.U. literature outside the Respondent 's warehouse.
5. Respondent violated Section 8(a)(1) and (3) of the
Act by discharging , and thereafter refusing to reinstate,
John D. Smallman because he joined and assisted a dissi-
dent union organization and engaged in intraunion activi-
ties and because he performed duties as a shop steward
for the Union.
6. The Respondent did not commit any violation of
the Act except as hereinabove found.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (4) of
the Act, I shall recommend that the Respondent be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act, including the reinstatement of John D. Small-
man. However, the fact that Smallman picketed the Re-
spondent 's warehouse requires some comment . On exam-
ination by the General Counsel, Smallman testified that
after his discharge, he and other members of the T.D.U.
conducted informational picketing around the warehouse
in order to inform the employees of the fact that he had
been discharged and the surrounding circumstances. He
disclaimed responsibility for picketing at other locations,
KEY FOOD STORES 1075
and confined his own participation to the picketing at the
warehouse itself.
Respondent has been bitterly critical of Smallman be-
cause of these activities and cited them as justification
for his discharge in the proceedings before the arbitrator.
It might be argued that such activities would have justi-
fied Respondent's refusal to reinstate him. See Clear Pine
Mouldings, 268 NLRB 1044 (1984). However, the ques-
tion of reinstatement might never have arisen except for
the Respondent's violations of the Act and its wrongful
discharge of Smallman. Respondent's complaint that
Smallman bypassed the contractual arbitration provisions
by picketing cannot be taken seriously when Respondent
itself ignored the contract provisions by firing him sum-
marily, without pay. Furthermore, the picketing was not
an issue in these proceedings and only came up because
of the Respondent's own confusion about its contentions
regarding the basis for Smallman's discharge. The facts
respecting it were not fully developed and there is no
evidence in the record whether he was or was not in-
volved in picketing at any location other than the ware-
house. It has not even been determined if the picketing
was anything more than informational picketing. There
is, therefore, no adequate factual basis on which I can
take the picketing into account in fashioning a recom-
mended remedy.
I shall , therefore, follow customary remedial proce-
dures and recommend that the Respondent be directed to
make John D. Smallman whole for any loss of earnings
and other benefits that he may have suffered by reason
of his discharge on 27 May 1985 and the failure of the
Respondent to reinstate him thereafter, with backpay to
be computed it the manner prescribed in F . W . Wool-
worth Co., 90 NLRB 289 (1950), with interest thereon to
be computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138
NLRB 716 (1962). I further recommend that the Re-
spondent be required to remove from its records any ref-
erences to the unlawful discharge of Smallman and pro-
vide him with written notice of such removal and that
his unlawful discharge and layoff will not be the basis of
any further action against him.
[Recommended Order omitted from publication.]