Super Valu Stores, Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1977

228 N.L.R.B. 1254 (N.L.R.B. 1977)

1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Super Valu Xenia , A Division of Super Valu Stores,
Inc. and Charles W. McClanahan , Gerald D.
Snapp, Larry S. Tolle. Cases 9-CA-10134-1, 9-
CA-10134-2, and 9-CA-10196
April 7, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On November 29, 1976, Administrative Law Judge
Frank M. Itkin issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Super Valu
Xenia, A Division of Super Valu Stores, Inc., Xenia,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge' s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings
Member Fanning, in agreeing with the Administrative Law Judge that
there was no violation in the discharge of Chief Steward McClanahan , relies
on the finding that McClanahan participated in a strike that lasted more
than 24 hours
DECISION
FRANK H. ITIUN, Administrative Law Judge. These
consolidated cases were heard before me on July 27 and 28,
1976, in Xenia, Ohio. The unfair labor practice charges
were filed on March 10, 18, and 31, 1976. The consolidated
unfair labor practice complaint issued on May 6, 1976. The
principal issue presented is whether Respondent Employer
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, by discharging employees
Charles W. McClanahan, Gerald D. Snapp, Larry S. Tolle,
228 NLRB No. 156
and William H. Green following an unauthorized work
stoppage at Respondent's warehouse in Xenia, Ohio. In
addition, counsel for Respondent argues that the discharg-
es in question were the subject of grievances filed pursuant
to the collective-bargaining agreement between the Em-
ployer and the Union - General Teamsters, Sales , Service
and Industrial Union Local 654, affiliated with the
International Brotherhood Of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO; these
grievances were properly processed through the agreed-
upon procedure and the parties entered into a final and
binding settlement; therefore the disposition of these
grievances is a bar to this proceeding.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
the parties, I make the following findings of fact and
conclusions of law:
FINDINGS OF FACT
A. Introduction
Respondent, a Delaware corporation, is engaged in the
sale of food and related products at various facilities
throughout the United States, including Xenia, Ohio.
Respondent, during the past 12 months, had a direct
outflow in interstate commerce of goods valued in excess of
$50,000, which goods it sold and caused to be shipped
directly from its Xenia facility to firms outside of Ohio.
During the same period, Respondent had a gross volume of
business in excess of $500,000. I therefore find and
conclude that Respondent is engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Further, I find and conclude that Local 654 is a labor
organization within the meaning of Section 2(5) of the Act.
Respondent has some 10 warehouse facilities servicing
grocery retail stores and employs at these facilities about
9,000 employees. The employees at seven of its warehouse
facilities, including the employees at Xenia, are covered by
separate collective-bargaining agreements with various
locals of the Teamsters Union. The current collective-
bargaining agreement between Local 654 and the Employ-
er pertaining to the Xenia employees, effective from
February 1, 1974, through January 31, 1977, provides in
pertinent part:
ARTICLE 4
NO STRIKE - NO LOCKOUT
4:01 In order to assure stabilized employment and
uninterrupted service, the parties hereto mutually
agreed that there shall be no lockout, strike, or any
other interference with the operation of the business
during the life of this Agreement, except for refusal of
the other party to abide by the decision of the
Arbitrator as provided in this Agreement.
4:02 The Secretary-Treasurer of the Union only has
the power to authorize, give the order for, or give the
directions necessary to carry out strikes, work stoppag-
es, or any other actions which will interfere with the
activities required of employees under this Agreement.
SUPER VALU XENIA 1255
4:03 It is further agreed that in all cases of
unauthorized strike, slowdown, or walkout, or any
unauthorized cessation of work in violation of this
Agreement, the Union will not be held liable for
damages resulting from such unauthorized acts of its
members. While the Union shall undertake every
reasonable means to induce such employees to return
to their job during any period of unauthorized stoppage
of work mentioned above, it is specifically understood
and agreed that the Employer during the first twenty-
four (24) hours of such unauthorized work stoppage
shall have the sole and complete right of reasonable
discipline, short of discharge, which right shall include
the right of suspension not to exceed thirty (30) days;
and such Union members shall not be entitled to or
have any recourse to any other provisions of this
Agreement. After the first twenty-four (24) hour period
of such stoppage and if such stoppage continues,
however, the Company shall have the sole and
complete right to immediately discharge any Union
member participating in a non-authorized strike,
slowdown, walkout, or any other cessation of work and
such Union member shall not be entitled or have any
recourse to any other provisions of this Agreement.
B. The Xenia Employees Engage in an
Unauthorized Work Stoppage
Kenneth Techau, the Employer's president, was apprised
by Jack Hynes, the Employer's superintendent at Xenia, on
Friday, February 27, 1976, that a number of employees had
refused to work overtime that morning. Later that same
day, the Employer conducted a hearing concerning the
employees' refusal to work overtime. The hearing was
attended by, inter alia, representatives of Local 654. The
Employer then determined to suspend nine of the employ-
ees involved for 30 days and to issue written reprimands to
two other employees involved.
On the next morning, Saturday, February 28, Techau
and Hynes met with Don Hager, Local 654s business
agent, and Charles W. McClanahan, an employee and
chief steward for Local 654. At this meeting, Hager claimed
that the Employer's "penalty was too severe" and asked
management to "reconsider . . . by reducing the penalty of
these nine people." Techau refused. Hager, according to
the credible testimony of Techau, stated "something to the
effect that this could cause some problems if we stuck with
our 30-day suspensions of these nine people." Hager also
stated "that there would be a meeting" that Saturday
afternoon with the union membership and he, Hager,
would like to call Techau or Hynes shortly before the
meeting "to see if [the Employer] would consider reducing
the penalties." Techau agreed to speak with Hager before
the union meeting . Hager later telephoned Techau that
afternoon and was informed that management had decided
to reduce the nine 30-day suspensions to 10-day suspen-
sions.
A Local 654 meeting was held about 3 p.m. on Saturday,
February 28. Some 80 employees attended. Business Agent
Hager and Chief Steward McClanahan were also present.
The membership was informed that management had
reduced the nine 30-day suspensions to 10-day suspen-
sions . According to McClanahan, the membership "felt
that this was unfair . . . that the 10 days was too much."
McClanahan testified:
[S]ome of the members got up on the floor and
requested that the stewards and business agent vacate
the room because they had a decision to make to
correct the decision that pertained to the nine [suspend-
ed] people; and at that time they was aware that there
was no sanction [for a strike]. And so, we left the room.
They made their decision while we were out of the
room. When we came back, they had discussed how to
achieve sanction rights with the business agent [Hager];
he . . . gave them some encouragement that he would
go and try to achieve sanction rights due to the
decision.'
About 6:30 a.m. on Sunday, February 29, Techau was
advised by Hynes that there were "pickets out in front of
the warehouse" at Xenia. Techau spoke with Hager on the
telephone later that morning . Hager acknowledged to
Techau "that they [Local 654] were not condoning the
strike, that it was an unauthorized strike and that [Techau]
would have a telegram Monday morning to that effect."
Techau received such a telegram, dated February 29, on
Monday, March 1.2 Employees scheduled to work that
Sunday did not report for work.
Techau testified that when he arrived at the Xenia
warehouse about 6:45 a.m. on Monday, March 1, there
were about "three cars parked along the road" and "about
four people standing on the left hand side of the Super
Valu property." The four persons were " standing" some
"15 to 20 feet to the left of the driveway." According to
Techau,
I called all the supervisors into my office and we made
the decision that anybody that did not show up for
work [that Monday], they were to be called and given a
half hour to report to work.
Techau credibly testified that the work stoppage was
continuing on Monday morning; "we had a group of
people that did not report for work"; and "we had to call
these people and ask them to come in." Techau observed
about 7:15 a.m. that employee and Chief Steward McCla-
nahan "was among those who had failed to report" as
scheduled. Techau testified:
I instructed Jack Hynes . . . that he was to make the
call to Bill McClanahan . . . . I felt this wasn't a legal
strike. A wildcat strike.... There was no member of
the Union present to help us get the people back to
work. . . . So, I told Jack that I wanted him to call Bill
McClanahan and ask Bill to be there in a half an hour
I Hager did not testify
2 The telegram, signed by James Felt's, secretary-treasurer for Local 654,
states that the "work stoppage is unauthorized and is not condoned or
supported by" Local 654 and that par. 4 .03, as quoted above from the
collective-bargauung agreement, "is in full force and effect.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and if he did not show in a half an hour, we would
consider him a voluntary quit.3
1. The discharge of employee Snapp
Employee Snapp was employed by Respondent as a
truckdriver He was also a steward for Local 654. He was
out of town on Sunday morning, February 29, when the
strike started. He returned to the Xenia area about 4 p.m.
on Sunday and drove to the warehouse. He observed the
"picket line" and was told by a person present "that the
Union steward wasn't involved." His "normal procedure"
was to "report in Monday morning." However, as Snapp
acknowledged, "I don't cross a picket line."
Snapp did not report for work on Monday, March 1.
About 9:25 a.m. on Monday, Snapp received a telephone
call from Roger Stollings, a supervisor, who apprised
Snapp that he "had until 10 a.m. to report to work or he
would be considered a voluntary quit." Snapp asked
Stollings "if the picket line was down." Stollings said "yes."
Shortly thereafter, Snapp telephoned Wayne Marx, the
assistant warehouse superintendent, claiming that he was
"sick." Marx refused to accept this excuse and warned
Snapp "to either be in by 10" or he would be a "voluntary
quit."
Snapp later attempted to return to work on Wednesday,
March 3, and was then told that he was no longer
employed by the Company. Thereafter, Snapp received a
letter, dated March 5, from the Employer, stating in part:
At 6:45 am on Sunday, February 29, 1976, concerted,
illegal strike activity was initiated and continued by
members of Local 654 against the Company. At 7:00
am on Monday, March 1st, bargaining unit employees
began reporting for work as scheduled. You were called
by the Company at 9:25 am and directed to report to
work at 10:00 am. You refused to report as instructed,
and gave no satisfactory reason for not reporting. You
were specifically advised that you would be considered
a voluntary quit if you failed to report.
Your failure to report at 10:00 am on 3-1-76, as
instructed, constituted continued participation in the
illegal strike, as well as a refusal to fulfill your
responsibilities as a Steward. (Art. 3, sec. 3:07 of the
contract.) 4
I do not credit Snapp's assertion that he was sick on
Monday morning. I note that he did not make this claim to
Supervisor Stollings when first instructed to report for work
that morning. Rather, I am persuaded on this record that
Snapp did not report for work on Monday because he
supported and joined the work stoppage and his claimed
illness was an excuse.
' Hynes credibly testified that about 8 am on Monday, March 1,
"drivers were refusing to go out on their runs " Some 15 to 20 drivers
had been assigned runs before 8 a in later, about 8 30 a in , the drivers, in
fact, went out on their runs
a Secs 3 06 and 3 07 of the collective-bargaining agreement provide
3 06 Stewards have no authority to take strike action, or any other
action interrupting the Employer's business except as authorized by
official action of the Union
2. The discharge of employee Tolle
Employee Tolle was employed by Respondent as a
truckdriver. His last day of work was Friday, February 27.
He was present "off to the side" of the picket line at Xenia
on Sunday, February 29. "Normally," according to Tolle,
he would "report to work on Monday" about 5 a.m.
However, on Monday, March 1, about 9:55 a.m., Tolle
spoke with Supervisor Stollings on the telephone. Stollings
apprised Tolle "to come in within 30 minutes" or he would
be "considered a voluntary quit." Tolle claimed that he was
"sick." Stollings refused to accept this excuse. Tolle showed
up at the warehouse about 11:10 a.m. on Monday, March
1. He was supposed to be there by about 10:25 a.m. Hynes,
when informed of this, notified Tolle that he was "a
voluntary quit." Tolle later received a letter from manage-
ment, dated March 12, stating in part:
At 6:45 a.m. on Sunday, February 29, 1976,
concerted, illegal strike activity was initiated and
continued by members of Local 654 against the
Company. At 7:00 a.m. on Monday, March 1st,
bargaining unit employees began reporting for work as
scheduled.
At 9:20 a.m. on Monday, March 1, 1976, the
Company notified your wife that you should contact us
within one half hour. You called in at 9:55 and you
were instructed to report for work at 10:25. You were
specifically advised that you would be considered a
voluntary quit if you failed to report. You failed to
report as instructed and have given no satisfactory
reason for not reporting. Your refusal to report as
instructed constituted continued participation in the
illegal strike.
I do not credit Tolle's assertion that he was sick on
Monday morning. Instead, I am persuaded here that Tolle,
like Snapp, did not report for work because he supported
and joined the work stoppage and his claimed illness was
an excuse.
3. The discharge of employee McClanahan
Employee and Chief Steward McClanahan last worked
for Respondent at Xenia on Saturday, February 28. He
was scheduled to report for work at 7 a.m. on Monday,
March 1. He asserted that he "wasn't a part of the strike"
and was first notified of the strike by a coemployee about
10 a.m. on Sunday, February 29. McClanahan then
telephoned Business Agent Hager "to take whatever
procedures needed to be done." McClanahan did not
report for work as scheduled on Monday morning. Instead,
about 6 a.m. on Monday, he called in "sick" and was given
a "call-in" number by Supervisor Ross Careolis. However,
later, about 7:30 a.m., Hynes telephoned McClanahan and
3 07 The Employer recognizes these limitations upon the authority
of stewards, and shall not hold the Union liable for any unauthorized
acts The Employer in so recognizing such limitations shall have the
authority to impose proper discipline, including discharge, in the event
the steward has taken unauthorized strike action , work stoppage in
violation of this Agreement or any other action interfering with or
interrupting the Employer' s business.
SUPER VALU XENIA
instructed him to be at work within 30 minutes or he too
would be considered "a voluntary quit." McClanahan
asserted to Hynes that he had "reported in earlier" sick.
Hynes refused to accept this excuse. McClanahan reported
for work on Wednesday, March 3. He was then told that he
was no longer employed by the Company. He subsequently
received a letter from Respondent, dated March 5, stating
in part:
At 6:45 am on Sunday February 29, 1976, concerted,
illegal strike activity was initiated and continued by
members of Local 654 against the Company. At 7:00
AM on Monday, March 1st, bargaining unit employees
began reporting for work as scheduled. You were called
by the Company at 7:30 am and directed to report to
work within 1 /2 hour since you had not reported for
work at your regular scheduled starting time of 7:00
am.
Your support as Chief Steward was needed to
continue the return to normalcy. You refused to report
as instructed, and gave no satisfactory reason for not
reporting. You were specifically advised that you would
be considered a voluntary quit if you failed to report.
Your failure to report at 7:00 am on 3-1-76, and
your refusal to report thereafter, as instructed, consti-
tuted continued participation in the illegal strike as well
as a refusal to fulfill your responsibilities as Chief
Steward. (Art. 3, sec. 3:07 of the contract.)
McClanahan acknowledged that he had received some
100 to 150 telephone calls from employees during the
strike. He "did not instruct any employee to stop
picketing" or "to cross the picket line." He "felt that this
was a decision that would have to be made by the
individual."5 McClanahan acknowledged the truth of the
following statement, as recited in his prehearing affidavit:
I was supposed to report to work at 7 a.m. on that same
day March 1, 1976. Around 6 a.m. I was awakened by a
phone call from an employee, Robert Bennett, who was
scheduled to report to work at that time. He wanted to
know if the strike was still on since the picket line was
down. I told him I didn't know, but to talk to the
members standing across the street .6
I do not credit McClanahan's assertion that he was sick
on Monday morning. I am persuaded instead that he, like
Snapp and Tolle, refused to report for work as requested
that morning because he supported and joined the work
stoppage.
4. The discharge of employee Green
Employee Green, a truckloader for Respondent at Xenia,
was scheduled to start work at 8:30 p.m. on Sunday,
February 29. He did not "report" as scheduled because
there was "a picket line up at the warehouse." About 3 p.m.
5 McClanahan testified that during the strike he repeatedly quoted the
"24-hour clause" to the employees
6 Employee Steve Soward testified that there were some 20 to 30
employees present outside of the Xenia warehouse during the morning of
Monday, March 1; that the pickets "were taken down approximately 5 28
that morning", that the "picketing consisted of employees .
1257
on Monday, March 1, Assistant Superintendent Marx
telephoned Green and instructed the employee that he had
a "half hour to report in to work at the warehouse or they
considered [him] a voluntary quit." Green quickly drove to
the warehouse in about 10 minutes. According to Green,
Jack Hynes started talking to me and he said, they
believed me to be a leader in a concerted effort to bring
about a work stoppage, and that they were going to
place me on suspension.
Green is not a union steward. Green's notice of disciplin-
ary action, dated March 1, 1976, states in part:
At 6:45 am on Sunday, February 29, 1976, concerted,
illegal strike activity was begun by you and other
members of Local 654 against the Company. Because
of your participation and leadership in this illegal strike
activity, extending past 6:45 am on Monday, March 1,
you are discharged. Your discharge is effective at 6:55
on Monday, March 1st.
Green further testified that Hynes had stated to him that
he, Green, "had protected [his] job by reporting within the
half hour, but that [Hynes] was still going to have to put
[him] on suspension." John Pryor, vice president of labor
relations for the Employer, testified that his "initial
understanding" was that Green had participated in picket
line misconduct during the strike. Pryor, however, later
spoke with a company representative about the incident
who could not "swear under oath" that Green was in fact
on the picket line during the incident. Pryor then
determined that he was "backing off the discharge of Mr.
Green." I find and conclude on this record that Green did
not participate in any picket line misconduct.
C. The Union and Employer Meet and Settle
Various Employee Claims
The current collective-bargaining agreement between the
Employer and Local 654, as initially executed by the
parties, contained a "grievance procedure." (See G.C.
Exh.2.) Step 1 of this procedure consisted of a conference
between an aggrieved employee, the shift steward, and the
immediate supervisor. Step 2 consisted of a meeting with
the chief steward and warehouse superintendent. Step 3
consisted of a meeting with the Union's business agent and
the Employer's division manager. Failing adjustment of the
grievance in Step 3, either party "may submit the
grievance" to arbitration. During the term of this agree-
ment, the Employer and the Teamsters Union amended
their various agreements with the Employer throughout the
United States, including the current agreement operative at
Xenia, to provide for a "new step 4" and a "new step 5"
procedure. (See Resp. Exh. 13.) The "new step 4" provides
for a "two-man Labor-Management Council" consisting of
a representative of management and the Union. "Such
gathered at or in the general vicinity of the entrance to the Company's
property", that about 5: 28 a.m . the local police were told that the employees
"were taking down the picket"; and that a group of employees then "went
across the street, off the property of Super Valu." Soward joined this group
About 6 of 6.30 a.m., according to Soward, this group then went to the
union hall.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council shall have the power to settle the grievance and
such settlement shall be final." Under the "new step 5," if
the Council cannot reach agreement , "the grievance may
be submitted by either party to arbitration."
Employees Snapp, Green, Tolle, and McClanahan filed
grievances under the contract as a result of their discharg-
es. Snapp never attended a hearing on his grievance. As far
as he "knew," a hearing was never held. Snapp, however,
"heard rumors" that there would be a "step 4" procedure
in Chicago. Snapp was not present at this "step 4"
procedure which was in fact conducted in Chicago on
April 15 and 16, 1976. Following this procedure, Snapp
was advised that his discharge had been reduced to a 30-
day suspension. Employee Green also did not attend a
hearing on his grievance. He too was advised of the
settlement following the "step 4" meeting in Chicago. His
discharge was reduced to a 30-day suspension.?
Employee Tolle also did not attend this "step 4"
procedure. Tolle, like the others, had not "been through the
first, second and third steps" as provided in the agreement.
He was later advised that his discharge had been reduced
to a 30-day suspension. And, employee McClanahan
recalled that on Tuesday March 2, following the work
stoppage, union and employer representatives met in an
effort to settle the issues , but the meeting came to an "end"
because management refused to reinstate him. McClana-
han did not attend the "step 4" procedure in Chicago. He
was later advised that his discharge had been upheld as
part of the settlement.
Employee William Fife attended the "step 4" procedure
in Chicago on April 15 and 16, 1976. He credibly explained
that "all of our stewards had resigned"; that he was elected
steward shortly before going to Chicago; and that Hanley
Mullekin, the new acting chief steward, also went to the
Chicago meeting. Fife acknowledged that he "was there
supposedly to represent any grievance that was to be heard
from our plant," but "we didn't know which cases we were
going to discuss ." Business Agent Hager, who was also
present, "suggested that we might propose that [manage-
ment] reduce all the discharges to 30-day suspensions."
Also present were Union Representative Sam Smith and
Company Representatives Pryor and Hynes. Smith later
related to Fife the terms of the settlement. Under the
settlement, the discharges of the three employees (Tolle,
Snapp, and Green) were reduced to 30-day suspensions
and the discharge of McClanahan was sustained . The three
employees to be reinstated would be paid for and were paid
for all lost time after 30 days. According to Fife, "these
persons were to in turn drop any charges" filed with the
Labor Board. As reflected in a letter (Resp . Exh. 14) from
Company Representative Pryor to Union Representative
Smith, signed by both parties, other settlements were also
effected at the April 15 and 16 "step 4" meeting pertaining
to the Xenia work stoppage. (See, generally, items 92-105,
ibid. Also see Resp. Exhs. 3-5 and 9-11.)
Discussion
General Counsel contends that the Employer violated
Section 8(a)(1) and (3) of the Act "by discharging
McClanahan and suspending Snapp when neither partici-
pated in the work stoppage"; by "attempting to discharge
Tolle and Green for engaging in a work stoppage of less
than 24 hours' duration"; and that "Article 4:03 of the
collective bargaining agreement," as quoted supra, "pro-
vides the basis" of the employees' Section 7 rights in this
case . General Counsel principally relies upon the Board's
decision in Wagoner Transportation Company, 177 NLRB
452 (1969), enfd. 424 F.2d 628 (C.A. 6, 1970). In Wagoner,
the Board, in agreement with the Administrative Law
Judge, found that the employer unlawfully discharged two
employees, Bums and Puckett, contrary to the provisions
of the employer's collective-bargaining agreement. The
Board determined that the pertinent agreement provided,
in effect, that the "extreme penalty of discharge would not
be applied to employees who participate in unauthorized
strikes of less than 24 hours' duration, as the agreement
gives the employer . . . only the right to impose reasonable
discipline short of discharge upon such employees...."
Therefore,
to the extent that the Agreement prohibited the
Respondent from exacting the extreme penalty of
discharge on employee-participants in wildcat strikes of
less than 24 hours' duration, such strikes are protected
activities under the provisions of Section 7 of the Act
.... It appears obvious that this time-limited right
was reserved to employees by the Union in the Master
Agreement .... Once the strike exceeds 24 hours, the
Employer is given the absolute right under the
agreement to discharge immediately any employee-
participants . . . . [ 177 NLRB at 457.]
The pertinent contractual language in the Wagoner case
is essentially similar to the contractual language relied on
in the instant case . And, 'I find and conclude here that the
wording of article 4:03 plainly maintained a limitation on
company discharges for participating in unauthorized work
stoppages of less than 24 hours. However, in Wagoner, the
Board found that the strike "only lasted 13 hours."
Consequently, the employer was held to have violated
Section 8(a)(1) and (3) of the Act by discharging employee
Bums for his participation in this strike. Further, the Board
found that employee Puckett, a steward for the union, was
unlawfully discharged. The Board noted:
The record is clear that Puckett unlike Burns was not
an instigator of the strike.... Puckett was unalterably
opposed to the strike and sought by every means
available to him to head the unauthorized strike off. [Id.
at 458.]
The Board explained that "Puckett tried at all times to get
the drivers to call off their unauthorized strike"; that
Puckett, as steward, had not "taken unauthorized strike
Green acknowledged that he was told by the Union 's acting chief
steward that there was going to be a "step 4" procedure in Chicago, but he
could not "afford" to go since he would "have to pay [his I own way "
SUPER VALU XENIA 1259
action , slowdown or work stoppage in violation of the
agreement"; and that
on the assumption arguendo, an assumption that has
no basis in fact, that Puckett did not undertake every
reasonable means to induce the drivers to return to
work after the strike began, there is nothing in the
Master Agreement that gives Respondent the right to
fire him for such failure.8 [Id at 459.]
General Counsel argues that the Wagoner decision is
controlling because in the instant case "the pickets were
pulled down within roughly 23 hours." However, the
credible evidence of record, as detailed supra, shows that
the work stoppage at the Xenia facility went beyond 24
hours and, further, that both Chief Steward McClanahan
and Steward Snapp joined and participated in this
unauthorized work stoppage by refusing to report for work
as requested by the Employer on Monday, March 1. I have
rejected the assertions of both McClanahan and Snapp that
they were in fact sick on Monday when the Employer
requested them to report for work. McClanahan was
scheduled to report for work at 7 a.m. He was telephoned
by management about 7:30 a.m. and given until 8 a.m. to
report. He refused. Likewise, Snapp was requested by
management about 9:25 a.m. on Monday to report for
work. He, too, refused. The pertinent language in the
collective-bargaining agreement makes clear that "After
the first 24 hour period of such stoppage and if such
stoppage continues . . . the Company shall have the sole
and complete right to immediately discharge any Union
member participating in a non-authorized strike, slow-
down, walkout, or any other cessation of work ...."
McClanahan and Snapp were discharged because their
"refusal to report . . . constituted continued participation
in the illegal strike as well as a refusal to fulfill [their]
responsibilities" as chief steward and steward, respectively.
I find and conclude that they were discharged because they
had engaged in this unprotected activity.
General Counsel further argues that Respondent violated
Section 8(a)(1) and (3) of the Act by "impos[ing] a greater
duty on its stewards to end unauthorized strikes," citing the
Wagoner decision, supra, and Pontiac Motors Division,
General Motors Corporation, 132 NLRB 413 (1961). In the
instant case , the pertinent contractual language imposes
upon the Union an obligation to "undertake every
reasonable means to induce such employees to return to
their job during any period of unauthorized stoppage of
work" (sec. 4:03). The Employer also has the "authority to
impose proper discipline, including discharge, in the event
the steward has taken unauthorized strike action, work
stoppage in violation of this Agreement or any other action
interfering with or interrupting the Employer 's business"
(sec. 3:07). The work stoppage, as found above, was
s The Sixth Circuit, in enforcing the Board 's Order in Wagoner, sustained
the finding that the "wildcat strike in which Burns participated did not last
for 24 hours and therefore he should not have been discharged" and,
further, that Union Steward Puckett had "opposed the strike at all times and
there is substantial evidence to support the Board 's finding on this issue."
Cf Ford Fair Stores, Inc v. N L R B, 491 F.2d 388 (C.A. 3, 1974), denying
enforcement of 202 NLRB 347 (1973), and National Tea Company, 198
NLRB 614 (1972)
9 1 note that when McClanahan was asked by a coworker early Monday
unprotected because it extended beyond 24 hours. McCla-
nahan and Snapp joined and participated in this unprotect-
ed stoppage when they refused to report for work during
Monday .9 The Board's decisions in Wagoner and Pontiac
Motors are not controlling on this issue. In Wagoner, the
strike lasted less than 24 hours and the steward did not join
or participate in the work stoppage. And, as the Board
majority stated in Pontiac Motors,
It is conceded that [committeeman ] O'Neil neither
caused nor took part in the work stoppage of the
machine repairmen . Accordingly, we are unable to
conclude that this provision of the contract, interpreted
reasonably and in good faith, provided a lawful basis
for the discipline of O'Neil. We need not and do not
reach the question whether the Union, by contract,
could properly subject its committeemen to employer
discipline arising solely out of their union stewardship
as distinguished from their conduct as an employee.
Certainly, the "no-strike" provision, set forth above, is
not a waiver of this statutory right.
Cf. Russell Packing Company, 133 NLRB 194, 196-197
(1961).
In sum, I find and conclude that McClanahan and Snapp
were discharged because they joined and participated in
the unauthorized work stoppage and consequently failed to
fulfill their obligations as stewards . The disciplinary action
taken against them was not in response to or in retaliation
for legal or protected activities engaged in by them as a
consequence of their union stewardships.
In addition, I find and conclude that employee Tolle
joined and supported this unprotected work stoppage when
he too refused to report for work by 10:25 a.m. on Monday
as requested by management. I have rejected Tolle's claim
that he too was sick that morning . Management discharged
employee Tolle because of his unprotected activity.
However, the discharge of employee Green rests on a
different factual basis. As found supra, management
telephoned Green about 3 p.m. on Monday and told the
employee that he had a "half hour to report in to work at
the warehouse or they considered him a voluntary quit."
Green reported for work within 10 minutes . He was told
that he "had protected [his] job by reporting within the half
hour, but that [the Employer ] was still going to have to put
[him] on suspension ." Management mistakenly believed
that Green had engaged in picket line misconduct. After
the Company's vice president of labor relations, Pryor,
checked out the pertinent facts, he determined that he was
"backing off the discharge of Mr. Green." 10 I find and
conclude that Respondent Employer, by giving employee
Green 30 minutes to report for work on Monday, March 1,
and by telling Green when he attempted to report in that
he had "protected his job by reporting within the half
morning "if the strike was still on," McClanahan simply referred the
employee "to the members standing across the street ." McClanahan
admittedly did not instruct any employee to stop picketing - he "felt that
this was a decision that would have to be made by the individual"
McClanahan, like Snapp, supported this work stoppage by refusing to report
for work on Monday when requested by management.
10 As Superintendent Hynes testified, "Mr. Green was terminated
because at that time we had reason to believe that he had participated in
some specific activities near the beginning of the strike."
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour," condoned and forgave Green's participation in the
unprotected work stoppage and manifested an unequivocal
intention to permit him to resume his employment relation.
As the Second Circuit stated in Confectionery & Tobacco
Drivers and Warehousemen's Union, Local 805, IBT [M.
Eskin & Son] v. N. L. R. B., 312 F.2d 108, 113 (C.A. 2, 1963),
"condonation requires a demonstrated willingness to
forgive the improper aspects of concerted activity, to wipe
the slate clean." Management later discharged employee
Green because it mistakenly believed that he had engaged
in picket line misconduct. His discharge, under these
circumstances , is violative of Section 8(a)(1) of the Act. See
N.LR.B. v. Burnup and Sims Inc., 379 U.S. 21 (1964).
Counsel for Respondent argues that the "step 4"
procedures conducted by the Union and the Employer in
Chicago on April 15 and 16, 1976, "were fair and regular
and were not repugnant to the Act. Accordingly, deference
should be given to the decision of the bipartite panel since
the Spielberg criteria were met." In Spielberg Manufacturing
Company, 112 NLRB 1080, 1082 (1955), the Board stated:
In summary, the [arbitration] proceedings appear to
have been fair and regular, all parties had agreed to be
bound, and the decision of the arbitration panel is not
clearly repugnant to the purposes and policies of the
Act. In these circumstances we believe that the
desirable objective of encouraging the voluntary settle-
ment of labor disputes will best be served by our
recognition of the arbitrators' award.
In Roadway Express, Inc., 145 NLRB 513, 515 (1963), the
Board (Member Fanning concurring) stated:
Where contract grievance procedures simply provide
for the submission of a dispute to a bipartite committee,
composed of representatives of the contracting parties,
the absence of a public, or impartial, member will not
necessarily foreclose the exercise of our discretion to
give binding effect to decisions of the committee, for
each representative is customarily prepared to argue for
or against the ments of the employee's grievance.
However, where in addition to the absence of an
impartial or public member it appears from the
evidence that all members of the bipartite panel may
be arrayed in common interest against the individual
grievant, strong doubt exists as to whether the proce-
dures comport with the standards of impartiality that
we expect to find in arbitration.
And, in Whirlpool Corporation, Evansville Livision, 216
NLRB 183, 185-186 (1975), the Board," in agreement with
the Administrative Law Judge, held:
In each of the many cases in which the Board has
followed Spielberg, it has confined itself to inquiring
whether the parties' resolution of their dispute com-
ported with the standards set forth. But in each such
case the resolution under examination was a binding
one reached by an impartial tribunal. Although, as
Respondent notes, it is not necessary that the award, to
be recognized, be that of an arbitrator, it is necessary
that there be an award by a tribunal whose impartiality
and procedures may be examined for compliance with
the criteria of Spielberg. In this case it is undisputed
that the full range of the mechanism for the determina-
tion of the dispute has not been utilized and there is no
award that may be examined for its conformity with
Spielberg requirements.
Cf. National Tea Company, supra.
Applying the foregoing principles to this case, I would
not defer to the "step 4" procedure utilized by the Union's
and the Employer's representatives . On this record, I find
and conclude that there has been no determination or
"award by a tribunal whose impartiality and procedure
may be examined for compliance with the criteria of
Spielberg . . . ." Whirlpool Corporation, supra. Instead,
"strong doubt exists as to whether the procedures comport
with the standards of impartiality that we expect to find in
arbitration." Roadway Express, Inc., supra. Thus, as the
credited evidence shows, the "step 4" panel included Pryor
for the Company and Smith for the Union. Pryor
acknowledged that he wanted to deal "more harshly" with
McClanahan. Smith apparently agreed . Pryor testified:
And if I may just preface this by saying to you that
what I am saying to you I had also communicated to
Mr. Smith [the Union's representative] at the step-four
as the corporate position. That it was the feeling of the
Company that Mr. McClanahan, being the chief
steward and being in this division for so many years
and knowing both of us, his personal influence over all
of the employees in this division, contractually we
interpreted that when the Union must take positive
steps we expected Mr. McClanahan to take those
positive steps to terminate this strike. And on the basis
of the information that I have from my local manage-
ment and I assume you, Mr. Smith, had from your local
union, we are in agreement that he did not take any
actual positive steps on that picket line or going out and
trying to encourage those people to go back to work. Is
that right, Mr. Smith? He said, "Yes." I said, "On the
basis of that it is our judgment that being chief steward,
he does deserve a more severe discipline than any of the
other employees or any of the other stewards"And that
was the rationale behind the Company position at the
step four, with which Mr. Smith concurred.
None of the four employees involved in this case, including
McClanahan, were present at the step 4 procedure. No
testimony was taken. No transcript of the proceeding is
available. The Local Union stewards who were present,
Fife and Mullekin, had just been appointed or elected to
their stewardships - all the prior stewards had resigned.
Fife, as he credibly testified, "was there supposedly to
present any grievance that was to be heard from our plant"
but "we didn't know which cases we were going to
discuss." The Union was in effect only seeking a reduction
in the discipline handed out by management as a result of
the unauthorized work stoppage. There had been no formal
step 1, step 2, or step 3 procedures under the contract. And,
it Member Penello found it unnecessary to reach respondent's conten-
tion pertaining to the Spielberg issue in the above case
SUPER VALU XENIA 1261
as Fife credibly testified, the settlement, as related to him
at the step 4 procedure, was in pertinent part, as follows:
the Company reaffirmed their position that the nine
employees who had been discharged as a result of the
wildcat strike did not have recourse to the grievance
procedures under Art. 4:03 of our contract; . . . the
Company would drop the lawsuit against the Union
which had been filed; . . . six members would be
returned to work [including three of the four employees
involved in this case] and . . . their discharges would
be reduced to 30-day suspensions; . . . they would be
paid for any time lost in excess of 30 days; and . .
these persons were to in turn drop their charges which
had been filed [with the Board] ... .
Under these circumstances, this settlement or step 4
procedure does not comport with Spielberg criteria. The
union representatives were prepared to seek only a
reduction in discipline for various of the employees (except
McClanahan) and to receive, in turn, the promise that the
lawsuit filed by the Employer against the Union would be
dismissed. The Union did not seriously dispute the nature
of the action of the employees. The employees whose
discharges were reduced were to drop their unfair labor
practice charges pending with the Board. This determina-
tion, in my view, was not fair and regular and, on this
record, is repugnant to the purposes and policies of the
Act.
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Local 654 is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent Company has violated Section 8(a)(1) of
the Act by discharging employee William H. Green on
March 1, 1976.
4. Respondent Company did not engage in other unfair
labor practices as alleged in the consolidated complaint
filed in this case.
5. The unfair labor practices found herein affect
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
REMEDY
To remedy the unfair labor practices found, Respondent
Company will be directed to cease and desist from
engaging in such conduct and from in any other manner
infringing upon any of the rights guaranteed its employees
in Section 7 of the Act. Respondent Company will also be
directed to post the attached notice.
I have found that Respondent Company violated Section
8(a)(1) by discharging employee Green on March 1, 1976.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
The record shows that Green has since been reinstated to
his former job and made whole in part for the loss of
earnings which he sustained as a result of Respondent's
unlawful conduct. Respondent Company will be directed
to make Green whole for any remaining loss of pay which
he may have sustained by reason of Respondent's unlawful
conduct from March 1 until the date of his reinstatement.
Computation of such compensation is to be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), and carry interest at the rate of 6 percent per
annum in accordance with Isis Plumbing & Heating Co.,
136 NLRB 716 (1962). Respondent Company will preserve
and, upon request, make available to the Board or its
agents , for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary to
determine the amount of backpay due under the terms of
this Order.
Upon the basis of the foregoing fmdings of fact,
conclusions of law, upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 12
Respondent Super Valu Xenia, A Division of Super Valu
Stores, Inc., Xenia, Ohio, its officers, agents , successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because of their protected
concerted activities or in any other manner discriminating
against them in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Make whole employee William H. Green for any loss
of earnings, in the manner set forth in this Decision.
(b) Preserve and make available to the Board or its
agents all payroll and other records as set forth in this
Decision.
(c) Post at its facilities in Xenia, Ohio, copies of the
attached notice marked "Appendix." 13 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent, shall be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained by Respondent for a period of
60 consecutive days. Reasonable steps shall be taken by
Respondent to insure that notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
13 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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 "
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the consolidated complaint
in this proceeding be dismissed insofar as it alleges further
violations of the Act not found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity to
present their evidence , the National Labor Relations Board
has found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this notice.
We therefore notify you that:
WE WILL NOT discharge employees because of their
protected concerted activities or in any other manner
discriminate against them in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of rights
guaranteed in Section 7 of the Act.
WE WILL make whole employee William H. Green
for his loss of earnings, as provided in the Board's
Decision.
SUPER VALU XENIA, A
DIVISION OF SUPER VALU
STORES, INC.