Savage Gateway Supermarket, Inc.

180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Savage Gateway Supermarket, Inc. and Barbara Traylor. Case 9-CA-17452 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On a charge filed by Barbara Traylor on 23 Sep- tember 1981, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint on 10 November 1981 against the Respondent, Savage Gateway Su- permarket, Inc., alleging that it violated Section 8(a)(1) and (3) of the National Labor Relations Act. The Respondent filed a timely answer admit- ting in part and denying in part the allegations of the complaint. On 30 April 1982 the parties filed a joint motion to transfer the case to the Board without benefit of a hearing before an administrative law judge and submitted a proposed record consisting of the formal papers and the parties' stipulation of facts with attached affidavits. On 26 July 1982 the Asso- ciate Executive Secretary, by direction of the Board, issued an order granting the motion, ap- proving the stipulation, and transferring the pro- ceeding to the Board. Thereafter, the General Counsel and the Respondent filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in the case, the Board makes the following FINDINGS OF FACT 1. JURISDICTION Savage Gateway Supermarket, Inc., a Kentucky corporation, has, at all times material, operated a retail grocery store in Wurtland, Kentucky. During the 12 months preceding the issuance of the com- plaint, the Respondent has, in the course and con- duct of its business operations, derived gross reve- nues in excess of $500,000 and has purchased and received at its Wurtland, Kentucky facility prod- ucts, goods, and materials valued in excess of $50,000 directly from points outside the State of Kentucky. Accordingly, in agreement with the stipulation of the parties, we find that the Respond- ent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union, Food Store Employees Union, Local 347, United Food and Commercial Workers International Union, AFL-CIO is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Respondent operates a retail grocery store in Wurtland, Kentucky. Randall Lee Savage is the Respondent's sole shareholder, chief operating offi- cer, and corporate manager.' Savage also is chief operating officer and corporate manager of Savage Sav-Way, Inc., a separate Kentucky corporation of which Savage's father is the sole shareholder. Savage Sav-Way, Inc. operates as a retail grocery store in Flatwoods, Kentucky, approximately 5 miles from the Respondent's Wurtland store. On 12 September 19802 the Union filed a peti- tion in Case 9-RC-13502 in which it sought an election among all regular full-time and part-time production employees employed by Savage Sav- Way, Inc. at its Flatwoods store. At a hearing held on this matter on 8 October, Savage Sav-Way, Inc. took the position that the only appropriate bargain- ing unit should include, in addition to its employ- ees, the production employees at the Respondent's Wurtland store. Savage Sav-Way's position was that employees of both stores should be allowed to vote because of the commonality of certain prac- tices in the two stores, including identical person- nel policies, benefits, and transferrable seniority rights. On 5 November the Regional Director for Region 9 issued a Decision and Direction of Elec- tion in Case 9-RC-13502 in which he limited the bargaining unit to employees of Savage Sav-Way, Inc.3 The Regional Director based his finding that the single-store unit requested by the Union was appropriate for collective-bargaining purposes on the autonomous supervision found at each store, the absence of any bargaining history on a multis- tore basis, and the fact that each store was sepa- rately owned. The Regional Director specifically declined to reach the question of whether Savage Sav-Way, Inc. and the Respondent are joint or single employers. In his decision, however, he found that the operations at both stores are over- seen by Randall Lee Savage; personnel records of all employees at both stores are kept at the Wurt- land facility; payroll checks are issued from the Wurtland office; advertising is handled jointly; some pieces of equipment are shared; the stores have common personnel policies; products are sometimes purchased jointly and exchanged; and 1 The stipulation states that Randall Lee Savage is a supervisor and an agent of the Respondent within the meaning of the Act 2 All dates are in 1980 unless otherwise indicated 8 In their stipulation , the parties agreed that the Decision and Direc- tion of Election in Case 9-RC-13502 is a part of, and fully rewritten in, the stipulation. 286 NLRB No. 12 SAVAGE GATEWAY SUPERMARKET 181 employees at both locations have similar benefits, wage rates, job classifications, functions, and duties. The record further showed that there had been 19 transfers of employees between the 2 stores since 1977. The Union won the representation election on 4 December and was certified as the exclusive collec- tive-bargaining agent for Savage Sav-Way, Inc.'s production employees on 12 December. Savage Sav-Way, Inc. and the Union subsequently entered into negotiations, but an agreement was not reached. In March 1980 the Respondent hired Barbara Traylor and assigned her to work as a doughnut maker. In the fall of 1980, Traylor was appointed to the nonsupervisory position of deli manager.4 Traylor was never disciplined by the Respondent and had no problems with respect to absenteeism or tardiness prior to her discharge. The quality of her work was satisfactory. In late March 1981 Savage was told by the Union that employees of Savage Sav-Way, Inc. would picket the Respondent's Wurtland store due to the absence of a collective-bargaining agreement between the Union and Savage Sav-Wary, Inc. As a result of this information, Savage held a meeting for employees and managers at the Respondent's store on 25 March 1981. The employees who at- tended the meeting were advised by Douglas Wilson,5 the Respondent's attorney, that the Union might establish a picket line at the Wurtland store. Additionally, Wilson stated that no problems were expected with respect to the pickets, that the picket line would be illegal, and that all employees would be expected to report to work in the event of pick- eting. Wilson concluded by stating that he would recommend that Savage terminate any of the Re- spondent's employees who failed to cross the picket line. On Thursday, 26 March 1981, employees of Savage Sav-Way, Inc. began to picket the Re- spondent. The picketing continued until the after- noon of 27 March 1981.6 Traylor was scheduled to work on both 26 and 27 March 1981. On 26 March 1981 Traylor arrived for work around 5:30 a.m. At the entrance to the Respondent's parking lot, she encountered the Union's picket line and decided to return home rather than cross the picket line and 4 The parties stipulated, and we agree, on the basis of the facts set forth in the stipulation, that Traylor was not, at any times material, a su- pervisor or agent of the Respondent is In their stipulation, the parties agreed that Douglas Wilson is an agent of the Respondent B The Respondent filed unfair labor practice charges against the Union alleging violations of Sec 8(b)(4) and Sec 8(b)(7)(C) of the Act These charges were subsequently dismissed for insufficient evidence by the Re- gional Director on 29 May 1981 There is no evidence that the Respond- ent appealed the dismissal of these charges report to work. Traylor did not notify the Re- spondent of her absence on 26 March 1981. Tray- lor called the store on the morning of 27 March 1981 and asked a deli department employee wheth- er the pickets were still present. When informed that the pickets were still present, Traylor told the employee to tell Savage that she would not report to work that day. This message was never commu- nicated to Savage. Traylor was not scheduled to work on either 28 or 29 March 1981. On 28 March 1981 Savage drafted the Respondent's work schedule for the week of 29 March 1981. Traylor's name was omit- ted from the schedule. On 29 March 1981 Traylor reported to work to check the work schedule and noticed her name was missing. When she inquired about the omission, Savage told her that because she had not reported for work during the picket- ing, he assumed she had quit her job and, thus, she had been removed permanently from the payroll. Traylor asked Savage if she could return to work and Savage replied that she could not. Traylor then left the store and has not worked for the Re- spondent since. Subsequent to Traylor's removal from the pay- roll, she was replaced by a deli department em- ployee and no employees were hired on 28 or 29 March 1981. Employees were shifted in work as- signments to cover vacancies. Although other employees of the Respondent had also failed to report to work during the course of the picketing, Savage did not remove their names from the work schedule, because they had talked with Savage and told him they would be available for work. Savage arranged for them to take vacations .until the picketing ceased. Traylor was the only employee who honored the picket line who did not discuss the reason for her absence with Savage by 28 March 1981. At all times material, the Respondent published and had in effect an employee work rule that states, in substance, that an employee would be considered to have resigned and have forfeited his or her employment and be separated from the pay- roll if: The employee is absent from work two succes- sive work days without notice to the Store Manager, unless the employee established to the Company's satisfaction that it was imprac- ticable for the employee to give notice during the period of absence. B. Contentions of the Parties The General Counsel contends that the record clearly establishes that the Union was engaged in 1 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD legal primary picketing at the Respondent's Wurt- land store even though the picketing was caused by a bargaining impasse between the Union and Savage Sav-Way, Inc. because the Respondent and Savage Sav-Way, Inc. are not separate "persons" within the meaning of Section 2(1) and Section 8(b)(4) of the Act. Thus, the General Counsel argues that the Union's picketing of the Respond- ent's facility was not secondary in nature. South- western Council of Industrial Workers (Duke City Lumber), 253 NLRB 808 (1980). Further, the General Counsel argues that the protected status of the primary economic strike ex- tends to any employee who chooses to honor the picket line. Thus, Traylor's decision to honor the picket line is protected and the Respondent's act of discharging her was in violation of Section 8(a)(3) and (1). In answer to the Respondent's argument that Traylor was discharged for her failure to abide by the Respondent's work rule, the General Coun- sel contends that an employee's right to engage in protected activity is not waived by the employer's unilateral implementation of a work rule, relying on the Board's decisions in Pacemaker Yacht Co., 253 NLRB 828 (1980), enf. denied 663 F.2d 455 (3d Cir. 1981), and Union Boiler Co., 245 NLRB 719 (1979).' Finally, the General Counsel contends that the Respondent violated Section 8(a)(1) when its attor- ney threatened to discharge employees who did not cross the Union's picket line. The Respondent contends that it did not violate the Act because the Union's picket line at the Re- spondent's Wurtland store was an unlawful second- ary strike action under Section 8(b)(4) of the Act and Traylor's refusal to cross the picket line was, therefore, not protected concerted activity. Thus, the Respondent argues it is a separate ."person" from Savage Sav-Way, Inc. within the meaning of Section 8(b)(4) of the Act. The Respondent further contends that it dis- charged Traylor for violating its work rule and not for her involvement in protected activity. The Re- spondent notes that Traylor gave no notice of her absence, despite her awareness of the rule, and that other employees who refused to cross the picket line gave the Respondent notice of their absences and were not terminated. The Respondent argues that this situation is distinguishable from those in Overnite Transportation Co., 251 NLRB 1009 (1980), and NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), because its rule does not require that an employee obtain prior permission before leaving 9 The General Counsel also notes that the Respondent did not hire any new employees to replace Traylor the workplace or withholding services but simply requires notice to the employer. The Respondent also argues that its attorney's statement that any employee who refused to cross the picket line would be terminated is not a viola- tion of Section 8(a)(1) because the statement did not induce forebearance from participation in pro- tected activities and because the attorney did not have the authority to terminate employees. C. Discussion For the reasons set forth below, we find the Re- spondent is a single employer or a joint enterprise of Savage Sav-Way, Inc. and thus they are not sep- arate "persons" within the meaning of Section 2(1) and Section 8(b)(4) of the Act. Accordingly, Tray- lor's refusal to cross the picket line was protected concerted activity and we conclude that the Re- spondent violated Section 8(a)(3) and (1) of the Act by terminating her for engaging in this activity. We further find that the Respondent violated Section 8(a)(1) of the Act when its agent threatened to dis- charge any employees who refused to cross the Union's picket line. It is clear in this case that there is substantial evi- dence of interrelation of operations, common man- agement, and common ownership, three factors that the Board has long held to be important indi- cators in assessing whether a series of business or- ganizations constitute a single employer or a joint enterprise. Soule Glass & Glazing Co., 246 NLRB 792 (1979). Thus, we note that the board of direc- tors at the two stores are interlocking and are tied into the family ownership of the two stores. The Board and the Supreme Court have long held that these factors satisfy the requirements for common ownership. NLRB v. Stowe Spinning Co., 336 U.S. 226, 227 (1949); MP Building Corp., 165 NLRB 829 (1967). As previously outlined, the record indicates that Randall Lee Savage is the chief operating offi- cer and corporate manager of both the Respondent and Savage Sav-Way, Inc., and that he oversees the operations at both stores. Although Randall Savage is the sole shareholder of the Respondent, his father, Alvin, is the sole shareholder of Savage Sav-Way, Inc. Alvin Savage is the sole board of di- rector at Savage Sav-Way, Inc. while the board of directors at the Respondent consists of Alvin Savage, Randall Savage, and Mabel Savage. We find that the fourth critical indicator in these single employer or joint enterprise cases, central- ized control of labor relations, is also present. Al- though the Respondent argues that the labor poli- cies of the two stores are "entirely different" be- cause Savage Sav-Way is a union shop and the Re- spondent's Wurtland facility is a nonunion oper- SAVAGE GATEWAY SUPERMARKET 183 ation, we find ample evidence of centralized con- trol of labor relations pursuant to the parties' stipu- lation. The personnel records of employees at both stores are maintained at the Respondent's Wurtland facility and the payroll checks for employees for both stores are issued from the Wurtland facility. The two stores have identical personnel policies, benefits, and transferrable seniority rlights.8 The stores sometimes jointly purchase and exchange products, and jointly advertise, and there is evi- dence that some pieces of equipment are shared. Finally, there has been interchange of employees between the two stores. As seen from the foregoing discussion, due to the interrelationship between the two stores, the Respondent's Wurtland facility cannot be consid- ered a disinterested or neutral bystander in the ar- gument between Savage Sav-Way, Inc. and the Union. Therefore, the Union's picketing of the Re- spondent's facility was not secondary in nature and the employees who participated in this picketing were engaged in protected concerted activity within the meaning of Section 7 of the Act. South- western Council of Industrial Workers (Duke City Lumber), 253 NLRB 808 (1980). The Board has long held that an employee who chooses to honor a picket line emanating from a protected primary strike is engaging in protected concerted activity. Cooper Thermometer Co., 154 NLRB 502, 503 (1965). Traylor's decision to honor the Union's lawful picket line at the Respondent's Wurtland facility on 26 and 27 March 1981 there- fore constituted protected concerted activity. We further conclude that Traylor was dis- charged for engaging in this sympathy strike. When Traylor inquired of Savage about her re- moval from the work schedule, Savage told her that because she had not reported for work during the picketing, she had been permanently removed from the payroll. The Respondent contends that Traylor was removed from the payroll pursuant to its longstanding work rule requiring notification of absence to the store manager. The Respondent fur- ther maintains this case is distinguishable from those in which the Board has found a company rule invalid as an inhibition of employee participa- tion in protected activity because the company rule in this case does not require permission to leave work but simply requires notice of absence to the 8 The Respondent argues that the Regional Director in Case 9-RC- 13502 held that the two stores were separate Our examination of the De- cision and Direction of Election in that case shows that the Regional Di- rector specifically declined to reach the question of whether the Re- spondent and Savage Sav-Way are a joint or single employer . A finding of separate appropriate units is not inconsistent with a joint or single em- ployer finding South Prairie Construction Co v. Operating Engineers Local 627, 425 U S 800, 805 (1976) Respondent. For the reasons set forth below, we do not regard the differences as sufficient to war- rant different legal conclusions. In NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), the Supreme Court held that an employer is not at liberty to discharge an employee engaged in concerted activity because he violated a plant rule forbidding employees to leave work without permission of the foreman. The Court reasoned that the rule in question could prohibit "even the most plainly protected kinds of concerted work stoppages until and unless the permission of the company's foreman was obtained." Id. at 17. To be sure, the notice rule that the Respondent in the present case asserts as a justifiable ground for its discharge of Traylor is not identical to the permis- sion rule relied on by the employer in Washington Aluminum. But although a notice requirement is a less formidable impediment to protected activity, it is a restrictive condition nonetheless.9 At least unless an employer shows that the business justifi- cation supporting a notice requirement is sufficient- ly compelling to outweigh unrestricted exercise of protected activity, it is not free to discharge an em- ployee for failure to comply with that rule before engaging in such activity. Cf. Texas Instruments, 247 NLRB 253, 255-256 (1980) (weighing employ- ees' Sec. 7 rights to discuss pertinent wage infor- mation against employer's justifications for applica- tion of a confidentiality rule), revd. on other grounds 637 F.2d 822 (1st Cir. 1981) (finding no Sec. 7 right to disseminate employer's confidential work product). The Respondent established no such justification for applying the rule here. It is true that it best suits an employer's convenience to know in ad- vance exactly who will and who will not support a strike, but then it is also true that an employer's convenience is best served if employees refrain from suddenly walking off the job in the middle of the day, as they did in Washington Aluminum, rather than delaying their walkout so that the em- ployer can make other arrangements to continue production. The Court in Washington Aluminum, however, found nothing "indefensible" in the em- ployees' walkout (370 U.S. at 17); and nothing in that opinion or subsequent authorities suggests that 9 Although not essential to our decision here, we note that the notice condition might have seemed especially intimidating to Traylor because, as discussed below, she had attended a meeting on March 25 at which the Respondent's counsel informed all the Wurtland store employees that the picket line which the Union might establish at the Wurtland store was "illegal," that all employees would be "expected" to report to work, and that the counsel would recommend the termination of any employee who refused to cross the picket line Calling up to announce that one is planning on committing an act possibly seen by one's employer as a ground for discharge is not an attractive prospect 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employers are free to restrict protected concerted activities through application of work rules simply on a showing that enforcement of such rules will help assure efficient operations during a strike.10 The case on which our dissenting colleague prin- cipally relies, Business Services by Manpower v. NLRB, 784 F.2d 442 (2d Cir. 1986), also supports our conclusion that reliance on the notice rule does not immunize the discharge here. There the court balanced what it regarded as a "weak" Section 7 right (honoring a stranger picket line at the prem- ises of one of the employer's customers, when the picket line was informational only) against what it regarded as the employer's "compelling business reasons" on the "special facts" of the case. 784 F.2d at 454. The employer was in the business of furnishing temporary help to other employers, and the court concluded that given the special circum- stances of that business and the work assignments of the employees in question, there was a greater justification for applying a notice rule than would be the case in ordinary businesses in which employ- ees work only for the employer at its own estab- lishment. 784 F.2d at 453-454. In the present case, Traylor was respecting a primary economic picket line at the Respondent's own premises, and the Re- spondent has shown no special harm. Thus, even assuming that Business Services by Manpower v. NLRB, supra, correctly construes and applies the law governing work rules that restrict Section 7 activity, it affords no support for the Respondent here. 11 Finally, we conclude that the Respondent violat- ed Section 8(a)(1) when its attorney threatened to discharge employees who refused to cross the Union's picket line. It is axiomatic that a finding of restraint or coercion depends on the objective standard whether such conduct reasonably "tends to interfere with the free exercise of employee 10 We are, of course, judging the rule as a restriction on protected concerted activity and not deciding whether it serves a legitimate pur- pose in the normal course of business Thus, contrary to our dissenting colleague's suggestion, we are in no way questioning the general useful- ness of a rule that an employer be notified of an employee's contemplated absence Neither are we questioning the proposition that when employees repre- sented by a collective-bargaining representative are concerned , rights to strike at will or support other employees ' lawful strikes may be restricted in numerous ways, including the imposition of a notice requirement, on the clear and unequivocal agreement of the bargaining representative to waive such rights The Respondent properly did not argue that any such waiver was present here 11 There is similarly no merit to the Respondent's contention that be- cause it did not penalize employees who honored the picket line but gave notice to the Respondent, the finding of a violation with respect to Tray- lor must fail for lack of proof that the Respondent was motivated by Traylor's protected concerted activities rather than by her noncompli- ance with the notice rule Because, as shown, the notice rule is an invalid constraint on protected concerted activities, the Respondent's motivation in applying it to Traylor is immaterial Texas Instruments Y. NLRB, 599 F.2d 1067, 1072 (1st Cir 1979), on remand 247 NLRB at 256 rights." Helena Laboratories Corp., 228 NLRB 294, 295 (1977), quoting NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946). The statement made by Wilson prior to the advent of the picket line at the Respondent's Wurtland facility meets this standard without regard to whether employees exercised their guaranteed rights in spite of the statement. Accordingly, we find that this statement violates Section 8(a)(1) of the Act.12 See K & E Bus Lines, 255 NLRB 1022 (1981). CONCLUSIONS OF LAW 1. The Respondent, Savage Gateway Supermar- ket, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Barbara Traylor 28 March 1981 because she engaged in a sympathy strike, the Respondent has violated Section 8(a)(3) and (1) of the Act. 3. By threatening on 25 March 1981 to discharge employees who crossed the Union's picket line, the Respondent has violated Section 8(a)(1) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order the Respondent to cease and desist and to take certain affirmative action necessary to effectuate the poli- cies of the Act. Specifically, we shall order that the Respondent offer Barbara Traylor immediate and full reinstatement to her former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to her seniority or any other rights and privileges. We shall also order that the Respondent make Barbara Traylor whole for any loss of earnings she may have suffered as a result of her unlawful discharge, with backpay to be computed in the manner set forth in F. W. Wool- worth Co., 90 NLRB 289 (1950), and with interest to be computed in the manner set forth in New Ho- rizons for the Retarded. 13 Finally, we shall order that the Respondent remove from its records any references to the unlawful discharge of Barbara Traylor, provide her with written notice of such 12 The Respondent argues that it did not violate Sec 8 (axl) because Wilson did not have the authority to terminate employees as his position was one of legal counsel, not management We find this argument to be without merit because, as the parties stipulated , Wilson was acting as an agent of the Respondent at all material times See Batavia Nursing Inn, 275 NLRB 886 fn 2 (1985). 12 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C. § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U.S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) SAVAGE GATEWAY SUPERMARKET 185 removal, and inform her that her unlawful dis- charge will not be used as a basis for future person- nel actions concerning her. See Sterling Sugars, 261 NRLB 472 (1982). ORDER The National Labor Relations Board orders that the Respondent, Savage Gateway Supermarket, Inc., Wurtland, Kentucky, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Threatening employees with discharge for re- fusing to cross the picket line established by the Food Store Employees Union, Local 347, United Food and Commercial Workers [nternational Union, AFL-CIO. (b) Discharging employees for refusing to cross the picket line established by the Food Store Em- ployees Union, Local 347, United Food and Com- mercial Workers International Union, AFL-CIO. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Barbara Traylor 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 loss of earnings and other bene- fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge of Barbara Traylor and notify the employee in writing that this has been done and that the discharge will not be used against her in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Wurtland, Kentucky facility copies of the attached notice marked "Appendix." 14 14 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 " Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, concurring in part and dis- senting in part. Although I join my colleagues in finding that the Respondent, by threatening its employees with dis- charge for refusing to cross the Union's picket line, violated Section 8(a)(1) of the Act, I disagree that the Respondent violated Section 8(a)(3) add (1) by discharging Barbara Traylor. There is no dispute that at the time of Traylor's discharge, the Respondent had in effect an employ- ee work rule that required an employee to notify the store manager of absence or to suffer separation from the payroll if the employee was absent for 2 successive workdays without notice to the Re- spondent. Traylor was absent for 2 successive workdays without notice to the Respondent. Other employees who honored the picket line but gave the Respondent previous notice of their absence had no action taken against them. Thus, there is no showing in this case that the Respondent terminat- ed Traylor for her participation in the sympathy strike or has engaged in discriminatory enforce- ment of its work rule. The Respondent argues that this case is distin- guishable from NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), and Overnite Transportation Co., 251 NLRB 1009 (1980), because the work rule involved in this case does not require the employee to obtain prior permission before leaving work in support of protected activity. I agree. The Su- preme Court's rationale in Washington Aluminum is that a work rule that requires prior permission to engage in protected activity would abrogate the statutory right to withhold services in support of that activity. Thus, the Court's stated concern was that "the plant rule in question here purports to permit the company to do just that [discharge an employee for engaging in protected activities] for it would prohibit even the most plainly protected kinds of concerted work stoppages until and unless the permission of the company's foreman was ob- tained." Washington Aluminum, 370 U.S. at 17. 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Here, the Respondent's rule does not place a prohibition on any type of protected activity. The majority exposes its misunderstanding of this distin- guishing fact by stating that nothing in Washington Aluminum or subsequent authorities suggests that employers are free to enforce work rules regulating or restricting the exercise of protected concerted activities simply on a showing that enforcement of the rules will help assure efficient operations during a strike. The Respondent in this case has no interest in regulating its employees' protected con- certed activities and, contrary to the majority's suggestion, the rule was not designed to suit the Respondent's convenience to know in advance ex- actly who will and will not support a strike. The rule simply required advance notice of an employ- ee's absence from work and not advance notice of or prior permission to strike. In this regard, it is a work rule directed toward business needs 1 that does not-act to place such a burden on employees to inhibit or effectively nullify their right to engage in protected concerted activities. The majority's analysis rests largely on assump- tions and completely disregards the facts in evi- dence. From the mere existence of a picket line at the Respondent's store, the majority leaps straight to the assumption that the Respondent's rule neces- sarily interfered with Section 7 rights. This argu- ment loses considerable appeal when, as here, nei- ther Traylor nor any of her coworkers appear to have felt coerced by the Respondent's notice rule. Thus, every employee, including Traylor, who wished to stay away from work during the picket- ing called the store knowing they needed only to inform the Respondent they would be absent and not, as the majority states, "to announce that one is planning an act possibly seen by one's employer as a ground for discharge." Obviously, no employee was in any way intimidated by the rule. It is evi- dent, therefore, that Traylor, being the only em- ployee whose message failed to reach the Respond- ent, was discharged for violating the rule and not as punishment for engaging in the sympathy strike, as no other employee who engaged in the sympa- thy strike but complied with the rule was dis- charged. See Business Services by Manpower v. NLRB, 784 F.2d 442, 453 (2d Cir. 1986). The notice rule was not influenced by the Union's presence. To the contrary, it predated the Union's organizational efforts and was adopted without any intention of hindering union activities. Nothing in the Act supports the majority' s giving business interests such short shrift and holding Sec- tion 7 rights "sacrosanct."2 Thus, I find that the Respondent has not violated Section 8(a)(3) and (1) by discharging Traylor for noncompliance with the rule and I would dismiss that portion of the com- plaint. 2 See NLRB v Browning Ferris Industries, 700 F.2d 385, 388 (7th Cir 1983) 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 threaten employees with dis- charge for refusing to cross the picket line estab- lished by the Food Store Employees Union, Local 347, United Food and Commercial Workers Inter- national Union, AFL-CIO. WE WILL NOT discharge employees for refusing to cross the picket line established by the Food Store Employees Union, Local 347, United Food and Commercial Workers International Union, AFL-CIO. 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 immediate and full reinstatement to Barbara Traylor to her former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to her se- niority or other rights and privileges and WE WILL make her whole for any loss of pay or other bene- fits she may have suffered because of the discrimi- nation against her, with interest. WE WILL remove from our files any reference to the discharge of Barbara Traylor and notify her in writing that this has been done and that evidence of her unlawful discharge will not be used as a basis for future personnel actions concerning her. ' My colleagues state that there is no justification for the Respondent's rule I had always thought there to be clear business reasons for "notifi- cation of absence" rules, else why do nearly all businesses require notifi- cation in the event an employee misses work on account of illness? SAVAGE GATEWAY SUPERMARKET, INC.