Colonial Stores Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1980

248 N.L.R.B. 1187 (N.L.R.B. 1980)

COLONIAL STORES INCORPORATED 1187
Colonial Stores Incorporated' and Shirley Whitmire.
Case 10-CA-12937
April 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On June 14, 1979, Administrative Law Judge
Bruce C. Nasdor issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed an opposing brief and a cross-exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Contrary to the Decision of the Administrative
Law Judge, we will not defer the complaint herein
to the arbitration award. As more fully explained
below the arbitrator denied Shirley Whitmire's
grievance and found that she had been discharged
for cause. On careful analysis, however, it appears
that what the arbitrator found to be "cause" under
the contract was in fact the grievant's protected
concerted activity. Such an award is clearly repug-
nant to the purposes and policies of the Act and is
one to which we will not defer under the princi-
ples of Spielberg Manufacturing Company, 112
NLRB 1080 (1955).
The basic facts presented to the arbitrator are
not complex, are not materially in dispute, and are
substantially the same as those found by the Ad-
ministrative Law Judge on the evidence presented
to him. 2 Shirley Whitmire was employed by Re-
spondent as a part-time cashier, although she had
applied for and continued to ask for a full-time po-
sition. In April 1977 she and her husband, a nonem-
ployee, circulated a petition among employees stat-
ing that Respondent was not complying with the
contract provision requiring it to maintain the
greatest possible number of full-time jobs and that,
if the Union failed to make Respondent adhere to
the agreement, the employees were not getting full
representation. After obtaining signatures from sev-
eral employees, Whitmire presented the petition to
I The name of Respondent appears as amended at the hearing.
2 The arbitrator's findings of fact are not an issue in this proceeding
Instead, it is the arbitrator's conclusions based on the facts he found
which lead us to decide that his award is repugnant to the Act
248 NLRB No. 142
the Union. 3 Subsequently, a meeting was held
which was attended by Whitmire, Respondent's
district manager, the store manager, the union busi-
ness agent, and the steward. The district manager
explained the seniority system to Whitmire, out-
lined the grievance procedure, and told Whitmire
that any further disruptive activities by her hus-
band or herself regarding the store, such as the pe-
tition, could result in her discharge. 4
In early June 1977 the district manager, at Whit-
mire's request, met with Whitmire, who was ac-
companied by her husband. Whitmire again asked
for full-time employment. Whitmire's husband
became raucous, and the district manager walked
out, saying he would be glad to discuss Whitmire's
rights with her any time but not with her husband
present.
In July 1977, a dairy clerk went on vacation and
his hours were given to an employee who had less
seniority than Whitmire. Whitmire grieved this
action. Respondent, at the grievance meeting,
agreed that Whitmire would be scheduled 7 or 8
extra hours the following week to make up what
she had lost by not filling in for the vacationing
clerk. When the schedule was posted on July 15,
1977, a Friday, Whitmire learned that she had not
received additional hours but was scheduled for 7
or 8 substitute hours in the dairy department for a
day she had a dental appointment. 5 The store man-
ager refused to change her schedule, whereupon
Whitmire called her husband to cancel or change
her dental appointment. That evening Whitmire's
husband drove to Respondent's parking lot with
signs on his car stating, "[Respondent] has no
regard for its employees' rights." He returned the
next afternoon with the signs on his car. When
Whitmire reported to work around 4:30 p.m. on
July 16, she was discharged.
3 The arbitrator found that the Union and Respondent thereafter met
and that, as a result. Respondent agreed to create three additional full-
time cashier positions. The arbitrator further found that Whitmire, as a
net result, was given reduced hours. The evidence presented at the hear-
ing before the Administrative Law Judge indicates that creation of addi-
tional full-time positions had been planned but had, with union acquies-
cence, been postponed to determined how many such positions would be
needed after remodeling of the store was completed. In either version,
however, the fact remains that the purpose of the petition was to get the
Union to enforce the contractual requirement that full-time positions
were to be favored, an activity which concerns all employees and would
tend to benefit them.
At the unfair labor practice heanng the store manager testified that
Whitmire was told that "any further disruption and interference with the
business would subject her to disciplinary action, up to and including dis-
charge." The district manager gave similar testimony. In this connection
we note that in at least one instance Whitmire approached an employee,
the union steward, with the petition in the selling area of the store during
working time.
: Scheduling of substitute hours rather than additional hours was the
result of a misunderstanding from one level of management to another. In
any event, there was a failure to implement the grievance settlement, a
matter of concern to all employees.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his analysis of the above findings, the arbitra-
tor tied together the petition episode and the park-
ing lot activity (as well as the interim meeting with
the district manager) as activity by Whitmire for
herself only. Thus, he stated, "the petition episode
was essentially a self-help activity in which the
Whitmires sought to get more work for Mrs. Whit-
mire without recourse to the proper procedure-
the grievance procedure." Later he stated, "Mr.
Whitmire's parking lot performances on July 15
and July 16 were more self-help attempts on his
part apparently to protest the Company's failure to
schedule his wife for the additional hours the Com-
pany promised her, as well as the Tuesday sched-
uled workday." (Emphasis supplied.) Near the con-
clusion of the award the arbitrator again tied the
two events together, stating that "the company
hasn't 'sprung' something on Mrs. Whitmire," but
that she had been previously warned about such
behavior in connection with the petitioning.
As we read his award, the arbitrator found, in
effect, that Respondent had cause to discharge
Whitmire because she was engaged in mere self-
help activity. The arbitrator's characterization of
the activity of Whitmire and her husband as self-
help is correct insofar as it shows that Whitmire
was trying to gain more hours of employment for
herself. However, it is also apparent that her activ-
ity was concerted. Although Whitmire sought
something for herself, her efforts related to the
working conditions of other employees. Specifical-
ly, the petition concerned Respondent's alleged
failure to abide by the collective-bargaining agree-
ment and the Union's failure to enforce the agree-
ment. It is well settled that an employee is engaged
in protected concerted activity when he questions
possible violations by his employer of the terms of
the collective-bargaining agreement. Interboro Con-
tractors, Inc., 157 NLRB 1295 (1966), enfd. 388
F.2d 495 (2d Cir. 1967). Similarly, the parking lot
incident involved a protest against Respondent's
failure to comply with a grievance settlement.
Thus, Whitmire's protests involved matters of obvi-
ous concern to unit employees. Indeed, other em-
ployees expressed their shared concern over Re-
spondent's adherence to the contract by signing the
petition. Thus, the arbitrator's conclusion that
Whitmire's activities were purely personal contra-
venes clear Board policy. Cf. Tabernacle Communi-
ty Hospital & Health Center, 233 NLRB 1425
(1977). Accordingly, we find that the arbitrator's
award is repugnant to the purposes and policies of
the Act and, therefore, does not meet the Spielberg
standards for deferral.
Having decided not to defer, we now turn to
consideration of the complaint on its merits. In
doing so we of course rely on the evidence pre-
sented in the unfair labor practice hearing. Al-
though the Administrative Law Judge made no
specific findings of fact and only summarized the
testimony, the record before us is more than suffi-
cient to resolve the unfair labor practice issues
herein as those issues were fully litigated and as
there are no material issues of credibility to be re-
solved. Since, as previously stated, the facts as
found by the arbitrator are in substantial accord
with the evidence presented at the unfair labor
practice hearing, we find it unnecessary to restate
the facts here.
In discharging Whitmire, Respondent was con-
cerned with two incidents which it considered dis-
ruptive. First, with her husband's assistance, Whit-
mire circulated a petition among employees pro-
testing Respondent's alleged failure to abide by the
contract and the Union's purported failure to en-
force the contract. As noted above, such a protest
constitutes protected concerted activity unless it is
carried on in an unlawful manner.6 Whitmire's
second protest was to display signs in her hus-
band's car in response to Respondent's admitted
failure to implement a grievance settlement. In its
meeting with Whitmire at the time of her dis-
charge, as well as in a later statement of position to
this Agency, Respondent characterized both inci-
dents as "disruptive," and specifically referred to
Whitmire's failure to disavow the parking lot pro-
test as "disloyalty." At the unfair labor practice
hearing, Respondent contended for the first time
that the parking lot protest contravened the con-
tractual no-strike pledge.
Contrary to Respondent, we find that the park-
ing lot protest was protected concerted activity.
The protest concerned Respondent's adherence to
a grievance settlement under the terms of the con-
tract, a subject of potential concern to other em-
ployees. Such a protest is concerted regardless of
whether it is pursued by an individual or a group
of employees. Alleluia Cushion Co., Inc., 221
NLRB 999 (1975). Thus, unless it was undertaken
for an unlawful purpose or in an unlawful manner,
such a protest is protected under the Act. 7
I In at least one instance Whitmire presented a petition to an employee
during working time on the selling floor, conduct which lawfully may be
prohibited. Marshall Field & Company, 98 NLRB 88 (1952). In this cir-
cumstance, although the petitioning activity itself was protected, we find,
contrary to the General Counsel's contention, that Respondent in warn-
ing Whitmire to cease interrupting her fellow employees' work in the
process of petitioning did not unlawfully promulgate an overly broad no-
solicitation rule. Accordingly, we shall dismiss that portion of the com-
plaint alleging that Respondent thereby violated Sec. 8(a)(l) of the Act.
Compare Daylin Inc., Discount Division d/b/a Miller's Discount Dept.
Stores, 198 NLRB 281 (1972).
7 The dissent asserts that Sec. 9(a) of the Act does not confer on em-
ployees a protected right to present grievances individually to an em-
Continued
COLONIAL STORES INCORPORATED 1189
We find that the protest was not undertaken for
an unlawful purpose. The purpose of the protest
was to advertise Respondent's failure to abide by
the grievance settlement.
The Board has held that informational picketing s
and leafletting,9 even in the face of a contractual
no-strike provision, are in furtherance of contrac-
tual grievance procedures and, hence, protected by
the Act. This is true so long as an employee engag-
ing in such activity does not thereby seek to cir-
cumvent the bargaining representative and engage
in direct negotiations with the employer. Picketing
during nonworktime in order to advertise a griev-
ance has been analogized to presenting the employ-
er with a written list of grievances.' 0 Thus, we
conclude that the protest here was undertaken for
a lawful purpose. ''
We further find that the protest was not under-
taken in an unlawful manner. Contrary to Respon-
dent, the protest did not constitute a strike in viola-
tion of the contractual no-strike agreement. While
Respondent asserted at the hearing that its oper-
ations were disrupted, Store Manager Tom Chap-
man admitted that no employees stopped work and
no customers left the store due to the protest. The
sign on its face urged no such action, and neither
Whitmire nor her husband verbally urged any in-
terruption of Respondent's business. We have held
that a sign displayed on an employee's car which
does not interfere with production, threaten disrup-
tion of the employer's operations, or convey a mes-
sage which is "offensive, obscene or obnoxious"
may be an appropriate medium for communication
among employees. 12 The Board has held that a
certain amount of disruption must be tolerated in
ployer. That is correct. The right is conferred by Sec. 7 and protected by
Sec. 8(aXl). See, e.g., Alleluia Cushion Coa, Inc.. supra. The decision our
colleague relies upon, The Black-Clawson Company, Inc., Paper Machine
Division v. International Association of Machinists Lodge 355, District 137,
313 F.2d 179 (2d Cir. 1962), holds only that the employer is not required
to listen. We reject the implication, intended or not, that Sec. 9(a) some-
how lessens the protection otherwise afforded employees.
8 Roadway Express Inc., 241 NLRB No. 63 (1979).
9 Dreis & Krump Manufacturing Inc., 221 NLRB 309 (1975).
10 Roadway Express, suprao, AUD, sl. op., at p.10.
" We conclude that the instant protest is distinguishable from that
found unprotected in Emporium Capwell Co. v. Western Addition Commu-
nity Organization, 420 U.S. 50 (1975). There is no evidence that Whitmire
or her husband sought to undermine the bargaining representative.
Indeed, after she learned that the grievance settlement would not be im-
plemented, Whitmire sought out the union business representative, who
thereafter notified Respondent's district manager that the grievance set-
tlement had been mishandled. The remedy sought by Whitmire and her
husband was the same as that sought by the Union-namely, the imple-
mentation of the agreed-upon grievance settlement. Finally there is no
evidence that the purpose of the protest was anyting other than to com-
municate Whitmire's grievance. The instant facts are in marked contrast
to those in Emporium, where the protesting employees refused to cooper-
ate in their representative's attempt to resolve their grievances and admit-
tedly sought to negotiate directly with the employer for a result at vari-
ance with the existing collective-bargaining agreement.
12 The Firestone Tire and Rubber Co., Inc., 238 NLRB No. 186 (1978),
and Coors Container Company, 238 NLRB No. 185 (1978).
order that employees' right to communicate con-
cerning their common grievances may be safe-
guarded,'3 and we find that the minimal disruption
incidental to the parking lot protest is insufficient
to remove it from the protection of the Act.'4
Finally, we note that Whitmire was discharged,
not because Respondent considered the protest
strike activity, but rather because it viewed the
protest as a continuation of Whitmire's "self-help"
activity. Thus, District Manager Mack Baird testi-
fied that at the discharge interview he told Whit-
mire that they previously had discussed the prob-
lems she had had at the store and that she had been
warned about such activity. As noted above, the
previous activity was protected activity. By refer-
ence to this earlier activity, Respondent demon-
strated that it considered the petition and the park-
ing lot protest as part of the same activity by Whit-
mire and that Respondent discharged Whitmire for
continuing to engage in that activity. Inasmuch as
we have found that Whitmire's activity was pro-
tected concerted activity, we conclude that Re-
spondent violated Section 8(a)(l) of the Act when
it discharged her for engaging in such activity.
THE REMEDY
Having found that Respondent unlawfully dis-
charged Shirley Whitmire, we shall order that Re-
spondent offer her full and immediate reinstatement
to her former job or, if that job no longer exists, to
a substantially equivalent job, without prejudice to
her seniority or other rights and privileges and to
make her whole for any loss of earnings she may
have suffered by reason of the discrimination
against her by payment to her of a sum of money
equal to that which she would have earned, absent
the discrimination, less net earnings. Backpay shall
be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed
in Florida Steel Corporation, 651 NLRB 177
(1977). 15
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
I Chrysler Corporation, 228 NLRB 486 (1977).
1" Nor does the involvement of Whitmire's husband in the parking lot
protest alter this conclusion. As indicated above, Whitmire had a protect-
ed right to protest Respondent's failure to carry out the terms of the
grievance settlement. Respondent admittedly terminated Whitmire be-
cause of signs on her car that complained about this failure and because it
viewed the parking lot incident as part and parcel of her complaint. In
these circumstances, the fact that Whitmire was not actually present in
the car at all times, or that the car was under her husband's control
during the incident, is irrelevant.
1' See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
--
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Colonial Stores Incorporated, Gainesville, Georgia,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because they have en-
gaged in activities protected by Section 7 of the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Shirley Whitmire immediate and full re-
instatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make
her whole for any lost earnings in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Gainesville, Georgia, facilities
copies of the attached notice marked "Appen-
dix."'6 Copies of said notice, on forms provided by
the Regional Director for Region 10, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
MEMBER PENELLO, dissenting:
I agree with the majority for the reasons they set
forth that deferral is inappropriate because what-
ever the arbitrator's result, his rationale-that en-
gaging in concerted activity may be just cause for
discharge-is so clearly repugnant to the Act as to
proscribe deferral. I do not, however, agree that
Shirley Whitmire was discharged for engaging in
I' In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
protected activity. In my view such a finding
stretches the evidence presented at the unfair labor
practice hearing beyond the breaking point. Ac-
cordingly, I would find that Respondent lawfully
discharged Shirley Whitmire and would dismiss the
complaint on its merits.
The General Counsel argues, and the majority
finds, that Whitmire was discharged, not because
Respondent considered the picketing strike activ-
ity, but because it viewed the picketing as a con-
tinuation of Whitmire's self-help activity. The
record does show that Respondent earlier warned
Whitmire and that its warning did play a part in its
decision to discharge her. However, the General
Counsel's contention herein is not, in my opinion,
supported by the facts or the law. The earlier
warning grew out of the circulation of a petition to
the Union to protest an alleged breach of contract
by Respondent. Although such petitioning is gener-
ally both concerted and protected activity, it is not
protected if engaged in on working time in the sell-
ing area of an employer's store. Marshall Field &
Company, 98 NLRB 88 (1952). At the hearing
Whitmire admitted that she approached one em-
ployee with the petition on his working time in the
selling area of the store, and that employee testified
without contradiction that he reported the incident
to management. It is in the above context that Re-
spondent met with Whitmire, said that her job
would be in jeopardy if she continued in her dis-
ruptive activity, and explained that she should use
the contractual grievance procedure. Nothing in
the record demonstrates that Respondent's warning
Whitmire not to be disruptive was for other than
the unprotected disruptive aspect of her petitioning
activity.t 7 In addition, Respondent's telling Whit-
mire, in effect, that she should use the contractual
grievance procedure rather than individually pre-
sent grievances outside the contractual procedure
was also permissible. Although the proviso to Sec-
tion 9(a) of the Act states than an employee has a
"right" to present a grievance directly to an em-
ployer, it is settled that the proviso does not confer
a protected right to do so.' 8 The proviso permits
an employee to individually present a grievance
and permits an employer to hear the grievance, but
it does not require an employer to hear or adjust
such a grievance. An employer may lawfully refuse
1' For this reason I agree with the majority that Respondent's warning
did not unlawfully promulgate an overly brOa d'-no-socitation rule.
s The provisio states,
Provided, That any individual employee or group of employees shall
have the right at any time to present grievances to their employer
and to have such grievances adjusted, without the intervention of the
bargaining representative, as long as the adjustment is not inconsis-
tent with the terms of a collective-bargaining contract or agreement
then in effect: Provided further, That the bargaining representative
ha been given opportunity to be present at such adjustment.
COLONIAL STORES INCORPORATED 1191
to do so. The Black-Clawson Company, Inc. v. Inter-
national Association of Machinists Lodge 355, District
137, 313 F.2d 179 (2d Cir. 1962). In Emporium
Capwell Co. v. Western Addition Community Organi-
zation, 420 U.S. 50, fn. 12 (1975), the Supreme
Court stated that the meaning of the proviso was
"fully explicated" in Black-Clawson.
Thus, in my opinion, the record established that
Whitmire was warned, not because she engaged in
self-help or concerted activity, but because she en-
gaged in unprotected and disruptive activity, and
that Respondent's warning, therefore, did not inter-
fere with Whitmire's Section 7 rights. In addition, I
believe, for the reasons set forth below, that the
record establishes that Whitmire was discharged
because she later engaged in more serious, disrup-
tive and unprotected activity.
The immediate, and I believe true, cause of
Whitmire's discharge was the picketing of Respon-
dent's store by Whitmire's husband. Briefly, the
facts are that, subsequent to her warning, Whitmire
filed a grievance through the contractual proce-
dure contending that she should have been given
additional temporary work. A settlement was
reached in which Whitmire was to be given addi-
tional temporary hours of work but through an ap-
parent mixup she was scheduled for substitute
hours instead. Thereupon, Whitmire's husband ap-
peared in Respondent's parking lot with signs on
his car stating that Respondent had "no regard for
its employees' rights." Whitmire's husband again
appeared in the parking lot the next day, and Whit-
mire was discharged when she came to work that
evening. As indicated, I would find that this picket-
ing activity is unprotected and that Respondent did
not unlawfully discharge Whitmire.
First, Respondent had the right to treat Mr.
Whitmire's picketing activity as if it had been en-
gaged in by Mrs. Whitmire. The record establishes
that Whitmire's husband was acting on behalf of
and as a surrogate for Whitmire. 9 Whitmire and
her husband had acted together in the April peti-
tioning and in the June meeting with Respondent's
district manager, and Whitmire's husband was pick-
eting to protest Respondent's failure to implement
Whitmire's grievance settlement.
Second, the picketing was an attempt to circum-
vent the bargaining authority of the Union. Al-
though Respondent had, at least temporarily, failed
to implement the grievance settlement, Whitmire's
action, through her husband, is not justified and is
not protected. By picketing, Whitmire went
11 If the activity of Whitmire's husband, who was not an employee of
Respondent, is not imputable to Whitmire. then there would be no basis
for contending that the picketing was concerted activity or, therefore,
that Whitmire's discharge for her husband's activity violated the Act.
beyond the presentation of a grievance, either
within or outside the contractual procedure, and
sought instead through strike-related activity to
force Respondent to resolve her complaint. Thus,
Whitmire was not merely seeking to present a
grievance but was demanding that Respondent bar-
gain with her over her complaint and was thereby
seeking to circumvent the exclusive bargaining au-
thority of the Union. In such circumstances her
discharge is lawful. The Emporium, 192 NLRB 173
(1971), enfd. 420 U.S. 50 (1975). The Whitmires
were engaged in a protest, a term repeatedly used
by the majority, to force Respondent to resolve
their complaint by implementing the grievance set-
tlement. That the Union sought the same end is
beside the point, as it is the means employed by the
Whitmires which makes the activity unprotected.
And as discussed below, the Union (as well as
Whitmire) was contractually prohibited from em-
ploying such means. Thus, I believe Emporium is
directly on point.
Third, the picketing was disruptive and in con-
travention of the no-strike provision of the collec-
tive-bargaining agreement, a provision designed to
prevent just this sort of disruptiveness. The no-
strike provision of the contract states, "During the
term hereof, the Union agrees that there shall be
no strike or any other interference with or inter-
ruption of the normal conditions of the Employer's
business by the Union or its members." The picket-
ing by Whitmire, through her husband, was strike-
related activity in violation of the collective-bar-
gaining agreement and was not occasioned by any
unfair labor practices. The Board has long held
that strike activity in such circumstances is unpro-
tected. See The Dow Chemical Corporation, 244
NLRB No. 129 (1979), and cases discussed therein.
Although the protest was not a strike, as such, and
did not cause employees to stop work or customers
to leave, the picketing was strike-related activity
which was inherently disruptive and in direct con-
travention of the contract, which prohibited not
only strikes but also "interference with or interrup-
tion of" Respondent's business. In my opinion, it is
not necessary for an employer to refrain from
taking action to stop the potential disruption until
employees, customers, or deliverymen actually
honor the picketing. The danger is there, and it is
to this danger that the no-strike provision of the
contract addresses itself. Accordingly, I would find
that the protest was undertaken in a manner which
removed the Whitmires' activity from the Act's
protection. 2 0
20 Coors Container Company, 238 NLRB No. 185 (1978), and The Fire-
stone Tire and Rubber Co.. Inc., 238 NLRB No. 186 (1978), cited by the
Continued
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, I find that Respondent discharged Whit-
mire not because she continued to engage in self-
help activity but because the manner of the activity
was disruptive and unprotected. To find otherwise
would, in my opinion, undermine the authority of
the exclusive bargaining representative, nullify the
legitimate no-strike clause of the bargaining agree-
ment, and unduly subject the Respondent to con-
tractually improper harassment by any employee
with a gripe. Accordingly, as I would find that Re-
spondent discharged Whitmire for engaging in un-
protected activity, I would dismiss the complaint
herein in its entirety.
majority, are not on point as neither case involved a violation of the con-
tract nor an attempt to circumvent the bargaining authority of a recog-
nized union.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT discharge employees for en-
gaging in concerted activity protected by Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights mentioned
above.
WE WILL offer Shirley Whitmire immediate
and full reinstatement to her former job or, if
that job no longer exists, to a substantially
equivalent job, without loss of seniority or
other privileges previously enjoyed.
WE WILL make Shirley Whitmire whole for
any loss of wages or other benefits she may
have suffered as a result of our discrimination
against her, plus interest.
COLONIAL STORES INCORPORATED
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge: This
proceeding under Section 10(b) of the National Labor
Relations Act, as amended, was heard pursuant to due
notice on August 16, 1978, at Gainesville, Georgia.
The charge in this proceeding was filed by Shirley
Whitmire on July 19, 1977. Disposition of the charge
was deferred, pursuant to the holding in Dubo Manufac-
turing Corporation, 142 NLRB 43 (1963). On December
29, 1977, the arbitrator issued an opinion in which he
denied Whitmire's grievance and concluded that Respon-
dent Colonial Stores Incorporated' had discharged her
for just cause. On March 9, 1978, Whitmire filed an
amended charge which deleted the 8(a)(3) allegation, and
alleged that Respondent violated Section 8(a)(1) of the
Act. On March 17, 1978, the complaint issued alleging a
violation of Section 8(a)(1) of the Act. The issue to be
resolved is whether the arbitrator's opinion and award
was repugnant to the Act or did it meet the Spielberg
standards, 2 thus making referral appropriate.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material
herein, a Virginia corporation, with an office and place
of business located at Atlanta, Georgia, where it is en-
gaged in the retail sale of grocery products. Respondent,
during the past calendar year, which period is represen-
tative of all times material herein, had a gross volume of
business in excess of $500,000 and, during the same
period, purchased and received goods valued in excess of
$50,000 directly from suppliers located outside the State
of Georgia.
It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
1. THE FACTS
The only retail store involved in this proceeding is the
store known as Big Star No. 707, located in a shopping
center in Gainesville, Georgia.
The store opened approximately 9 years ago, and its
employees, other than those in the meat department,
have been represented by the Retail Clerks Local No.
1063. There are approximately 45 employees at the store;
a small minority work in the meat department, and they
are represented by Local 442 of the Meatcutters union.
The collective-bargaining agreement which is relevant to
this proceeding was in effect from May 11, 1975,
through May 13, 1978.
On July 22, 1976, Whitmire was hired by Respondent
to work at Store 707, as a part-time cashier, although she
applied for a full-time job. At the time Respondent only
needed a part-time employee.
Commencing in February 1977, Whitmire made
known to Respondent's district manager, Baird, that she
desired full-time work. Baird made regular visits to the
store, and on several occasions Whitmire discussed her
l Name appears as amended at the hearing.
2 Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
COLONIAL STORES INCORPORATED 1193
desire to become a full-time employee. During one of the
discussions Baird explained to Whitmire that the full-time
positions were offered on the basis of seniority, and
Whitmire, according to Baird, understood the situation.
During the first week in April 1977, Chapman, the
store manager, returned from vacation and was advised
by Baird that Whitmire wanted to meet with them about
a full-time position. Thereafter the three of them met for
approximately a half hour in the breakroom of the store.
Baird and Chapman again explained that full-time posi-
tions were offered on the basis of seniority and they
could not offer a full-time position until it was first of-
fered to, and rejected by, part-time employees with more
seniority. They pointed out that this was in accordance
with the provisions of the collective-bargaining agree-
ment. Chapman testified that Whitmire seemed to under-
stand their position, but she continued to maintain that
since she was the one that had asked for the full-time po-
sition she should be given it.
The parties stipulated that on April 18, 1977, Mrs.
Whitmire and her husband Charles Whitmire prepared a
petition;3 he typed it, and her name is the first signature
to appear thereon.
Retail Clerks Local No. [sic] 63
As set forth in Article 2 of the Agreement be-
tween Colonial Stores Inc. and Retail Clerks Local
No. 1063 effective May 11, 1975, we the under-
signed do individually and collectively file this
complaint.
Article 11, paragraph B of this Agreement states
that: The Employer will schedule available hours of
work so as to create and maintain the greatest
number of full-time jobs that is possible. This is not
being done in store no. 707.
Article II, paragraph C, states: There shall be no
expansion of the present practice which might tend
to erode bargaining unit employment during the life
of this Agreement.
Article 4, states that all rights of management are
vested in the Employer. It also states that this right
shall be exercised with due regard for the rights of the
employees and provided further that it will not be
used for the purpose of discrimination against any
employee.
We feel that Local 1063 Retail Clerks is not
making Colonial Stores adhere to the Agreement
and is permitting Colonial Stores to construe the
Agreement to their will without regard for the rights
of the employees. If they persist in this practice we
feel that we are not getting the representation af-
forded by this Agreement.
For a period of several days Whitmire and her hus-
band approached other employees and requested them to
sign the petition. The circulation of the petition was
done on nonworking time and in areas where customers
were not present, with one exception.
Marvin Brown, a store employee and also shop ste-
ward for the Retail Clerks, testified that, while he was
3 The petition is directed to Retail Clerks Local No. 1063 On the
copy introduced into evidence the first two numbers are obliterated.
working at the end of aisle 7 at the front of the store
near the cash registers, the Whitmires presented him
with the petition. Furthermore, there were customers
from 10 to 15 feet away. They asked if he would like to
sign the petition and he responded negatively. Mr. Whit-
mire asked if he could see the stock crew employees and
talk to them and see if they would like to sign the docu-
ment. According to Brown he responded, "The best
thing you could do with this petition is to put it in your
pocket and leave the store with it." Brown also testified
that he was on worktime. According to Brown the Whit-
mires gave no indication that they were presenting the
petition to him as a courtesy because he was a shop ste-
ward or that they were giving it to him in an effort to
have him investigate a grievance.
The Whitmires testified that they did not ask Brown to
sign the petition, but merely presented it to him as a
courtesy because, according to Mrs. Whitmire, she felt
he should be shown the petition before it was presented
to the Union. The Whitmires do not aver that they com-
municated to Brown that they were presenting the peti-
tion to him as a courtesy, nor did the Whitmires testify
in this regard at the arbitration hearing.
Employee Ledeana Perry at the time of the hearing
was advised by her physician not to testify. Accordingly,
the parties stipulated to the introduction of Perry's affi-
davit as her testimony. Her affidavit reflects that Mr.
Whitmire presented the petition to her in the parking lot
and she told him she did not wish to sign. He allegedly
stated that she would be sorry when Shirley and the rest
would have more hours. Furthermore, according to the
affidavit, she told Mr. Whitmire that she had talked to
Respondent about a management position and Whitmire
responded, "You better sign it, you may not get that job
for a long time." Whitmire denies that he threatened
Perry and furthermore he denies that he made the state-
ment which was attributed to him.
After securing the signatures on the petition, Mrs.
Whitmire took it to the union office and presented it to
Union Representative Clyde Owens.
The day after Whitmire approached Marvin Brown
with the petition, Brown advised Chapman, the store
manager, that he had been approached with the petition
in the store while he was working proximate to some
customers. Chapman then told Baird, the district man-
ager, that the petition had been circulated in customer
and work areas during working hours. Brown also told
Baird the information he had relayed to Chapman.
Brown testified that, within 1 week after the petition
had been circulated, Buddy Adams, a union business
agent, requested a meeting with management. A meeting
was held at the store which was attended by Mrs. Whit-
mire, Adams, Shop Steward Brown, District Manager
Baird, and Store Manager Chapman.
Mrs. Whitmire testified that the petition was sitting on
a table during this meeting. According to her testimony
Baird told her that she was jeopardizing her job and that
she could lose her job "over this and others." Moreover
he told her to be friendly with the other employees and
have coffee but that, if they had any problems, to tell
them that she did not want to get involved and to look
after herself.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chapman testified he was mainly an observer at the
meeting and did not have any input, but that Baird and
Adams outlined that there was a grievance procedure in
the collective-bargaining agreement that should be fol-
lowed. According to Chapman they told her that under
the rules and regulations any part-time employees who
were made full time would be made full time according
to seniority and that the way Whitmire was circulating
the petition was disrupting the employees, and any future
disruption or interference within the business would sub-
ject her to disciplinary action up to, and including, dis-
charge. According to Chapman, Baird and Adams also
advised Whitmire that her husband was not an employee
of the Company and he should not be involved in griev-
ance activities or grievance procedures. The composite
testimony of Chapman, Brown, and Baird reflect that
Whitmire was not warned about the petitioning per se;
rather she was warned not to disrupt customers or other
employees.
Subsequent to this meeting Mrs. Whitmire called Baird
at his home and asked to meet with him. Baird testified
that he told her over the telephone he would be glad to
meet with her, but he did not plan to be in the Gaines-
ville area the following day, although he could change
his schedule if she felt like she needed to meet. Whitmire
said she had business in Atlanta the next day and would
be coming there and would meet him there. Baird sug-
gested that they meet in his small office in one of the
stores off Highway 1-85. They agreed to meet at 8
o'clock the next morning, and Baird admonished her that
he would be more than happy to talk to her any time
concerning her job, but he did not have anything to say
to her husband; she was an employee of the Company
and he was not.
The next morning Mrs. Whitmire and her husband ar-
rived at the Atlanta store and met with Baird and Bar-
bara Goddard, the shop steward at that store. Mrs. Whit-
mire's first comment, according to the testimony of
Baird, was the question, what was he going to do con-
cerning her full-time employment. She mentioned that
her husband had been ill. Baird again explained the se-
niority provisions of the union contract and told them
that even if he did not want to follow those provisions
he was required to do so. According to Baird Mr. Whit-
mire responded loudly, "You and Colonial stores have
no regard for your employees' rights." At that juncture
Baird turned to Goddard and said the best thing they
could do was to walk back to the delicatessen and have
a cup of coffee. Baird and Goddard left.
Subseqent to this meeting, sometime in July 1977, ad-
ditional hours were assigned to part-time employee Tim
Pilcher, to fill the gap for a full-time dairy department
employee, Donovan Ducille, who was on vacation.
Chapman testified that although Pilcher had less senior-
ity than Whitmire he scheduled Pilcher for the additional
hours because Pilcher had previous experience working
in the dairy department for Winn-Dixie Stores. Chapman
prepared a schedule and posted it, reflecting the assign-
ment of extra hours to Pilcher. Whitmire saw the sched-
ule and complained to Chapman that she was entitled to
the extra hours which had been assigned Pilcher. Chap-
man advised Baird of Whitmire's complaint and was told
by Baird to ask Whitmire if she had any dairy experi-
ence. Whitmire did not have dairy experience and ac-
cordingly Baird told Chapman to leave the schedule
intact. Pilcher worked the hours, and Mrs. Whitmire
filed a grievance.
The grievance was discussed in a meeting with Union
Business Agent Buddy Adams, Baird, and Baird's superi-
or, Bonner. The grievance was settled by an agreement
to give Whitmire extra hours to work in the dairy de-
partment, during the following week, on a day when the
dairy delivery truck was scheduled. This would afford
Whitmire an opportunity to perform the job. Whitmire
checked the schedule and found that she was not as-
signed 8 additional hours; rather, she was assigned the
same number of hours but 8 of those hours were to be
spent in the dairy department. Apparently there had
been a misunderstanding between Chapman and Baird.
In his testimony, Baird conceded that he made an honest
mistake. He intended that Whitmire be given an addition-
al 7 hours' work the following week beyond her regular
schedule.
Whitmire was scheduled to work on a Tuesday when
the dairy truck was to make its delivery. She realized
that she had a previously scheduled dental appointment
which conflicted with this assignment. She approached
Chapman and told him of her problem, requesting a
schedule change. Chapman told her he could not change
her schedule because it would require too many other
schedule changes, and Tuesday was the day the dairy
truck arrived. Whitmire then contacted her husband by
telephone, told him what had transpired, and requested
that he cancel her dental appointment. These events oc-
curred on July 15, 1977.
On July 15, 1977, at 8 p.m., Mr. Whitmire appeared in
the parking lot at the shopping center in his station
wagon. Taped to the windows were signs reading "Big
Star has no regard for its employees' rights." He circled
around the parking lot, stopping a few times, and then
parked in the first parking space which was directly in
front of the store. Pilcher testified that he went into the
store and told five or six employees who approached
him what he had seen in the parking lot. Robert E.
Lackey, an employee in the meat department in the rear
of the store, was one of the employees spoken to by
Pilcher. Lackey testified that he was first told about
Whitmire's car by one of the part-time checkers in the
front of the store. He testified he then went to the front
of the store where there was several people looking out
of the window. He stood looking out of the window, ac-
cording to his testimony, less than 5 minutes. He then
went back to work.
Brown testified that he arrived for work at approxi-
mately 9:45 p.m. and observed Whitmire's car still in the
parking lot with the signs in the window. He stated that
there were people on the sidewalk and in front of the
store looking at the car, and employees of the store and
customers were looking at the car from inside the store.
Pilcher testified that employees who were on the
clock were coming to the front of the store to see what
was going on, and they discussed the events throughout
the rest of the evening.
COLONIAL STORES INCORPORATED 1195
The Whitmires both testified that Mr. Whitmire took
this action upon his own and had not been requested to
do so by Mrs. Whitmire. Mrs. Whitmire further testified
that she did not know until she left the store that her
husband was on the parking lot. She stated that at ap-
proximately 9:15 p.m. she was told by a customer that
there was a man outside with a sign on his car. Accord-
ing to her testimony when she left the store at 9:30 that
evening and confronted her husband, she asked him to
leave and then she left in her own car while he remained
in the parking lot.
Harry Conley, co-manager of the store, called Baird
on July 15, 1977, at approximately 9 p.m. Conley gave
Baird a detailed account of the evening's events, includ-
ing the reaction of customers and employees to Mr.
Whitmire's station wagon and the signs. Baird told
Conley that he wanted to discuss the situation with
Bonner, the manager of store operations.
Baird called Bonner and told him of the situation, rec-
ommending that Mrs. Whitmire be fired. Bonner said he
would consider the matter, that he felt the same way
Baird did about it but he needed a few minutes to think
it over. Bonner called Baird back in 15 or 20 minutes,
and advised Baird to go ahead with his decision and ter-
minate Mrs. Whitmire. Baird told Bonner that Whitmire
had gotten off at 9:30 and he did not feel that she would
be in Gainesville if he drove there that evening. Bonner
advised that he could be waiting for her when she came
in to work the next day, and he could terminate her at
that point.
The next day, Saturday, July 16, 1977, at approximate-
ly I p.m. Mr. Whitmire appeared again at the parking lot
with the same signs on his station wagon and circlted the
lot until he was able to park directly in front of the
store.
Frances White testified that she was working in the
store at the front when the car appeared. According to
her testimony she observed that car at the upper end of
the parking lot and Whitmire putting the signs on the
car. When there was an opening right in front of the
store she observed that he moved the car, and parked in
front of the front door of the store. According to
White's testimony there was a lot of commotion, "bag
boys" (stock clerks) came in and wanted to know what
was going on and cashiers were obstructed from their
work. According to White the "confusion" lasted from
15 to 25 minutes.
Employee Judy Myers, a cashier, testified that store
employees were looking out the window and that some
customers in the checkout line commented about the
signs. Although he could not identify the individuals,
Robert Lacey testified that a customer told him her hus-
band was afraid to allow her to enter the store the previ-
ous evening because of the disturbance. Lacey also testi-
fied that other customers asked if it was all right to come
into the store.
On July 16, 1977, Mrs. Whitmire arrived at the store
at 4:30 p.m. At a meeting attended by Baird, Chapman,
Lavonia Wafford, assistant shop steward, and Mrs. Whit-
mire, Baird advised Whitmire that she was being termi-
nated immediately as a result of what had happened the
previous night. Thereafter she filed a grievance with the
Union, claiming that the discharge had not been just
cause and was in violation of the union contract.
Analysis and Conclusions
Respondent contends that deferral to the arbitration
award is appropriate in accordance with Spielberg Manu-
facturing Company, 112 NLRB 1080 (1955), because the
proceedings were fair and regular, all parties agreed to
be bound, and the decision of the arbitrator is not clearly
repugnant to the purposes and policies of the National
Labor Relations Act.
The General Counsel argues that the Spielberg stan-
dards are not met because the award is repugnant to the
Act.
After carefully reviewing the facts adduced by testi-
mony and documentary evidence, I am of the opinion
that it will effectuate the purposes of the Act, and would
accord with Board policy, to honor and give effect to
the arbitration award in accordance with the Spielberg
doctrine.
I have examined and reexamined the arbitrator's state-
ment of facts, discussion, and award, and see nothing re-
pugnant to the puposes and policies of the Act.
In the fairly recent case of The Kansas City Star Com-
pany, 236 NLRB 866 (1978), the Board reviews the Spiel-
berg concepts, and in my opinion the instant case legally
and philosophically satisfies the standards as articulated
in that case.
Without dissecting the arbitrator's award I will merely
point out and paraphrase some of the facts he considered
and the rationale for his conclusions.
The arbitrator consistently characterizes the circula-
tion of the petition and the parking lot incidents as "self-
help" attempts and activity, by which the Whitmires
sought to get more hours for Mrs. Whitmire, without re-
course to the grievance procedure. He finds further that
the Whitmires spent a great amount of time in the store,
which disrupted store functioning and caused consterna-
tion on the part of customers. The arbitrator finds that
Mr. Whitmire's conduct had a significant effect on the
operations of the store, that he was not an employee of
the store, and Respondent's only way to relieve itself of
Mr. Whitmire's disruptive activities was through Mrs.
Whitmire. The arbitrator did not "buy" Mrs. Whitmire's
story that she was not aware of her husband's presence
in the parking lot. He did not find that Mr. and Mrs.
Whitmire were acting in concert. The arbitrator states
that "it is unreasonable to say that the Company must
tolerate behavior from a nonemployee that it need not
tolerate from an employee."
Counsel for the General Counsel argues that the Su-
preme Court decision in Eastex, Inc. v. NL.R.B., 437
U.S. 556 (1978), is controlling. In that case the Court
found that the Board properly determined that an em-
ployer could not bar employees from distributing, in
nonworking areas of its property during nonworking
time, a newsletter that criticized a presidential veto of an
increase in the Federal minimum wage, and urged em-
ployees to oppose the incorporation of state right-to-
work laws into the state constitution. It is clear that Mr.
and Mrs. Whitmire were petitioning in working areas,
during an employee's working time, in at least one in-
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stance. Moreover, they were not acting in concert, and I
find Eastex inapposite.
Accordingly, I recommend that this complaint be dis-
missed.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Deferral to the arbitrator's award is appropriate;
therefore Respondent has not engaged in conduct viola-
tive of Section 8(a)(1) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]