Supermarkets General Corp.

National Labor Relations Board - Board Decisions

Oct 5, 1989

296 N.L.R.B. 1138 (N.L.R.B. 1989)

1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Supermarkets General Corporation, Pathmark Su-
permarkets Division and Fred Rupp. Case 22-
CA-14718
October 5, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On July 14, 1987, Administrative Law Judge
Edwin H. Bennett issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in re-
sponse 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 exceptions and briefs and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
At issue in this case is whether the Respondent
violated Section 8(a)(3) and (1) of the Act by dis-
charging employee and security guard Fred Rupp
for refusing to report to work at one of the Re-
spondent's stores on Staten Island , New York,
during a period of labor unrest . We agree with the
judge that the Respondent 's discharge of Rupp vio-
lated the Act but only for the following reasons.
Before October 11, 1986,3 Rupp had worked as a
guard at one of the Respondent 's stores in New
Jersey . In this capacity , he performed exclusively
security work. Rupp's primary responsibility was
to detect and apprehend shoplifters by circulating
through the Respondent 's stores wearing street
clothes and blending in with the customers. In ad-
dition, Rupp was called on to check the doors and
the perimeter of the stores.
In October , because of an anticipated strike by
it'meat department employees (the strike never oc-
curred), the Respondent made certain adjustments
in the use of its security personnel . In particular, it
decided to increase its security at the four Staten
i 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
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.
2 The General Counsel has requested that as part of the remedy the
Order include a visitatorial clause Under the circumstances of this case,
we find it unnecessary See Cherokee Marine Terminal, 287 NLRB 1080
(1988).
" All dates are 1986 unless otherwise indicated
Island stores where it had experienced vandalism
problems . On October 10, the Respondent told
Rupp to report to work on October 11 at the Rich-
mond Avenue store in Staten Island . When in-
formed of this new work assignment , Rupp was
told by management4 to dress warmly as he would
be packing meat . Rupp expressed surprise over this
assignment . His supervisor informed him that the
assignment was necessary because there was a
strike in progress and he would have to cross a
picket line . Rupp responded that he did not want
to become involved in a strike or cross a picket
line. In subsequent conversations with management
officials, Rupp was informed that his services were
needed and that security was needed to prevent
food tampering . Nonetheless, Rupp ultimately re-
fused to report to his assignment on Staten Island
and because of this refusal he was discharged.
We find that the issue of the legality of Rupp's
discharge turns on whether he was discharged for
refusing to perform nonguard unit struck work.5
Contrary to the Respondent 's argument , we agree
with the judge that Rupp reasonably believed that
he was being asked to perform such work and that
the Respondent discharged him for refusing to do
so. Rupp was initially informed by the Respondent
to dress warmly because he would be packing
meat . Later, he was informed that his services were
needed to protect the Respondent's property. How-
ever , he was never clearly informed that he would
not be packing meat--i.e., performing struck work.
Thus , as Rupp , under these circumstances, could
reasonably believe that he was being assigned, at
least in part, to perform struck work, he had a pro-
tected right to refuse the assignment.6 Thus, on the
basis that the Respondent discharged Rupp for re-
fusing to perform struck work , we conclude that
the Respondent violated Section 8(a)(3) and (1) of
the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Supermarkets General Corporation,
4 Rupp was supervised by the supervisor in charge of security, Dan
Naples Naples ' orders regarding Rupp 's reporting to the Staten Island
store were relayed to Rupp by night coordinator Helen McCarthy.
S Accordingly, we find it unnecessary in the circumstances of this case
to address the judge's alternative bases for finding a violation . We there-
fore also shall modify the recommended Order.
6 As the judge stated , it is not fully clear whether Rupp 's work assign-
ment would have actually included struck unit work. We find it unneces-
sary to resolve this uncertainty since the statement about "packing meat"
would at least reasonably lead Rupp to believe that he would be expected
to perform struck work . Any possible ambiguities regarding this assign-
ment were of the Respondent's own making and are properly resolved
against the Respondent
296 NLRB No. 149
SUPERMARKETS GENERAL CORP.
Pathmark Supermarkets Division , Woodbridge,
New Jersey , its officers , agents, successors , and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
(a) "Discharging employees because they engage
in the concerted protected activity of refusing to
perform lawfully struck work."
2. Substitute the attached notice for that of the
administrative law judge.
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.
WE WILL NOT discharge employees because they
engage in the concerted protected activity of refus-
ing to perform lawfully struck work.
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 Fred Rupp immediate and full re-
instatement to his former position or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges , and make him whole , with interest,
for any loss of earnings he may have suffered be-
cause we unlawfully fired him.
WE WILL expunge from our files any reference
to the discharge of Fred Rupp, and we will notify
him that this has been done and that evidence of
this unlawful discharge will not be used against
him in any way.
SUPERMARKETS GENERAL CORPORA-
TION , PATHMARK SUPERMARKETS DI-
VISION
Lisa D. Pollack, Esq., for the General Counsel.
Seamus M. Touhey, Esq. (Grotta, Glassman & Hoffman),
for the Respondent.
DECISION
Statement of the Case
EDWIN H. BENNETT , Administrative Law Judge. On
28 October 1986 1 Fred Rupp filed an unfair labor prac-
All dates hereinafter are in 1986 unless otherwise stated
1139
tice charge against Supermarkets General Corporation,
Pathmark Supermarkets Division (Respondent or Path-
mark) which resulted in the issuance of a complaint and
notice of h earing on 12 December, alleging in substance
that Respondent's discharge of Rupp on 17 October was
unlawful because it was motivated by Rupp's refusal to
cross a picket line at Respondent 's premises and perform
struck work. The General Counsel's theory of violation
was expanded at the hearing to include the claim that
Rupp was unlawfully discharged because he refused to
work during a strike by fellow employees , i.e., he was a
sympathy striker . Respondent denies certain of General
Counsel's factual underpinnings to her case and asserts
several legal defenses in justification of its conduct in
issue . The hearing in the case was held in Newark, New
Jersey, on 20 January 1987.
Upon the entire record, including my observation of
the demeanor of the witnesses and after due consider-
ation of the briefs filed by General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Pathmark operates a chain of retail supermarkets at
various locations within the States of New York and
New Jersey and maintains an office located in Wood-
bridge, New Jersey . Its annual revenues exceed $500,000
and annual purchases of goods and other products
shipped directly to its New York and New Jersey stores
from outside those States exceed $50,000. Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
Respondent also admits, and I find , that United Food
and Commercial Workers International Union, AFL-
CIO (UFCW) is a labor organization within the meaning
of Section 2(5) of the act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Pathmark is geographically organized into four operat-
ing divisions; Central which encompasses 30 stores in
central New Jersey and 4 stores in Staten Island, New
York, and which is primarily involved in this case; East-
ern which encompasses stores in Long Island, New
York; Northern which covers northern New Jersey; and
Southern which covers the Philadelphia , Pennsylvania
area. Each geographic division, which is headed by a
vice president , is functionally divided into the following
five departments: human resources (which includes labor
relations); operations ; merchandise; administration; and
security . Each of these functions is administered by a di-
rector.
Central 's security director , Frank Tucci , has four stat-
utory supervisors assisting him, each of whom is respon-
sible for a fixed number of stores within their respective
area of assignment . The supervisor involved in this case,
Dan Naples , is in charge of security for 11 stores situated
in New Jersey , with a staff of 5 store detectives , includ-
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, until his discharge , Rupp . In total , Central normally
has a complement of 40 store detectives of whom 29 are
assigned to New Jersey stores and 11 to Staten Island.
None of the store detectives are unionized . However,
many of Pathmark 's other employees such as the retail
clerks, the bakery employees , pharmacists and meat de-
partment employees are represented for collective-bar-
gaining purposes by a labor organization . With respect to
the meat department , there are some 800 employees in a
unit which encompasses the stores in Staten Island,
Brooklyn, and Queens, New York, who are covered by a
3-year contract with Local 342, UFCW, which was set-
tled on 14 October but which by its terms was effective
retroactively to 12 October. The previous agreement had
expired at midnight 11 October.
B. The Discharge of Rupp
Rupp was employed as a store detective from the time
of his hire in February 1986. His primary responsibility
was to detect and apprehend shoplifters by circulating
throughout a store wearing street clothes and blending
with the customers . He was, in other words, an "under-
cover" agent. Additionally, his duties required him to
check the security of the doors and the perimeter of the
stores . He was hired by Naples, who explained his duties
described above to him , and he worked exclusively in
Naples' area, rotating throughout 10 of the 11 stores as-
signed to Naples except for an occasion when he was as-
signed to security duties at a store in North Bergen, New
Jersey, during the July 4 celebration and when he moni-
tored a closed circuit television screen (also a security
function) for 5 or 6 days in a Gillette, New Jersey store
in March . In all instances , Rupp's job assignments were
determined by Naples, who prepared work schedules for
all detectives on his staff . However, the practice was for
the assignments to be routed through a night coordinator
who had regular contact with the detectives . Each of the
security supervisors has night coordinator on his staff
and in Naples ' case that person is Helen McCarthy. She
performs detective duties in addition to relaying Naples'
assignments as a regular part of her job. Usually, Rupp
received his assignments from McCarthy on a weekly
basis, although there were occasions requiring changes
more frequently.
Negotiations between Pathmark and Local 342,
UFCW, had begun in July for a contract to succeed the
one scheduled to terminate at midnight on 11 October.
Although negotiations were continuing , the Union had
voted to strike if a contract was not reached by that
date . Pathmark also suspected a connection between the
lack of agreement and a sudden outbreak of vandalism
during the week of 6 October in the meat departments in
the Staten Island stores . This included extensive damage
to equipment , missing parts to meat machines , small fires
and contamination of meat . This information became
available to Frank Teresa, an area supervisor under Bob
Patton, director of operations for the Central division,
whose stores included the four in Staten Island.
Teresa reported this information to Patton on about 9
or 10 October and further told him that no one had been
apprehended and that additional security was required in
those stores . Patton in turn requested Tucci to arrange
for a transfer of security personnel from New Jersey to
Staten Island . Such transfer would have been consistent
with Pathmark's policy, as described by Howard
Krieger, director of human resources for the Central di-
vision, of using Pathmark 's employees to operate its
struck stores. Pathmark's philosophy was to prepare for
strikes during labor disputes by having contingency plans
which would keep stores in operation using Pathmark's
nonstriking employees and products stored in advance.
Tucci had been formulating strike plans for at least 2
months prior to the contract expiration and when he re-
ceived Patton 's request for additional security he as-
signed a Staten Island store to each of his four area su-
pervisors with instructions to assign store detectives from
their respective areas to the Staten Island store . Naples
was assigned the Richmond Avenue store. Tucci in-
formed the area supervisors of the damage being done to
meat and equipment and the suspected link to the Local
342, UFCW negotiations. Consequently, he told the su-
pervisors that the additional detectives were to receive
quite specific instructions regarding their assignments, in-
structions which would require them to perform duties
different from the undercover work and security checks
they normally performed. They were to be informed to
forget shoplifting and to guard instead against vandalism
and damage to the meat and meat equipment . To achieve
this objective they would of course be required to ob-
serve closely the meat department and its employees,
detect and apprehend perpetrators, and furthermore, as
Tucci testified, they were to be told that "it would [be]
their job to make sure that meat was put into the coolers,
padlocked, to prevent food tampering ." Tucci's plan
called for reassigning 11 of the 29 detectives within the
Central division from New Jersey to Staten Island. Since
that would leave only 19 detectives for the 30 New
Jersey stores, it was anticipated that some of those stores
would be without security coverage . However, the mag-
nitude of the problem in the Staten Island stores was
such that Pathmark concluded the reassignments were an
absolute necessity.
Thus it was that on Friday, 10 October, Naples told
McCarthy to advise Rupp of a change in his assignment
for 11 October from a store in Eatontown , New Jersey,
to the Richmond Avenue store in Staten Island. Rupp
chanced to call McCarthy about 3 p.m. on 10 October
and according to his credited testimony , McCarthy told
him to report to the Richmond Avenue store at 8 a.m.
the next day and to dress warmly as he would be work-
ing in the meat department packing meat .2 When Rupp
expressed surprise at such assignment , McCarthy ex-
plained that it was because there was a strike in progress.
Furthermore , in response to Rupp's question , she told
him he would have to cross a picket line and to wear his
badge so that it would be visible. Rupp protested the as-
signment stating that he did not wish to become involved
2 The words "backing me" appearing at p 15 , L 21 in the transcript
are corrected to read "packing meat " Such correction is in accordance
with Rupp 's testimony at p 54, L. 22, with my notes at the hearing, and
Tucci's testimony regarding the nature of the work to be assigned to the
additional detectives
SUPERMARKETS GENERAL CORP.
in a strike or to cross a picket line to which McCarthy
replied he would have to discuss the matter with Naples.
Although McCarthy denied telling Rupp there was a
strike or a picket line or that he would be performing
meat department work, I have, as noted , fully credited
Rupp 's account of the conversation (actually there were
two phone conversations one immediately following the
other). Rupp was a superior witness to McCarthy who
impressed me as somewhat evasive and less than candid
in her testimony . Furthermore, Rupp 's testimony is con-
sistent in many ways with Tucci 's instructions to Naples
which presumably Naples passed on to McCarthy
(Naples did not testify), with Rupp 's followup conversa-
tion with Naples (about which there is no dispute), and
McCarthy 's testimony that Rupp should dress warmly
because he would be working in the meat department-
an assignment so totally different than what Rupp nor-
mally would be given that I believe it is most unlikely
that McCarthy confined her directions to Rupp to the
minimal remarks she conceded . Finally, McCarthy ac-
knowledged that she either had heard about a possible
strike on the grapevine or that indeed "tentatively that
there was a strike going on, but I wasn 't sure definitely."
Rupp thereupon telephoned Naples and they spoke for
from 5 to 10 minutes . This conversation , and a second
one shortly thereafter , was tape recorded by Rupp and
transcripts of the two were received in evidence as a
joint exhibit . The substance of these conversations dis-
closes that Rupp continued to protest the assignment
while Naples sought to convince him to accept it. Most
significantly , Rupp asked Naples if "there is going to be
a strike" to which Naples replied "that's right." Rupp
also asked if he had to cross a picket line to which
Naples replied "not tormorrow ." Although Naples as-
sured him that other detectives also had been reassigned
(in addition to the Central division assistance , 14 detec-
tives from the Southern division had been transferred),
Rupp protested that he should not be involved in a strike
or required to cross picket lines . When asked why, Rupp
replied that he feared for the safety of his person and his
car. Naples assured him that Pathmark would take re-
sponsibility if anything happened to either but Rupp re-
quested written assurance , which comment did not elicit
a response . The first conversation ended with Rupp
flatly refusing the assignment and Naples stating that he
would call back.
After phoning Tucci for guidance , Naples telephoned
Rupp and told him "until this is all settled you don't
have to go to work." He further remarked they would
"talk about it" later . Rupp replied , "Alright so I'll just
stay off until the strike is resolved," to which Naples re-
sponded "OK, if you could afford" it, but that every-
body else would be working . The conversation ended
with Rupp commenting" Alright, I'll stay home then."
Without any further communication between Rupp
and Pathmark , Tucci, on 17 October , sent the following
mailgram to Rupp : "Due to your refusal to work the as-
signed schedule of your supervisor for pre -strike duty
this letter will serve as termination notice ." Tucci testi-
fied that he decided to fire Rupp because he could not
"allow a store detective to refuse to work in labor dis-
puites. . . " To condone such refusal would set a bad
1141
precedent and leave pathmark vulnerable to vandalism
and damage in future labor disputes . For that reason, he
had instructed Naples not to permit Rupp to work at any
of the New Jersey stores even though many of those
stores were without security as a consequence of the nu-
merous transfers to Staten Island.
After Rupp received the mailgram from Tucci he tele-
phoned and inquired as to the reason for his discharge.
Tucci confirmed that it was his refusal to work at the
Staten Island store . Rupp protested and explained that
Naples had given him permission to stay home during
the strike and that he could prove it with a tape record-
ing. Tucci agree to meet with Rupp and they met at
Tucci's office on 22 October. Rupp played the tape re-
cordings of the conversations but Tucci did not directly
respond to Rupp 's claim that he had Naples ' permission
to remain home . Rather, Tucci told him that Naples did
not say when the strike would occur (obviously in refer-
ence to the Naples' statement "that's right" in reply to
Rupp 's query if "there is going to be a strike"), that in
fact there never was a strike or picketing , and that he
was fired for not working where he was needed.
Respondent was permitted to question Rupp , over the
objection of General Counsel , concerning his motive or
reason for refusing to cross a picket line or work during
a strike .3 The critical questions and Rupp 's replies
follow:
Q. (By Respondent) Mr. Rupp once again , isn't it
true that your refusal to accept the assignment to
Staten Island on October 10th of 1986 was due
solely to your fear of personal injury and/or your
fear of damage to your property including your
car?
A. No.
ADMINISTRATIVE JUDGE : Excuse me, before-
you answered no but I want to add to that question
because as it stands , it really doesn't help me. Fear
of such damage because of the strike which you
then believed to be in progress at that store?
MR. Rupp : Right, it was not just solely my own
personal injuries or damages by my car, but if these
people were striking , they might have been striking
for a reason and I wasn 't interested in getting in-
volved in no conflict.
Q. For what reason , Mr. Rupp?
A. Because I wasn 't hired to get involved in
strikes . It was never told-if it was told to me that
I'd have to get involved in a strike dispute at my
interview, I would not have accepted the job. I'm
not going to get involved in a dispute with the
union and the company.
Q. Why?
A. It's not my job function . I'm hired to catch
shoplifters.
8 Respondent argued that under any view of this case, Rupp's conduct
was not protected if he was motivated by fear to his person or property
within the rationale of NLRB Y. Union Carbide Corp, 440 F.2d 054 (4th
Cir 1971). Although this does not represent the Board 's view of the law,
see ABS Co., 269 NLRB 774 ( 1984), Respondent was allowed some ques-
tioning on this issue in order to make a record
1142 DECISIONS OF THE NATIONAL- LABOR RELATIONS BOARD
Rupp's testimony was consistent with his conversation
with Naples. Although Rupp did express a fear of harm
he initially told Naples that "I don't understand my obli-
gation to that" referring to the strike and potential pick-
eting, and that "I don't recall making any kind of agree-
ment with the strike or not. I thought that was for man-
agement and supervisors," when told that his services
were required along with the other transferred detectives
because he was "part of the company." Accordingly, the
record does not support the defense that Rupp was moti-
vated solely by fear.
Discussion
The Board and the courts consistently have held that
an employee engages in conduct protected by the Act,
and for which he may not lawfully be discharged, when
he has the status of a sympathy striker. Such protection
is afforded an employee who refuses to cross a picket
line established by striking coworkers, Greyhound Lines,
169 NLRB 627 (1968), enfd. 426 F.2d 1299 (5th Cir.
1970); and to employees in one bargaining unit who
refuse to cross a picket line and perform the work nor-
mally done by striking coworkers in another unit , Cooper
Thermometer Co., 154 NLRB 502 (1965). That right is
basic to Sections 7 and 13 of the Act and extends to em-
ployees honoring strikes by employees in which they are
not directly involved whether or not such strike is ac-
companied by picketing, whether or not the sympathy
striker is represented by the same union as the one on
strike, and whether or not the strike is at another em-
ployer, M/G Transport Services, 204 NLRB 324 (1973);
Redwing Carriers, 137 NLRB 1545 (1962), enfd. sub nom.
Teamsters Local 79 v. NLRB, 325 F.2d 1011 (D.C. Cir.
1963), cert. denied 377 U.S. 905 (1964). And, as General
Counsel correctly asserts, even a single employee is pro-
tected from reprisal merely for stating that he would not
cross an anticipated picket line at another employer's
premises . Vanga, Inc., 168 NLRB 960 (1967).
For the General Counsel to prevail, it must first be de-
cided whether or not Rupp can be considered a sympa-
thy striker in light of the fact, as Respondent argues, that
no picketing or strike ever occurred at the Staten Island
store to which he was assigned . Under the circumstances
of this case I conclude that Rupp does qualify as a sym-
pathy striker because it was Respondent's own conduct
that converted Rupp into a sympathy striker and Re-
spondent in turn was motivated solely by the status it
had created when it discharged him.
Respondent, it will be recalled, expected the meat de-
partment employees to begin striking at midnight 11 Oc-
tober and for some months had been preparing for such
event pursuant to its policy to continue operations with
its non striking employees. In addition, it suspected that
a wave of vandalism the preceding few days was attrib-
utable to unsuccessful negotiations with Local 342,
UFCW and it believed that a strike would exacerbate
that situation.
For these reasons, Tucci decided to increase security
in the meat departments in the Staten Island stores by
transferring detectives, Rupp included, from their regu-
larly assigned locations. He specifically directed that the
detectives not perform their usual security tasks but
rather, they were to work in the meat department pro-
tecting meat and equipment, and if necessary, to lock the
meat in coolers. In furtherance of this plan, Naples
changed Rupp 's regular assignment for 11 October and
directed McCarthy to advise him accordingly.
I have found that on 10 October, both McCarthy and
Naples told Rupp to report to the Staten Island store be-
cause there was a strike there and that he would work in
the meat department packing meat. Rupp's entire conver-
sation with Naples concerned Rupp's protest at having
to work where a strike was in progress and Naples' in-
sistence that he was required to do so.4 Rupp's resistance
to working during a strike was not voiced in the context
of a theoretical discourse on the rights of labor in a
debate with Naples. He was presented with a direct com-
mand to report for work at, what he was told, was a
struck location and he refused because, as he told
Naples, he did not want to become involved in a strike
by others, nor did he wish to risk harm to himself or his
auto.
Tucci decided to fire Rupp immediately because of
this aforesaid refusal and for no other reason. Tucci was
motivated by the belief that store detectives should not
be permitted to refuse to work at a location where there
is a labor disputed because that is where they are urgent-
ly needed. The discharge notice prepared by Tucci and
his subsequent conversation with Rupp, plainly evidence
that he was fired for his refusal to perform what Tucci
viewed as "pre-strike duty," but which I conclude was
tantamount to Rupp's refusal to work during a strike.
Nor was Rupp allowed to work his regular tour of duty
despite the admitted need for his continued services at
the New Jersey stores which were bereft of security as a
result of the many transfers. All the circumstances, in-
cluding the fact that he was not replaced by a new hire,
demonstrate that Respondent's concern was to punish
Rupp for his refusal to work and to make an example of
him to others.
In light of the foregoing, Rupp's discharge must be
considered as having occurred in the context of a strike
situation and Rupp must be viewed as a sympathy striker
de jure if not de facto. Pathmark, by its own conduct,
most significantly McCarthy's and Naples' directives to
Rupp on 10 October, has undercut the position on which
it now relies. Accordingly, the case is controlled by prin-
ciples of law applicable to sympathy strikers. Therefore,
Rupp was under the umbrella of protection affored such
employees when he refused to report for work on 11 Oc-
tober, and absent evidence that Pathmark's conduct was
solely in support of its countervailing right to operate its
business, his discharge violated the Act. M/G Transport
Services, supra.
Respondent urges that it had a business justification in
discharging Rupp but apart from Tucci's testimony that
4 The evidence is ambiguous as to whether Rupp 's assignment required
the actual performance of struck work , although it seems that at least
some duties involved the handling of meat products , work which we can
infer normally was done by employees in the Local 342, UFCW unit In
addition , although McCarthy said pickets would be present on I I Octo-
ber, Naples was vague as to when picketing would begin. As noted
above, the statutory rights of sympathy strikers do not depend on their
having to perform struck work or on the presence of pickets.
SUPERMARKETS GENERAL CORP.
Rupp's services as a detective were needed to deter van-
dalism it offers no evidence to bring this case within the
framework of a legally accepted defense . If Rupp had
been permanently replaced in order that Respondent op-
erate its business efficiently, or if Rupp had been re-
quired to take the place of striking meat department em-
ployees (a circumstance vigorously denied by Respond-
ent) and he had been permanently replaced for that
reason , Respondent might be heard to argue business jus-
tification . Cf. General Electric Co., 193 NLRB 372 (1971).
But that is not the case here.
Deterring employees in the manner done here from ex-
ercising the statutory right to strike does not qualify as a
legitimate business justification. Although an employer
lawfully may permanently replace a sympathy striker
solely in order to continue the efficient operation of its
business , it may not discharge that striker or deny rein-
statement upon departure of the replacement . Torrington
Construction Co., 235 NLRB 1540, 1541 (1978). The es-
sence of Respondent 's argument simply is that the great-
er the employer's perceived need for a striker's services,
the less is the protection afforded by the Act, particular-
ly where, as here, the sympathy striker is a guard whose
presence during a strike is considered essential . Although
Section 9(b)(3) of the Act imposes certain representation
limitations on guards , I am not aware of any authority,
nor does Respondent offer any, which truncates their
right to strike. Cf. University of Chicago, 272 NLRB 872
(1984). No one doubts that Rupp's services were needed,
but this circumstance does not provide Respondent with
a legal sanction to fire him.
Respondent also argues that this case is controlled by
Meyers Industries (Meyers 1), 221 NLRB 999 (1975), and
that Rupp was not engaged in concerted activity when
he alone stated he would not work during the strike.
Even if I accept the factual permise that, at most, Rupp
merely announced he would not cross an anticipated
picket line, or work during an anticipated strike, I find
reliance on Meyers I misplaced. Under Respondent's
view of the facts, Vangas, Inc., supra. would dictate a
violation here and Respondent's argument that Meyers I
silentio overruled Vangas, or somehow vitiates that hold-
ing, misperceives the underlying rational for treating a
sympathy striker, actual or potential, no differently than
any other striker.
Judge Learned Hand long ago defined the concerted
nature of a sympathy strike as resting on the solidarity
created by workmen assisting others in their dispute.
"When all other workmen in a shop make common cause
with a fellow workman over his separate grievance, and
go out on strike in his support, they engage in a 'concert-
ed activity' for 'mutual aid or protection,' although the
aggrieved workman is the only one of them who has any
immediate stake in the outcome. The rest know that by
their action each one of them assures himself, in case his
turn ever comes , of the support of the one whom they
are all then helping; and the solidarity so established is
'mutual aid' in the most literal sense, as nobody doubts."
1143
NLRB v. Peter Cailler Kohler Swiss Chocolates Co.; 130
F.2d 503, 505-506 (2d Cir. 1942).5
The concerted activity lies in the fact that employees
have joined in a common cause and the number of em-
ployees involved either in the basic strike or in the sym-
pathy strike is inconsequential . As long as two or more
employees are acting in support of one another-which
always will be the case-a concerted strike for mutual
aid or protection will have occurred. The Board recently
has reaffirmed that concerted activity requires at its in-
ception only two individuals (a speaker and listener) if
their communication relates to group action. Salisbury
Hotel, 283 NLRB 685 (1987), citing Meyers II, 281
NLRB 882 (1986). It is difficult to conceive of a clearer
example of group action than that of a single employee
joining other employees , or for that matter one other
employee, in a strike for a collective-bargaining agree-
ment . Respondent can find no solace in the Meyers I doc-
trine to support its defense in this case . Nor is it of any
significance that the employee joins a strike in progress
or announces an intent to do so in the future . In either
situation, if the employee does not remain free of em-
ployer reprisals the exercise of Section 7 rights would be
a futility . To allow discrimination because an employee
potentially would engage in protected activity is unten-
able as its logical extension would be the reintroduction
of the "yellow-dog" contract permitting an employer to
deny employment to any person who does not consent to
refrain in the future from union or other protected activi-
ty.
Respondent also defends its conduct against Rupp on
the ground that he was motivated by fear of harm to
person or property when he refused the assignment. This
defense is rejected.
The evidence establishes that Rupp was not motivated
solely by such fear which is the sine qua non for a lawful
discharge in the view of authority relied on by Respond-
ent. NLRB v. Union Carbide Corp., 440 F.2d 54 (4th Cir.
1971). Rupp told Naples that while he was apprehensive
about damage to his car, he also had no obligation to
work during a strike and that he had never agreed to
become involved in a strike since he was not a member
of management . This was consistent with his testimony
that he simply did not wish to interfere with a strike of
others who "might have been striking for a reason," and
that he never would have accepted a job that would
have required his becoming a strike breaker . Granted
that these sentiments are not articulately phrased in legal
jargon , I find they nevertheless are expressions of sympa-
thy for the aims of fellow workers , they reflect a desire
to assist them at least in a passive sense by not assisting
management , and they constitute a clear indication that
fear alone was not the driving factor in his refusal to
work at a struck location.
Most importantly , however , the Board does not sub-
scribe to the view of the circuit court and continues to
hold that employees motive is irrelevant in assessing the
parameters of Section 7 rights in these cases , and that it
5 This broad concept of mutual aid has received general recognition
from other circuits as well. NLRB v. Browning-Ferris Industries, 700 F 2d
385. 387-388 (7th Cir 1983)
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is the nature of the employee 's conduct that determines
the lawfulness of the employer 's response . Limpert Bro.
Inc., 276 NLRB 364 (1985); ABS Co., supra, fn. 3.
Finally, Respondent asserts that Local 342, UFCW
members were engaged in criminal activities at the
Staten Island stores and that Rupp 's refusal to work,
therefore , similarly was unprotected . We need not dwell
on this defense for long. The acts of meat department
vandalism were offerred by Respondent , and received in
evidence, for the very limited purpose of showing the
reason for Patmark 's manager's requesting additional se-
curity personnel (the state-of-mind exception to the rule
against hearsay). There is no evidence that employees of
Pathmark , let alone members of Local 342, UFCW, were
responsible for any criminal or other unprotected con-
duct, nor did Pathmark 's witnesses testify they were.
Indeed , they were very careful to avoid such implica-
tion . Accordingly , whether a sympathy striker is de-
prived of statutory protection because of some miscon-
duct by the original strikers , of which the sympathy
striker is unaware, perhaps is another case for another
day. It is not an issue that need be decided in this case.
Having found that Rupp effectively was engaged in
protected activity , and having found that Pathmark had
no legally supportable reason for discharging him, Re-
spondent's violation of Section 8(a)(1) of the Act is es-
tablished . Often, the Board does not find it necessary to
determine if the discharge of a sympathy striker also vio-
lates Section 8(a)(3). M/G Transport Services, supra;
Cooper Thermometer Co., supra at 503. Where , as here,
however, there is specific evidence of an antiunion
motive, the Board does not hesitate to find the 8(a)(3)
violation as well . Torrington Construction Co., supra. As
found above, Tucci particularly was motivated by
Rupp 's attempt to contribute strength to the Local 342,
UFCW strike that his absence from work would have
caused . The written discharge notice and the subsequent
conversations Tucci had with Rupp reinforce my conclu-
sion that Respondent not only was opposed to guards be-
coming sympathy strikers but that such opposition car-
ried with it a desire to deprive Local 342, UFCW of
whatever bargaining power might result from the sup-
port of sympathy strikers . Therefore, Respondent violat-
ed Section 8(a)(1) and (3) of the Act as alleged in the
complaint.
The complaint places the date of discharge at on or
about 17 October which was the date of Tucci's written
discharge notice . The evidence at the hearing establishes,
however, that Rupp was discharged on 11 October and I
so find . When Naples told Rupp, on 10 October , to stay
home during the strike there was no intention to replace
him or to recall him at the strike's conclusion . Quite the
contrary , Tucci had decided on 10 October that Rupp
was to be fired and the only significance of Naples'
remark was to permit Tucci time to finalize the dis-
charge . The Local 342, UFCW contract expiration was
extended , along with the strike deadline, and a new
agreement was entered into on 14 October. Tucci's dis-
charge notice followed shortly thereafter and was a mere
formality . It did not represent any change in Respond-
ent's position or attitude towards Rupp which had
become fixed on 10 October . All of the circumstances of
the discharge were fully litigated and there is no doubt
that the actual date of discharge was 11 October. In light
of my conclusion that the discharge was unlawful I find
that the violations of Section 8(a)(1) and (3) occurred on
that date and it is from 11 October that backpay will
run.
The complaint refers specifically to Rupp 's refusal to
perform struck work and to cross a picket line as moti-
vating his discharge . I have noted above that the evi-
dence relating to these precise allegations is ambiguous.
Although violations exist apart from these specific allega-
tions, and the remedy would be substantially the same in
any event, I believe it is necessary to resolve them. On
balance, the evidence does tend to support the allega-
tions . Thus, Naples' statement that there would not be
pickets on 11 October nevertheless kept open the possi-
bility of such activity at a later date and Rupp did indi-
cate his reluctance to cross a picket line. Similarly, he
was led to believe that he would have to pack meat as
part of his duties on 11 October, and since he had never
done such work before I have inferred that it was work
normally performed by meat department employees. Re-
spondent has not refuted such inference limiting its de-
fense to a denial that McCarthy made the statements at-
tributed to her . Inasmuch as the ambiguities that do exist
were created by Respondent when it led Rupp to believe
he would be working during a strike, they must be re-
solved in favor of the General Counsel . Therefore, I
conclude that these allegations have been sustained.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. UFCW and its Local 342 (collectively Union) are
labor organizations within the meaning of Section 2(5) of
the Act.
3. By discriminatorily discharging and refusing to rein-
state its employee Fred Rupp because of his activity in
support of the Union and because he had engaged in
concerted protected activity for mutual aid or protection
by refusing to work during a lawful strike, or by refusing
to cross a lawful picket line, or by refusing to perform
struck work, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act.
4. 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 has engaged in certain
unfair labor practices , I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act. Having found that Respondent discharged and
failed to recall Fred Rupp in violation of Section 8(a)(1)
and (3) of the Act, I shall recommend that Respondent
be ordered to offer him immediate and full reinstatement
to his former position of employment or, if that position
is not available, to a substantially equivalent position,
SUPERMARKETS GENERAL CORP.
without prejudice to his seniority or other rights and
privileges previously enjoyed.
I shall also recommend that Respondent be ordered to
make Rupp whole for any loss of earnings he may have
suffered from the date of his discharge to the date he is
offered reinstatement . His loss of earnings shall be com-
puted in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 ( 1950), and shall include interest as set
forth in Isis Plumbing Co., 138 NLRB 716 (1962), and
New Horizons for the Retarded, 283 NLRB 1173 (1987).
I shall also recommend that Respondent expunge from
its files any reference to the discharge of Rupp and
notify him in writing that it has done so , and that evi-
dence of this discharge will not be used as a basis for
future personnel action against him. Sterling Sugars, 261
NLRB 472 ( 1982).
The prayer for relief in the complaint requests that the
remedy include authorization for discovery proceedings
pursuant to the Federal Rules of Civil Procedure in
order to secure compliance with any order of the Board.
General Counsel does not contend that there are any
special circumstances here present necessitating depar-
ture from the traditional remedy in similar cases and I
will not include that requested remedy here . Northwind
Maintenance Co., 281 NLRB 317 (1986); O. L. Willis,
Inc., 278 NLRB 203 ( 1986).
On these findings of fact and conclusions of law and
on the entire record , issue the following recommended6
ORDER
The Respondent , Supermarkets General Corporation,
Pathmark Supermarkets Division , Woodbridge, New
Jersey, its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Discharging , or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment, because of their
activity in support of a labor organization , or because
they engage in concerted protected activity for mutual
aid or protection by refusing to work during a lawful
6 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall , as provided in Section 102 48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all pur-
poses
1145
strike, or by refusing to cross a lawful picket line, or by
refusing to perform struck work.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Fred Rupp immediate and full reinstate-
ment to his former job, or if the job no longer exists, to a
substantially equivalent position , without prejudice to his
seniority or other rights and privileges , in the manner set
forth in the remedy section of this decision.
(b) Make whole Fred Rupp for any loss of pay he may
have suffered by reason of Respondent 's unlawful dis-
charge in accordance with the remedy section of this de-
cision.
(c) Expunge from its files any reference to the dis-
charge of Fred Rupp, and notify him in writing that this
has been done, and that evidence of this unlawful dis-
charge will not be used as a basis for future personnel
action against him.
(d) Preserve and, on request , Make available to the
Board or its agents , for examination and coping , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records ne-
cesary or useful to the analysis of the amount of backpay
due under the terms of this order.
(e) Post at all its places of business in the States of
New York and New Jersey, copies of the attached notice
marked "Appendix."7 Copies of the notice on forms pro-
vided by the Regional Director for Region 22, after
being duly signed by Respondent's representative, shall
be posted by it, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the said notices are not altered , defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
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."