Key Food Stores Cooperative, Inc.

1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Key Food Stores Cooperative, Inc. and Joseph Tu- disco and John D. Smallman. Cases 29-CA- 11866, 29-CA-12028, 29-CA-1193 3 23 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 14 May 1986 Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent filed exceptions and a supporting brief;' the General Counsel filed a cross-exception; and Charging Party Smallman filed a brief in oppo- sition to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions2 and briefs and has decided to affirm the judge's rulings, findings, 3 and conclusions only to the extent consistent with this Decision and Order, and to modify the remedy.4 1. The judge found that the Respondent's super- visors, Stamler, Conselyea, and Oehm, engaged in surveillance of employee Tudisco's TDU activities ' The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties No exceptions have been filed to the judge's finding that a contrac- tual issue, cognizable under the parties' collective-bargaining agreement, is implicated by the complaint allegation that Supervisor Stamler on 15 April 1985 unlawfully threatened employee Tudisco with discharge for distributing Teamsters for a Democratic Union (TDU) literature Nor have any exceptions been filed to his recommendation that this allegation be dismissed because of its deferral to arbitration Consequently, these issues are not before us for ruling on the merits We therefore find it un- necessary to pass on the judge's earlier findings on the question whether Stamler's conduct violated Sec 8(a)(1) of the Act, and we shall delete that portion of the recommended Order relating to the judge's apparent finding of such a violation We shall, however, despite the dismissal of the allegation, retain jurisdiction over this matter for the limited purpose of determining whether the grievance of Tudisco has been processed in accordance with our Order below In this regard , the Respondent must waive any timeliness provisions of the grievance arbitration clauses of the contract to permit the grievance to be processed S The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We note that the judge inadvertently referred to the Free Key Press as the Key Free Press in sec II(B) of his decision and as the Free Key Review in sec II(c)(1) of his decision 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) on 22 and 23 May 19855 in violation of Section 8(a)(1) of the Act. We find merit in the Respond- ent's exceptions to the judge's finding. The relevant facts are as follows. On 22 May, at the 3:30 a.m. lunch break for the third shift, Tu- disco6 solicited signatures on the sidewalk outside the warehouse for a petition addressed to the union president protesting the fact that supervisors held union cards. As Tudisco did so, Conselyea and Oehm watched him from 10 or 15 feet away. They remained watching for 4 or 5 minutes, said nothing to him or to each other, and then turned around and went inside. At lunchtime on 23 May, outside an entrance to the warehouse, Stamler also watched Tudisco for 4 or 5 minutes, said nothing, and left. The judge found that the conduct of the three supervisors constituted overt surveillance such as would tend to discourage employees from signing the petition and Tudisco from soliciting their signa- tures. Relying on NLRB v. Intertherm, Inc., 596 F.2d 267 (8th Cir. 1979), enfg. in relevant part 235 NLRB 693 (1978), the judge found that the super- visors' conduct tended to interfere with, restrain, or coerce employees in the free exercise of the rights guaranteed them by Section 7 of the Act. Contrary to the judge, we find that the supervi- sors' observation of Tudisco as he solicited signa- tures for a petition outside the warehouse on 22 and 23 May does not constitute unlawful surveil- lance. In this regard, we note initially that the case relied on by the judge does not support his finding. NLRB v. Intertherm, above, is factually distinguish- able in a critical respect from the instant case since the supervisor there did not merely observe an em- ployee who had distributed authorization cards but actually removed an authorization card from the employee's pocket and examined it. Further, the judge's finding of a violation here is inconsistent with the many Board cases holding that an em- ployer's mere observation of open, public, union activity on or near its property does not constitute unlawful surveillance.? Accordingly, we shall dis- miss this portion of the complaint. 2. The judge found, and we agree, that the Re- spondent discharged employee Smallman on 27 May for reasons associated with his activities as a shop steward and in support of the TDU, in viola- 5 All dates are in 1985 unless otherwise specified 6 We note that the judge inadvertently referred to 3 30 p in rather than 3 30 a in and once referred to Tudisco as Santarelli ' See e g, Hoschton Garment Co., 279 NLRB 565 (1986), Emenee Ac- cessories, 267 NLRB 1344 (1983), Porto Systems Corp, 238 NLRB 192 (1978), Chemtronics, Inc, 236 NLRB 178 (1978), Larand Leisurelres, Inc, 213 NLRB 197, 205 (1974), enfd 523 F 2d 814 (6th Cir 1975), Milco, Inc, 159 NLRB 812, 814 (1966), enfd 388 F 2d 133 (2d Cir 1968) 286 NLRB No. 102 KEY FOOD STORES 1057 tion of Section 8(a)(3) and (1) of the Act-8 In adopting the judge 's refusal to defer to an arbitra- tor's 11 July decision finding just cause for Small- man's discharge , we do so on the basis that the ar- bitrator's decision is "clearly repugnant to the pur- poses and policies of the Act." Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955). Specifically, we rely on the facts that the arbitrator in his decision on the merits of the discharge tool: into consideration Smallman's postdischarge picketing; Smallman's in- ternal union activities, including his critical attitude towards some of the Union's representatives; and the merits of the grievances employees had asked Smallman to investigate on 23 May.9 Therefore, we find it unnecessary to pass on the judge's addi- tional finding that Smallman was not adequately and timely advised of the issues he was confronted with at the arbitration hearing or that there were such procedural infirmities at the hearing that the hearing was not "fair and regular ." Spielberg at 1082. 3. Finally, the judge found that the Respondent threatened Tudisco with discharge in violation of Section 8(a)(4) and ( 1) by initiating an arbitration proceeding against him on 28 August because he had filed a charge with the Board . We agree with the judge's finding, 10 but shall modify his recom- mended Order, in accordance with the General Counsel's cross-exception, to require that the Re- spondent withdraw its request that an arbitration proceeding be initiated to discharge Tudisco, ex- punge from its records any reference to the Re- spondent's request for such an arbitration, and notify Tudisco that this has been done. ORDER The National Labor Relations Board orders that the Respondent, Key Food Stores Cooperative, 8 The judge found that Smallman spent 1 1/2 hours writing up griev- ances at the start of his shift on 23 May and 1 hour later adjusting an employee's vacation time The Respondent contends that Smallman de- voted 2-1/2 hours to grievances at the beginning of his shift in addition to the later hour While the difference does riot affect our result, we note that the judge did not resolve conflicting testimony about whether Small- man performed work in addition to processing grievances during the first part of his shift 9 Contrary to our dissenting colleague, we find that the arbitrator did not merely "mention" such other conduct, rather he explicitly relied on that conduct in finding that Smallman engaged in serious "improprieties " Moreover, what the arbitrator called "improprieties" is conduct that the Board, certainly in the case of Smallman 's picketing and internal union activity, finds protected under Sec 7 of the Act. 10 We note that the judge's refusal to admit an 8 July letter from a Board field examiner, proffered by the Respondent, was at most a harm- less error, because neither the alleged discrepancy allegations in that letter and the testimony by Security Director Berti about a conversation with Tudisco concerning a locker break-in, nor the Regional Director's refusal to issue a complaint on the basis of some of the allegations con- tained in Tudisco's charge, is dispositive of Tudisco's good faith or ve- racity in making those allegations Inc., Brooklyn, New York, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Discharging employees because they perform shop steward duties required by the Union's consti- tution and bylaws and the collective-bargaining agreement between the Union and the Respondent, or because they engage in intraunion activities. (b) Threatening employees with discharge by ini- tiating arbitration proceedings against them because they have filed charges with the National Labor Relations Board. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer John D. Smallman immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis- charge will not be used against him in any way. (c) Withdraw its requests to initiate an arbitra- tion proceeding seeking the discharge of Joseph Tudisco. (d) Remove from its records any reference to the request for an arbitration proceeding against Tu- disco and notify him in writing that this has been done and that evidence of the unlawful request for arbitration will not be used as a basis for future action against him. (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its facility in Brooklyn, New York copies of the attached notice marked "Appen- dix." 11 Copies of the notice, on forms provided by r i If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Regional Director for Region 29, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein , provided that regarding the ques- tion of the Respondent 's threat to discharge Tu- disco: Jurisdiction over these proceedings is retained for the limited purpose of entertaining an appropri- ate and timely motion for further consideration on a proper showing that either (a) the dispute has not, with reasonable promptness, been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration , or (b) the griev- ance or arbitration procedures have not been fair and regular or have reached a result which is re- pugnant to the Act. CHAIRMAN DOTSON , dissenting in part. Contrary to my colleagues I would defer to the arbitrator's decision to uphold the 28 May 19851 discharge of John Smallman and dismiss that por- tion of the complaint. Smallman's discharge was considered by the ar- bitrator 20 June pursuant to a union filed grievance under article 25 of the collective-bargaining agree- ment. The arbitrator found that Smallman was enti- tled to lost earnings for the period 27 May to the date of the award, 11 July, because the manner of his discharge violated the collective-bargaining agreement . The arbitrator concluded , however, that the discharge itself was justified because of Smallman's insubordinate refusal to refrain from talking to workers during work time 23 May. The arbitrator found that Smallman was obligated to return to work when directed to do so , and that the evidence that past grievances had been handled during work hours did not give Smallman the right unilaterally to insist on talking to workers and to distribute new grievance forms during work hours. The judge found , and the majority agrees, that the contractual issue considered by the arbitrator is factually parallel to the unfair labor practice issue, i.e., whether Smallman was discharged for union activity, and no party disputes that the arbitrator 1 All dates are in 1985 was presented with the facts relevant to the resolu- tion of this issue. The majority, however, charac- terizes the arbitrator's decision as repugnant to the Act under the Spielberg doctrine2 because in up- holding the discharge the arbitrator took into ac- count Smallman's postdischarge picketing, internal union activities , and the merits of grievances Small- man was investigating the day he was discharged. A brief look at the arbitrator's decision, which is part of the record before us, illuminates the fallacy of that position. To begin with, the arbitrator's de- cision makes clear that the greatest weight is given to the evidence that Smallman was discharged for refusing to obey a supervisor's direct order. Thus, the arbitrator relied on evidence that Smallman continued talking to workers during work hours after being told to stop, and that he persisted in dis- tributing grievance forms on work time. While the arbitrator does state "further" that Smallman's postdischarge picketing of the Employ- er's warehouse "was not an appropriate way to re- solve his grievance" and mentions that Smallman was critical of some internal union political activi- ty, the majority cites no case, and I am unaware of any, to indicate that the mention of this conduct in- validates the award. As is noted above, the arbitra- tor was faced squarely with the same issue that is the subject of the 8(a)(3) allegation and was pre- sented with the facts relevant to its resolution. The award reflects the arbitrator's conclusion that Smallman was discharged for insubordination as argued by the Respondent and had engaged in seri- ous improprieties . As the judge's decision points out, deferral under Spielberg does not require agreement with the arbitrator's findings or even that the decision be totally consistent with Board precedent. For these reasons, I would find that the General Counsel has not met its burden of demon- strating deficiencies in the arbitral process,3 and would therefore dismiss the 8(a)(3) allegation. 2 Spielberg Mfg Co, 112 NLRB 1080, 1082 (1955) 9 Olin Corp , 268 NLRB 573 (1984) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. KEY FOOD STORES To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge employees because they perform duties as shop stewards or engage in in- traunion activities. WE WILL NOT threaten employees with dis- charge by initiating arbitration proceedings against them because they have filed charges with the Na- tional Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer John D. Smallman immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. WE WILL withdraw our request to initiate an ar- bitration proceeding seeking the discharge of Joseph Tudisco. WE WILL remove from our records and notify Joseph Tudisco that we have removed from our records any reference to the request for an arbitra- tion proceeding against him and that evidence of our unlawful request for arbitration will not be used as a basis for future action against him. KEY FOOD STORES COOPERATIVE, INC. Amy S. Krieger, Esq., for the General Counsel. Milton Waxenfeld, Esq. (Warshaw, Burstein, Cohen, Schlesinger & Kuh, Esqs.), of New York, New York, for the Employer. Daniel E. Clifton, Esq. (Clifton & Schwartz, Esqs.), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was heard by me at Brooklyn, New York, on 21 October 1985 and at New York, New York, on 21-24 October 1985. The three complaints in this consolidated 1059 proceeding allege threats and surveillance in violation of Section 8(a)(1) of the National Labor Relations Act (the Act); the discharge of John D. Smallman for union-con- nected activities protected by Section 7 of the Act, and refusal to reinstate him, in violation of Section 8(a)(3) and (1) of the Act; and the threat of discharge and the institution of an arbitration proceeding seeking an award to permit Respondent to discharge Joseph P. Tudisco be- cause he had filed a charge under the Act, in violation of Section 8(a)(4) and (1) of the Act. The Respondent's answers to the respective complaints deny all allegations of wrongdoing and statutory viola- tion and allege affirmative defenses to the effect that this tribunal should defer to an arbitration award already made that upheld Smallman's discharge and should defer to Respondent's pending request for arbitration respect- ing Tudisco's discharge, the same being the very arbitra- tion request complained of as a violation of Section 8(a)(4) and (1) in this proceeding. It was further alleged affirmatively that Tudisco had lost the protection of the Act because he knew that the charge he filed against Re- spondent was false. The parties were afforded full opportunity to be heard; to call, examine, and cross-examine witnesses; and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel, on behalf of the Respondent and on behalf of John D. Smallman, one of the Charging Parties. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs submitted on behalf of the respective parties, I make the following FINDINGS OF FACT I. JURISDICTION There is no issue regarding jurisdiction. The Respond- ent's answers admit, and I accordingly find, that Re- spondent purchases and receives at its warehouse in Brooklyn, New York, annually, from points outside of New York State, goods and materials valued in excess of $50,000; that Respondent is and at all material times has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 138 (the Union) is and at all material times has been a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview' Respondent is engaged in the wholesale distribution of groceries and related products through affiliated but in- ' The matters narrated without evidentiary comment are those facts found by me on the basis of admissions in the answer, data contained in the exhibits, stipulations between or concessions by counsel, undisputed or uncontradicted testimony , and, in instances where conflicts in the testi- mony did not warrant discussion, the testimony which I have credited 1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dependent stores and retail chains of stores. Its principal office is located at its warehouse in Brooklyn, New York Smallman and Tudisco are warehouse employees and members of a bargaining unit represented by the Union. Both of them are active in an organization of dis- sident Teamsters members known as "Teamsters for a Democratic Union" (T.D.U.) Smallman was also a shop steward, having been elected to that position pursuant to the union bylaws. During the spring and summer of 19852 there was a lot of ferment from internal dissensions among the union employees at the warehouse. The T.D.U. supporters began publishing a newspaper, the Free Key Press, in support of T.D.U., and another group of employees began putting out a paper called the Key Review, which supported the incumbent union administration. These are activities that are protected by Section 7 of the Act. United Parcel Service, 261 NLRB 1012 (1982); Steelwork- ers Local 1397, 240 NLRB 848 (1979). On 27 May, Smallman was discharged, an event that touched off picketing at the warehouse and at one of the retail affiliates by T D.U. members who were friends of Smallman. Smallman participated in the picketing at the warehouse. The collective-bargaining agreement provid- ed that, except for certain cases of extreme misconduct that were specified, the pay of any discharged employee would continue until a final decision of the arbitrator, provided the Union demanded arbitration within 48 hours after written notice from the Employer to the Union of the employee's discharge. During the pendency of the arbitration, it was optional with Respondent to have the employee perform his customary duties. There was also a general provision for arbitration of any dis- pute between Respondent and an employee which the Respondent and the Union were unable to adjust "amica- bly and as speedily as possible." Smallman's discharge was upheld by an impartial arbitrator. On 28 August, Respondent served notice of its inten- tion to arbitrate its right to discharge Tudisco. The General Counsel contends that the Respondent's actions against Tudisco and Smallman resulted from its displeasure at their activities in support of the T.D.U. and, in Smallman's case, for the further reason that he was zealously performing his duties as shop steward. Smallman's attorney expressed the belief that his client's discharge resulted from Respondent's ill-informed con- cern about the T.D.U. drive among the warehouse em- ployees. Actions by Respondent's supervisory personnel are cited to demonstrate the Respondent's favoritism to- wards the Union and are also alleged as separate and in- dependent violations of the Act. Some of the provisions of the collective-bargaining agreement are pertinent. Article 6 prohibits summary discharge of employees "for any reason except [Employer] having caught said employee in a dishonest act, intoxicated while on duty, or fighting on the job." Other discharges are dependent on the final determination of an arbitrator, provided the Union demands arbitration within 48 hours after notifica- z All dates hereinafter mentioned are in 1985 except as otherwise stated tion of the discharge from Respondent. In this instance, however, the Respondent summarily discharged Small- man and then sent notification to the Union. Article 11 of the agreement provides: The employees of each employer shall elect one of their members to act as shop steward, whose duty it shall be to see that the conditions of this agreement are not violated by either the Employer or employ- ee. . . He shall not be discriminated against by the Employer. Article 24 gives the arbitrator the power to determine whether any question of legality is raised in good faith. Article 25 provides for arbitration in the event of a dispute arising between the employee and the Employer that cannot be adjusted between the Employer and the Union, and designates a named arbitrator. Articles 29 and 31 reserved discretion to management to regulate employees' work, subject to the terms of the agreement. Article 30 sets forth that each employee is to be given a copy of the Employer's work rules, which "are consid- ered to be part of Company's Operational Procedures and a copy is affixed hereto." There was no evidence that any written set of work rules had ever been distrib- uted or given to Smallman, and none was attached to Joint Exhibit 1, the agreement. B. Threats and Surveillance The allegations of threats and surveillance relate to in- cidents in connection with the distribution of T.D.U. lit- erature, which are alleged to have occurred on 15 April and 22 and 23 May. It is alleged that on 15 April Charles Stamler, a supervisor within the meaning of Section 2(11) of the Act, threatened employees with discharge and reprisals if they distributed T.D.U. literature, and that on the dates in May Paul Conselyea and Steve Oehm, supervisors, engaged in surveillance of T.D.U. ac- tivities being carried on by employees. A threshold question is presented by Respondent's denial that these persons were supervisors within the meaning of the Act. It is the Respondent's contention that they were simply the supervisors of certain employ- ees on their own respective shifts. (Respondent's conten- tion that this portion of the complaint should be dis- missed as premature because of Tudisco's failure to seek arbitration of the alleged disputes as required by the col- lective-bargaining agreement is dealt with below.) Paul Conselyea testified that he was the senior supervi- sor on Tudisco's shift, which was the third shift (10:30 p.m. to 7 a.m.). Charles Stamler and Steve Oehm were also supervisors on that same shift. The contention that these men were simply supervisors of certain employees was not developed by Respondent, and the record is re- plete with evidence that, with respect to other employ- ees, they had "authority, in the interest of the employer, to . . . assign . . . or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action." Very grave disciplinary problems were referred to Arthur (Archie) Bucholz, who has been the overall su- KEY FOOD STORES pervisor of all the shifts for the last 16 years. Neverthe- less, it is apparent from the whole record that the subor- dinate supervisors had enough of the authority pre- scribed in Section 2(11) of the Act to render their actions and statements imputable to the Respondent . At the very least, they possessed apparent authority to bind the Re- spondent. Accordingly, I find that Conselyea, Oehm, and Stamler were supervisors within the meaning of Section 2(11) of the Act. In reviewing their actions as such, I find that the evidence does not establish that unlawful threats of discharge were made , but it supports the alle- gation of unlawful surveillance of employees' activities in violation of Section 7 and Section 8(a)(1) of the Act. The General Counsel claimed to find threats of dis- charge and other reprisals in an incident in April when Tudisco and an employee named Edward Santarelli were confronted by Stamler in the locker room. Tudisco had obtained copies of the Free Key Press from Santarelli's locker. He was not on working time. Stamler saw him with the papers in his hands. Tudisco testified that at that time it had been his intention to put them in his own locker. Tudisco testified that he had met Santarelli in the hall- way off the locker room and Santarelli told him he had copies of the Free Key Press left over from the distribu- tion he had been making outside the warehouse , and fur- ther remarked "that I should be careful about distribut- ing them because we could be fired-a person could be fired if he was caught distributing them ." Tudisco re- moved the papers from Santarelli 's locker and was on his way to his own locker (which was in the locker room on the other side of the corridor) to put them away when he encountered Stamler . Tudisco quoted the conversa- tion between the two men as follows: Q. Can you tell us, was anything said at that time? A. Yes. Chuck Stamler said to me, what are you doing and he pointed towards the papers and he said, if you distribute those papers on company time you will be fired immediately. Upon that I turned to him and I explained that I was not distributing them. But just putting them into my locker. And at that point, I went-proceeded into my locker room- Stamler then went into the other wing of the locker room, where Santarelli's locker was located. Tudisco did not follow him. Stamler testified that he had seen Santar- elli distributing the Free Key Press outside the ware- house . Stamler confronted Santarelli and told him that he was "in trouble," and a shop steward was requested to come to the locker room. Stamler's testimony is basically consistent with Tudis- co's, but is different in emphasis . Stamler testified that Bucholz had instructed him to make sure the Free Key Press was not distributed on company time (i.e., while employees were clocked in and being paid for their time) and he saw Tudisco "come out" with the papers, mean- ing that he came into the corridor between the two wings of the locker room. 1061 Whereas Tudisco's account has Stamler speaking first to him and then going into the other locker room to see Santarelli, Stamler testified that he spoke first to Santar- elli, who told him simply that Tudisco had taken the papers out of his locker, Stamler then went to speak to Tudisco. He testified that he did not threaten Tudisco, but cautioned him, "reminded him . . . that he wasn't al- lowed to give these out in the warehouse on company time." At that point the papers had apparently already been put away in Tudisco's locker. According to Stamler, he never threatened to fire Tudisco. He testified that, "I did point out that if he did this he could face the loss of his job, but not that I would fire him." The General Counsel argues that Stamler 's statements to Tudisco can be construed only as a threat of dis- charge. The nature of the publication was known: Stamler had , on an earlier occasion , been given a copy of it by Santarelli while Santarelh was distributing them outside the warehouse. (Stamler had even come back and requested an additional copy.) This contention finds some support in Stamler's testimony that on the night in question Bucholz told the other supervisors that the papers were being distributed and that they should get to the men and see that it was not done on working time. However, these statements , which are the only state- ments cited by the General Counsel to show actual threat of discharge, also support the position of the Re- spondent that it made known to the employees that they would be fired if they distributed the Free Key Press on working time. The General Counsel concedes that the employees were not supposed to distribute the paper on working time, but asserts that there is no evidence that they did and argues that at the time of these events there was no no-solicitation rule in effect. In its essentials, the question is whether the fact that discharge was never mentioned in any context other than as a consequence of distributing the T.D.U. papers on working time is offset by the fact that the Respondent began making such an- nouncements only at the time distribution of the Free Key Press was commenced. Tudisco and Santarelli both testified that prior to the locker room incident no one from management had ever told them that they were not supposed to be passing out papers or anything else at the warehouse . In response to specific questions, they asserted that no statements had been made to such effect and that nothing had been said about doing so either on or off working time The pro- mulgation of a no-solicitation rule by Respondent under these circumstances and at this time would patently be for the purpose of interfering with the distribution of T.D.U. literature and would be an interference with the employees' rights guaranteed by Section 7 of the Act. Pedro's Restaurant, 246 NLRB 567 (1979); United Parcel Service, 261 NLRB 1012 (1982). In contrast to the explic- it testimony of Tudisco and Santarelli in this regard, the testimony of Respondent's supervisors avoids the point altogether. There is no testimony that a no-solicitation rule was ever promulgated; the nearest the supervisors come to it is Stamler's testimony that he "reminded" Tu- disco that he was not allowed to make distribution in the warehouse on company time. This is accompanied by 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Stamler's evasive testimony that he warned Tudisco that he could lose his job for doing it, but that Stamler never told Tudisco he would fire him. (He disclaimed having that power.) The most that Paul Conselyea would testify to was that he told Tudisco that he could not bring liter- ature into the warehouse and distribute it during working hours, accompanied by his concession that there was nothing in writing and that the statement merely reflect- ed his "practice," which was designed to get the work done. Santarelli's uncontroverted testimony was that the Re- spondent issued to all newly hired employees a set of "Key Food Stores Co-Operative, Inc. Rules and Regula- tions" which began with the statement, "This booklet represents written clarification of our basic work rules and safety regulations." The booklet set out a number of rules governing employee conduct in the warehouse and listed violations of company rules that "could be consid- ered just cause for discharge, depending on the serious- ness of the offense." It does not contain any rule or regu- lation relating to the distribution of literature or solicita- tion inside the warehouse. With respect to the fact that there was no-solicitation rule or no-distribution rule, Respondent's counsel con- ceded expressly that "it has already been established that there was no such specific rule." He conceded that in the printed rules and regulations the subject matter is not specifically covered. In the absence of any explanation, Tudisco's testimony, quoted above, to the effect that Santarelli warned him to be careful because he could be fired for distributing the literature, might seem to imply that a warning from man- agement had, in fact, been received. Santarelli testified that when he asked Tudisco if he was "off the clock" he did so because he was afraid of losing his job if he were caught passing out literature on company time. Howev- er, he specifically testified that the basis for his fear was his knowledge that the company was not in agreement with the viewpoints which they had expressed in the paper. His caution was thus not grounded on the exist- ence of any rule prohibiting the solicitation. Stamler's characterization of his remarks to Tudisco as a "reminder" does not, of course, cure the omission from the record of any real evidence that the policy existed or was made known to the employees before Bucholz gave his instructions to the supervisors. The failure of Re- spondent's supervisors, therefore, to testify as to when and where and how a no-solicitation and no-distribution rule had been promulgated makes it necessary for me to view the events in the locker room in the light of the almost instantaneous announcement of the rule.3 Stamler 3 There is no dispute respecting the Respondent's right to promulgate such a rule A rule of this nature is presumptively invalid if it prohibits solicitation on the employees' own time, and a rule prohibiting distribu- tion of literature during "working time" is presumptively valid Our Way, Inc, 268 NLRB 394 (1983) In this case, the rule could not reasonably be interpreted as forbidding distribution during nonworking time and Tu- disco and Santarelli understood the rule, as expressed to them, in its valid and legal sense See Taylor-Dunn Mfg Co, 252 NLRB 799 (1980), and Aircraft Hydro-Forming, 221 NLRB 581 (1975) testified that Bucholz called in the supervisors as soon as he learned that the Free Key Press was being distributed; Bucholz "wanted us to make sure that this wasn't done on company time. He sent us down to the time clock area to make sure that this was observed." The April in- cident followed immediately on Bucholz' instructions, and violated Section 8(a)(1) of the Act. The statements made by Stamler to Santarelli in the other wing of the locker room are claimed to be viola- tive of the Act as threats of "other reprisals." Santarelli testified that Stamler came into his section of the locker room and, "He said to me, you're not supposed to be passing them out. Sit down and you're in trouble ." (I un- derstand the import of Santarelli's testimony to be that Stamler said, "Sit down. You're in trouble.") Stamler summoned a shop steward and told Santarelli he was going to see what Bucholz wanted to do about the situa- tion. A shop steward came in, conferred with Santarelli, left, and returned in about 10 minutes with the news that Bucholz had terminated the incident and that no action would be taken against Santarelli. Considering all the circumstances, it can be argued that Stamler, by detaining Santarelli in the locker room and telling him he was in trouble, suggested an intention on his part to secure from higher authority imposition of some kind of punishment. Nevertheless, looking at the situation realistically, in this instance no effective threat was made. Stamler never purported to act. He said, from the very beginning, that he would see what Bucholz wanted to do about it, and Bucholz quashed the matter. Whatever momentary fears Tudisco and Santarelli may have suffered, the fact is that Stamler, in the circum- stances, might reasonably have believed they were dis- tributing literature on working time, the policy sought to be enforced was one which would have been legal except for its timing, and Stamler claimed neither actual nor apparent authority to impose discipline with respect to Santarelli's conduct. Accordingly, his action with re- spect to Santarelli was not in violation of the Act. The allegation of unlawful surveillance on 22 and 23 May is founded on observation of Tudisco by two super- visors, Paul Conselyea and Steve Oehm. Tudisco testi- fied that during the lunchbreak (at 3:30 p.m.) on 22 May, he was on the sidewalk outside the warehouse building, soliciting signatures on a petition addressed to the union president protesting the fact that supervisors held union cards. He spoke to employees as they passed and was holding a copy of the petition and a pen. He was not blocking entrance into or egress from the building. Ac- cording to his testimony, an employee named William Mancusi commented, "Look at the way the supervisors are storming to the door." Tudisco turned and saw Con- selyea and Oehm standing about 10 or 15 feet away and looking at him. He estimated that they remained there, looking at him, for 4 or 5 minutes, during which time they said nothing to him or to each other. At the end of that time, they turned around and went inside. The Mancusi remark, a patent case of hearsay, con- notes an enormously exaggerated interest in Tudisco's activities on the part of Conselyea and Oehm. Oehm denied any recollection of having seen Tudisco on the KEY FOOD STORES days in question and denied recollection of the events in question at any time. Oehm suggested that he might have seen Tudisco if he went outside to a lunchwagon for a cup of coffee. He did not, however, testify that he did so or that there had been a lunchwagon positioned near the door on either of the occasions in question. Conselyea had no recollection of having seen Tudisco hand out lit- erature on the days in question, and testified that he thought that he would not have seen Santarelli at all except in the course of work. He conceded knowledge of Tudisco's activity, however, when he testified that he warned Tudisco not to bring literature inside the ware- house. Tudisco testified that Stamler observed him at lunch- time on 23 May, outside the Foster Avenue entrance and that, like Conselyea and Oehm, he said nothing, but just watched for 4 or 5 minutes and then left. Stamler denied it. I find Tudisco's testimony respecting these incidents to be more convincing than the extremely vague and for- getful testimony of Conselyea and Oehm. Respondent's counsel insinuates, without actually proving, that if the supervisors were outside on these occasions, it was for a legitimate purpose; they were patronizing the lunchwa- gon. Accepting, as I do, Tudisco's version of the events, I find a case of overt surveillance by all three supervi- sors. Testimony by Respondent's supervisors that they did not interfere with or stop the distribution of litera- ture or the collection of signatures by Tudisco is beside the point. Their conduct was such as tended to discour- age employees from signing the petition, and was of a nature to discourage Tudisco from soliciting their signa- tures. Such conduct by supervisors, observing and star- ing at an employee in stony silence, clearly intimates their disapproval of his activity and tends to interfere with, restrain, or coerce employees in the free exercise of their rights guaranteed by Section 7 of the Act NLRB v. Intertherm, Inc., 596 F.2d 267 (8th Cir. 1979). There are numerous manifestations of animus on the part of Respondent toward Section 7 activity, such as in- terference with shop stewards' work, support of a union faction fighting the T.D.U., and remarks by Conselyea, all discussed below. These are matters to be considered along with all the other circumstances, and I conclude on the entire record that a motivation to discriminate against Tudisco was present. Knowledge of Tudisco's beliefs and activities is conceded. Conselyea testified that he was aware that Tudisco objected to the fact that some supervisors held union cards. It was the subject matter of the petition on which Tudisco collected signatures and he had also expressed the same objection on an occasion when he had been given a warning by a supervisor; in signing the acknowledgement of receipt of the warning, Tudisco criticized procedure by which one union member was being disciplined by a fellow union member. In April, Conselyea saw Tudisco at the time- clock with literature and told him he could not bring it inside the warehouse to hand out during working hours. Accordingly, I find that the General Counsel has proved by a preponderance of the evidence that Stamler unlawfully threatened Tudisco with discharge and Con- selyea, Oehm, and Stamler committed unlawful surveil- 1063 lance of his activities. I do not find that Santarelli was unlawfully threatened with unspecified repnsals. C. Discharge of Smallman 1. The General Counsel's case Smallman was the elected shop steward for Local 138 and was active in promoting the T.D U. Respondent was aware of his activities in that regard by reason of his having subscribed his name to an article in the Free Key Review, a publication put out by some employees in sup- port of the T D.U. Copies were sent to high-level offi- cers of Key Food. The evidence establishes that though distribution of the Free Key Press was discouraged, Re- spondent facilitated the distribution of another publica- tion, the Key Review, which was put out by some em- ployees for the purpose of supporting the Union and combating the T.D.U. Stacks of the paper were placed next to the timeclock on a desk at which a supervisor was stationed. It was clear from Stamler's testimony that employees took copies of the paper on their way into work, for he described the stacks as lying "on the desk in a pile as you come into the warehouse by the timeclock and people would take it." (Emphasis supplied .) Having punched in, they were on working time. Stamler conced- ed that he had never seen the Key Review distributed outside the warehouse or in any manner other than by being made available at the timeclock. He saw papers stacked at the timeclock on at least two occasions, with the second-shift supervisor, Mike Primeggia, seated at the desk on which they were stacked. Respondent also permitted a meeting, on company time, which lasted half an hour, of some 50 employees, at which they heard an explanation by several employees of reasons for opposing the T.D.U. Respondent's lack of impartiality in this inter- nal union matter is something that cannot be ignored. See United Parcel Service, 230 NLRB 1147, 1151 (1977). Smallman, who had processed grievances on company time from the inception of his stewardship, developed a one-page form for use in noting down the pertinent data regarding a grievance. It was a form he adapted from a manual distributed by the T.D.U. He never took any steps to clear its use with either the Union or the Re- spondent. He intended it solely for his own use; it was not a grievance form designed to be utilized by manage- ment or the Union to preserve a record of action on grievances, although the testimony of some of Respond- ent's supervisors indicates that they may have thought it was. On 23 May, Smallman used the form during consulta- tion with several employees who had previously consult- ed him with regard to what they claimed to have been the Respondent's disregard of seniority in transferring employees into the dairy department.4 While he was doing this, Bucholz passed by on a motorized scooter or golf cart and called to him to do that on his own time. Smallman responded that when the Union paid him to do it, he would do it on his own time. For a few min- 4 Art 5 of the collective-bargaining agreement provides that seniority shall apply with respect to interdepartmental transfers in the warehouse. 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD utes, Smallman continued processing the grievances and taking care of some other matters that he customarily handled as a shop steward (such as checking employees' absences to make sure they did not run afoul of company rules) and then started work. On that day, he devoted approximately 2-1/2 hours to union business and did not complete the work he was supposed to complete by the time his shift ended. On 27 May Smallman was discharged summarily when he came in to work. The reason given orally at that time and later in the day, when he unsuccessfully sought to obtain a written statement of the reason for his dis- charge, was that he had used an unauthorized form in the processing of grievances. The 23d of May was a Thursday. Smallman's next working day was Monday, 27 May. When he came in at 2 p.m., Bucholz went over to him and told him he was fired. This was done in the presence of John Berti, direc- tor of security, and Michael Primeggia, the second-shift supervisor. Smallman returned about 7:30 p.m. with an employee named Michael Viverito, who came along to act as a witness . Smallman tried unsuccessfully to obtain a written statement of the reason for his discharge from Berti and Primeggia . Primeggia called Bucholz, who joined them and asserted that written reasons for dis- charge were not given out. The testimony of Smallman and other witnesses called by the General Counsel, as well as testimony of some of Respondent's witnesses, tended to prove that (1) employ- ee grievances had uniformly been processed, at all times and by all shop stewards, on company time; (2) the proc- essing of grievances on company time had been sanc- tioned, and in the case of a supervisor named Maloney, had been encouraged by the supervisors and by the Union as a means of keeping production from being im- peded; (3) no written or oral policy statement by the Re- spondent had ever forbidden the processing on company time; (4) the Union had orally instructed shop stewards to process grievances immediately, but there was no written union pronouncement on the subject; (5) in the normal course of processing grievances, shop stewards prior to Smallman had made informal notes in whatever form and to the extent that same were necessary in order to handle grievances; (6) other shop stewards had, on oc- casions when conference with management personnel was involved, spent as much time during the work shifts as the matter required, and sometimes as much as four hours. The testimony also showed that there was no uniform- ity of procedure in disciplining employees. There was no definite step procedure governing discipline of employ- ees. Some errant employees had been given many warn- ings without being discharged; some had been discharged after several warnings; others had been discharged with- out any warnings at all. Smallman's discharge without preliminary warning had therefore not been a unique oc- currence, but I think it is significant that other employees had received warnings while Smallman, a shop steward with superseniority rights under the collective-bargaining agreement, received none. The body of evidence thus introduced by the General Counsel established a prima facie case of violation of Section 8(a)(3) and (1) of the Act. It was incumbent on the Respondent to demonstrate that the actual reason for Smallman's discharge was a legal one that would have resulted in Smallman's termination in any event . Wright Line, 251 NLRB 1083 , 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert . denied 455 U.S. 989 (1982), ap- proved in NLRB v. Transportation Management Corp., 462 U.S. 393, 403 (1983). 2. Respondent's explanation of Smallman's discharge The reason for the discharge of Smallman given in this proceeding by Respondent's counsel and testified to by its supervisors was that he had used unauthorized forms in the processing of grievances. The form, which is in evidence, consists of a one-page piece of paper with ruled lines entitled "Grievance Fact Sheet." It breaks down the grievant's story into the basic components (who, what, when, and where), manage- ment's story, other pertinent facts, the legal basis for the grievance (contract clause, unfair discipline, and so forth), the relief sought, and the supervisor's first-step verbal reply. A notation typed in the upper left-hand corner directs, "No copies to management." Respondent's witnesses testified that after Smallman reported for work on 23 May he spent the first 2 to 2- 1/2 hours of company time conferring with three em- ployees and writing up the forms dust described. The shift supervisor called his conduct into question and then referred the matter to the senior supervisor, Bucholz, who also spoke to Smallman about it. The supervisor was Charles Stamler, now third-shift supervisor in the grocery department but at that time the second-shift su- pervisor. Smallman was a picker and loader on that shift (2 to 10:30 p.m). Stamler testified that Smallman arrived for work on 23 May with a stack of papers and said he needed a light load that day because he had a lot of writing to do. He next saw Smallman a half hour later, talking to another employee. Subsequently, on two other occasions, he spotted Smallman talking to other employees, and was unable to observe any work having been done. On the last occasion, when Smallman was talking to an employ- ee named Rusigno, he approached and asked Smallman what he was doing; Smallman said he had to write up grievance fact sheets; Stamler told him he had to do some work and that he should start working and do the fact sheets on his own time. He testified as to the re- sponse: "Mr. Smallman replied when somebody pays me to do it on my own time, that's when I'll do it on my own time." Stamler reported the matter to Bucholz, who later went over to Smallman. When Smallman told Bu- cholz that he was writing grievance fact sheets, Bucholz told him that they were not authorized by the company or the Union "and that he should do his work." Bucholz testified that the report that he received from Stamler was that Mr. Smallman was writing up grievance prac- tices, that was unauthorized by Key Food and he had no authorization from any supervisor on this KEY FOOD STORES shift to write these grievances up, he's been writing them and he had been writing them up since about two o'clock that afternoon. He had not done any work up till that time, from two to four, that we knew of. Bucholz testified that he told Smallman it was unau- thorized and he could not do it on company time but would have to do it on his lunch hour or coffeebreak. Smallman told him it was union business and that when the Union paid him he would do it on his own time.5 With that, Bucholz told him he had to stop. Smallman finished what he was doing and went to work within a few minutes thereafter. This apparently satisfied Bucholz, for Bucholz took no further action other than to talk about it to Michael Marascia, who was regarded by the supervisors as the senior shop steward in the warehouse, by reason, apparently, of his being the shop steward on the first shift. In his discussion with Marascia, Bucholz mentioned only the grievance form: "I said it's not au- thorized by me, he never approached me for any permis- sion to conduct any of these grievances. I didn't know anything about it." 3. Analysis of Respondent' s explanation On its face, the explanation furnished by the Respond- ent shows an unwarranted interference with Smallman's performance of his duties as a union shop steward and establishes a discharge in violation of Section 8(a)(1) and (3) of the Act. No contention is made that in utilizing the grievance fact sheet form in the course of his duties as a shop steward, Smallman ceased to be engaged in con- certed protected activity. Such an argument would have been difficult to sustain in the face of the provisions of the collective-bargaining agreement for election by the employees of a shop steward "whose duty it shall be to see that the terms and conditions of this agreement are not violated by either the Employer or employee" and for superseniority and guarantee against discrimination by the Employer. Section 16.04 of the constitution and bylaws of Local 138 provides: Sec. 16.04. DUTY OF SHOP STEWARD. It shall be the duty of shop stewards to assist the union in obtain- ing faithful performance of collective bargaining agreements by the employers and the employees, and stewards shall promptly report to this local union all violations thereof. The shop steward shall have no authority to order a strike or stoppage of work except by the express direction of the Execu- tive Board of this local union, See Meyers Industries, 268 NLRB 493, 497 ( 1984), re- manded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985). Nor is there any question that the supervisors 6 Smallman's response to Bucholz was cited in the testimony of Re- spondent's witnesses as an integral part of his act of disobedience No claim was made that the remark constituted such misconduct as would deprive Smallman of the protection of the Act and, indeed, it would not have been sufficient to have that effect See United Postal Service, 250 NLRB 4 fn 1 (1980) 1065 knew Smallman was investigating grievances. Obviously, Smallman was not working secretly. Stamler even dis- cussed the subject matter of the grievance with Rusigno, one of the grievants to whom Smallman had spoken, and so he knew Smallman was looking into a possible viola- tion of the seniority provisions of the collective-bargain- ing agreement. There are additional cogent reasons for rejecting the Respondent's explanation for Smallman's discharge: (1) the assertion, at different times and places, of shifting reasons for Smallman's discharge, (2) uncontroverted evidence of Respondent's bias and overt encouragement of anti-T.D.U. sentiment, (3) uncontroverted evidence that the order for Smallman's discharge emanated from the top level of management, and (4) the disparate treat- ment accorded Smallman. The explanations furnished by Respondent' s witnesses for Smallman's discharge were muddled, to say the least. Mention was usually made of a complex of factors in- cluding the use of the grievance fact sheet and the time he spent using it. This became expanded into what seemed to be a contention that he spent time on matters other than his work. In essence, however, the gravamen of the charge against him, as delineated in this proceed- ing, was the use of the grievance fact sheet. Respond- ent's counsel stated: The contention . . . the reason for discharging this man has got to do with this particular grievance fact sheet. . . . We are complaining about the time that he spent in devoting himself and writing up this grievance fact sheet, a creature of his own making and doing. That's what this case is all about. . . . There are no other-there are no other minor side issues as far as I know . .. . The sole reason that we contend he was discharged, was for whatever his-whatever he did and what- ever time he spent on May 23rd, in connection with this document . . . the grievance fact sheet, Gener- al Counsel's 16. That is the reason that we terminat- ed him. That is the reason that was arbitrated, and the issue that's mentioned in the arbitrated decision. We mentioned it. The arbitrator mentioned it. That is the issue. The grievance fact sheet is the issue. . . How he came to create it, why he created it, what time he did with it and how he neglected other things because of his activities in connection with this form. That's the only issue in this case. In the course of argument on the relevancy of a ques- tion to which there had been an objection, Respondent's counsel stated: Well, I think it goes to the fact that it [the fact sheet] was being created and used in an irregular manner, without the knowledge of the company and the union, and that there was an ulterior pur- pose for its use-its creation and use. Respondent's witnesses testified to the same effect. Bu- cholz testified that he fired Smallman on orders from Walter Czajka, the controller: 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. Did Mr. Czajka tell you why you were to dis- charge him? A. I stated the reason before, the grievance form was unauthorized and it was on company time, un- authorized company time. He accordingly, on 27 May, fired Smallman when he re- ported in at 2 p.m.: Q. What did you tell him? A. I told him he was being discharged, the com- pany wants to discharge him and I am discharging him for writing up unauthorized grievance fact sheets, it was unauthorized by the company and he was doing it on company time, being paid by the company for doing this work which was unauthor- ized. John Berti, who witnessed the exchange between Bu- cholz and Smallman, testified that the complete conver- sation was as follows: Mr. Bucholz approached Mr. Smallman and told him he was being fired. Mr. Smallman asked, why am I being fired. He told him it was for activity on company time that was unauthorized. Berti recalled that Bucholz identified the unauthorized activity, but did not recall what that activity was. Berti was also present when Smallman returned at 7:30 p.m. and requested his "termination papers." He was trying to obtain a written statement of the reason for his discharge. After it was decided not to give him anything in writing, Bucholz again stated the reason for discharge to Smallman. According to Berti's description of the second occasion, Bucholz simply stated the reason as "unauthorized activity on the previous Thursday" and he heard no specification of what that activity had been. Michael Primeggia's recitation of the stated reason for discharge is more circumscribed: Q. Would you please tell us what the discussion was, who said what? A. Mr. Bucholz informed Mr. Smallman he was being terminated, discharged for unauthorized activ- ity in the warehouse on Thursday. Q. Anything else said? A. That's basically what was said. I don't remem- ber all the minute details, but that's basically what was said. Presuming that a reason for discharge is not a minute detail, I note Primeggia's omission of any reference to any of the other reasons, such as misappropriation of company time. The reference to activity in the ware- house cannot be interpreted, I believe, as a reference to the time when the work was being done. It is a descrip- tion of place, not time. (Primeggia had no recollection at all whether at the second meeting that day the reason for discharge was repeated. He did not recall whether at the earlier meeting, Bucholz specified the nature of the "un- authorized activity.") Despite the limitation of the reasons for discharge to this one ground, or at most to a combination of the use of the grievance sheet and the expenditure of time in using it, other reasons for termination were advanced before the contract arbitrator. The contractual procedure governing Smallman's discharge required immediate notice to the Union of the employee's discharge and re- tention of the employee on the payroll, whether his serv- ices were utilized, if the Union demanded arbitration within 48 hours. The notice which Respondent sent to the Union gives the reason for Respondent's action as "refusing a direct order from a Supervisor, working on matters not related to his job at Key Food during normal working time and other reasons that have made him an unsatisfactory employee." Prior to the commencement of the hearing before the arbitrator, this statement of rea- sons was modified by deletion of the reference to "other reasons that have made him an unsatisfactory employee." In spite of the deletion, a number of reasons for dis- charge not asserted in this proceeding and not mentioned in the letter, as amended, were submitted to the arbitra- tor. The reasons furnished to the arbitrator, as is appar- ent from his decision, were Smallman's refusal to stop talking to workers during work hours; his continued ac- tivity; his interruption of the Employer 's operations; use by Smallman of grievance fact sheet forms of his own devising; distribution of fact sheets during work hours; picketing of the warehouse after Smallman's discharge; threats to picket stores that did business with Respond- ent, which were made by Smallman's friends and T.D.U. supporters and for which Respondent held Smallman re- sponsible; Smallman's attitude, caused by internal union activities, which he allowed to affect the Employer's op- eration; and Smallman's lack of concern about the effects his improprieties had on the Employer's operations. In the course of his brief testimony, Bucholz illustrated the confusion in the minds of Respondent's witnesses about what the objection to Smallman's behavior was supposed to be. He touched on a number of factors but left it unclear whether the objection was the use of an unauthorized form, misapplication of working time, the supervisor's (erroneous) impression that Smallman was resolving grievances without the participation of man- agement (though that would have been impossible), the amount of time being devoted to union matters, the amount of time being devoted to noting the facts on his form, or the conduct of union business on company time. There is a heavy emphasis in Stamler's testimony re- specting the amount of time that Smallman was devoting to the writing up of the grievances. While conceding that he did not keep Smallman under continuous obser- vation, Stamler estimated that over the course of the period on 23 May during which he observed Smallman talking to three different employees, Smallman had done no work at all from about 2 to 4:30 p.m. Nevertheless, he testified that that was not the reason he reported the in- cident to Bucholz. He reported it to Bucholz because Smallman had not resumed work when told to do so. This was a ground presented to the arbitrator. I note that it was not proven. Stamler conceded in the proceedings before me that he did not give a direct order to Small- man to go back to work: KEY FOOD STORES Q. at any point in your conversation with him, did you instruct or direct him to stop working on these grievance fact sheets and go back to work? A. I instructed him to start working because I hadn't seen him do any work yet. I didn't tell him to go back to work. I told him to start working and to process those or do what he had to do on his own time. As far as I could see, this was an illegal thing filling out sheets and walking around the warehouse when he was supposed to be doing his work. Q. When you gave him that instruction, what did he reply? A. He just [said] this is the procedure I must follow and he continued with Mike Rusigno at that point. That's why I went to the head supervisor. In fact, no supervisor gave testimony that any direct order to return to work had been violated. Bucholz' tes- timony was that within a very few minutes after he spoke to him Smallman obeyed his order. It is apparent from the foregoing that Stamler sought to justify the action taken against Smallman on several different grounds. At points in his testimony he seemed also to suggest that Smallman was going around solicit- ing employees to file grievances, instead of waiting until they came to him. At one point in his testimony his ob- jection seemed to be primarily to the filling out of the forms themselves. Stamler testified that neither the Com- pany nor the Union had a particular form for noting the facts of grievances and that Smallman told him that he had composed the form in order to process the griev- ances that he had. Stamler felt that Smallman, instead, should have proceeded immediately to take up the griev- ance with a supervisor. (Smallman did not bring any grievance to a supervisor that day.) Thus, the forms should have been filled out on his own time. Stamler emphasized the failure of Smallman to load his truck and, in reporting it to Bucholz, he complained that Smallman had been "doing these 1 hings and not selecting Stamler's participation in the event ended after Bu- cholz' conversation with Smallman, which Stamler de- scribed as follows: Mr. Bucholz reminded John Smallman that he had his work to do and not these union activities. At that time I think John said just about the same thing, when somebody pays me to do this on my own time I would do it. Archie told him you'll have to go to work now and he said something about seeing the chief shop steward Mike Marascia and straightening it out with him. There is thus a shift to an objection based on the fact, not that Smallman was writing up the grievance sheet, but that he was not doing his work. As he put it, "No, in my capacity as shop steward we had to write on occa- sion, but we also had to do our work." His objection was that Smallman had not done any work for 2 hours. He also testified that he objected to the omission of man- agement from the grievance sheet. 1067 I have quoted the explicit statement made by Respond- ent's counsel during the hearing respecting the ground asserted for Smallman' s dismissal. Yet, at other points in the hearing, he attempted to broaden the basis of Re- spondent's defense. In his opening statement, he asserted that Smallman did things in furtherance of a dissident faction that violated the union contract; "basically, it was going around on company time for two hours"; "proc- essing a grievance fact sheet for his purposes-TDU pur- poses-at a time when he was being paid in excess of $26,000 and refused a direct order not to do it on compa- ny time." In addition, complaint was made that he had used a grievance fact sheet that he made up himself and that was not a union document and not approved by either the Company or the Union; that he failed to finish his work that day; that picketing had occurred, with the implication that Smallman instigated it. Counsel sought to justify the discharge on the basis of "the totality of the thing." Some of counsel's statements in the course of final argument also seemed to show resentment at what was believed to be Smallman's instigation of grievances. The fact that different reasons for Smallman's dis- charge were given at different times and places is signifi- cant, not only because it warrants an inference that the reason advanced in these proceedings is pretextual, but because a question arises whether Smallman may have been deprived of due process in connection with the ar- bitration proceeding, discussed below. I am not unmind- ful of certain testimony by Smallman that appeared to me to be evasive at the time it was given. Smallman was asked if, prior to 11 June (the first day of the arbitra- tion), any management representative told him that he had been terminated for refusing a direct order from a supervisor. His answer was, "I don't believe so." He went on to testify that he could not recall whether anyone had made such a statement to him and conceded, "It may have been said and I don't recall it." In the light of all the testimony, however, I conclude that the reason or reasons stated to him at the time of his discharge and the reason stated in these proceedings do not match the battery of charges that were hurled at Smallman in the arbitration proceeding. I am left with the impression that at various times the Respondent' s witnesses have ex- pressed, as reasons for their action, whatever seemed most apt to them at the moment of utterance. Convincing evidence of Respondent's anti-T.D.U. bias is found in its overt assistance to the Union in permitting distribution of a prounion publication in the warehouse, in assisting the distributions, and in making available fa- cilities for a meeting in support of the Union in the ware- house on company time which 50 employees attended. Employees who were distributing T.D.U. literature were harassed, as previously described. Tudisco was unlawful- ly threatened with discharge because of it and his activi- ties were subject to unlawful surveillance . Respondent's assertion that prounion literature was distributed after employees punched out is contradicted by the evidence showing distribution to them as they punched in. In ad- dition, Michael Rusigno testified that he was given a copy of the Key Review by Sal Alberta, a second-shift foreman, who took it out of the desk. John R. Asem re- 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ceived a copy from Bobby Anderson, a day-shift supervi- sor, one day in early July as he was about to leave; he was still not punched out , and was therefore on company time. He testified, without contradiction from any of Re- spondent's foremen, that the employees who published the Key Review were able to leave stacks of the papers at the desk near the timeclock-which was also near the lunch room-because they had spoken to Allen Newman, Respondent's chief executive, or to Czajka, and thus had permission to start the paper. Michael Viverito testified that Anderson , another su- pervisor, expressed disapproval of the views published in the Free Key Press, the pro -T.D.U. publication, and Bu- cholz warned Viverito to be "careful" and to distribute it on his own time, saying, "We don't want any trouble here." In reviewing the circumstances of the actual dismissal, I noted that Bucholz seemed satisfied that Smallman had returned to work. Bucholz testified to another significant circumstance : that not all of the time Smallman spent away from work on the afternoon of 23 May was spent processing grievances; he spent 1 hour straightening out a matter pertaining to an employee's vacation time (which Bucholz had told him to straighten out). Conse- quently, only 1- 1/2 hours, at most, had been spent on the grievances. Another important factor is that the treatment accord- ed Smallman differed markedly from that accorded other employees in two respects : First, as a shop steward, he was not permitted to conduct his business on company time or by use of a fact-gathering sheet, though other shop stewards, and Smallman himself up until 23 May, had been permitted to process grievances on company time and had normally taken whatever notes they needed to do that work. Second, though procedures were not uniform, many employees had not been discharged until after they had received warnings, but nevertheless per- sisted in their misconduct , whereas Smallman, a shop steward with superseniority , was given no warning. John Tormey had been a shop steward for 2 years, from 1981 to 1983 . During this period he was a selector- loader. He testified that he handled grievances, including the interviews with the employees prior to taking the matters to management , on company time, and on sever- al occasions, as a result of the time spent in such activity and handling other problems , ended his shift without having completed his assigned work . He was not disci- plined and received no warning . He testified that though grievance handling generally reduced his worktime by about an hour a day because as a shop steward he cov- ered four different departments , he was never docked for the time so spent. The only limitation was that he was told not to talk to the men too much (this, usually, by Paul Conselyea). Tormey also testified that "pullbacks" and assignment. of work to others because someone does not finish loading a truck is not an uncommon event, but an everyday occurrence that is not limited to shop stew- ards. Respondent's emphasis on Smallman's failure to finish loading his truck is thus indicative of disparate treatment. He conferred with grievants on company time and made informal notes . On more than one occasion, Conselyea came by and told him he talked to the men too much and should go back to work and leave the men alone, Tormey always told him he was doing his job as shop steward, whereupon Conselyea would leave with- out making any further attempt to disrupt the process. Tormey was never disciplined, warned, or docked. Tormey observed the working methods of the two shop stewards who preceded him and the three who followed him. They all conferred privately with the men and made notes . Some of Tormey's conferences with the men prior to taking the matter to management had lasted as long as an hour. No employee with whom he conferred was docked . As in Smallman's case, there were situations both in which the men came to him with the grievances and in which he went to them, as when he would hear from a third party that a man had problems or was in trouble. Stamler, a former shop steward for 2 years , testified that Respondent had not issued written instructions on the processing of grievances, but that oral instructions were for the supervisors to cooperate . Both as a shop steward and as a supervisor, Stamler had received in- structions from the president of the Union and from management to try to work problems out in the ware- house before getting the Union itself involved . He heard this from Ribustello and from other union delegates. The stewards were to see management right away when there was a problem. This was made known to both stewards and supervisors. When he was a shop steward, no one was ever docked whether supervisors were involved or not. Obviously, therefore, performance of shop stewards' functions was to be carried out on company time. He conceded that shop stewards occasionally are unable to complete their assigned duties because of the time they have devoted to work as shop stewards, but insisted that though it happens sometimes, "Not on a lot of occa- sions." It had happened with other shop stewards. So far as he knew, the situation on 23 May was the only time it had ever occurred with Smallman. Paul Conselyea began his testimony by contradicting Stamler. He testified that he was told by management, including Czajka, on "quite a few" occasions, that shop stewards had to handle union business, including griev- ances, on their own time, and he testified that he passed that word along to the shop stewards. (Conselyea 's refer- ence to the matter as a factor in Smallman's discharge, though it was not asserted as a ground of discharge, is just another example of the muddled and shifting founda- tion of Respondent's case for discharging Smallman.) I do not credit Conselyea's testimony. It is in direct conflict with credible testimony by others, including Stamler, that company policy was to handle problems immediately. Conselyea himself conceded that it was the practice for employees to come to the shop stewards to discuss grievances as soon as problems arose, even if it was on company time, and that no one was ever docked for discussing a grievance with a shop steward on com- pany time, even if a supervisor was not involved. As to those grievances in which management was involved, he was, of course, compelled to concede that these were properly handled on company time. He testified, "There was no quidelines to handle the situation. We tried to KEY FOOD STORES solve them immediately and as quick as possible." He also conceded that there was no docking of pay even in situations in which only the steward and employees were involved, and that no purported rule had anything to do with the length of the conferences involved. Conselyea's concession that management personnel never issued any statement, advice, or rule relative to the amount of working time that could be devoted to the processing of grievances was echoed in the testimony of Santarelli, Tudisco, Rusigno, Srnallrian, Michael Viver- ito, John Tormey, and John R. Asem. Their testimony covered their own experiences as shop stewards or the practices followed by shop stewards whom they had ob- served and, in some cases, both. It is apparent from their testimonies that company time was defined as the time between punching in and punching out; that inevitably stewards had preliminary conferences alone with the em- ployees who had problems and then conferred with the supervisors, and that the time required at all phases of the handling of the grievance varied widely; that some stewards made few or no notes; and that others made notes at some length. John R. Asem, a selector on the third shift, testified that conferences are conducted as soon as the problem arises; management personnel have told him to hurry up the process, but have never told him not to conduct such business on company time or threatened him with dis- charge or discipline if he did not stop a conference and return to work; the prodding by supervisors is not geared to the actual duration time of conferences because the supervisors are mobile and make the same suggestion whenever they see a conference in progress, and as a rule cannot know conferences' duration because they are riding around on carts. Asem's practice has been to advise them that he was processing a grievance, and they normally have either expressed an interest in the problem or simply told him not to take 100 long. A supervisor named Maloney who was in charge of the third shift in 1984 gave Asem directions to handle grievances on the spot or as soon as possible, so that they do not get out of hand. Asem further testified that note-taking is a regular part of a shop steward's job and is inevitably done on company time. Michael Viverito gave similar testimony, noting in ad- dition that for 2 years he had always handled grievances, during which he made notes, during working hours; that that was the way shop stewards worked; that most griev- ances were handled in periods that varied from 10 min- utes to 1 hour, on company time, and that he has been involved in some lengthy grievances, one of which lasted between 3 and 4 hours. His situations all involved super- visors. There was no clocking system for time spent on grievances. That grievances were customarily processed on com- pany time, at all stages, both before and after involve- ment of management supervisory personnel, is estab- lished overwhelmingly, and in part by testimony from Respondent's own witnesses. Even Santarelli's own prob- lem, when he was accused of distributing the Free Key Press on company time, was handled by the shop stew- ard, Mazurkewitz, on company time. 1069 Finally, the very top management of the Company was involved in Smallman's dismissal. The order came to Bucholz on Sunday, 26 May, from the controller, Czajka, who was in charge of day-to-day handling of the Company's labor relations, was deeply involved in the settlement of grievances, and who reported directly to Allen Newman, the chief executive officer. John Berti, director of security, who reports directly to Newman, was instructed by Newman to be present when Bucholz fired Smallman. There is ample evidence that both Newman and Czajka were familiar with Smallman's role in the T.D.U., and it is apparent from the comments of Respondent's counsel, in his opening statement quoted here, that affiliation with the T.D.U. was considered a distraction from the Company's work and disruptive of an orderly working atmosphere. Czajka testified that he had filed away copies of the Free Key Press, having re- ceived and read them. A penchant for interfering in the business of the union shop stewards seems to have been endemic among Re- spondent's supervisors. Michael Viverito testified that Paul Conselyea told him, on an occasion when he was defending an employee against what appeared to be an abuse of authority by a supervisor, that some employees did not deserve to be defended, and that he was repre- senting the wrong people. Their meddling in the internal fight between the T.D.U. and the incumbent union offi- cials has been noted above. 4. Conclusion I find the reason put forth by Respondent for having fired Smallman to be incredible. Because I reject it as pretextual, I am compelled to infer that he was really discharged because of his activities in support of the T.D.U., which was the reason stated by the General Counsel. The inference is supported by a preponderance of the evidence showing Respondent's bias against the T.D.U., disparate treatment of Smallman, and the in- volvement of the top echelons of Respondent's manage- ment. Section 8(a)(3) provides that it shall be an unfair labor practice for any employer by discrimination in regard to hire or tenure of em- ployment or any term or condition of employment to encourage or discourage membership in any labor organization .. . . Smallman's support for the dissident T.D.U. brought him within the protection of this provision of the Act. United Parcel Service, 230 NLRB 1147 (1977). Accordingly, I find that the Respondent, in discharg- ing Smallman, violated Section 8(a)(3) and (1) of the Act. D. Threats of Discharge and Commencement of Arbitration Proceeding Against Joseph P. Tudisco It is alleged that on 28 August, the Respondent's con- troller, Walter J. Czajka, threatened employees with dis- charge because they filed a charge and gave testimony under the Act, and initiated an arbitration proceeding to 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD discharge Tudisco because Tudisco had filed a charge and given testimony under the Act. Respondent contend- ed that it sought to discharge Tudisco because he know- ingly filed a false charge against Respondent with the NLRB in order to injure Respondent, and that the re- quest for an arbitration of Tudisco's proposed termina- tion was in accordance with the terms of the collective- bargaining agreement. The Respondent's position with respect to its request for arbitration to fire Tudisco puts it in the position of having to prove that Tudisco knowingly filed a charge with the Board that was false. It is settled that employers may not "use grievances as a sword to gain immunity from the consequences of harassment." Caterpillar Trac- tor Co., 242 NLRB 523, 530 (1979). Once the General Counsel has proved the threat to discharge Tudisco on the basis of his having filed a charge with the Board, the burden is on the Respondent in this proceeding, not in the arbitration, to show the falsity of the charge brought by Tudisco and Tudisco's knowledge of such falsity. The gravamen of the offense for which Respondent claims the right to discharge Tudisco is harassment with intent to injure the Respondent, and this is what the Respond- ent must prove. Caterpillar Tractor Company, supra. The record is utterly barren of any evidence that would tend to establish that Tudisco filed an unfair labor practices charge with the NLRB against Respondent knowing that the same was false. Notwithstanding the contention of Respondent's counsel during final argu- ment that such conduct on his part had been established, in fact no attempt was even made to prove it during the course of the hearing. How far from proving it the Re- spondent strayed is apparent from the lack even of evi- dence that would tend to establish when the charge was filed and what the exact nature of the charge was. Re- spondent's counsel indicated that some evidence of this nature had been placed before the arbitrator. That does not put it before me, and there has been no arbitration yet with respect to Tudisco. If the evidence emerged in the Smallman arbitration, it was clearly irrelevant. The failure of proof on this point is so complete that I con- clude that Respondent had no basis for any asserted belief that Tudisco knowingly filed a false charge and, in fact, did not so believe. The Respondent's asserted reason having been determined to be pretextual, I con- clude that Respondent seeks to fire Tudisco for the un- lawful reason imputed to it by the General Counsel. The Respondent's contention that it had just cause to fire Tudisco because he wilfully filed a false charge with the NLRB directly conflicts with the prohibition con- tained in Section 8(a)(4) of the Act against any interfer- ence by an employer with an employee's right to file such a charge or to testify in a proceeding conducted with respect to a charge. An employer cannot set itself up as the judge of the propriety of the employee's action; that function is vested in the Board. The Respondent raises the specter of an employee har- assing an employer by deliberately and repeatedly filing false charges. The argument is irrelevant. The Respond- ent in this case seeks to fire an employee who has filed only one charge and there is not a scintilla of evidence in the record to establish that Tudisco knew that the charge as filed did not conform to the provable facts of the case he proposed to present to the Board or that he had or has any intention to file false charges or additional charges. Consideration of all the circumstances of this case in conjunction with the provisions of the collective-bargain- ing agreement make it hard to view the request for arbi- tration as anything other than a threat of discharge. I find the General Counsel's argument highly persuasive on this point. She calls attention to the contractual provi- sion for summary discharge for certain limited reasons and compares it with the procedure provided for all other cases. The agreement provides that on discharge of an employee, the employee will continue to receive pay provided the Union demands arbitration within 48 hours. She asks, quite rightly I think, what are we to make of the procedure followed in this instances, whereby the Respondent has kept Tudisco on the job and has itself served a notice of arbitration seeking permission to dis- miss him? The notice of arbitration expressly states that Respondent will seek Tudisco's discharge. The Respondent asserted that the procedure it fol- lowed with respect to Tudisco was its regular practice. I have no evidence that the collective-bargaining agree- ment had ever been modified or that any new or existing practice is pertinent in this respect. Had the agreement provided for the procedure the Respondent followed, or if such a practice were sanctioned, it might well be argued that a finding that the notice of arbitration consti- tuted a threat of discharge would vitiate the collective- bargaining agreement and deprive the parties of the rea- sonable arrangement for which they had contracted, sub- jecting the employer to the risk of prosecution for viola- tion of the Act every time it invoked the agreed proce- dure. That is a patently nonsensical result that requires me, in the light of all the other circumstances, to view the procedure followed by Respondent, and not provid- ed for in the contract, as an attempt to intimidate Tu- disco by threatening him with discharge. Furthermore, the notice of arbitration constituted an il- legal threat of discharge as a result of its substantive con- tent. On its face, it is issued because Tudisco invoked the processes of the Board. This constituted a prima facie violation of Section 8(a)(4) of the Act. The question of whether the charge filed by Tudisco was true or false was squarely within the issues of this proceeding. It is a matter not properly referrable to the contractually appointed arbitrator, notwithstanding the provisions of the collective-bargaining agreement, be- cause 8(a)(4) violations do not fall in the class of those in which deferral is sanctioned. International Harvester Co., 271 NLRB 647 (1984). Accordingly, I find that the Respondent has violated Section 8(a)(4) of the Act. E. The Affirmative Defenses 1. The Smallman arbitration It is alleged that in violation of Section 8(a)(3) and (1) of the Act, Respondent discharged Smallman on 28 May because he joined and assisted the T.D.U., because of his KEY FOOD STORES 1071 activities as a shop steward for the Union, and because he engaged in other concerted protected activities. Re- spondent concedes the discharge and refusal to reinstate and alleges affirmatively that pursuant to the collective- bargaining agreement, an arbitration was conducted on 20 June wherein the arbitrator found just cause for the discharge, and demands that the charges be dismissed under the doctrine of Spielberg MFg. Co., 112 NLRB 1080 (1955). If "the proceedings in which it was issued appear to have been fair and regular, all parties had agreed to be bound, and the decision is not clearly repugnant to the purposes and policies of the Act" then I am required to defer to it. Spielberg Mfg. Co., supra at 1082. The Gener- al Counsel contends, however, that this is not a case for deferral. The arbitration proceeding was initiated by a union grievance dated 30 May alleging that Smallman had been improperly dismissed. The arbitrator's decision and award, a copy of which was made part of Respondent's answer, summarized the evidence adduced at the hearing before him and set forth his factual findings. The testi- mony of the Employer's witnesses was stated to have been to the effect that on 23 May Smallman was distrib- uting "Grievance Fact Sheets" which he had prepared himself; he was directed to stop doing so during working hours and to do it on his own time. Instead of ceasing this activity, he continued what he was doing and re- mained away from the job for 2-1/2 hours. Following his dismissal, Smallman and others picketed in front of the warehouse; the witnesses believed that Smallman was also responsible for picketing that occurred at four stores served by Respondent, in which he did not participate. The Union introduced testimony to the effect that Small- man was processing grievances in his capacity as a shop steward, an activity that had customarily been permitted on company time with participation by management rep- resentatives. Smallman testified that he had reviewed grievances during working hours without objections from the Company. He conceded that he had been or- dered to return to work by Bucholz and had responded that he would do so as soon as he finished with the grievance forms. According to the arbitrator, "He fur- ther acknowledged that he had been instrumental in causing the picketing and had participated in it because he felt that he had been wrongfully dismissed." The arbitrator concluded that the manner in which Smallman had been discharged violated the collective- bargaining agreement , entitling Smallman to lost earnings for the period from 27 May to the date of the award, 11 July, but that the dismissal itself was justil ied, for six rea- sons which the arbitrator set forth: (1) Smallman acted improperly when he refused to stop talking to workers during work hours; he was obli- gated to return to work as directed. (2) His continued activity and interruption of the Em- ployer's operation was not excused by past practice re- specting grievance processing. (3) He used forms of his own devising: "Further, the forms were not approved nor submitted to the Union or to the Employer for comment or approval. Smallman stated that he had, devised it and had used material from other grievance forms. There was no need for him to have insisted on continuing to personally distribute them during work hours." (4) Picketing of the warehouse, which Smallman "seemed able to control," was inappropriate. (5) The decision to picket the stores was intended to coerce the Employer and bypass the contractual griev- ance procedure and "could have had disastrous conse- quences." (6) As a result of internal union political activities, "Smallman was allowing his attitude to affect the Em- ployer's operation." His "improprieties were extremely serious and he did not seem to be concerned about the effect it had on the Employer's operation and the jobs of many employees." (The context of this remark makes it clear that the arbitrator's reference is to Smallman's "im- proprieties" after, as well as before, his discharge.) On the basis of the facts thus found, the arbitrator made an award to the effect that, "The Employer has just cause to dismiss John Smallman. The Employer is directed to pay to Smallman the lost earnings from the date of dismissal, May 27, 1985, to the date of this Award." Where a collective-bargaining agreement provides for arbitration of disputes between employees and the em- ployer, deferral to arbitration by this tribunal is the pref- erable course in appropriate situations, inasmuch as the protection of the Act remains available. The Board has noted that deferral is "merely the prudent exercise of re- straint, a postponement of the use of the $oard's process- es to give the parties' own dispute resolution machinery a chance to succeed. The Board's processes may always be invoked if the arbitral result is inconsistent with the stand- ards of Spielberg. (Emphasis supplied.) United Technol- ogies Corp., 268 NLRB 557, 560 (1984). Those standards do not require, for deferral to an arbitrator' s decision, that there be agreement with the arbitrator's findings. It is not even necessary for an arbitrator's decision to be to- tally consistent with Board precedent. Deferral will be declined only when an arbitrator's decision is "palpably wrong," which means that it is not susceptible of an in- terpretation consistent with the Act. The Board has elu- cidated the guidelines. An arbitrator is to be deemed to have adequately considered an unfair labor practice if the contractual issue before him is factually parallel to the unfair labor practice issue and if he was presented generally with the facts relevant to resolving the unfair labor practice. The burden is on the General Counsel or the Charging Party to show that the standards have not been met and to demonstrate what the defects were in the arbitral process or award. Olin Corp., 268 NLRB 573 (1984). I think the General Counsel has successfully made such a showing, on the basis of the testimony of Small- man, facts stipulated to with counsel for Respondent, and the text of the award itself, which reveal serious proce- dural and substantive infirmities in the award. The issue submitted to the arbitrator, in accordance with an agreement reached at the outset of the arbitra- tion, was whether Smallman had refused a direct order from a supervisor and worked on matters not related to his job at Key Food during normal working time. Re- 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent's counsel read the Respondent's discharge notice letter, as modified, into the record of these pro- ceedings, and the reason for discharge is stated therein as follows: "Mr. Smallman was terminated for refusing a direct order from a supervisor, working on matters not related to his job at Key Food during normal working time." Respondent's counsel stated, on the record: And the reason for it was to make it crystal clear that the only issue here was this man taking it upon his own, to create a form from a T.D.U. manual, without anyone's authority and permission, spend- ing an-and he admitted himself, admitted at least two and a half hours. Going around , filling these things out. He added: Every other issue was deleted at the very outset. Not later on at all. In Betts v. Brady, 316 U.S. 455 (1942), the Supreme Court noted that questions of due process must be deter- mined a fresh in each case, with all the circumstances being taken into consideration. Though the Court's ruling in that case was subsequently repudiated in Gideon v. Wainwright, 372 U.S. 335 (1963), Justice Roberts' ob- servations remain valid as a characterization of the con- siderations underlying a determination of due process. The phrase formulates a concept less rigid and more fluid than those envisaged in other specific and par- ticular provisions of the Bill of Rights. Its applica- tion is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, consti- tute a denial of fundamental fairness , shocking to the universal sense of justice, may, in other circum- stances, and in the light of other considerations, fall short of such denial. [316 U.S. at 462.] The contractual issue was factually parallel to the unfair labor practices issue, both revolving about the question of whether Smallman was discharged for justifi- able business reasons or because of his pursuit of an ac- tivity protected by the Act. The arbitrator was presented with the facts relevant to resolution of the unfair labor practices issue, as is apparent from the summary con- tained in the award of the evidence that was placed before the arbitrator. Thus, the issues relating to Smallman's discharge would have merited deferral and the arbitrator heard evidence on them. Thus, two of the basic requirements for deferral have been met. Mere disagreement with the arbitrator's conclusion would be insufficient basis for de- clining to defer to the arbitrator's award. See Anderson Sand & Gravel, 277 NLRB 1204 (1985). However, I find that the arbitrator's decision is not susceptible of an in- terpretation that is consistent with the Act, and is there- fore repugnant to the Act, and I find that the proceed- ings were not "fair and regular," which precludes defer- ral. Spielberg Mfg. Co., supra at 1082. The arbitrator expressly found that Smallman's dis- charge was justified because he refused to stop process- ing grievances during working hours. The arbitrator found that past practice sanctioned the handling of griev- ances during work hours, referring to "[H]is assertions and the additional evidence which indicated that in the past, grievances were handled during the work hours" yet he disallowed that circumstance as an excuse for Smallman's action and in effect sustained Smallman's dis- charge though it was based directly on his having en- gaged in concerted protected activity in a manner that conformed to the past practice of the parties and a sub- sisting collective-bargaining agreement. The arbitration award was therefore repugnant to the Act. Equally im- portant, it appears to me that the proceedings were not "fair and regular," there having occurred a denial of due process because Smallman was not adequately and timely advised of the issues he would be confronted with at the arbitration hearing and because the hearing itself was unfair and the decision palpably in error. In Wolf v. Colorado, 338 U.S. 25, 27 ( 1949), Justice Frankfurter commented: Due process of law thus conveys neither formal nor fixed nor narrow requirements. It is the compendi- ous expression for all those rights which the courts must enforce because they are basic to our free so- ciety. . . . Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights. Smallman was not given proper notice of the charges he was expected to meet. He had been told by Bucholz on 27 May that he was being fired for using the unau- thorized grievance forms. When he appeared at the arbi- trator's office on 11 June, he learned that other reasons for his discharge were being pressed. Counsel for Re- spondent read to the arbitrator the notice of Smallman's discharge that had been sent to the Union, and that con- cluded, "Mr. Smallman was terminated for refusing a direct order from a Supervisor, working on matters not related to his job at Key Food during normal working time and other reasons that have made him an unsatisfac- tory employee." The last phrase, relating to "other rea- sons," was deleted only after Ribustello raised questions about its meaning and what specifically was covered by it. Even after the last phrase ("and other reasons that have made him an unsatisfactory employee") had been stricken from the letter, by agreement between Respond- ent and the Union, other grounds were in fact pressed on the arbitrator during the hearing, as is apparent from his findings. The manner in which the arbitration hearing was con- ducted and decided is even more disturbing. Though the issue was whether Smallman had been justifiably dis- charged on 27 May, the asserted ground of discharge that most impressed the arbitrator related to events that had transpired thereafter. This was the picketing-not mentioned to Smallman when he was fired (it had not happened yet), not mentioned in the letter, and excluda- ble as a ground both by reason of the express limitation KEY FOOD STORES 1073 of the issues to the grounds stated in the letter to the Union and by the fact that the picketing, having oc- curred after the discharge, could not have been a reason for the discharge. Walter Czajka testified that the evidence presented to the arbitrator included a letter dated 10 June sent to Allen Newman, the chief executive of Key Foods, by the "Steering Committee of the Long Island Chapter of T.D U." The letter demanded Smallman's reinstatement and concluded, "Should you decide to pursue these erro- neous charges [against Smallman], we will continue to support informational picketing to be extended to your patrons at select Key Food stores until Mr. Smallman is back to work." Evidence of purported misbehavior which occurred almost 3 weeks after Smallman's discharge manifestly could not have influenced the decision to fire him and should not have been received and considered by the ar- bitrator. This was a denial of due process that was both procedural and substantive. Recognition of a denial of due process has, of course, never been limited to those instances in which there has been departure from proce- dural regularity. There is a basic lack of fairness which is apparent from the arbitrator's decision, whether viewed as a denial of due process or simply as a failure to accord Smallman the "full and fair hearing" envisioned by the Spielberg doctrine. The arbitrator's uncritical acceptance of Respondent's viewpoint is apparent in the arbitrator's mischaracteriza- tion of the documents prepared and used by Smallman as "grievance forms" when they were merely forms to embody factual summaries. His biased approach is fur- ther evident in the heavy emphasis placed by him on the postdischarge picketing and his worry about the "disas- trous consequences" that might have ensued, which were considerations not relevant to the immediate issue of mo- tivation for the discharge; his reference to "internal Union political activities which were critical of some of the Union's representatives" (a position which is repug- nant to the Act and a matter with which he should not have concerned himself); his reference to the purported fact that "Smallman was allowing his attitude (critical to the Union) to affect the Employer's operation," a conten- tion not made in the notice of discharge sent to the Union and embracing a matter with which the arbitrator should have had no concern; and in his refusal to take into consideration the fact that Smallman's insistence on talking to the workers was nothing more than assertion of his right to complete concerted activity protected by the Act and provided for in the collective-bargaining agreement. The desirability of deferring to an arbitrator's decision, when appropriate, has never meant that the Board relin- quishes its interest in the fairness of the result achieved in the case. The manner in which the arbitration is con- ducted has always been a matter of direct concern to the Board. In United States Steel Corp., 264 NLRB 76, 79 (1982), an issue was held not to have been resolved by an arbitrator who framed the question presented to him "in such a manner as to make only one answer possible." In Inland Steel Co., 264 NLRB 84 (11982), there was no de- ferral in a situation in which the Board found a failure to follow a "clear precedent interpreting the Act" with the result that the arbitrator arrived at a decision which was "palpably wrong." In General Dynamics Corp., 271 NLRB 187, 190 (1984), jurisdiction was retained follow- ing deferral to the arbitrator, among other purposes, "for the purpose of entertaining a motion for further consider- ation on a showing that . . . (b) the grievance-arbitration procedure has not been fair and regular or has produced a result repugnant to the Act." In Combustion Engineer- ing, 272 NLRB 215 (1984), the Board reviewed the arbi- trator's findings to determine whether they were repug- nant to the Act. In holding that the decision whether to defer depends on whether deferral will impinge upon the parties' rights under the Act, not on whether the same result would be reached, it expressly noted that, "[N]o party alleges that the proceedings before either Arbitra- tor Pettico or Arbitrator Foy were not fair and regular." (Id. at 216.) The affirmative defense asserting that there should be deferral to the arbitration award is accordingly dis- missed. 2. Tudisco's failure to demand arbitration In response to the complaint based on Tudisco's charge that his rights under Section 7 of the Act had been infringed, the Respondent pleaded affirmatively that the complaint was premature because Tudisco was obli- gated, in the first instance, to request arbitration. The collective-bargaining agreement is cited as the source of that obligation. The Respondent would be correct if the matters in- volved were contractual disputes under the collective- bargaining agreement. It is to such disputes that the arbi- tration clause is applicable. The charge does not involve matters covered by the contract, but unlawful surveil- lance and suppression of distribution of T.D.U. literature by unlawful threats. The alleged surveillance does not bring into play the contractual provisions relating to su- pervision and direction of employees' work. Out-and-out violations of the Act are alleged, not merely "a dispute arising between the employee and the employer." It is difficult to envisage the means by which Respondent would invoke arbitration with respect to the matters em- braced in Tudisco's charges, considering that the proce- dure called for in the collective -bargaining agreement is for "the Union and the Employer . .. [to] make every effort to adjust such dispute amicably and as speedily as possible." Only thereafter is a dispute to be referred to the arbitrator. In the present case, the Respondent has denied surveil- lance and does not assert a contractual right to observe employees walking up and down outside the entrance to the warehouse. Tudisco is not claiming a right to do so on the basis of the contract, but on the basis of Section 7 of the Act. There is no contractual issue for an arbitrator to decide in connection with the surveillance charge. The situation is different, however, with respect to Tu- disco's allegations that Stamler sought to suppress distri- bution of T.D.U. literature by threatening discharge and other reprisals. All parties to the incident alleged were inside the warehouse during the time when the shifts 1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were changing. The evidence tends to show that Bu- cholz sought to prevent unauthorized activities which would diminish productivity during working time, and Stamler entered the locker room attempting to follow Bucholz' orders. The crux of the issue raised by their ac- tions is whether Bucholz and Stamler were doing some- thing the contract authorizes or were interfering with employees' rights under Section 7. An arbitrator would have a contractual question presented to him, in the course of which he would also consider the unfair labor practice aspects of the case. This is an arbitrable dispute which should be referred to the contract arbitrator in ad- vance of a hearing in this tribunal. Accordingly, the affirmative defense is dismissed as to the charge of surveillance, but is sustained, and the com- plaint is dismissed, with respect to the charge of threats of discharge and other reprisals. 3. The claim that Tudisco lost his right to statutory protection By reason of his misconduct in knowingly filing a false claim, according to the Respondent, Tudisco "lost the protection of the Act, including Section 8(a)(4) thereof." By way of affirmative defense, the Respondent has raised the question of whether the Board will lend its as- sistance to a complainant who has lied to it and present- ed a false claim . It is important in considering this aspect of the issue to distinguish between rights and remedies. Whatever the employee may or may not have done so far as veracity is concerned, his right to bring charges before the Board and testify in Board proceedings is so vital to attainment of the purposes and policies of the Act that the right cannot be permitted to be curtailed at the Employer's discretion. In this case, Respondent con- cedes that it wishes to fire Tudisco for the very reason that he filed a charge. It thereby violates Section 8(a)(4) of the Act. The point at which we undertake determina- tion of the appropriate remedy to achieve the purposes and policies of the Act is the time to consider whether the charge filed by Tudisco was false and was filed mali- ciously and with knowledge of its falsity. As Tudisco has not been fired yet and no question of reinstatement exists, the question which has to be decided now is whether the Respondent's request for arbitration of its intended discharge of Tudisco should be nullified. It should be. The danger inherent in permitting the merits of a grievance or charge filed with the Board to be the basis of an employer's defense is apparent: the validity of the grievance or charge should be litigated in the proceed- ings invoked to resolve them, not in other proceedings involving fundamentally different issues. The Respond- ent's contention herein has been rejected by the Board in other types of cases in which the employees' good faith in invoking the aid of the Board has been brought into serious question. In Caterpillar Tractor Co., 242 NLRB 523 (1979), the employer contended that its legitimate interest in con- serving working time empowered it to discipline employ- ees who filed repetitive grievances. In rejecting this con- tention, the Board approved the decision of the adminis- trative law judge which noted that the merits of a griev- ance are irrelevant in determining whether a right is pro- tected under the Act. The Respondent has remedies if the employee engages in unwarranted harassment. Its at- tempt to discharge Tudisco for filing a claim is an exam- ple of that. It does not, however, warrant depriving Tu- disco of the right to bring charges based on alleged vio- lations of the Act by the Respondent. Two wrongs do not make a right, especially when the responsibility for effectuation of the purposes and policies of the Act is placed by law with the Board, not with either of these parties. CONCLUSIONS OF LAW 1. Respondent Key Food Stores Cooperative, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (4) of the Act by threatening an employee, Joseph P. Tudisco, with discharge through the medium of initiating an arbi- tration proceeding seeking termination of his employ- ment because he filed a charge under the Act. 4. Respondent violated Section 8(a)(1) of the Act by: (a) Threatening an employee, Joseph Tudisco, with discharge if he distributed literature for Teamsters for Democratic Action in the warehouse on company time, without having previously promulgated any rule prohib- iting such practice. (b) Engaging in surveillance of employees distributing T.D.U. literature outside the Respondent's warehouse. 5. Respondent violated Section 8(a)(1) and (3) of the Act by discharging, and thereafter refusing to reinstate, John D. Smallman because he joined and assisted a dissi- dent union organization and engaged in intraunion activi- ties and because he performed duties as a shop steward for the Union. 6. The Respondent did not commit any violation of the Act except as hereinabove found. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the Act, I shall recommend that the Respondent be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including the reinstatement of John D. Small- man. However, the fact that Smallman picketed the Re- spondent's warehouse requires some comment . On exam- ination by the General Counsel, Smallman testified that after his discharge, he and other members of the T.D.U. conducted informational picketing around the warehouse in order to inform the employees of the fact that he had been discharged and the surrounding circumstances. He disclaimed responsibility for picketing at other locations, KEY FOOD STORES 1075 and confined his own participation to the picketing at the warehouse itself. Respondent has been bitterly critical of Smallman be- cause of these activities and cited them as justification for his discharge in the proceedings before the arbitrator. It might be argued that such activities would have justi- fied Respondent's refusal to reinstate him. See Clear Pine Mouldings, 268 NLRB 1044 (1984). However, the ques- tion of reinstatement might never have arisen except for the Respondent's violations of the Act and its wrongful discharge of Smallman. Respondent's complaint that Smallman bypassed the contractual arbitration provisions by picketing cannot be taken seriously when Respondent itself ignored the contract provisions by firing him sum- marily, without pay. Furthermore, the picketing was not an issue in these proceedings and only came up because of the Respondent's own confusion about its contentions regarding the basis for Smallman's discharge. The facts respecting it were not fully developed and there is no evidence in the record whether he was or was not in- volved in picketing at any location other than the ware- house. It has not even been determined if the picketing was anything more than informational picketing. There is, therefore, no adequate factual basis on which I can take the picketing into account in fashioning a recom- mended remedy. I shall, therefore, follow customary remedial proce- dures and recommend that the Respondent be directed to make John D. Smallman whole for any loss of earnings and other benefits that he may have suffered by reason of his discharge on 27 May 1985 and the failure of the Respondent to reinstate him thereafter, with backpay to be computed it the manner prescribed in F . W . Wool- worth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). I further recommend that the Re- spondent be required to remove from its records any ref- erences to the unlawful discharge of Smallman and pro- vide him with written notice of such removal and that his unlawful discharge and layoff will not be the basis of any further action against him. [Recommended Order omitted from publication.]