Albertsons, Inc.

ALBERTSONS, INC. Albertsons, Inc. and United Food and Commercial Workers International Union, AFL-CIO, Local No. 7.' Case 27-CA-5891 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PI NEI.IO On February 5, 1980, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, counsel for the Re- spondent filed exceptions and a supporting brief, and counsel for the General Counsel filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Albertsons, Inc., Security, Colorado, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. MEMBER PENELLO, dissenting: When this case was previously before the Board on Motion for Summary Judgment, I voted to defer to the arbitration award upholding that the award fully meets the Board's long-established standards for deferrals et forth in Spielberg Manu- facturing Company, 112 NLRB 1080 (1955). The ar- bitration proceeding was fair and regular, all par- ties agreed to be bound, and the award-contrary The name of the Charging Party, formerly Retail Clerks Internation- al Union Local No. 7, is amended to reflect the change resulting from the merging of Retail Clerks International Union and Amalgamated Meatcut- ters and Butcher Workmen of North America on June 7, 1979. 2 In view of the Respondent's clear admission. set forth in Smith's em- ployee status report showing Smith's protected activities to be a moving cause of her discharge, it is apparent, contrary to our dissenting col- league, that the arbitrator failed to give any consideration or weight to Smith's protected concerted activity and that his conclusion that Smith was terminated for "just cause" is repugnant to the purposes and policies of the Act. S. Luke's Memorial Hospital. Inc., 240 NLRB 1180 (1979) 252 NLRB No. 81 to the assertion of the majority-is not clearly re- pugnant to the purposes and policies of the Act. The unfair labor practice issues is whether Smith was discharged for engaging in protected activity or for a legally permissible reason. The grievance issue before the arbitrator, although perforce differ- ently stated, is substantially equivalent-whether Smith was discharged without cause or for just cause. The arbitrator, on the basis of facts present- ed to him in detail, found that Smith was dis- charged for cause. To find that the award is repug- nant to the Act, i.e., that the award is wholly at odds with Board law or does violence to the Act, would require a finding that the arbitrator found that engaging in protected activity was just cause for discharge. Such a finding is not tenable her. The arbitrator had before him evidence that Smith had engaged in misconduct, and a resonable read- ing of the award be that the arbitrator upheld Smith's discharge on the basis of that misconduct. The majority state that the following status report contains a clear admission that Smith was discharged for protected activity: Jeri Smith was terminated for failure to follow timecard policies and abusive checker errors in departmentalizations. She failed to ring items of a department on the correct key. We have several customer complaints on her rudeness, plus one letter from a customer saying that she was rude, and intolerable of the situation. During her course of employment Jeri created unrest with the crew over union problems stat- ing mistruths [sic] about Company policies which were in conflict with the union's. I see no such "clear admission" here. Instead, the report raises the factual issue of whether Smith's creating "unrest with the crew over union porb- lems" was a motivating factor in her discharge, and that issue was fully presented to the arbitrator. Thus, contrary to the majority, it is not "apparent . . . that the arbitrator failed to give any considera- tion or weight to Smith's protected concerted ac- tivity." An equally plausible (if not more plausible) reading of the award is that the arbitrator conclud- ed that such activity was not a moving cause of Smith's discharge. Spielberg deferral requires more. The majority do not apply this standard-the Spielberg standard.Instead, they review the award on the basis of whether they agree or disagree with the result and on the basis of the evidence before the Board rather than on the evidence before the arbitrator. As recently stated by the court in N.L.R.B v. Pincus Brothers, Inc.--Maxwell, 620 F.2d 367 (3d Cir. 1980), "it is an abuse of discretion for the Board to refuse to defer to an arbitration 529 DECISIONS OF NATIONAL LABOR RELATIONS BOARD award where the findings of the arbitrator may ar- guably be characterized as not inconsistent with Board policy." In Douglas Aircraft Co. v. N.L.R.B., 609 F.2d 352 (9th Cir. 1979), the court stated, "If the reasoning behind an award is susceptible of two interpretations, one permissible and one impermissi- ble, it is simply not true that the award was 'clear- ly repugnant' to the Act." The arbitration award herein clearly meets these tests for deferral. Thus, the majority by again refusing to defer continue to sap the vitality of the Spielberg doctrine to a point that they might as well expressly reverse Spielberg and be done with it. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAl. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL. NOT terminate Jeri Smith, or any other employees, because she or they seek to enforce the break period provisions of our col- lective-bargaining agreement with United Food and Commercial Workers International Union, AFL-CIO, Local No. 7, or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Jeri Smith immediate and full reinstatement to her former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previ- ously enjoyed, and or other rights and privi- leges previously enjoyed, and WE WILL make her whole for any loss of pay suffered as a result of her termination, plus interest. ALBERTSONS, INC. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me in Colorado Springs, Colora- do, on August 7, 1979, pursuant to a complaint and notice of hearing issued on August 20, 1978, by the Re- gional Director for Region 27 of the National Labor Re- lations Board. The complaint, which alleges violations of Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended, hereinafter called the Act, is based on a charge filed on July 10 by Retail Clerks In- ternational Union Local No. 7, hereinafter called the Union. At the hearing, the parties were provided full op- portunity to make opening statements, examine and cross-examine witnesses, introduce relevant evidence, and to file briefs with me. Counsel timely filed briefs. Upon the basis of the entire record, my observation of the witnesses, and the briefs of the parties, I make the following: FINDINGS OFI FACT I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent has been a corporation duly organized under the laws of the State of Delaware, and has been engaged in the retail sale of groceries in locations in various States. At all material times, Respondent has maintained an office and place of business at Boise, Idaho, and has operated a retail gro- cery store, designated Store No. 835, in Security, Colora- do. In the course and conduct of its business operations within the State of Colorado, Respondent annually pur- chases and receives goods and materials valued in excess of $50.000 directly from points and places outside the State of Colorado. At Store No. 835, Respondent has had gross annual sales in excess of $500,000. Upon these facts which are not in dispute, I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The Company concedes, and I find, that all times ma- terial herein, the Union has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNLAWFUL CONDUCT A. Pertinent Facts 1. Background facts Ray Prettyman became store manager at Store No. 835 in Security, Colorado, on November 1, 1977, and served in that capacity at all times pertinent herein. Jim Bennett preceded Prettyman as manager of the store. Jeri Smith was employed in a part-time capacity as a cashier at the store from August 15, 1977, until February 16, 1978, when she was terminated. From November 1, 1977, until she was terminated, Smith was supervised by Prettyman. Throughout her employment at the store, Smith was a member of the Union. Respondent and the Union were parties to a collec- tive-bargaining agreement, which was in effect from July 18, 1976, to May 5, 1979. The collective-bargaining I Unless otherwise specified, all dates refer to 1978. 530 ALBERTSONS, INC. agreement contained articles providing for a grievance and arbitration process. Those articles were invoked by the Union to grieve the termination of Smith, and on June 29 and July I, a hearing was held before a mutual- ly selected arbitrator on the following stipulated issues: Was the grievant, Ms. Jeri Smith, discharged for just cause under the provisions of the current Labor Agreement? If not, to what relief is the grievant en- titled? At the arbitration hearing, the Union and the Company were represented by counsel, and each party was pro- vided a full opportunity to present evidence, to call wit- nesses, to conduct direct and cross-examination of those witnesses, and to submit documentary evidence. No tran- script of the arbitration proceeding was made. The par- ties filed briefs with the arbitrator; and, on September 6, 1978, an award of the arbitrator was made in writing dis- missing the grievance. In the meantime, as found, on July 6, the Union filed a charge with the Board alleging Smith's termination to have been in violation of Section 8(a)(l) and (3) of the Act. The complaint, which issued on October 20, alleged Smith's discharge to constitute a violation of Section 8(a)(1) and (3) of the Act, and in its timely filed answer Respondent interposed as an affirmative defense, and as a bar to the instant proceeding, the arbitrator's September 6 award. In this regard, Respondent contended that the arbitration proceedings were fair and regular in all re- spects; that the Union was represented by legal counsel in said proceeding; and that the award of the arbitrator was not repugnant to the purposes or policies of the Act. Subsequently, on December 2, Respondent filed with the Board a Motion for Summary Judgment asserting that as a matter of law Respondent was entitled to an order dismissing the complaint under the doctrine of Spielberg Manufacturing Company, 112 NLRB 1080 (1955). In due course, on June 5, 1979, the Board issued an order denying Respondent's Motion for Summary Judgment and remanding the proceeding to the Division of Judges for hearing and decision. The remand was without prejudice to any issue or defense being raised at a hearing before the duly designated Administrative Law Judge. Respondent raised the Spielberg defense before me during the course of the August 7 hearing. 2. The alleged proscribed conduct a. Smith 's concerted or union activities Jeri Smith was terminated on February 16 by Ray Prettyman. During the course of her employment, Smith had been a rank-and-file member of the Union, fulfilling no elective or appointive position. However, after Pret- tyman became store manager, he heard rumors circulat- ing to the effect that Smith was going to assume duties as a union steward, and he was contacted by several em- ployees who, in effect, speculated as to the legitimacy of replacing the incumbent steward, who was a full-time employee, with Smith who was a part-time employee. Moreover, it came to Prettyman's attention that Smith was speaking to other employees about the failure of the Company to grant her breakperiods in accordance with the collective-bargaining agreement. On one occasion while she was working in the checkstand area, Smith asked Prettyman for a break and Prettyman announced aloud, "We are going to give Jeri a break." He allowed Smith to go on break, but she did not get one the next day. Also before Smith's separation, at another time, Prettyman spoke with Smith informing her, in substance, that in order for her to replace the incumbent union stewardess it would be necessary for her to furnish him with documentary proof of her designation, and appoint- ment as steward by the Union. Moreover, Prettyman told Smith that if she had complaints to lodge, she should do so directly with him rather than with the other members of the crew. Additionally, prior to Smith's termination, Prettyman formed the impression that in conversations with other employees, Smith had inaccurately characterized the established and promulgat- ed check-cashing policy of the Company. Further, at a separate time, Smith requested Prettyman to post her 32- hour request sheet in the form of a letter requesting that she be permitted to work 32 hours or more. Smith took the position that the collective-bargaining agreement pro- vided for the posting of this request. Prettyman informed Smith that he had sent the request to the headquarters office, and that he did not post the request. Prettyman manifested no hostility toward Smith for making the re- quest. 2 b. Smith's termination Prettyman testified credibly that on assuming manager- ship of the store on November 1, he pursued a policy of speaking to employees individually for the purpose of correcting their work errors and enlisting their coopera- tion in improving the employee rapport and business effi- ciency. Initial verbal contacts of a corrective nature were not recorded or memorialized in their personnel file. Later, if errors or deficiencies became severe enough, notations were made in the employee's person- nel folder. These entries were made somewhat contem- poraneous with the warning or disciplinary measure taken, and were initialed by the company representative present when the entry was made. Prior to February 16, Prettyman evaluated Smith's work performance, and decided to terminate her. He called Smith to his office and told her of his decision, citing timecard violations, checker errors, and a combi- nation of other small offenses about which they had spoken on previous occasions. Smith responded that she had had only two timecard violations, but Prettyman ex- 2 The foregoing is based on a composite of the credited testimony of Jeri Smith and Ray Prettyman I credit each of these witnesses only to the extent that their testimony is consistent with the foregoing findings. Prettyman's testimony lends substantial support to that of Smith to the effect that she spoke with Prettyman prior to her termination concerning breaktimes for herself. Further, in accordance with Smith's testimony, which was not denied by Prettyman, I conclude that Smith did speak to Prettyman regarding the posting of her 32-hour request sheet, and I find no basis in the record for rejecting her version of Prettyman's response to that request. On the other hand, I do not credit the inference of Smith's testimony that she did not discuss directly with Prettyman the question of her assuming duties as a union steward. I credit the testimony of Pret- lyman in this respect. 531 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tracted her timecards and stated that there were three. Smith disputed one of the entries, but Prettyman persist- ed. Smith's termination was effectuated.3 Subsequently, on February 24, Prettyman executed an employee status report which explained the details of Smith's termination as follows: Jeri Smith was terminated for failure to follow time- card policies, and abusive checker errors in departmentalizations. She failed to ring items of a department on the correct key. We had several cus- tomer complaints on her rudeness, plus one letter from a customer saying that she was rude, and in- tolerable of the situation. During her course of em- ployment Jeri created unrest with the crew over union problems stating mistruths [sic] about Compa- ny policies which were in conflict with the union's. 3. The alleged work deficiencies a. The timeclock violations At all pertinent times, a timeclock procedure card was posted in the store above the timeclock describing in detail the procedures to be followed in clocking in and out and calculating worktime. Contained on the face of the procedure card was the following statement: TIMECLOCK VIOLATIONS-Penalty for Ist ti- meclock violation will be written warning; 2nd vio- lation will be one to five days suspension without pay, depending on severity of infraction; 3rd viola- tion will result in automatic dismissal. In addition, on August 15, 1977, Jeri Smith had signed a copy of a document setting forth the Company's policy relating to Federal wage and hour laws, and which con- tained further instructions with respect to clocking in and out and maintaining accurate time records. More- over, after assuming his duties as store manager on No- vember 1, Prettyman reviewed the timecards of most of the employees for the previous quarter. He did so pursu- ant to instructions from his superiors to rectify problems of over payment and under payment to employees deriv- ing from timecard inaccuracies. After his evaluation, he met with the employees and reiterated instructions for properly completing their timecards, in the process call- ing attention to the instructions posted over the time- clock. In evaluating the timecards for the previous quar- ter, Prettyman became aware of the fact that under his predecessor, Smith had been guilty of several timecard violations, and the evidence discloses that seven such violations occurred between August 20 and October 15, 1977. In connection with Smith and several other em- ployees whom he noted were having troubles in accu- 3 Ray Prettyman's credited testimony establishes these findings, and I credit the testimony of Jeri Smith which is consistent therewith. I do not credit the testimony of Smith to the effect that at her termination inter- view, Prettyman discussed only timecard violations as the basis for her termination. Prettyman's testimony was to the contrary, and his testimo- ny concerning the reasons advanced at the termination interview for the decision to discharge Smith were convincing and consistent with other record evidence relating to the rationale advanced by Prettyman for the termination of Smith rately completing their timecards, Prettyman posted a notice bearing the names of those employees, including Smith, and asking them to meet with him for "further ex- planation" with respect to the accurate completion of ti- mecards. As a consequence, he spoke with Smith con- cerning her timecard violations. Between November 1, 1977, and February 11, 1978, four timecard violations were charged to Smith. Viola- tions were assessed to the timecards representing the workweeks ending November 5 and 12. As a result, a 3- day suspension was given Smith arising from her second timecard violation. No written warning had been given Smith regarding the November 5 violation. A further ti- mecard violation was assessed against Smith for the pay- roll period ending February 11. The violation on this card, as on the cards for the payroll periods ending No- vember 5 and November II, was the failure of Smith to enter her weekly total of hours worked. Smith's time- cards for the week ending December 17 also contained a timecard violation, but this appears to have been over- looked by Prettyman and occurred on a timecard con- taining a new format which was used for an interim period only. 4 The parties stipulated that in the period January 1, 1978, to August 7, 1979, Bob Hayes, Wanda Kirby, and Terry Krause, all of whom remained in Respondent's employ at the time of the hearing herein, had three or more timecard violations. Moreover, the parties stipulat- ed that Gary Wallace, who at times subsequent to Janu- ary 1, 1978, was employed by Respondent, had three ti- mecard violations but was not separated for this reason but quit because he did not want to work the hours for which he had been scheduled. The parties also stipulated that Roberta Hopper was terminated at the end of her 30-day probationary period because she had received three warnings and writeups relating to timecard viola- tions. Respondent offered no explanation relating to latter incidences, but Prettyman credibly testified that Bob Hayes was a keyman in a management position whose duties were of a character precluding pursuit of a reliable clock-in process by him following his return from his lunchbreak, which is taken pursuant to no fixed schedule. Prettyman further testified that the violations pertaining to Kirby and Krause transpired in the first weeks of their employment, and by virtue of a rule pro- mulgated by management after January 1, 1978, these early violations were excluded from the operation of the warning, suspension, and termination rule otherwise gov- erning timecard violations. However, documentary evi- dence reveals that Kirby, as a new employee, had time- card violations on December 16, 1978, and January 20, 1979, followed by a further timecard violation on April 28, 1979. Krause had timecard violations on August 19, 1978, and again on October 28, 1978. She had a further violation which was not an accountable one on Novem- 4 The testimony of Ray Prettyman and Jeri Smith, considered in light of documentary evidence of record, establishes the foregoing. With re- spect to instructions proffered employees generally, and Smith, particu- larly, concerning the completion of timecards, I credit Prettyman and reject Smith's testimony to the effect that she was never made aware of timecard procedures and disciplinary measures in connection therewith; nor warned concerning her failure to comply with those procedures. 532 ALBERTSONS. INC. ber 10, 1978. In effect, Prettyman explained that the ti- mecard violations of Kirby and Krause, which transpired in the early stages of their employment, were not as- sessed against them in applying the disciplinary rules per- taining to timecard violations. b. The checker ests Each of Respondent's checkers is subjected once or twice a month to a random, unannounced check accom- plished by an anonymous representative designed to assess the accuracy, speed, courtesy, and conformance to checkstand procedures of the cashier-checker. The checks run on Smith during the course of her employ- ment disclose failures on her part to follow company policy by discounting certain prescribed merchandise which had been premarked and priced by the manufac- turer. Additionally, it was noted that Smith failed to de- partmentalize merchandise, and many times failed to make accurate scale readings in weighing and pricing produce. Prettyman testified that he followed an estab- lished routine of informally discussing the results of the checker tests with checkers, and incident to this routine, he spoke to Smith concerning the results of her tests "three to five" times. In the early days of Smith's employment, Joy Steele, general merchandise manager, explained the departmen- talization procedures for checkers requiring them to ring merchandise by departments on the appropriate cash reg- ister key. Steele testified further that thereafter she dis- covered an error on Smith's part in failing to departmen- talize a sale involving tennis shoes. Similarly, at approxi- mately the same time, Smith made an error in ringing up a delicatessen sale, and this was called to her attention by Phyllis Windbourne, delicatessen manager. An entry under the date of August 16 was made in Smith's person- nel record. Subsequently, on August 24 and 25, respec- tively, entries were also made in Smith's personnel record reflecting minor cash register shortages. These were the only entries made in the normal course of busi- ness in Smith's personnel record relating to cash register violations. 5 b The foregoing is based on the testimony of Ray Prettyman, Jeri Smith, Joy Steele, and Phyllis Windbourne. I have also considered docu- mentary evidence of record. I do not credit the testimony of Smith to the effect that Prettyman never spoke to her concerning register checks. Prettyman credibly testified concerning the procedures followed by man- agement and supervision, including himself, in conducting and following up cash register check results. In reaching this credibility finding, I have evaluated Prettyman's testimony of record in a prior unemployment com- pensation hearing involving Smith's checker tests, and I have considered the record testimony suggesting that documents may be in existence in Respondent's Boise office which would shed light on the checker test re- suits, and which were neither proffered by Respondent nor subpenaed by the General Counsel. I conclude these considerations do not militate in a manner requiring rejection of Prettyman's testimony in this respect. I conclude also that Prettyman did speak to Smith in the aftermath of her checks, and that Smith is inaccurate in her recollection in this respect. I further conclude that the entry in Smith's personnel record under date of February 16 specifying, "check tests were unacceptable" were entries made following the termination of Smith and as not one made during or contemporaneous to the occurrence of any cash register violation chargeable to Smith c. Customer complaints Prettyman further testified that on six or eight occa- sions, customers lodged complaints with him. either tele- phonically or in person, concerning Smith's "rudeness" and deficiencies in performing her work as a checker. According to Prettyman's testimony, these complaints in- cluded references to her failure to call prices as she was checking items through the checkstand. Prettyman was unable to testify concerning the details of these alleged complaints, and none are documented in Smith's person- nel record. However, a written complaint was filed with Prettyman on November 17, 1977, by a customer, Linda Outlaw, who charged Smith with rudeness in handling a return of a loaf of bread which Outlaw had purchased at the store. Prettyman testified that this letter came to his attention and formed part of his evaluation in deciding to terminate Smith. 6 d. Check identification errors Smith's personnel record contains an entry dated Janu- ary 28, specifying, "identification on checks was not to policy." Respondent followed a fixed and promulgated check cashing policy outlining certain defined proce- dures for identifying the maker of a check and accepting it for payment or cashing. Prettyman testified that Smith "apparently did not, for some reason, get the total infor- mation required upon those checks." He testified further that he spoke to Smith several times at the checkstand concerning this and brought her to the office on occa- sion and showed her some checks that she had received without entering proper identification. Prettyman testi- fied that these checks totaled a "good size sum." Pretty- man did not testify concerning the details of his consulta- tion with Smith at the check stand but testified credibly that a meeting with Smith in the office was held incident to the entry made on her personnel record under the date of December 28. Smith testified, however, on one occasion only was she advised that she had failed to obtain proper identification. This involved a military check. She further testified that she thereafter complied with established procedures. e. The bingo game errors Smith's personnel records also contain two entries charging her with bingo card violations by distributing two cards to a single customer. At relevant times during Smith's employment at the store, Respondent used a bingo game as a promotional effort. The store manager predecessor to Prettyman had posted and distributed rules governing the bingo card promotion, and upon be- coming store manager, Prettyman posted further instruc- tions and undertook efforts to acquaint individual check- ers with the rules governing the game. Thereafter, on one occasion Smith gave a customer two bingo cards, 6 The foregoing is based on a consideration of the testimony of Ray Prettyman and Linda Outlaw. I credit Outlaw's testimony in finding that the written complaint was lodged with Respondent and that Outlaw was of the opinion that Smith had engaged in rude conduct towards her. I further credit Prettyman's testimony in finding that the incident came to his attention prior to Smith's termination 533 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Prettyman approached her at the checkstand and reprimanded her. Smith testified that she mistakenly thought that the rules provided for one bingo card for each customer, and the individual to whom she had pre- sented the card had informed her that she was shopping for another person in addition to herself. Smith further testified that on a later occasion at night between 9 p.m. and midnight when only two checkers were in the checkstand area she was harassed by a belligerent and inebriated male customer into giving him two bingo cards. Smith testified that the customer became belliger- ent when she presented him with one bingo card and failed to honor his request for more cards. Smith further testified that she attempted to summons support from personnel at the back of the store but no help was forth- coming. She discussed the incident with Prettyman's as- sistant but not with Prettyman.7 Prettyman testified, in substance, under normal staffing routine, the store is manned by five or six cashiers, one or two individuals in the back of the store who could handle the cash register in unusual circumstances, and a keyman who could oper- ate the cash register in an emergency. 3. The arbitrabion award As found, the arbitrator issued a written award on September 6, 1978, dismissing Smith's grievance. In his decision setting forth the background of the matter, the arbitrator quoted pertinent parts of article 13 and article 16 of the collective-bargaining agreement between Re- spondent and the Union. Article 13 deals with seniority and salient provisions of article 16 provide as follows: NO DISCRIMINATION. Section 38. The Employ- er hereby agrees not to discriminate against any em- ployee or discharge him because of membership in the Union and/or for upholding Union principles; and further, no employee who falls within the bar- gaining unit, member of the Union, shall be dis- charged without good and sufficient cause. In setting forth the positions of the parties in his deci- sion, the arbitrator stated the Company's contentions as follows: The grievant was discharged for her failure to follow various posted Company rules. A primary complaint against the grievant is her failure to follow proper procedures in preparing her time- cards. Other matters in Smith's personnel file are supportive of Prettyman's decision to terminate the grievant. The Union argues that Smith was discharged for her union activity. No evidence has been produced by the Union to support this allegation. I do not credit Prettyman's testimony that he spoke to Smith con- cerning this incident, but I find that he learned of this incident and caused an entry to be made in Smith's personnel file. This reference reflects in a concise and conclusionary fashion the assertion in Respondent's brief to the arbitra- tor that the Union produced no evidence supporting its contention that Smith's discharge was "a pretext for the Company's discrimination against Jeri Smith for her union activity." In discussing the position of the Union, the arbitrator, in effect, summarized the Union's challenge to the credi- bility of Prettyman's explanation as to the substantive reasons underlying Smith's termination, and he quoted from the Union's brief as follows: Moving to the substance of the matter, the first question must be asked is why was the grievant ter- minated. The Union believes that there were essen- tially two reasons for the termination. First, that the grievant had 3 timecard violations. Secondly, and the Union believed this to be the most important reason for the termination, the grievant was an ardent Union supporter who believed in exercising and enforcing the rights contained in the collective- bargaining agreement. Any other reason testified to by Prettyman is merely an attempted bootstrapping. In his discussion leading to his ultimate award, the ar- bitrator set forth in some detail the testimony and evi- dence which had been adduced relating to timecard vio- lations, improper check identification, and work habits and attitude, including check register mistakes, checker tests, and oral complaints from customers concerning Smith's rudeness and abruptness. There was no specific discussion of Smith's alleged involvement in Union activ- ities, and the only reference made to Smith's purported efforts to enforce contractual provisions governing the terms and conditions of employment of unit employees is found in the following allusion: The grievant's lack of attention to timeclock proce- dures suggests dislike of this Company Rule-a dis- pleasure which may have manifested itself in agita- tion among other employees to protest Company policies in general. The arbitrator did not, in terms, rule on the validity of the Union's contention that one of the reasons for Smith's termination was her effort to enforce the terms of the collective-bargaining agreement, nor did the arbi- trator discuss the sufficiency of the evidence, if any, of- feted in support of this contention. In dismissing the grievance, the arbitrator held: Taken together the foregoing complaints against the grievant constitute sufficient grounds for severe dis- ciplinary action. Length of service is not a mitigat- ing factor in this case-Smith's tenure with the Company is approximately 6 months. AWARD The grievance of Ms. Jeri Smith is dismissed. 534 ALBERTSONS, INC. Conclusions 1. The deferral issue The threshold issue raised is whether deferral to the arbitrator's award is warranted under the doctrine of Spielberg Manufacturing Company, 112 NLRB 1080 (1955), wherein the Board stated that as a matter of policy, and in furtherance of the desireable objective of encouraging the voluntary settlement of labor disputes, it would recognize and defer to awards of arbitrators in circumstances wherein the arbitral proceedings were fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel was not clearly repug- nant to the purposes and policies of the Act. Engrafted to these criteria is the requirement, added later in Rayth- eon Company, 140 NLRB 883 (1963), that the arbitrator must have considered the unfair labor practice issue and ruled on it. See also The Kansas City Star Company, 236 NLRB 866, 868, fn. 6 (1978), concurring opinion of Member Truesdale. It is not enough that the arbitrator had been apprised or was on notice of the existence of an unfair labor practice issue when he made his award. Cf. DC International, Inc., 162 NLRB 1383, 1384-85 (1967), enforcement denied on other grounds 385 F.2d 215 (8th cir. 1967). Rather, it is essential that in order to warrant deferral pursuant to the Spielberg principle, the unfair labor practice issue must have been resolved by the arbi- trator, and not ignored either in a substantive sense or in the application of pertinent and controlling Board unfair labor practice decisions. See Greif Bros. Corporation, 238 NLRB 240 (1978); Gould Inc., Switchgear Division For- merly lerac Control, Inc., 238 NLRB 618 (1978); Alfred M. Lewis, Inc., 229 NLRB 757 (1977); cf. Gulf States As- phalt Company, 200 NLRB 938 (1972); Lorain Division of Koehring Co., 234 NLRB 1060 (1978); AMF Voit, Inc., a subsidiary of AMF Incorporated, 223 NLRB 363 (1976); cf. also Airco Industrial Gases-Pacific, a Division of Air Reduction Company, Incorporated, 195 NLRB 676 (1972); Electronic Reproduction Service Corporation, et al., 213 NLRB 758 (1974), casting doubt upon the continued via- bility of the decision in Airco. Respondent contends, and I agree, that the question of whether Smith was terminated for activities in support of the Union was briefed to the arbitrator and advanced by the Union in its brief as the plausible explanation for Smith's termination. Moreover, in the total context of the record, and indulging permissible inferences from evi- dence relating to the arbitration proceeding received in evidence in the hearing before me by way of stipulation, it is essential to find, as I do, that the Union was accord- ed full opportunity to introduce evidence relating to the "union activities" contention. I further find that the em- ployee status report relating to Smith, containing Pretty- man's notations defining the reasons for Smith's dis- charge, including the cogent declaration below quoted, were in evidence before the arbitrator: During her course of employment Jeri created unrest with the crew over union problems. Stating mistruths about Company policies which were in conflict with the union's. The arbitrator's decision discusses, weighs, and evaluates in a detailed manner the evidence elucidating Smith's purported deficient work performance, which the Com- pany contended before the arbitrator, gave rise to Smith's termination. The arbitrator devoted no discussion to Smith's asserted propensity to "create unrest with the crew over union problems," and disposes of the issue of "mistruths" through the device of a passing reference, contextually embedded in a discussion of timeclock pro- cedures, to wit: The grievant's lack of attention to timeclock proce- dures suggests a dislike of this Company rule [Time- clock Procedure]--a displeasure which may have manifested itself in agitation among other employees to protest Company policies in general. The arbitrator did not address himself to the following argument raised by the Union in its brief to him: There is a missing link which ties all of the actions of Prettyman together and shows the real reason why the grievant was terminated. The grievant was terminated because she believed in enforcing her rights and the rights of other employees which are granted by the collective-bargaining agreement. The company admitted as much on company exhibit I [Smith's Employee Status Report]. Prettyman's ex- planation of what he meant in company exhibit I is about as credible as his explanation of what he meant by "went over" when he testified about check tests. Essentially, Prettyman was doing no more than trying to cover up for an incredibly stupid mistake, i.e., the admission that he had fired the grievant because she was an active union sup- porter and enforcer of the collective-bargaining agreement. But based on all the evidence adduced at the hearing, the union requests that the arbitrator rein- state the grievant with full backpay which includes all benefits to which the grievant would be entitled to the collective-bargaining agreement. This request is based upon the undeniable fact that a discharge based upon union activity is not discharge for just cause under the collective-bargaining agreement. The four corners of the arbitrator's decision provides no basis for concluding that he gave any consideration or weight to the protected concerted activity issue implicit in the cited evidence, or that he dealt with the unfair labor practice aspects of the termination in any but an in- substantial and tangential manner. There is no showing that the arbitrator considered Board law in reaching his decision. While he did not expressly decline to consider the unfair labor practice issue, he clearly did not lay the issue to rest in any direct, dispositive fashion. Only an in- ference to be drawn from the arbitrator's conclusion that there existed sufficient grounds for severe disciplinary action against Smith, supports the contention that he considered and ruled on the unfair labor practice issue. In my view of Board precedent, this is not sufficient to mandate deferral. This is so because the failure of the ar- bitrator to discuss evidence before him which raised a 535 DECISIONS ()F NATIONAL LABOR RElATIONS BOARD threshold, if not prime Acie, issue of an extracontractual, statutory violation of Section 8(a)(l) and (3) of the Act, brings the instant case within the controlling purview of Clara Barton Terrace Convalescent Center, a Division ofj National Health Enterprises-Delfern Inc., 225 NLRB 1028 (1976), and without the ambit of Gulf States Asphalt Company, supra at 938.8 In all the circumstances in agreement with the General Counsel, I conclude and find that the arbitrator's deci- sion failed to meet the third criterion of Spielberg and that deferral to his award is not here appropriate. Cf. Kansas City Star Company, supra, and Pacific Southwest Airlines, Inc., 242 NLRB 1169 (1979). 2. The merits This facet of the case raises the issue of whether, (1) Smith engaged in protected concerted activity and, if so, whether that involvement formed a basis for her termina- tion; and (2) whether, alternatively or simultaneously, Respondent was motivated by antiunion hostility in ef- fectuating Smith's termination. The record evidence es- tablishes to my satisfaction that Respondent had basis sufficient to accomplish Smith's termination for cause, as- suming that it could be shown the discharge was for rea- sons totally unrelated to Smith's participation in protect- ed concerted or union activity. See Gulf States Asphalt, supra at 938, 940; Interboro Contractors Inc., 157 NLRB 1295, 1301 (1966). Initially, the record establishes, conclusively, in my view, that in pressing for break periods in accordance with the terms of the collective-bargaining agreement, Smith was engaging in protected, concerted activity, in that she was seeking to implement the collective-bargain- ing agreement applicable to herself, as well as other em- ployees. See Merlyn Bunney and Clarence Bunney, part- ners, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516, 1519 (1962). Although Smith's efforts to obtain break periods were personal in nature, her activity in demanding obedience to the collective-bargaining agreement in this respect was but an extension of the concerted activity giving rise to that agreement. Omni International Hotels, 242 NLRB 248 (1979), and Taberna- cle Community Hospital & Health Center, 233 NLRB 1425 (1977), cited by Respondent are inapposite for, in those cases, no collective-bargaining agreement existed. See also Alleluia Cushion Co., Inc., 221 NLRB 999, fn. 2 (1975). The question thus arises whether Smith's persistence in seeking break time was a moving consideration in her termination. I find that it was. I find also that documen- tation in Smith's personnel file augmented by Pretty- man's testimony at the hearing adequately supports the General Counsel's view of this matter. Respondent's con- tention that good grounds existed for Smith's termination is not here persuasive. Cf. Interboro Contractors. Inc.. supra. N The collention advsanced in Respondenl's brief to the effect that the arbitrator at p. 5 of his decision found thal the Union had produced no evidence to support the union activities' motivalion for Smith's discharge. inaccurately characterizes this as a Finding of the arbitrator rather than a declarative statement on the part of the arbitrator of the Company's posi- lion. The undisputed fact of record is that Prettyman made an entry in Smith's personnel file defining one of the rea- sons for Smith's termination as, "Causing Unrest or Dis- turbance." Prettyman expanded on this factor by the fol- lowing entry: During her course of employment Jeri created unrest with the crew over union proolems. Stating mistruths about Company policies which were in conflict with the union's. In his testimony at the hearing, Prettyman explained the meaning of this entry as follows: What I meant by that was that she agitated the other employees in the front end about her break situation; that was one instance. Another instance was that she came in and said that she was going to replace the present union steward, she was going to be new union steward in the store. I had quite a few employees at that time come to me and talk to me about it. They did not wish that to happen. I told them that as far as I was concerned at that time- and I also went to Ms. Smith and talked to her and told her that if she wanted to be union steward, it was fine, but it had to be through appointment, I had to have a letter put in her EPR [personnel] folder, and as far as I was concerned at that time, she was not union steward, she was a member of the union just like all the rest of the employees in the store. That if she had problems, I asked her to come to me, not the rest of the crew, and put her complaints or her upsetness to the crew. When asked by counsel to explain the meaning of the entry "mistruths about company policies," Prettyman testified: Mainly the things that we had told her-that I had told her-that had been posted, that she had signed, that were posted on the bulletin boards. The check cashing policy was an excuse that she had never been told about, nobody had told her about it, and she didn't understand. In context of record evidence establishing that consid- erations separate and apart from Smith's deficiencies in performing her assigned work tasks, played a role in Prettyman's decision to terminate Smith; and in the face of Prettyman's concession that Smith's conduct in "agi- tating" for breaks was a factor embedded in the analyt- ical process by which he reached his decision to termi- nate Smith, I conclude and find that Smith's insistence on pressing for breakperiods as provided in the collec- tive-bargaining agreement was a moving cause in her ter- mination. It is noteworthy, in this respect, that in being called upon to explain the consideration, exclusive of Smith's deficiencies in performance of work duties, which caused him to discharge Smith, Prettyman accord- ed priority listing to the consideration that "she agitated 536 ALBERTSONS, INC. the other employees in the front end about her break sit- uation." On the record before me, I am unable to view this concession as benign. I find that Smith's involvement in protected concerted activity was a moving considera- tion in her termination which violated Section 8(a)(1) of the Act. - On the other hand, I find, in agreement with Respond- ent, that the record fails to establish a sufficient quantum of antiunion hostility on the part of Prettyman to war- rant a finding that Smith's termination was motivated, even in part, by her membership in or activities in sup- port of the Union, separate and apart from her personal efforts to obtain compliance with the terms of the collec- tive-bargaining agreement, which activity I have found to have been protected concerted activity. There is, in my view of the record, sufficient evidence to establish that Smith's job performance over the 6 months of her employment was a flawed one, revealing a disinclination on Smith's part to conscientiously comply with the rules governing timecards, cash register procedures and cus- tomer relationships. I find further on the instant record, that while Smith's failure to follow the rule governing the issuance of bingo cards and to comply with check cashing rules, were relatively trivial, they appear to have been sufficient to have served as an irritant to Prettyman., who had already formulated adverse opinions of Smith as a reliable employee. It is my conclusion that the com- bination of individual deficiencies coalesced over the telescoped span of Smith's brief job tenure to render Smith fully dispensible. While the General Counsel cor- rectly contends that Respondent was less than consistent in assessing termination as a penalty for three timecard violations, and resorted to the rule in Smith's case to cloak an otherwise unlawful termination, I nonetheless find the record fails to contain sufficient evidence to sup- port a determination that Smith's membership in the union per se, her request with respect to the 32-hour notice, or her putative efforts to become a union ste- ward, were accorded any weight by Prettyman in termi- nating Smith. Moreover, there is only a pallid suggestion that Smith directed her energies in furtherance of other union interests of causes while in the employ of Re- spondent. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCiUSIONS OF LAW 1. Albertsons, Inc., is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Union Local No. 7, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times pertinent herein, Respondent and the Union were parties to a collective-bargaining agreement providing for periodic breaktime for employees and con- taining a grievance and arbitration clause. I It is unncecssary Io dccide swhclher Smiih' s crminaltion for his reason als , *laed See 8(a)(3) f thl Act The remedial order Ould be the same n any evet'll 4. Jeri Smith, a regular part-time employee of Re- spondent, engaged in protected concerted activity in seeking to require Respondent to grant break periods to her in accordance with the collective-bargaining agree- ment. 5. Respondent terminated Jeri Smith, in part, because she had engaged in protected concerted activity in seek- ing to obtain break periods in accordance with the provi- sions of the collective-bargaining agreement. 6. By terminating Jeri Smith for the aforesaid reason. Respondent interfered with, restrained, and coerced em- ployees in the exercise of their rights guaranteed in Sec- tion 7 of the Act, and engaged in and is engaging in unfair labor practices prescribed by Section 8(a)( 1) of the Act. 7. The aforeseid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THIE RilMi I)N Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent terminated Jeri Smith in violation of Section 8(a)(1) of the Act, I shall recom- mend that Respondent offer to Jeri Smith her former or substantially equivalent position of employment, without prejudice to her seniority or other rights and privileges. and make her whole for all loss of pay which she may have suffered as a result of her unlawful termination. Backpas shall be computed, together with interest, in the manner proscribed in . W' Wool4lworth Compan. 9() NLRB 298 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977): see. generally. Ii/s Plumbhing & Hleat- ing Co., 138 NLRB 716 (1962)." Upon the foregoing findings of fact, and conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER " The Respondent, Albertsons, Inc., Security, Colorado, its officers, agents. successors, and assigns, shall: 1. Cease and desist from: (a) Terminating any employee for engaging in protect- ed concerted activity. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action, which I find necessary to effectuate the policies of the Act: "' he Gencral C'irunsel seeks an order assessing hackpa at the rate f 9 percnr l per arlnurn this request is rejected I ihe exlent Ihil ii Is In- ,llnlislei s th he lBoard's currcilt poli¢ In the Ce ent n1o exceplions are filed aIs prol idcd hS Sec I(2 4h if Ihe Rulc, ialld Regulilllns If the National .ilh)r Relations Htoard. the findilgs, Cl'l.ilolr i, rlcin n d rec meinded O)rcr hereinl shall. it, pro ilded in Sec 1(12 48 f he Rules ild Reguidlationlis. he adopted bs the hBoard aidl hcoi-nc is fi dlllgl. c ltilsiins. ilrld O)rder, ilid all IhCction's Thereto shall h dceettie-d S,.il ci for ill rp-is,, 537 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer Jeri Smith immediate and full reinstatement to her former position of employment or, if that position no longer exists, to a substantially equivalent position, and make her whole for any loss of pay she may have suffered as a result of her termination in the manner set forth in the section of this Decision entitled, "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payments records, tim- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due herein. (c) Post at its Security, Colorado, store and place of business copies of the attached notice marked, "Appen- dix." 2 Copies of said notice on forms to be provided by l2 In the cvenl Ihal his Order is enforced h a Judgment of a United States Court (If Appeals, the words in the notice reading 'os ted hy the Regional Director for Region 27, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 27 in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursu- alnt to a Judgment of the United States Court of Appeals Enforcirng an Order of the National l.abor Relations oard " 538